ens_s-3a.htm
As
filed with the Securities and Exchange Commission on November 21,
2007
Registration
No. 333-147029
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
AMENDMENT
NO. 1 TO 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
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(State
or other jurisdiction of incorporation or organization)
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(Primary
Standard Industrial Classification Code Number)
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(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:
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Stacy
J. Kanter, Esq.
Skadden,
Arps, Slate, Meagher & Flom LLP
Four
Times Square
New
York, New York 10036-6522
(212)
735-3000
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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
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.
EXPLANATORY
NOTE
EnerSys
is filing this Amendment No. 1 to the Registration Statement on Form S-3 (File
No. 333-147029) solely for the purpose of filing certain Exhibits thereto as
indicated on the exhibit list, and no changes or additions are being made hereby
to the prospectus that forms a part of the Registration Statement. Accordingly,
the prospectus is being omitted from this filing.
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.
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Securities
and Exchange Commission Registration Fee
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$ 14,343
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Transfer
Agents Fees and Expenses
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5,000
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Printing
and Engraving Fees and Expenses
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150,000
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Accounting
Fees and Expenses
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200,000
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Legal
Fees
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500,000
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Miscellaneous
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100,000
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Total
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$ 969,343
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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 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 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.
(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.
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 Amendment No. 1 to the Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Reading, Commonwealth of Pennsylvania, on
November 21, 2007.
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ENERSYS
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By:
/s/ JOHN D. CRAIG
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Name:
John D. Craig
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Title:
Chairman, President, Chief Executive Officer and Director
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Pursuant
to the requirements of the Securities Act of 1933, this Amendment No. 1 to
the
Registration Statement has been signed by the following persons in the
capacities indicated on November 21, 2007.
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Signature
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Title
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/s/ JOHN
D.
CRAIG
John
D. Craig
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Chairman,
President, Chief Executive Officer and
Director
(Principal Executive Officer)
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/s/ MICHAEL
T.
PHILION
Michael
T. Philion
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Executive
Vice President—Finance and Chief
Financial
Officer (Principal Financial Officer)
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/s/ MICHAEL
J.
SCHMIDTLEIN
Michael
J. Schmidtlein
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Vice
President and Corporate Controller (Principal
Accounting
Officer)
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*
Hwan-yoon
Chung
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Director
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*
Kenneth
F. Clifford
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Director
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*
Howard
I. Hoffen
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Director
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*
Michael
C. Hoffman
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Director
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*
Arthur
T. Katsaros
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Director
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*
John
F. Lehman
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Director
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*
Raymond
E. Mabus, Jr.
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Director
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*
Dennis
S. Marlo
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Director
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| * |
Richard
W. Zuidema, by signing his name hereto, does hereby sign
this Amendment No. 1 to theRegistration Statement on behalf of the
directors of the registrant above whose name asterisksappear, pursuant
to
powers of attorney duly executed by such directors and filed with
the
SEC.
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By:
/s/ RICHARD W.
ZUIDEMA
Richard
W. Zuidema
Attorney-in-fact
EXHIBIT
INDEX
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Exhibit
No.
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Description
of Exhibits
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1.1
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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).
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3.1
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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).
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3.2
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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).
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4.1
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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).
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4.2
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Form
of Indenture (filed herewith).
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4.3
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Form
of Debt Securities (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).
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5.1
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Opinion
of Skadden, Arps, Slate, Meagher & Flom LLP (filed
herewith).
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12.1
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Statement
of Computation of Ratios of Earnings to Fixed Charges (previously
filed).
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23.1
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Consent
of Ernst & Young LLP, Independent Registered Public Accounting Firm
(previously filed).
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23.2
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Consent
of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit
5.1).
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24.1
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Power
of Attorney of certain officers and directors of the Company (incorporated
by reference to Exhibit 24.1 to EnerSys’ Registration Statement on Form
S-3 (File No. 333-147029) filed on October 30, 2007).
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25.1
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Form
T-1 Statement of Eligibility under the Trust Indenture (filed
herewith).
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II-7