THIS IS A CONFIRMING COPY OF THE SCHEDULE 13D
ORIGINALLY FILED ON PAPER WITH THE
COMMISSION ON FEBRUARY 21, 1995
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Exide Electronics Group, Inc.
(Name of Issuer)
Common Stock, $.01 Par Value
(Title of Class of Securities)
302052
(CUSIP NUMBER)
Anthony J. Villiotti
Vice President
Duquesne Enterprises, Inc.
330 Grant Street
Pittsburgh, PA 15219
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
with a copy to:
Steven H. Davis
LeBoeuf, Lamb, Greene & MacRae, L.L.P
125 West 55th Street
New York, NY 10019
February 8, 1995
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of
Rule 13d-1(b)(3) or (4) check the following box [ ].
Check the following box if a fee is being paid with the statement
[X].
The information required in the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18 o
f the Securities Exchange Act of 1934, as amended (the "Act"), or
otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act.
CUSIP No. 302052 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
DUQUESNE ENTERPRISES, INC.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Pennsylvania
NUMBER OF 7 SOLE VOTING POWER
SHARE
BENEFICIALLY 526,250 shares of common stock
OWNED BY
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 0
9 SOLE DISPOSITIVE POWER
526,250 shares of common stock
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
526,250 shares of common stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.80%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT
CUSIP No. 302052 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
THOMAS A. HURKMANS
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 2,526 shares of common stock
OWNED BY
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 0
9 SOLE DISPOSITIVE POWER
2,526 shares of common stock
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,526 shares of common stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.03%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT
Item 1. Security and Issuer
The title of the class of equity securities to which this
statement relates is common stock, par value $.01 per share (the
"Common Stock"), of Exide Electronics Group, Inc., a Delaware
corporation (the "Issuer"). The principal executive offices of
the Issuer are located at 8521 Six Forks Road, Raleigh, North
Carolina 27615.
Item 2. Identity and Background
This statement is filed by Duquesne Enterprises, Inc., a
Pennsylvania corporation principally involved in the business of
making equity and other investments in companies engaged in non-
regulated businesses ("Duquesne Enterprises"), and by Thomas A.
Hurkmans, Vice President of Duquesne Enterprises ("Hurkmans").
Duquesne Enterprises' principal place of business and principal
executive offices are located at 330 Grant Street, Pittsburgh,
Pennsylvania 15219. During the last five years Duquesne
Enterprises has not been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) and was
not a party to a civil proceeding of a judicial or administrative
body of competent jurisdictions, and consequently was not subject
to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to
such laws.
Duquesne Enterprises is a wholly-owned subsidiary of DQE,
Inc., a Pennsylvania corporation ("DQE"). DQE is a public
utility holding company exempt from registration under the Public
Utility Holding Company Act of 1935, as amended (the "1935 Act"),
pursuant to Section 3(a)(1) of the 1935 Act. DQE's principal
place of business and principal executive offices are located at
Cherrington Corporate Center, Suite 100, 500 Cherrington Parkway,
Coraopolis, Pennsylvania 15108-3184. During the last five years
DQE has not been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) and was not a party
to a civil proceeding of a judicial or administrative body of
competent jurisdiction, and consequently was not subject to a
judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to
such laws.
The name, business address, citizenship, present principal
occupation or employment, and the names and addresses of any
corporation or other organization in which such employment is
conducted of (i) each of the executive officers and directors of
Duquesne Enterprises and (ii) each of the executive officers and
directors of DQE are set forth in Appendix A attached hereto and
incorporated herein by reference.
During the last five years, to the knowledge of Duquesne
Enterprises and Hurkmans, no person identified in Appendix A was
convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors) nor was a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction nor
as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such
laws.
Hurkmans is Vice President of Duquesne Enterprises and a
resident of Pennsylvania. His business address is 330 Grant
Street, Pittsburgh, Pennsylvania 15219. Hurkmans is a United
States citizen.
During the last five years Hurkmans has not been convicted
in a criminal proceeding (excluding traffic violations or similar
misdemeanors) and was not a party to a civil proceeding of a
judicial or administrative body of competent jurisdictions, and
was consequently not subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
Item 3. Source and Amount of Funds
Duquesne Enterprises directly and beneficially owns 526,250
shares of the Common Stock. The Shares were issued to Duquesne
Enterprises upon conversion, pursuant to the Reorganization
Agreement (as defined in Item 4 below), of 25,000 shares of
Series B Cumulative Convertible Preferred Stock (the "IPM Series
B Preferred Shares") of International Power Machines Corporation,
a Delaware corporation ("IPM"), held by Duquesne Enterprises.
Duquesne Enterprises acquired the IPM Series B Preferred Shares
at an aggregate purchase price of $2,500,000. The source of all
of the funds used by Duquesne Enterprises to acquire the IPM
Series B Preferred Shares was funds contributed to the share
capital of Duquesne Enterprises by DQE. The funds contributed by
DQE to Duquesne Enterprises were obtained from the working
capital of DQE and were not the result of a loan or other
borrowing arrangement.
Hurkmans directly and beneficially owns 2,526 shares of the
Common Stock. These shares were issued to Hurkmans upon
conversion, pursuant to the Reorganization Agreement defined and
described below, of 12,000 shares of Common Stock of IPM (the
"IPM Common Shares"). Hurkmans acquired the IPM Common Shares at
an aggregate purchase price of $41,868.75. The funds used by
Hurkmans to acquire the IPM Common Shares were his own personal
funds.
Item 4. Purpose of the Transaction
Duquesne Enterprises and Hurkmans have acquired the Shares
as long-term investments in the Issuer's capital stock. Neither
Duquesne Enterprises nor Hurkmans presently intends to acquire
control over the Issuer. To the knowledge of Duquesne
Enterprises and Hurkmans, DQE, the executive officers and
directors of DQE, and the executive officers and directors of
Duquesne Enterprises do not presently intend to acquire control
over the Issuer. However, if Duquesne Enterprises or Hurkmans
believe that further investment in the Issuer is attractive,
whether because of the market price of the Issuer's securities or
otherwise, Duquesne Enterprises or Hurkmans may acquire
additional shares of the Common Stock or other securities of the
Issuer. Similarly, subject to applicable law, and depending upon
market and other factors, Duquesne Enterprises or Hurkmans may
from time to time determine to dispose of some or all of the
Shares.
The Shares were issued to Duquesne Enterprises and to
Hurkmans pursuant to the terms of an Agreement and Plan of
Reorganization dated as of August 25, 1994, as amended by the
First Amendment to Agreement and Plan of Reorganization dated as
of December 14, 1994 and the Second Amendment to Agreement and
Plan of Reorganization dated as of January 5, 1995 (as so
amended, the "Reorganization Agreement"), among the Issuer, Exide
Electronics Acquisition, Inc., a wholly-owned Delaware subsidiary
of the Issuer ("Acquisition"), and IPM, a description of which is
as follows:
On February 8, 1995, the 25,000 IPM Series B Preferred
Shares held by Duquesne Enterprises and 12,000 IPM Common Shares
held by Thomas A. Hurkmans were converted into 526,250 shares and
2,526 shares, respectively, of common stock, par value $.01 per
share of the Issuer (the "Common Stock") pursuant to the terms of
the Reorganization Agreement and the related Certificate of
Merger (the "Certificate of Merger") attached as Exhibit A
thereto. The terms of the Reorganization Agreement include,
among others, the following: (i) Acquisition shall be merged
with and into IPM, which shall become a wholly-owned subsidiary
of the Issuer (the "Merger"); (ii) each IPM Common Share
outstanding immediately prior to the Merger shall be converted
into the number of shares of the Common Stock determined by the
exchange ratios set forth in the Reorganization Agreement; and
(iii) each outstanding share of IPM Series B Preferred Stock,
$1.00 par value, shall be converted into that number of shares of
Common Stock that would be issuable upon conversion of such
number of shares of IPM Common Stock into which one share of IPM
Series B Preferred Stock was convertible immediately prior to the
consummation of the Merger determined by the exchange ratios set
forth in the Reorganization Agreement, and each share of IPM
Common Stock outstanding immediately prior to the Merger shall be
converted into the number of shares of Common Stock determined by
the exchange ratios set forth in the Reorganization Agreement.
The Certificate of Merger was filed on February 8, 1995, at
which time the IPM Series B Preferred Shares were converted into
526,250 shares of Common Stock. As a result of the Merger,
Duquesne Enterprises directly and beneficially owns 526,250
shares of Common Stock, and Hurkmans directly and beneficially
owns 2,526 shares of Common Stock. Duquesne Enterprises does not
beneficially own any other equity securities of the Issuer.
Hurkmans does not beneficially own any other equity securities of
the Issuer.
The foregoing summary of certain provisions of the
Reorganization Agreement is not intended to be complete and is
qualified in its entirety by reference to the detailed provisions
of the Reorganization Agreement, a copy of which is filed as
Exhibit A hereto and is incorporated herein by reference.
Other than as described in this Item 4, neither Duquesne
Enterprises nor Hurkmans have any present plans or proposals
which relate to or would result in: (a) the acquisition by any
person of additional securities of the Issuer, or the disposition
of securities of the Issuer; (b) an extraordinary corporate
transaction, such as a merger, reorganization or liquidation,
involving the Issuer or any of its subsidiaries; (c) a sale or
transfer of a material amount of assets of the Issuer or of any
of its subsidiaries; (d) any change in the present board of
directors or management of the Issuer, including any plans or
proposals to change the number or terms of directors or to fill
any existing vacancies on the board; (e) any material change in
the present capitalization or dividend policy of the Issuer; (f)
any other material change in the Issuer's business or corporate
structure; (g) changes in the Issuer's charter, by-laws or
instruments corresponding thereto or other actions which may
impede the acquisition of control of the Issuer by any person;
(h) causing a class of securities of the Issuer to be delisted
from a national securities exchange or to cease to be authorized
to be quoted in an inter-dealer quotation system of a registered
national securities association; (i) a class of equity securities
of the Issuer becoming eligible for termination of registration
pursuant to Section 12(g)(4) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"); or (j) any action similar
to any of those enumerated above.
Item 5. Interest in Securities of the Issuer
(a) To the knowledge of Duquesne Enterprises and Hurkmans,
the Issuer has outstanding 7,736,929 shares of Common Stock.
Duquesne Enterprises directly and beneficially owns 526,250
shares of Common Stock representing approximately 6.80% of the
outstanding shares of Common Stock. Duquesne Enterprises has the
sole power to vote or direct the vote of such shares and to
dispose or direct the disposition of such shares. Duquesne
Enterprises does not share the power to vote or to direct the
vote or to dispose or direct the disposition of any of such
shares. To the knowledge of Duquesne Enterprises and Hurkmans,
DQE, the executive officers and directors of DQE, and the
executive officers and directors of Duquesne Enterprises have no
interest in, power to vote or direct the vote of, or power to
dispose or direct the disposition of any of such shares.
Hurkmans directly and beneficially owns 2,526 shares of
Common Stock representing approximately .03% of the outstanding
shares of Common Stock. Hurkmans has the sole power to vote or
direct the vote of such shares and to dispose or direct the
disposition of such shares. Hurkmans does not share the power to
vote or to direct the vote or to dispose or direct the
disposition of any of such shares.
The number of shares of Common Stock beneficially owned by
the Reporting Persons and the percentage of the outstanding
shares of Common Stock represented thereby have been computed in
accordance with Rule 13d-3 under the Securities Exchange Act of
1934, as amended. The percentages of ownership of Duquesne
Enterprises and Hurkmans, respectively, are based on 7,736,929
outstanding shares of the Issuer's Common Stock as reported by
the Issuer to Duquesne Enterprises.
(b) Duquesne Enterprises and Hurkmans have sole power to
vote and dispose of the shares of Common Stock held by each.
(c) Other than the transactions described above, Duquesne
Enterprises and Hurkmans have not entered into any transactions
regarding the securities of the Issuer during the last sixty
days.
(d) Not Applicable.
(e) Not Applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer
Duquesne Enterprises and the Issuer entered into a
Stockholder Agreement, dated as of August 25, 1994 (the
"Stockholder Agreement"), under which Duquesne Enterprises
appointed the Issuer its lawful attorney with full power to vote
all shares of IPM Series B Preferred Stock and IPM Common Stock
(if any) owned by it in favor of approval of the Merger.
Pursuant to the Stockholder Agreement, Duquesne Enterprises also
agreed that it will not take any actions to perfect any
dissenters' or appraisal rights it may have under Delaware law.
Also pursuant to the Stockholder Agreement, Duquesne Enterprises
agreed not to sell, transfer or otherwise dispose of any shares
of IPM Series B Preferred Stock or IPM Common Stock, or to
deposit or subject any such shares into or to any kind of escrow
or trust or voting agreement that would be inconsistent with the
provisions of the Stockholder Agreement.
The foregoing summary of certain provisions of the
Stockholder Agreement is not intended to be complete and is
qualified in its entirety by reference to the detailed provisions
of the Stockholder Agreement, a copy of which is filed as Exhibit
B hereto and is incorporated herein by reference.
Duquesne Enterprises and the Issuer have executed a
Registration Rights Agreement, dated as of January 5, 1995 (the
"Registration Rights Agreement"), pursuant to which the Issuer is
obligated to maintain a "shelf" registration statement under
which Duquesne Enterprises and certain other parties may sell
shares of common stock acquired in the merger. The Registration
Rights Agreement provides for indemnification of Duquesne
Enterprises by the Issuer against certain liabilities and for
payment of certain expenses in connection with the registration.
The foregoing summary of certain provisions of the
Registration Rights Agreement is not intended to be complete and
is qualified in its entirety by reference to the detailed
provisions of the Registration Rights Agreement, a copy of which
is filed as Exhibit C hereto and is incorporated herein by
reference.
Duquesne Enterprises and the Issuer entered into an
Affiliate Agreement, dated as of August 25, 1994 (the "Affiliate
Agreement"), pursuant to which Duquesne Enterprises, which may be
deemed to be but did not admit to being an affiliate of the
Issuer (in its capacity as a stockholder of IPM) within the
meaning of Rule 145 under the Securities Act of 1933, as amended
(the "Securities Act"), agreed not to dispose of any shares of
Common Stock or otherwise reduce its risk relative to the Common
Stock until such time, after the Merger is consummated, as
financial results covering at least 30 days of the combined
operations of the Issuer and IPM have been made publicly
available. Furthermore, pursuant to the Affiliate Agreement,
Duquesne Enterprises agreed not to sell or otherwise dispose of
shares of Common Stock held by it except in compliance with the
applicable provisions of the Securities Act and the rules and
regulations thereunder, including Rule 145.
The foregoing summary of certain provisions of the Affiliate
Agreement is not intended to be complete and is qualified in its
entirety by reference to the detailed provisions of the Affiliate
Agreement, a copy of which is filed as Exhibit D hereto and is
incorporated herein by reference.
Except as described elsewhere in this Schedule 13D and as
set forth in the Reorganization Agreement, Registration Rights
Agreement, Stockholder Agreement and Affiliate Agreement there
exist no contracts, arrangements, understandings or relationships
(legal or otherwise) between Duquesne Enterprises and any person
with respect to any securities of the Issuer, including, but not
limited to, transfer or voting of the Shares, finder's fees,
joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving
or withholding of proxies. Except as described elsewhere herein,
there exist no contracts, arrangements, understandings or
relationships (legal or otherwise) between Hurkmans and any
person with respect to any of the securities of the Issuer,
including, but not limited to, transfer or voting of the Shares,
finder's fees, joint ventures, loan or option arrangements, puts
or calls, guarantees of profits, division of profits or loss, or
the giving or withholding of proxies. To the knowledge of
Duquesne Enterprises and Hurkmans, except as described elsewhere
herein, there exist no contracts, arrangements, understandings or
relationships (legal or otherwise) between DQE, the executive
officers and directors of DQE, or the executive officers and
directors of Duquesne Enterprises, on the one hand, and any
person, on the other hand, with respect to any of the securities
of the Issuer, including, but not limited to, transfer or voting
of the Shares, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of
profits or loss, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits
Appendix A - Information Regarding Executive
Officers and Directors of
Duquesne Enterprises, Inc. and
DQE
Exhibit A - Agreement and Plan of
Reorganization dated as of
August 25, 1994, as amended by
the First Amendment to
Agreement and Plan of
Reorganization dated as of
December 14, 1994 and the
Second Amendment to Agreement
and Plan of Reorganization
dated as of January 5, 1995,
among Exide Electronics Group,
Inc., Exide Electronics
Acquisition, Inc. and
International Power Machines
Corporation and the related
Certificate of Merger attached
as Exhibit A thereto.
(Incorporated by reference to
Exhibit No. 2.1 to the
Registration Statement of Exide
Electronics Group, Inc. on Form
S-4, Registration No. 33-88324,
filed with the Commission on
January 6, 1995 ("Form S-4").)
Exhibit B - Stockholder Agreement dated as
of August 25, 1994 by and
between Duquesne Enterprises,
Inc. and Exide Electronics
Group, Inc. (Incorporated by
reference to Exhibit 2.4 of
Form S-4.)
Exhibit C - Registration Rights Agreement
dated as of January 5, 1995
between Duquesne Enterprises,
Inc. and Exide Electronics
Group, Inc.
Exhibit D - Affiliate Agreement dated as of
August 25, 1994 between Exide
Electronics Group, Inc., and
Duquesne Enterprises, Inc.
Exhibit E - Agreement pursuant to Rule 13d-
1(f).
Signatures
After reasonable inquiry and to the best of its knowledge
and belief, the undersigned certify that the information set
forth in this statement is true, complete and correct.
Dated: February 21, 1995
DUQUESNE ENTERPRISES, INC.
By: /s/ Anthony J. Villiotti
___________________________
Name: Anthony J. Villiotti
Title: Vice President
THOMAS A. HURKMANS
/s/ Thomas A. Hurkmans
__________________________________
Exhibit Index
Sequential
Item Description Page No.
Appendix A - Information Regarding Executive
Officers and Directors of Duquesne
Enterprises, Inc. and DQE
Exhibit A - Agreement and Plan of Reorganization
dated as of August 25, 1994, as
amended by the First Amendment to
Agreement and Plan of Reorganization
dated as of December 14, 1994 and
the Second Amendment to Agreement
and Plan of Reorganization dated
as of January 5, 1995, among Exide
Electronics Group, Inc., Exide
Electronics Acquisition, Inc. and
International Power Machines
Corporation and the related
Certificate of Merger attached as
Exhibit A thereto. (Incorporated by
reference to Exhibit No. 2.1 to the
Registration Statement of Exide
Electronics Group, Inc. on Form S-4,
Registration No. 33-88324, filed
with the Commission on January 6,
1995 ("Form S-4").)
Exhibit B - Stockholder Agreement dated as of
August 25, 1994 by and between
Duquesne Enterprises, Inc. and Exide
Electronics Group, Inc.
(Incorporated by reference to
Exhibit 2.4 of Form S-4.)
Exhibit C - Registration Rights Agreement dated
as of January 5, 1995 between
Duquesne Enterprises, Inc. and Exide
Electronics Group, Inc.
Exhibit D - Affiliate Agreement dated as of
August 25, 1994 between Exide
Electronics Group, Inc., and
Duquesne Enterprises, Inc.
Exhibit E - Agreement pursuant to Rule 13d-1(f).
Appendix A
Set forth below are the name and position of each
of the directors and executive officers of Duquesne Enterprises
and DQE. Except as otherwise indicated, the principal occupation
of each person listed below is his or her executive position with
Duquesne Enterprises and/or DQE, as the case may be; the business
address of each such person is 301 Grant Street, Pittsburgh,
Pennsylvania 15279 except for Thomas A. Hurkmans and Anthony J.
Villiotti, each of whose business address is 330 Grant Street,
Pittsburgh, Pennsylvania 15219; and each person is a citizen of
the United States.
Executive Officers of Duquesne Enterprises
Names Position
James D. Mitchell President
Thomas A. Hurkmans Vice President
Anthony J. Villiotti Vice President, Treasurer and
Controller
Diane S. Eismont Secretary
Directors of Duquesne Enterprises
Principal Occupation and Business
Address (if other than as indicated
Name above)
Wesley W. von Schack Chairman of the Board, President and
Chief Executive Officer of DQE and
Duquesne Light Company
David D. Marshall Vice President, DQE; Executive Vice
President, Duquesne Light Company
Gary L. Schwass Vice President and Treasurer, DQE;
Vice President-Finance and Chief
Financial Officer, Duquesne Light
Company
Executive Officers of DQE
Name Position
Wesley W. von Schack Chairman of the Board, President and
Chief Executive Officer
David D. Marshall Vice President
James D. Mitchell Vice President
Gary L. Schwass Vice President and Treasurer
Raymond H. Panza Controller
Directors of DQE
Principal Occupation and Business
Address (if other than as indicated
Name above)
Daniel Berg Institute Professor,
Rensselaer Polytechnic Institute
(RPI)
CII-05015
Troy, NY 12180-3590
Doreen E. Boyce President of the Buhl Foundation
(support of educational and community
programs)
Four Gateway Center
Pittsburgh, PA 15222
Robert P. Bozzone Vice-Chairman of Allegheny Ludlum
Corporation (specialty metals
production)
1000 Six PPG Place
Pittsburgh, PA 15222
Sigo Falk Personal Investments
3315 Grant Building
Pittsburgh, PA 15219
William H. Knoell Retired
9 Twickenham
Hilton Head Island, SC 29928
G. Christian Lantzsch Retired
Spanish Tract Road
Sewickley, PA 15143
Robert Mehrabian President, Carnegie Mellon University
5000 Forbes Avenue
Pittsburgh, PA 15213-3890
Thomas J. Murrin Dean, A. J. Palumbo School of
Business Administration of Duquesne
University
405 Rockwell Hall
Pittsburgh, PA 15282
Robert B. Pease Senior Vice President
National Development Corporation
(real estate)
4415 Fifth Avenue
Pittsburgh, PA 15213
Eric W. Springer Partner of Horty, Springer & Mattern,
P.C. (attorneys-at-law)
4614 Fifth Avenue
Pittsburgh, PA 15213
Wesley W. von Schack Chairman, President and Chief
Executive Officer of DQE and
Duquesne Light Company
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is
made and entered into as of January 5, 1995, by and among Exide
Electronics Group, Inc., a Delaware corporation, Duquesne
Enterprises, Inc., a Pennsylvania corporation ("DEI"), and
Shenkman Investment Partners L.P., a limited partnership ("SIP"),
and such partners and distributees thereof on the Closing Date
(as defined herein) who may become parties to this Agreement by
executing the signature page hereof as a Holder (as defined
herein) (DEI, SIP and such partners and distributees of SIP who
subsequently become parties to this Agreement being referred to
herein as "Initial Holders").
The parties hereto, intending legally to be bound, hereby
agree as follows:
1. Certain Definitions.
For purposes of this Agreement, the following terms have the
following meanings when used herein:
(a) "Business Day" means any Monday, Tuesday, Wednesday,
Thursday or Friday that is not a day on which banking
institutions in the City of New York are authorized by law,
regulation or executive order to close.
(b) "Closing Date" has the meaning assigned thereto in
Section 2.07 of the Merger Agreement.
(c) "Commission" means the Securities and Exchange
Commission or any other federal agency at the time administering
the Securities Act.
(d) "Common Stock" means the Common Stock, $.01 par value,
of the Company.
(e) "Company" means Exide Electronics Group, Inc., a
Delaware corporation, and its successors and assigns.
(f) "Exchange Act" means the Securities Exchange Act of
1934, as amended (or any similar successor federal statute), and
the rules and regulations thereunder, as in effect from time to
time.
(g) "Holder" means any Person that owns Registrable
Securities, including any successors and assigns that may acquire
securities that under the terms hereof constitute, after giving
effect to such transfer, Registrable Securities, directly or
indirectly, from any such Person. The Company may deem and treat
the registered holder of a Registrable Security as the Holder and
absolute owner thereof.
(h) "Merger Agreement" means the Agreement and Plan of
Reorganization, dated as of August 25, 1994, as amended as of
January 5, 1995, by and among the Company, Exide Electronics
Acquisition, Inc., and International Power Machines Corporation,
a Delaware corporation.
(i) "Person" means any individual, corporation,
partnership, joint stock company, limited liability company,
trust, unincorporated association, joint venture, government (or
agency or political subdivision thereof) or other entity.
(j) "Prospectus" means the prospectus included in the
Registration Statement, as amended or supplemented by any
prospectus supplements with respect to the terms of the offering
of any portion of the Registrable Securities covered by such
Registration Statement, by any other amendments and prospectus
supplements (including post-effective amendments), and by any
material incorporated by reference therein.
(k) "Registrable Securities" means (i) the shares of Common
Stock received by the Initial Holders upon consummation of the
Merger (as defined in the Merger Agreement) pursuant to Section
2.01 of the Merger Agreement and (ii) any securities issued or
issuable in respect of or in exchange for any of the shares of
Common Stock referred to in clause (i) above in any manner
described in Rule 416 or by way of recapitalizations,
reclassification, merger, consolidations, or exchange offer. For
purposes of this Agreement, a Registrable Security ceases to be a
Registrable Security when both: (x) either (A) such Registrable
Security has been effectively registered under the Securities Act
and disposed of pursuant to the Registration Statement or to a
third party other than an affiliate (as defined in clause (a)(1)
of Rule 144) of the transferor, (B) such Registrable Security has
been effectively registered under the Securities Act and disposed
of pursuant to Rule 144 or Rule 145 or (C) the Holder of such
Registrable Security has received (1) an opinion addressed to
such Holder, in form and substance satisfactory to such Holder,
of recognized securities law counsel to the effect that the
subsequent disposition of such Registrable Security by such
Holder or by any transferee thereof (other than an affiliate of
the Company) will not require registration under the Securities
Act and (2) a new certificate representing such Registrable
Security in the name of such Holder and not bearing any
restrictive legend or subject to any stop order; and (y) such
Registrable Security is not subject to restrictions on transfer
pursuant to any state securities laws.
(l) "Registration" means any registration pursuant to Rule
415 of securities at the time constituting Registrable Securities
effected pursuant hereto.
(m) "Registration Statement" means the registration
statement covering Registrable Securities filed pursuant hereto,
including, to the extent applicable, the Prospectus included in
such registration statement, all amendments and supplements to
such registration statement (including post-effective
amendments), all exhibits to such registration statement and all
material incorporated by reference in such registration
statement.
(n) "Rule 10b-6" means rule 10b-6 promulgated by the
Commission under the Exchange Act, as such rule may be amended
from time to time, or any similar successor rule that may be
promulgated by the Commission.
(o) "Rule 144," "Rule 144A," "Rule 145," "Rule 415," "Rule
416," and "Rule 424" mean, respectively, Rule 144, Rule 144A,
Rule 145, Rule 415, Rule 416, and Rule 424, each promulgated by
the Commission under the Securities Act, in each case as amended
from time to time, or any similar successor rule thereto that may
be promulgated by the Commission.
(p) "Securities Act" means the Securities Act of 1933, as
amended (or any similar successor federal statute), and the rules
and regulations thereunder, as the same are in effect from time
to time.
2. Shelf Registration.
(a) Effective Registration. The Company shall as soon as
practicable file with the Commission under the Securities Act, on
Form S-3 or such other registration form as the Company shall
deem appropriate, a "shelf" Registration Statement pursuant to
Rule 415 covering the sale on a continuous or delayed basis of
all securities that, upon consummation of the Merger (as defined
in the Merger Agreement) on the Closing Date, shall constitute
Registrable Securities. The Company shall use its best efforts
to cause such Registration Statement to be declared effective on
or before the Closing Date (it being understood and reaffirmed
that, pursuant to separate Stockholder Agreements between the
Company and DEI and SIP, each as amended through the date hereof,
the Company shall defer the occurrence of the Closing Date until
such time as the Registration Statement shall have been declared
effective), and shall thereafter keep such Registration Statement
continuously effective until the earlier of (i) the third
anniversary of the Closing Date and (ii) such time as no
Registrable Securities originally covered by such Registration
Statement shall constitute Registrable Securities.
(b) Inclusion of Other Securities. No Registration
Statement shall cover any securities other than Registrable
Securities; provided that this Agreement shall not prohibit the
filing of other "shelf" registration statements pursuant to Rule
415 by the Company.
3. Registration Procedures.
(a) Company Procedures. In connection with the Company's
registration obligations pursuant to Section 2 and, except as
provided in Section 3(a)(iii) of this Agreement, the Company
shall keep continuously effective the Registration Statement for
the period of time provided in Section 2, to permit the sale of
Registrable Securities pursuant to the Registration Statement in
accordance with the intended method or methods of distribution
thereof specified in the Registration Statement or in the related
Prospectus(es), and shall:
(i) cause any Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act;
(ii) comply with such provisions of the Securities Act as
may be necessary to facilitate the disposition of all Registrable
Securities covered by such Registration Statement during the
applicable period in accordance with the intended method or
methods of disposition thereof set forth in such Registration
Statement or such Prospectus or supplement thereto;
(iii) notify the selling Holders of Registrable Securities,
promptly (A) when a new Registration Statement, Prospectus or
supplement thereto or post-effective amendment has been filed,
and, with respect to a new Registration Statement or post-
effective amendment when it has become effective, (B) of any
request by the Commission for amendments or supplements to any
Registration Statement or Prospectus or for additional
information, (C) of the issuance by the Commission of any
comments with respect to any filing and of any stop order
suspending the effectiveness of any Registration Statement or the
initiation of any proceedings for the purpose, (D) of the receipt
by the Company of any notification with respect to the suspension
of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (E) of the happening of any event
that makes any statement made in any Registration Statement,
Prospectus or any document incorporated therein by reference
untrue or that requires the making of any changes in any
Registration Statement, Prospectus or any document incorporated
therein by reference untrue or that requires the making of any
changes in any Registration Statement, Prospectus or any document
incorporated therein by reference in order to make the statements
therein not misleading, and (F) of the Company's determination
that a post-effective amendment to a Registration Statement would
be appropriate;
(iv) furnish to each selling Holder of Registrable
Securities, without charge, at least one manually signed or
"edgarized" copy, and as many conformed copies as may reasonably
be requested by the Holders of a majority of the Registrable
Securities, of the then effective Registration Statement covering
such Registrable Securities and any post-effective amendments
thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits
(including those incorporated by reference);
(v) deliver to each selling Holder of Registrable
Securities, without charge, as many copies of the then effective
Prospectus (including each Prospectus subject to completion)
covering such Registrable Securities and any amendments or
supplements thereto as such Persons may reasonably request;
(vi) register, qualify, obtain an exemption therefrom, or
cooperate with the selling Holders of Registrable Securities and
their respective counsel in connection with the registration or
qualification or exemption therefrom of such Registrable
Securities for offer and sale under the securities or blue sky
laws of such jurisdictions as any selling Holder of Registrable
Securities reasonably requests in writing by the holders of a
majority of the Registrable Securities and do any and all other
acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Registrable Securities covered by
the then effective Registration Statement; provided, however,
that the Company shall not be required to qualify as a dealer in
securities or as a foreign corporation, or otherwise subject
itself to taxation in connection with such activities, or to
execute a general consent to service of process in any
jurisdiction;
(vii) cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and
not bearing any restrictive legends;
(viii) upon the occurrence of any event contemplated by
clauses (E) or (F) of paragraph (iii) above, promptly prepare a
supplement or post-effective amendment to such Registration
Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of Registrable
Securities (provided that delivery is made within the time period
required for delivery pursuant to the Securities Act), the
Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading;
(ix) cause all Registrable Securities covered by such
Registration Statement to be listed on each securities exchange
(or quotation system operated by a national securities
association) on which identical securities issued by the Company
are then listed if requested by the Holders of a majority of
securities then constituting Registrable Securities, and enter
into customary agreements including, if necessary, a listing
application and indemnification agreement in customary form, and
provide a transfer agent for such Registrable Securities no later
than the effective date of such Registration Statement;
(x) provide a CUSIP number for the Registrable Securities
no later than the effective date of such Registration Statement;
(xi) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission relating to
such registration and the distribution of the securities being
offered (including, without limitation, Rule 10b-6, with respect
to which the Company shall also use its best efforts timely to
apprise each Holder of any bids and purchases by each "affiliated
purchaser" (as defined in Rule 10b-6) of the Company, that would
in the opinion of the Company be prohibited under Rule 10b-6 in
connection with a "distribution" (as so defined) by such Holder
of securities of the Company), and make generally available to
its securities holders, as applicable, earning statements
satisfying the provisions of Section 11(a) of the Securities Act
no later than 60 days after the end of any 12-month period (or
120 days if such period is a fiscal year) beginning with the
first month of the first fiscal quarter commencing after the
effective date of such Registration Statement, which earning
statements shall cover such 12-month periods;
(xii) in no event later than ten Business Days before
filing any Prospectus relating to any Registration Statement, or
any amendment or supplement (other than any amendment or
supplement made solely as a result of incorporation by reference
of documents) to any thereof (or, in the case of any Prospectus
supplement or post-effective amendment relating to a proposed
shelf "draw-down," three Business Days before the filing
thereof), furnish to the Holders of the Registrable Securities
covered by such Registration Statement copies of all such
documents proposed to be filed, which documents shall be subject
to the reasonable review of such Holders;
(xiii) not file any Registration Statement or amendment
thereto or any Prospectus or any supplement thereto (other than
any amendment or supplement made solely as a result of
incorporation by reference of documents filed with the Commission
subsequent to the filing of such Registration Statement) to which
the Holder of a majority of the Registrable Securities covered
thereby shall have reasonably objected in writing, within three
Business Days (or, in the case of a shelf "draw-down," within two
Business Days) after receipt of such documents, to the effect
that such Registration Statement or amendment thereto or
Prospectus or supplement thereto does not comply in all material
respects with the requirements of the Securities Act (including,
without limitation, in respect of any information describing the
manner in which such Holder acquired such Registrable Securities
and the intended method or methods of distribution of such
Registrable Securities) (provided that the foregoing shall not
limit the right of any Holder reasonably to object, within two
Business Days after receipt of such documents, to any particular
information relating specifically to such Holder that is to be
contained in any Registration Statement, Prospectus or
supplement, including, without limitation, any information
describing the manner in which such Holder acquired such
Registrable Securities and the intended method or methods of
distribution of such Registrable Securities), and if the Company
is unable to file any such document due to the objections of such
Holders, the Company shall use its best efforts to cooperate with
such Holders to prepare, as soon as practicable, a document that
is responsive in all material respects to the reasonable
objections of such Holders;
(xiv) promptly after the filing of any document that is to
be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to the Holders of
Registrable Securities;
(xv) (A) obtain opinions of counsel to the Company at the
time of effectiveness of such Registration Statement covering
such offering and updates thereto addressed to each Holder of any
Registrable Securities participating in such offering and
covering matters that are no more extensive in scope than would
be customarily covered in opinions obtained in underwritten
offerings by issuers with similar market capitalization and
reporting and financial histories or that are to be issued by
counsel for the Company pursuant to the Merger Agreement; (B) use
its best efforts to obtain "cold comfort" letters from the
independent certified public accountants of the Company upon the
reasonable request of the Holders of a majority of the
Registrable Securities and covering matters that are no more
extensive in scope than would be customarily covered in "cold
comfort" letters and updates obtained in underwritten offering by
issuers with similar market capitalization and reporting and
financial histories; provided, the Company shall not be required
to obtain such "cold comfort" letters unless the Holders
requesting such "cold comfort" letter provides a letter to the
Company (i) stating that such Holders intend to sell a minimum of
250,000 shares of Registerable Securities in a three month period
beginning with the date of such "cold comfort" letter,
(ii) stating such Holders are able to deliver to the independent
accountants any certification required by such Holders pursuant
to Statement on Auditing Standards No. 72, and (iii) and
containing an undertaking by such Holders that in the event the
minimum number of shares described in clause (i) are not sold by
such Holders during such three month period such Holders will
reimburse the Company the cost of such "cold comfort" letter; and
(C) deliver a certificate of a senior executive officer of the
Company at the time of effectiveness of such Registration
Statement and, upon the request of the Holders of a majority of
the Registrable Securities to be sold in such offering, updates
thereof (but in no event more often than two certificates per
calendar year), such certificates to cover matters no more
extensive in scope than those matters customarily covered in
officer's certificates delivered in connection with underwritten
offerings by issuers with similar market capitalization and
reporting and financial histories or in the certificates of
officers delivered pursuant to the Merger Agreement;
(xvi) subject to the proviso in paragraph (vi) above, cause
the Registrable Securities covered by such Registration Statement
to be registered with or approved by such other governmental
agencies or authorities as may be reasonably necessary to enable
the seller or sellers thereof to consummate the disposition of
such Registrable Securities;
(xvii) upon receipt of a letter from any Holders that such
Holders intend to sell a minimum of 250,000 shares of Registrable
Securities in a three month period, cause the Company's senior
executive officers to supply all information reasonably requested
by, and to cooperate fully with, a representative of the Holders
of the Registrable Securities covered by such Registration
Statement in connection with such registration, and otherwise to
cooperate fully in connection with any due diligence
investigation: provided that such representative enter into a
confidentiality agreement, in form and substance reasonably
satisfactory to the Company, prior to the release or disclosure
of any such information; and
(xviii) use its best efforts to take all action necessary or
advisable to effect such registration in the manner contemplated
by this Agreement.
(b) Holder Procedures.
(i) The Company may require each seller of Registrable
Securities as to which any Registration is being effected to
furnish to the Company such information regarding the
distribution of such Registrable Securities as the Company may
from time to time reasonably request in writing.
(ii) Each Holder of Registrable Securities agrees by
acquisition of Registrable Securities that, upon receipt of any
notice from the Company of the happening of any event of the kind
described in Sections 3(a)(iii)(B), 3(a)(iii)(C), 3(a)(iii)(D),
3(a)(iii)(E) or 3(a)(iii)(F), such Holder shall forthwith
discontinue disposition of Registrable Securities pursuant to the
then current Prospectus until (A) such Holder is advised in
writing by the Company that a new Registration Statement covering
the offer of Registrable Securities has become effective under
the Securities Act or (B) such Holder receives copies of a
supplemented or amended Prospectus contemplated by Section
3(a)(viii), or until such Holder is advised in writing by the
Company that the use of the Prospectus may be resumed. The
Company shall promptly take all such action as may be necessary
or appropriate, including, without limitation, the filing of a
new Registration Statement or an amendment to the then current
Registration Statement and/or the filing of an amended
Prospectus, to limit the duration of any discontinuance with
respect to the disposition of Registrable Securities pursuant to
this Section 3(b)(ii).
(iii) Each Holder agrees by acquisition of Registrable
Securities to use its best efforts to cooperate with the Company
in all reasonable respects in connection with the preparation and
filing of the Registration Statement.
(iv) Each Holder of Registrable Securities whose
Registrable Securities are covered by the Registration Statement
agrees not to effect any public sale or distribution of any of
the Company's securities, including a sale pursuant to Rule 144,
during the period beginning 10 days prior to and ending 90 days
after, the closing of an underwritten offering of securities by
the Company if the managing underwriter in such offering
determines the sale of Registrable Securities by a Holder would
have an adverse effect on an orderly public distribution of
securities in the underwritten offering or would have an adverse
effect on the price of the securities offered in the underwritten
offering.
4. Registration Expenses.
All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all
registration and filing fees, fees and expenses for compliance
with securities or blue sky laws (including fees and
disbursements of the Company's counsel in connection with blue
sky qualifications or registrations (or the obtaining of
exemptions therefrom) of the Registrable Securities), printing
expenses (including expenses of printing Prospectuses), messenger
and delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), fees and
disbursements of its counsel and its independent certified public
accountants (including, except as otherwise provided in Section
3(a)(xv)(B), the expenses of any special audit or "comfort"
letters required by or incident to such performance or
compliance), securities acts liability insurance (if the Company
elects to obtain such insurance), fees and expenses of any
special experts retained by the Company in connection with any
registration hereunder, fees and expenses of other Persons
retained by the Company, fees and expenses of one counsel for the
Holders, selected by the Holders of a majority of the securities
then constituting Registrable Securities (or, in the case of an
expense relating to a specific offering of Registrable
Securities, the Holders of a majority of the Registrable
Securities to be sold in such offering), reasonably incurred from
and after the Merger in connection with each registration and
offering hereunder, and reasonable out-of-pocket expenses of the
Holders, excluding salaries of officers and employees of the
Holders and any travel costs (unless incurred in connection with
travel requested by the Company)(all such expenses being herein
referred to as "Registration Expenses"), provided that
Registration Expenses shall not include any underwriting
discounts, commissions or fees attributable to the sale of the
Registrable Securities.
5. Indemnification; Contribution.
(a) Indemnification by the Company. The Company shall
indemnify and hold harmless, to the full extent permitted by law,
each Holder of Registrable Securities, their respective officers,
directors, employees, general and limited partners,
representatives and agents, and each Person who controls (within
the meaning of the Securities Act) any Holder of Registrable
Securities, against all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation and legal
expenses) resulting from any untrue or alleged untrue statement
of a material fact contained in any Registration Statement, any
Prospectus or Prospectus subject to completion, or any amendment
or supplement thereto, or any omission or alleged omission to
state in any thereof a material fact required to be stated
therein or necessary to make the statements therein (in the case
of a Prospectus or Prospectus supplement, in light of the
circumstances under which they were made) not misleading, except
in each case insofar, but only insofar, as the same arises out of
or is based upon any untrue statement or alleged untrue statement
of a material fact or an omission or alleged omission to state a
material fact in such Registration Statement, Prospectus,
Prospectus subject to completion, amendment or supplement, as the
case may be, made or omitted, as the case may be, in reliance
upon and in conformity with written information furnished to the
Company by such Holder expressly for use therein. This indemnity
is in addition to any liability that the Company may otherwise
have. The Company shall so indemnify and hold harmless any
selling brokers and similar securities industry professionals
participating in the distribution and their officers, directors,
employees, general and limited partners, representatives and
agents, and each Person who controls (within the meaning of the
Securities Act) any such Person to the same extent as provided
above with respect to the indemnification of the Holders, if so
requested.
(b) Indemnification by the Holders. Each Holder of
Registrable Securities shall indemnify and hold harmless, to the
full extent permitted by law, the Company, its respective
officers, directors, employees, representatives and agents, and
each Person who controls (within the meaning of the Securities
Act) the Company, against all losses, claims, damages,
liabilities and expenses (including reasonable costs of
investigation and legal expenses) resulting from any untrue or
alleged untrue statement of a material fact contained in any
Registration Statement, any Prospectus or Prospectus subject to
completion, or any amendment or supplement thereto, or any
omission or alleged omission to state in any thereof a material
fact required to be stated therein or necessary to make the
statements therein (in the case of a Prospectus or Prospectus
supplement, in light of the circumstances under which they were
made) not misleading, as the same arises out of or is based upon
an untrue statement or alleged untrue statement of a material
fact or an omission or alleged omission to state a material fact
in such Registration Statement, Prospectus, Prospectus subject to
completion, amendment or supplement, as the case may be, made or
omitted, as the case may be, in reliance upon and in conformity
with written information furnished to the Company by such Holder
expressly for use therein. This indemnity is in addition to any
liability that such Holder may otherwise have.
(c) Conduct of Indemnification Proceedings. Each party
entitled to indemnification under this Section 5 (the
"Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying
Party to assume the defense of any such claim or any litigation
resulting therefrom; provided, that counsel for the Indemnifying
Party, who will conduct the defense of such claim or litigation,
is approved by the Indemnified Party (whose approval will not be
unreasonably withheld or delayed); and provided, further, that
the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its
obligations except to the extent that its defense of the claim or
litigation involved is prejudiced by such failure. The
Indemnified Party may participate in such defense at such party's
expense; provided, however, that the Indemnifying Party shall pay
such expense if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate
due to actual or potential conflicts of interest between the
Indemnified Party and any other party represented by such counsel
in such proceeding. No Indemnifying Party, in the defense of any
such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgement or enter
into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of
any claim or litigation, and no Indemnified party will consent to
entry of any judgement or settle any claim or litigation without
the prior written consent of the Indemnifying Party. Each
Indemnified Party shall furnish such information regarding
himself or itself and the claim in question as the Indemnifying
Party may reasonably request and as shall be reasonably required
in connection with the defense of such claim and litigation
resulting therefrom.
(d) Contribution.
(i) If for any reason the indemnification provided for
in this Section 5 from an Indemnifying Party is unavailable
to an Indemnified Party hereunder or insufficient to hold it
harmless as contemplated by Section 5(a), then the
Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by
such Indemnified Parties as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative fault of the
Indemnifying Party and Indemnified Parties in connection
with the actions that resulted in such losses, claims,
damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of
the Indemnifying Party and Indemnified Parties shall be
determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue
statement of a material fact, has been made by, or relates
to information supplied by, an Indemnified Party or
Indemnified Parties, and the parties' relative intent,
knowledge, access to information and opportunity to correct
or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed
to include, subject to the limitations set forth in Section
5(c), any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation
or proceeding.
(ii) The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d)
were determined by pro rata allocation or by any other
method of allocation that does not take account of the
equitable considerations referred to in the immediately
preceding paragraph. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent
misrepresentation.
6. Rules 144, 144A and 145.
The Company shall take such further action as any Holder of
Registrable Securities may reasonably request to the extent
required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144,
Rule 144A and Rule 145.
7. Miscellaneous.
(a) Remedies. Each Holder of Registrable Securities, in
addition to being entitled to exercise all rights in an action at
law, including recovery of damages, shall be entitled to specific
performance of its rights under this Agreement. The Company
agrees that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at
law would be adequate. The Company shall be responsible for the
costs and expenses of enforcement by the Holders of the Company's
covenants hereunder in the event of the Company's breach thereof.
(b) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given unless the Company
shall have obtained the prior written consent of the Holders of
50% of the securities at the time constituting Registrable
Securities.
(c) Notices. All notices, requests, waivers, releases,
consents, and other communications required or permitted by this
Agreement (collectively, "Notices") shall be in writing. Notices
shall be deemed sufficiently given for all purposes under this
Agreement when delivered in person, when dispatched by telegram
or (upon written confirmation of receipt) by electronic facsimile
transmission or (upon written confirmation of receipt) when
dispatched by a nationally recognized overnight courier service,
or five Business Days after being deposited in the mail, postage
prepaid, if mailed. All Notices shall be delivered as follows:
(i) if to a Holder of Registrable Securities, at the
address indicated on Company's registrar relating to such
securities or at such other address as such Holder may have
furnished to the Company in writing; and
(ii) if to the Company, at:
Exide Electronics Group, Inc.
The Forum II
8521 Six Forks Road
Raleigh, NC 27615
Telecopier No.: 919-870-3100
Attention: Nicholas Costanza
with a copy to:
Baker & McKenzie
4500 Trammell Crow Center
2001 Ross Avenue
Dallas, TX 75201
Telecopier No.: 214-978-3099
Attention: Daniel W. Rabun
(d) Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the Company and
each Holder to their respective successors, heirs, legal
representatives, and with respect to the Company, its assignees.
(e) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(f) Headings; Construction. The headings in this Agreement
are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof. Unless the context
otherwise requires, all references to Sections are to Sections of
this Agreement, "or" is inclusively disjunctive, and words in the
singular include the plural and vice versa. In computing any
period of time specified in this Agreement or in any Notices, the
date of the act or event from which such period of time is to be
measured shall be included, any such period shall expire at
5:00 p.m., New York City time, on the last day of such period,
and any such period denominated in months shall expire on the
date in the last month of such period that has the same numerical
designation as the date of the act or event from which such
period is to be measured; provided, however, that if there is no
date in the last month of such period that has the same numerical
designation as the date of such act or event, such period shall
expire on the last day of the last month of such period.
(g) Certain Adjustments. Notwithstanding any other
provisions of this Agreement, the Board of Directors of the
Company may make or provide for such adjustments in the numbers
of shares of Common Stock or other Registrable Securities
specified in any other provision of this Agreement specifying a
number or percentage of Registrable Securities, as the Board may
determine, after consultation with the Holders of a majority of
the securities then constituting Registrable Securities, is
equitably required to prevent any diminution or enlargement of
the rights of Holders that otherwise would result from any stock
dividend, stock split, combination of shares, recapitalization,
or other similar change in the capital structure of the Company.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of laws
thereof.
(i) Severability. If one or more of the provisions hereof,
or the applicable thereof in any circumstance, is held invalid,
illegal or unenforceable in any respect, for any reason, the
validity, legality and enforceability of the remaining provisions
hereof shall not be in any way affected or impaired thereby, and
the provisions held to be invalid, illegal or unenforceable shall
be reformed to the minimum extent necessary, and in a manner as
consistent with the purposes thereof as is practicable, so as to
render it valid, legal and enforceable, it being intended that
all of the rights and privileges of the Holders hereunder shall
be enforceable to the fullest extent permitted by law.
(j) Entire Agreement. This Agreement is intended by the
parties hereto to be a final expression thereof and is intended
to be a complete and exclusive statement of the agreement and
understanding of such parties in respect of the subject matter
contained herein. This Agreement supersedes all prior agreements
and understandings among the Company and any Holders with respect
to such subject matter.
(k) Subsequent Agreements. The Company shall not hereafter
enter into any agreement with respect to any of its securities:
(i) that would materially and adversely affect the rights of the
Holders of Registrable Securities hereunder (including without
limitation the Holders' right to sell Registrable Securities
pursuant to Registrations); or (ii) unless the holders of such
securities expressly agree to recognize and give effect to the
Holders' rights under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
EXIDE ELECTRONICS GROUP, INC.
By: /s/ Marty R. Kittrell
_____________________________________
Title: Vice President and
Chief Financial Officer
DUQUESNE ENTERPRISES, INC.
By: /s/ Anthony J. Villiotti
_____________________________________
Title: Vice President
SHENKMAN INVESTMENT PARTNERS L.P.
By: /s/ Mark R. Shenkman
_____________________________________
Holder: Mark R. Shenkman
General Partner
EXHIBIT D
AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT (the "Affiliate Agreement") is
entered into as of the 25th day of August, 1994 between Exide
Electronics Group, Inc., a Delaware corporation ("Acquiror"), and
the undersigned stockholder (the "Stockholder") of International
Power Machines Corporation, a Delaware corporation (the
"Company").
RECITALS
A. The Company, Acquiror, and Exide Electronics
Acquisition, Inc., a newly formed Delaware corporation and a
wholly-owned subsidiary of Acquiror ("Acquiror Sub"), have
entered into an Agreement and Plan of Reorganization dated as of
August __, 1994 (the "Reorganization Agreement"), pursuant to
which the Company will be merged with and into Acquiror Sub (the
"Merger").
B. Upon the Effective Time (as defined in the
Reorganization Agreement) of the Merger and in connection
therewith, the undersigned Stockholder will become the owner of
shares of common stock, $.01 par value per share (the "Common
Stock") of Acquiror (the "Acquiror Shares").
C. The Merger is intended to qualify as a "reorganization"
under the provisions of Section 368(a)(1)(A) and Section
368(a)(2)(E) of the Internal Revenue Code of 1986, as amended
(the "Code"), and to be accounted for as a pooling of interests
pursuant to APB Opinion No. 16, Accounting Series Releases No.
130 and No. 135 and Staff Accounting Bulletins No. 65 and No. 76.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements, provisions and covenants set forth in the
Reorganization Agreement and in this Affiliate Agreement, it is
hereby agreed as follows:
1. The undersigned Stockholder hereby agrees that:
(a) The undersigned Stockholder is or may be deemed to
be (but does not hereby admit to be) an "affiliate" of the
Company within the meaning of Rule 145 under the Securities Act
of 1933, as amended (the "Securities Act"), and Accounting Series
Release No. 130, as amended, of the Securities and Exchange
Commission (the "SEC") ("Release No. 130").
(b) The undersigned Stockholder will not sell,
exchange, transfer, pledge, or dispose of any of the Acquiror
Shares or otherwise reduce the undersigned Stockholder's risk of
ownership relative to the Acquiror Shares or any part thereof
until such time after the Effective Time as financial results
covering at least thirty (30) days of the combined operations of
Acquiror and the Company after the Effective Time have been,
within the meaning of Release No. 130, filed by Acquiror with the
SEC or published by Acquiror in an Annual Report on Form 10-K, a
Quarterly Report on Form 10-Q, a Current Report on Form 8-K, a
quarterly earnings report, a press release or other public
issuance that includes combined sales and income of the Company
and Acquiror. Acquiror shall have sole discretion to decide
whether to make a specific filing or publication for such
purpose, but will comply on a timely basis with all applicable
requirements under the federal securities laws.
(c) Subject to paragraph (b) of this Section 1, the
undersigned Stockholder agrees not to offer, sell, exchange,
transfer, pledge or otherwise dispose of any of the Acquiror
Shares unless at that time either:
(i) such transaction is permitted pursuant to the
provisions of Rule 145(d) under the Securities Act;
(ii) counsel representing the undersigned
Stockholder, satisfactory to Acquiror, shall have advised
Acquiror in a written opinion letter satisfactory to
Acquiror and Acquiror's counsel, and upon which Acquiror and
its counsel may rely, that no registration under the
Securities Act is required in connection with the proposed
sale, transfer or other disposition;
(iii) a registration statement under the Securities
Act covering the Acquiror Shares proposed to be sold,
transferred or otherwise disposed of, describing the manner
and terms of the proposed sale, transfer or other
disposition, and containing a current prospectus, is filed
with the SEC and made effective under the Securities Act; or
(iv) an authorized representative of the SEC shall
have rendered written advice to the undersigned Stockholder
(sought by the undersigned Stockholder or counsel to the
undersigned Stockholder, with a copy thereof and of all
other related communications delivered to Acquiror) to the
effect that the SEC will take no action, or that the staff
of the SEC will not recommend that the SEC take action, with
respect to the proposed offer, sale, exchange, transfer,
pledge or other disposition if consummated.
(d) Notwithstanding the provisions of paragraphs (b)
or (c) above, Stockholder may transfer or distribute the Acquiror
Shares to any partner or shareholder of Stockholder, provided
that each such partner or shareholder receiving Acquiror Shares
shall have entered into an agreement with Acquiror containing
provisions comparable to this Agreement.
(e) All certificates representing the Acquiror Shares
deliverable to the undersigned Stockholder pursuant to the
Reorganization Agreement and in connection with the Merger and
any certificates subsequently issued with respect thereto or in
substitution therefor shall bear a legend substantially as
follows, and Acquiror, at its discretion, may cause stop transfer
orders to be placed with its transfer agent with respect to the
certificates for the Acquiror Shares:
"The shares represented by this certificate may not be
offered, sold, exchanged, transferred, pledged or otherwise
disposed of except in accordance with the provisions of the
Securities Act of 1933, as amended, and the other conditions
specified in that certain Affiliate Agreement dated as of
_________, 1994 between Exide Electronics Group, Inc. and
___________________, a copy of which Affiliate Agreement may
be inspected by the holder of this certificate at the
offices of Exide Electronics Group, Inc., 8521 Six Fords
Road, Raleigh, North Carolina 27615, or Exide Electronics
Group, Inc. will furnish, without charge, a copy thereof to
the holder of this certificate upon written request
therefor."
(f) The undersigned Stockholder will observe and
comply with the Securities Act and the General Rules and
Regulations thereunder, as now in effect and as from time to time
amended and including those hereafter enacted or promulgated, in
connection with any offer, sale, exchange, transfer, pledge or
other disposition of the Acquiror Shares or any part thereof.
2. It is understood and agreed that the legends set forth
in paragraph 1 above shall be removed by delivery of substitute
certificates without such legend if such legend is not required
for purposes of the Securities Act or this Affiliate Agreement.
It is understood and agreed that such legend and the stop orders
referred to above will be removed (i) upon receipt of advice that
the Acquiror Shares subject to such certificates have been sold
pursuant to Rule 145(d)(1), (ii) if two years shall have elapsed
from the date the undersigned acquired the Acquiror Shares
received in the Merger and the provisions of Rule 145(d)(2) are
then available to the undersigned, (iii) if three years shall
have elapsed from the date the undersigned acquired the Acquiror
Shares received in the Merger and the provisions of Rule
145(d)(3) are then applicable to the undersigned, or (iv) if
Acquiror has received either an opinion of counsel, which opinion
and counsel shall be reasonable satisfactory to Acquiror, or a
"no action" letter obtained by the undersigned from the staff of
the Commission, to the effect that the restrictions imposed by
Rule 145 under the Act no longer apply to the undersigned.
3. Reports. From and after the Effective Time and for so
long as necessary in order to permit the undersigned Stockholder
to sell the Acquiror Shares pursuant to Rule 145 and, to the
extent applicable, Rule 144 under the Securities Act, Acquiror
will use its best efforts to file on a timely basis all reports
required to be filed by it pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, referred to in paragraph (c)(1)
of Rule 144 under the Securities Act (or, if applicable, Acquiror
will use its best efforts to make publicly available the
information regarding itself referred to in paragraph (c)(2) of
Rule 144), in order to permit the undersigned Stockholder to
sell, pursuant to the terms and conditions of Rule 145 and the
applicable provisions of Rule 144, the Acquiror Shares.
4. Waiver. No waiver by any party hereto of any condition
or of any breach of any provision of this Affiliate Agreement
shall be effective unless in writing.
5. Notices. All notices, requests, demands or other
communications that are required or may be given pursuant to the
terms of this Affiliate Agreement shall be in writing and shall
be deemed to have been duly given if delivered by hand or courier
or mailed by registered or certified mail, postage prepaid, as
follows:
(a) If to the Stockholder at the address set forth
below the Stockholder's signature at the end hereof.
(b) If to Acquiror:
Exide Electronics Group, Inc.
8521 Six Forks Road
Raleigh, North Carolina 27615
Telecopier No.: (919) 870-3100
Attention: Nicholas J. Costanza, Esq. -
Vice President, Chief Legal Counsel
and Secretary
or to such other address as either party hereto may designate for
itself by notice given as herein provided.
6. Counterparts. For the conveniences of the parties
hereto, this Affiliate Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same document.
7. Successors and Assigns. This Affiliate Agreement shall
be enforceable by, and shall inure to the benefit of and be
binding upon, the parties hereto and their respective successors
and assigns. As used herein, the term "successors and assigns"
shall mean, where the context so permits, heirs, executors,
administrators, trustees and successor trustees, and personal and
other representatives.
8. Governing Law Jurisdiction. This Affiliate Agreement
shall be governed by, enforceable under, and construed in
accordance with, the laws of the State of North Carolina,
regardless of the laws that might otherwise govern under
applicable principles of conflicts of law. The parties hereby
submit exclusively to the jurisdiction of the federal courts
located in Wake County, North Carolina (and appoint the Secretary
of State of the State of North Carolina as their respective
agents for service for process) in connection with any disputes
or controversies arising out of or in connection with this
Affiliate Agreement.
9. Severability. If a court of competent jurisdiction
determines that any provision of this Affiliate Agreement is
unenforceable or enforceable only if limited in time and/or
scope, this Affiliate Agreement shall continue in full force and
effect with such provision stricken or so limited.
10. Attorney's Fees. In the event of any legal action or
proceeding to enforce or interpret the provisions hereof, the
prevailing party shall be entitled to reasonable attorneys' fees,
whether or not the proceeding results in a final judgment.
11. Effect of Headings. The section headings herein are
for convenience only and shall not affect the construction or
interpretation of this Affiliate Agreement.
12. Termination. This Affiliate Agreement shall
automatically become null and void in the event that the
Reorganization Agreement is terminated pursuant to its terms.
IN WITNESS WHEREOF, the parties have caused this
Affiliate Agreement to be executed and delivered as of the date
first above written.
EXIDE ELECTRONICS GROUP, INC. STOCKHOLDER
By: /s/ Anthony J. Villiotti
/s/ James A. Risher for Duquesne Enterprises
_________________________ ______________________________
Name: James A. Risher (Signature)
Title: President & Chief
Executive Officer Anthony J. Villiotti
______________________________
(Print Name)
Grent Building, Suite 2420
______________________________
(Print Address)
Pittsburgh, PA 15219
______________________________
(Print Address)
412/227-4790
______________________________
(Print Telephone Number)
EXHIBIT E
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities
Exchange Act of 1934, the persons named below agree to the joint
filing on behalf of each of them a Statement on Schedule 13D
(including amendments thereto) with respect to the Common Stock,
par value $.01 per share, of Exide Electronics Group, Inc. and
further agree that this Joint Filing Agreement be included as an
Exhibit to such joint filings. In evidence thereof the
undersigned, being duly authorized, hereby execute in one or more
counterparts this Agreement of this __ day of February, 1995.
DUQUESNE ENTERPRISES, INC.
By: /s/ Anthony J. Villiotti
________________________________
Name: Anthony J. Villiotti
Title: Vice President
THOMAS A. HURKMANS
/s/ Thomas A. Hurkmans
___________________________________
