-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UYsKuxma0TOKpwRgl0gy4ZMlh9ZkJk9tftyQzq0OHQKPCP/xq2Q+33Zu7pL5Gtj0 jFY1oEtfNDxlm4os+SohDA== 0000950144-04-004895.txt : 20040506 0000950144-04-004895.hdr.sgml : 20040506 20040505184139 ACCESSION NUMBER: 0000950144-04-004895 CONFORMED SUBMISSION TYPE: 8-A12G PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20040506 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EXIDE TECHNOLOGIES CENTRAL INDEX KEY: 0000813781 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS ELECTRICAL MACHINERY, EQUIPMENT & SUPPLIES [3690] IRS NUMBER: 230552730 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-A12G SEC ACT: 1934 Act SEC FILE NUMBER: 000-50745 FILM NUMBER: 04782892 BUSINESS ADDRESS: STREET 1: 210 CARNEGIE CENTER STREET 2: SUITE 500 CITY: PRINCETON STATE: NJ ZIP: 08540 BUSINESS PHONE: 6096277200 FORMER COMPANY: FORMER CONFORMED NAME: EXIDE CORP DATE OF NAME CHANGE: 19920703 8-A12G 1 g88857e8va12g.htm EXIDE TECHNOLOGIES EXIDE TECHNOLOGIES
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SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM 8-A

For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or 12(g) of the
Securities Exchange Act

Exide Technologies

(Exact name of registrant as specified in its charter)
     
Delaware   23-0552730
  		 
 
(State or other jurisdiction of incorporation)   (IRS Employer Identification No.)
     
Crossroads Corporate Center
3150 Brunswick Pike
Suite 230
Lawrenceville, New Jersey 		     08648
  		 
 
(Address of principal executive offices)   (Zip Code)
     
If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to:
  If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to:
General Instruction A.(c), please check the following box. o
  General Instruction A.(d), please check the following box x
     
Securities Act registration statement file number to which this form relates:
  N/A
  (the securities will be issued pursuant to Section 1145 of the United States Bankruptcy Code)

Securities to be registered pursuant to Section 12(b) of the Act:

     
Title of Each Class
to be so Registered 		  Name of Each Exchange on which
Each Class is to be Registered
  		 
 
N/A   N/A
  		 
 
     
  		 
 

Securities to be registered pursuant to Section 12(g) of the Act:

Common Stock, par value $0.01 per share
Warrants to subscribe for Common Stock

(Title of Class)

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SIGNATURES
EX-1 AMENDED & RESTATED CERTIFICATE OF INCORP
EX-2 AMENDED & RESTATED BYLAWS OF THE COMPANY
EX-3 WARRANT AGREEMENT

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Item 1.  Description of Registrant’s Securities to be Registered.

     This registration statement registers under Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the following securities of Exide Technologies, a Delaware corporation (the “Company”), being issued pursuant to the Joint Plan of Reorganization of the Official Committee of Unsecured Creditors and the Debtors, as amended or supplemented from time to time (the “Plan”), and following the filing with the State of Delaware of the Company’s Amended and Restated Certificate of Incorporation (the “Certificate”):

•   Common Stock, par value $0.01 per share (“Common Stock”), which replaces the Company’s prior common stock registered under Section 12(g) of the Exchange Act; and
 
•   Warrants to subscribe for shares of Common Stock (“Warrants”).

     The description that follows is qualified in its entirety by the full terms of the Common Stock and Warrants as set forth in the Exhibits hereto, which are incorporated by reference into this Item 1.

Description of Common Stock

Dividends. Except as otherwise provided by the Delaware General Corporation Law or the Certificate, holders of Common Stock shall be entitled to receive dividends and distributions (whether payable in cash or otherwise) as may be declared by the Board of Directors of the Company from time to time out of assets or funds of the Company legally available therefor.

Voting. Except as otherwise required by law, each holder of Common Stock shall be entitled to one vote for each share thereof held by such holder. Holders of Common Stock may not engage in cumulative voting. The stockholders of the Company may not take any action by written consent in lieu of a meeting and must take any action at a duly called annual or special meeting of stockholders.

     Generally, all action taken by the holders of a majority of the vote cast, excluding abstentions, at any meeting at which a quorum is present shall be valid and binding upon the Company.

Preemptive Rights. No holder of Common Stock is entitled to subscribe for or purchase any part of any new or additional issue of stock of any class or series.

Board of Directors; Classification of Directors. Directors are elected by a plurality of the votes of the shares entitled to vote in the election of directors present in person or represented by proxy at the meeting of the stockholders at which directors are elected.

     The directors of the Company are divided into three classes as nearly equal in size as possible, designated Class I, Class II and Class III. The term of office of the initial Class I directors expires at the first annual meeting of stockholders to be held in 2005, and Class I directors elected thereat shall be elected for a full term of three years. The term of office of the initial Class II directors expires at the second annual meeting of stockholders to be held in 2006, and Class II directors elected thereat shall be elected for a full term of three years. The term of office of the initial Class III directors expires at the third annual meeting of stockholders to be held in 2007, and Class III directors elected thereat shall be elected for a full term of three years. At each succeeding annual meeting of stockholders, directors shall be elected for a full term of three years to succeed the directors of the class whose term expires at such annual meeting.

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Other. In the event of any liquidation, dissolution or winding-up of the Company (whether voluntary or involuntary), the assets of the Company available for distribution to common stockholders shall be distributed in equal amounts per share to the holders of Common Stock.

     Shares of Common Stock are not subject to calls or assessments. No personal liability will attach to holders under the laws of the State of Delaware.

     The Company is subject to Section 203 of the Delaware General Corporation Law. In addition, pursuant to the terms of the Certificate, any transaction between the Company and an “interested stockholder,” as such term is defined in Section 203 of the Delaware General Corporation Law, must be approved by a majority of the Board of Directors of the Company. See the Certificate for additional restrictions relating to affiliate transactions.

Description of Warrants

Term. The Warrants will expire seven years after the Company’s emergence from Chapter 11.

Exercise Price. The exercise price of the Warrants will initially be set at a price equal to $32.11. In addition, the exercise price will be adjusted pursuant to the anti-dilution provisions summarized below.

Anti-dilution. If, at any time before the expiration date of the Warrants, the Company (i) pays a dividend or makes a distribution on its Common Stock in shares of Common Stock, (ii) subdivides or combines its outstanding shares of Common Stock or (iii) reclassifies its Common Stock into other securities, the number of shares issuable on exercise of each Warrant and each Warrant’s exercise price will be adjusted so that the holders of Warrants are entitled to receive the number and kind of shares of Common Stock or other securities that they would have received if their Warrants had been exercised immediately before the event (or, if applicable, the event’s record date).

     In addition, if the Company issues or sells any Common Stock (other than “Excluded Stock,” as defined in the Warrant Agreement between the Company and American Stock Transfer & Trust Company, dated as of May 5, 2004 (the “Warrant Agreement”)) without consideration or for consideration per share less than the “Market Price” (as defined in the Warrant Agreement) of the Common Stock as of the day of such issuance or sale, the exercise price in effect immediately prior to each such issuance will be reduced and the number of shares issuable on exercise of each Warrant will be increased as determined in accordance with the Warrant Agreement.

     Finally, if the Company at any time or from time to time distributes to all holders of Common Stock (including any such distribution made to the stockholders of the Company in connection with a consolidation or merger in which the Company is the continuing corporation) evidences of its indebtedness, cash or assets (other than distributions and dividends payable in shares of Common Stock or cash dividends or distributions paid out of retained earnings or surplus legally available for such dividends or distributions), the Warrants’ exercise price will be decreased to reflect the value of the distribution in accordance with the Warrant Agreement.

     No adjustment in the number of shares purchasable shall be required unless such adjustment would require an increase or decrease of at least 1.0% in the number of shares purchasable upon the exercise of each Warrant. See the Warrant Agreement for further information on the calculation of the adjusted exercise price and the number of shares issuable on exercise of each Warrant.

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Event Protection. For a period of three years following the effective date of the Plan and subject to certain other conditions, in the event of a sale, lease, transfer or other disposition of all or substantially all of the assets of the Company or a consolidation, merger or other business combination in which the Company is not the surviving entity (each such event, an “Organic Change”), a buyer or surviving entity shall pay holders of the Warrants (in exchange for such Warrants) the cash equivalent to a Black-Scholes valuation (using a 40% volatility and the remaining life of the Warrants, such valuation subject to a 50% reduction in the third year following the effective date of the Plan) of such Warrants as of the date such transaction is consummated (the “Black-Scholes Amount”). In certain circumstances, the buyer or surviving entity may elect, in lieu of paying the Black-Scholes Amount, to give the holders of Warrants rights to acquire and receive upon exercise of such Warrants such shares of stock, securities or other property issuable or payable as part of the Organic Change as they would have been entitled to receive upon exercise of such Warrants had such Warrants been exercised immediately before such Organic Change, provided that if a portion of the consideration paid by such buyer or surviving entity in connection with the Organic Change is cash, the amount of cash to which the holders of the Warrants will be entitled to receive upon exercise shall be a portion of the Black-Scholes Amount. See the Warrant Agreement for further information on the calculation of the Black-Scholes Amount.

Item 2. Exhibits.

     
Number
   Description
1.
  Amended and Restated Certificate of Incorporation of the Company.
2.
  Amended and Restated Bylaws of the Company.
3.
  Warrant Agreement, between the Company and American Stock Transfer & Trust Company, dated as of May 5, 2004.

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SIGNATURES

     Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized.

     
Dated: May 6, 2004   EXIDE TECHNOLOGIES
(Registrant)
     
    By: /s/ Stuart H. Kupinsky
Name: Stuart H. Kupinsky
Title: Executive Vice President, General Counsel and Secretary

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EX-1 2 g88857exv1.txt EX-1 AMENDED & RESTATED CERTIFICATE OF INCORP EXHIBIT 1 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF EXIDE TECHNOLOGIES 1. The present name of the corporation is Exide Technologies. The corporation was incorporated under the name "ESB Incorporated" by the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware on November 23, 1966. This Amended and Restated Certificate of Incorporation of the corporation, which both restates and further amends the provisions of the corporation's Amended and Restated Certificate of Incorporation, was duly adopted in accordance with the provisions of Sections 242, 245 and 303 of the General Corporation Law of the State of Delaware, pursuant to the authority granted to the corporation under Section 303 of the General Corporation Law of the State of Delaware to put into effect and carry out the Joint Plan of Reorganization of the corporation dated as of March 11, 2004 under chapter 11 of title 11 of the United States Code, as confirmed on April 21, 2004 by order (the "Order") of the United States Bankruptcy Court for the District of Delaware (Case No. 02-11125 (KJC)). Provision for the making of this Amended and Restated Certificate of Incorporation is contained in the Order. 2. The Certificate of Incorporation of the corporation is hereby amended and restated to read in its entirety as follows: ARTICLE I Name The name of the corporation is Exide Technologies (the "Corporation"). ARTICLE II Registered Office and Registered Agent The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801. The name of the registered agent of the Corporation at such address is The Corporation Trust Company. ARTICLE III Corporate Purpose The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the "General Corporation Law"). ARTICLE IV Capital Stock Section 1. Shares, Classes and Series Authorized. The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 62,500,000 shares, of which 61,500,000 shares shall be Common Stock of the par value of $0.01 per share (hereinafter called "Common Stock") and 1,000,000 shares shall be Preferred Stock of the par value of $0.01 per share (hereinafter called "Preferred Stock"). Section 2. Description of Capital Stock. The following is a description of each of the classes of capital stock that the Corporation has authority to issue with the designations, preferences, voting powers and participating, optional or other special rights and the qualifications, limitations or restrictions thereof: A. Rights and Restrictions of Preferred Stock. Authority is hereby expressly vested in the Board of Directors of the Corporation (the "Board"), subject to the provisions of this Article IV and to the limitations prescribed by law, without stockholder action, to authorize the issue from time to time of one or more series of Preferred Stock and with respect to each such series to fix by resolution or resolutions providing for the issue of such series, the number of shares thereof and the voting powers, full or limited, if any, of the shares of such series and the designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions, of the shares of such series. The authority of the Board with respect to each series shall include, but not be limited to, the determination or fixing of the following: (a) The designation of such series. (b) The dividend rate of such series, the conditions and dates upon which such dividends shall be payable, the relation that such dividends shall bear to the dividends payable on any other class or classes or series of the Corporation's capital stock, and whether such dividends shall be cumulative or non-cumulative. (c) Whether the shares of such series shall be subject to redemption for cash, property or rights, including securities of the Corporation or of any other corporation, by the Corporation at the option of either the Corporation or the holder or both or upon the happening of a specified event, and, if made subject to any such redemption, the times or events, prices and other terms and conditions of such redemption. (d) The terms and amount of any sinking fund provided for the purchase or redemption of the shares of such series. (e) Whether or not the shares of such series shall be convertible into, or exchangeable for, at the option of either the holder or the Corporation or upon the happening of a specified event, shares of any other class or classes or of any other series of the same or any other class or classes of the Corporation's capital stock, and, if provision be made for conversion or exchange, the times or events, prices, rates, adjustments and other terms and conditions of such conversions or exchanges. 2 (f) The restrictions, if any, on the issue or reissue of any additional Preferred Stock. (g) The rights of the holders of the shares of such series upon the voluntary or involuntary liquidation, dissolution or winding up of the Corporation. (h) The provisions as to voting (which may be one or more votes per share or a fraction of a vote per share), optional and/or other special rights and preferences, if any. B. Rights and Restrictions of Common Stock. The powers, preferences, rights, qualifications, limitations or restrictions thereof in respect to the Common Stock are as follows: (a) The Common Stock is subject to all the powers, rights, privileges, preferences and priorities of the Preferred Stock as set forth herein or in any resolution or resolutions adopted by the Board pursuant to authority expressly vested in it by the provisions of Section 2 of this Article IV. (b) Each holder of Common Stock shall be entitled to one vote for each share thereof held by such holder, except as otherwise required by law. The ability of the stockholders to engage in cumulative voting is hereby specifically denied. (c) Subject to the rights of the holders of any series of Preferred Stock, holders of Common Stock shall be entitled to receive such dividends and distributions (whether payable in cash or otherwise) as may be declared on the shares of Common Stock by the Board from time to time out of assets or funds of the Corporation legally available therefor. (d) Subject to the rights of the holders of any series of Preferred Stock, in the event of any liquidation, dissolution or winding-up of the Corporation (whether voluntary or involuntary), the assets of the Corporation available for distribution to stockholders shall be distributed in equal amounts per share to the holders of Common Stock. C. Increase or Decrease In Amount of Authorized Shares. The number of authorized shares of any class or classes of capital stock of the Corporation may be increased or decreased by an amendment to this Amended and Restated Certificate of Incorporation authorized by the affirmative vote of the holders of a majority of the shares of the Common Stock outstanding and entitled to vote thereon and, except as expressly provided in this Amended and Restated Certificate of Incorporation or in any resolution or resolutions adopted by the Board pursuant to authority expressly vested in it by the provisions of Section 2 of this Article IV with respect to the Preferred Stock, and except as otherwise provided by law, no vote by holders of capital stock of the Corporation other than the Common Stock shall be required to approve such action, notwithstanding Section 242(b)(2) of the General Corporation Law. D. Shares Entitled To More or Less Than One Vote. If any class or series of the Corporation's capital stock shall be entitled to more or less than one vote for any share, on any matter, every reference in this Certificate of Incorporation and in any relevant provision of law to 3 a majority or other proportion of stock shall refer to such majority or other proportion of the votes of such stock. E. Non-Voting Stock. Notwithstanding anything herein to the contrary, the Corporation shall not be authorized to issue non-voting capital stock of any class, series or other designation to the extent prohibited by Section 1123(a)(6) of title 11 of the United States Code (the "Bankruptcy Code"); provided, however, that the foregoing restriction shall (i) have no further force and effect beyond that required under Section 1123(a)(6) of the Bankruptcy Code, (ii) only have such force and effect for so long as such Section 1123(a)(6) is in effect and applies to the Corporation and (iii) be deemed void or eliminated if required under applicable law. F. Preemptive Rights. No holder of Preferred Stock or Common Stock of the Corporation shall be entitled, as a matter of right, to subscribe for or purchase any part of any new or additional issue of stock of any class or series whatsoever, whether now or hereafter authorized and whether issued for cash or other consideration, or by way of dividend. ARTICLE V Directors Section 1. General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law, this Amended and Restated Certificate of Incorporation or the Bylaws directed or required to be exercised or done by stockholders. Section 2. Number and Term of Office. The number of directors shall be not less than seven and not more than nine as shall be fixed from time to time by the Board. Directors need not be stockholders. If for any cause the directors shall not have been elected at an annual meeting or pursuant to Section 5 of this Article V, they may be elected as soon thereafter as convenient at a special meeting of the stockholders called for that purpose in the manner provided in the Bylaws. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director's successor shall have been elected and qualified. The election of directors need not be written by ballot unless the Bylaws of the Corporation so provide. Section 3. Classes of Directors. (a) Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, the directors shall be divided into three classes designated as Class I, Class II and Class III, respectively. Classes of directors shall be as evenly divided in number as possible. Following the effectiveness of this Amended and Restated Certificate of Incorporation, (x) at the annual meeting of stockholders of the Corporation to be held in 2005, the term of office of the Class I directors shall expire and Class I directors elected thereat shall be elected for a full term of three years, (y) at the annual meeting of stockholders of the Corporation to be held in 2006, the term of office of the Class II directors shall expire and Class II directors elected thereat shall be elected for a full term of three years and (z) at the annual meeting of stockholders of the Corporation to be held in 2007, the term of office of the Class III directors shall expire and Class III directors 4 elected thereat shall be elected for a full term of three years. At each succeeding annual meeting of stockholders, directors shall be elected for a full term of three years to succeed the directors of the class whose terms expire at such annual meeting. Upon the effectiveness of this Amended and Restated Certificate of Incorporation, the initial directors of the Corporation and their designated classes shall be as follows:
Director Class -------- ----- Michael R. D'Appolonia III Eugene I. Davis I Phillip M. Martineau II Scott McCarty III Craig H. Muhlhauser I John P. Reilly I Michael P. Ressner II
Notwithstanding the foregoing provisions of this Section, each director shall serve until his successor is duly elected and qualified or until his death, resignation or removal. No decrease in the number of directors constituting the Board shall shorten the term of any incumbent director. (b) In the event of the death, disability, resignation, removal or other failure to serve of Michael R. D'Appolonia, or his successor, prior to the expiration of his initial term, the vacancy created by such death, disability, resignation, removal or other failure to serve shall be filled by the Postconfirmation Creditors Committee (as defined in the Corporation's Joint Plan of Reorganization (the "Plan") or the Creditors Committee (as defined in the Plan) if the Postconfirmation Creditors Committee has not yet been formed. Any director designated in accordance with the preceding sentence shall hold office for the remainder of the initial term of Michael R. D'Appolonia and until such director's successor shall have been elected and qualified. Section 4. Removal. Subject to the rights of the holders of any series of Preferred Stock then outstanding, any director, or the entire Board, may be removed from office at any time, but only for cause, by the affirmative vote of the holders of record of outstanding shares representing at least a majority of the voting power of all the shares of capital stock of the Corporation then entitled to vote generally in the election of directors, voting together as a single class. Section 5. Vacancies. Subject to Section 3(b) of this Article V, any vacancies on the Board resulting from death, resignation, disqualification, removal or other causes, and any newly created directorships resulting from any increase in the number of directors, shall be filled 5 only by the affirmative vote of a majority of the remaining directors, even though less than a quorum of the Board. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director's successor shall have been elected and qualified. A vacancy in the Board shall be deemed to exist in the case of the death, removal or resignation of any director. Section 6. Certain Affiliate Transactions. Any transaction, including without limitation, a "business combination" (as such term is defined in Section 203 of the General Corporation Law), between the Corporation and an "interested stockholder" (as such term is defined in Section 203 of the General Corporation Law) shall be approved by a majority of the directors of the Board; provided, however, that until the second anniversary of the effectiveness of this Amended and Restated Certificate of Incorporation, any such transaction or business combination having a value in excess of $10,000,000 shall, in addition to satisfying the requirements of Section 203 of the General Corporation Law, be (i) approved by an affirmative vote of two-thirds of the disinterested directors of the Board and (ii) if such transaction or business combination has a value in excess of $25,000,000, then such transaction or business combination shall be accompanied by an opinion regarding the fairness, from a financial point of view, of such transaction or business combination with respect to the holders of Common Stock. ARTICLE VI Meetings of Stockholders; Corporation Books Section 1. Stockholders Meetings. Meetings of holders of outstanding capital stock of the Corporation may be held outside the State of Delaware. Any action required or permitted to be taken by the holders of capital stock of the Corporation must be effected at a duly called annual or special meeting of holders of capital stock of the Corporation, and no action shall be taken by such holders by written consent without a meeting. Meetings of holders of capital stock of the Corporation may be called only by the Chairman of the Board, the Chief Executive Officer, the Secretary or the Board pursuant to a resolution adopted by the affirmative vote of a majority of the entire Board. The ability of the stockholders to call a special meeting of stockholders of the Corporation is specifically denied. Section 2. Books of Corporation. Except as otherwise provided by law, the books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the Board or in the Bylaws of the Corporation. ARTICLE VII Bylaws The Board shall have the power to adopt, amend or repeal Bylaws of the Corporation. No adoption, amendment or repeal of a bylaw by action of the stockholders shall be effective unless approved by the affirmative vote of not less than a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote on such 6 matter, voting together as a single class. Any vote of stockholders required by this Article VII shall be in addition to any other vote of stockholders that may be required by law, this Amended and Restated Certificate of Incorporation, the Bylaws of the Corporation, any agreement with a national securities exchange, quotation system or otherwise. ARTICLE VIII Personal Liability of Directors or Officers A director or any officer of the Corporation shall not be personally liable to the Corporation or its stockholders for the breach of any duty owed to the Corporation or its stockholders except to the extent that an exemption from personal liability is not permitted by the General Corporation Law of the State of Delaware, as such may be amended from time to time. Any repeal or modification of the foregoing paragraph by the stockholders of the Corporation shall not adversely affect any right or protection of a director or officer of the Corporation existing at the time of such repeal or modification. The Corporation hereby renounces, to the fullest extent permitted by Section 122(17) of the General Corporation Law, any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, any business opportunities that are presented to one or more of its directors or stockholders, other than those directors or stockholders who are employees of the Corporation. ARTICLE IX Amendment The Corporation reserves the right to amend, alter, change or repeal any provisions contained in this Amended and Restated Certificate of Incorporation in the manner now or hereafter prescribed by law, and all the provisions of this Amended and Restated Certificate of Incorporation and all rights and powers conferred in this Amended and Restated Certificate of Incorporation on stockholders, directors and officers are subject to this reserved power; provided that the affirmative vote of the holders of outstanding shares representing at least a majority of the voting power of all of the shares of capital stock of the Corporation then entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter, change, or repeal any provision of, or to adopt any provision or provisions inconsistent with this Amended and Restated Certificate of Incorporation, notwithstanding the fact that a lesser percentage may be specified by the General Corporation Law, and provided further that any amendment, alteration, change or repeal of Article V, Section 3(b) shall require the affirmative vote of such director or his duly appointed successor during the initial term of his directorship. 7 IN WITNESS WHEREOF, the undersigned has executed this Amended and Restated Certificate of Incorporation this 5th day of May, 2004. EXIDE TECHNOLOGIES By: /s/ Stuart H. Kupinsky Name: Stuart H. Kupinsky Office: Executive Vice President, General Counsel and Secretary 8 EX-2 3 g88857exv2.txt EX-2 AMENDED & RESTATED BYLAWS OF THE COMPANY EXHIBIT 2 ========================================================================= AMENDED AND RESTATED BYLAWS OF EXIDE TECHNOLOGIES ========================================================================= TABLE OF CONTENTS
SECTION PAGE ARTICLE I OFFICES Section 1.01. Registered Office..............................................1 Section 1.02. Other Offices..................................................1 ARTICLE II MEETINGS OF STOCKHOLDERS Section 2.01. Annual Meetings................................................1 Section 2.02. Special Meetings...............................................1 Section 2.03. Notice and Business of Meetings................................2 Section 2.04. Waiver of Notice...............................................5 Section 2.05. Adjournments...................................................5 Section 2.06. Quorum.........................................................5 Section 2.07. Voting.........................................................6 Section 2.08. Action Without Meeting.........................................6 Section 2.09. Organization...................................................6 ARTICLE III BOARD Section 3.01. General Powers.................................................7 Section 3.02. Meetings.......................................................7 Section 3.03. Committees of the Board........................................8 Section 3.04. Directors' Consent in Lieu of Meeting..........................9 Section 3.05. Compensation...................................................9 Section 3.06. Interested Directors; Quorum...................................9 Section 3.07. Committee Rules................................................9 ARTICLE IV OFFICERS Section 4.01. Officers......................................................10 Section 4.02. Authority and Duties..........................................10 Section 4.03. Compensation..................................................10 Section 4.04. Term of Office, Resignation and Removal.......................10 Section 4.05. Vacancies.....................................................11 Section 4.06. The Chairman..................................................11
i Section 4.07. The Chief Executive Officer...................................11 Section 4.08. The Chief Financial Officer...................................11 Section 4.09. The Controller................................................11 Section 4.10. Vice Presidents...............................................12 Section 4.11. The Secretary.................................................12 Section 4.12. Assistant Secretaries.........................................12 Section 4.13. The Treasurer.................................................12 Section 4.14. Assistant Treasurers..........................................12 ARTICLE V CHECKS, DRAFTS, NOTES, AND PROXIES Section 5.01. Checks, Drafts and Notes......................................13 Section 5.02. Execution of Proxies..........................................13 ARTICLE VI SHARES AND TRANSFERS OF SHARES Section 6.01. Certificates Evidencing Shares................................13 Section 6.02. Stock Ledger..................................................14 Section 6.03. Transfers of Shares...........................................14 Section 6.04. Addresses of Stockholders.....................................14 Section 6.05. Lost, Destroyed and Mutilated Certificates....................14 Section 6.06. Regulations...................................................14 Section 6.07. Fixing Date for Determination of Stockholders of Record.......14 ARTICLE VII SEAL Section 7.01. Seal..........................................................15 ARTICLE VIII FISCAL YEAR Section 8.01. Fiscal Year...................................................15 ARTICLE IX INDEMNIFICATION AND INSURANCE Section 9.01. Indemnification...............................................15 Section 9.02. Insurance.....................................................17 ARTICLE X AMENDMENTS Section 10.01. Amendments.....................................................17
ii AMENDED AND RESTATED BYLAWS OF EXIDE TECHNOLOGIES These Amended and Restated Bylaws of the corporation, which both restate and further amend the provisions of the corporation's Bylaws, were duly adopted pursuant to the authority granted to the corporation under Section 303 of the General Corporation Law of the State of Delaware to put into effect and carry out the Joint Plan of Reorganization of the corporation dated as of March 11, 2004 under chapter 11 of title 11 of the United States Code, as confirmed on April 21, 2004 by order (the "Order") of the United States Bankruptcy Court for the District of Delaware (Case No. 02-11125 (KJC)). Provision for the making of these Amended and Restated Bylaws is contained in the Order. ARTICLE I OFFICES Section 1.01. Registered Office. The registered office of Exide Technologies (the "Corporation") in the State of Delaware shall be at the principal office of The Corporation Trust Company in the City of Wilmington, County of New Castle, and the registered agent in charge thereof shall be The Corporation Trust Company. Section 1.02. Other Offices. The Corporation may also have an office or offices at any other place or places within or without the State of Delaware as the Board of Directors of the Corporation (the "Board") may from time to time determine or the business of the Corporation may from time to time require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 2.01. Annual Meetings. The annual meeting of stockholders of the Corporation for the election of directors of the Corporation, and for the transaction of such other business as may properly come before such meeting, shall be held on the third Tuesday of each August, commencing with August 16, 2005 and at such place and time as shall be fixed by the Board and designated in the notice or waiver of notice of such annual meeting. Section 2.02. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called by the Chairman of the Board, the Chief Executive Officer, the Secretary or the Board pursuant to a resolution duly adopted by a majority of the members of the entire Board, to be held at such place, date and time as shall be designated in the notice or waiver of notice thereof. Only business within the purposes described in the notice required by Section 2.03 of this Article II may be conducted at the special meeting. The ability of the stockholders to call a special meeting of stockholders of the Corporation is specifically denied. Section 2.03. Notice and Business of Meetings. (a) Except as otherwise provided by law, notice of each meeting of stockholders shall be given either by delivering a notice personally, by mail or by other lawful means to each stockholder of record entitled to vote thereat. If mailed, the notice shall be directed to the stockholder in a postage-prepaid envelope at his address as it appears on the stock books of the Corporation unless, prior to the time of mailing, he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request. Notice of each meeting of stockholders shall state the purpose or purposes for which the meeting is called, the date and time when and the place where it is to be held, and shall be delivered not more than sixty (60) days and not less than ten (10) days before the day of the meeting. If notice is delivered by mail, notice shall be deemed to be delivered when deposited in the U.S. mail, postage prepaid. Except as otherwise provided by law, the business which may be transacted at any special meeting of stockholders shall consist of and be limited to the purpose or purposes so stated in such notice. The Secretary or an Assistant Secretary or the transfer agent of the Corporation shall, after giving such notice, make an affidavit stating that notice has been given, which shall be filed with the minutes of such meeting. (b) Annual Meetings of Stockholders. (i) Nominations of persons for election to the Board and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders only (A) pursuant to the Corporation's notice of meeting (or any supplement thereto), (B) by or at the direction of the Board or (C) by any stockholder of the Corporation who was a stockholder of record of the Corporation at the time the notice provided for in this Section 2.03(b) is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 2.03(b). (ii) For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to Section 2.03(b)(i)(C), the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and any such proposed business other than the nominations of persons for election to the Board must constitute a proper matter for stockholder action. To be timely, a stockholder's notice shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred twentieth (120th) day prior to the first anniversary of the preceding year's annual meeting; provided, however, that in the event that the date of the annual meeting is more than thirty (30) days before or more than seventy (70) days after such anniversary date, notice by the stockholder must be so delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Corporation; provided further that for purposes of the first annual meeting of stockholders following the effectiveness of these Amended and Restated Bylaws, the date of the preceding year's annual meeting shall be deemed to be August 17, 2004. In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder's notice as described above. Such 2 stockholder's notice shall set forth: (A) as to each person whom the stockholder proposes to nominate for election as a director (I) all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to and in accordance with Regulation 14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and (II) such person's written consent to being named in the proxy statement as a nominee and to serving as a director if elected; (B) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the Amended and Restated Bylaws, the language of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (I) the name and address of such stockholder, as they appear on the Corporation's books, and of such beneficial owner, (II) the class and number of shares of capital stock of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner, (III) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination, and (IV) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation's outstanding capital stock required to approve or adopt the proposal or elect the nominee and/or (y) otherwise to solicit proxies from stockholders in support of such proposal or nomination. The foregoing notice requirements shall be deemed satisfied by a stockholder if the stockholder has notified the Corporation of his or her intention to present a nomination or proposal at an annual meeting in compliance with Rule 14a-8 (or any successor thereof) promulgated under the Exchange Act and such stockholder's nomination or proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting. The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the Corporation. (iii) Notwithstanding anything in the second sentence of Section 2.03(b)(ii) to the contrary, in the event that the number of directors to be elected to the Board at an annual meeting is increased and there is no public announcement by the Corporation naming the nominees for the additional directorships at least one hundred (100) days prior to the first anniversary of the preceding year's annual meeting, a stockholder's notice required by this Section 2.03(b) shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Corporation. 3 (c) Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation's notice of meeting. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation's notice of meeting (i) by or at the direction of the Board or (ii) provided that the Board has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time the notice provided for in Section 2.03(b) is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and upon such election and who complies with the notice procedures set forth in Section 2.03(b). In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation's notice of meeting, if the stockholder's notice required by Section 2.03(b)(ii) shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth (120th) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting. In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholder's notice as described above. (d) Other. (i) Only such persons who are nominated in accordance with the procedures set forth in this Section 2.03 shall be eligible to be elected at an annual or special meeting of stockholders of the Corporation to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in Section 2.03. Except as otherwise provided by law, the chairman of the meeting shall have the power and duty (A) to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in Section 2.03 (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such stockholder's nominee or proposal in compliance with such stockholder's representation as required by Section 2.03(b)(ii)(C)(IV)) and (B) if any proposed nomination or business was not made or proposed in compliance with Section 2.03, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted. Notwithstanding the foregoing provisions of this Section 2.03, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 2.03, to be considered a qualified representative of the stockholder, a person must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for 4 such stockholder as proxy at the meeting of stockholders and such person must file with the Secretary such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders. (ii) For purposes of this Section 2.03, "public announcement" shall include disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act. (iii) Notwithstanding the foregoing provisions of this Section 2.03, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.03. Nothing in this Section 2.03 shall be deemed to affect any rights (A) of stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or (B) of the holders of any series of Preferred Stock to elect directors pursuant to any applicable provisions of the Certificate of Incorporation. Section 2.04. Waiver of Notice. Notice of any annual or special meeting of stockholders need not be given to any stockholder who delivers a waiver of notice to the Secretary, in accordance with applicable law, whether before or after such meeting. Neither the business to be transacted at, nor the purpose of, any meeting of stockholders need be specified in any waiver of notice thereof. Attendance of a stockholder at a meeting, in person or by proxy, shall constitute a waiver of notice of such meeting, except when such stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Section 2.05. Adjournments. Whenever a meeting of stockholders, annual or special, is adjourned to another date, time or place, notice need not be given of the adjourned meeting if the date, time and place thereof are announced at the meeting at which the adjournment is taken. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote thereat. At the adjourned meeting, any business may be transacted which might have been transacted at the original meeting. Section 2.06. Quorum. Except as otherwise provided by law or the Certificate of Incorporation, the holders of record of a majority in voting power of the outstanding shares of capital stock entitled to vote thereat, present in person or by proxy, shall constitute a quorum for the transaction of business at all meetings of stockholders, whether annual or special. In the absence of a quorum, any meeting of stockholders may be adjourned, from time to time, either by the chairman of the meeting or by vote of the holders of a majority of the shares represented thereat, but no other business shall be transacted at such meeting. The stockholders present at a duly called or convened meeting, at which a quorum is present, may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Except as otherwise provided by law, rule, regulation (including the rules of any securities exchange or quotation system), the Certificate of 5 Incorporation or these Amended and Restated Bylaws, all action taken by the holders of a majority of the votes cast in person or represented by proxy, excluding abstentions, at any meeting at which a quorum is present shall be valid and binding upon the Corporation; provided, however, that directors shall be elected by a plurality of the votes cast of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Where a separate vote by a class or classes or series is required, except where otherwise provided by statute or by the Certificate of Incorporation or these Amended and Restated Bylaws, a majority of the outstanding shares of such class or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter and, except where otherwise provided by statute or by the Certificate of Incorporation or these Amended and Restated Bylaws, the affirmative vote of the majority (plurality, in the case of the election of directors) of the votes cast, excluding abstentions, by the holders of shares of such class or classes or series shall be the act of such class or classes or series. Section 2.07. Voting. Except as otherwise provided in the Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. The ability of the stockholders to engage in cumulative voting is specifically denied. If the Certificate of Incorporation provides for more or less than one vote for any share on any matter, every reference in these Amended and Restated Bylaws to a majority or other proportion of shares of stock shall refer to such majority or other proportion of the votes of such shares of stock. Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. Such proxy shall be filed with the Secretary before such meeting of stockholders. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power, regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary. Voting at meetings of stockholders need not be by written ballot unless so directed by the chairman of the meeting or the Board. Section 2.08. Action Without Meeting. No action shall be taken by the stockholders except at an annual or special meeting of stockholders called in accordance with these Amended and Restated Bylaws, and no action shall be taken by the stockholders by written consent without a meeting. Section 2.09. Organization. (a) At every meeting of stockholders, the Chairman of the Board, or, if a Chairman has not been appointed or is absent, the Chief Executive Officer, or, if the Chief Executive Officer is absent, a chairman of the meeting chosen by the Board, shall act as chairman of the meeting. The Secretary, or, in his or her absence, an Assistant Secretary directed to do so by the Chief Executive Officer, shall act as secretary of the meeting. 6 (b) The Board shall be entitled to make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or convenient. Subject to such rules and regulations of the Board, if any, the chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are necessary, appropriate or convenient for the proper conduct of the meeting, including, without limitation, establishing an agenda or order of business for the meeting, rules and procedures for maintaining order at the meeting and the safety of those present, limitations on participation in such meeting to stockholders of record of the Corporation and their duly authorized and constituted proxies and such other persons as the chairman shall permit, restrictions on entry to the meeting after the time fixed for the commencement thereof, limitations on the time allotted to questions or comments by participants and regulation of the opening and closing of the polls for balloting on matters which are to be voted on by ballot. Unless and to the extent determined by the Board or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with rules of parliamentary procedure. ARTICLE III BOARD Section 3.01. General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law, the Certificate of Incorporation or these Amended and Restated Bylaws directed or required to be exercised or done by stockholders. Section 3.02. Meetings. (a) Annual Meetings. The annual meeting of the Board shall be held immediately before or after the annual meeting of stockholders and may be at the place where such meeting is held. No notice of an annual meeting of the Board shall be necessary and such meeting shall be held for the purpose of electing Officers (as defined in Section 4.01) and transacting such other business as may lawfully come before it. (b) Regular Meetings. Unless otherwise restricted by the Certificate of Incorporation, regular meetings of the Board may be held, without notice, at any place within or without the State of Delaware which has been designated by resolution of the Board or the consent of all directors. (c) Special Meetings. Unless otherwise restricted by the Certificate of Incorporation, special meetings of the Board may be held at any time and place within or without the State of Delaware whenever called by the Chairman of the Board, the Chief Executive Officer, the Secretary or a majority of the directors. (d) Telephone Meetings. Any member of the Board, or of any committee thereof, may participate in a meeting by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. 7 (e) Notice of Meetings. Notice of the time and place of all special meetings of the Board shall be orally or in writing, by telephone, facsimile, electronic transmission, telegraph or telex, in all such instances, at least twenty-four (24) hours before the date and time of the meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary given the circumstances, or sent in writing to each director by first class mail, charges prepaid, at least three (3) days before the date of the meeting. Notice of any meeting may be waived in writing or by electronic transmission at any time before or after the meeting and will be waived by any director by attendance thereat, except when the director attends the meeting for the express purpose of objecting at the beginning of the meetings to the transaction of any business because the meeting is not lawfully called or convened. (f) Waiver of Notice. The transaction of all business at any meeting of the Board, or any committee thereof, however called or noticed, or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present and if, either before or after the meeting, each of the directors not present shall sign a written waiver of notice or deliver a waiver of notice by electronic transmission. All such waivers shall be filed with the corporate records or made a part of the minutes of the meeting. (g) Quorum and Manner of Acting. A majority of the total number of directors shall be present in person at any meeting of the Board in order to constitute a quorum for the transaction of business at such meeting, and the vote of a majority of those directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or act of the Board, except as otherwise expressly required by law, the Certificate of Incorporation or these Amended and Restated Bylaws. In the absence of a quorum for any such meeting, a majority of the directors present thereat may adjourn such meeting from time to time, without otherwise providing notice, until a quorum shall be present. (h) Organization. At each meeting of the Board, one of the following shall act as chairman of the meeting and preside, in the following order of precedence: (i) the Chairman; (ii) the Chief Executive Officer; (iii) any director chosen by a majority of the directors present. The Secretary or, in the case of his absence, any person (who shall be an Assistant Secretary, if an Assistant Secretary is present) whom the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. Section 3.03. Committees of the Board. The Board may designate one or more committees, including but not limited to an audit committee, a compensation committee and a corporate governance/nominating committee, each committee to consist of one or more directors. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the 8 place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board designating such committee and to the extent permitted by applicable law, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it. Each committee of the Board shall keep regular minutes of its proceedings and report the same to the Board when so requested by the Board. Section 3.04. Directors' Consent in Lieu of Meeting. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, without prior notice and without a vote, if a consent in writing or by electronic transmission, setting forth the action so taken, shall be signed or delivered, as the case may be, by all the members of the Board or such committee and such consent or electronic transmission or transmissions is filed with the minutes of the proceedings of the Board or such committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. Section 3.05. Compensation. Unless otherwise restricted by the Amended and Restated Certificate of Incorporation, the Board may determine the compensation of directors. In addition, as determined by the Board, directors may be reimbursed by the Corporation for their expenses, if any, in the performance of their duties as directors. No such compensation or reimbursement shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 3.06. Interested Directors; Quorum. No contract or transaction between the Corporation and one or more of its directors or Officers, or between the Corporation and any other corporation, partnership, limited liability company, joint venture, trust, association or other organization or other entity in which one or more of its directors or Officers serve as directors, Officers, trustees or in a similar capacity or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or Officer is present at or participates in the meeting of the Board or committee thereof which authorizes the contract or transaction, or solely because the directors' or Officers' votes are counted for such purpose, if: (i) the material facts as to the directors' or Officers' relationship or interest and as to the contract or transaction are disclosed or are known to the Board or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to the directors' or Officers' relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by a vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board or of a committee, which authorizes the contract or transaction. Section 3.07. Committee Rules. Each committee of the Board may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the Board designating such committee. Unless 9 otherwise provided in such a resolution, the presence of at least a majority of the members of the committee shall be necessary to constitute a quorum. ARTICLE IV OFFICERS Section 4.01. Officers. The Corporation shall have employees or agents who are denominated as officers (including, but not limited to, a Chief Executive Officer, one or more Vice Presidents, a Chief Financial Officer, a Treasurer, one or more Assistant Treasurers, a Secretary and one or more Assistant Secretaries), as the Board may designate from time to time (each, an"Officer"). Section 4.02. Authority and Duties. The Officers (other than the Chief Executive Officer) shall be subject to the authority of the Chief Executive Officer, and the Officers shall be responsible for implementing the decisions of the Board and for conducting the ordinary and usual business and affairs of the Corporation, subject to these Amended and Restated Bylaws, and the policies and limitations established by, and the supervision of, the Board. Section 4.03. Compensation. The Officers shall be entitled to receive for their services to the Corporation such compensation as may be determined by the Board, a committee designated by the Board or any Officer designated by the Board or such committee, from time to time, such compensation to be paid by the Corporation. The Officers shall at all times be subject to the supervision and control of the Board and shall conform to policies and programs established by the Board, and the scope of the Officers' authority shall be limited to such policies and programs. The acts of the Officers shall bind the Corporation when within the scope of the authority of such Officers. The Officers shall keep the Board informed as to all matters of concern to the Corporation. No Officer shall be prevented from receiving such compensation by virtue of his or her additional service as a director of the Corporation. Section 4.04. Term of Office, Resignation and Removal. (a) Each Officer shall be appointed by the Board annually on or near the time called for the annual meeting of stockholders, and shall hold office for such term as may be determined by the Board. Each Officer shall hold office until his successor has been appointed and qualified or his earlier death or resignation or removal in the manner hereinafter provided. Vacancies may be filled or new offices created and filled at any meeting of the Board. (b) Any Officer may resign at any time by giving written notice to the Board, the Chairman, the Chief Executive Officer or the Secretary. Such resignation shall take effect at the time specified in such notice or, if the time be not specified, upon receipt thereof by the Board, the Chairman, the Chief Executive Officer or the Secretary, as the case may be. Unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective. 10 (c) All Officers and agents appointed by the Board shall be subject to removal, with or without cause, at any time by the Board, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Section 4.05. Vacancies. Any vacancy occurring in any office of the Corporation, for any reason, shall be filled by action of the Board. Unless earlier removed pursuant to Section 4.04 hereof, any Officer appointed by the Board to fill any such vacancy shall serve only until such time as the unexpired term of his predecessor expires unless reappointed by the Board. Section 4.06. The Chairman. The Chairman of the Board shall not be an executive of the Corporation. The Chairman of the Board shall have the power to call special meetings of stockholders, to call special meetings of the Board and, if present, to preside at all meetings of stockholders and all meetings of the Board. The Chairman shall perform all duties incident to the office of Chairman of the Board and all such other duties as may from time to time be assigned to him by the Board or these Amended and Restated Bylaws. Section 4.07. The Chief Executive Officer. The Chief Executive Officer shall be the president and chief executive officer of the Corporation and shall have general and active management and control of the business and affairs of the Corporation, including supervisory power and authority over all Officers and agents elected or appointed by the Board, and any appointment, employment functions, duties, removal or discharge of all other employees and agents of the Corporation, subject to the control of the Board, and shall see that all orders and resolutions of the Board are carried into effect. The Chief Executive Officer shall perform all duties incident to the office of Chief Executive Officer and all such other duties as may from time to time be assigned to him by the Board or these Amended and Restated Bylaws. Section 4.08. The Chief Financial Officer. The Chief Financial Officer of the Corporation shall, under the direction of the Chief Executive Officer, be responsible for all financial and accounting matters and for the direction of the offices of Treasurer and Controller. The Chief Financial Officer shall have such other powers and perform such other duties as the Board, the Chief Executive Officer or these Amended and Restated Bylaws may, from time to time, prescribe. Section 4.09. The Controller. The Controller shall, under the direction of the Chief Financial Officer, have general charge, control and supervision over the accounting and auditing affairs of the Corporation. The Controller, or such persons as the Controller shall designate, shall have responsibility for the custody and safekeeping of all permanent records and papers of the Corporation. The Controller shall have responsibility for the preparation and maintenance of the books of account and of the accounting records and papers of the Corporation; shall supervise the preparation of all financial statements and reports on the operation and condition of the business; shall have responsibility for the establishment of financial statements and reports on the operation and condition of the business; shall have responsibility for the establishment of financial procedures, records and forms used by the Corporation; shall have responsibility for the filing of all financial reports and returns, required by law; shall render to the Chief Executive Officer, the Chief Financial Officer or the Board, whenever they may require, an account of the Controller's transactions; and in general shall have 11 such other powers and perform such other duties as are incident to the offices of the Chief Financial Officer and Controller and as the Board may, from time to time, prescribe. Section 4.10. Vice Presidents. Vice Presidents, if any, in order of their seniority or in any other order determined by the Board, shall generally assist the Chief Executive Officer and perform such other duties as the Board or the Chief Executive Officer shall prescribe, and in the absence or disability of the Chief Executive Officer, shall perform the duties and exercise the powers of the Chief Executive Officer. Section 4.11. The Secretary. The Secretary shall, attend all meetings of the Board and committees thereof, and all meetings of stockholders and shall record all votes and the minutes of all proceedings in a book to be kept for that purpose. He shall give or cause to be given notice of all meetings of stockholders and of the Board, shall perform such other duties as may be prescribed by the Board, the Chairman or the Chief Executive Officer and shall act under the supervision of the Chairman. He shall keep in safe custody the seal of the Corporation and affix the same to any instrument that requires that the seal be affixed to it and which shall have been duly authorized for signature in the name of the Corporation and, when so affixed, the seal shall be attested by his signature or by the signature of the Treasurer of the Corporation (the "Treasurer"), the Chief Executive Officer, the Chief Financial Officer or an Assistant Secretary or Assistant Treasurer of the Corporation. He shall keep in safe custody the certificate books and stockholder records and such other books and records of the Corporation as the Board, the Chairman or the Chief Executive Officer may direct and shall perform all other duties incident to the office of Secretary and such other duties as from time to time may be assigned to him by the Board, the Chairman or the Chief Executive Officer. Section 4.12. Assistant Secretaries. Assistant Secretaries of the Corporation ("Assistant Secretaries"), if any, in order of their seniority or in any other order determined by the Board, shall generally assist the Secretary and perform such other duties as the Board or the Secretary shall prescribe, and, in the absence or disability of the Secretary, shall perform the duties and exercise the powers of the Secretary. Section 4.13. The Treasurer. The Treasurer shall have the care and custody of all the funds of the Corporation and shall deposit such funds in such banks or other depositories as the Board, or any Officer or Officers, or any Officer and agent jointly, duly authorized by the Board, shall, from time to time, direct or approve. He shall disburse the funds of the Corporation under the direction of the Board, the Chief Executive Officer and the Chief Financial Officer. He shall keep a full and accurate account of all moneys received and paid on account of the Corporation and shall render a statement of his accounts whenever the Board, the Chairman, the Chief Executive Officer or the Chief Financial Officer shall so request. He shall perform all other necessary actions and duties in connection with the administration of the financial affairs of the Corporation and shall generally perform all the duties usually appertaining to the office of treasurer of a corporation. When required by the Board, he shall give bonds for the faithful discharge of his duties in such sums and with such sureties as the Board shall approve. Section 4.14. Assistant Treasurers. Assistant Treasurers of the Corporation ("Assistant Treasurers"), if any, in order of their seniority or in any other order 12 determined by the Board, shall generally assist the Treasurer and perform such other duties as the Board or the Treasurer shall prescribe, and, in the absence or disability of the Treasurer, shall perform the duties and exercise the powers of the Treasurer. ARTICLE V CHECKS, DRAFTS, NOTES, AND PROXIES Section 5.01. Checks, Drafts and Notes. All checks, drafts and other orders for the payment of money, notes and other evidences of indebtedness issued in the name of the Corporation shall be signed by such Officer or Officers, agent or agents of the Corporation and in such manner as shall be determined, from time to time, by resolution of the Board. Section 5.02. Execution of Proxies. The Chairman, the Chief Executive Officer, the Chief Financial Officer, any Vice President, any Secretary or any Assistant Secretary may authorize, from time to time, the execution and issuance of proxies to vote shares of stock or other securities of other entities held of record by the Corporation and the execution of consents to action taken or to be taken by any such entity. All such proxies and consents, unless otherwise authorized by the Board, shall be signed in the name of the Corporation by the Chairman, the Chief Executive Officer, the Chief Financial Officer, any Vice President, any Secretary or any Assistant Secretary. ARTICLE VI SHARES AND TRANSFERS OF SHARES Section 6.01. Certificates Evidencing Shares. Shares shall be evidenced by certificates in such form or forms as shall be approved by the Board; provided that the Board may provide by resolution or resolutions that some or all of any class or classes or series of stock shall be uncertificated shares; provided further, that any such resolution shall not apply to any shares represented by a certificate theretofore issued until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a resolution by the Board, upon request, every holder of uncertificated shares shall be entitled to have a certificate signed by or in the name of the Corporation (as provided below) representing the number of shares in registered certificate form. Certificates shall be issued in consecutive order and shall be numbered in the order of their issue, and shall be signed by the Chairman, the Chief Executive Officer or any Vice President and by the Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In the event any Officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to hold such office or to be employed by the Corporation before such certificate is issued, such certificate may be issued by the Corporation with the same effect as if such person were such Officer on the date of issue. Certificates representing shares of stock of the Corporation may bear such legends regarding restrictions on transfer or other matters as any Officer or Officers of the Corporation may determine to be lawful or appropriate. The Corporation shall not have the power to issue a certificate in bearer form. 13 Section 6.02. Stock Ledger. A stock ledger in one or more counterparts shall be kept by the Secretary or a transfer agent that the Board may appoint or authorize any Officer or Officers to appoint, in which shall be recorded the name and address of each person, firm or corporation owning the shares evidenced by each certificate evidencing shares issued by the Corporation, the number of shares evidenced by each such certificate, the date of issuance thereof and, in the case of cancellation, the date of cancellation. Except as otherwise expressly required by law, the person in whose name shares stand on the stock ledger of the Corporation shall be deemed the owner and holder of record thereof for all purposes. Section 6.03. Transfers of Shares. Registration of transfers of shares shall be made only in the stock ledger of the Corporation upon request of the registered holder of such shares, or of his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary, and upon the surrender of the certificate or certificates evidencing such shares properly endorsed or accompanied by a stock power duly executed, together with such proof of the authenticity of signatures as the Corporation may reasonably require. Section 6.04. Addresses of Stockholders. Each stockholder shall designate to the Secretary an address at which notices of meetings and all other corporate notices may be served, mailed or electronically transmitted or otherwise delivered by lawful means to such stockholder, and, if any stockholder shall fail to so designate such an address, corporate notices may be served upon such stockholder by mail directed to the mailing address, if any, as the same appears in the stock ledger of the Corporation or at the last known mailing address of such stockholder. Section 6.05. Lost, Destroyed and Mutilated Certificates. Each holder of record of shares shall promptly notify the Corporation of any loss, destruction or mutilation of any certificate or certificates evidencing any share or shares of which he is the holder of record. The Board may, in its discretion, cause the Corporation to issue a new certificate in place of any certificate theretofore issued by it and alleged to have been mutilated, lost, stolen or destroyed, upon the surrender of the mutilated certificate or, in the case of loss, theft or destruction of the certificate, upon satisfactory proof of such loss, theft or destruction including an affidavit of such person claiming such certificate to be lost, stolen or destroyed and the Board may, in its discretion, require the holder of record of the shares evidenced by the lost, stolen or destroyed certificate or his legal representative to give the Corporation a bond sufficient to indemnify the Corporation against any claim made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. Section 6.06. Regulations. The Board may make such other rules and regulations as it may deem expedient, not inconsistent with the Certificate of Incorporation and these Amended and Restated Bylaws, concerning the issue, transfer and registration of certificates evidencing shares. Section 6.07. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful 14 action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other such action. A determination of the stockholders entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of such meeting; provided, however, that the Board may fix a new record date for the adjourned meeting. ARTICLE VII SEAL Section 7.01. Seal. The Board may approve and adopt a corporate seal, which shall be in the form of a circle and shall bear the full name of the Corporation, the year of its incorporation and the words "Corporate Seal, Delaware". ARTICLE VIII FISCAL YEAR Section 8.01. Fiscal Year. The fiscal year of the Corporation shall end on the thirty-first day of March of each year unless changed by resolution of the Board. ARTICLE IX INDEMNIFICATION AND INSURANCE Section 9.01. Indemnification. (a) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that the person is or was a director or Officer of the Corporation, or, while a director or Officer, is or was serving at the request of the Corporation as a director, Officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person 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 the person's conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person 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 reasonable cause to believe that the person's conduct was unlawful. Notwithstanding anything to the contrary herein, the Corporation shall not be obligated to indemnify a director or Officer for proceedings or portions thereof instituted against the Corporation by such director or Officer. (b) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the 15 right of the Corporation to procure a judgment in its favor by reason of the fact that the person is or was a director or Officer of the Corporation, or, while a director or Officer of the Corporation, is or was serving at the request of the Corporation as a director, Officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. (c) To the extent that a present or former director or Officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 9.01(a) and (b) of these Amended and Restated Bylaws, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith. (d) Any indemnification under Sections 9.01(a) and (b) of these Bylaws (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the present or former director or Officer is proper in the circumstances because the person has met the applicable standard of conduct set forth in Sections 9.01(a) and (b) of these Amended and Restated Bylaws. Such determination shall be made, with respect to a person who is a director or Officer at the time of such determination, (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (iv) by the stockholders of the Corporation. (e) Expenses (including attorneys' fees) incurred by a current or former Officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or Officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation pursuant to this Article IX or otherwise. (f) The indemnification and advancement of expenses provided by, or granted pursuant to, the other Sections of this Article IX shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any law, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office. 16 (g) For purposes of this Article IX, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director or Officer of the Corporation which imposes duties on, or involves service by, such director or Officer with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation" as referred to in this Article IX. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Article IX shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or Officer, and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 9.02. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, Officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, Officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of Section 145 of the General Corporation Law. ARTICLE X AMENDMENTS Section 10.01. Amendments. These Amended and Restated Bylaws may be altered, amended or repealed at any annual meeting of stockholders, or at any special meeting of holders of shares of stock entitled to vote thereon by a vote of the holders of not less than a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote thereon, or by the Board, provided that in the case of a special meeting of stockholders, notice of such proposed alteration, amendment or repeal be included in the notice of meeting. 17 EX-3 4 g88857exv3.txt EX-3 WARRANT AGREEMENT EXHIBIT 3 ================================================================================ WARRANT AGREEMENT BETWEEN EXIDE TECHNOLOGIES AND AMERICAN STOCK TRANSFER & TRUST COMPANY AS WARRANT AGENT MAY 5, 2004 ================================================================================ TABLE OF CONTENTS
Page SECTION 1. Appointment of Warrant Agent 2 SECTION 2. Issuances 2 SECTION 3. Form of Warrant Certificates 2 SECTION 4. Execution of Warrant Certificates 3 SECTION 5. Registration and Countersignature 3 SECTION 6. Registration of Transfers and Exchanges 4 SECTION 7. Duration and Exercise of Warrants 7 SECTION 8. Cancellation of Warrants 9 SECTION 9. Mutilated or Missing Warrant Certificates 9 SECTION 10. Reservation of Shares 10 SECTION 11. Stock Exchange Listings 11 SECTION 12. Adjustment of Exercise Price and Number of Shares Purchasable or Number of Warrants 11 SECTION 13. Fractional Shares 21 SECTION 14. Notices to Warrantholders 21 SECTION 15. Merger, Consolidation or Change of Name of Warrant Agent 22 SECTION 16. Warrant Agent 23 SECTION 17. Change of Warrant Agent 25 SECTION 18. Holder Not Deemed a Stockholder 26 SECTION 19. Notices to Company and Warrant Agent 26 SECTION 20. Payment of Taxes and Charges 27 SECTION 21. Supplements and Amendments 27 SECTION 22. Successors 28 SECTION 23. Termination 28 SECTION 24. Governing Law Venue and Jurisdiction 28 SECTION 25. Benefits of this Agreement 28 SECTION 26. Counterparts 28 SECTION 27. Headings 28 SECTION 28. Meaning of Terms Used in Agreement 28 SECTION 29. Severability 29
i WARRANT AGREEMENT This WARRANT AGREEMENT (this "Agreement") is dated as of May 5, 2004, between EXIDE TECHNOLOGIES, a Delaware corporation (the "Company"), and American Stock Transfer & Trust Company, a New York banking corporation (in its capacity as warrant agent hereunder, the "Warrant Agent"). PRELIMINARY STATEMENTS WHEREAS, on April 15, 2002 (the "Petition Date"), Exide Technologies ("Old Exide") filed a voluntary petition for reorganization under Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code") in the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court"), which case is being jointly administered for procedural purposes before the Bankruptcy Court with the cases of certain wholly-owned U.S. subsidiaries of Old Exide under case number 02-11125 (collectively, the "Chapter 11 Cases"). WHEREAS, pursuant to the Joint Plan of Reorganization of the Official Committee of Unsecured Creditors and the Debtors (together with the Technical Amendment (as defined below), the "Plan"), which has been confirmed by the Bankruptcy Court in the Chapter 11 Cases, the Company will issue warrants (the "Warrants") entitling the holders to purchase initially an aggregate of up to 6,250,000 shares of common stock, par value $0.01 per share (the "Common Stock") of the Company (as may be adjusted from time to time pursuant to this Agreement, the "Shares"). To the extent the reserved shares of Common Stock and Warrants under the Plan are insufficient to provide for a Pro Rata (as defined in the Plan) distribution to any Holder (as defined in the Plan) of a Disputed Claim (as defined in the Plan) as it becomes an Allowed Claim (as defined in the Plan), the Company may issue additional shares of Common Stock and Warrants as provided for in the Technical Amendment to the Plan and Plan Supplement filed with the Bankruptcy Court on April 22, 2004 (the "Technical Amendment"). WHEREAS, the Warrant Agent, at the request of the Company, has agreed to act as the agent of the Company in connection with the issuance, registration, transfer, exchange and exercise of the Warrants. NOW, THEREFORE, in consideration of the premises and mutual agreements herein set forth, the parties hereto agree as follows: SECTION 1. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the instructions hereinafter set forth in this Agreement; and the Warrant Agent hereby accepts such appointment, upon the terms and conditions hereinafter set forth. SECTION 2. Issuances. (a) Subject to the provisions of this Agreement, in accordance with the terms of the Plan, on (and from time to time after) the Effective Date (as such term is defined in the Plan, and hereinafter referred to as the "Initial Distribution Date"), Warrants to purchase the Shares will be issued by the Company in the amounts and to the recipients specified in the Plan. On or after the Initial Distribution Date, the Company will deliver, or cause to be delivered, one or more Global Warrant Certificates (as defined below) evidencing the Warrants in accordance with the terms of the Plan. (b) At all times, assuming that no adjustments to the number of Shares of outstanding Common Stock issued as of the Effective Date of the Plan have occurred other than additional distributions of Common Stock to Creditors (as defined in the Plan) pursuant to the Plan and no adjustments to the Warrants have occurred under Section 12 herein, the aggregate number of shares of Common Stock issued or issuable upon exercise of all Warrants distributed to Creditors pursuant to the Plan (the "Underlying Common Stock") shall represent 20% of the sum of (i) the Underlying Common Stock plus (ii) any outstanding Shares of Common Stock as of the Effective Date of the Plan plus (iii) any additional distributions of Common Stock to Creditors pursuant to the Plan. SECTION 3. Form of Warrant Certificates. Subject to Section 6 of this Agreement, the Warrants shall be issued (1) in the form of one or more warrant certificates in definitive form (the "Definitive Warrant Certificates") in substantially the form set forth in Exhibit A-1 hereto, the forms of election to exercise and of assignment to be printed on the reverse thereof, and (2) in the form of one or more global certificates (the "Global Warrant Certificates"), the forms of election to exercise and of assignment to be printed on the reverse thereof, in substantially the form set forth in Exhibit A-2 hereto, in each case together with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rules made pursuant thereto or with any rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Warrant Certificates, as evidenced by their execution of the Warrant Certificates. The Global Warrant Certificates shall be deposited on or after the Initial Distribution Date with, or with the Warrant Agent as custodian for, The Depository Trust Company (the "Depositary") and registered in the name of Cede & Co., as the Depositary's nominee. Each Global Warrant Certificate shall represent such number of the outstanding Warrants as specified therein, and each shall provide that it shall represent the aggregate amount of outstanding Warrants from time to time endorsed thereon and that the aggregate amount of outstanding Warrants represented thereby may from time to time be reduced or increased, as appropriate, in accordance with the terms of this Agreement. 2 Upon request, a Holder (as defined below) may receive from the Depositary and the Warrant Agent Warrants in definitive form (the "Definitive Warrant Certificates" and, together with the Global Warrant Certificates, the "Warrant Certificates"), substantially in the form of Exhibit A-1 as set forth in Section 6 below. SECTION 4. Execution of Warrant Certificates. Warrant Certificates shall be signed on behalf of the Company by its Chairman of the Board of Directors, its Chief Executive Officer, its President, a Vice President or its Treasurer (each, an "Officer"). Each such signature upon the Warrant Certificates may be in the form of a facsimile signature of any such Officer and may be imprinted or otherwise reproduced on the Warrant Certificates and for that purpose the Company may adopt and use the facsimile signature of any Officer. If any Officer who shall have signed any of the Warrant Certificates shall cease to be such officer before the Warrant Certificates so signed shall have been countersigned by the Warrant Agent or disposed of by the Company, such Warrant Certificates nevertheless may be countersigned and delivered or disposed of as though such Officer had not ceased to be such Officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by any person who, at the actual date of the execution of such Warrant Certificate, shall be a proper Officer of the Company to sign such Warrant Certificate, although at the date of the execution of this Agreement any such person was not such Officer. SECTION 5. Registration and Countersignature. The Warrant Agent shall, upon receipt of the Warrant Certificates duly executed on behalf of the Company, countersign one or more Warrant Certificates evidencing the Warrants and shall deliver such Warrant Certificates to or upon the written order of the Company. A Warrant Certificate shall be, and shall remain, subject to the provisions of this Agreement until such time as all of the Warrants evidenced thereby shall have been duly exercised or shall have expired or been canceled in accordance with the terms hereof. No Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been countersigned by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company shall be conclusive evidence that such Warrant Certificate so countersigned has been duly issued hereunder. The Warrant Agent shall keep, at an office designated for such purpose, books (the "Warrant Register") in which, subject to such reasonable regulations as it may prescribe, it shall register the Warrant Certificates and exchanges and transfers of outstanding Warrant Certificates in accordance with the procedures set forth in Section 6 of this Agreement, all in form satisfactory to the Company and the Warrant Agent. No service charge shall be made for any exchange or registration of transfer of the Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed on the Holder in connection with any such exchange or registration of transfer. The Warrant Agent shall have no obligation to effect an exchange or register a transfer unless and until any payments required by the immediately preceding sentence have been made. 3 Prior to due presentment for registration of transfer or exchange of any Warrant in accordance with the procedures set forth in this Agreement, the Warrant Agent and the Company may deem and treat the person in whose name any Warrant is registered (the "Holder" of such Warrant) as the absolute owner of such Warrant (notwithstanding any notation of ownership or other writing made in a Warrant Certificate by anyone), for the purpose of any exercise thereof, any distribution to the Holder thereof and for all other purposes, and neither the Warrant Agent nor the Company shall be affected by notice to the contrary. SECTION 6. Registration of Transfers and Exchanges. (a) Transfer and Exchange of Global Warrant Certificates or Beneficial Interests Therein. The transfer and exchange of Global Warrant Certificates or beneficial interests therein shall be effected through the Depositary, in accordance with this Agreement and the procedures of the Depositary therefor. (b) Exchange of a Beneficial Interest in a Global Warrant Certificate for a Definitive Warrant Certificate. (i) Any Holder of a beneficial interest in a Global Warrant Certificate may, upon request, exchange such beneficial interest for a Definitive Warrant Certificate. Upon receipt by the Warrant Agent from the Depositary or its nominee of written instructions or such other form of instructions as is customary for the Depositary on behalf of any person having a beneficial interest in a Global Warrant Certificate, the Warrant Agent shall cause, in accordance with the standing instructions and procedures existing between the Depositary and Warrant Agent, the number of Warrants represented by the Global Warrant Certificate to be reduced by the number of Warrants to be represented by the Definitive Warrant Certificates to be issued in exchange for the interest of such person in the Global Warrant Certificate and, following such reduction, the Company shall execute and the Warrant Agent shall countersign and deliver to the transferee, as the case may be, a Definitive Warrant Certificate. (ii) Definitive Warrant Certificates issued in exchange for a beneficial interest in a Global Warrant Certificate pursuant to this Section 6(b) shall be registered in such names as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Warrant Agent. The Warrant Agent shall deliver such Definitive Warrant Certificates to the persons in whose names such Warrants are so registered. (c) Transfer and Exchange of Definitive Warrant Certificates. When Definitive Warrant Certificates are presented to the Warrant Agent with a request: (i) to register the transfer of the Definitive Warrant Certificates; or (ii) to exchange such Definitive Warrant Certificates for an equal number of Definitive Warrant Certificates of other authorized denominations, the Warrant Agent shall register the transfer or make the exchange as requested if its requirements for such transactions are met; provided, however, that the Definitive Warrant Certificates presented or surrendered for registration of transfer or 4 exchange shall be duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Warrant Agent, duly executed by the Holder thereof or by his attorney, duly authorized in writing. (d) Restrictions on Exchange or Transfer of a Definitive Warrant Certificate for a Beneficial Interest in a Global Warrant Certificate. A Definitive Warrant Certificate may not be exchanged for a beneficial interest in a Global Warrant Certificate except upon satisfaction of the requirements set forth below. Upon receipt by the Warrant Agent of a Definitive Warrant Certificate, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Warrant Agent, together with written instructions directing the Warrant Agent to make, or to direct the Depositary to make, an endorsement on the Global Warrant Certificate to reflect an increase in the number of Warrants represented by the Global Warrant Certificate equal to the number of Warrants represented by such Definitive Warrant Certificate, then the Warrant Agent shall cancel such Definitive Warrant Certificate and cause, or direct the Depositary to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Warrant Agent, the number of Warrants represented by the Global Warrant Certificate to be increased accordingly. If no Global Warrant Certificates are then outstanding, the Company shall issue and the Warrant Agent shall countersign a new Global Warrant Certificate representing the appropriate number of Warrants. (e) Restrictions on Transfer and Exchange of Global Warrant Certificates. Notwithstanding any other provisions of this Agreement (other than the provisions set forth in Section 6(f)), unless and until it is exchanged in whole for Definitive Warrant Certificates, a Global Warrant Certificate may not be transferred as a whole except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. (f) Countersigning of Definitive Warrant Certificates in Absence of Depositary. If at any time: (i) the Depositary for the Global Warrant Certificates notifies the Company that the Depositary is unwilling or unable to continue as Depositary for the Global Warrant Certificates and a successor Depositary for the Global Warrant Certificates is not appointed by the Company within 90 days after delivery of such notice; or (ii) the Company, in its sole discretion, notifies the Warrant Agent in writing that it elects to cause the issuance of Definitive Warrant Certificates under this Agreement, then the Company shall execute, and the Warrant Agent, upon written instructions signed by an officer of the Company, shall countersign and deliver Definitive Warrant Certificates, in an aggregate number equal to the number of Warrants represented by the Global Warrant Certificates, in exchange for such Global Warrant Certificates. 5 (g) No Warrants, or Shares issuable upon exercise of the Warrants, shall be sold, exchanged or otherwise transferred in violation of the Securities Act of 1933, as amended (the "Securities Act"), or state securities laws. (h) Cancellation of Global Warrant Certificate. At such time as all beneficial interests in Global Warrant Certificates have either been exchanged for Definitive Warrant Certificates, redeemed, repurchased or cancelled, all Global Warrant Certificates shall be returned to, or retained and cancelled by, the Warrant Agent. (i) Obligations with Respect to Transfers and Exchanges of Warrants. (i) To permit registrations of transfers and exchanges, the Company shall execute and the Warrant Agent is hereby authorized to countersign, in accordance with the provisions of Section 3 and this Section 6, Definitive Warrant Certificates and Global Warrant Certificates as required pursuant to the provisions of this Section 6 and for the purpose of any distribution of additional Warrant Certificates contemplated by Section 12. (ii) All Definitive Warrant Certificates and Global Warrant Certificates issued upon any registration of transfer or exchange of Definitive Warrant Certificates or Global Warrant Certificates shall be the valid obligations of the Company, entitled to the same benefits under this Agreement as the Definitive Warrant Certificates or Global Warrant Certificates surrendered upon such registration of transfer or exchange. (iii) No service charge shall be made to a Holder for any registration, transfer or exchange but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed on the Holder in connection with any such exchange or registration of transfer. (iv) So long as the Depositary, or its nominee, is the registered owner of a Global Warrant Certificate, the Depositary or such nominee, as the case may be, will be considered the sole owner or holder of the Warrants represented by such Global Warrant Certificate for all purposes under this Agreement. Except as provided in Section 6(b) upon the exchange of a beneficial interest in a Global Warrant Certificate for a Definitive Warrant Certificate, owners of beneficial interests in a Global Warrant Certificate will not be entitled to have any Warrants registered in their names, and will not receive or be entitled to receive physical delivery of any such Warrants as Definitive Warrant Certificates and will not be considered the owners or holders thereof under the Warrants or this Agreement. Neither the Company nor the Warrant Agent, in its capacity as registrar for such Warrants, will have any responsibility or liability for any aspect of the records relating to beneficial interests in a Global Warrant Certificate or for maintaining, supervising or reviewing any records relating to such beneficial interests. (v) Subject to Sections 6(b), (c), (d) and this Section 6(i), the Warrant Agent shall, upon receipt of all information required to be delivered hereunder, 6 from time to time register the transfer of any outstanding Warrants represented by Warrant Certificates in the Warrant Register, upon surrender of Warrant Certificates representing such Warrants at the Warrant Agent Office (as defined below), duly endorsed, and accompanied by a completed form of assignment, duly signed by the Holder thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, such signature to be guaranteed by an eligible guarantor institution. Upon any such registration of transfer, a new Warrant Certificate shall be issued to the transferee. SECTION 7. Duration and Exercise of Warrants. (a) Each Warrant shall be exercisable, in whole or in part, at any time and from time to time beginning three months after the Initial Distribution Date (the "Initial Date") and ending at 5:00 p.m., New York City time, on May 5, 2011 (such date, the "Expiration Date"). On the Expiration Date, the Warrants will become void and of no value. (b) Subject to the provisions of this Agreement, including Section 12, each Warrant shall entitle the holder thereof to purchase from the Company (and the Company shall issue and sell to such holder) one fully paid and nonassessable Share at a price equal to $32.11 per share (as the same may be hereafter adjusted pursuant to Section 12, the "Exercise Price"). (c) From and after the Initial Date and until 5:00 p.m., New York City time, on the Expiration Date with respect to such Warrant, the Holder of a Warrant may exercise such Holder's right to purchase Shares by: (i) providing written notice of such election ("Warrant Exercise Notice") to exercise the Warrant to the Warrant Agent at the address set forth in Section 19 hereof, "Re: Exide Technologies Warrant Exercise", by hand, by overnight courier or by facsimile, received by the Warrant Agent no later than 5:00 p.m., New York City time, on the Expiration Date, which Warrant Exercise Notice shall be in the form of an election to purchase Shares substantially in the form set forth either (x) in Exhibit B-1 hereto, properly completed and executed by the Holder; provided that such written notice may only be submitted by persons who hold Definitive Warrant Certificates, or (y) in Exhibit B-2 hereto, properly completed and executed by the Holder; provided that such written notice may only be submitted with respect to Warrants held through the book-entry facilities of the Depositary, by or through persons that are direct participants in the Depositary; (ii) delivering, either (x) no later than 5:00 p.m., New York City time, on the business day immediately prior to the Settlement Date (as defined below) such Warrants to the Warrant Agent by book-entry transfer through the facilities of the Depositary or (y) no later than 5:00 p.m., New York City time, on the business day immediately prior to the Settlement Date, the Warrant Certificates evidencing such Warrants to the Warrant Agent if Definitive Warrant Certificates have been issued and delivered pursuant to Section 3; and 7 (iii) paying the applicable Exercise Price multiplied by the number of Shares in respect of which such Warrants are being exercised (the "Exercise Amount"), together with any applicable taxes and governmental charges. The date three business days after a Warrant Exercise Notice is delivered is referred to for all purposes under this Agreement as the "Settlement Date". (d) The Exercise Amount shall be payable in lawful money of the United States of America either by certified or official bank or bank cashier's check payable to the order of the Company, or by wire transfer in immediately available funds of the Exercise Amount to the following account of the Warrant Agent: Chase ABA ________, Acct _________ or such account of the Warrant Agent to be specified in writing by the Warrant Agent for such purpose from time to time. (e) Any exercise of a Warrant pursuant to the terms of this Agreement shall be irrevocable and shall constitute a binding agreement between the Holder and the Company, enforceable in accordance with its terms. (f) The Warrant Agent shall: (i) examine all Warrant Exercise Notices and all other documents delivered to it by or on behalf of holders as contemplated by the Warrant Certificates to ascertain whether, on their face, such Warrant Exercise Notices and any such other documents have been executed and completed in accordance with their terms and the terms of the Warrant Certificates; (ii) where a Warrant Exercise Notice or other document appears on its face to have been improperly completed or executed or some other irregularity in connection with the exercise of the Warrants exists, the Warrant Agent shall endeavor to inform the appropriate parties (including the person submitting such instrument) of the need for fulfillment of all requirements, specifying those requirements which appear to be unfulfilled; (iii) inform the Company of and cooperate with and assist the Company in resolving any reconciliation problems between Warrant Exercise Notices received and delivery of Warrants to the Warrant Agent's account; (iv) advise the Company no later than one business day after receipt of a Warrant Exercise Notice, of (i) the receipt of such Warrant Exercise Notice and the number of Warrants exercised in accordance with the terms and conditions of this Agreement, (ii) the instructions with respect to delivery of the shares of Common Stock of the Company deliverable upon such exercise, subject to timely receipt from the Depositary of the necessary information, and (iii) such other information as the Company shall reasonably require; and (v) subject to Common Stock being made available to the Warrant Agent by or on behalf of the Company for delivery to the Depositary, liaise with the Depositary and endeavor to effect such delivery to the relevant accounts at the Depositary in accordance with its requirements. 8 (g) All questions as to the validity, form and sufficiency (including time of receipt) of a Warrant exercise will be determined by the Company in its sole discretion, which determination shall be final and binding. The Warrant Agent shall incur no liability for or in respect of such determination by the Company. The Company reserves the right to reject any and all Warrant Exercise Notices not in proper form or for which any corresponding agreement by the Company to exchange would, in the opinion of the Company, be unlawful. Such determination by the Company shall be final and binding on the Holders, absent manifest error. Moreover, the Company reserves the absolute right to waive any of the conditions to the exercise of Warrants or defects in Warrant Exercise Notices with regard to any particular exercise of Warrants. The Company shall be under no duty to give notice to the Holders of the Warrants of any irregularities in any exercise of Warrants, nor shall it incur any liability for the failure to give such notice. (h) As soon as practicable after the exercise of any Warrant, the Company shall issue, or otherwise deliver, in authorized denominations to or upon the order of the Holder of the Warrant Certificates evidencing such Warrants, either: (i) if such Holder holds the Warrants being exercised through the Depositary's book-entry transfer facilities, by same-day or next-day credit to the Depositary for the account of such Holder or for the account of a participant in the Depositary the number of Shares to which such Holder is entitled, in each case registered in such name and delivered to such account as directed in the Warrant Exercise Notice by such Holder or by the direct participant in the Depositary through which such Holder is acting, or (ii) if such Holder holds the Warrants being exercised in the form of Definitive Warrant Certificates, by delivery to the address designated by such Holder in its Warrant Exercise Notice of a physical certificate representing the number of Shares to which such Holder is entitled, in fully registered form, registered in such name or names as may be directed by such Holder. If less than all of the Warrants evidenced by a Warrant Certificate surrendered upon the exercise of Warrants are exercised at any time prior to the date of expiration for the Warrants, a new Warrant Certificate or Certificates shall be issued for the remaining number of Warrants evidenced by the Warrant Certificate so surrendered, and the Warrant Agent is hereby authorized to countersign the required new Warrant Certificate or Certificates pursuant to the provisions of Section 6 and this Section 7. SECTION 8. Cancellation of Warrants. If the Company shall purchase or otherwise acquire Warrants, the Warrant Certificates representing such Warrants shall thereupon be delivered to the Warrant Agent and be cancelled by it and retired. The Warrant Agent shall cancel all Warrant Certificates surrendered for exchange, substitution, transfer or exercise in whole or in part. Such cancelled Warrant Certificates shall thereafter be disposed of in a manner satisfactory to the Company. SECTION 9. Mutilated or Missing Warrant Certificates. If any of the Warrant Certificates shall be mutilated, lost, stolen or destroyed, the Company shall issue, and the 9 Warrant Agent shall countersign and deliver, in exchange and substitution for and upon cancellation of the mutilated Warrant Certificate, or in lieu of and substitution for the Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate of like tenor and representing an equivalent number of Warrants, but only upon receipt of evidence reasonably satisfactory to the Company and the Warrant Agent of the loss, theft or destruction of such Warrant Certificate and an affidavit or the posting of an indemnity or bond, if requested by either the Company or the Warrant Agent, also satisfactory to them. Applicants for such substitute Warrant Certificates shall also comply with such other reasonable regulations and pay such other reasonable charges as the Company or the Warrant Agent may prescribe and as required by Section 8-405 of the Uniform Commercial Code as in effect in the State of New York. SECTION 10. Reservation of Shares. For the purpose of enabling it to satisfy any obligation to issue Shares upon exercise of Warrants, the Company will at all times through the Expiration Date, reserve and keep available, free from preemptive rights and out of its aggregate authorized but unissued or treasury shares of Common Stock, the number of Shares deliverable upon the exercise of all outstanding Warrants, and the transfer agent for the Company's Common Stock (such agent, in such capacity, as may from time to time be appointed by the Company, the "Transfer Agent") is hereby irrevocably authorized and directed at all times to reserve such number of authorized and unissued or treasury shares of Common Stock as shall be required for such purpose. The Company will keep a copy of this Agreement on file with such Transfer Agent and with every transfer agent for any Shares issuable upon the exercise of Warrants pursuant to Section 7. The Warrant Agent is hereby irrevocably authorized to requisition from time to time from such Transfer Agent stock certificates issuable upon exercise of outstanding Warrants, and the Company will supply such Transfer Agent with duly executed stock certificates for such purpose. Before taking any action that would cause an adjustment pursuant to Section 12 reducing any Exercise Price below the then par value (if any) of the Shares issuable upon exercise of the Warrants, the Company will take any corporate action that may, in the opinion or based on the advice of its counsel (which may be counsel employed by the Company), be necessary in order that the Company may validly and legally issue fully paid and nonassessable Shares at such Exercise Price as so adjusted. The Company covenants that all Shares issued upon exercise of the Warrants will, upon issuance in accordance with the terms of this Agreement, be fully paid and nonassessable and free from all taxes, liens, charges and security interests created by or imposed upon the Company with respect to the issuance and holding thereof. 10 SECTION 11. Stock Exchange Listings. So long as any Warrants remain outstanding, the Company will use its best efforts and take all necessary action to have the Warrants and the Shares, immediately upon their issuance upon exercise of Warrants, (i) listed on each national securities exchange on which the Common Stock is then listed or (ii) if the Common Stock is not then listed on any national securities exchange, listed for quotation on the Nasdaq National Market System or such other over-the-counter quotation system, if any, on which the Common Stock may then be listed. SECTION 12. Adjustment of Exercise Price and Number of Shares Purchasable or Number of Warrants. The Exercise Price, the number of Shares purchasable upon the exercise of each Warrant and the number of Warrants outstanding are subject to adjustment from time to time upon the occurrence of the events enumerated in this Section 12. (a) Adjustments for dividends, distributions, etc. If the Company at any time or from time to time after the date hereof shall (i) pay a dividend or make a distribution on Common Stock consisting of shares of Common Stock, (ii) subdivide its outstanding Shares, (iii) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock or (iv) issue, in a reclassification of the Common Stock, other securities of the Company (including any such reclassification in connection with a consolidation or merger of the Company in which the Company is the surviving entity), the number of Shares purchasable upon exercise of each Warrant immediately prior thereto shall be adjusted so that the Holder of each Warrant shall be entitled upon exercise to receive the kind and number of Shares or other securities of the Company that such Holder would have owned or have been entitled to receive after the happening of any of the events described above, had such Warrant been exercised immediately prior to the happening of such event or any record date with respect thereto. An adjustment made pursuant to this paragraph (a) shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event. (b) Adjustments for distributions of cash or assets, etc. If the Company at any time or from time to time after the date hereof shall distribute to all holders of Common Stock (including any such distribution made to the stockholders of the Company in connection with a consolidation or merger in which the Company is the continuing corporation) evidences of its indebtedness, cash or assets (other than (A) distributions and dividends payable in shares of Common Stock or (B) cash dividends or distributions paid out of retained earnings or surplus legally available for such dividends or distributions), then, in each case, the Exercise Price shall be adjusted by multiplying the Exercise Price in effect immediately prior to the record date for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the Market Price per share of Common Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, following the receipt of a valuation by an independent investment bank of national standing selected by the Board of Directors) of the portion of the evidences of indebtedness or assets so to be distributed, applicable to one share of Common Stock, and the denominator of which shall be such Market Price per share of Common Stock. Such adjustment shall become effective at the close of business on such record date. The term "Market Price" shall mean, with respect to any security (including Common Stock), as of a specified date (the "date of calculation"): (x) the average closing price of a such security for the ten consecutive trading days immediately preceding, but not including, the calculation date as reported on the principal national securities 11 exchange on which the security is listed or admitted to trading or (y) if not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices during such ten trading day period in the over-the-counter market as reported by the NASD Automated Quotation System ("Nasdaq") National Market or any comparable system or (z) in all other cases, as determined in good faith by the Board of Directors of the Company, based on a written valuation by an independent investment bank of national standing selected by the Board of Directors. (c) Adjustments for Organic Change with Consideration Consisting Solely of Cash. If, on or prior to the third anniversary of the Effective Date, (A) the Company reorganizes its capital stock, reclassifies its capital stock or consolidates or merges with or into another person or enters into a business combination with another person (in the case of a reorganization, reclassification, consolidation, merger or business combination where the Company is not the surviving person (such successor or acquiring person being referred to as the "Successor Person")), or sells, leases, transfers or otherwise disposes of all or substantially all of its property, assets or business to another person (each, an "Organic Change"), (B) pursuant to the terms of such Organic Change, the consideration to be received by or distributed to the holders of Common Stock of the Company consists solely of cash; and (C) the aggregate value of such consideration to be distributed to the holders of Common Stock is less than the Maximum Consideration, then the Successor Person shall purchase the Warrants on the effective date of the Organic Change for an amount in cash equal to the Purchase Price. (d) Adjustments for Organic Change with Publicly Traded Company and Consideration Consisting of Registered and Listed Shares and/or Other Property. If, on or prior to the third anniversary of the Effective Date, (A) the Company consummates an Organic Change, (B) the Successor Person is a Publicly Traded Company, (C) pursuant to the terms of such Organic Change, the holders of Common Stock of the Company receive consideration consisting solely of Registered Shares of the Successor Person that are (or will, within 30 days following the Organic Change Date, be) Listed or Admitted for Trading and/or Other Property, and (D) the aggregate value of such consideration (as determined in good faith by the Board of Directors based on a written valuation by an independent investment bank of national standing selected by the Board of Directors) to be distributed to the holders of Common Stock is less than the Maximum Consideration, then the Successor Person shall elect to either: (i) provide the Holder with the right to acquire and receive upon exercise of such Warrants, the number of Registered Shares of Successor Person and/or Other Property such Holder would have been entitled to receive had such Holder exercised the Warrant immediately prior to such Organic Change; or (ii) purchase the Warrants on the effective date of the Organic Change for an amount in cash equal to the Purchase Price. (e) Adjustments for Organic Change with Publicly Traded Company and Consideration Consisting of Combination of Cash and Registered and Listed Shares and/or Other Property. If, on or prior to the third anniversary of the Effective Date, (A) the Company consummates an Organic Change, (B) the Successor Person is a Publicly Traded Company, (C) pursuant to the terms of such Organic Change, the holders of Common Stock of the Company 12 receive consideration consisting of a combination of cash and Registered Shares of the Successor Person that are (or will, within 30 days following the Organic Change Date, be) Listed or Admitted for Trading and/or Other Property, and (D) the aggregate value of such consideration (as determined in good faith by the Board of Directors based on a written valuation by an independent investment bank of national standing selected by the Board of Directors) to be distributed to the holders of Common Stock is less than the Maximum Consideration, then the Successor Person shall elect to either: (i) provide the Holders of the Warrants with the right to acquire and receive, upon exercise of such Warrants, (A) the number of Registered Shares of the Successor Person and/or Other Property such Holder would have been entitled to receive had such Holder exercised this Warrant immediately prior to such Organic Change and (B) an amount of cash equal to a proportion of the Purchase Price which is equal to the same proportion that the cash amount offered to the holders of shares of Common Stock bears to the Registered Shares and/or Other Property which is offered to the holders of shares of Common Stock; or (ii) purchase the Warrants on the effective date of the Organic Change for an amount in cash equal to the Purchase Price. (f) Adjustments for Organic Change with Private Company as Successor Person. If, on or prior to the third anniversary of the Effective Date, (A) the Company consummates an Organic Change, (B) the Successor Person is not a Publicly Traded Company, and (C) the aggregate value of such consideration (as determined in good faith by the Board of Directors based on a written valuation by an independent investment bank of national standing selected by the Board of Directors) to be distributed to the holders of Common Stock is less than the Maximum Consideration, then the Successor Person shall purchase the Warrants on the effective date of the Organic Change for an amount in cash equal to the Purchase Price. (g) Adjustments for Organic Change for an Amount Greater than the Maximum Consideration. If, on or prior to the third anniversary of the Effective Date, (A) the Company consummates an Organic Change which shall be effected in such a way that the holders of the Common Stock shall be entitled to receive stock, securities, cash or Other Property (whether such stock, securities, cash or Other Property are issued or distributed by the Company or any other person) with respect to or in exchange for the Common Stock, (B) the aggregate value of such consideration (as determined in good faith by the Board of Directors based on a written valuation by an independent investment bank of national standing selected by the Board of Directors) to be distributed to the holders of Common Stock is greater than the Maximum Consideration and (C) whether or not the Successor Person is a Publicly Traded Company, then, as a condition of such Organic Change, lawful and adequate provision shall be made whereby the Holders of the Warrants shall have the right to acquire and receive upon exercise of such Warrants such shares of stock, securities, cash or Other Property issuable or payable (as part of the Organic Change) with respect to or in exchange for such number of outstanding shares of Common Stock as they would have been entitled to receive upon exercise of such Warrants had such Warrants been exercised immediately before such Organic Change, subject to adjustments (as determined in good faith by the Board of Directors). 13 (h) Adjustments for Organic Change Three Years after the Effective Date. If, following the third anniversary of the Effective Date, (A) the Company consummates an Organic Change which shall be effected in such a way that the holders of the Common Stock shall be entitled to receive stock, securities, cash or Other Property (whether such stock, securities, cash or Other Property are issued or distributed by the Company or any other person) with respect to or in exchange for the Common Stock, (B) whether or not the aggregate value of such consideration to be distributed to the holders of Common Stock is less than the Maximum Consideration, and (C) whether or not the Successor Person is a Publicly Traded Company, then, as a condition of such Organic Change, lawful and adequate provision shall be made whereby the Holders of the Warrants shall have the right to acquire and receive upon exercise of such Warrants such shares of stock, securities, cash or Other Property issuable or payable (as part of the Organic Change) with respect to or in exchange for such number of outstanding shares of Common Stock as they would have been entitled to receive upon exercise of such Warrants had such Warrants been exercised immediately before such Organic Change, subject to adjustments (as determined in good faith by the Board of Directors). (i) Assumption by Successor Person. In the event of any Organic Change contemplated by Section 12(b) through (h) above, effective provisions shall be made in the certificate or articles of incorporation of the Successor Person, or in any contract of sale, merger, conveyance, lease, transfer or otherwise, so that the provisions set forth herein for the protection of the rights of the Holders of the Warrants shall thereafter continue to be applicable; and any such Successor Person shall expressly assume all of the obligations set forth under Section 12(b) through (h) above. (j) Notices. The Successor Company shall notify the Company, which in turn shall notify all Holders, in the manner provided in Section 14, of the Organic Change at least seven (7) days prior to the Organic Change Date. Such notice shall state: (i) the option elected by the Successor Person pursuant to Section 12(d) or Section 12(e) hereof; (ii) the expected Organic Change Date; (iii) the Purchase Price, if applicable; (iv) a detailed description of the consideration to be paid per share of Common Stock in the Organic Change to the holders of Common Stock; and (v) a description of the procedure and the place or places where Warrants are to be surrendered for payment of the Purchase Price. No failure of the Company to give the foregoing notices or defect therein shall limit the Successor Person's right to, or affect the validity of the proceedings for, the purchase of Warrants. (k) Definitions. For purposes of Section 12: (i) "Black Scholes Warrant Value" shall mean the value of a Warrant on an Organic Change Date as determined by the Board of Directors immediately 14 prior to such Organic Change (based upon the advice of an independent investment bank of national standing selected by the Board of Directors) and shall be determined by customary nationally recognized investment banking practices using the Black Scholes model. For purposes of calculating such amount, (1) the term of the Warrants will be the time from the Organic Change Date to the Expiration Date, (2) the assumed volatility will be 40%, (3) the assumed risk-free rate will equal the yield on the five-year U.S. Treasury securities, (4) the price for each share of Common Stock will be (x) the average closing price of a share of Common Stock for the five consecutive trading days immediately preceding, but not including, the Organic Change Date as reported on the principal national securities exchange on which the shares of Common Stock are Listed or Admitted for Trading or (y) if not Listed or Admitted for Trading on any national securities exchange, the average of the closing bid and asked prices during such five trading day period in the over-the-counter market as reported by the Nasdaq National Market or any comparable system or (z) in all other cases, as determined in good faith by the Board of Directors of the Company, following the receipt of a valuation by an independent bank of national standing selected by the Board of Directors and (v) the Exercise Price, as adjusted. For illustrative purposes only, an example of the determination of the Black Scholes Warrant Value is attached hereto as Exhibit D. The example of the determination of the Black Scholes Warrant Value set forth on Exhibit D shall not be binding on the Board of Directors or the investment bank selected by the Company in their determination of Black Scholes Warrant Value, it being understood that such investment bank's advice may result in a different calculation of Black Scholes Warrant Value, despite using the same assumptions set forth above. (ii) "Listed or Admitted for Trading" means that the Registered Shares are listed for trading on the New York Stock Exchange or the Registered Shares are admitted for trading on the Nasdaq National Market System. (iii) "Maximum Consideration" means $957,300,000. (iv) "Organic Change Date" means the date on which an Organic Change is consummated. (v) "Other Property" means any property other than cash or Qualifying Common Equity Securities. (vi) "Publicly Traded Company" means a Successor Person whose shares of common stock (i) are Registered Shares and (ii) are Listed or Admitted for Trading (or will be Listed or Admitted for Trading within 30 days following the Organic Change Date). (vii) "Purchase Price" means, with respect to an Organic Change occurring: 15 (1) during the period commencing on the Effective Date until and including the second anniversary thereof, the Black Scholes Warrant Value; and (2) during the period commencing on the day after the second anniversary of the Effective Date until and including the third anniversary thereof, (x) 0.50 multiplied by (y) the Black Scholes Warrant Value. (viii) "Registered Shares" means shares which have been registered (or will be registered within 30 calendar days following the Organic Change Date) under Section 12 of the Securities Exchange Act of 1934, as amended, with the Securities and Exchange Commission. (ix) "Qualifying Common Equity Securities" means the regular common stock of the surviving entity in a consolidation, merger, combination or the acquiring entity in a tender or exchange offer, except that if the surviving entity or acquiring entity has a parent corporation, it shall be the regular common stock of the parent corporation. (l) Adjustments for the issuance of Common Stock at less than Market Price. (i) If the Company issues or sells any Common Stock other than Excluded Stock without consideration or for consideration per share less than the Market Price of the Common Stock, as of the day of such issuance or sale, the Exercise Price in effect immediately prior to each such issuance or sale will immediately (except as provided below) be reduced to the price determined by multiplying the Exercise Price, in effect immediately prior to such issuance or sale, by a fraction, (1) the numerator of which shall be (x) the number of shares of Common Stock outstanding immediately prior to such issuance or sale plus (y) the number of shares of Common Stock which the aggregate consideration received by the Company for the total number of such additional shares of Common Stock so issued or sold would purchase at the Market Price on the last trading day immediately preceding such issuance or sale and (2) the denominator of which shall be the number of shares of Common Stock outstanding immediately after such issue or sale. In such event, the number of shares of Common Stock issuable upon the exercise of this Warrant shall be increased to the number obtained by dividing (i) the product of (a) the number of Shares issuable upon the exercise of this Warrant before such adjustment, and (b) the Exercise Price in effect immediately prior to the issuance giving rise to this adjustment by (ii) the new Exercise Price determined in accordance with the immediately preceding sentence. For the purposes of any adjustment of the Exercise Price and the number of Shares issuable upon exercise of this Warrant pursuant to this Section 12(l), the following provisions shall be applicable: (1) In the case of the issuance of Common Stock for cash, the amount of the consideration received by the Company shall be deemed to be the amount of the cash proceeds received by the Company for such 16 Common Stock before deducting therefrom any discounts or commissions allowed, paid or incurred by the Company for any underwriting or placement in connection with the issuance and sale thereof. (2) In the case of the issuance of Common Stock (otherwise than upon the conversion of any securities of the Company) for a consideration in whole or in part other than cash, including securities acquired in exchange therefor (other than securities by their terms so exchangeable), the consideration other than cash shall be deemed to be the fair value thereof (which, in the case of consideration consisting of securities which are publicly traded, the Market Price of such securities) as determined by the Board of Directors based on a written valuation from an independent investment bank of national standing selected by the Board of Directors. (3) In the case of the issuance of (a) options, warrants or other rights to purchase or acquire Common Stock (whether or not at the time exercisable) or (b) securities by their terms convertible into or exchangeable for Common Stock (whether or not at the time so convertible or exchangeable) or options, warrants or rights to purchase such convertible or exchangeable securities (whether or not at the time exercisable): (a) the aggregate maximum number of shares of Common Stock deliverable upon exercise of such options, warrants or other rights to purchase or acquire Common Stock shall be deemed to have been issued at the time such options, warrants or rights are issued and for a consideration equal to the consideration (determined in the manner provided in Section 12(l)(1) and (2)), if any, received by the Company upon the issuance of such options, warrants or rights plus the minimum purchase price provided in such options, warrants or rights for the Common Stock covered thereby; (b) the aggregate maximum number of shares of Common Stock deliverable upon conversion of or in exchange for any such convertible or exchangeable securities, or upon the exercise of options, warrants or other rights to purchase or acquire such convertible or exchangeable securities and the subsequent conversion or exchange thereof, shall be deemed to have been issued at the time such securities were issued or such options, warrants or rights were issued and for a consideration equal to the consideration, if any, received by the Company for any such securities and related options, warrants or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the additional consideration (determined in the manner provided in Section 12(l)(1) and (2)), if any, to be received by the 17 Company upon the conversion or exchange of such securities, or upon the exercise of any related options, warrants or rights to purchase or acquire such convertible or exchangeable securities and the subsequent conversion or exchange thereof; (c) on any change in the number of shares of Common Stock deliverable upon exercise of any such options, warrants or rights or conversion or exchange of such convertible or exchangeable securities or any change in the consideration to be received by the Company upon such exercise, conversion or exchange, but excluding changes resulting from the anti-dilution provisions thereof (to the extent comparable to the anti-dilution provisions contained herein), the Exercise Price and the number of Shares issuable upon exercise of this Warrant as then in effect shall forthwith be readjusted to such Exercise Price and number of Shares as would have been obtained had an adjustment been made upon the issuance of such options, warrants or rights not exercised prior to such change, or of such convertible or exchangeable securities not converted or exchanged prior to such change, upon the basis of such change; (d) on the expiration or cancellation of any such options, warrants or rights (without exercise), or the termination of the right to convert or exchange such convertible or exchangeable securities (without exercise), if the Exercise Price and the number of Shares issuable upon exercise of this Warrant shall have been adjusted upon the issuance thereof, the Exercise Price and the number of Shares issuable upon exercise of this Warrant shall forthwith be readjusted to such Exercise Price and number of Shares as would have been obtained had an adjustment been made upon the issuance of such options, warrants, rights or such convertible or exchangeable securities on the basis of the issuance of only the number of shares of Common Stock actually issued upon the exercise of such options, warrants or rights, or upon the conversion or exchange of such convertible or exchangeable securities; and (e) if the Exercise Price and the number of Shares issuable upon exercise of this Warrant shall have been adjusted upon the issuance of any such options, warrants, rights or convertible or exchangeable securities, no further adjustment of the Exercise Price and the number of Shares issuable upon exercise of this Warrant shall be made for the actual issuance of Common Stock upon the exercise, conversion or exchange thereof. (ii) For the purposes of Section 12 (l), the following definitions apply: 18 (1) "Excluded Stock" means: (a) shares of Common Stock issued by the Company as a stock dividend payable in shares of Common Stock, or upon any subdivision or split-up of the outstanding shares of Common Stock in each case which is subject to Section 12(a) (but not the issuance of such Common Stock which will be subject to the provisions of Section 12(l)(i)(3)); (b) the issuance of shares of Common Stock in any registered firm commitment underwritten public offering which, for the avoidance of doubt, shall not be taken to include a transaction involving a private placement of shares of Common Stock in the Company, including one which is followed by a registration statement of the shares so placed within 90 days of the closing of such placement (provided further, however, that the determination of Market Price in such private placement transaction shall not take into account usual and customary placement agent fees, discounts and commissions); (c) the issuance of Common Stock in connection with any debt financing (including upon the exercise of any warrants issued in connection with such financings) approved by the Board of Directors from or with one or more unaffiliated third parties, provided that any such issuances, in the aggregate, shall in no event exceed 10% of the then current outstanding shares of Common Stock (calculated on a fully diluted basis, as adjusted); (d) the issuance of shares of Common Stock (including upon exercise of options) to directors, officers, and covered employees of the Company pursuant to the Company Incentive Plan (as defined in the Plan); (e) the issuance of shares of Common Stock in connection with acquisitions of assets or securities of another Person (other than issuances to affiliates of the Company) in a bona fide arm's length transaction approved by the Board of Directors, where the price of the shares of Common Stock at issuance is lower than the Market Price on the date the agreement for such acquisition was executed by virtue of a change in the trading price of the shares of Common Stock; (f) the issuance of Common Stock and Warrants in connection with the Plan; and (2) "Market Price" has the meaning given in Section 12(b). 19 (m) No adjustment in the number of Shares purchasable hereunder shall be required unless such adjustment would require an increase or decrease of at least one percent (1.0%) in the number of Shares purchasable upon the exercise of each Warrant; provided, however, that any adjustments that by reason of this Section 12(m) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations shall be made to the nearest cent and to the nearest one-hundredth of a share of Common Stock, as the case may be. (n) Whenever the number of shares of Common Stock purchasable upon the exercise of any Warrant is adjusted as herein provided (whether or not the Company then or thereafter elects to issue additional Warrants in substitution for an adjustment in the number of Shares as provided in Section 12(p)), the Exercise Price payable upon exercise of such Warrant shall be adjusted by multiplying such Exercise Price immediately prior to such adjustment by a fraction, of which the numerator shall be the number of Shares purchasable upon the exercise of such Warrant immediately prior to such adjustment, and of which the denominator shall be the number of Shares so purchasable immediately thereafter. (o) For the purpose of this Section 12, the term "shares of Common Stock" shall mean (i) the shares of stock designated as the Common Stock of the Company at the date of this Agreement, or (ii) any other class of stock resulting from successive changes or reclassification of such shares consisting solely of changes in par value, or from par value to no par value, or from no par value to par value. If at any time, as a result of an adjustment made pursuant to Section 12(a), the holders of Warrants shall become entitled to purchase any shares of the Company other than shares of Common Stock, thereafter the number of such other shares so purchasable upon exercise of each Warrant and the applicable Exercise Price of such shares shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to such shares contained in Section 12(a) through (n), inclusive, above, and the provisions contained in this Agreement with respect to such shares of Common Stock, shall apply on like terms to any such other shares. (p) The Company may elect, in its sole discretion, on or after the date of any adjustment required by paragraphs (a) through (n) of this Section 12, to adjust the number of Warrants in substitution for an adjustment in the number of Shares purchasable upon the exercise of a Warrant. Each of the Warrants outstanding after such adjustment of the number of Warrants shall be exercisable for the same number of Shares as immediately prior to such adjustment. Each Warrant held of record prior to such adjustment of the number of Warrants shall become that number of Warrants (calculated to the nearest one-hundredth) obtained by dividing the applicable Exercise Price in effect prior to adjustment of such Exercise Price by the applicable Exercise Price in effect after adjustment of such Exercise Price. The Company shall notify the holders of Warrants of its election to adjust the number of Warrants in the same manner as provided in the first paragraph of Section 14, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made, and shall give prompt written notice thereof to the Warrant Agent. This record date may be the date on which the Exercise Price is adjusted or any day thereafter. Upon each adjustment of the number of Warrants pursuant to this Section 12(p) the Company shall, as promptly as practicable, cause to be distributed to holders of record of Warrants on such record date Warrant Certificates evidencing, subject to Section 13, the additional Warrants to which such holders shall be entitled as a result 20 of such adjustment, or, at the option of the Company, shall cause to be distributed to such holders of record in substitution and replacement for the Warrant Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Company, new Warrant Certificates evidencing all the Warrants to be issued, executed and registered in the manner specified in Sections 4 and 5 (and which may bear, at the option of the Company, the applicable adjusted Exercise Price) and shall be registered in the names of the holders of record of Warrant Certificates on the record date specified in the notice. (q) Except as provided in Section 12(a), no adjustment in respect of any dividends shall be made during the term of a Warrant or upon the exercise of a Warrant. (r) Irrespective of any adjustments in an Exercise Price or the number or kind of shares of Common Stock purchasable upon the exercise of the Warrants, Warrants theretofore or thereafter issued may continue to express the same price and number and kind of shares of Common Stock as are stated in the Warrants initially issuable pursuant to this Agreement. The Company, however, may at any time in its sole discretion make any change in the form of Warrant Certificate that it may deem appropriate to give effect to such adjustments and that does not affect the substance of the Warrant Certificate (including the rights, duties or obligations of the Warrant Agent), and any Warrant Certificate thereafter issued, whether in exchange or substitution for an outstanding Warrant Certificate or otherwise, may be in the form as so changed. SECTION 13. Fractional Shares. Notwithstanding any adjustment pursuant to Section 12 in the number of Shares purchasable upon the exercise of a Warrant, the Company shall not be required to issue Warrants to purchase fractions of Shares, or to issue fractions of Shares upon exercise of the Warrants, or to distribute certificates which evidence fractional Shares. SECTION 14. Notices to Warrantholders. Upon any adjustment of the number of Shares purchasable upon exercise of each Warrant, any Exercise Price or the number of Warrants outstanding including any adjustment pursuant to Section 12, the Company, within 20 calendar days thereafter (except as otherwise provided in Section 12(j)), shall (i) cause to be filed with the Warrant Agent a certificate signed by the Chairman of the Board, Chief Executive Officer, the President, any Vice President or Treasurer of the Company setting forth the event giving rise to such adjustment, such Exercise Price and either the number of Shares purchasable upon exercise of each Warrant or the additional number of Warrants to be issued for each previously outstanding Warrant, as the case may be, after such adjustment and setting forth in reasonable detail the method of calculation and the facts upon which such adjustment was made, which certificate shall be conclusive evidence of the correctness of the matters set forth therein, and (ii) cause to be given to each of the registered holders of the Warrant Certificates at such holder's address appearing on the Warrant Register, written notice of such adjustments by first-class mail, postage prepaid. Where appropriate, such notice may be given in advance and included as a part of the notice required to be mailed under the other provisions of this Section 14. The Warrant Agent shall be fully protected in relying in good faith on any such certificate and in making any adjustment described therein and shall have no duty with respect to, and shall not be deemed to have knowledge of, any adjustment unless and until it shall have received such a certificate. 21 If: (a) the Company shall order, declare, make or pay any dividend payable in any securities upon its shares of Common Stock or make any distribution (other than a cash dividend) to the holders of its shares of Common Stock; or (b) the Company shall offer to the holders of its shares of Common Stock any additional shares of Common Stock or securities convertible into shares of Common Stock or any right to subscribe thereto; (c) there shall be a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation, merger or sale of all or substantially all of its property, assets and business as an entirety); or (d) an Organic Change is to be consummated; then the Company shall (i) cause written notice of such event to be filed with the Warrant Agent and shall cause written notice of such event to be given to each of the registered holders of the Warrant Certificates at such holder's address appearing on the Warrant Register, by first-class mail, postage prepaid, and (ii) make a public announcement in a daily newspaper of general circulation in New York City of such event, and make prompt written notification thereof to the Warrant Agent, such giving of notice and publication to be completed at least 10 calendar days (or 20 calendar days in any case specified in paragraph (c) above) prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholders entitled to such dividend, distribution or subscription rights, or for the determination of stockholders entitled to vote on such proposed dissolution, liquidation or winding up. Such notice shall specify such record date or the date of closing the transfer books, as the case may be. The failure to give the notice required by this Section 14 or any defect therein shall not affect the legality or validity of any distribution, right, warrant, dissolution, liquidation or winding up or the vote upon or any other action taken in connection therewith. SECTION 15. Merger, Consolidation or Change of Name of Warrant Agent. Any person into which the Warrant Agent may be merged or converted or with which it may be consolidated, or any person resulting from any merger, conversion or consolidation to which the Warrant Agent is a party, or any person succeeding to the shareholder services business of the Warrant Agent, shall be the successor to the Warrant Agent hereunder without the execution or filing of any document or any further act on the part of any of the parties hereto, if such person would be eligible for appointment as a successor Warrant Agent under the provisions of Section 17. If any of the Warrant Certificates have been countersigned but not delivered at the time such successor to the Warrant Agent succeeds under this Agreement, any such successor to the Warrant Agent may adopt the countersignature of the original Warrant Agent; and if at that time any of the Warrant Certificates shall not have been countersigned, any successor to the Warrant Agent may countersign such Warrant Certificates either in the name of the predecessor Warrant Agent or in the name of the successor Warrant Agent; and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement. 22 If at any time the name of the Warrant Agent is changed and at such time any of the Warrant Certificates have been countersigned but not delivered, the Warrant Agent whose name has changed may adopt the countersignature under its prior name; and if at that time any of the Warrant Certificates have not been countersigned, the Warrant Agent may countersign such Warrant Certificates either in its prior name or in its changed name; and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement. Section 16. Warrant Agent. The Warrant Agent undertakes only the duties and obligations expressly imposed by this Agreement and the Warrant Certificate, in each case upon the following terms and conditions, by all of which the Company and the holders of Warrants, by their acceptance thereof, shall be bound: (a) The statements contained herein and in the Warrant Certificates shall be taken as statements of the Company, and the Warrant Agent assumes no responsibility for the accuracy of any of the same except such as describe the Warrant Agent or action taken or to be taken by it. Except as otherwise provided herein, the Warrant Agent assumes no responsibility with respect to the execution, delivery or distribution of the Warrant Certificates. (b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the covenants contained in this Agreement or in the Warrant Certificates to be complied with by the Company, nor shall it at any time be under any duty or responsibility to any holder of a Warrant to make or cause to be made any adjustment in any Exercise Price or in the number of Shares issuable upon exercise of any Warrant (except as instructed by the Company), or to determine whether any facts exist that may require any such adjustments, or with respect to the nature or extent of or method employed in making any such adjustments when made. (c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may also be counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or any holder of any Warrant Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, absent gross negligence, bad faith or willful misconduct (each as determined by a final order, judgment, ruling or decree of a court of competent jurisdiction) in the selection and continued retention of such counsel and the reliance on such counsel's advice. (d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Certificate for any action taken in reliance on any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. (e) The Company agrees to pay to the Warrant Agent reasonable compensation for all services rendered by the Warrant Agent under this Agreement, to reimburse the Warrant Agent upon demand for all reasonable out-of-pocket expenses incurred by the Warrant Agent in the preparation, administration, delivery, execution and amendment of this Agreement and the performance of its duties under this Agreement and to indemnify the Warrant 23 Agent and save it harmless against any and all losses, liabilities and expenses, including judgments, damages, fines, penalties, claims, demands, costs and reasonable counsel fees and expenses, for anything done or omitted by the Warrant Agent arising out of or in connection with this Agreement except as a result of its negligence, bad faith or willful misconduct (each as determined by a final order, judgment, ruling or decree of a court of competent jurisdiction). The costs and expenses incurred by the Warrant Agent in enforcing the right to indemnification shall be paid by the Company unless it is determined by a final order, judgment, decree or ruling of a court of competent jurisdiction that the Warrant Agent is not entitled to indemnification due to its negligence, bad faith or willful misconduct. Notwithstanding the foregoing, the Company shall not be responsible for any settlement made without its written consent. (f) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Certificates furnishes the Warrant Agent with reasonable security and indemnity for any costs or expenses that may be incurred. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery or judgment shall be for the ratable benefit of the registered holders of the Warrants, as their respective rights or interests may appear. (g) The Warrant Agent, and any stockholder, affiliate, director, officer or employee thereof, may buy, sell or deal in any of the Warrants or other securities of the Company or become pecuniarily interested in any transaction in which the Company is interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it was not the Warrant Agent under this Agreement, or a stockholder director, officer or employee of the Warrant Agent, as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity. (h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Agreement except in connection with its own negligence, bad faith or willful misconduct (each as determined by a final order, judgment, decree or ruling of a court of competent jurisdiction). In no event will the Warrant Agent be liable for special, indirect, incidental, punitive or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the possibility of such loss or damage. (i) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement. (j) The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due and validly authorized execution hereof by the Warrant Agent) or in respect of the validity or execution of 24 any Warrant Certificate (except its due and validly authorized countersignature thereof), nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Shares to be issued pursuant to this Agreement or any Warrant Certificate or as to whether the Shares will when issued be validly issued, fully paid and nonassessable or as to the Exercise Price or the number of Shares issuable upon exercise of any warrant. (k) The Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, the Secretary or an Assistant Secretary of the Company, and to apply to such officers for advice or instructions in connection with its duties, and such instructions shall be full authorization and protection to the Warrant Agent and the Warrant Agent shall not be liable for any action taken, suffered to be taken, or omitted to be taken by it in good faith in accordance with instructions of any such officer or in good faith reliance upon any statement signed by any one of such officers of the Company with respect to any fact or matter (unless other evidence in respect thereof is herein specifically prescribed) which may be deemed to be conclusively proved and established by such signed statement. (l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if it believes that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it. (m) If the Warrant Agent shall receive any notice or demand (other than notice of or demand for exercise of Warrants) addressed to the Company by any Holder pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such notice or demand to the Company. (n) No provision of this Agreement shall be construed to relieve the Warrant Agent from liability for its own bad faith or its willful misconduct. (o) The provisions of this Section 16 shall survive the termination of this Agreement, the exercise or expiration of the Warrants and the resignation or removal of the Warrant Agent. SECTION 17. Change of Warrant Agent. If the Warrant Agent resigns (such resignation to become effective not earlier than 90 calendar days after the giving of written notice thereof to the Company and the Holders) or shall be adjudged a bankrupt or an insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver of all or any substantial part of its property or affairs or shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay or meet its debts generally as they become due, or if an order of any court shall be entered approving any petition filed by or against the Warrant Agent under the provisions of bankruptcy laws or any similar legislation, or if a receiver, trustee or other similar official of it or of all or any substantial part of its property shall be appointed, or if any public officer shall take charge or control of it or of its property or affairs, for the purpose of 25 rehabilitation, conservation, protection, relief, winding up or liquidation, or becomes incapable of acting as Warrant Agent or if the Board of Directors of the Company by resolution removes the Warrant Agent (such removal to become effective not earlier than 30 calendar days after the filing of a certified copy of such resolution with the Warrant Agent and the giving of written notice of such removal to the registered holders of Warrant Certificates), the Company shall appoint a successor to the Warrant Agent. If the Company fails to make such appointment within a period of 60 calendar days after such removal or after it has been so notified in writing of such resignation or incapacity by the Warrant Agent or by the registered holder of a Warrant Certificate (in the case of incapacity), then the registered holder of any Warrant Certificate may apply to any court of competent jurisdiction for the appointment of a successor to the Warrant Agent. Pending appointment of a successor to the Warrant Agent, either by the Company or by such a court, the duties of the Warrant Agent shall be carried out by the Company. Any successor Warrant Agent, whether appointed by the Company or by such a court, shall be a bank or trust company, in good standing, incorporated under the laws of any state or of the United States of America. As soon as practicable after appointment of the successor Warrant Agent, the Company shall cause written notice of the change in the Warrant Agent to be given to each of the Holders at such Holder's address appearing on the Warrant Register. After appointment, the successor Warrant Agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Warrant Agent without further act or deed. The former Warrant Agent shall deliver and transfer to the successor Warrant Agent any property at the time held by it hereunder and execute and deliver, at the expense of the Company, any further assurance, conveyance, act or deed necessary for the purpose. Failure to give any notice provided for in this Section 17 or any defect therein, shall not affect the legality or validity of the removal of the Warrant Agent or the appointment of a successor Warrant Agent, as the case may be. SECTION 18. Holder Not Deemed a Stockholder. Nothing contained in this Agreement or in any of the Warrant Certificates shall be construed as conferring upon the holders thereof the right to vote or to receive dividends or to consent or to receive notice as stockholders in respect of the meetings of stockholders or for the election of directors of the Company or any other matter, or any rights whatsoever as stockholders of the Company. SECTION 19. Notices to Company and Warrant Agent. Any notice or demand authorized by this Agreement to be given or made by the Warrant Agent or by any Holder to or on the Company shall be sufficiently given or made if sent by certified mail, return receipt requested, addressed (until another address is filed in writing by the Company with the Warrant Agent), or by facsimile transmission with receipt confirmed, as follows: Exide Technologies 13000 Deerfield Parkway Building 200 Alpharetta, GA 30004 Attention: General Counsel Facsimile No.: (678) 566-9229 If the Company fails to maintain such office or agency or fails to give such notice of any change in the location thereof, presentation may be made and notices and demands may be served at the principal office of the Warrant Agent. 26 Any notice pursuant to this Agreement to be given by the Company or by any Holder to the Warrant Agent shall be sufficiently given if sent by certified mail, return receipt requested, addressed (until another address is filed in writing by the Warrant Agent with the Company), or by facsimile transmission with receipt confirmed, as follows: American Stock Transfer & Trust Company 59 Maiden Lane Plaza Level New York NY 10038 Attention: Executive Vice-President Facsimile No.: (718) 263-4588 The Warrant Agent maintains a Warrant Agent Office at: American Stock Transfer & Trust Company 59 Maiden Lane Plaza Level New York NY 10038 SECTION 20. Payment of Taxes and Charges. The Company will from time to time promptly pay to the Warrant Agent, or make provisions satisfactory to the Warrant Agent for the payment of, all taxes and charges that may be imposed by the United States or any state upon the Company or the Warrant Agent in connection with the issuance or delivery of Shares upon the exercise of any Warrants, but any taxes or charges in connection with the issuance of Warrant Certificates or certificates for Shares in any name other than that of the registered holder of the Warrant Certificate surrendered shall be paid by such registered holder; and, in such case, the Company shall not be required to issue or deliver any Warrant Certificate or certificate for Shares until such taxes or charges shall have been paid or it has been established to the Company's satisfaction that no tax or charge is due. The Warrant Agent shall have no duty or obligation under this Section unless and until it is satisfied that all such taxes and charges have been paid. SECTION 21. Supplements and Amendments. This Agreement constitutes the entire agreement and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof and may not be amended, except in a writing signed by both of them. The Company and the Warrant Agent may from time to time supplement or amend this Agreement or the Warrants (a) without the approval of any Holders in order to cure any ambiguity, manifest error or other mistake in this Agreement or the Warrants, or to correct or supplement any provision contained herein or in the Warrants that may be defective or inconsistent with any other provision herein or in the Warrants, or to make any other provisions in regard to matters or questions arising hereunder that the Company and the Warrant Agent may deem necessary or desirable and that shall not adversely affect, alter or change the interests of the Holders or (b) with the prior written consent of holders of the Warrants exercisable for a majority of the Shares then issuable upon exercise of the Warrants then outstanding; provided, however that each amendment or supplement that decreases the Warrant Agent's rights or 27 increases its duties and responsibilities hereunder shall also require the prior written consent of the Warrant Agent. SECTION 22. Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns hereunder. SECTION 23. Termination. This Agreement shall terminate on the Expiration Date. Notwithstanding the foregoing, this Agreement will terminate on any earlier date when all Warrants have been exercised. The provisions of Section 16, this Section 23, Section 24 and Section 25 shall survive such termination and the resignation or removal of the Warrant Agent. SECTION 24. Governing Law Venue and Jurisdiction. This Agreement and each Warrant Certificate issued hereunder shall be deemed to be a contract made under the laws of the State of New York and for all purposes shall be governed by and construed in accordance with the laws of such State. Each party hereto consents and submits to the jurisdiction of the courts of the State of New York and of the federal courts of the Southern District of New York in connection with any action or proceeding brought against it that arises out of or in connection with, that is based upon, or that relates to this Agreement or the transactions contemplated hereby. In connection with any such action or proceeding in any such court, each party hereto hereby waives personal service of any summons, complaint or other process and hereby agrees that service thereof may be made in accordance with the procedures for giving notice set forth in Section 19 hereof. Each party hereto hereby waives any objection to jurisdiction or venue in any such court in any such action or proceeding and agrees not to assert any defense based on lack of jurisdiction or venue in any such court in any such action or proceeding. SECTION 25. Benefits of this Agreement. Nothing in this Agreement shall be construed to give to any person other than the Company, the Warrant Agent and the Holders any legal or equitable right, remedy or claim under this Agreement, and this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent and the registered holders of the Warrant Certificates. SECTION 26. Counterparts. This Agreement may be executed in any number of counterparts and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. SECTION 27. Headings. The headings of sections of this Agreement have been inserted for convenience of reference only, are not to be considered a part hereof and in no way modify or restrict any of the terms or provisions hereof. SECTION 28. Meaning of Terms Used in Agreement. The language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against any party. Any references to any federal, state, local or foreign statute or law shall also refer to all rules and regulations promulgated thereunder, unless the context otherwise requires. Unless the context otherwise requires: (a) a term has the meaning assigned to it by this Agreement; (b) forms of the word "include" mean that the inclusion is not limited to the items listed; (c) "or" is disjunctive but not 28 exclusive; (d) words in the singular include the plural, and in the plural include the singular; (e) provisions apply to successive events and transactions; (f) "hereof", "hereunder", "herein" and "hereto" refer to the entire Agreement and not any section or subsection; (g) "$" means the currency of the United States; (h) "business day" means any day, except for Saturday and Sunday, on which banks are not required or authorized by law or executive order to close in New York City; and (i) "person" means a natural person, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or other entity, or a governmental entity or any department, agency or political subdivision thereof. SECTION 29. Severability. If any part of this Agreement shall be held to be invalid or unenforceable by any court, or regulatory agency or body, such invalidity or unenforceability shall attach only to such part and shall not affect the validity or enforceability of the rest of this Agreement. Furthermore, in lieu of any such invalid or unenforceable provision or condition, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms and commercial effect to such invalid or unenforceable provision as may be possible and be valid and enforceable. [The next page is the signature page] 29 IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement to be executed and delivered as of the day and year first above written. EXIDE TECHNOLOGIES By: /s/ Stuart H. Kupinsky ---------------------- Name: Stuart H. Kupinsky Title: Executive Vice President, General Counsel and Secretary AMERICAN STOCK TRANSFER & TRUST COMPANY By: /s/ Herbert J. Lemmer -------------------------------------- Name: Herbert J. Lemmer Title: Vice President 30 EXHIBIT A-1 [FORM OF FACE OF WARRANT CERTIFICATE] VOID AFTER MAY 5, 2011 CUSIP No. 302051 12 3 No.________________ WARRANT TO PURCHASE ____ SHARES OF COMMON STOCK EXIDE TECHNOLOGIES WARRANT TO PURCHASE COMMON STOCK This Warrant Certificate ("Warrant Certificate") certifies that ________________ or its registered assigns is the registered holder of a Warrant (the "Warrant") of Exide Technologies, a Delaware corporation (the "Company"), to purchase the number of shares (the "Shares") of Common Stock, par value $0.01 per share (the "Common Stock"), of the Company set forth above. This warrant expires in the year 2011 on the date set forth in the Warrant Agreement, which date is the seventh anniversary of the effective date of the Plan (such date, the "Expiration Date"), and entitles the holder to purchase from the Company the number of fully paid and nonassessable Shares set forth above at the exercise price (the "Exercise Price") multiplied by the number of Shares set forth above (the "Exercise Amount"), payable to the Company by wire transfer in immediately available funds of the Exercise Amount to an account of the Warrant Agent specified in writing by the Warrant Agent for such purpose, no later than 5:00 p.m. New York City time, on the business day immediately prior to the settlement date, which settlement date is three business days after a Warrant Exercise Notice is delivered (the "Settlement Date"). The initial Exercise Price shall be $32.11. Subject to the terms and conditions set forth herein and in the Warrant Agreement, this Warrant may be exercised by the Holder thereof, by: (i) providing written notice of such election ("Warrant Exercise Notice") to exercise the Warrant to the Warrant Agent at the address set forth in the Warrant Agreement, "Re: Exide Technologies Warrant Exercise", by hand or by facsimile, no later than 5:00 p.m., New York City time, on the Expiration Date, which Warrant Exercise Notice shall substantially be in the form of an election to purchase Shares set forth Exhibit B-1 on the reverse hereof, properly completed and executed by the Holder; (ii) delivering no later than 5:00 p.m., New York City time, on the business day immediately prior to the Settlement Date, the Warrant Certificates evidencing such Warrants to the Warrant Agent; and (iii) paying the applicable Exercise Amount, together with any applicable taxes and governmental charges. A1-1 The Exercise Price and the number of Shares purchasable upon exercise of this Warrant are subject to adjustment upon the occurrence of certain events as set forth in the Warrant Agreement. No Warrant may be exercised prior to the Initial Date or after the Expiration Date. After the Expiration Date, the Warrants will become wholly void and of no value. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS WARRANT CERTIFICATE SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE. This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent. A1-2 IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be executed by its duly authorized officer. Dated: ---------------------- EXIDE TECHNOLOGIES By: ----------------------------------- Name: Title: AMERICAN STOCK TRANSFER & TRUST COMPANY as Warrant Agent By: ------------------------------------ Name: Title: A1-3 [FORM OF REVERSE OF WARRANT CERTIFICATE] EXIDE TECHNOLOGIES The Warrant evidenced by this Warrant Certificate is a part of a duly authorized issue of Warrants to purchase a maximum of 6,250,000 shares of Common Stock issued pursuant to that certain Warrant Agreement, dated as of the effective date of the Plan (the "Warrant Agreement"), duly executed and delivered by the Company and American Stock Transfer & Trust Company, as Warrant Agent (the "Warrant Agent"). The Warrant Agreement hereby is incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words "holders" or "holder" meaning the registered holders or registered holder) of the Warrants. A copy of the Warrant Agreement may be inspected at the Warrant Agent Office and is available upon written request addressed to the Company. All capitalized terms used on the face of this Warrant Certificate herein but not defined that are defined in the Warrant Agreement shall have the meanings assigned to them therein. Warrants may be exercised to purchase Shares from the Company from the Initial Date through 5:00 p.m. New York City time on the Expiration Date, at the Exercise Price set forth on the face hereof, subject to adjustment as described in the Warrant Agreement. Subject to the terms and conditions set forth herein and in the Warrant Agreement, the Holder of the Warrant evidenced by this Warrant Certificate may exercise such Warrant by: (i) providing a Warrant Exercise Notice to exercise the Warrant to the Warrant Agent at the address set forth in the Warrant Agreement, "Re: Exide Technologies Warrant Exercise," by hand or by facsimile, no later than 5:00 p.m., New York City time, on the Expiration Date, which Warrant Exercise Notice shall substantially be in the form of an election to purchase Shares set forth herein, properly completed and executed by the Holder; (ii) delivering, no later than 5:00 p.m., New York City time, on the business day immediately prior to the Settlement Date, the Warrant Certificates evidencing such Warrants to the Warrant Agent; and (iii) paying the applicable Exercise Amount, together with any applicable taxes and governmental charges. The Exercise Amount shall be payable by wire transfer in immediately available funds of the Exercise Amount to an account of the Warrant Agent specified in writing by the Warrant Agent for such purpose, no later than 5:00 p.m., New York City time, on the business day immediately prior to the Settlement Date. The initial Exercise Price shall be $32.11. In the event that upon any exercise of the Warrant evidenced hereby the number of Shares actually purchased shall be less than the total number of Shares purchasable upon exercise of the Warrant evidenced hereby, there shall be issued to the holder hereof, or such holder's assignee, a new Warrant Certificate evidencing a Warrant to purchase the Shares not so purchased. No adjustment shall be made for any cash dividends on any Shares issuable upon A-1-R exercise of this Warrant. After the Expiration Date, unexercised Warrants shall become wholly void and of no value. The Company shall not be required to issue fractions of Shares or any certificates that evidence fractional Shares. Warrant Certificates, when surrendered at the Warrant Agent office by the registered holder thereof in person or by a legal representative or attorney duly authorized in writing or by mail may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing a Warrant to purchase in the aggregate a like number of Shares. No Warrants may be sold, exchanged or otherwise transferred in violation of the Securities Act or state securities laws. The Company and Warrant Agent may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone) for the purpose of any exercise hereof and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.. [Balance of page intentionally remains blank] A-2-R EXHIBIT A-2 [FORM OF FACE OF GLOBAL WARRANT CERTIFICATE] VOID AFTER MAY 5, 2011 This Global Warrant Certificate is held by The Depositary Trust Company (the "Depositary") or its nominee in custody for the benefit of the beneficial owners hereof, and is not transferable to any person under any circumstances except that (i) this Global Warrant Certificate may be exchanged in whole but not in part pursuant to Section 6(a) of the Warrant Agreement, (ii) this Global Warrant Certificate may be delivered to the Warrant Agent for cancellation pursuant to Section 6(i) of the Warrant Agreement and (iii) this Global Warrant Certificate may be transferred to a successor Depositary with the prior written consent of the Company. Unless this Global Warrant Certificate is presented by an authorized representative of the Depositary to the Company or the Warrant Agent for registration of transfer, exchange or payment and any certificate issued is registered in the name of Cede & Co. or such other entity as is requested by an authorized representative of the Depositary (and any payment hereon is made to Cede & Co. or to such other entity as is requested by an authorized representative of the Depositary), any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful because the registered owner hereof, Cede & Co., has an interest herein. Transfers of this Global Warrant Certificate shall be limited to transfers in whole, but not in part, to nominees of the Depositary or to a successor thereof or such successor's nominee, and transfers of portions of this Global Warrant Certificate shall be limited to transfers made in accordance with the restrictions set forth in Section 6 of the Warrant Agreement. No registration or transfer of the securities issuable pursuant to the Warrant will be recorded on the books of the Company until such provisions have been complied with. A2-1 CUSIP No. 302051 12 3 No.________________ WARRANT TO PURCHASE ____ SHARES OF COMMON STOCK EXIDE TECHNOLOGIES GLOBAL WARRANT TO PURCHASE COMMON STOCK This Warrant Certificate ("Warrant Certificate") certifies that __________________ or its registered assigns is the registered holder of a Warrant (the "Warrant") of Exide Technologies, a Delaware corporation (the "Company"), to purchase the number of shares (the "Shares") of Common Stock, par value $0.01 per share (the "Common Stock"), of the Company set forth above. This warrant expires in the year 2011 on the date set forth in the Warrant Agreement, which date is the seventh anniversary of the effective date of the Plan (such date, the "Expiration Date"), and entitles the holder to purchase from the Company the number of fully paid and nonassessable Shares set forth above at the exercise price (the "Exercise Price") multiplied by the number of Shares set forth above (the "Exercise Amount"), payable to the Company by wire transfer in immediately available funds of the Exercise Amount to an account of the Warrant Agent specified in writing by the Warrant Agent for such purpose, no later than 5:00 p.m., New York City time, on the business day immediately prior to the settlement date, which settlement date is three business days after a Warrant Exercise Notice is delivered (the "Settlement Date"). The initial Exercise Price shall be $32.11. Subject to the terms and conditions set forth herein and in the Warrant Agreement, this Warrant may be exercised by the Holder thereof, by: (i) providing written notice of such election ("Warrant Exercise Notice") to exercise the Warrant to the Warrant Agent at the address set forth in the Warrant Agreement, "Re: Exide Technologies Warrant Exercise," by hand or by facsimile, no later than 5:00 p.m., New York City time, on the Expiration Date, which Warrant Exercise Notice shall substantially be in the form of an election to purchase Shares set forth on the reverse hereof, properly completed and executed by the Holder; (ii) delivering, no later than 5:00 p.m., New York City time, on the business day immediately prior to the Settlement Date, such Warrants to the Warrant Agent by book-entry transfer through the facilities of the Depositary; and (iii) paying the applicable Exercise Amount, together with any applicable taxes and governmental charges. The Exercise Price and the number of Shares purchasable upon exercise of this Warrant are subject to adjustment upon the occurrence of certain events as set forth in the Warrant Agreement. No Warrant may be exercised prior to the Initial Date or after the Expiration Date. After the Expiration Date, the Warrants will become wholly void and of no value. A2-2 REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS WARRANT CERTIFICATE SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE. This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent. A2-3 IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be executed by its duly authorized officer. Dated: ------------------------ EXIDE TECHNOLOGIES By: ---------------------------------- Name: Title: AMERICAN STOCK TRANSFER & TRUST COMPANY as Warrant Agent By: ---------------------------------- Name: Title: A2-4 [FORM OF REVERSE OF GLOBAL WARRANT CERTIFICATE] EXIDE TECHNOLOGIES The Warrant evidenced by this Warrant Certificate is a part of a duly authorized issue of Warrants to purchase a maximum of 6,250,000 shares of Common Stock issued pursuant to that certain Warrant Agreement, dated as of the effective date of the Plan (the "Warrant Agreement"), duly executed and delivered by the Company and American Stock Transfer & Trust Company, as Warrant Agent (the "Warrant Agent"). The Warrant Agreement hereby is incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words "holders" or "holder" meaning the registered holders or registered holder) of the Warrants. A copy of the Warrant Agreement may be inspected at the Warrant Agent Office and is available upon written request addressed to the Company. All capitalized terms used on the face of this Warrant Certificate or herein but not defined that are defined in the Warrant Agreement shall have the meanings assigned to them therein. Warrants may be exercised to purchase Shares from the Company from the Initial Date through 5:00 p.m. New York City time on the Expiration Date, at the Exercise Price set forth on the face hereof, subject to adjustment as described in the Warrant Agreement. Subject to the terms and conditions set forth herein and in the Warrant Agreement, the Holder of the Warrant evidenced by this Warrant Certificate may exercise such Warrant by: (i) providing a Warrant Exercise Notice to exercise the Warrant to the Warrant Agent at the address set forth in the Warrant Agreement, "Re: Exide Technologies Warrant Exercise," by hand or by facsimile, no later than 5:00 p.m., New York City time, on the Expiration Date, which Warrant Exercise Notice shall substantially be in the form of an election to purchase Shares set forth herein, properly completed and executed by the Holder; (ii) delivering, no later than 5:00 p.m., New York City time, on the business day immediately prior to the Settlement Date, such Warrants to the Warrant Agent by book-entry transfer through the facilities of the Depositary; and (iii) paying the applicable Exercise Amount, together with any applicable taxes and governmental charges. The Exercise Amount shall be payable by wire transfer in immediately available funds of the Exercise Amount to an account of the Warrant Agent specified in writing by the Warrant Agent for such purpose, no later than 5:00 p.m., New York City time, on the business day immediately prior to the Settlement Date. The initial Exercise Price shall be $32.11. In the event that upon any exercise of the Warrant evidenced hereby the number of Shares actually purchased shall be less than the total number of Shares purchasable upon exercise of the Warrant evidenced hereby, there shall be issued to the holder hereof, or such holder's assignee, a new Warrant Certificate evidencing a Warrant to purchase the Shares not so purchased. No adjustment shall be made for any cash dividends on any Shares issuable upon A2-1-R exercise of this Warrant. After the Expiration Date, unexercised Warrants shall become wholly void and of no value. The Company shall not be required to issue fractions of Shares or any certificates that evidence fractional Shares. Warrant Certificates, when surrendered by book-entry delivery through the facilities of the Depositary may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing a Warrant to purchase in the aggregate a like number of Shares. No Warrants may be sold, exchanged or otherwise transferred in violation of the Securities Act or state securities laws. The Company and Warrant Agent may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone) for the purpose of any exercise hereof and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. [Balance of page intentionally remains blank] A2-2-R EXHIBIT B-1 [FORM OF ELECTION TO EXERCISE FOR WARRANT HOLDERS HOLDING WARRANTS IN FORM OF DEFINITIVE WARRANT CERTIFICATES WHEN WARRANT CERTIFICATES WILL BE PHYSICALLY DELIVERED IN CONNECTION WITH THE WARRANT EXERCISE] (TO BE EXECUTED UPON EXERCISE OF THE WARRANT) The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to purchase ______ newly issued shares of Common Stock of Exide Technologies (the "Company") at the Exercise Price of $_______ per share. The undersigned represents, warrants and promises that it has the full power and authority to exercise and deliver the Warrants exercised hereby. The undersigned represents, warrants and promises that it has delivered or will deliver in payment for such Shares $_________ by wire transfer in immediately available funds of the Exercise Amount to an account of the Warrant Agent specified in writing by the Warrant Agent for such purpose, no later than 5:00 p.m., New York City time, on the business day immediately prior to the Settlement Date. The undersigned requests that a certificate representing the Shares be registered and delivered as follows: --------------------------------------------- Name --------------------------------------------- Address --------------------------------------------- Delivery Address (if different) B-1-1 If such number of Shares is less than the aggregate number of Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the balance of such Shares shall be registered and delivered as follows: ----------------------------------- Name ----------------------------------- Address ----------------------------------- Delivery Address (if different) - ---------------------------------- ----------------------------------- Social Security or Other Taxpayer Signature Identification Number of Holder Note: The above signature must correspond with the name as written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatsoever. If the certificate representing the Shares or any Warrant Certificate representing Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature of the holder hereof must be guaranteed. SIGNATURE GUARANTEED BY: ----------------------------------------------- THE SIGNATURE MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR, INSTITUTION BANK, STOCKBROKER, SAVINGS AND LOAN ASSOCIATION OR CREDIT UNION WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15. B-1-2 EXHIBIT B-2 [FORM OF ELECTION TO EXERCISE WARRANT FOR HOLDERS HOLDING WARRANTS THROUGH BOOK-ENTRY FACILITIES OF THE DEPOSITORY TRUST COMPANY WHEN EXERCISE OF WARRANT WILL OCCUR THROUGH SUCH FACILITIES] [TO BE COMPLETED BY DIRECT PARTICIPANT IN THE DEPOSITORY TRUST COMPANY] EXIDE TECHNOLOGIES Warrants to Purchase _______ Shares of Common Stock (TO BE EXECUTED UPON EXERCISE OF THE WARRANT) The undersigned hereby irrevocably elects to exercise the right, represented by ________ Warrants held for its benefit through the book-entry facilities of The Depository Trust Company (the "Depositary"), to purchase ________ newly issued shares of Common Stock of Exide Technologies (the "Company") at the Exercise Price of $________ per share. The undersigned represents, warrants and promises that (1) it has delivered or will deliver no later than 5:00 p.m., New York City time, on two business days after the date on which this Warrant Exercise Notice is delivered the number of Warrants specified below to the Warrant Agent's account at the Depositary by book-entry transfer; (2) it has the full power and authority to exercise and deliver the Warrants exercised hereby; and (3) it has delivered the exercise price of U.S. $__________ for each Warrant exercised hereby, by wire transfer in immediately available funds of the Exercise Amount to an account of the Warrant Agent specified in writing by the Warrant Agent for such purpose, no later than 5:00 p.m., New York City time, on the business day immediately prior to the Settlement Date. The undersigned requests that the principal amount of Warrants exercised hereby be in registered form in the authorized denominations, registered in such names and delivered, all as specified in accordance with the instructions set forth below; provided, that if the shares of Common Stock are evidenced by global securities, the shares of Common Stock shall be registered in the name of the Depositary or its nominee. Dated: --------------------- NOTE: THIS EXERCISE NOTICE MUST BE DELIVERED TO THE WARRANT AGENT, PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. THE WARRANT AGENT SHALL NOTIFY YOU (THROUGH THE CLEARING SYSTEM) OF (1) THE WARRANT AGENT'S ACCOUNT AT THE DEPOSITARY TO WHICH YOU MUST DELIVER YOUR WARRANTS ON THE EXERCISE DATE AND (2) THE ADDRESS, PHONE NUMBER AND FACSIMILE NUMBER WHERE YOU CAN CONTACT THE WARRANT AGENT AND TO WHICH WARRANT EXERCISE NOTICES ARE TO BE SUBMITTED. NAME OF DIRECT PARTICIPANT IN THE DEPOSITARY: (PLEASE PRINT) ADDRESS: ------------------------ B-2-1 CONTACT NAME: -------------------------------- ADDRESS: ------------------------------------ TELEPHONE (INCLUDING INTERNATIONAL CODE): FAX (INCLUDING INTERNATIONAL CODE): SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER (IF APPLICABLE): ACCOUNT FROM WHICH WARRANTS ARE BEING DELIVERED: DEPOSITARY ACCOUNT NO. WARRANT EXERCISE NOTICES WILL ONLY BE VALID IF DELIVERED IN ACCORDANCE WITH THE INSTRUCTIONS SET FORTH IN THIS NOTIFICATION (OR AS OTHERWISE DIRECTED), MARKED TO THE ATTENTION OF "EXIDE TECHNOLOGIES WARRANT EXERCISE". WARRANT HOLDER DELIVERING WARRANTS, IF OTHER THAN THE DIRECT DTC PARTICIPANT DELIVERING THIS WARRANT EXERCISE NOTICE NAME: -------------------------------------- (PLEASE PRINT) CONTACT NAME: ------------------------------ TELEPHONE (INCLUDING INTERNATIONAL CODE): FAX (INCLUDING INTERNATIONAL CODE): SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER (IF APPLICABLE): - ------------------------------------------ ACCOUNT TO WHICH THE SHARES OF COMMON STOCK ARE TO BE CREDITED: DEPOSITARY ACCOUNT NO. --------------------- FILL IN FOR DELIVERY OF THE COMMON STOCK, IF OTHER THAN TO THE PERSON DELIVERING THIS WARRANT EXERCISE NOTICE: NAME: ------------------------------------- (PLEASE PRINT) ADDRESS: ---------------------------------- B-2-2 CONTACT NAME: --------------------------------- TELEPHONE (INCLUDING INTERNATIONAL CODE): FAX (INCLUDING INTERNATIONAL CODE): SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER (IF APPLICABLE): - ---------------------------------------- NUMBER OF WARRANTS BEING EXERCISED: (ONLY ONE EXERCISE PER WARRANT EXERCISE NOTICE) Signature: ------------------------------ Name: --------------------------------- Capacity in which Signing: -------------- Signature Guaranteed BY: ----------------------------------------------- THE SIGNATURE MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION, BANK, STOCKBROKER, SAVINGS AND LOAN ASSOCIATIONS OR CREDIT UNION WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15. B-2-3 EXHIBIT C [FORM OF ASSIGNMENT] (TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH HOLDER DESIRES TO TRANSFER THE WARRANT CERTIFICATE) FOR VALUE RECEIVED, the undersigned registered holder hereby sells, assigns and transfers unto ------------------------------------------ Name of Assignee ------------------------------------------ Address of Assignee this Warrant Certificate, together with all right, title and interest therein, and does irrevocably constitute and appoint ________________ attorney, to transfer the Warrant Certificate to purchase _______ shares of Common Stock to which the Warrant Certificate relates on the books of the Warrant Agent, with full power of substitution. - -------------------------------- ------------------------------------------- Dated Signature Note: The above signature must correspond with the name as written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatsoever. - -------------------------------- Social Security or Other Taxpayer Identification Number of Assignee SIGNATURE GUARANTEED BY: - --------------------------------------- THE SIGNATURE MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION, BANK, STOCKBROKER, SAVINGS AND LOAN ASSOCIATION OR CREDIT UNION WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15. C-1 EXHIBIT D BLACK-SCHOLES WARRANT VALUE PER WARRANT(1)
COMMON STOCK PRICE $20.00 $22.00 $24.00 $26.00 $28.00 $30.00 $32.00 ------ ------ ------ ------ ------ ------ ------ 7.0 $5.21 $6.21 $7.26 $8.36 $9.50 $10.68 $11.89 6.5 4.90 5.88 6.91 7.99 9.11 10.27 11.47 REMAINING 6.0 4.58 5.53 6.54 7.60 8.70 9.84 11.02 WARRANT 5.5 4.25 5.17 6.15 7.19 8.27 9.39 10.56 TERM (YEARS) 5.0 3.91 4.80 5.75 6.75 7.81 8.92 10.07 4.5 3.55 4.40 5.32 6.30 7.33 8.42 9.54 4.0 3.17 3.98 4.86 5.81 6.82 7.88 8.99
- ------------------ (1) Assumes risk-free rate of 3.00% D-1 -----END PRIVACY-ENHANCED MESSAGE-----