As filed with the Securities and Exchange Commission on November 4, 1997
Registration No. 333-38893
___________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
___________________________________
To
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
__________________________
C&D TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
__________________________
Delaware 13-3314599
(State of Incorporation) (I.R.S. Employer Identification No.)
1400 Union Meeting Road
Blue Bell, Pennsylvania 19422
(215) 619-2700
(Address, including zip code, and telephone number, including area
code, of principal executive offices)
Mr. Alfred Weber
Chairman of the Board, CEO, COO and President
C&D TECHNOLOGIES, INC.
1400 Union Meeting Road
Blue Bell, Pennsylvania 19422
(215) 619-2700
(Name, address, and telephone number of agent for service)
___________________________________
Copy to:
Steven L. Kirshenbaum, Esq.
Proskauer Rose LLP
1585 Broadway
New York, NY 10036
(212) 969-3000
___________________________________
Approximate date of commencement of proposed sale to public: As soon as
practicable after the Registration Statement has been declared effective.
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 securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [x]
___________________________________
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, as amended, or until the
Registration Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
<PAGE>
This Amendment No. 1 amends and restates the Registration Statement on
Form S-3, No. 333-38893, filed with the Commission on October 28, 1997, by C&D
TECHNOLOGIES, INC., a Delaware corporation (the "Company"), relating to the
offering of the Company's Common Stock. Terms not otherwise defined herein
shall have the meanings given to them in the Registration Statement.
The purpose of this Amendment No. 1 is to amend Item 14 and file certain
exhibits to the Registration Statement.
Part II. INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14: OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemized list of expenses (all but the registration
fee are estimates) of the Company in connection with the issuance and sale of
the Common Stock being registered.
Registration Fee $ 9,252.12
Legal $15,000.00
Accounting $10,000.00
Miscellaneous $ 1,500.00
__________
$35,752.12
__________
__________
Item 15: INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under section 145 of the Delaware General Corporation Law, a corporation
may indemnify its directors, officers, employees and agents against judgments,
fines, amounts paid in settlement, and reasonable costs, expenses and counsel
fees paid or incurred in connection with any proceeding, other than an action
by or in the right of the corporation, to which such director, officer,
employee or agent or his legal representative may be a party, provided such
director, officer, employee or agent shall have acted in good faith and shall
have reasonably believed (a) in the case of a civil proceeding, that his
conduct was in or not opposed to the best interests of the corporation, and
(b) in the case of a criminal proceeding, that he had no reasonable cause to
believe his conduct was unlawful. In connection with an action by or in the
right of the corporation against a director, officer, employee or agent, the
corporation has the power to indemnify such director, officer, employee or
agent for reasonable expenses incurred in connection with such suit (a) if
such person acted in good faith and in a manner he reasonably believed was not
opposed to the best interest of the corporation and (b) if found liable to the
corporation, only if ordered by a court of law. Section 145 also provides
that such section is not exclusive of any other indemnification rights granted
by the corporation to directors, officers, employees or agents. The Company's
Restated Certificate of Incorporation provides that the Company shall, to the
fullest extent permitted by law, indemnify all persons who it may indemnify
pursuant thereto.
In addition, the Company's Restated Certificate of Incorporation
contains a provision eliminating the liability of a director to the Company or
its stockholders for breach of fiduciary duty as a director, other than
liability (i) for breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct of a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, (iv) for any transaction
from which the director derived an improper personal benefit or (v) for any
act or omission occurring prior to December 29, 1986.
The Company's Bylaws provide that the Company shall, to the fullest
extent permitted by law, indemnify any person, the heirs, executors or
administrators of such person, who was or is a party or is threatened to be
made a party to any threatened, pending or completed action suit or proceeding
(brought by or in the right of the Company or otherwise), whether civil,
criminal, administrative or investigative, by reason of the fact that such
person is or was a director or officer of the Company, or is or
<PAGE>
was serving at the request of the Company as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against all expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by such person or such heirs, executors or administrators in
connection with such action, suit or proceeding. In addition, the Company
may, in the discretion of the Board of Directors, pay expenses incurred in
defending any action, suit or proceeding in advance of the final disposition
of such action, suit, or proceeding. The Company may also purchase or
maintain insurance on behalf of any person described in the foregoing section
of the Bylaws against any liability asserted against him, whether or not the
Company would have the power to indemnify him against such liability by law.
Furthermore, the Bylaws provide that the indemnification provided for therein
shall not be deemed exclusive of any other rights to indemnification to which
those seeking indemnification may be entitled under any Bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise.
The Company maintains directors and officers liability insurance
policies, insuring, with certain exceptions and conditions, the Company's
directors and officers in their capacity as such against liability with
respect to certain specified proceedings. In addition to covering directors
and officers of the Company, the policies also insure the Company against
amounts paid by it to indemnify directors and officers.
<PAGE>
Item 16: EXHIBITS
EXHIBIT
NUMBER DESCRIPTION LOCATION
4.3 Form of Certificate for Incorporated by reference
Common Stock to Exhibit 4.1 to the
Company's Registration
Statement on Form S-1, No.
33-10889
5 Opinion of Proskauer Rose Filed herewith
LLP
23.2 Consent of Proskauer Rose Included in Exhibit 5
LLP
24 Power of attorney Included in Registration
Statement on page II-5
Item 17: UNDERTAKINGS
A. To Update Annually
C&D TECHNOLOGIES, INC., the undersigned registrant (the "Registrant")
hereby undertakes that, for purposes of determining any liability under the
1933 Act, each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the 1934 Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
B. Indemnification
Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed
by the final adjudication of such issue.
C. To File Post-Effective Amendments, As May Be Required
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 1933 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, represents a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, 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;
(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 paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission by the by the
Registrant pursuant to Section 13 or 15(d) of the 1934 Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the 1933
Act, 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.
D. Incorporated Annual and Quarterly Reports
The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information to be presented by Article 3 of
Regulation S-X are to set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
<PAGE>
SIGNATURES
Pursuant to the requirements of the 1933 Act, C&D TECHNOLOGIES, INC.,
the Registrant, certifies that it has reasonable grounds to believe that 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 Blue Bell, State of Pennsylvania, on
the 4th day of November, 1997.
C&D TECHNOLOGIES, INC.
By: /s/ Alfred Weber
Alfred Weber,
Chairman of the Board,
Chief Executive Officer,
Chief Operating Officer
and President
Pursuant to the requirements of the 1933 Act, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
Signature Title Date
/s/ Alfred Weber Director, Chairman of the Board, November 4, 1997
Alfred Weber Chief Executive Officer, Chief
Operating Officer and President
(Principal Executive Officer)
* Vice President-Finance November 4, 1997
__________________ (Principal Financial Officer
Stephen E. Markert, Jr. and Principal Accounting
Officer)
* Director November 4, 1997
__________________
Kevin P. Dowd
* Director November 4, 1997
__________________
Glenn M. Feit
* Director November 4, 1997
___________________
William Harral, III
* Director November 4, 1997
__________________
Warren A. Law
* Director November 4, 1997
__________________
Alan G. Lutz
* Director November 4, 1997
__________________
John A. H. Shober
*By /s/ Alfred Weber November 4, 1997
Alfred Weber
Attorney-in-fact
<PAGE>
Index to Exhibits
Exhibit
Number Description Page No.
4.3 Form of Certificate for Common Stock
(Incorporated by reference to Exhibit
4.1 to the Company's Registration
Statement on Form S-1, No. 33-10889)
5 Opinion of Proskauer Rose LLP
23.2 Consent of Proskauer Rose LLP
(Included in Exhibit 5)
24 Power of attorney
EXHIBIT 5
November 4, 1997
The Board of Directors
C&D TECHNOLOGIES, INC.
1400 Union Meeting Road
Blue Bell, Pennsylvania 19422
Gentlemen:
You have requested our opinion in connection with the filing
by C&D TECHNOLOGIES, INC., a Delaware corporation (the
"Company"), with the Securities and Exchange Commission of a
Registration Statement on Form S-3 (Registration Statement No.
333-38893) (the "Registration Statement") under the Securities
Act of 1933 (the "Securities Act") with respect to 631,969 shares
of common stock, $.01 par value, of the Company ("Common Stock").
The Registration Statement relates to the proposed sale of
452,551 shares of Common Stock by the Company (the "Company
Shares"), which consist of previously issued shares held by the
company in its treasury, and the proposed sale of 179,418 shares
of Common Stock by certain stockholders (the "Selling Stockholder
Shares," and together with the Company Shares, the "Firm Shares").
We have examined such records, documents and other
instruments as we have deemed relevant and necessary as a basis
for the opinions hereinafter set forth. We have also assumed
without investigation the authenticity of any document submitted
to us as a copy, the authenticity of the originals of such latter
documents, the genuineness of all signatures and the legal
capacity of natural persons who signed such documents.
Based upon the foregoing, it is our opinion that the Firm
Shares have been duly authorized, and are legally issued, fully
paid and non-assessable.
The foregoing opinion relates only to matters of the
internal law of the State of New York and to the General
Corporation Law of the State of Delaware and to matters of
federal law and does not purport to express any opinion on the
laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement. In giving the foregoing consent,
we do not admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the Securities
and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ PROSKAUER ROSE LLP
