UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EXIDE ELECTRONICS GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction 3698 22-2231834
of incorporation or (Primary Standard Industrial (I.R.S. Employer
organization) Code Number Identification
8521 Six Forks Road
Raleigh, North Carolina 27615
(919) 872-3020
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Nicholas J. Costanza, Esq. With copies to:
Vice President and Chief Legal Counsel Brad S. Markoff
Exide Electronics Group, Inc. Smith Helms Mulliss & Moore, L.L.P.
8521 Six Forks Road 316 W. Edenton Street
Raleigh, North Carolina 27615 Raleigh, North Carolina 27603
(919) 872-3020 (919) 755-8700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective, as determined by
market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans please check the following
box. _______
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than the securities offered only in connection with dividend or
interest reinvestment plans, check the following box. X
-------
If this form is filed to register additional securities for an offering
pursuant to Rule 464(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. _______
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. _______
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. _______
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
- ----------------------------------- ------------------ --------------------------- -------------------------- ---------------------
Title of Each Proposed Maximum Offering Proposed Maximum
Class of Securities Amount to Price Aggregate Amount of
to be Registered be Registered Per Unit Offering Price Registration Fee
- ----------------------------------- ------------------ --------------------------- -------------------------- ---------------------
<S> <C> <C> <C> <C>
Common Stock 641,024 $20.125 $12,900,608 $4,449
- ----------------------------------- ------------------ --------------------------- -------------------------- ---------------------
</TABLE>
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PROSPECTUS
- --------------------------------------------------------------------------------
EXIDE ELECTRONICS GROUP, INC.
641,024 Shares of Common Stock
This Prospectus relates to the offering of up to 641,024 shares of
common stock, $0.01 par value ("Common Stock"), of Exide Electronics Group, Inc.
("Exide Electronics" or the "company") by the holders of shares of Common Stock
entitled to offer such shares by this Prospectus (the "Selling Stockholders")
pursuant to Registration Rights Agreements, dated as of September 29, 1994
(collectively, the "Registration Rights Agreements"), entered into in connection
with the company's acquisition of GS Electronics Limited ("GSE") on that date
(the "GSE Transaction"), and pursuant to a Preferred Stock Purchase Agreement,
dated July 10, 1992, as supplemented by a Preferred Stock Purchase Agreement
dated December 10, 1992 (collectively, the "Preferred Stock Agreement"), both
between the company and Japan Storage Battery Co., Ltd. ("JSB"), under which JSB
purchased 5,100 shares of the company's Series D Convertible Preferred Stock and
4,900 shares of the company's Series E Convertible Preferred Stock (the "JSB
Transaction"). This Prospectus has been prepared by the company pursuant to the
Registration Rights Agreements and the Preferred Stock Agreement. See "Selling
Stockholders" and "Plan of Distribution."
The Common Stock is traded on the Nasdaq Stock Market's National
Market (the "Nasdaq National Market") under the symbol "XUPS". On November 1,
1995, the closing price of the Common Stock on the Nasdaq National Market was
$20.50 per share.
The shares of Common Stock may by offered and sold from time to time
by the Selling Stockholders directly or through broker-dealers or underwriters
who may act solely as agents, or who may acquire shares as principals. The
distribution of the shares may be effected in one or more transactions that may
take place through the Nasdaq National Market or any national securities
exchange on which the Common Stock is approved for listing in the future,
including block trades or ordinary broker's transactions, or through privately
negotiated transactions, or through an underwritten public offering, or through
a combination of any such methods of sale, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. Usual and customary or specially negotiated brokerage fees or
commissions may be paid by the Selling Stockholders in connection with such
sales. See "Plan of Distribution."
To the extent required, the specific shares of Common Stock to be
sold, the names of the Selling Stockholders, purchase price, public offering
price, the names of any such agent, dealer or underwriter, and any applicable
commission or discount with respect to a particular offering will be set forth
in an accompanying Prospectus Supplement. The aggregate proceeds to the Selling
Stockholders from the Common Stock will be the purchase price thereof less the
aggregate agents' commissions and underwriters' discounts, if any, and other
expenses of distribution not borne by the company. The company will receive none
of the proceeds from the sale of any of the shares in this offering, but has
agreed to bear certain expenses of registration of the Common Stock under the
federal and state securities laws (currently estimated to be $60,000), and of
any offering and sale hereunder not including certain expenses such as
commissions and discounts of underwriters, dealers or agents.
See "Risk Factors" for information that should be considered by prospective
purchasers.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION ("COMMISSION") OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is November 3, 1995.
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, and, if given or
made, such information or representations must not be relied upon as having
been authorized. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any securities other than the securities to
which it relates or any offer to or solicitation of an offer to buy such
securities in any circumstances in which such offer or solicitation is unlawful.
Neither the delivery of this Prospectus nor any sale made hereunder shall, under
any circumstances, create any implication that there has been no change in the
affairs of the company since the date hereof or that the information contained
herein is correct as of any time subsequent to its date.
<PAGE>
AVAILABLE INFORMATION
Exide Electronics is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information may be
inspected and copied, at prescribed rates, at the public reference facilities of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, Room 1024, and
at the Commission's New York Regional Office at Seven World Trade Center, New
York, New York 10048 and at the Commission's Chicago Regional Office at
Northwest Atrium Center, 500 West Madison Street, Chicago, Illinois 60661.
Copies of such material also can be obtained at prescribed rates by writing to
the public reference section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549.
The company has filed with the Commission a registration statement on
Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Common Stock offered hereby.
This prospectus ("Prospectus"), which constitutes a part of the Registration
Statement, does not contain all of the information set forth in the Registration
Statement and in the exhibits and schedules hereto. For further information with
respect to the company and such Common Stock, reference hereby is made to such
Registration Statement, exhibits and schedules. The Registration Statement may
be inspected without charge at, or copies obtained upon payment of prescribed
fees from, the Commission and its regional offices at the locations listed
above. Any statements contained herein concerning a provision of any document
are not necessarily complete, and, in each instance, reference is made to the
copy of such document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission. Each such statement is qualified in its
entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been previously filed by the
company with the Commission (File No. 0-18106) pursuant to the Exchange Act, are
incorporated herein by reference:
(1) The company's Annual Report on Form 10-K for the year ended
September 30, 1994.
(2) The company's Annual Meeting Notice and Proxy Statement dated
January 30, 1995, issued in connection with the Annual Meeting
of Stockholders held on February 28, 1995.
(3) The company's Joint Proxy Statement/Prospectus constituting a
part of the Registration Statement on Form S-4 filed by Exide
with the Securities and Exchange Commission (Registration No.
33-88324), filed on January 6, 1995.
(4) The company's Quarterly Reports on Form 10-Q for the quarters
ended December 31, 1994, March 31, 1995 and June 30, 1995.
(5) The company's Current Reports on Form 8-K filed on October 18,
1994, February 22, 1995 and October 20, 1995.
(6) The company's Current Report on Form 8-K/A dated April 24,
1995.
(7) The description of the Common Stock of the company appearing
in the company's Registration Statement on Form 8-A filed
pursuant to Section 12(g) of the Exchange Act, File No.
0-18106.
All documents filed by the company with the Commission pursuant to
Sections 13(a) and 13(c) of the Exchange Act and any definitive proxy statements
so filed pursuant to Section 14 of the Exchange Act and any reports filed
pursuant to Section 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering of the Common Stock shall be deemed
to be incorporated by reference into this Prospectus and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed documents which is incorporated by reference
herein modifies or supersedes such earlier statement. Any such statements so
modified or superseded shall not be deemed, except as to so modified or
superseded, to constitute a part of this Prospectus.
The company will furnish without charge upon written or oral request to each
person to whom a copy of this Prospectus is delivered, including any beneficial
owner, a copy of any or all of the documents specifically incorporated herein
by reference (not including the exhibits to such documents, unless such exhibits
are specifically incorporated by reference in such documents). Requests should
be made to: Marty R. Kittrell, Chief Financial Officer, 8521 Six Forks Road,
Raleigh, North Carolina 27615, (919) 872-3020.
<PAGE>
THE COMPANY
Exide Electronics Group, Inc. ("Exide Electronics" or the "company")
designs, manufactures, markets and services a broad line of uninterruptible
power systems ("UPS") and related equipment, and power management and facilities
monitoring software. UPS products protect computers and other sensitive
electronic equipment against electrical power distortions and interruptions by
continuously cleaning and conditioning electrical power and providing temporary
backup power from batteries in the event of an outage. The company's broad range
of UPS products include small systems for use with personal computers,
workstations, client/server platforms, local and wide area networks (LANS and
WANs), and large standard or custom systems for use with mainframe computers,
data centers and similar applications. The company's power management software
products monitor, track, and communicate electrical power data and other related
environmental events in an enterprise's power, network, and computer systems
infrastructure that can threaten performance of information technology ("IT")
systems, thereby giving network and facilities managers the ability to control
their IT and power systems more effectively.
Exide Electronics was incorporated as a Delaware corporation in 1979.
The company conducts its business through several subsidiaries, and references
to "the company" or "Exide Electronics" herein also refers to the company's
subsidiaries, except where the context indicates otherwise. The company's
principal executive offices are located at 8521 Six Forks Road, Raleigh, North
Carolina 27615, and its telephone number is (919) 872-3020.
RISK FACTORS
In addition to the other information contained in this Prospectus, the
following factors should be considered carefully in evaluating an investment in
the Common Stock offered hereby.
Challenges Relating to the Integration of IPM
During the second quarter of fiscal 1995, the company completed its
acquisition of International Power Machines Corporation ("IPM"), a manufacturer
of UPS products similar to those of the company, headquartered in Dallas, Texas.
The anticipated benefits of the acquisition of IPM will not be achieved unless
Exide Electronics and IPM are combined in a smooth, timely and efficient manner.
The combination will require integration of each company's development,
administrative, finance, purchasing, manufacturing, sales and marketing
organizations, as well as the integration of each company's product offerings
and the coordination of their sales efforts. The transition to a combined
company will require substantial attention from a newly integrated management
team, which has not worked together previously and has limited experience in
integrating companies. Further, both companies' customers will need to be
reassured that product support will continue uninterrupted. The diversion of
management attention and any difficulties encountered in the transition process
could have an adverse impact on the revenue and operating results of the
combined company. Additionally, attempts to achieve economies of scale through
cost reduction efforts may, at least in part in the short term, have an adverse
impact upon the combined company's operations.
Possible Future Significant Fluctuation in Operating Results and Quarterly
Performance
The company's quarterly operating results have fluctuated
significantly. Quarterly results depend upon the timing of product shipments and
major systems implementation services which can be influenced by a number of
factors, some of which are beyond the company's control. This is particularly
true for large, customized systems. The company has experienced seasonal
fluctuations in revenues and operating results on a quarter-to-quarter basis.
The fourth quarter typically has produced the largest portion of the company's
revenues and income. The company believes that the fourth quarter results
reflect increased shipments resulting from sales and management incentives which
are tied to annual sales performance, and increased sales prompted by
weather-related power disturbances during the spring and summer months. The
first quarter has typically produced the smallest portion of the company's
revenues and income, so that there has been a historical reduction in the
company's first quarter results as compared to the previous fiscal year's fourth
quarter. During fiscal years 1994 and 1993, revenues increased for each quarter
within the applicable year, but revenues for the first quarter were lower than
revenues for the fourth quarter of the prior year.
Selling, general and administrative, and research and development
expenditures are incurred to support projected annual sales. These expenses do
not necessarily vary proportionately with revenues on a quarterly basis. As a
result, variations in quarterly revenues may not be accompanied by an equivalent
change in expenses; therefore, operating margins can vary significantly between
quarters.
Competition
The UPS industry is subject to vigorous competition. The company
competes, and will continue to compete, with several U.S. and foreign firms
(certain of which are larger and have greater resources than the company) with
respect to small and large UPS products, both on a worldwide basis and in
various geographic regions and individual UPS product and application niches.
Among such competitors are a division of Emerson Electric Co. a company which is
larger than Exide Electronics, and American Power Conversion Corporation, a
company which is a dominant manufacturer and seller of small UPS products on a
worldwide basis.
Small Systems Product and Distribution Uncertainties
The company's participation in the small UPS products segment of the
overall UPS industry is characterized by rapid technological change, frequent
new product introductions and short product life cycles. The future success of
the company will depend primarily upon its continued ability to design,
manufacture and market products incorporating new technological developments
that address the changing needs of its customers on a cost-effective and timely
basis. There can be no assurance that the company will be able to produce
successful products or that new products will achieve market acceptance.
In addition, distribution channels for personal computers,
workstations, local area networks, and ancillary equipment, including UPS
products, have been characterized by rapid change. These changes include the
emergence of new distribution channels, such as telemarketing, mass
merchandisers and new types of resellers and distributors. To date, the company
has depended on original equipment manufacturers, distributors and value-added
resellers for sales of its smaller UPS products. Competition for access to
existing and new distribution channels is intense. Moreover, the availability of
software and end user support programs also are important to sales. There can be
no assurance that the distribution channels for the company's small systems will
continue to be effective, that the company will be able to continue to develop
new distribution channels, or that the company will be able to adapt to future
changes in distribution or will have the software and end user support programs
needed to compete successfully for sales of smaller UPS products.
No Anticipated Stockholder Distributions
The company's existing credit facilities restrict payment of cash or
property dividends if such payment would cause a default under the operative
credit agreements. The company currently intends to retain all of its earnings
for use in its business and, therefore, does not anticipate paying cash
dividends on its common stock in the foreseeable future.
Reliance on Key Personnel
The company is dependent upon the efforts and abilities of a number of
its current key management, sales, support and technical personnel. The success
of the company in the future will depend to a large extent upon its continuing
ability to retain and attract key employees. The loss of certain of these
employees or an inability to retain or attract key employees in the future could
have an adverse affect upon the company's future operations.
Possible Volatility of Stock Price
During calendar year 1995, the reported sale price of the Common Stock
has ranged from a low of $15 per share to a high of $25.50 per share. The market
price of the Common Stock may continue to fluctuate over time due to, among
other things, the relatively small size of the company's stockholder base.
Dependence of Exide Electronics on Sales to the Federal Government; Government
Contract Matters
Sales to the United States Federal government accounted for
approximately 28% and 33% of total revenues for the nine months ended June 30,
1995 and 1994, respectively, and approximately 33% and 35% of total revenues for
the years ended September 30, 1994 and 1993, respectively. A significant portion
of the company's sales to the Federal government in recent years have been under
a five-year contract awarded to the company by the Air Force Logistics Command
in May 1988 following a competitive procurement. As of June 30, 1995, a
significant portion of the company's backlog relates to orders received under
this contract from the Federal Aviation Administration ("FAA"). The period
during which orders could be placed under this contract expired in May 1993.
Expiration of this contract does not affect orders received prior to expiration,
and delivery on the remainder of such orders, which consists primarily of site
implementation services for the FAA, is currently planned through fiscal 1997.
During the third quarter, the company received an additional $50
million of supplemental time and materials funding from the FAA under the
multi-year ARTCC Modernization program. To date, the company has received
approximately $350 million of funding under this program. The company was also
awarded a large requirements contract with the Air Force Air Logistics Command
during this time period, which has an evaluated value of more than $600 million
over a five year period. Actual revenues under this contract will depend on the
specific purchases, if any, of the Air Force and other governmental agencies
which can use the contract during the contract period. The company is currently
awaiting the completion of the post-award process, including the resolution of
protests of the award by competitors. There can be no guarantee that the company
will prevail in defending the award. However, the company can sell its products
and services to the Federal government through its four existing Navy contracts,
through its General Services Administration Schedule, and potentially in a
subcontractor capacity or through the award of other new contracts.
The company's contracts with the Federal government have no significant
minimum purchase commitments, and the government may cease purchases under these
contracts at any time for any reason. These contracts are subject to termination
for the convenience of the government pursuant to the terms of the contracts.
The company's compliance with government contract regulations is audited or
reviewed from time to time by government auditors, who have the right to audit
the company's records and the records of its subcontractors during and after
completion of contract performance. Under Federal government regulations,
certain costs are not allowable as costs for which the government will reimburse
the company. Government auditors may recommend that certain charges be treated
as unallowable and reimbursement be made to the government. In addition, as part
of the company's internal control practices, the company performs regular
internal reviews of its charges to the government. In connection with such
reviews, the company may make voluntary refunds to the government for certain
unallowable or inadvertent charges, which are brought to the government's
attention by the company. The company provides for estimated unallowable charges
and voluntary refunds in its financial statements, and believes that its
provisions are adequate as of June 30, 1995.
Foreign Currency Exposures
International sales accounted for approximately 32% and 26% of total
revenues for the nine months ended June 30, 1995 and 1994, respectively, and
approximately 25% and 22% of total revenues for the years ended September 30,
1994 and 1993, respectively. The company's international sales include sales to
Latin America, which accounted for about 24% and 28% of total international
sales for the nine months ended June 30, 1995 and 1994. Those sales have been
affected by sometimes unstable economic conditions, including currency
devaluations against the dollar. Continuing unfavorable economic conditions
could adversely impact results in this region.
A significant portion of the company's international sales are
denominated in foreign currencies. As of June 30, 1995, approximately 18% of the
company's total assets were located outside the United States, primarily in
Canada and Europe. Significant fluctuations in foreign currency exchange rates
can result in gains or losses on foreign currency transactions, which are
recorded in the company's consolidated statement of operations. Fluctuations in
the recorded value of the company's net investment in its international
subsidiaries resulting from changes in foreign exchange rates are recorded in
the cumulative translation adjustments component of common shareholders' equity.
The company hedges these risks using a combination of natural hedges such as
foreign currency denominated borrowings and, from time to time, foreign currency
financial instruments. European, Canadian and Japanese currencies have been
especially volatile over the last two years. As of June 30, 1995, the company
had accounts receivable and accounts payable totaling approximately $8 million
that were exposed to fluctuations in exchange rates. These balances are spread
among various currencies, primarily the French franc.
For the first nine months of fiscal 1995, the company had foreign
exchange transaction gains of approximately $79,000, as compared to gains of
approximately $17,000 in the same period of fiscal 1994, and the change in the
cumulative translation adjustments account increased the recorded value of
common shareholders' equity by $267,000 from September 30, 1994 to June 30,
1995. For fiscal 1994, the company had foreign exchange transaction losses of
approximately $257,000, as compared to losses of approximately $221,000 in 1993,
and the change in the cumulative translation adjustments account increased the
recorded value of common shareholders' equity by $154,000 from September 30,
1993 to September 30, 1994.
Concentration of Stock Ownership
Exide Electronics' executive officers and directors (and their
affiliates) own or have the right to acquire approximately 22% of the
outstanding Common Stock as of the date hereof. Accordingly, officers and
directors of the company (and their affiliates) may have the ability to control
the company. One of the company's directors, Chiaki Tanaka, is an officer of JSB
and, accordingly, the 595,273 shares of Common Stock held by JSB as a result of
the JSB Transaction, in addition to the 50,000 shares of Common Stock previously
acquired by JSB, are included in this percentage. Further, on October 23, 1995,
the holders of the company's convertible notes exercised their right to convert
all of the outstanding notes into approximately 1,140,000 shares of Common
Stock, or approximately 12% of the Common Stock outstanding as of the date
hereof. In addition, sales of a substantial number of shares of Common Stock, or
the perception that such sales could occur, could adversely affect prevailing
market prices of the Common Stock.
Provisions Affecting Changes in Control
Certain provisions of Exide Electronics' Certificate of Incorporation
and By-laws could have the effect of delaying, deferring or preventing a change
in control of the company. These provisions include: (i) the restriction on
written consents in lieu of meetings of the stockholders; (ii) the division of
the Board of Directors into three classes; (iii) the requirement of the approval
of the holders of at least 80% of the shares of Common Stock for consummation of
certain corporate transactions under certain circumstances; and (iv) the
authorization of unissued "blank check" preferred stock. Exide Electronics has
adopted a stockholder rights plan and is subject to Section 203 of the Delaware
General Corporation Law, which regulates transactions with certain stockholders
owning 15% or more of a corporation's capital stock.
SELLING STOCKHOLDERS
This Prospectus covers the offer and sale by each Selling Stockholder
of the Common Stock that was issued to each such Selling Stockholder in
connection with either the GSE Transaction (such holders being referred to as
the "GSE Selling Stockholders") or the JSB Transaction. GSE, a company
incorporated under the laws of England, was acquired by the company on September
29, 1994, through MPL Powerware Systems Limited ("MPL"), the company's
wholly-owned England based subsidiary. The GSE Selling Stockholders, who owned
collectively all of the outstanding share capital of GSE prior to its
acquisition by MPL, received, in aggregate, 45,751 shares of the company's
Common Stock as part of the GSE Transaction.
In the JSB Transaction, JSB purchased 5,100 shares of the company's
Series D Convertible Preferred Stock and 4,900 shares of the company's Series E
Convertible Preferred Stock in a private placement pursuant to the terms of the
Preferred Stock Agreement. On July 1, 1995, JSB exercised its rights under the
Preferred Stock Agreement to convert all of its outstanding Series D and Series
E Preferred Stock into 595,273 shares of the company's Common Stock.
Set forth below are the names of each Selling Stockholder on the date
hereof, the nature of any position, office or other material relationship that
the Selling Stockholder has had within the past three years with the company or
any of its predecessors or affiliates, the number of shares of Common Stock
owned by each such Selling Stockholder as of the date hereof, the number of such
shares that may be offered and sold by each such Selling Stockholder hereunder,
and (if one percent or more) the percentage of Common Stock to be owned by each
such Selling Stockholder upon the completion of the offering if all Common Stock
offered by such Selling Stockholders are sold.
<PAGE>
<TABLE>
<CAPTION>
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Ownership of Shares Offered for Ownership Percent of Common
Common Stock Selling of Common Stock Stock Outstanding
Prior to Stockholder's After After Offering(1)
Name Offering Account Offering(1)
- ---------------------------------------- ---------------- -------------------- ----------------- ---------------------
<S> <C> <C> <C> <C>
Tony Peter Stuart Goodchild(2) 9,151 9,151 0 *
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Carol Elizabeth Amans(3) 18,300 18,300 0 *
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Gilbert Stuart Goodchild(4) 18,300 18,300 0 *
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Japan Storage Battery Co., Limited(5) 645,273 595,273 50,000(5) *
- ---------------------------------------- ---------------- -------------------- ----------------- ---------------------
TOTAL 691,024 641,024 50,000 *
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<FN>
* Indicates shares held are less than one percent of Common Stock outstanding.
(1) Assumes all shares offered hereby are eventually sold.
(2) Mr. Goodchild was a shareholder and executive officer of GSE prior to GSE's acquisition by
MPL. Upon consummation of the acquisition of GSE by MPL, GSE became a wholly-owned subsidiary
of MPL. Mr. Goodchild entered into an employment agreement with MPL to serve as an officer of
GSE for a period of two years. In connection with the acquisition of GSE, the company and Mr.
Goodchild entered into a Registration Rights Agreement. See "Plan of Distribution."
(3) Ms. Amans was a shareholder and executive officer of GSE prior to GSE's acquisition by MPL.
Upon consummation of the acquisition of GSE by MPL, GSE became a wholly-owned subsidiary of
MPL. Ms. Amans entered into an employment agreement with MPL to serve as an officer of GSE for
a period of six months. In connection with the acquisition of GSE, the company and Ms. Amans
entered into a Registration Rights Agreement. See "Plan of Distribution."
(4) Mr. Goodchild was a shareholder and executive officer of GSE prior to GSE's acquisition by
MPL. Upon consummation of the acquisition of GSE by MPL, GSE became a wholly-owned subsidiary
of MPL. Mr. Goodchild entered into an employment agreement with MPL to serve as an officer of
GSE for a period of two years. In connection with the acquisition of GSE, the company and Mr.
Goodchild entered into a Registration Rights Agreement. See "Plan of Distribution."
(5) Mr. Chiaki Tanaka, an officer of JSB, currently is and has been a Director of the company since 1992.
Pursuant to the terms of the Preferred Stock Agreement, JSB was granted certain registration rights
with respect to its shares of Common Stock. See "Plan of Distribution. Mr. Tanaka, as an officer of
JSB, has shared voting and investment power over such shares. Mr. Tanaka disclaims beneficial ownership
of such shares. In connection with the JSB Transaction, JSB also entered into a Stockholder Agreement
with the company, whereby it agreed to vote its shares of Common Stock in accordance with the recommendations
of the company's Board of Directors or to abstain from voting. Under the terms of the Stockholders Agreement,
JSB also agreed for a period of five years from its initial purchase of Series D Preferred Stock, to
limit its holdings of the company's capital stock to less than 20% of the company's outstanding voting stock
and agreed not to sell any of its voting stock to any person or entity that owned directly or indirectly more
than 5% of the company's outstanding Common Stock(except for sales to any person or entity that was a 5%
stockholder as of January 30, 1992). The provisions of the Stockholder Agreement generally terminate after
five years. Fifty thousand shares were acquired by JSB in the public market at the time of the company's
initial public offering.
</FN>
</TABLE>
PLAN OF DISTRIBUTION
The company will not receive any proceeds from the sale of Common Stock
owned by the Selling Stockholders. Each of the Selling Stockholders may sell his
or its shares of Common Stock directly or through broker-dealers or underwriters
who may act solely as agents, or who may acquire shares as principals. The
distribution of the shares may be effected in one or more transactions that may
take place through the Nasdaq National Market or any national securities
exchange on which the Common Stock is approved for listing in the future,
including block trades or ordinary broker's transactions, or through privately
negotiated transactions, or through an underwritten public offering, or in
accordance with Rule 144 under the Securities Act, through a combination of any
such methods of sale, at market prices or at negotiated prices. Usual and
customary or specifically negotiated brokerage fees or commissions may be paid
by the Selling Stockholders in connection with such sales.
The aggregate proceeds to the Selling Stockholders from the sale of
Common Stock so offered will be the purchase price of the Common Stock sold less
the aggregate agents' commissions and underwriters' discounts, if any, and other
expenses of issuance and distribution not borne by the company. The Selling
Stockholders and any dealers or agents that participate in the distribution of
Common Stock may be deemed to be "underwriters" within the meaning of the
Securities Act, and any profit on the sale of Common Stock by them and any
commissions received by any such dealers or agents might be deemed to be
underwriting discounts and commissions under the Securities Act.
The Selling Stockholders may effect transactions by selling Common
Stock directly or through broker-dealers acting either as principal or as agent,
and such broker-dealers may receive compensation in the form of usual and
customary or specifically negotiated underwriting discounts, concessions or
commissions from the Selling Stockholders.
To the extent required, the specific shares of Common Stock to be sold,
the names of the selling Stockholders, purchase price, public offering price,
the names of any such agent, dealer or underwriter and any applicable commission
or discount with respect to a particular offering will be set forth in an
accompanying Prospectus Supplement.
The Registration Rights Agreements entered into in connection with the
GSE Transaction provide that the company shall maintain a "shelf" registration
statement pursuant to Rule 415 under the Securities Act covering the sale of
Registrable Shares (as defined in the Registration Rights Agreements) for a
period of at least six months from the date hereof. Likewise, the Preferred
Stock Agreement entered into in connection with the JSB Transaction provides
that the company shall maintain a "shelf" registration statement pursuant to
Rule 415 under the Securities Act covering the sale of Registrable Securities
(as defined in the Preferred Stock Agreement). The obligation to maintain the
"shelf" registration under the terms of the Preferred Stock Agreement is not
limited in duration. Under the Registration Rights Agreements and the Preferred
Stock Agreement, the company has agreed to bear certain expenses of registration
of the Common Stock under the federal and state securities laws (currently
estimated to be $60,000) and of any offering and sale hereunder not including
certain expenses such as commissions or discounts of underwriters, dealers or
agents and fees attributable to the sale of such Common Stock.
Pursuant to the Registration Rights Agreements and the Preferred Stock
Agreement, the company has agreed to indemnify the Selling Stockholders against
certain liabilities, including liabilities under the Securities Act, or to
contribute to payments the Selling Stockholders may be required to make in
respect thereof.
EXPERTS
The consolidated financial statements of Exide Electronics Group, Inc.
appearing in Exide Electronics Group, Inc.'s Annual Report on Form 10-K for the
year ended September 30, 1994, and the company's restated consolidated financial
statements for the years ended September 30, 1994, 1993 and 1992 on Form 8-K
dated October 20, 1995 issued in connection with the company's acquisition of
IPM, have been audited by Arthur Andersen LLP, independent public accountants,
as set forth in their reports with respect thereto, and are incorporated herein
by reference in reliance upon the authority of said firm as experts in
accounting and auditing in giving said reports.
LEGAL MATTERS
Certain legal matters have been passed upon for the company by Smith
Helms Mulliss & Moore, L.L.P., Raleigh, North Carolina.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses to be paid by Exide
Electronics Group, Inc. in connection with the issuance and distribution of the
securities being registered hereby.
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee $ 4,449
NASD listing fee $ -
Fees and expenses of counsel for Exide Electronics $ 25,000
Fees and expenses of independent auditors for Exide Electronics $ 10,000
Blue Sky fees and expenses $ 7,500
Printing Expenses $ 6,000
Miscellaneous $ 7,051
--------
Total $ 60,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the General Corporation Law of the state of
Delaware ("Delaware Law"), a corporation may indemnify its directors, officers,
employees and agents and its former directors, officers, employees and agents
and those who serve, at the corporation's request in such capacities with
another enterprise, against expenses (including attorney's fees), as well as
judgments, fines and settlements in nonderivative lawsuits, actually and
reasonably incurred in connection with the defense of any action, suit or
proceeding in which they or any of them were or are made parties or are
threatened to be made parties by reason of their serving or having served in
such capacity. Delaware Law provides, however, that such person must have acted
in good faith and in a manner he or she reasonably believed to be in (or not
opposed to) the best interests of the corporation and, in the case of a criminal
action, such person must have had no reasonable cause to believe his or her
conduct was unlawful. In addition, Delaware Law does not permit indemnification
in any action or suit by or in the right of the corporation, where such person
has been adjudged liable to the corporation, unless, and only to the extent
that, a court determines that such person fairly and reasonably is entitled to
indemnity for costs the court deems proper in light of liability adjudication.
Indemnity is mandatory to the extent a claim, issue or matter has been
successfully defended.
Article 11 of Exide Electronics' Certificate of Incorporation and
Article 10 of Exide Electronics' Bylaws provide, under certain circumstances,
for the indemnification of Exide Electronics' present or former directors,
officers, employees, agents and persons who, at the request of Exide
Electronics, are or were serving in a similar capacity for another corporation
or entity. These Articles also allow the Board of Directors to purchase and
maintain insurance on behalf of Exide Electronics' present or former directors,
officers or persons who are or were serving at the request of Exide Electronics
as a director or officer or another corporation or entity. Copies of Article 11
of Exide Electronics' Certificate of Incorporation and Article 10 of Exide
Electronics' Bylaws are filed as Exhibits 99.1 and 99.2, respectively, and are
incorporated herein by reference.
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
Exhibit
Number Exhibit Description
4.1 Registration Rights Agreement between Exide Electronics Group,
Inc. and Gilbert Stuart Goodchild, dated September 29, 1994.
4.2 Registration Rights Agreement between Exide Electronics Group,
Inc. and Carol Elizabeth Amans, dated September 29, 1994.
4.3 Registration Rights Agreement between Exide Electronics Group,
Inc. and Tony Peter Stuart Goodchild, dated September 29,
1994.
4.4 Preferred Stock Purchase Agreement, dated as of July 10, 1992,
relating to the purchase of 5,100 shares of the company's
Series D Preferred Stock by Japan Storage Battery Co., Ltd.,
(filed as Exhibit 4a to the company's Current Report on Form
8-K, File No. 0-18106, for the event on July 10, 1992, and
incorporated herein by reference).
4.5 Preferred Stock Purchase Agreement, dated as of December 10,
1992, relating to the purchase of 4,900 shares of Exide
Electronics' Series E Preferred Stock by Japan Storage Battery
Co., Ltd. (filed as Exhibit 4o to Exide Electronics' Annual
Report on Form 10-K, File No. 0-18106, for the fiscal year
ended September 30, 1992, and incorporated herein by
reference).
4.6 Stockholder Agreement, dated as of July 10, 1992, relating to
the purchase of 5,100 shares of Exide Electronics' Series D
Preferred Stock by Japan Storage Battery Co., Ltd. (filed as
Exhibit 4c to Exide Electronics' Current Report on Form 8-K,
File No. 0-18106, for the event on July 10, 1992, and
incorporated herein by reference).
5 Opinion of Smith Helms Mulliss & Moore, L.L.P.
23.1 Consent of Arthur Andersen LLP, as independent public
accountants of Exide Electronics.
23.2 Consent of Smith Helms Mulliss & Moore, L.L.P. (included in
their opinion filed as Exhibit 5).
24 Powers of Attorney (included on signature page)
99.1 Article 11 of Exide Electronics' Certificate of Incorporation
(filed as Exhibit 99(b) to Exide Electronics' Registration
Statement on Form S-3, File No.33-64818, and incorporated
herein by reference).
99.2 Article 10 of Exide Electronics' Bylaws(filed as Exhibit 99(d)
to Exide Electronics' Registration Statement on Form S-3, File
No. 33-64818, and incorporated herein by reference).
<PAGE>
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement.
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
provided, however, that any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement; provided,
however, that the undertakings set forth in paragraphs (i) and (ii) also shall
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liability arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions described under Item 15 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Raleigh, State of North Carolina on November 3, 1995.
EXIDE ELECTRONICS GROUP, INC.
By:/s/ JAMES A. RISHER
James A. Risher
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Exide Electronics Group, Inc., hereby severally constitute James A.
Risher and Marty R. Kittrell and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below, the Registration Statement filed
herewith and any and all amendments to said Registration Statement, and
generally to do all such things in our names and in our capacities as officers
and directors to enable Exide Electronics Group, Inc. to comply with the
provisions of the Securities Act of 1933, and all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming our signature as they
may be signed by our said attorneys, or any of them, to said Registration
Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Date:November 3, 1995 /s/CONRAD A. PLIMPTON
Conrad A. Plimpton
Chairman of the Board of Directors
Date:November 3, 1995 /s/LANCE L. KNOX
Lance L. Knox
Vice Chairman of the Board of Directors
Date:November 3, 1995 /s/MARTY R. KITTRELL
Marty R. Kittrell
Vice President, Chief Financial
Officer, and Treasurer
Date:November 3, 1995 /s/WAYNE L. CLEVENGER
Wayne L. Clevenger
Director
Date:November 3, 1995 /s/RON E. DOGGETT
Ron E. Doggett
Director
Date:November 3, 1995 /s/JAMES E. FOWLER
James E. Fowler
Director
Date:November 3, 1995 /s/DAVID J. MCLAUGHLIN
David J. McLaughlin
Director
Date:November 3, 1995 /s/JAMES A. RISHER
James A. Risher
Director
Date:November 3, 1995 /s/CHIAKI TANAKA
Chiaki Tanaka
Director
EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered into as
of September 29, 1994 by and between Exide Electronics Group, Inc, a Delaware
corporation (the "Company"), and Gilbert Stuart Goodchild (the "Holder").
WHEREAS, in connection with the acquisition of G.S. Electronics Limited by MPL
Powerware Systems Limited ("MPL") pursuant to an agreement dated 29 September
1994 made between MPL (1) and the Holder and others (2) (the "Agreement") under
which the Company will issue to the Holder such number of shares as represent
the Holder's entitlement to the Consideration Shares (as defined in the
Agreement) as is determined in accordance with the terms of the Agreement (the
"Registrable Shares") of common stock, par value $.01 per share, of the Company
("Common Stock"), the Company and the Holder have agreed to enter into this
Agreement in order to provide, among other things, for certain registration
rights concerning the sale of Registrable Shares;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. Demand Registration
(a) At any time the Company is eligible to use Form S-3 or other short form
registration statement, but no earlier than 31 December 1994, upon the
written request of the Holder the Company shall file a registration
statement with the Securities and Exchange Commission ("SEC") within 60
days of receipt of the Holder's written request for registration with
the SEC under the Securities Act of 1933 (the "1933 Act") of all or
part of its Registrable Shares; provided, however, that the Company
shall have no obligation to register any Registrable Shares that are
eligible for sale pursuant to Rule 144(k) under the 1933 Act. Any such
request by the Holder shall specify the aggregate number of Registrable
Shares proposed to be sold and shall also specify the intended method
of disposition thereof; provided, however, that the Holder's demand
shall specify an aggregate number of Registrable Shares equal to at
least half of the Registrable Shares that the Holder owns at the time
the demand is made of the Company. The Company shall use its best
efforts to keep the registration statement effective until the earlier
of six (6) months after the date of effectiveness of the registration
statement or until the Holder has sold the number of Registrable Shares
for which it requested registration. The Holder shall not be entitled
to make a demand pursuant to this Section 1 more than one (1) time;
provided, however, that (i) if no registration statement is declared
effective with respect to a demand which the Holder has made (other
than because the Holder has requested that the registration statement
not be declared effective) or (ii) if the registration statement does
not include all of the Registrable Shares that the Holder requests to
be included, that demand shall not be counted for purposes of this
limit. The Company may defer filing a registration statement pursuant
to this Section 1 for up to 120 days if in the reasonable judgment of
the Company's board of Directors the filing of such registration
statement would be detrimental to the Company. Such option of the
Company's Board of Directors shall be exercised only once with respect
to each request. The Company may, in its discretion, include in the
registration statement shares of Common Stock to be sold by the Company
or other stockholders.
2. Registration Procedures
(a) The Company shall have no obligation to include Registrable Shares
owned by the Holder in a registration statement pursuant to Section 1
hereof unless and until the Holder has furnished the Company with all
information and statements about or pertaining to the Holder in such
reasonable detail and on such timely basis as is reasonably deemed by
the Company to be necessary or appropriate for the preparation of the
registration statement.
(b) Whenever the Holder has requested that Registrable Shares be registered
pursuant to Section 1 hereof, the Company shall, subject to the
provisions of Section 1 hereof:
(1) prepare and file with the SEC a registration statement
with respect to such Registrable Shares and use its reasonable
efforts to cause such registration statement to become
effective as soon as practicable after the filing thereof
(provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the
Company shall furnish counsel for the Holder with copies of
all such documents proposed to be filed);
(2) prepare and file with the SEC such amendments and
supplements to such registration statement and prospectus
contained therein as may be necessary to keep such
registration statement effective for a period of not less than
six (6) months or until the Holder has completed the
distribution described in such registration statement,
whichever occurs first;
(3) furnish to the Holder the number of copies of such
registration statement, each amendment and supplement thereto,
the prospectus contained in such registration statement
(including each preliminary prospectus), and such other
documents as the Holder may reasonably request;
(4) use its best efforts to register or qualify such
Registrable Shares under the state blue sky or securities
("Blue Sky") laws of such jurisdictions as the Holder
reasonably requests (and to keep such registrations and
qualifications effective for a period of six months, or until
the holder has completed the distribution of such Registrable
Shares, whichever occurs first), and to do any and all other
acts and things that may be reasonably necessary or advisable
to enable the Holder to consummate the disposition of such
Registrable Shares in such jurisdictions; provided, however,
that the Company will not be required to do any of the
following: (i) qualify generally to do business in any
jurisdiction where it would not be required but for this
Section 2(b), (ii) subject itself to taxation in any such
jurisdiction, or (iii) file any general consent to service of
process in any such jurisdiction;
(5) promptly notify the Holder, at any time when a prospectus
relating thereto is required to be delivered under the 1933
Act during the period that the Company is required to keep
the registration statement effective, of the occurrence of any
event as a result of which the prospectus included in such
registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the
statements therein in the light of the circumstances under
which they were made, not misleading, and prepare a supplement
or amendment to the prospectus so that, as thereafter
delivered to the purchasers of such Registrable Shares, the
prospectus will not contain an untrue statement of a material
fact or omit to state any fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(6) provide a transfer agent and registrar (if the Company
does not already have such an agent) for all such Registrable
Shares not later than the effective date of such registration
statement; and
(7) ensure that, if the Holder is included as a party to the
underwriting agreement between the Company and such
underwriters as the Company may have selected, the Holder
shall not be required to make any representations or
warranties to or agreements with the Company or the
underwriters other than representations, warranties or
agreements regarding the Holder's status, the Holder's Common
Stock holdings, the Holder's intended method of distribution,
and any other representations, warranties, and agreements of
selling stockholders customarily included in an underwriting
agreement.
3. Holdback Agreement
In the event that the Company effects an underwritten public offering of any the
Company's securities, the Holder agrees, if requested by the Company or the
managing underwriters, not to effect any offer, sale, or transfer, including any
sale pursuant to Rule 144 under the 1933 Act, of any interest in the Company's
equity securities or any security convertible or exercisable for the Company
equity securities (except as part of such underwritten offering) pursuant to
demand made under Section 1 hereof during the 180-day period commencing with the
effective date of the registration statement for such offering (or such longer
or lesser period as is requested of and agreed to by other large Company
stockholders or the Company management generally).
4. Registration Expenses
(a) If, pursuant to Section 1 hereof, Registrable Shares owned by the
Holder are included in a registration statement, then the Holder shall
pay all transfer taxes, if any, relating to the sale of its Registrable
Shares, the fees and expenses of its own counsel, and its pro rata
portion of any underwriting discounts or commissions or the equivalent
thereof.
(b) Except for the fees and expenses specified in Section 4(a) hereof and
except as provided below in this Section 4(b), the Company shall pay
all expenses incident to the registration and to the Company's
performance of or compliance with this Agreement, including, without
limitation, all registration and filing fees, fees and expenses of
compliance with Blue Sky laws, printing expenses, messenger and
delivery expenses, and fees and expenses of counsel for the Company and
all independent certified public accountants and other persons retained
by the Company.
(c) With respect to any registration pursuant to Section 1 hereof, the
Company shall pay its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing
legal or accounting duties).
5. Indemnity and Contribution
(a) In the event that any Registrable Shares owned by the Holder are sold
by means of a registration statement pursuant to Section 1 hereof, the
Company agrees to indemnify and hold harmless the Holder (referred to
in this Section 5 as an "Indemnified Person") from and against all
demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs, and expenses, including, without
limitation, interest, penalties, and reasonable attorneys' fees and
disbursements, asserted against, resulting to, imposed upon, or
incurred by the Holder, directly or indirectly (hereinafter referred to
in this Section 5 in the singular as a "Claim" and in the plural as
"Claims"), based upon, arising out of, or resulting from any untrue
statement of a material fact contained in the registration statement or
any omission to state therein a material fact necessary in order to
make the statements made therein, in the light of the circumstances
under which they were made, not misleading, except insofar as such
Claim is based upon, arises out of or results from information
furnished to the Company by the Holder in a written document provided
by the Holder for use in connection with the registration statement.
The Holder agrees to indemnify and hold harmless the Company, its
officers and directors, each person, if any, who controls or may
control the Company within the meaning of the 1933 Act and any
underwriters participating in the distribution of Registrable Shares
pursuant to a registration statement (the Company, its officers and
directors, and any such other persons being hereinafter referred to
individually as an "Indemnified Person" and collectively as
"Indemnified Persons") from and against all Claims based upon, arising
out of, or resulting from any untrue statement of a material fact
contained in the registration statement or any omission to state
therein a material fact necessary in order to make the statement made
therein, in the light of the circumstances under which they were made,
not misleading, to the extent that such Claim is based upon, arises out
of or results from information furnished to the Company by the Holder
in a written document provided by the Holder for use in connection with
the registration statement. The indemnification's set forth herein
shall be in addition to any liability the Company or the Holder may
otherwise have to the Indemnified Persons. Promptly after actually
receiving definitive notice of any Claim in respect of which an
Indemnified Person may seek indemnification under this Section 5, such
Indemnified Person shall submit written notice thereof to either the
Company or the Holder, as the case may be (sometimes being hereinafter
referred to as an "Indemnifying Person"). The failure of the
Indemnified Person so to notify the Indemnifying Person of any such
Claim shall not relieve the Indemnifying Person from any liability it
may have hereunder except to the extent that (a) such liability was
caused or increased by such omission, or (b) the ability of the
Indemnifying Person to reduce such liability was materially adversely
affected by such omission. In addition, the failure of the Indemnified
Person so to notify the Indemnifying Person of any such Claim shall not
relieve the Indemnifying Person from any liability it may have
otherwise than hereunder. The Indemnifying Person shall have the right
to undertake, by counsel or representatives of its own choosing, the
defense, compromise, or settlement (without admitting liability of the
Indemnifying Person) of any such Claim asserted, such defense,
compromise, or settlement to be undertaken at the expense and risk of
the Indemnifying Person, and the Indemnified Person shall have the
right to engage separate counsel, at its own expense, whom counsel for
the Indemnifying Person shall keep informed and consult with in a
reasonable manner. In the event the Indemnifying Person shall elect
not to undertake such defense by its own representatives, the
Indemnifying Persons shall give prompt written notice of such election
to the Indemnified Person, and the Indemnified Person shall undertake
the defense, compromise, or settlement (without admitting liability of
the Indemnified Person) thereof on behalf of and for the account and
risk of the Indemnifying Person by counsel or other representatives
designated by the Indemnified Person. In the event that any Claim
shall arise out of a transaction or cover any period or periods wherein
the Company and the Holder shall each be liable hereunder for part of
the liability or obligation arising therefrom, then the parties shall,
each choosing its own counsel and bearing its own expenses, defend such
Claim, and no settlement or compromise of such Claim may be made
without the joint consent or approval of the Company and the Holder.
Notwithstanding the foregoing, no Indemnifying Person shall be
obligated hereunder with respect to amounts paid in settlement of any
Claim if such settlement is effected without the consent of such
Indemnifying Person which consent shall not be unreasonably withheld).
(b) If the indemnification provided for in Section 5(a) of this Agreement
is unavailable to an Indemnified Person in respect of any Claims, the
Indemnifying Person, in lieu of indemnifying such Indemnified Person,
shall contribute to the amount paid or payable by such Indemnified
Person as a result of such Claims (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company,
on the one hand, and the Holder, on the other hand, from the offering
of the Common Stock, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company, on the
one hand and the Holder, on the other hand, in connection with the
statements or omissions that resulted in such Claims, as well as any
other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Holder, on the other
hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company bear to the total net proceeds (before deducting expenses)
received by the Holder. The relative fault of the Company, on the one
hand, and the Holder, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company,
on the one hand, or by the Holder, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
6. Transfer to Third Parties
If the Holder transfers all of its Registrable Shares to any other person or
entity (the "Transferee") other than pursuant to a registration statement filed
in response to demand made under Section 1 hereof or pursuant to Rule 144(k)
under the 1933 Act, then, if so requested by the holder in writing, the Company
shall enter into an appropriate agreement with the Transferee (or an appropriate
amendment to this Agreement) which provides that the Transferee shall have the
same rights and same obligations with regard to registration of the Registrable
Shares and related matters as are granted to the Holder hereunder.
7. Subsequent Registration Statement
The Company shall not cause any new registration statements (except registration
statements on Forms S-8, S-4, or comparable forms) to become effective during
the 90 days after the effective date of a registration statement covering
Registrable Shares owned by the Holder or until the Holder has completed the
distribution described in such registration statement, whichever occurs first.
8. Warranties
The Company warrants to the Holder as follows:
(a) this Agreement constitutes a valid and binding obligation of the
Company;
(b) the Registrable Shares have been duly authorised and validly issued by
the Company and are fully paid, non-assessable and free for any liens,
claims, charges, security interests, options or other encumbrances;
(c) the Registrable Shares are of the same class and, except only for the
restrictions o transferability pursuant to the provisions of applicable
securities law, are the same in every respect as those shares of the
Company traded on NASDAQ Securities Trading Exchange under the symbol +
UPS.
9. Term
This Agreement shall terminate five (5) years after the date first
above written; provided, however, that the revisions of Section 5
hereof shall survive such termination.
10. Notices
All notices, requests, demands or other communications that may be or are
required to be given, served, or sent by any party to any other party pursuant
to this Agreement shall be in writing and shall be hand delivered or mailed by
first class, registered or certified mail, return receipt requested, postage
prepaid, delivered by overnight express, or transmitted by telegram or telex,
addressed as follows:
(i) If to the Company:
Exide Electronics Group, Inc
8521 Six Forks Road
Raleigh
North Carolina 27615
U.S.A.
Attention: President
(ii) If to the Holder:
Hawkwell House
Maidstone Road
Pembury
Tunbridge Wells
Kent TN2 4AE
Each party may designate by notice in writing a new address to which any notice,
request, demand, or other communication may thereafter be so given. Each notice,
request, demand, or other communication that shall be hand delivered, mailed or
telexed in the manner described above, or that shall be delivered to a telegraph
company, shall be deemed sufficiently given, served, sent, received, or
delivered for all purposes at such time as it is delivered to the addressee
(with the return receipt, the delivery receipt, the affidavit of messenger, or
overnight courier or (with respect to a telex) the answerback being deemed
conclusive, but not exclusive, evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
11. Severability
If fulfilment of any provision of this Agreement or performance of any
transaction related thereto, at the time such fulfilment or performance shall be
due, shall involve transcending the limit of validity prescribed by law, then
the obligation to be fulfilled or performed shall be reduced to the limit of
such validity; and if any clause or provision contained in this Agreement
operates or would operate prospectively to invalidate any other provision in
this Agreement, in whole or in part, then only the clause or provision causing
the invalidity of such other clause or provision shall be held ineffective, as
though not herein contained, and the remainder of this Agreement shall remain
operative and in full force and effect.
12. Miscellaneous Provisions
Each of the parties hereto shall take or cause to be taken such further actions
and shall obtain such consents as may be necessary or as the other party may
reasonably request, without the payment of further consideration, in order fully
to effectuate the purposes, terms, and conditions of this Agreement. Neither
party may assign its rights under this Agreement without the prior written
consent of the other party hereto. No waiver by any party of, or consent by any
party to, a variation from the requirements of any provision of this Agreement
shall be effective unless made in a written instrument duly executed by or on
behalf of such party, and any such waiver shall be limited solely to those
rights or conditions expressly waived. This Agreement constitutes the entire
agreement of the parties hereto with respect to the matters contemplated herein
and supersedes all prior oral or written agreements, commitments, or
understandings with respect to the matters contemplated herein, and may not be
modified, deleted, or amended except by written instrument executed by the
parties. This Agreement, the rights and obligations of the parties hereto, and
any Claims or disputes relating thereto shall be governed by and construed in
accordance with the laws of the State of [Delaware] (but not including the
choice of law rules thereof). To facilitate execution, this agreement may be
executed in as many counterparts as may be required; it shall not be necessary
that the signatures of, or on behalf of, each party appear on each counterpart;
but it shall be sufficient that the signatures of, or on behalf of, each party,
or the signatures of the persons required to bind any party, appear on one or
more of the counterparts. All counterparts shall collectively constitute a
single agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
EXIDE ELECTRONICS GROUP, INC.
By: /s/ Marty R. Kittrell
Vice President, CFO and Treasurer
By: /s/ Gilbert Stuart Goodchild
EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered into as
of September 29, 1994 by and between Exide Electronics Group, Inc, a Delaware
corporation (the "Company"), and Carol Elizabeth Amans (the "Holder").
WHEREAS, in connection with the acquisition of G.S. Electronics Limited by MPL
Powerware Systems Limited ("MPL") pursuant to an agreement dated 29 September
1994 made between MPL (1) and the Holder and others (2) (the "Agreement") under
which the Company will issue to the Holder such number of shares as represent
the Holder's entitlement to the Consideration Shares (as defined in the
Agreement) as is determined in accordance with the terms of the Agreement (the
"Registrable Shares") of common stock, par value $.01 per share, of the Company
("Common Stock"), the Company and the Holder have agreed to enter into this
Agreement in order to provide, among other things, for certain registration
rights concerning the sale of Registrable Shares;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. Demand Registration
(a) At any time the Company is eligible to use Form S-3 or other short form
registration statement, but no earlier than 31 December 1994, upon the
written request of the Holder the Company shall file a registration
statement with the Securities and Exchange Commission ("SEC") within 60
days of receipt of the Holder's written request for registration with
the SEC under the Securities Act of 1933 (the "1933 Act") of all or
part of its Registrable Shares; provided, however, that the Company
shall have no obligation to register any Registrable Shares that are
eligible for sale pursuant to Rule 144(k) under the 1933 Act. Any such
request by the Holder shall specify the aggregate number of Registrable
Shares proposed to be sold and shall also specify the intended method
of disposition thereof; provided, however, that the Holder's demand
shall specify an aggregate number of Registrable Shares equal to at
least half of the Registrable Shares that the Holder owns at the time
the demand is made of the Company. The Company shall use its best
efforts to keep the registration statement effective until the earlier
of six (6) months after the date of effectiveness of the registration
statement or until the Holder has sold the number of Registrable Shares
for which it requested registration. The Holder shall not be entitled
to make a demand pursuant to this Section 1 more than one (1) time;
provided, however, that (i) if no registration statement is declared
effective with respect to a demand which the Holder has made (other
than because the Holder has requested that the registration statement
not be declared effective) or (ii) if the registration statement does
not include all of the Registrable Shares that the Holder requests to
be included, that demand shall not be counted for purposes of this
limit. The Company may defer filing a registration statement pursuant
to this Section 1 for up to 120 days if in the reasonable judgment of
the Company's board of Directors the filing of such registration
statement would be detrimental to the Company. Such option of the
Company's Board of Directors shall be exercised only once with respect
to each request. The Company may, in its discretion, include in the
registration statement shares of Common Stock to be sold by the Company
or other stockholders.
2. Registration Procedures
(a) The Company shall have no obligation to include Registrable Shares
owned by the Holder in a registration statement pursuant to Section 1
hereof unless and until the Holder has furnished the Company with all
information and statements about or pertaining to the Holder in such
reasonable detail and on such timely basis as is reasonably deemed by
the Company to be necessary or appropriate for the preparation of the
registration statement.
(b) Whenever the Holder has requested that Registrable Shares be registered
pursuant to Section 1 hereof, the Company shall, subject to the
provisions of Section 1 hereof:
(1) prepare and file with the SEC a registration statement
with respect to such Registrable Shares and use its reasonable
efforts to cause such registration statement to become
effective as soon as practicable after the filing thereof
(provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the
Company shall furnish counsel for the Holder with copies of
all such documents proposed to be filed);
(2) prepare and file with the SEC such amendments and
supplements to such registration statement and prospectus
contained therein as may be necessary to keep such
registration statement effective for a period of not less than
six (6) months or until the Holder has completed the
distribution described in such registration statement,
whichever occurs first;
(3) furnish to the Holder the number of copies of such
registration statement, each amendment and supplement thereto,
the prospectus contained in such registration statement
(including each preliminary prospectus), and such other
documents as the Holder may reasonably request;
(4) use its best efforts to register or qualify such
Registrable Shares under the state blue sky or securities
("Blue Sky") laws of such jurisdictions as the Holder
reasonably requests (and to keep such registrations and
qualifications effective for a period of six months, or until
the holder has completed the distribution of such Registrable
Shares, whichever occurs first), and to do any and all other
acts and things that may be reasonably necessary or advisable
to enable the Holder to consummate the disposition of such
Registrable Shares in such jurisdictions; provided, however,
that the Company will not be required to do any of the
following: (i) qualify generally to do business in any
jurisdiction where it would not be required but for this
Section 2(b), (ii) subject itself to taxation in any such
jurisdiction, or (iii) file any general consent to service of
process in any such jurisdiction;
(5) promptly notify the Holder, at any time when a prospectus
relating thereto is required to be delivered under the 1933
Act during the period that the Company is required to keep the
registration statement effective, of the occurrence of any
event as a result of which the prospectus included in such
registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the
statements therein in the light of the circumstances under
which they were made, not misleading, and prepare a supplement
or amendment to the prospectus so that, as thereafter
delivered to the purchasers of such Registrable Shares, the
prospectus will not contain an untrue statement of a material
fact or omit to state any fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(6) provide a transfer agent and registrar (if the Company
does not already have such an agent) for all such Registrable
Shares not later than the effective date of such registration
statement; and
(7) ensure that, if the Holder is included as a party to the
underwriting agreement between the Company and such
underwriters as the Company may have selected, the Holder
shall not be required to make any representations or
warranties to or agreements with the Company or the
underwriters other than representations, warranties or
agreements regarding the Holder's status, the Holder's Common
Stock holdings, the Holder's intended method of distribution,
and any other representations, warranties, and agreements of
selling stockholders customarily included in an underwriting
agreement.
3. Holdback Agreement
In the event that the Company effects an underwritten public offering of any the
Company's securities, the Holder agrees, if requested by the Company or the
managing underwriters, not to effect any offer, sale, or transfer, including any
sale pursuant to Rule 144 under the 1933 Act, of any interest in the Company's
equity securities or any security convertible or exercisable for the Company
equity securities (except as part of such underwritten offering) pursuant to
demand made under Section 1 hereof during the 180-day period commencing with the
effective date of the registration statement for such offering (or such longer
or lesser period as is requested of and agreed to by other large Company
stockholders or the Company management generally).
4. Registration Expenses
(a) If, pursuant to Section 1 hereof, Registrable Shares owned by the
Holder are included in a registration statement, then the Holder shall
pay all transfer taxes, if any, relating to the sale of its Registrable
Shares, the fees and expenses of its own counsel, and its pro rata
portion of any underwriting discounts or commissions or the equivalent
thereof.
(b) Except for the fees and expenses specified in Section 4(a) hereof and
except as provided below in this Section 4(b), the Company shall pay
all expenses incident to the registration and to the Company's
performance of or compliance with this Agreement, including, without
limitation, all registration and filing fees, fees and expenses of
compliance with Blue Sky laws, printing expenses, messenger and
delivery expenses, and fees and expenses of counsel for the Company and
all independent certified public accountants and other persons retained
by the Company.
(c) With respect to any registration pursuant to Section 1 hereof, the
Company shall pay its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing
legal or accounting duties).
5. Indemnity and Contribution
(a) In the event that any Registrable Shares owned by the Holder are sold
by means of a registration statement pursuant to Section 1 hereof, the
Company agrees to indemnify and hold harmless the Holder (referred to
in this Section 5 as an "Indemnified Person") from and against all
demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs, and expenses, including, without
limitation, interest, penalties, and reasonable attorneys' fees and
disbursements, asserted against, resulting to, imposed upon, or
incurred by the Holder, directly or indirectly (hereinafter referred to
in this Section 5 in the singular as a "Claim" and in the plural as
"Claims"), based upon, arising out of, or resulting from any untrue
statement of a material fact contained in the registration statement or
any omission to state therein a material fact necessary in order to
make the statements made therein, in the light of the circumstances
under which they were made, not misleading, except insofar as such
Claim is based upon, arises out of or results from information
furnished to the Company by the Holder in a written document provided
by the Holder for use in connection with the registration statement.
The Holder agrees to indemnify and hold harmless the Company, its
officers and directors, each person, if any, who controls or may
control the Company within the meaning of the 1933 Act and any
underwriters participating in the distribution of Registrable Shares
pursuant to a registration statement (the Company, its officers and
directors, and any such other persons being hereinafter referred to
individually as an "Indemnified Person" and collectively as
"Indemnified Persons") from and against all Claims based upon, arising
out of, or resulting from any untrue statement of a material fact
contained in the registration statement or any omission to state
therein a material fact necessary in order to make the statement made
therein, in the light of the circumstances under which they were made,
not misleading, to the extent that such Claim is based upon, arises out
of or results from information furnished to the Company by the Holder
in a written document provided by the Holder for use in connection with
the registration statement. The indemnification's set forth herein
shall be in addition to any liability the Company or the Holder may
otherwise have to the Indemnified Persons. Promptly after actually
receiving definitive notice of any Claim in respect of which an
Indemnified Person may seek indemnification under this Section 5, such
Indemnified Person shall submit written notice thereof to either the
Company or the Holder, as the case may be (sometimes being hereinafter
referred to as an "Indemnifying Person"). The failure of the
Indemnified Person so to notify the Indemnifying Person of any such
Claim shall not relieve the Indemnifying Person from any liability it
may have hereunder except to the extent that (a) such liability was
caused or increased by such omission, or (b) the ability of the
Indemnifying Person to reduce such liability was materially adversely
affected by such omission. In addition, the failure of the Indemnified
Person so to notify the Indemnifying Person of any such Claim shall not
relieve the Indemnifying Person from any liability it may have
otherwise than hereunder. The Indemnifying Person shall have the right
to undertake, by counsel or representatives of its own choosing, the
defense, compromise, or settlement (without admitting liability of the
Indemnifying Person) of any such Claim asserted, such defense,
compromise, or settlement to be undertaken at the expense and risk of
the Indemnifying Person, and the Indemnified Person shall have the
right to engage separate counsel, at its own expense, whom counsel for
the Indemnifying Person shall keep informed and consult with in a
reasonable manner. In the event the Indemnifying Person shall elect
not to undertake such defense by its own representatives, the
Indemnifying Persons shall give prompt written notice of such election
to the Indemnified Person, and the Indemnified Person shall undertake
the defense, compromise, or settlement (without admitting liability of
the Indemnified Person) thereof on behalf of and for the account and
risk of the Indemnifying Person by counsel or other representatives
designated by the Indemnified Person. In the event that any Claim
shall arise out of a transaction or cover any period or periods wherein
the Company and the Holder shall each be liable hereunder for part of
the liability or obligation arising therefrom, then the parties shall,
each choosing its own counsel and bearing its own expenses, defend such
Claim, and no settlement or compromise of such Claim may be made
without the joint consent or approval of the Company and the Holder.
Notwithstanding the foregoing, no Indemnifying Person shall be
obligated hereunder with respect to amounts paid in settlement of any
Claim if such settlement is effected without the consent of such
Indemnifying Person which consent shall not be unreasonably withheld).
(b) If the indemnification provided for in Section 5(a) of this Agreement
is unavailable to an Indemnified Person in respect of any Claims, the
Indemnifying Person, in lieu of indemnifying such Indemnified Person,
shall contribute to the amount paid or payable by such Indemnified
Person as a result of such Claims (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company,
on the one hand, and the Holder, on the other hand, from the offering
of the Common Stock, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company, on the
one hand and the Holder, on the other hand, in connection with the
statements or omissions that resulted in such Claims, as well as any
other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Holder, on the other
hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company bear to the total net proceeds (before deducting expenses)
received by the Holder. The relative fault of the Company, on the one
hand, and the Holder, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company,
on the one hand, or by the Holder, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
6. Transfer to Third Parties
If the Holder transfers all of its Registrable Shares to any other person or
entity (the "Transferee") other than pursuant to a registration statement filed
in response to demand made under Section 1 hereof or pursuant to Rule 144(k)
under the 1933 Act, then, if so requested by the holder in writing, the Company
shall enter into an appropriate agreement with the Transferee (or an appropriate
amendment to this Agreement) which provides that the Transferee shall have the
same rights and same obligations with regard to registration of the Registrable
Shares and related matters as are granted to the Holder hereunder.
7. Subsequent Registration Statement
The Company shall not cause any new registration statements (except registration
statements on Forms S-8, S-4, or comparable forms) to become effective during
the 90 days after the effective date of a registration statement covering
Registrable Shares owned by the Holder or until the Holder has completed the
distribution described in such registration statement, whichever occurs first.
8. Warranties
The Company warrants to the Holder as follows:
(a) this Agreement constitutes a valid and binding obligation of the
Company;
(b) the Registrable Shares have been duly authorised and validly issued by
the Company and are fully paid, non-assessable and free for any liens,
claims, charges, security interests, options or other encumbrances;
(c) the Registrable Shares are of the same class and, except only for the
restrictions o transferability pursuant to the provisions of applicable
securities law, are the same in every respect as those shares of the
Company traded on NASDAQ Securities Trading Exchange under the symbol +
UPS.
9. Term
This Agreement shall terminate five (5) years after the date first
above written; provided, however, that the revisions of Section 5
hereof shall survive such termination.
10. Notices
All notices, requests, demands or other communications that may be or are
required to be given, served, or sent by any party to any other party pursuant
to this Agreement shall be in writing and shall be hand delivered or mailed by
first class, registered or certified mail, return receipt requested, postage
prepaid, delivered by overnight express, or transmitted by telegram or telex,
addressed as follows:
(i) If to the Company:
Exide Electronics Group, Inc
8521 Six Forks Road
Raleigh
North Carolina 27615
U.S.A.
Attention: President
(ii) If to the Holder:
Hawkwell House
Maidstone Road
Pembury
Tunbridge Wells
Kent TN2 4AE
Each party may designate by notice in writing a new address to which any notice,
request, demand, or other communication may thereafter be so given. Each notice,
request, demand, or other communication that shall be hand delivered, mailed or
telexed in the manner described above, or that shall be delivered to a telegraph
company, shall be deemed sufficiently given, served, sent, received, or
delivered for all purposes at such time as it is delivered to the addressee
(with the return receipt, the delivery receipt, the affidavit of messenger, or
overnight courier or (with respect to a telex) the answerback being deemed
conclusive, but not exclusive, evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
11. Severability
If fulfilment of any provision of this Agreement or performance of any
transaction related thereto, at the time such fulfilment or performance shall be
due, shall involve transcending the limit of validity prescribed by law, then
the obligation to be fulfilled or performed shall be reduced to the limit of
such validity; and if any clause or provision contained in this Agreement
operates or would operate prospectively to invalidate any other provision in
this Agreement, in whole or in part, then only the clause or provision causing
the invalidity of such other clause or provision shall be held ineffective, as
though not herein contained, and the remainder of this Agreement shall remain
operative and in full force and effect.
12. Miscellaneous Provisions
Each of the parties hereto shall take or cause to be taken such further actions
and shall obtain such consents as may be necessary or as the other party may
reasonably request, without the payment of further consideration, in order fully
to effectuate the purposes, terms, and conditions of this Agreement. Neither
party may assign its rights under this Agreement without the prior written
consent of the other party hereto. No waiver by any party of, or consent by any
party to, a variation from the requirements of any provision of this Agreement
shall be effective unless made in a written instrument duly executed by or on
behalf of such party, and any such waiver shall be limited solely to those
rights or conditions expressly waived. This Agreement constitutes the entire
agreement of the parties hereto with respect to the matters contemplated herein
and supersedes all prior oral or written agreements, commitments, or
understandings with respect to the matters contemplated herein, and may not be
modified, deleted, or amended except by written instrument executed by the
parties. This Agreement, the rights and obligations of the parties hereto, and
any Claims or disputes relating thereto shall be governed by and construed in
accordance with the laws of the State of [Delaware] (but not including the
choice of law rules thereof). To facilitate execution, this agreement may be
executed in as many counterparts as may be required; it shall not be necessary
that the signatures of, or on behalf of, each party appear on each counterpart;
but it shall be sufficient that the signatures of, or on behalf of, each party,
or the signatures of the persons required to bind any party, appear on one or
more of the counterparts. All counterparts shall collectively constitute a
single agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
EXIDE ELECTRONICS GROUP, INC.
By: /s/ Marty R. Kittrell
Vice President, CFO and Treasurer
By: /s/ Carol Elizabeth Amans
EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered into as
of September 29, 1994 by and between Exide Electronics Group, Inc, a Delaware
corporation (the "Company"), and Tony Peter Stuart Goodchild (the "Holder").
WHEREAS, in connection with the acquisition of G.S. Electronics Limited by MPL
Powerware Systems Limited ("MPL") pursuant to an agreement dated 29 September
1994 made between MPL (1) and the Holder and others (2) (the "Agreement") under
which the Company will issue to the Holder such number of shares as represent
the Holder's entitlement to the Consideration Shares (as defined in the
Agreement) as is determined in accordance with the terms of the Agreement (the
"Registrable Shares") of common stock, par value $.01 per share, of the Company
("Common Stock"), the Company and the Holder have agreed to enter into this
Agreement in order to provide, among other things, for certain registration
rights concerning the sale of Registrable Shares;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. Demand Registration
(a) At any time the Company is eligible to use Form S-3 or other short form
registration statement, but no earlier than 31 December 1994, upon the
written request of the Holder the Company shall file a registration
statement with the Securities and Exchange Commission ("SEC") within 60
days of receipt of the Holder's written request for registration with
the SEC under the Securities Act of 1933 (the "1933 Act") of all or
part of its Registrable Shares; provided, however, that the Company
shall have no obligation to register any Registrable Shares that are
eligible for sale pursuant to Rule 144(k) under the 1933 Act. Any such
request by the Holder shall specify the aggregate number of Registrable
Shares proposed to be sold and shall also specify the intended method
of disposition thereof; provided, however, that the Holder's demand
shall specify an aggregate number of Registrable Shares equal to at
least half of the Registrable Shares that the Holder owns at the time
the demand is made of the Company. The Company shall use its best
efforts to keep the registration statement effective until the earlier
of six (6) months after the date of effectiveness of the registration
statement or until the Holder has sold the number of Registrable Shares
for which it requested registration. The Holder shall not be entitled
to make a demand pursuant to this Section 1 more than one (1) time;
provided, however, that (i) if no registration statement is declared
effective with respect to a demand which the Holder has made (other
than because the Holder has requested that the registration statement
not be declared effective) or (ii) if the registration statement does
not include all of the Registrable Shares that the Holder requests to
be included, that demand shall not be counted for purposes of this
limit. The Company may defer filing a registration statement pursuant
to this Section 1 for up to 120 days if in the reasonable judgment of
the Company's board of Directors the filing of such registration
statement would be detrimental to the Company. Such option of the
Company's Board of Directors shall be exercised only once with respect
to each request. The Company may, in its discretion, include in the
registration statement shares of Common Stock to be sold by the Company
or other stockholders.
2. Registration Procedures
(a) The Company shall have no obligation to include Registrable Shares
owned by the Holder in a registration statement pursuant to Section 1
hereof unless and until the Holder has furnished the Company with all
information and statements about or pertaining to the Holder in such
reasonable detail and on such timely basis as is reasonably deemed by
the Company to be necessary or appropriate for the preparation of the
registration statement.
(b) Whenever the Holder has requested that Registrable Shares be registered
pursuant to Section 1 hereof, the Company shall, subject to the
provisions of Section 1 hereof:
(1) prepare and file with the SEC a registration statement
with respect to such Registrable Shares and use its reasonable
efforts to cause such registration statement to become
effective as soon as practicable after the filing thereof
(provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the
Company shall furnish counsel for the Holder with copies of
all such documents proposed to be filed);
(2) prepare and file with the SEC such amendments and
supplements to such registration statement and prospectus
contained therein as may be necessary to keep such
registration statement effective for a period of not less than
six (6) months or until the Holder has completed the
distribution described in such registration statement,
whichever occurs first;
(3) furnish to the Holder the number of copies of such
registration statement, each amendment and supplement thereto,
the prospectus contained in such registration statement
(including each preliminary prospectus), and such other
documents as the Holder may reasonably request;
(4) use its best efforts to register or qualify such
Registrable Shares under the state blue sky or securities
("Blue Sky") laws of such jurisdictions as the Holder
reasonably requests (and to keep such registrations and
qualifications effective for a period of six months, or until
the holder has completed the distribution of such Registrable
Shares, whichever occurs first), and to do any and all other
acts and things that may be reasonably necessary or advisable
to enable the Holder to consummate the disposition of such
Registrable Shares in such jurisdictions; provided, however,
that the Company will not be required to do any of the
following: (i) qualify generally to do business in any
jurisdiction where it would not be required but for this
Section 2(b), (ii) subject itself to taxation in any such
jurisdiction, or (iii) file any general consent to service of
process in any such jurisdiction;
(5) promptly notify the Holder, at any time when a prospectus
relating thereto is required to be delivered under the 1933
Act during the period that the Company is required to keep the
registration statement effective, of the occurrence of any
event as a result of which the prospectus included in such
registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the
statements therein in the light of the circumstances under
which they were made, not misleading, and prepare a supplement
or amendment to the prospectus so that, as thereafter
delivered to the purchasers of such Registrable Shares, the
prospectus will not contain an untrue statement of a material
fact or omit to state any fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(6) provide a transfer agent and registrar (if the Company
does not already have such an agent) for all such Registrable
Shares not later than the effective date of such registration
statement; and
(7) ensure that, if the Holder is included as a party to the
underwriting agreement between the Company and such
underwriters as the Company may have selected, the Holder
shall not be required to make any representations or
warranties to or agreements with the Company or the
underwriters other than representations, warranties or
agreements regarding the Holder's status, the Holder's Common
Stock holdings, the Holder's intended method of distribution,
and any other representations, warranties, and agreements of
selling stockholders customarily included in an underwriting
agreement.
3. Holdback Agreement
In the event that the Company effects an underwritten public offering of any the
Company's securities, the Holder agrees, if requested by the Company or the
managing underwriters, not to effect any offer, sale, or transfer, including any
sale pursuant to Rule 144 under the 1933 Act, of any interest in the Company's
equity securities or any security convertible or exercisable for the Company
equity securities (except as part of such underwritten offering) pursuant to
demand made under Section 1 hereof during the 180-day period commencing with the
effective date of the registration statement for such offering (or such longer
or lesser period as is requested of and agreed to by other large Company
stockholders or the Company management generally).
4. Registration Expenses
(a) If, pursuant to Section 1 hereof, Registrable Shares owned by the
Holder are included in a registration statement, then the Holder shall
pay all transfer taxes, if any, relating to the sale of its Registrable
Shares, the fees and expenses of its own counsel, and its pro rata
portion of any underwriting discounts or commissions or the equivalent
thereof.
(b) Except for the fees and expenses specified in Section 4(a) hereof and
except as provided below in this Section 4(b), the Company shall pay
all expenses incident to the registration and to the Company's
performance of or compliance with this Agreement, including, without
limitation, all registration and filing fees, fees and expenses of
compliance with Blue Sky laws, printing expenses, messenger and
delivery expenses, and fees and expenses of counsel for the Company and
all independent certified public accountants and other persons retained
by the Company.
(c) With respect to any registration pursuant to Section 1 hereof, the
Company shall pay its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing
legal or accounting duties).
5. Indemnity and Contribution
(a) In the event that any Registrable Shares owned by the Holder are sold
by means of a registration statement pursuant to Section 1 hereof, the
Company agrees to indemnify and hold harmless the Holder (referred to
in this Section 5 as an "Indemnified Person") from and against all
demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs, and expenses, including, without
limitation, interest, penalties, and reasonable attorneys' fees and
disbursements, asserted against, resulting to, imposed upon, or
incurred by the Holder, directly or indirectly (hereinafter referred to
in this Section 5 in the singular as a "Claim" and in the plural as
"Claims"), based upon, arising out of, or resulting from any untrue
statement of a material fact contained in the registration statement or
any omission to state therein a material fact necessary in order to
make the statements made therein, in the light of the circumstances
under which they were made, not misleading, except insofar as such
Claim is based upon, arises out of or results from information
furnished to the Company by the Holder in a written document provided
by the Holder for use in connection with the registration statement.
The Holder agrees to indemnify and hold harmless the Company, its
officers and directors, each person, if any, who controls or may
control the Company within the meaning of the 1933 Act and any
underwriters participating in the distribution of Registrable Shares
pursuant to a registration statement (the Company, its officers and
directors, and any such other persons being hereinafter referred to
individually as an "Indemnified Person" and collectively as
"Indemnified Persons") from and against all Claims based upon, arising
out of, or resulting from any untrue statement of a material fact
contained in the registration statement or any omission to state
therein a material fact necessary in order to make the statement made
therein, in the light of the circumstances under which they were made,
not misleading, to the extent that such Claim is based upon, arises out
of or results from information furnished to the Company by the Holder
in a written document provided by the Holder for use in connection with
the registration statement. The indemnification's set forth herein
shall be in addition to any liability the Company or the Holder may
otherwise have to the Indemnified Persons. Promptly after actually
receiving definitive notice of any Claim in respect of which an
Indemnified Person may seek indemnification under this Section 5, such
Indemnified Person shall submit written notice thereof to either the
Company or the Holder, as the case may be (sometimes being hereinafter
referred to as an "Indemnifying Person"). The failure of the
Indemnified Person so to notify the Indemnifying Person of any such
Claim shall not relieve the Indemnifying Person from any liability it
may have hereunder except to the extent that (a) such liability was
caused or increased by such omission, or (b) the ability of the
Indemnifying Person to reduce such liability was materially adversely
affected by such omission. In addition, the failure of the Indemnified
Person so to notify the Indemnifying Person of any such Claim shall not
relieve the Indemnifying Person from any liability it may have
otherwise than hereunder. The Indemnifying Person shall have the right
to undertake, by counsel or representatives of its own choosing, the
defense, compromise, or settlement (without admitting liability of the
Indemnifying Person) of any such Claim asserted, such defense,
compromise, or settlement to be undertaken at the expense and risk of
the Indemnifying Person, and the Indemnified Person shall have the
right to engage separate counsel, at its own expense, whom counsel for
the Indemnifying Person shall keep informed and consult with in a
reasonable manner. In the event the Indemnifying Person shall elect
not to undertake such defense by its own representatives, the
Indemnifying Persons shall give prompt written notice of such election
to the Indemnified Person, and the Indemnified Person shall undertake
the defense, compromise, or settlement (without admitting liability of
the Indemnified Person) thereof on behalf of and for the account and
risk of the Indemnifying Person by counsel or other representatives
designated by the Indemnified Person. In the event that any Claim
shall arise out of a transaction or cover any period or periods wherein
the Company and the Holder shall each be liable hereunder for part of
the liability or obligation arising therefrom, then the parties shall,
each choosing its own counsel and bearing its own expenses, defend such
Claim, and no settlement or compromise of such Claim may be made
without the joint consent or approval of the Company and the Holder.
Notwithstanding the foregoing, no Indemnifying Person shall be
obligated hereunder with respect to amounts paid in settlement of any
Claim if such settlement is effected without the consent of such
Indemnifying Person which consent shall not be unreasonably withheld).
(b) If the indemnification provided for in Section 5(a) of this Agreement
is unavailable to an Indemnified Person in respect of any Claims, the
Indemnifying Person, in lieu of indemnifying such Indemnified Person,
shall contribute to the amount paid or payable by such Indemnified
Person as a result of such Claims (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company,
on the one hand, and the Holder, on the other hand, from the offering
of the Common Stock, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company, on the
one hand and the Holder, on the other hand, in connection with the
statements or omissions that resulted in such Claims, as well as any
other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Holder, on the other
hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company bear to the total net proceeds (before deducting expenses)
received by the Holder. The relative fault of the Company, on the one
hand, and the Holder, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company,
on the one hand, or by the Holder, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
6. Transfer to Third Parties
If the Holder transfers all of its Registrable Shares to any other person or
entity (the "Transferee") other than pursuant to a registration statement filed
in response to demand made under Section 1 hereof or pursuant to Rule 144(k)
under the 1933 Act, then, if so requested by the holder in writing, the Company
shall enter into an appropriate agreement with the Transferee (or an appropriate
amendment to this Agreement) which provides that the Transferee shall have the
same rights and same obligations with regard to registration of the Registrable
Shares and related matters as are granted to the Holder hereunder.
7. Subsequent Registration Statement
The Company shall not cause any new registration statements (except registration
statements on Forms S-8, S-4, or comparable forms) to become effective during
the 90 days after the effective date of a registration statement covering
Registrable Shares owned by the Holder or until the Holder has completed the
distribution described in such registration statement, whichever occurs first.
8. Warranties
The Company warrants to the Holder as follows:
(a) this Agreement constitutes a valid and binding obligation of the
Company;
(b) the Registrable Shares have been duly authorised and validly issued by
the Company and are fully paid, non-assessable and free for any liens,
claims, charges, security interests, options or other encumbrances;
(c) the Registrable Shares are of the same class and, except only for the
restrictions o transferability pursuant to the provisions of applicable
securities law, are the same in every respect as those shares of the
Company traded on NASDAQ Securities Trading Exchange under the symbol +
UPS.
9. Term
This Agreement shall terminate five (5) years after the date first
above written; provided, however, that the revisions of Section 5
hereof shall survive such termination.
10. Notices
All notices, requests, demands or other communications that may be or are
required to be given, served, or sent by any party to any other party pursuant
to this Agreement shall be in writing and shall be hand delivered or mailed by
first class, registered or certified mail, return receipt requested, postage
prepaid, delivered by overnight express, or transmitted by telegram or telex,
addressed as follows:
(i) If to the Company:
Exide Electronics Group, Inc
8521 Six Forks Road
Raleigh
North Carolina 27615
U.S.A.
Attention: President
(ii) If to the Holder:
Hawkwell House
Maidstone Road
Pembury
Tunbridge Wells
Kent TN2 4AE
Each party may designate by notice in writing a new address to which any notice,
request, demand, or other communication may thereafter be so given. Each notice,
request, demand, or other communication that shall be hand delivered, mailed or
telexed in the manner described above, or that shall be delivered to a telegraph
company, shall be deemed sufficiently given, served, sent, received, or
delivered for all purposes at such time as it is delivered to the addressee
(with the return receipt, the delivery receipt, the affidavit of messenger, or
overnight courier or (with respect to a telex) the answerback being deemed
conclusive, but not exclusive, evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
11. Severability
If fulfilment of any provision of this Agreement or performance of any
transaction related thereto, at the time such fulfilment or performance shall be
due, shall involve transcending the limit of validity prescribed by law, then
the obligation to be fulfilled or performed shall be reduced to the limit of
such validity; and if any clause or provision contained in this Agreement
operates or would operate prospectively to invalidate any other provision in
this Agreement, in whole or in part, then only the clause or provision causing
the invalidity of such other clause or provision shall be held ineffective, as
though not herein contained, and the remainder of this Agreement shall remain
operative and in full force and effect.
12. Miscellaneous Provisions
Each of the parties hereto shall take or cause to be taken such further actions
and shall obtain such consents as may be necessary or as the other party may
reasonably request, without the payment of further consideration, in order fully
to effectuate the purposes, terms, and conditions of this Agreement. Neither
party may assign its rights under this Agreement without the prior written
consent of the other party hereto. No waiver by any party of, or consent by any
party to, a variation from the requirements of any provision of this Agreement
shall be effective unless made in a written instrument duly executed by or on
behalf of such party, and any such waiver shall be limited solely to those
rights or conditions expressly waived. This Agreement constitutes the entire
agreement of the parties hereto with respect to the matters contemplated herein
and supersedes all prior oral or written agreements, commitments, or
understandings with respect to the matters contemplated herein, and may not be
modified, deleted, or amended except by written instrument executed by the
parties. This Agreement, the rights and obligations of the parties hereto, and
any Claims or disputes relating thereto shall be governed by and construed in
accordance with the laws of the State of [Delaware] (but not including the
choice of law rules thereof). To facilitate execution, this agreement may be
executed in as many counterparts as may be required; it shall not be necessary
that the signatures of, or on behalf of, each party appear on each counterpart;
but it shall be sufficient that the signatures of, or on behalf of, each party,
or the signatures of the persons required to bind any party, appear on one or
more of the counterparts. All counterparts shall collectively constitute a
single agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
EXIDE ELECTRONICS GROUP, INC.
By: /s/ Marty R. Kittrell
Vice President, CFO and Treasurer
By: /s/ Tony Peter Stuart Goodchild
EXHIBIT 5
October 20, 1995
Exide Electronics Group, Inc.
8521 Six Forks Road
Raleigh, North Carolina 27615
Ladies and Gentlemen:
This opinion is furnished in connection with the registration pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), of 641,024 shares
(the "Shares") of common stock, par value $.01 per share, of Exide Electronics
Group, Inc., a Delaware corporation (the "Company"). The Shares are being
registered for resale by certain selling stockholders.
In connection with rendering this opinion, we have examined the Articles of
Incorporation and Bylaws of the Company, each as amended to date; such records
of the corporate proceedings of the Company as we deemed material; a
registration statement on Form S-3 under the Securities Act relating to the
Shares, (as amended, the "Registration Statement"), and the prospectus contained
therein (the "Prospectus"), and such other certificates, receipts, records and
documents as we considered necessary for the purposes of this opinion.
Based upon the foregoing, we are of the opinion that the Shares are legally
issued, fully paid and nonassessable and when sold in accordance with the terms
of the Prospectus, will be legally issued, fully paid and nonassessable shares
of the Company.
The foregoing assumes that all requisite steps will be taken to comply with the
requirements of the Securities Act and applicable requirements of state laws
regulating the offer and sale of securities.
Furthermore, we hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and the use of our name in the Registration Statement
under the heading "Legal Matters."
Very truly yours,
/s/SMITH HELMS MULLISS & MOORE, L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated December 15, 1994
included in Exide Electronics Group, Inc.'s (the company's) Annual Report on
Form 10-K for the year ended September 30, 1994 and our report dated October 18,
1995 included in the company's Current Report on Form 8-K dated October 20, 1995
and to all references to our Firm included in this registration statement.
/s/ARTHUR ANDERSEN LLP
Raleigh, North Carolina
October 20, 1995
