As
filed with the Securities and Exchange Commission on October 30,
2007
Registration
No. 333-
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
_______________
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
_______________
ENERSYS
(Exact
name of Registrant as specified in its charter)
_______________
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DELAWARE
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3691
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23-3058564
|
|
(State
or other jurisdiction of incorporation or organization)
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(Primary
Standard Industrial Classification Code Number)
|
(I.R.S.
Employer Identification No.)
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2366
Bernville Road
Reading,
Pennsylvania 19605
(610)
208-1991
(Address,
Including Zip Code, and Telephone Number, Including Area Code,
of
Registrant's Principal Executive Offices)
Frank
M. Macerato
Vice
President and General Counsel
EnerSys
2366
Bernville Road
Reading,
PA 19605
(610)
208-1991
_______________
(Name,
Address, Including Zip Code, and Telephone Number,
Including
Area Code, of Agent for Service)
Copy
to:
|
Stacy
J. Kanter, Esq.
Skadden,
Arps, Slate, Meagher & Flom LLP
Four
Times Square
New
York, New York 10036-6522
(212)
735-3000
|
Approximate
date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement as
determined by the registrant
If
the only securities being registered on this Form are being offered pursuant
to
dividend or interest reinvestment plans, check the following box. o
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
If
this Form is filed to register additional securities for an offering pursuant
to
Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If
delivery of the prospectus is
expected to be made pursuant to Rule 434, please check the following box. o
If
this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto
that
shall become effective upon filing with the Commission pursuant to Rule 462(e)
under the Securities Act, check the following box. o
If
this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction
I.D.
filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box.
o
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class of Securities
to
be Registered (1)
|
Amount
to be
Registered
(2)
|
Proposed
Maximum
Offering Price Per Unit (3)
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Proposed
Maximum
Aggregate Offering Price (4)
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Amount
of
Registration
Fee
|
|
Primary Offering:
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||||
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Common
Stock, $0.01 par value
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(5)
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(5)
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(5)
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(5)
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Debt
Securities
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(5)
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(5)
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(5)
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(5)
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Total
Primary Offering
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(5)
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(5)
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$91,033,044.56
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$2,794.71
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Secondary Offering:
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||||
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Common
Stock, $0.01 par value
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22,202,332
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$18.42
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$408,966,955.44
(6)
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$12,555.29
(6)
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Total
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$500,000,000
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$15,350.00
(6) (7)
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(1)
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These
offered securities may be sold separately, together or as units
with other
offered securities.
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(2)
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Such
indeterminate number or amount of registrant's common stock or
debt
securities, may from time to time be issued at an indeterminate
prices, in
U.S. dollars or the equivalent thereof denominated in foreign currencies
or units of two or more foreign currencies or composite currencies
(such
as European Currency Units). In no event will the aggregate maximum
offering price of all securities issued pursuant to this registration
statement exceed $500,000,000, or if any debt securities are issued
with
original issue discount, such greater amount as will result in
an
aggregate offering price of $500,000,000. Up to 22,202332 shares
of our
common stock may be sold from time to time pursuant to this registration
statement by the selling stockholders named herein.
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(3)
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The
proposed maximum offering price per security will be determined
from time
to time in connection with the issuance by the registrant of the
securities registered therunder.
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(4)
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Estimated
solely for the purpose of calculation the amount of the registration
fee
pursuant to Rule 457(o) of the Securities Act.
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(5)
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Not
required to be included in accordance with General Instruction
II.D. of
Form S-3 under the Securities Act.
|
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(6)
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Pursuant
to Rule 457(c) of the rules and regulations under the Securities
Act, the
offering price and registration fee are computed based on the average
of
the high and low prices reported for the registrant's common stock
traded
on New York Stock Exchange on October 26, 2007.
|
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(7)
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Pursuant
to Rule 429 under the Securities Act of 1933, as amended, the prospectus
included in this registration statement is a combined prospectus
and
relates to the new registration statement registering common stock
and
debt securities and to registration statement no. 333-136085, initially
filed on July 27, 2006, which registered common stock of the
registrant. The registrant paid a filing of $1,007 with respect
to 500,000 shares of common stock which remain unsold under registration
statement no. 333-136085. Pursuant to Rule 457(p) of the
Securities Act of 1933, $1,007 of the filing fee paid in connection
with
the remaining unsold shares of common stock under such prior registration
statement is offset against the filing fee due in connection with
this
registration statement.
|
The
Registrant hereby amends this Registration Statement on such date or dates
as
may be necessary to delay its effective date until the Registrant shall file
a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The
information in this prospectus
is not
complete and may be changed. Neither we nor the
selling stockholders may not sell
these securities until the registration statement filed with the Securities
and
Exchange Commission is effective. This prospectus is not
an offer to sell these
securities and it is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
Subject
to Completion, dated
October 30,
2007
PROSPECTUS
Debt
Securities
Common
Stock
_______________
EnerSys,
from time to time, may offer to sell, issue and sell senior or subordinated
debt
securities and common stock. In addition, the selling stockholders named in
this
prospectus may offer, from time to time, shares of our common stock. The debt
securities may be convertible into or exercisable or exchangeable for our common
stock or our other securities.
These
securities may be offered and sold by us or a selling stockholder to or through
one or more underwriters, dealers and agents, or directly to purchasers, on
a
continuous or delayed basis.
This
prospectus describes some of the general terms that may apply to these
securities. The specific terms of any securities to be offered will be described
in a supplement to this prospectus.
This
prospectus may not be used to sell securities unless accompanied by a prospectus
supplement.
Our
common stock is listed on the New York Stock Exchange and trades under the
symbol "ENS".
Investing
in our securities involves risks, including the risks described in our Annual
Report on Form 10–K for the fiscal year ended March 31, 2007, the risk factors
described under the caption "Risk Factors" in any applicable prospectus
supplement and/or any risk factors set forth in our other filings with the
Securities and Exchange Commission, or the Commission, pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended,
or the Exchange Act as discussed on page 3 of this
prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities or determined if this prospectus
or
the accompanying prospectus supplement is truthful or complete. Any
representation to the contrary is a criminal offense.
The
date of this prospectus
is ,
2007.
TABLE
OF CONTENTS
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ABOUT
THIS PROSPECTUS
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1
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ENERSYS
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1
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RISK
FACTORS
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3
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SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
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4
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USE
OF PROCEEDS
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6
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RATIO
OF EARNINGS TO FIXED CHARGES
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6
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DIVIDEND
POLICY
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8
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DESCRIPTION
OF CAPITAL STOCK
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9
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DESCRIPTION
OF DEBT SECURITIES
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14
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SELLING
STOCKHOLDERS
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17
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PLAN
OF DISTRIBUTION
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18
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WHERE
YOU CAN FIND MORE INFORMATION
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22
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LEGAL
MATTERS
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23
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EXPERTS
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24
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i
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission using a "shelf" registration process. Under
this shelf process, we may, from time to time, sell any combination of the
securities described in this prospectus in one or more offerings and the selling
stockholders may, from time to time, sell common stock in one or more
offerings. This prospectus provides you with a general description of
the securities to be offered. Each time we sell securities described
in this prospectus or the selling stockholders sell common stock, we will
provide a prospectus supplement that will contain specific information about
the
terms of that offering. The prospectus supplement may also add to or
update, but will not contradict, modify or replace, information contained in
this prospectus. We urge you to read this entire prospectus and any
prospectus supplement, together with the information described under the
heading "Where You Can Find More Information" carefully, including
the "Risk Factors" incorporated in this prospectus and included or incorporated
in any accompanying prospectus supplement.
The
terms "EnerSys," "we," "our," and "us" refer to EnerSys—which is a holding
company—and its consolidated subsidiaries. We use the term "the
company" when we wish to refer only to the holding company and not to EnerSys
and its consolidated subsidiaries. Our fiscal year ends on March
31. References in or incorporated by reference in this prospectus to
a fiscal year, such as "fiscal 2007," relate to the fiscal year ended on March
31 of that calendar year. For reading ease, certain financial
information incorporated by reference in this prospectus is presented on a
rounded basis, which may cause minor rounding differences.
ENERSYS
EnerSys
is the world’s largest manufacturer, marketer and distributor of industrial
batteries. We also manufacture, market and distribute related
products such as chargers, power equipment and battery accessories, and we
provide related after-market and customer-support services for industrial
batteries. Industrial batteries generally are characterized as
reserve power batteries or motive power batteries.
Reserve
power products are known as network, standby or stationary power batteries
and
are used primarily for backup power applications to ensure continuous power
supply in case of main (primary) power failure or outage. Reserve
power batteries are used primarily to supply standby direct current, or DC,
operating power for:
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·
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telecommunications
systems, such as wireless, wireline and internet access systems,
central
and local switching systems, satellite stations and radio transmission
stations;
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·
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uninterruptible
power systems, or UPS, applications for computer and computer-controlled
systems, including process control
systems;
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·
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specialty
power applications, including security systems for premium starting,
lighting and ignition applications;
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·
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switchgear
and electrical control systems used in electric utilities and energy
pipelines; and
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·
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commercial
and military aircraft, submarines and tactical military
vehicles.
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1
Motive
power products are used to provide power for manufacturing,
warehousing and other material handling equipment, primarily electric industrial
forklift trucks. They compete primarily with propane- and
diesel-powered internal combustion engines used principally in the following
applications:
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·
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electric
industrial forklift trucks in distribution and manufacturing
facilities;
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·
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mining
equipment, including scoops, coal haulers, shield haulers, underground
forklifts, shuttle cars and locomotives;
and
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·
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railroad
equipment, including diesel locomotive starting, rail car lighting
and
rail signaling equipment.
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Our
principal executive offices are located at 2366 Bernville Road, Reading, PA
19605. Our telephone number at that address is (610)
208-1991.
2
RISK
FACTORS
You
should carefully consider the specific risks described in our Annual Report
on
Form 10–K for the fiscal year ended March 31, 2007, the risk factors described
under the caption "Risk Factors" in any applicable prospectus supplement and
any
risk factors set forth in our other filings with the Commission, pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act before making an
investment decision. See "Where You Can Find More
Information."
3
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and any accompanying prospectus supplement may contain or incorporate
by reference information that includes or is based upon forward-looking
statements within the meaning of the Private Securities Litigation Reform Act
of
1995, or the Reform Act. Generally, you can identify these statements
because they use words like "anticipates," "believes," "will," "estimates,"
"expects," "future," "intends," "plans" or the negative of such terms or similar
terms. All statements addressing operating performance, events, or developments
that EnerSys expects or anticipates will occur in the future, including
statements relating to sales growth, earnings or earnings per share growth,
and
market share, as well as statements expressing optimism or pessimism about
future operating results, are forward–looking statements within the meaning of
the Reform Act. The forward–looking statements are and will be based
on management's then–current beliefs and assumptions regarding future events and
operating performance and on information currently available to our management,
and are applicable only as of the dates of such statements.
Forward-looking
statements involve risks, uncertainties and assumptions. Although we
do not make forward–looking statements unless we believe we have a reasonable
basis for doing so, we cannot guarantee their accuracy. Actual
results may differ materially from those expressed in these forward–looking
statements due to a number of uncertainties and risks, including the risks
described in our Annual Report on Form 10–K for the fiscal year ended March 31,
2007, the risk factors described under the caption "Risk Factors" in any
applicable prospectus supplement, any risk factors set forth in our other
filings with the Commission pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act and other unforeseen
risks. You should not put undue reliance on any forward–looking
statements. We undertake no obligation to update or revise these
statements to reflect events or circumstances occurring after the date of such
statements.
Our
actual results may differ materially from those contemplated by the
forward–looking statements for a number of reasons, including the following
factors:
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·
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general
cyclical patterns of the industries in which our customers
operate;
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·
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the
extent to which we cannot control our fixed and variable
costs;
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·
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the
raw material in our products may experience significant fluctuations
in
market price and availability;
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·
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certain
raw materials constitute hazardous materials that may give rise to
costly
environmental and safety claims;
|
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·
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legislation
regarding the restriction of the use of certain hazardous substances
in
our products;
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·
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risks
involved in foreign operations such as disruption of markets, changes
in
import and export laws, currency restrictions and currency exchange
rate
fluctuations;
|
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·
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our
ability to raise our selling prices to our customers when our product
costs increase;
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·
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the
extent to which we are able to efficiently utilize our global
manufacturing facilities and optimize their
capacity;
|
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·
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general
economic conditions in the markets in which we
operate;
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4
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·
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competitiveness
of the battery markets throughout the
world;
|
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·
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our
timely development of competitive new products and product enhancements
in
a changing environment and the acceptance of such products and product
enhancements by customers;
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·
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our
ability to adequately protect our proprietary intellectual property,
technology and brand names;
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·
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unanticipated
litigation and regulatory proceedings to which we might be
subject;
|
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·
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changes
in our market share in the business segments and regions where we
operate;
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·
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our
ability to implement our cost reduction initiatives successfully
and
improve our profitability;
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·
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unanticipated
quality problems associated with our
products;
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·
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our
ability to implement business strategies, including our acquisition
strategy, and restructuring plans;
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·
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our
acquisition strategy may not be successful in locating advantageous
targets;
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·
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our
ability to successfully integrate any assets, liabilities, customers,
systems and management personnel we acquire into our operations and
our
ability to realize related revenue synergies and cost savings within
expected time frames;
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·
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our
debt and debt service requirements which may restrict our operational
and
financial flexibility, as well as imposing unfavorable interest and
financing costs;
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·
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adverse
changes in our short and long term debt levels under our credit
facilities;
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·
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our
exposure to fluctuations in interest rates on our variable rate
debt;
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·
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our
ability to attract and retain qualified
personnel;
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·
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our
ability to maintain good relations with labor
unions;
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·
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credit
risk associated with our customers, including risk of insolvency
and
bankruptcy;
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·
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our
ability to successfully recover in the event of a disaster affecting
our
infrastructure; and
|
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·
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terrorist
acts or acts of war, whether in the United States or abroad, could
cause
damage or disruption to our operations, our suppliers, channels to
market
or customers, or could cause costs to increase, or create political
or
economic instability.
|
This
list of factors that may affect future performance is illustrative, but by
no
means exhaustive. Accordingly, all forward–looking statements should
be evaluated with the understanding of their inherent
uncertainty. You are advised to consult any further disclosures we
make on related subjects in the reports we file with the Commission pursuant
to
Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act.
5
USE
OF PROCEEDS
We
intend to use the net proceeds from the sales of the securities as set forth
in
the applicable prospectus supplement. We will not receive any proceeds from
any
sale of common stock by the selling stockholders.
RATIO
OF EARNINGS TO FIXED CHARGES
The
following table sets forth our consolidated ratio of earnings to fixed charges
for the periods indicated.
|
Three
fiscal months ended
July
1, 2007 (1)
|
Fiscal
year ended March 31,
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||||
|
2007
(2)
|
2006
(3)
|
2005
(4)
|
2004
(5)
|
2003
|
|
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2.08
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2.63
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2.32
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2.59
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1.28
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2.25
|
For
purposes of calculating the ratio of earnings to fixed charges, earnings
represent income before income taxes plus fixed charges. Fixed charges consist
of total interest expense and a one-third portion of rental expenses that
management believes is representative of interest.
As
of the date of this prospectus, we have not issued any shares of preferred
stock.
As
explained
in notes to the Consolidated
Financial Statements included in the Company’s
Reports on Forms 10-K and 10-Q,
net income in the above periods included the following pre-tax expenses and
income:
|
(1)
|
The
quarter ended July 1, 2007 included a pretax charge of $9,857 to
facilitate the integration of the recent Energia acquisition into
the
Company’s worldwide operations. The charge is comprised of $4,949 as a
restructuring accrual, primarily in Europe, for staff reductions,
and
$4,908 for a non-cash impairment charge for machinery and
equipment.
|
|
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(2)
|
In
fiscal 2007, the Company settled litigation matters that resulted
in
litigation settlement income, net of related legal fees and expenses,
of
$3,753 pretax.
|
|
|
(3)
|
Pretax
restructuring charges
recorded in fiscal
2006 were $8,553 which included $6,217 incurred to cover estimated
costs
in Europe of staff reductions, exiting of a product line, and closing
several ancillary locations, $1,063 incurred to cover estimated
restructuring programs in Europe related
to the newly acquired GAZ
facility in Zwickau, Germany, and $1,273 of non-cash write-off of
machinery and equipment based on impairment testing.
|
|
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(4)
|
The
fiscal 2005 operating results
include a pretax charge of $3,622 for the write-off of deferred
financing costs,
and
a pretax charge of $2,400 for a loan prepayment penalty, both of
which
were incurred as a result of our initial public
offering.
|
|
|
(5)
|
The
fiscal 2004 operating results
include a pretax charge of $30,974 that was incurred primarily
as a result of
a
Settlement Agreement, and pretax charges of $21,147 for uncompleted
acquisitions (primarily legal and other professional fees), plant
closing
costs related to the final
|
6
| settlement of labor matters relating to a North American plant closed in fiscal 2002 and a special bonus paid, including related payroll costs, in connection with the March 17, 2004 recapitalization transaction. |
7
DIVIDEND
POLICY
We
do not anticipate declaring or paying any cash dividends in the foreseeable
future. The timing and amount of future cash dividends, if any, would
be determined by our Board of Directors and would depend upon our earnings,
financial condition and cash requirements at the time. Under our
senior secured credit facility, we may pay dividends on our common stock,
subject to an annual limit of $20.0 million, only if our leverage ratio is
equal
to or less than 3.0 to 1.0 and the credit ratings accorded the senior secured
credit facility by Standard & Poor's and Moody's are at least BB- and Ba3,
respectively, each with a stable outlook.
8
DESCRIPTION
OF CAPITAL STOCK
General
Matters
Our
authorized capital stock consists of 135,000,000 shares of common stock, par
value $0.01 per share, of which 47,195,728 shares were issued and outstanding
as
of August 3, 2007 and 1,000,000 shares of undesignated preferred stock, par
value $0.01 per share, none of which was outstanding as of August 3,
2007.
The
following summary describes the material provisions of our capital stock,
including the common stock that the selling stockholders may
sell. This summary is not meant to be a complete description of our
capital stock or the terms of each offering that may occur pursuant to this
prospectus. We urge you to read our certificate of incorporation and
our bylaws, which are included as exhibits to the registration statement of
which this prospectus forms a part. The particular terms of any
offering will be described in the related prospectus supplement.
Certain
provisions of our certificate of incorporation and bylaws summarized below
may
be deemed to have an anti-takeover effect and may delay or prevent a tender
offer or takeover attempt that a stockholder might consider in its best
interest, including those attempts that might result in a premium over the
market price for shares of common stock.
Common
Stock
We
have one class of common
stock. All holders of shares of common stock are entitled to the same
rights and privileges. Holders of shares of common stock are entitled
to one vote per share on the election or removal of our directors and on all
other matters to be voted on by our stockholders.
Holders
of shares of common stock are
not entitled to any preemptive or preferential rights to subscribe for
additional shares of any class of our capital stock. The holders of
shares of common stock are entitled to receive dividends, when, as and if
declared by our board of directors, out of funds legally available
therefor. See "Dividend Policy." Holders of shares of
common stock are entitled to share ratably, upon dissolution or liquidation,
in
the assets available for distribution to holders of shares of common stock
after
the payment of all prior claims.
Preferred
Stock
Our
authorized capital stock includes
1,000,000 shares of undesignated preferred stock, none of which was issued
or
outstanding as of August 3, 2007. Our board of directors is
authorized, without further action by our stockholders, to provide for the
issuance of such preferred stock in one or more series and to fix the dividend
rate, conversion privileges, voting rights, redemption rights, redemption price
or prices, liquidation preferences and qualifications, limitations and
restrictions thereof with respect to each series. Holders of shares
of preferred stock may be entitled to receive a preference payment in the event
of any liquidation, dissolution or winding-up of our company before any payment
is made to the holders of shares of our common stock. In some
circumstances, the issuance of shares of preferred stock may render more
difficult or tend to discourage a merger, tender offer or proxy contest, the
assumption of control by a holder of a large block of our securities or the
removal of incumbent management. Upon the affirmative vote of our
board of directors, without stockholder approval, we may issue shares of
preferred stock with voting and conversion rights that could adversely affect
the holders of shares of our common stock. We have no current
intention to issue any additional shares of preferred stock.
9
Section
203 of the Delaware General Corporation Law
Section
203 of the Delaware General
Corporation Law may have the effect of delaying, deferring or preventing a
change of control. In general, Section 203 of the Delaware General
Corporation Law prohibits a publicly held Delaware corporation from engaging
in
a "business combination" with an "interested stockholder" for a period of three
years following the date such stockholder became an "interested stockholder,"
unless:
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·
|
prior
to such date the board of directors approved either the "business
combination" or the transaction that resulted in the stockholder
becoming
an "interested stockholder";
|
|
·
|
upon
consummation of the transaction that resulted in the stockholder
becoming
an "interested stockholder," the "interested stockholder" owned at
least
85% of the voting stock outstanding at the time the transaction commenced,
excluding for purposes of determining the voting stock outstanding
those
shares owned by persons who are directors and also officers and certain
other stockholders; or
|
|
·
|
on
or subsequent to such date the "business combination" is approved
by the
board of directors and authorized at an annual or special meeting
of
stockholders by the affirmative vote of at least 66 2/3% of the
outstanding voting stock that is not owned by the "interested
stockholder."
|
A
"business combination" includes
certain mergers, stock or asset sales and other transactions resulting in a
financial benefit to the "interested stockholder." An "interested
stockholder" is a person who, together with affiliates and associates, owns
(or
in the preceding three years, did own) 15% or more of the outstanding voting
stock. The statute could prohibit or delay mergers or other takeover
or change in control attempts and, accordingly, may discourage attempts to
acquire us.
Limitation
of Liability and Indemnification of Directors and Officers
We
have included in our certificate of incorporation and bylaws provisions
to:
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eliminate
the personal liability of our directors for monetary damages resulting
from breaches of their fiduciary duty, but such provision does not
eliminate liability for breaches of the duty of loyalty, acts or
omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, violations under Section 174 of the Delaware General
Corporation Law or for any transaction from which the director derived
an
improper personal benefit; and
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indemnify
our directors and officers to the fullest extent permitted by the
Delaware
General Corporation Law, including circumstances in which indemnification
is otherwise discretionary.
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Acting
pursuant to the provisions of
our certificate of incorporation and bylaws and the provisions of Section 145
of
the Delaware General Corporation Law, we have entered into agreements with
each
of our officers and directors to indemnify them to the fullest extent permitted
by such provisions and such law. We also are authorized to carry
directors' and officers' insurance providing indemnification for our directors,
officers and certain employees for some liabilities. We believe that
these indemnification provisions and insurance are useful to attract and retain
qualified directors and executive officers.
The
limitation of liability and
indemnification provisions in our certificate of incorporation and bylaws may
discourage stockholders from bringing a lawsuit against directors for breach
of
their fiduciary
10
duty. These
provisions also may have the effect of reducing the likelihood of derivative
litigation against directors and officers, even though such an action, if
successful, might otherwise benefit us and our stockholders. In
addition, your investment may be adversely affected to the extent we pay the
costs of settlement and damage awards against directors and officers pursuant
to
these indemnification provisions.
Insofar
as indemnification for
liabilities arising under the Securities Act may be permitted to our directors
or officers pursuant to the provisions described above, or otherwise, we have
been advised that, in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
Other
Provisions of our Certificate of Incorporation and Bylaws
Classified
Board of Directors. Our certificate of incorporation provides
for our board of directors to be divided into three classes of directors serving
staggered three-year terms. Each class shall consist, as nearly as
may be practicable, of one-third of the total number of directors constituting
our entire board of directors. As a result, approximately one-third
of our board of directors will be elected each year. Moreover, except
as otherwise provided in our Securityholder Agreement dated as of July 26,
2004
(referred to herein as the Securityholder Agreement), among Metalmark Capital
LLC, certain institutional stockholders, certain members of our senior
management and our company, stockholders may remove a director only for
cause. This provision, when coupled with the provisions of our
certificate of incorporation and bylaws, except as otherwise provided in our
Securityholder Agreement, authorizes only our board of directors to fill vacant
directorships, preclude a stockholder from removing incumbent directors without
cause and simultaneously gaining control of our board of directors by filling
the vacancies created by such removal with its own nominees. This
provision of our certificate of incorporation may not be amended or repealed
by
our stockholders except with the consent of the holders of at least two-thirds
of our outstanding common stock.
Special
Meeting of Stockholders. Our certificate of incorporation
provides that special meetings of our stockholders may be called only by our
board of directors or our Chairman of the Board. This provision makes
it more difficult for stockholders to take action opposed by our board of
directors. This provision of our certificate of incorporation may not
be amended or repealed by our stockholders except with the consent of the
holders of at least two-thirds of our outstanding common stock.
No
Stockholder Action by Written Consent. Our certificate of
incorporation provides that no action required or permitted to be taken at
any
annual or special meeting of our stockholders may be taken without a meeting,
and the power of our stockholders to consent in writing, without a meeting,
to
the taking of any action is specifically denied. Such provision
limits the ability of any stockholder to take action immediately and without
prior notice to our board of directors. Such a limitation on a
majority stockholder's ability to act might affect such person's or entity's
decision to purchase our voting securities. This provision of our
certificate of incorporation may not be amended or repealed by the stockholders
except with the consent of the holders of at least two-thirds of our outstanding
common stock.
Advance
Notice Requirements for Stockholder Proposals and Director
Nominations. Our bylaws provide that stockholders seeking to
bring business before an annual meeting of stockholders, or to nominate
candidates for election as directors at an annual or special meeting of
stockholders, must provide timely notice thereof in writing. To be
timely, a stockholder's notice must be delivered to, or mailed and received
at,
our principal executive offices: in the case of an annual meeting that is called
for a date that is within 30 days before or after the anniversary date of the
immediately preceding annual meeting of stockholders, not less than 90 days
nor
more than 120 days prior to such anniversary date or, in the case of a special
meeting called for the purpose of electing directors, not less than 90 days
nor
more than 120 days prior to such special meeting or not later than the close
of
business on the tenth day
11
following
the date on which public disclosure of the date of the meeting is made; and
in
the case of an annual meeting that is called for a date that is not within
30
days before or after the anniversary date of the immediately preceding annual
meeting, not later than the close of business on the tenth day following the
date on which public disclosure of the date of the meeting was
made. Our bylaws also specify certain requirements for a
stockholder's notice to be in proper written form. These provisions
may preclude some stockholders from bringing matters before the stockholders
at
an annual or special meeting or from making nominations for directors at an
annual or special meeting. As set forth below, our bylaws may not be
amended or repealed by our stockholders, except with the consent of holders
of
at least two-thirds of our outstanding common stock.
Adjournment
of Meetings of Stockholders. Our bylaws provide that when a
meeting of our stockholders is convened, the presiding officer, if directed
by
our board of directors, may adjourn the meeting if no quorum is present for
the
transaction of business or if our board of directors determines that adjournment
is necessary or appropriate to enable the stockholders to consider fully
information that our board of directors determines has not been made
sufficiently or timely available to stockholders or to otherwise effectively
exercise their voting rights. This provision will, under certain
circumstances, make more difficult or delay actions by the stockholders opposed
by our board of directors. The effect of such provision could be to
delay the timing of a stockholders' meeting, including in cases where
stockholders have brought proposals before the stockholders that are in
opposition to those brought by our board of directors and therefore may provide
our board of directors with additional flexibility in responding to such
stockholder proposals. As set forth below, our bylaws may not be
amended or repealed by our stockholders, except with the consent of holders
of
at least two-thirds of our outstanding common stock.
No
Cumulative Voting. The Delaware General Corporation Law provides
that stockholders are not entitled to the right to cumulate votes in the
election of directors unless our certificate of incorporation provides
otherwise. Our certificate of incorporation does not provide for
cumulative voting.
Authorized
but Unissued Capital Stock. Our certificate of incorporation
authorizes our board of directors to issue one or more classes or series of
preferred stock, and to determine, with respect to any such class or series
of
preferred stock, the voting powers (if any), designations, powers, preferences,
rights and qualifications, limitations or restrictions of such preferred
stock. We have no current intention to issue any shares of preferred
stock.
The
Delaware General Corporation Law does not require stockholder approval for
any
issuance of previously authorized shares of our capital
stock. However, the listing requirements of the New York Stock
Exchange, which will apply so long as our common stock is listed on the New
York
Stock Exchange, require stockholder approval of certain issuances equal to
or
exceeding 20% of the then outstanding voting power or then outstanding number
of
shares of our common stock. These additional shares may be used for a
variety of corporate purposes, including future public offerings, to raise
additional capital or to facilitate acquisitions.
One
of the effects of the existence of unissued and unreserved common stock or
preferred stock may be to enable our board of directors to issue shares to
persons friendly to current management, which issuance could render more
difficult or discourage an attempt to obtain control of our company by means
of
a merger, tender offer, proxy contest or otherwise, and thereby protect the
continuity of our management and possibly deprive the stockholders of
opportunities to sell their shares of common stock at prices higher than
prevailing market prices.
Amendment
of the Bylaws. Our certificate of incorporation provides that
our bylaws may not be amended or repealed by our stockholders except with the
consent of holders of at least two-thirds of our outstanding common stock and
grants our board of directors the authority to amend and repeal our
bylaws
12
without
a stockholder vote in any manner not inconsistent with the laws of Delaware
or
our certificate of incorporation. This provision makes it more
difficult for our stockholders to make changes to our bylaws that are opposed
by
our board of directors. This provision of our certificate of
incorporation may not be amended or repealed by our stockholders except with
the
consent of holders of at least two-thirds of our outstanding common
stock.
Transfer
Agent and Registrar
National
City Bank, Cleveland, Ohio, is the transfer agent and registrar for our common
stock.
13
DESCRIPTION
OF DEBT SECURITIES
We
may offer senior or subordinated unsecured debt securities, which may be
convertible. Our debt securities will be issued under one or more indentures
to
be entered into between us and a trustee qualified under the Trust Indenture
Act
of 1939.
We
have summarized certain general features of the debt securities from the
indentures. Indenture forms are attached as exhibits to the registration
statement of which this prospectus forms a part. The following description
of
the terms of the debt securities sets forth certain general terms and
provisions. The particular terms of the debt securities offered by any
prospectus supplement and the extent, if any, to which such general provisions
may apply to the debt securities, will be described in the related prospectus
supplement. Accordingly, for a description of the terms of a particular issue
of
debt securities, reference must be made to both the related prospectus
supplement and to the following description.
General
Reference
is made to the applicable prospectus supplement for the following terms of
the
debt securities (if applicable):
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title
and aggregate principal amount;
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whether
the securities will be senior or
subordinated;
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applicable
subordination provisions, if any;
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conversion
or exchange into other securities;
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percentage
or percentages of principal amount at which such securities will
be
issued;
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maturity
date(s);
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interest
rate(s) or the method for determining the interest
rate(s);
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dates
on which interest will accrue or the method for determining dates
on which
interest will accrue and dates on which interest will be
payable;
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redemption
or early repayment provisions;
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authorized
denominations;
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form;
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amount
of discount or premium, if any, with which such securities will be
issued;
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whether
such securities will be issued in whole or in part in the form of
one or
more global securities;
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identity
of the depositary for global
securities;
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whether
a temporary security is to be issued with respect to such series
and
whether any interest payable prior to the issuance of definitive
securities of the series will be credited to the account of the persons
entitled thereto;
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the
terms upon which beneficial interests in a temporary global security
may
be exchanged in whole or in part for beneficial interests in a definitive
global security or for individual definitive
securities;
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any
covenants applicable to the particular debt securities being
issued;
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any
defaults and events of default applicable to the particular debt
securities being issued;
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currency,
currencies or currency units in which the purchase price for, the
principal of and any premium and any interest on, such securities
will be
payable;
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time
period within which, the manner in which and the terms and conditions
upon
which the purchaser of the securities can select the payment
currency;
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securities
exchange(s) on which the securities will be listed, if
any;
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whether
any underwriter(s) will act as market maker(s) for the
securities;
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extent
to which a secondary market for the securities is expected to
develop;
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our
obligation or right to redeem, purchase or repay securities under
a
sinking fund, amortization or analogous
provision;
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provisions
relating to covenant defeasance and legal
defeasance;
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provisions
relating to satisfaction and discharge of the
indenture;
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provisions
relating to the modification of the indenture both with and without
the
consent of holders of debt securities issued under the indenture;
and
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additional
terms not inconsistent with the provisions of the
indenture.
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One
or more series of debt securities may be sold at a substantial discount below
their stated principal amount, bearing no interest or interest at a rate which
at the time of issuance is below market rates. One or more series of debt
securities may be variable rate debt securities that may be exchanged for fixed
rate debt securities.
United
States federal income tax consequences and special considerations, if any,
applicable to any such series will be described in the applicable prospectus
supplement.
Debt
securities may be issued where the amount of principal and/or interest payable
is determined by reference to one or more currency exchange rates, commodity
prices, equity indices or other factors. Holders of such securities may receive
a principal amount or a payment of interest that is greater than or less than
the amount of principal or interest otherwise payable on such dates, depending
upon the value of the applicable currencies, commodities, equity indices or
other factors. Information as to the methods for determining the amount of
principal or interest, if any, payable on any date, the currencies, commodities,
equity indices or other factors to which the amount payable on such date is
linked and certain additional United States federal income tax considerations
will be set forth in the applicable prospectus supplement.
The
term “debt securities” includes debt securities denominated in U.S. dollars or,
if specified in the applicable prospectus supplement, in any other freely
transferable currency or units based on or relating to foreign
currencies.
15
We
expect most debt securities to be issued in fully registered form without
coupons and in denominations of $1,000 and any integral multiples thereof.
Subject to the limitations provided in the indenture and in the prospectus
supplement, debt securities that are issued in registered form may be
transferred or exchanged at the office of the trustee identified in the
prospectus supplement, without the payment of any service charge, other than
any
tax or other governmental charge payable in connection therewith.
Global
Securities
The
debt securities of a series may be issued in whole or in part in the form of
one
or more global securities that will be deposited with, or on behalf of, a
depositary (the “depositary”) identified in the prospectus supplement. Global
securities will be issued in registered form and in either temporary or
definitive form. Unless and until it is exchanged in whole or in part for the
individual debt securities, a global security may not be transferred except
as a
whole by the depositary for such global security to a nominee of such depositary
or by a nominee of such depositary to such depositary or another nominee of
such
depositary or by such depositary or any such nominee to a successor of such
depositary or a nominee of such successor. The specific terms of the depositary
arrangement with respect to any debt securities of a series and the rights
of
and limitations upon owners of beneficial interests in a global security will
be
described in the applicable prospectus supplement.
Governing
Law
The
indentures and the debt securities shall be construed in accordance with and
governed by the laws of the State of New York.
16
SELLING
STOCKHOLDERS
This
prospectus relates to the possible resale by certain institutional investors
and
certain members of our senior management who we refer to as the "selling
stockholders" in this prospectus. Up to 21,202,332 shares of common
stock being offered by this prospectus may be offered by certain institutional
investors holding shares of our common stock that were initially offered in
private transactions in 2000 and thereafter. Up to 1,000,000 shares
of common stock being offered by this prospectus may be offered by certain
members of our senior management holding shares of our common stock that were
initially offered in private transactions in 2000 and shares of our common
stock
that were obtained upon the exercise of options to purchase our common
stock. Information about the potential selling stockholders who offer
securities under the registration statement of which this prospectus is a part
will be set forth in prospectus supplements, post-effective amendments and/or
filings we make with the Securities and Exchange Commission under the Exchange
Act that are incorporated by reference.
17
PLAN
OF DISTRIBUTION
We
may sell securities to one or more underwriters for public offering and sale
by
them and we may also sell the securities to investors directly or through
agents. We will name the underwriter or agent involved in the offer or sale
of
securities in the applicable prospectus supplement. We are also registering
the
shares of common stock covered by this prospectus for the selling
stockholders. The common stock may be sold from time to time by the
selling stockholders. Such sales may be made in the over-the-counter
market at prices and at terms then prevailing or at prices related to the
then-current market price, or in negotiated transactions. The selling
stockholders will act independently of EnerSys in making decisions with respect
to the timing, manner and size of each sale by such persons.
We
or the selling stockholders may negotiate and pay underwriters' or
broker-dealers' commissions, discounts or concessions for their services as
applicable. Underwriters or broker-dealers engaged by us or the
selling stockholders may allow other underwriters or broker-dealers to
participate in resales.
The
securities may be sold by us and the common stock may be sold by the selling
stockholders in one or more of the following types of transactions:
(a) A
sale to one or more underwriters for resale to the public or to institutional
investors in one or more transactions;
(i) If
we enter into a material arrangement with an underwriter or a selling
stockholder notifies us of any material arrangement that it has entered into
with an underwriter(s), we will execute an underwriting agreement with such
underwriter(s) and file a supplemental prospectus, if required, pursuant to
Rule
424(b) under the Securities Act of 1933. In that supplemental
prospectus, we will disclose the name of each such underwriter, the type of
securities to be sold, the amount of securities to be sold, the price at which
such securities were sold, the commissions paid or discounts or concessions
allowed to such underwriter(s), where applicable, and any other facts material
to the transaction.
(ii) The
selling stockholders and any underwriters involved in the sale or resale of
the
common stock may qualify as "underwriters" within the meaning of Section
2(a)(11) of the Securities Act. In addition, the underwriters'
commissions, discounts or concessions may qualify as underwriters' compensation
under the Securities Act. If a selling stockholder qualifies as an
"underwriter," it will be subject to the prospectus delivery requirements of
Section 5(b)(2) of the Securities Act.
(b) A
block trade in which we or a selling stockholder will engage a broker-dealer
as
agent, who will then attempt to sell the securities or common stock, as
applicable, or position and resell a portion of the block, as principal, in
order to facilitate the transaction;
(c) Derivative
transactions with third parties;
(i) If
the applicable prospectus supplement indicates, in connection with those
derivatives, the third parties may sell securities covered by this prospectus
and the applicable prospectus supplement, including in short sale
transactions. If so, the third party may use securities pledged by us
or the selling stockholder or borrowed from us, the selling stockholder or
others to settle those sales or to close out any related open borrowings of
securities, and may use securities received from us or selling
stockholder
18
in
settlement of those derivatives to close out any related open borrowings of
securities. The third party in such sale transactions will be an
underwriter and, if not identified in this prospectus, will be identified in
the
applicable prospectus supplement (or a post-effective amendment).
(d) Other
hedging transactions, whereby we or the selling stockholder may:
(i) enter
into transactions with a broker-dealer or affiliate thereof in connection with
which such broker-dealer or affiliate will engage in short sales of the
securities pursuant to this prospectus, in which case such broker-dealer of
affiliate may use securities received from the us or selling stockholders to
close out its short positions;
(ii) sell
securities short itself and redeliver such securities to close out its short
positions;
(iii) enter
into option or other types of transactions that require us or the selling
stockholder, as applicable, to deliver securities to a broker-dealer or an
affiliate thereof, who will then resell or transfer the securities under this
prospectus; or
(iv) loan
or pledge the securities to a broker-dealer or an affiliate thereof, who may
sell the loaned securities or, in an event of default in the case of a pledge,
sell the pledged securities pursuant to this prospectus; or
(e) Sales
to third parties who may deliver the securities upon exchange of exchangeable
securities issued by such third parties or their affiliates, which in either
case may deliver this prospectus in connection with the sale of those
exchangeable securities. Such transactions may be combined with other
transactions of the types described above. In particular, such third
parties or their affiliates may engage in sales of securities (including short
sales) to hedge their position prior to the exchange of their exchangeable
securities, may deliver this prospectus in connection with some or all of those
sales and may deliver securities covered by this prospectus to close out any
short positions created in connection with those sales.
In
addition to selling its common stock under this prospectus, a selling
stockholder may:
(a) agree
to indemnify any underwriter or broker-dealer against certain liabilities
related to the selling of the common stock, including liabilities arising under
the Securities Act;
(b) transfer
its common stock in other ways not involving market maker or established trading
markets, including directly by gift, distribution, or other
transfer;
(c) sell
its common stock under Rule 144 of the Securities Act rather than under this
prospectus, if the transaction meets the requirements of Rule 144;
or
(d) sell
its common stock by any other legally available means.
For
any particular offering pursuant to this shelf registration
statement:
(a) an
underwriter may allow, and dealers may reallow, concessions on sales to certain
other dealers;
19
(b) we
and the selling stockholders may agree to indemnify an underwriter against
certain liabilities, including liabilities under the Securities Act, or to
contribute to payments an underwriter may be required to make in connection
with
these liabilities; and
(c) we,
our executive officers, our directors and the selling stockholders may agree,
subject to certain exceptions, that for a certain period from the date of the
prospectus supplement under which the securities are offered, we and they will
not, without the prior written consent of an underwriter, offer, sell, contract
to sell, pledge or otherwise dispose of any shares of our common stock or any
securities convertible into or exchangeable for our common
stock. However, an underwriter, in its sole discretion, may release
any of the securities subject to these lock-up agreements at any time without
notice. We expect an underwriter to exclude from these lock-up
agreements, securities exercised and/or sold pursuant to 10b5-1 pre-set selling
programs that are in place at the time of an offering made pursuant to this
prospectus and any prospectus supplement hereto.
In
connection with any particular offering pursuant to this shelf registration
statement, an underwriter may engage in stabilizing transactions, short sales,
syndicate covering transactions and penalty bids.
Stabilizing
transactions permit bids to purchase the underlying security so long as the
stabilizing bids do not exceed a specified maximum price.
Short
selling involves sales by an underwriter of securities in excess of the number
of securities an underwriter is obligated to purchase. The short
position may be either a covered short position or a naked short
position. In a covered short position, the number of securities sold
by an underwriter is not greater than the number of securities that it may
purchase in its option to purchase additional securities. In a naked
short position, the number of securities involved is greater than the number
of
securities in its option to purchase additional securities. An
underwriter may close out any short position by either exercising its option
to
purchase additional securities and/or purchasing securities in the open
market.
Syndicate
covering transactions involve purchases of securities in the open market after
the distribution has been completed in order to cover syndicate short
positions. In determining the source of securities to close out the
short position, an underwriter will consider, among other things, the price
of
securities available for purchase in the open market as compared to the price
at
which they may purchase securities through its option to purchase additional
securities. If an underwriter sells more securities than could be
covered by its option to purchase additional securities, a naked short position,
the position can only be closed out by buying securities in the open
market. A naked short position is more likely to be created if an
underwriter is concerned that there could be downward pressure on the price
of
the securities in the open market after pricing that could adversely affect
investors who purchase in the offering.
Penalty
bids permit representatives to reclaim a selling concession from a syndicate
member when the securities originally sold by the syndicate member is purchased
in a stabilizing or syndicate covering transaction to cover syndicate short
positions.
These
stabilizing transactions, syndicate covering transactions and penalty bids
may
have the effect of raising or maintaining the market price of our securities
or
preventing or retarding a decline in the market price of the
securities. As a result, the price of our securities may be higher
than the price that might otherwise exist in the open market. These
transactions may be effected on the New York Stock Exchange, if the securities
are listed on that exchange, or otherwise and, if commenced, may be discontinued
at any time.
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A
prospectus in electronic format may be made available on the websites maintained
by an underwriter, or selling group member, if any, participating in any
particular offering and an underwriter participating in any particular offering
may distribute prospectuses electronically. Any representatives may
agree to allocate a number of securities to an underwriter and selling group
members for sale to their online brokerage account holders. Internet
distributions will be allocated by an underwriter and selling group members
that
will make internet distributions on the same bases as other
allocations.
Any
selling stockholder who is a "broker dealer" will be deemed to be an
"underwriter" within the meaning of Section 2(11) of the Securities Act, unless
such selling stockholder purchased its shares in the ordinary course of
business, and at the time of its purchase of the shares to be resold, did not
have any view to or arrangements or understandings, directly or indirectly,
with
any person to distribute the shares.
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WHERE
YOU CAN FIND MORE INFORMATION
We
file reports, proxy statements, and other information with the Securities and
Exchange Commission. These reports, proxy statements, and other
information can be read and copied at the SEC's public reference room at 100
F
Street, N.E., Washington, D.C. 20549. Please call the Securities and
Exchange Commission at 1-800-SEC-0330 for further information on the public
reference room. The Securities and Exchange Commission maintains an
internet website at http://www.sec.gov that contains reports, proxy and
information statements and other information regarding companies that file
electronically with the SEC, including EnerSys. These reports, proxy
statements and other information can also be read at the offices of the New
York
Stock Exchange, 20 Broad Street, New York, New York 10005 or on our website
at
www.enersys.com. Information on our website is not incorporated into
this prospectus or our other Securities and Exchange Commission filings and
is
not a part of this prospectus or those filings.
This
prospectus is part of a registration statement filed by us with the
SEC. The full registration statement can be obtained from the
Securities and Exchange Commission as indicated above, or from us.
The
Securities and Exchange Commission allows us to "incorporate by reference"
the
information we file with the SEC. This permits us to disclose
important information to you by referencing these filed
documents. Any information referenced this way is considered part of
this prospectus, and any information filed with the Securities and Exchange
Commission subsequent to this prospectus and prior to the termination of the
particular offering referred to in such prospectus supplement will automatically
be deemed to update and supersede this information. We incorporate by
reference the following documents which have been filed with the
SEC:
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Annual
Report on Form 10-K for the fiscal year ended March 31, 2007 (filed
on
June 13, 2007);
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Quarterly
Report on Form 10-Q for the fiscal quarter ended July 1, 2007 (filed
August 8, 2007);
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Current
Reports on Form 8-K filed August 31, 2007, August 8, 2007, August
7, 2007
(other than exhibit 99.1 under item 9.01, which is furnished and
not
incorporated herein by reference), August 2, 2007, July 20, 2007,
July 6,
2007, and June 29, 2007;
|
|
·
|
Definitive
Proxy Statement on Schedule 14A filed on June 18, 2007;
and
|
|
·
|
Registration
Statements on Form 8-A dated July 26,
2004.
|
We
incorporate by reference the documents listed above and any future filings
made
with the Securities and Exchange Commission in accordance with Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, with the exception
of
any documents deemed not to be filed and any documents filed pursuant to Item
402(a)(8) of Regulation S-K under the Securities Act.
We
will provide without charge upon written or oral request to each person,
including any beneficial owner, to whom a prospectus is delivered, a copy of
any
or all of the documents which are incorporated by reference to this prospectus
(other than exhibits unless such exhibits are specifically incorporated by
reference in such documents). Requests should be directed to Investor
Relations, EnerSys, 2366 Bernville Road, Reading, Pennsylvania 19605, or by
calling EnerSys Investor Relations directly at (610) 236-4040.
22
LEGAL
MATTERS
Unless
otherwise specified in a prospectus supplement accompanying this prospectus,
Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York, will provide
opinions regarding the authorization and validity of the
securities. Skadden, Arps, Slate, Meagher & Flom LLP may also
provide opinions regarding certain other matters. Any underwriters will also
be
advised about legal matters by their own counsel, which will be named in the
prospectus supplement.
23
EXPERTS
The
consolidated financial statements of EnerSys appearing in EnerSys' Annual Report
(Form 10-K) for the year ended March 31, 2007 (including the schedule appearing
therein), and EnerSys management’s assessment of the effectiveness of internal
control over financial reporting as of March 31, 2007 included therein, have
been audited by Ernst & Young LLP, independent registered public accounting
firm, as set forth in their reports thereon, included therein, and incorporated
herein by reference. Such consolidated financial statements and management’s
assessment are incorporated herein by reference in reliance upon such reports
given on the authority of such firm as experts in accounting and
auditing.
24
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of
Issuance and Distribution.
The
following table sets forth the costs and expenses payable by us in connection
with the securities being registered, other than underwriting discounts and
commissions in connection with any offering of the securities. Underwriting
discounts and commissions in connection with the offering of common stock by
the
selling stockholders will be payable by the selling stockholders in all
cases. The selling stockholders will not bear any portion of the
below expenses. All the amounts shown are estimates, except the
Securities and Exchange Commission registration fee.
|
Securities
and Exchange Commission Registration Fee
|
$ 14,343
|
||
|
Transfer
Agents Fees and Expenses
|
5,000
|
||
|
Printing
and Engraving Fees and Expenses
|
150,000
|
||
|
Accounting
Fees and Expenses
|
200,000
|
||
|
Legal
Fees
|
500,000
|
||
|
Miscellaneous
|
100,000
|
||
|
Total
|
$ 969,343
|
Item
15. Indemnification
of Directors and Officers.
Section
145 of the Delaware General Corporation Law generally provides that all
directors and officers (as well as other employees and individuals) may be
indemnified against expenses (including attorneys' fees), judgments, fines
and
amounts paid in settlement actually and reasonably incurred in connection with
certain specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the
corporation—a "derivative action"), if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar
standard of care is applicable in the case of derivative actions, except that
indemnification extends only to expenses (including attorneys' fees) actually
and reasonably incurred in connection with defense or settlement of an action
and the Delaware General Corporation Law requires court approval before there
can be any indemnification where the person seeking indemnification has been
found liable to the corporation. Section 145 of the Delaware General
Corporation Law also provides that the rights conferred thereby are not
exclusive of any other right which any person may be entitled to under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
and permits a corporation to advance expenses to or on behalf of a person to
be
indemnified upon receipt of an undertaking to repay the amounts advanced if
it
is determined that the person is not entitled to be indemnified.
We
have included in our certificate of incorporation and bylaws provisions to
(a)
eliminate the personal liability of our directors for monetary damages resulting
from breaches of their fiduciary duty (provided that such provision does not
eliminate liability for breaches of the duty of loyalty, acts or omissions
not
in good faith or which involve intentional misconduct or a knowing violation
of
law, violations under Section 174 of the Delaware General Corporation Law or
for
any transaction from which the director derived an improper personal benefit)
and (b) indemnify our directors and officers to the
II-1
fullest
extent permitted by Section 145 of the Delaware General Corporation Law,
including circumstances in which indemnification is otherwise
discretionary.
Acting
pursuant to the provisions of our certificate of incorporation and bylaws and
the provisions of Section 145 of the Delaware General Corporation Law, we have
entered into agreements with each of our officers and directors to indemnify
them to the fullest extent permitted by such provisions and such
law. We are also expressly authorized to carry directors' and
officers' insurance providing indemnification for our directors, officers and
certain employees for some liabilities. We believe that these
indemnification provisions and insurance are useful to attract and retain
qualified directors and executive officers.
Item
16. List of
Exhibits.
The
Exhibits to this registration statement are listed in the Index to Exhibits
on
page II-7.
Item
17. Undertakings.
(a) The
undersigned
registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act
of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. 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 percent 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 (a)(1)(i), (a)(1)(ii) and (a)(1)(iii)
of this
section do not apply if the registration statement is on Form S-3 or Form
F-3
and the information required to be included in a post-effective amendment
by
those paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of
the
Securities Exchange Act of 1934, as amended, that are incorporated by reference
in the registration statement, or is contained in a form of prospectus
filed
pursuant to Rule 424(b) that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of
1933,
each such post-effective amendment shall be deemed to be a new registration
statement
II-2
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.
(4) That,
for the purpose of determining liability under the Securities Act of 1933
to any
purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed
to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement
as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter,
such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall
be
deemed to be the initial bona fide offering thereof. Provided, however, that
no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of
the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made
in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(5) The
undersigned registrant undertakes that in a primary offering of securities
of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if
the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating
to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of
the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
II-3
(b) The
undersigned
registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrant's annual report,
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as
amended, (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934,
as amended) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) The
undersigned
registrant hereby undertakes that:
1.
For purposes of determining any liability under the Securities Act of 1933,
the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
2.
For the purpose of determining any liability under the Securities Act of 1933,
each post-effective amendment that contains a form of prospectus 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.
(d) The
undersigned
registrant hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act ("Act") in accordance with the rules
and
regulations prescribed by the Commission under Section 305(b)(2) of the
Act.
Insofar
as indemnification for
liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of each Registrant pursuant to
the
foregoing provisions, or otherwise, each Registrant has been advised that in
the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by a Registrant of expenses incurred
or
paid by a director, officer or controlling person of a 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, that Registrant will, unless in the opinion of its counsel the
claim
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
II-4
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, 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
Reading, Commonwealth of Pennsylvania, on October 30, 2007.
|
ENERSYS
|
|
|
By: /s/ JOHN
D. CRAIG
|
|
|
Name:
John D. Craig
|
|
|
Title:
Chairman, President, Chief Executive Officer and
Director
|
KNOWN
ALL MEN BY THESE PRESENTS that each person whose signature to this registration
statement appears below hereby constitutes and appoints each of Frank M.
Macerato, Michael T. Philion and Richard W. Zuidema as such person's true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for such person and in such person's name, place and stead,
in
any and all capacities, to sign any and all amendments to the registration
statement, including post-effective amendments, and registration statements
filed pursuant to Rule 462 under the Securities Act of 1933, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, and does hereby grant unto each
said attorney-in-fact and agent full power and authority to do and perform
each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as such person might or could
do
in person, hereby ratifying and confirming all that each said attorney-in-fact
and agents or any of them, or their substitutes, may lawfully do or cause to
be
done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities indicated on October
30, 2007.
|
Signature
|
Title
|
|
|
/s/ JOHN
D. CRAIG
|
Chairman,
President, Chief Executive Officer and
|
|
|
John
D. Craig
|
Director
(Principal Executive Officer)
|
|
|
/s/ MICHAEL
T. PHILION
|
Executive
Vice President—Finance and Chief
|
|
|
Michael
T. Philion
|
Financial
Officer (Principal Financial Officer)
|
|
|
/s/ MICHAEL
J. SCHMIDTLEIN
|
Vice
President and Corporate Controller
|
|
|
Michael
J. Schmidtlein
|
(Principal
Accounting Officer)
|
|
|
/s/ HWAN-YOON
CHUNG
|
Director
|
|
|
Hwan-yoon
Chung
|
||
|
/s/ KENNETH
F. CLIFFORD
|
Director
|
|
|
Kenneth
F. Clifford
|
||
|
/s/ HOWARD
I. HOFFEN
|
Director
|
|
|
Howard
I. Hoffen
|
||
|
/s/ MICHAEL
C. HOFFMAN
|
Director | |
|
Michael
C. Hoffman
|
|
II-5
|
/s/ ARTHUR
T. KATSAROS
|
Director
|
|
|
Arthur
T. Katsaros
|
||
|
/s/ JOHN
F. LEHMAN
|
Director
|
|
|
John
F. Lehman
|
||
|
/s/ RAYMOND
E. MABUS, JR.
|
Director
|
|
|
Raymond
E. Mabus, Jr.
|
||
|
/s/ DENNIS
S. MARLO
|
Director
|
|
|
Dennis
S. Marlo
|
II-6
EXHIBIT
INDEX
|
Exhibit
No.
|
Description
of Exhibits
|
|
1.1
|
Form
of Underwriting Agreement to be filed as an exhibit to a Current
Report on
Form 8-K or other applicable periodic report of EnerSys to be incorporated
by reference herein, if applicable.
|
|
3.1
|
Fifth
Restated Certificate of Incorporation (incorporated by reference
to
Exhibit 3.1 to Amendment No. 3 to EnerSys’ Registration Statement on Form
S-1 (File No. 333-115553) filed on July 13, 2004).
|
|
3.2
|
Bylaws
(incorporated by reference to Exhibit 3.2 to Amendment No. 3 to EnerSys’
Registration Statement on Form S-1 (File No. 333-115553) filed on
July 13,
2004).
|
|
4.1
|
2004
Securityholder Agreement (incorporated by reference to Exhibit 4.2
to
Amendment No. 4 to EnerSys’ Registration Statement on Form S-1 (File No.
333-115553) filed on July 26, 2004).
|
|
4.2
|
Form
of Senior Indenture (to be filed by amendment).
|
|
4.3
|
Form
of Subordinated Indenture (to be filed by amendment).
|
|
4.4
|
Form
of Senior Note (to be included in Exhibit 4.2).
|
|
4.5
|
Form
of Subordinated Note (to be included in Exhibit 4.3).
|
|
5.1
|
Opinion
of Skadden, Arps, Slate, Meagher & Flom LLP (to be filed by
amendment).
|
|
12.1
|
Statement
of Computation of Ratios of Earnings to Fixed Charges (filed
herewith).
|
|
23.1
|
Consent
of Ernst & Young LLP, Independent Registered Public Accounting Firm
(filed herewith).
|
|
23.2
|
Consent
of Skadden, Arps, Slate, Meagher & Flom LLP (to be included in Exhibit
5.1).
|
|
24.1
|
Power
of Attorney of certain officers and directors of the Company (included
in
the signature pages hereto).
|
|
25.1
|
Form
T-1 Statement of Eligibility under the Trust Indenture (to be filed
by
amendment).
|
II-7