REGISTRATION NO. 333-_________
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 2003
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-3
----------
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ULTRALIFE BATTERIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 16-387013
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
2000 TECHNOLOGY PARKWAY
NEWARK, NEW YORK 14513
(315) 332-7100
(Address, including Zip Code, and Telephone Number, including Area Code,
of Registrant's Principal Executive Offices)
----------
John D. Kavazanjian
President and Chief Executive Officer
Ultralife Batteries, Inc.
2000 Technology Parkway
Newark, New York 14513
(315) 332-7100
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Agent for Service)
----------
Copy to:
Jeffrey H. Bowen, Esq.
Harter, Secrest & Emery LLP
1600 Bausch & Lomb Place
Rochester, New York 14604
(585) 232-6500
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered to
dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price aggregate registration
per share offering price fee
- -------------------------------------------------------------------------------------------------------
Common Stock, par
value $.10 per share 325,000 Shares (1) $14.58(2) $4,738,500 $383.34
- -------------------------------------------------------------------------------------------------------
(1) In accordance with Rule 416 of Regulation C under the Securities Act of
1933, this registration statement also covers any additional shares of
common stock issued or issuable to the selling security holders as a
result of a stock split, stock dividend or similar transaction.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended, on
the average of the high and low prices of the Registrant's common stock as
reported by the NASDAQ on November 6, 2003, which date is within five
business days prior to the initial filing date of this registration
statement.
----------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
PROSPECTUS
ULTRALIFE BATTERIES, INC.
325,000 SHARES OF COMMON STOCK
----------
This Prospectus relates to the public offering of 325,000 shares of our
Common Stock, par value $.10 per share. These 325,000 shares are being
registered for the accounts of the selling stockholders identified in Table A in
the section titled "Selling Stockholders". This offering will not be
underwritten. All 325,000 shares may be offered by certain of our stockholders
or by pledgees, donees, transferees or other successors in interest who receive
the shares as a gift, partnership distribution or other non-sale related
transfer. Of the shares being registered, 125,000 shares were issued on June 4,
2003 pursuant to the conversion of a short-term promissory note issued in a
private transaction to a single lender, and 200,000 shares were originally
issued in a private transaction pursuant to three Share Purchase Agreements
dated October 7, 2003 between us and certain of the stockholders identified in
Table A in the section of this Prospectus entitled "Selling Stockholders". The
issuances of these shares were exempt from registration under Section 4(2) of
the Securities Act of 1933, as amended. We are registering the shares pursuant
to an agreement to register the 125,000 shares issued on conversion of the
promissory note and pursuant to three Registration Rights Agreements between us
and the selling stockholders identified in Table A.
The shares we are registering may be offered by the selling stockholders
from time to time in transactions in the over-the-counter market, in negotiated
transactions, or in a combination of such methods of sale. The shares may be
offered at fixed prices that may be changed, at market prices prevailing at the
time of sale, at prices related to prevailing market prices or at negotiated
prices. The selling stockholders may effect such transactions by selling the
shares to or through broker-dealers, and such broker-dealers may receive
compensation in the form of discounts, concessions or commissions from the
selling stockholders and/or the purchasers of the shares for whom such
broker-dealers act as agents or to whom they sell as principals, or both. This
compensation might be in excess of customary commissions. For further
information, see the section entitled "Plan of Distribution" below.
We will not receive any of the proceeds from the sale of these shares. We
have agreed to bear certain expenses in connection with the registration of the
shares being offered and sold by the selling stockholders. Our Common Stock is
quoted on the Nasdaq National Market under the symbol "ULBI." On November 6,
2003, the last reported sale price for the Common Stock was $13.52 per share.
----------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES
OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
This offering of our Common Stock involves certain risks. For further
information, please see the section entitled "Risk Factors" ON PAGE 2.
The date of this Prospectus is November 12, 2003
PROSPECTUS SUMMARY
This summary highlights selected information and does not contain all of
the information that is important to you. We urge you to read the entire
Prospectus carefully and any information contained in or incorporated by
reference in this Prospectus before you decide whether to buy our Common Stock.
You should pay special attention to the risks of investing in our Common Stock
discussed under Risk Factors below. Unless the context otherwise requires,
references in this Prospectus to Ultralife, we, us, and our refer to Ultralife
Batteries, Inc. and our subsidiaries.
Ultralife Batteries, Inc.
We develop, manufacture and market a wide range of standard and customized
primary and rechargeable lithium batteries for use in a wide array of
applications and markets, including military, automotive telematics, safety and
medical, and computers and communications. We believe that our proprietary
technologies allow us to offer batteries that are ultra-thin, light weight and
that generally achieve greater operating performance than other batteries
currently available. We sell our products directly to original equipment
manufacturers in the United States and abroad and have contractual arrangements
with sales representatives who market our products on a commission basis in
particular areas. We also distribute our products to domestic and international
distributors and retailers that purchase our batteries for resale. We have
obtained ISO 9001 certification for our lithium batteries manufacturing
operations in Newark, New York and Abingdon, England. As of November 6, 2003, we
employed a total of approximately 800 employees worldwide.
We were formed in December 1990 as a Delaware corporation. In March 1991,
we acquired certain technology and assets from Eastman Kodak Company relating to
its 9-volt lithium manganese dioxide primary battery and in June 1994, as a
result of the formation of our United Kingdom subsidiary and acquisition of
certain battery-related assets, acquired a presence in Europe. In December 1998,
we announced a joint venture to produce our polymer rechargeable batteries in
Taiwan.
Our principal executive office is located at 2000 Technology Parkway,
Newark, New York 14513. Our telephone number is (315) 332-7100 and our website
is www.ultralifebatteries.com.
RISK FACTORS
An investment in shares of our Common Stock being offered pursuant to this
Prospectus involves a high degree of risk. You should read and consider the
following risk factors and other information in this Prospectus carefully before
purchasing the Common Stock offered by this Prospectus.
GROWTH AND MARKET RISKS
We May Not Be Able to Finance Ongoing Operations and Projected Growth
While we believe that our revenue growth projections and our ongoing cost
controls will allow us to generate cash and achieve profitability in the
foreseeable future, there is no assurance as to when or if we will be able to
achieve our projections. Our future cash flows from operations, combined with
our accessibility to cash and credit, may not be sufficient to allow us to
finance ongoing operations or to make required investments for future growth. We
may need to seek additional credit or access capital markets for additional
funds. We cannot assure you that we would be successful in such an endeavor.
-2-
Rapid Growth of Our Battery Business Could Significantly Strain Our Management,
Operations and Technical
Resources
If we are successful in obtaining rapid market growth of our batteries, we
will be required to deliver large volumes of quality products to customers on a
timely basis at a reasonable cost to those customers. For example, the large
orders recently received from the U.S. and U.K. military for our cylindrical
products are straining our current capacity capabilities and require additional
equipment and time to build a sufficient support infrastructure. This demand
also creates working capital issues for us, as we need increased liquidity to
fund purchases of raw materials and supplies. We cannot assure you, however,
that our business will rapidly grow or that our efforts to expand manufacturing
and quality control activities will be successful or that we will be able to
satisfy commercial scale production requirements on a timely and cost-effective
basis. We will also be required to continue to improve our operations,
management and financial systems and controls. The failure to manage growth
effectively could have an adverse effect on our business, financial condition
and results of operations.
We Depend on Continued Demand for Our Existing Products
A substantial portion of our business depends on the continued demand for
products using our batteries sold by original equipment manufacturers.
Therefore, our success depends significantly upon the success of those original
equipment manufacturers' products in the marketplace. We are subject to many
risks beyond our control that influence the success or failure of a particular
product manufactured by an original equipment manufacturer, including:
o competition faced by the original equipment manufacturer in its
particular industry,
o market acceptance of the original equipment manufacturer's product,
o the engineering, sales, marketing and management capabilities of the
original equipment manufacturer,
o technical challenges unrelated to our technology or products faced
by the original equipment manufacturer in developing its products,
and
o the financial and other resources of the original equipment
manufacturer.
For instance, in the fiscal year ended June 30, 2002, 59% of our revenues
were comprised of sales of our 9-volt batteries, and of this, approximately 30%
pertained to sales to smoke alarm original equipment manufacturers in the U.S.
In the six-month period ended December 31, 2002, 56% of our revenues were
comprised of sales of our 9-volt batteries, and of this, approximately 14%
pertained to sales to smoke alarm original equipment manufacturers in the U.S.
If the retail demand for long-life smoke detectors decreases significantly, this
could have a material adverse effect on our business, financial condition and
results of operations. Similarly, in the fiscal year ended June 30, 2002, 19% of
our revenues were comprised of sales of U.S. cylindrical batteries, and of this,
approximately 62% pertained to sales made directly or indirectly to the U.S.
military. In the six-month period ended December 31, 2002, 20% of our revenues
were comprised of sales of U.S. cylindrical batteries, and of this,
approximately 90% pertained to sales made directly or indirectly to the U.S.
military. If the demand for cylindrical batteries from the U.S. military were to
decrease significantly, this could have a material adverse effect on our
business, financial condition and results of operations.
Our Government Contracts are Subject to Adjustment
Our $18,600,000 contract with the U.S. Army/CECOM to provide BA-5390
batteries was not awarded as a result of a competitive bidding process. Rather,
this contract was an "exigent" contract, which is subject to an audit and final
price adjustment. That audit process resulted in a reduction of the margin over
the term of the contract which resulted in lower margins than anticipated under
the original terms of the contract. We have other similar "exigent" contracts
with the government which are subject to the same potential for adjustment.
These adjustments could have an affect on our business, financial condition and
results of operations.
-3-
We Depend on U.S. and U.K. Military Procurement of Batteries
We will continue to develop both primary and rechargeable battery products
to meet the needs of the U.S. and U.K. military forces. We believe we have a
high probability for success in solicitations for these batteries. Any delay of
solicitations by, or future failure of, the U.S. or the U.K. governments to
purchase batteries manufactured by us could have a material adverse effect on
our business, financial condition and results of operations.
The Future of Our Rechargeable Cells and Batteries is Uncertain and May Not Be
Successful
Although we are in production of certain rechargeable cells and batteries,
we have not achieved wide market acceptance. We cannot assure you that volume
acceptance of our rechargeable products will occur due to the highly competitive
nature of that particular business. There are many new companies and technology
entrants into the marketplace, and we must continually reassess the market
segments in which our products can be successful and seek to engage customers in
these segments that will adopt our products for use in their products. In
addition, these companies must be successful with their products in their
markets for us to gain increased business. Increased competition, failure to
gain customer acceptance of products or failure of our customers in their
markets could have a further adverse effect on our rechargeable battery
business.
We Have Strong Competitors and Our Products May Be Subject to Technological
Obsolescence
We compete with large and small manufacturers of alkaline, carbon-zinc,
seawater, high rate and primary batteries as well as other manufacturers of
lithium batteries. We cannot assure you that we will successfully compete with
these manufacturers, many of which have substantially greater financial,
technical, manufacturing, distribution, marketing, sales and other resources.
The market for our products is characterized by changing technology and evolving
industry standards, often resulting in product obsolescence or short product
lifecycles. Although we believe that our batteries, particularly the 9-volt and
advanced rechargeable batteries, are comprised of state-of-the-art technology,
we cannot assure you that our competitors will not develop technologies or
products that would render our technology and products obsolete or less
marketable.
o Primary Batteries -- The primary (non-rechargeable) battery industry
is characterized by intense competition with a number of companies
offering or seeking to develop products similar to ours. We are
subject to competition from manufacturers of primary batteries, such
as carbon-zinc, alkaline and lithium batteries in various
configurations, including 9-volt, AAA, AA, C, D, 2/3 A and other
cell sizes. Manufacturers of primary batteries include The Gillette
Company (Duracell), Energizer Holdings, Inc., Rayovac Corp., Sanyo
Electric Co. Ltd., Sony Corp., and Matsushita Electric Industrial
Co., Ltd. (Panasonic). Manufacturers of specialty lithium batteries
include Saft, Eagle Picher Industries and Friwo Silberkraft GmbH.
Many of these companies have substantially greater resources than
us, and some have the capacity and volume of business to be able to
produce their products more efficiently than we do at the present
time. In addition, these companies are developing batteries using a
variety of battery technologies and chemistries that are expected to
compete with our technology. If these companies successfully market
their batteries before the introduction of our products, there could
be a material adverse effect on our business, financial condition
and results of operations.
o Rechargeable Batteries -- The rechargeable battery industry is also
characterized by intense competition with a large number of
companies offering or seeking to develop technology and products
similar to ours. We are subject to competition from manufacturers of
traditional rechargeable batteries, such as nickel-cadmium
batteries, from manufacturers of rechargeable batteries of more
recent technologies, such as nickel-metal hydride, lithium ion
liquid electrolyte and lithium polymer batteries, as well as from
companies engaged in the development of batteries incorporating new
technologies. Manufacturers of nickel-cadmium and/or nickel-metal
hydride batteries include Sanyo Electric Co. Ltd., Sony Corp.,
Toshiba Corp., Saft and Matsushita Electric Industrial Co., Ltd.
(Panasonic), among others. Manufacturers of lithium ion liquid
electrolyte batteries currently include Saft-Soc des ACC, Sony
Corp., Toshiba Corp., Matsushita Electric
-4-
Industrial Co., Ltd., Sanyo Electric Co. Ltd., Sony Corp., E-one
Moli Energy Ltd., BYD Co. Ltd., Samsung SDI Co., Ltd., Shenzhen B&K
Electronic Co. Ltd., and Ultralife Taiwan, Inc., among others.
Manufacturers of lithium polymer batteries currently include Valence
Technology, Inc., Sony Corp., Amperex Technology Ltd., Danionics
A/S, Finecell Co. Ltd., LG Chemical, Ltd., SKC, Samsung SDI Co.,
Ltd., Ultralife Taiwan, Inc., and Kokam Engineering Co., Ltd. Many
companies with substantially greater resources than ours are
developing a variety of battery technologies, including liquid
electrolyte lithium and solid electrolyte lithium batteries, which
are expected to compete with our technology. Other companies
undertaking research and development activities of solid-polymer
batteries have already developed prototypes and are constructing
commercial scale production facilities. If these companies
successfully market their batteries before the introduction of our
products, there could be a material adverse effect on our business,
financial condition and results of operations.
We Depend on Timely Delivery of Quality Products from Our Suppliers
We rely upon our suppliers and vendors to provide quality materials,
components and equipment for our use in production. Our ability to meet demand
for our product and to maintain adequate production schedules for the
manufacture of cells and batteries is vital for our continued success. In the
event one or more of these suppliers or vendors is significantly late in meeting
its delivery schedule to us, or if one or more demonstrates a serious inability
to consistently supply quality goods, we may fall behind in our production
schedule which could, in turn, result in late deliveries to our customers.
Continued or habitual late deliveries to customers could lead to the
cancellation of orders and/or loss of customers, either of which could have a
material adverse effect on our business.
There are Limited Sources of the Materials and Supplies Which, if Unavailable,
Could Pose a Significant Risk to Our Business
Certain materials we use in products are available only from a single or a
limited number of suppliers. Additionally, we may elect to develop relationships
with a single or limited number of suppliers for materials that are otherwise
generally available. Although we believe that alternative suppliers are
available to supply materials that could replace materials currently used and
that, if necessary, we would be able to redesign our products to make use of
such alternatives, any interruption in the supply from any supplier that serves
as a sole source could delay product shipments and have a material adverse
effect on the business, financial condition and results of operations. Although
we have experienced interruptions of product deliveries by sole source suppliers
in the past, these interruptions have not had a material adverse effect on the
business, financial condition and results of operations. We cannot guarantee you
that we will not experience a material interruption of product deliveries from
sole source suppliers.
We May Not Be Able to Staff Adequately
We have added equipment to increase production capacity, we have also
increased our number of employees. Our ability to continue increased production
levels depends on our ability to attract, hire and retain a sufficient number of
employees at our Newark, New York production facility. While we have retained
the services of an employment agency to assist in this endeavor, there is no
assurance that we will be able to adequately staff our Newark production
facility. The inability to staff adequately would have a material adverse effect
on our business, financial condition and results of operations.
We Depend on Key Personnel
Because of the specialized, technical nature of the business, we are
highly dependent on certain members of management, marketing, engineering and
technical staff. The loss of these services or these members could have a
material adverse effect on our business, financial condition and results of
operations. In addition to developing manufacturing capacity to produce high
volumes of advanced rechargeable batteries, we must attract, recruit and retain
a sizeable workforce of technically competent employees. Our ability to pursue
effectively our business strategy will depend upon, among other factors,
-5-
the successful recruitment and retention of additional highly skilled and
experienced managerial, marketing, engineering and technical personnel. We
cannot assure you that we will be able to retain or recruit this type of
personnel.
SAFETY AND ENVIRONMENTAL RISKS
Our Business Has Significant Safety Risks and Significant Demands of
Environmental and Other Regulatory Compliance
Due to the high energy density inherent in lithium batteries, our
batteries can pose certain safety risks, including the risk of fire. Although we
incorporate safety procedures in research, development and manufacturing
processes that are designed to minimize safety risks, we cannot assure you that
accidents will not occur. Although we currently carry insurance policies which
cover loss of the plant and machinery, leasehold improvements, inventory and
business interruption, any accident, whether at the manufacturing facilities or
from the use of the products, may result in significant production delays or
claims for damages resulting from injuries. These types of losses could have a
material adverse effect on our business, financial condition and results of
operations.
National, State and Local Laws Impose Various Environmental Controls On The
Manufacture, Storage, Use and Disposal of Lithium Batteries and/or of Certain
Chemicals Used In The Manufacture of Lithium Batteries
Although we believe that our operations are in substantial compliance with
current environmental regulations and that, except as noted below, there are no
environmental conditions that will require material expenditures for clean-up at
the present or former facilities or at facilities to which we have sent waste
for disposal, we cannot assure you that changes in such laws and regulations
will not impose costly compliance requirements on us or otherwise subject us to
future liabilities. Moreover, state and local governments may enact additional
restrictions relating to the disposal of lithium batteries used by customers
that could have a material adverse effect on our business, financial condition
and results of operations. In addition, the U.S. Department of Transportation
and certain foreign regulatory agencies that consider lithium to be a hazardous
material regulate the transportation of batteries that contain lithium metal. We
currently ship lithium batteries in accordance with regulations established by
the U.S. Department of Transportation. We cannot assure you that additional or
modified regulations relating to the manufacture, transportation, storage, use
and disposal of materials used to manufacture our batteries or restricting
disposal of batteries will not be imposed or how these regulations will affect
us or our customers.
Our Newark, New York Facility Needs Environmental Remediation Which May Be
Expensive for Us
In connection with our purchase/lease of our Newark, New York facility in
1998, a consulting firm performed a Phase I and II Environmental Site Assessment
that revealed the existence of contaminated soil and ground water around one of
the buildings. We then retained an engineering firm which estimated that the
cost of remediation should be in the range of $230,000. This cost, however, is
merely an estimate and the cost may in fact be much higher. In February, 1998,
we entered into an agreement with a third party which provides for us and this
third party to retain an environmental consulting firm to conduct a supplemental
Phase II investigation to verify the existence of the contaminants and further
delineate the nature of the environmental concern. The third party agreed to
reimburse us for fifty percent (50%) of the cost of correcting the environmental
concern on the Newark property. We have fully reserved in our financial
statements for our portion of the estimated liability. Test sampling was
completed in the spring of 2001, and the engineering report was submitted to the
New York State Department of Environmental Conservation, referred to as NYSDEC,
for review. NYSDEC reviewed the report and, in January 2002, recommended
additional testing. We responded by submitting a work plan to NYSDEC, which was
approved in April 2002. We have sought proposals from engineering firms to
complete the remedial work contained in the work plan, but it is unknown at this
time whether
-6-
the final cost to remediate will be in the range of the original estimate, given
the passage of time. Because this is a voluntary remediation, there is no
requirement for us to complete the project within any specific time frame. The
ultimate resolution of this matter may have a significant adverse impact on the
results of operations in the period in which it is resolved. Furthermore, we may
face claims resulting in substantial liability which could have a material
adverse effect on our business, financial condition and our results of
operations in the period in which such claims are resolved.
INTELLECTUAL PROPERTY RISKS
We Depend on Proprietary Technologies
Our success depends more on the knowledge, ability, experience and
technological expertise of our employees than on the legal protection of patents
and other proprietary rights. We claim proprietary rights in various unpatented
technologies, know-how, trade secrets and trademarks relating to products and
manufacturing processes. We cannot guarantee you the degree of protection these
various rights may or will afford, or that competitors will not independently
develop or patent technologies that are substantially equivalent or superior to
our technology. We protect our proprietary rights in our products and operations
through contractual obligations, including nondisclosure agreements with certain
employees, customers, consultants and strategic partners. We cannot assure you
that these contractual measures will protect us. However, we have had patents
issued and patent applications pending in the U.S. and elsewhere. But we cannot
assure you (1) that patents will be issued from any pending applications, or
that the claims allowed under any patents will be sufficiently broad to protect
our technology, (2) that any patents issued to us will not be challenged,
invalidated or circumvented, or (3) as to the degree or adequacy of protection
any patents or patent applications may or will afford us. If we are found to be
infringing third party patents, there can be no assurance that we will be able
to obtain licenses with respect to such patents on acceptable terms, if at all.
The failure to obtain necessary licenses could delay product shipment or the
introduction of new products, and costly attempts to design around such patents
could foreclose the development, manufacture or sale of products.
We Depend on Technology Transfer Agreements
Our research and development of advanced rechargeable battery technology
and products utilizes internally-developed technology, acquired technology and
certain patents and related technology licensed by us pursuant to non-exclusive,
technology transfer agreements. We cannot assure you that competitors will not
develop, independently or through the use of similar technology transfer
agreements, rechargeable battery technology or products that are substantially
equivalent or superior to the technologies and products currently under research
and development.
FINANCIAL RISKS
Our Investment in Ultralife Taiwan, Inc. Has Significant Risks
We used the net proceeds we received from the recent private placement
sale of our Common Stock to fund a short-term loan and ultimate purchase of
securities issued by Ultralife Taiwan, Inc. We own approximately 9.2% of
Ultralife Taiwan. The transaction has been recorded as a short-term note
receivable maturing on March 1, 2004, with interest accruing at 3% per annum. We
expect to convert this note receivable into shares of Ultralife Taiwan's common
stock on or before March 1, 2004 assuming Ultralife Taiwan is successful in
raising additional equity capital. Depending on the price at which Ultralife
Taiwan completes its anticipated capital raise, our ownership interest in
Ultralife Taiwan could increase to approximately 15%. Because of the precarious
financial condition of Ultralife Taiwan, they may not be able to raise the
necessary additional funds from other investors and we may not be able to
recover or realize any gain on our investment. Such an occurrence could
adversely affect our financial condition and the market value of our Common
Stock.
-7-
We May Not Be Able to Insure Against Losses
Because certain of our primary batteries are used in a variety of security
and safety products and medical devices, we may be exposed to liability claims
if such a battery fails to function properly. We maintain what we believe to be
sufficient liability insurance coverage to protect against potential claims;
however, we cannot assure you that the liability insurance will continue to be
available, or that any such liability insurance would be sufficient to cover any
claim or claims.
Quarterly Fluctuations in Operating Results and Possible Volatility of Stock
Price
Our future operating results may vary significantly from quarter to
quarter depending on factors such as the timing and shipment of significant
orders, new product introductions, delays in customer releases of purchase
orders, the mix of distribution channels through which we sell our products and
general economic conditions. Frequently, a substantial portion of our revenues
in each quarter is generated from orders booked and shipped during that quarter.
As a result, revenue levels are difficult to predict for each quarter. If
revenue results are below expectations, operating results will be adversely
affected as we have a sizeable base of fixed overhead costs that do not vary
much with the changes in revenue. In addition to the uncertainties of quarterly
operating results, future announcements concerning us or our competitors,
including technological innovations or commercial products, litigation or public
concerns as to the safety or commercial value of one or more of our products,
may cause the market price of our common stock to fluctuate substantially for
reasons which may be unrelated to operating results. These fluctuations, as well
as general economic, political and market conditions, may have a material
adverse effect on the market price of our common stock.
Our Ability to Use Our Net Operating Loss Carryforwards May be Limited
As of December 31, 2002, we had foreign and domestic net operating loss
carryforwards totaling approximately $78,816,000 that are available to reduce
our future taxable income. If it is determined that a change in our ownership
(as defined under Internal Revenue Code Section 382) has occurred, our net
operating loss carryforwards will be subject to an annual limitation which could
result in the possibility of a cash outlay for income taxes for the year ended
December 31, 2003 and subsequent years.
We May Have Liability under Product Warranty Claims
We typically offer warranties against any defects due to product
malfunction or workmanship for a period up to one year from the date of
purchase. We also offer a 10-year warranty on our 9-volt batteries that are used
in ionization-type smoke detector applications. We provide for a reserve for
this potential warranty expense, which is based on an analysis of historical
warranty issues. We cannot assure you that future warranty claims will be
consistent with past history, and if we experience a significant increase in
warranty claims, we cannot assure you that our reserves are sufficient. This
could have a material adverse effect on our business, financial condition and
results of operations. In addition, in September 2002 a retail end-user of a
product manufactured by one of our customer, has made a claim against our
customer asserting the customer's product, which is powered by one of our
batteries, does not operate according to the customer's product specification.
No claim has been filed against us. However, in the interest of fostering good
customer relations, we agreed to lend technical support to our customer in
defense of the claim against it. We will honor our warranty by replacing any
batteries that may be determined to be defective. In the event a claim is filed
against us and it is ultimately determined that our product was defective,
replacement of batteries to our customer or the end-user may have a material
adverse effect on our financial position and results of operations.
We May Not Be Able to Pay Our Debt Obligations
We have certain debt covenants that must be maintained, most notably a
requirement with our primary lending institution to meet certain levels of net
worth. We cannot assure you that we will be able to continue to meet these debt
covenants in the future. If we default on any of our debt covenants and are
-8-
unable to renegotiate credit terms in order to comply with such covenants, this
could have a material adverse effect on our business, financial condition and
results of operations.
Our China Joint Venture Program May Create Liability for Us
In July 1992, we entered into several agreements related to the
establishment of a manufacturing facility in Changzhou, China, for the
production and distribution in and from China of 2/3A lithium primary batteries.
Changzhou Ultra Power Battery Co., Ltd., a company organized in China, which we
refer to as China Battery, purchased certain technology, equipment, training and
consulting services relating to the design and operation of a lithium battery
manufacturing plant. China Battery was required to pay approximately $6.0
million to us over the first two years of the agreement, of which approximately
$5.6 million has been paid. We attempted to collect the balance due under this
contract. However, China Battery has indicated that it will not make these
payments until certain contractual issues have been resolved. Due to China
Battery's questionable willingness to pay, we wrote off in fiscal 1997 the
entire balance owed as well as our investment aggregating $805,000. Since China
Battery has not purchased technology, equipment, training or consulting services
to produce batteries other than 2/3A lithium batteries, we do not believe that
China Battery has the capacity to become a competitor. We do not anticipate that
the manufacturing or marketing of 2/3A lithium batteries will be a substantial
portion of its product line in the future. However, in December 1997, China
Battery sent us a letter demanding reimbursement of an unspecified amount of
losses they have incurred plus a refund for certain equipment that was sold to
China Battery. We have attempted to initiate negotiations to resolve the
dispute. However, an agreement has not yet been reached. Although China Battery
has not taken any additional steps, there can be no assurance that China Battery
will not further pursue such a claim, which, if successful, could have a
material adverse effect on the our business, financial condition and results of
operations. We believe that such a claim is without merit.
You May Not Have an Adequate Remedy against Our Former Auditor, Arthur Andersen
LLP
Our consolidated financial statements for the two fiscal years ended June
30, 2001 were audited by Arthur Andersen LLP. On August 31, 2002, Arthur
Andersen LLP ceased to practice before the SEC. Therefore, Arthur Andersen did
not participate in the preparation of our Transition Report for the six-month
period ended December 31, 2002 that is incorporated by reference into this
Prospectus, referred to herein as the 2002 Form 10-K, did not reissue its audit
report with respect to the financial statements included in the 2002 Form 10-K,
and did not consent to the inclusion of a copy of its previously issued audit
report in the 2002 Form 10-K or the incorporation by reference of such report
into this Prospectus. As a result, holders of our securities may have no
effective remedy against Arthur Andersen LLP in connection with a material
misstatement or omission in the financial statements to which its audit report
relates. In addition, even if such holders were able to assert such a claim,
because it has ceased operations, Arthur Andersen LLP may fail or otherwise have
insufficient assets to satisfy claims made by holders of our securities that
might arise under federal securities laws or otherwise with respect to the audit
report of Arthur Andersen LLP.
Forward-Looking Statements
This Prospectus includes and incorporates by reference forward-looking
statements within the meaning of Section 27A of the Securities Act and Section
21E of the Securities Exchange Act of 1934, as amended. These statements relate
to analyses and other information which are based on forecasts of future results
and estimates of amounts not yet determinable. These statements also relate to
our future prospects, developments and business strategies.
These forward-looking statements are identified by their use of terms and
phrases such as "anticipate", "believe", "could", "estimate", "expect",
"intend", "may", "plan", "predict", "project", "will" and similar terms and
phrases, including references to assumptions. These statements are
-9-
contained in the documents incorporated herein by reference and in the section
"Risk Factors" and other sections of this Prospectus.
Although we believe that our plans, intentions and expectations reflected
in or suggested by such forward-looking statements are reasonable, our actual
results may be materially different than those reflected, or suggested, by such
forward-looking statements. Important factors and uncertainties that could cause
our actual results to differ materially from our forward-looking statements are
set forth below and elsewhere in this Prospectus, including under the section
headed "Risk Factors." These factors and uncertainties include, among others:
o Future demand for our products and services
o Successful commercialization of our advanced rechargeable batteries
o General economic conditions
o Government and environmental regulation
o Competition and customer strategies
o Technological innovations in the primary and rechargeable battery
industries
o Changes in our business strategy or development plan
o Capital deployment
o Business disruptions, including those caused by fire
o Availability of raw materials and supplies
All forward-looking statements attributable to us or any persons acting on
our behalf are expressly qualified in their entirety by these cautionary
statements. We advise you not to place undue reliance on these forward-looking
statements in light of the materials risks and uncertainties to which they are
subject. Should one or more of these risks or uncertainties materialize, or
should assumptions prove incorrect, actual results may differ materially from
those described herein as anticipated, believed, estimated or expected. We
undertake no obligation to update any forward-looking statements in this
Prospectus, the documents incorporated herein by reference or elsewhere.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares of
Common Stock by the selling stockholders. We have agreed to bear all expenses,
other than selling commissions and fees and expenses of counsel and other
advisors to the selling stockholders, in connection with the registration of the
shares being offered.
SELLING STOCKHOLDERS
The table below sets forth with respect to the selling security holders,
based upon information available to us as of November 6, 2003, the number and
percentage of outstanding shares of Common Stock beneficially owned, the number
of shares of our Common Stock which may be offered by this prospectus and the
number and percentage of outstanding shares of Common Stock that will be owned
assuming the sale of all of the registered shares of our common stock under this
prospectus. The number of shares, if any, offered by each selling security
holder and the corresponding number of shares beneficially owned by each selling
security holder after each sale will vary depending upon the terms of the
individual sales. Beneficial ownership is determined in accordance with
Securities and Exchange Commission rules and generally includes voting or
investment power with respect to securities. The shares offered by this
Prospectus may be sold by selling stockholders, including their transferees,
pledgees or donees or their successors, from time to time. If required,
identification of such transferees, pledgees, donees or successors will be made
in the applicable prospectus supplement.
-10-
Table A
-------
Name of Selling Stockholder Number of Shares Number of Number of
Beneficially Shares Shares Percent of
Owned Prior to Registered Beneficially Outstanding
Completion of for Sale Owned After Shares after
the Offering Hereby (1) Completion of Completion of
the Offering the Offering
- -------------------------------------------------------------------------------------------------------------------
Corsair Capital Partners, LP 145,000 145,000 0 *
Neptune Partners, LP 44,000 44,000 0 *
Corsair Long Short International Ltd 11,000 11,000 0 *
W. Anthony Hitschler 220,000 62,500 157,500 1.2%
Priam Holdings, Ltd. 62,500 62,500 0 0
Total 482,500 325,000 157,500 1.2%
- ----------
(1) This Registration Statement shall also cover any additional shares of our
Common Stock which become issuable in connection with the Common Stock
registered for sale hereby by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt of
consideration which results in an increase in the number of our outstanding
shares of Common Stock.
PLAN OF DISTRIBUTION
We will receive no proceeds from this offering. The shares offered by this
Prospectus may be sold by the selling stockholders from time to time in
transactions in the over-the-counter market, in negotiated transactions, or in a
combination of such methods of sale, at fixed prices which may be changed, at
market prices prevailing at the time of sale, at prices related to prevailing
market prices or at negotiated prices. The selling stockholders may effect such
transactions by selling the shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the selling stockholders and/or the purchasers of the shares
for whom such broker-dealers may act as agents or to whom they sell as
principals, or both. This compensation might be in excess of customary
commissions. The shares being offered by this Prospectus may be sold either
pursuant to this Registration Statement or pursuant to Rule 144 issued by the
SEC under the Securities Act of 1933.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The selling stockholders and any broker-dealers or agents that participate
with the selling stockholders in the distribution of the shares may be deemed to
be "underwriters" within the meaning of the Securities Act of 1933, and any
commissions received by them and any profit on the resale of the shares
purchased by them may be deemed to be underwriting commissions or discounts
under federal law.
Each of the selling stockholders is acting independently of us in making
decisions with respect to the timing, manner and size of each sale of shares of
our Common Stock. We have not been advised of any definitive selling arrangement
at the date of this Prospectus between any selling stockholder and any
broker-dealer or agent.
Under applicable federal rules and regulations, any person engaged in the
distribution of our Common Stock may not simultaneously engage in market making
activities with respect to our Common Stock for a period of two business days
prior to the commencement of such distribution. In addition, and without
limiting the foregoing, each selling stockholder will be subject to applicable
provisions of the Securities Exchange Act of 1934 and the rules and regulations
of the SEC promulgated thereunder. These rules include, without limitation,
Rules 10b-6 and 10b-7, which may limit the timing of purchases and sales of
shares of our Common Stock by the selling stockholders.
-11-
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for us
by Harter, Secrest & Emery LLP, Rochester, New York.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-K for the six months ended December 31, 2002 have
been so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
Our consolidated balance sheet as of June 30, 2001 and our consolidated
statements of operations, changes in shareholders' equity and accumulated other
comprehensive income (loss), and cash flows for each of the two years in the
period ended June 30, 2001 incorporated by reference in this Prospectus, to the
extent indicated in their reports have been audited by Arthur Andersen LLP,
independent public accountants, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in giving said reports.
Arthur Andersen LLP has not reissued its audit report with respect to our
audited consolidated financial statements prepared by it and incorporated by
reference in this prospectus. In addition, Arthur Andersen LLP has not consented
to the inclusion of its audit report in our Annual Report on Form 10-K for the
six months ending December 31, 2002 and incorporated by reference herein. As a
result, you will probably not have an effective remedy against Arthur Andersen
LLP in connection with a material misstatement or omission with respect to our
consolidated financial statements that were audited by Arthur Andersen LLP. Even
if you were able to assert such a claim successfully, as a result of its
conviction and other lawsuits and claims, Arthur Andersen LLP may not have
sufficient assets to satisfy claims made by us or by our investors that might
arise under federal securities laws or otherwise relating to any alleged
material misstatement or omission with respect to our audited consolidated
financial statements audited by Arthur Andersen LLP.
WHERE YOU CAN FIND MORE INFORMATION
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus in connection with
this offering of our Common Stock. If any such information or representations
are given or made, such information or representations must not be relied upon
as having been authorized by us, by any selling stockholder or by any other
person. Neither the delivery of this Prospectus nor any sale made hereunder
shall, under any circumstances, create any implication that information herein
is correct as of any time subsequent to the date hereof. This Prospectus does
not constitute an offer to sell or a solicitation of an offer to buy any
security other than the Common Stock covered by this Prospectus, nor does it
constitute an offer to or solicitation of any person in any jurisdiction in
which such offer or solicitation may not lawfully be made.
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended. As a result, we file reports, proxy
statements, information statements and other information with the Securities and
Exchange Commission, also referred to as the SEC. You may inspect and copy any
reports, proxy statements and other information that we file at the Public
Reference Room maintained by the SEC at 450 Fifth Street, N.W., Washington, D.C.
20549. You can obtain copies of such materials by mail from the Public Reference
Room of the SEC at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. You may obtain information on the operation of the Public
Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains a World
Wide Web site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the SEC. The
address of the SEC's web site is http://www.sec.gov. Our Common Stock is quoted
on the Nasdaq National Market, and such material may also be inspected at the
offices of Nasdaq Operations, 1735 K Street N.W. Washington, D.C. 20006.
-12-
We have filed with the SEC a Registration Statement on Form S-3, together
with all amendments and exhibits, referred to in this Prospectus as the
Registration Statement, under the Securities Act of 1933 with respect to the
Common Stock we are offering. This Prospectus does not contain, nor is it
required to contain, all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the SEC. For further information regarding us and our Common
Stock, you should refer to the Registration Statement and its exhibits and
schedules. The Registration Statement, including its exhibits and schedules, may
be inspected as described above.
INCORPORATION OF INFORMATION BY REFERENCE
The following documents filed with the SEC pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") are
incorporated herein by reference:
1. our Annual Report on Form 10-K for the transition period from July 1,
2002 to December 31, 2002;
2. our Quarterly Reports on Form 10-Q for the quarters ended March 29,
2003 and June 28, 2003 and September 27, 2003;
3. our Definitive Proxy Statement on Schedule 14A filed with the
Commission on April 25, 2003;
4. our reports on Form 8-K filed with the Commission on October 8, 2003,
October 15, 2003 October 28, 2003, November 6, 2003 and November 12, 2003;
and
5. the description of our Common Stock, par value $.10 per share,
contained in our Registration Statement on Form S-1 (Registration No.
33-54470), filed with the Securities and Exchange Commission on December
23, 1992.
All documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act after the date of this Registration Statement (and prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold) shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be incorporated by reference in this Prospectus and to be
part hereof from the date of filing of such documents. Any statement modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus. We will provide to you upon written or
oral request and without charge a copy of any or all of such documents which are
incorporated herein by reference (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into the documents that
this Prospectus incorporates). Written or oral requests for copies (at no cost
to requestor) should be directed to our Secretary, at our principal executive
offices: Ultralife Batteries, Inc., 2000 Technology Parkway, Newark, New York
14513. Our website is www.ultralifebatteries.com. Our telephone number is (315)
332-7100.
-13-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by Ultralife Batteries, Inc.
(the "Company") in connection with the sale of Common Stock being registered.
All amounts are estimates except the SEC registration fee.
SEC Registration Fee $ 221.760
Legal fees and expenses 20,000
Accounting fees and expenses 5,000
Miscellaneous fees and expenses 3,000
----------
Total $28,221.76
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
With respect to indemnification of directors and officers, Section 145 of
the Delaware General Corporation Law ("DGCL") provides that a corporation shall
have the power to 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, 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 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. Under this provision of the DGCL, the termination of any action, suit
or proceeding by judgment, order, settlement, conviction, 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.
Furthermore, the DGCL provides that a corporation shall have the power to
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 right of the
corporation to procure a judgment in its favor by reason of the fact that the
person 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 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 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.
The Company's Restated Certificate of Incorporation (the "Certificate of
Incorporation") and By-laws, as amended (the "By-laws") provide for limitation
of the liability of directors to the Company and its stockholders and for
indemnification of directors, officers, employees and agents of the Company,
respectively, to the maximum extent permitted by the DGCL.
The Certificate of Incorporation provides that directors are not liable to
the Company or its stockholders for monetary damages for breaches of fiduciary
duty as a director, except for liability (a) for any breach of the
II-1
director's duty of loyalty to the Company or its stockholders, (b) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (c) for dividend payments or stock repurchases in violation of
Delaware law, or (d) for any transaction from which the director derived any
improper personal benefit.
The By-laws include provisions by which the Company will indemnify its
officers and directors and other persons against expenses, judgments, fines and
amounts paid in settlement with respect to threatened, pending or completed
suits or proceedings against such persons by reason of serving or having served
the Company as officers, directors or in other capacities, except in relation to
matters with respect to which such persons shall be determined not to have acted
in good faith, lawfully or in the best interests of the Company. With respect to
matters to which the Company's officers, directors, employees, agents or other
representatives are determined to be liable for misconduct or negligence in the
performance of their duties, the By-laws provide for indemnification only to the
extent that the Company determines that such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company.
ITEM 16. EXHIBITS
Reference is made to the information contained in the Exhibit Index filed
as part of this Registration Statement, which information is incorporated herein
by reference pursuant to Rule 411 of the Securities and Exchange Commission's
Rules and Regulations under the Securities Act of 1933.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes (subject to the proviso
contained in Item 512(a) of Regulation S-K):
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflect in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise,
II-2
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act of 1934; and,
where interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specially incorporated by referred in the prospectus to
provide such interim financial information.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that is has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Newark, State of New York, on this 12th day of
November, 2003.
ULTRALIFE BATTERIES, INC.
Dated: November 12, 2003
By: /s/ John D. Kavazanjian
-------------------------------------
John D. Kavazanjian,
President and Chief Executive Officer
II-4
Power of Attorney
Each of the undersigned, being an officer or director, or both of
Ultralife Batteries, Inc. (the "Company"), in his or her capacity as set forth
below, hereby constitutes and appoints John D. Kavazanjian, Robert W. Fishback
and Peter F. Comerford and each of them, his or her true and lawful attorney and
agent, to do any and all acts and all things and to execute any and all
instruments which said attorney and agent may deem necessary or desirable to
enable the Company to comply with the Securities Act of 1933, as amended (the
"Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission thereunder, in connection with the registration under the
Act of the common stock (the "Securities"), including, without limitation, the
power and authority to sign the name of each of the undersigned in the
capacities indicated below to the Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission with respect to such Securities, to
any and all amendments or supplements to such Registration Statement, whether
such amendments or supplements are filed before or after the effective date of
such Registration Statement, to any related Registration Statement filed
pursuant to Rule 462 under the Act, and to any and all instruments or documents
filed as part of or in connection with such registration statement or any and
all amendments thereto, whether such amendments are filed before or after the
effective date of such Registration Statement; and each of the undersigned
hereby ratifies and confirms all that such attorney and agent shall do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ John D. Kavazanjian President and Chief Executive Officer and
- ----------------------- Director (Principal Executive Officer) November 12, 2003
John D. Kavazanjian
/s/ Robert W. Fishback Vice President-Finance and Chief Financial
- ----------------------- Officer (Principal Financial Officer and
Robert W. Fishback Principal Accounting Officer) November 12, 2003
/s/ Joseph C. Abeles Director November 12, 2003
- -----------------------
Joseph C. Abeles
/s/ Joseph N. Barrella Director November 12, 2003
- -----------------------
Joseph N. Barrella
/s/ Patricia C. Barron Director November 12, 2003
- -----------------------
Patricia C. Barron
/s/ Daniel W. Christman Director November 12, 2003
- -----------------------
Daniel W. Christman
/s/ Carl H. Rosner Director November 12, 2003
- -----------------------
Carl H. Rosner
/s/ Ranjit Singh Director November 12, 2003
- -----------------------
Ranjit Singh
II-5
INDEX TO EXHIBITS
The following Exhibits indicated by an asterisk preceding the Exhibit
number are filed herewith. The balance of the Exhibits here heretofore been
filed with the Commission and pursuant to Rule 411 are incorporated herein by
reference.
Exhibit No. Exhibit
- ----------- --------------------------------------------------------------
4.1 Restated Certificate of Incorporation of Ultralife Batteries,
Inc., as amended (1)
4.2 Amendment to Certificate of Incorporation of Ultralife
Batteries, Inc. (2)
4.3 Second Amended and Restated By-Laws of Ultralife Batteries,
Inc., as amended (3)
4.4 Form of Share Purchase Agreement (4)
4.5 Form of Registration Rights Agreement (5)
*5.1 Opinion of Harter, Secrest & Emery LLP
*23.1 Consent of Independent Accountants
*23.2 Consent of Harter, Secrest & Emery LLP (included in the
Opinion of Counsel filed as Exhibit 5.1)
*24 Power of Attorney (see page II-4)
- ----------
(1) Incorporated by reference from Exhibit 3.1 of Registration Statement, File
No. 33-54470 (the "1992 Registration Statement")
(2) Incorporated by reference from Exhibit 3.1 of the Form 10-Q for the
quarter ended December 31, 2000 File No. 0-20852
(3) Incorporated by reference from Exhibit 3.2 of the 1992 Registration
Statement
(4) Incorporated by reference from Exhibit 10.1 on the Form 10-Q for the
quarter ended September 27, 2003 File No. 0-20852
(5) Incorporation by reference from Exhibit 10.2 on the Form 10-Q for the
quarter ended September 27, 2003 File No. 0-20852
* Filed herewith
Exhibit 5.1
[Letterhead of Harter Secrest and Emery]
November 12, 2003
Ultralife Batteries, Inc.
2000 Technology Parkway
Newark, New York 14513
Re: Ultralife Batteries, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
You have requested our opinion in connection with your Registration
Statement on Form S-3, filed under the Securities Act of 1933, as amended, with
the Securities and Exchange Commission (the "Registration Statement"), in
respect of a resale offering of an aggregate of 325,000 authorized and issued
shares of the Common Stock, par value $.10 per share (the "Common Stock"), of
Ultralife Batteries, Inc. (the "Corporation"), which may be sold by certain
stockholders of the Corporation.
We have examined the following corporate records and proceedings of the
Corporation in connection with the preparation of this opinion: its Certificate
of Incorporation; its By-laws as currently in force and effect; its Minute
Books, containing minutes and records of other proceedings of its stockholders
and its Board of Directors, from the date of incorporation to the date hereof;
the Registration Statement; applicable provisions of the laws of the State of
Delaware; and such other documents and matters as we have deemed necessary.
In rendering this opinion, we have made such examination of laws as we
have deemed relevant for the purposes hereof. As to various questions of fact
material to this opinion, we have relied upon representations and/or
certificates of officers of the Corporation, certificates and documents issued
by public officials and authorities, and information received from searchers of
public records.
Based upon and in reliance on the foregoing, we are of the opinion that:
1. The Corporation has been duly incorporated and is validly
existing under the laws of the State of Delaware.
2. The Corporation had the authority to issue an aggregate of
325,000 shares of Common Stock.
3. The 325,000 shares of Common Stock issued by the Corporation and
registered pursuant to the Registration Statement were legally and validly
issued, and are fully paid and non-assessable, and the warrants have been
legally and validly issued, and upon issuance in accordance with the terms
and provisions of the warrants, the shares of Common Stock issued upon
exercise of the warrants will be legally and validly issued, and will be
fully paid and non-assessable.
We hereby consent to be named in the Registration Statement as attorneys
passing upon legal matters in connection with the registration of the 325,000
shares of Common Stock covered thereby, and we hereby consent to the filing of
this opinion as Exhibit 5 to the Registration Statement.
Very truly yours,
/s/ HARTER, SECREST & EMERY LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated March 28, 2003 relating to the
financial statements, which appears in Ultralife Batteries, Inc.'s Annual Report
on Form 10-K for the six months ended December 31, 2002. We also consent to the
references to us under the heading "Experts" in such Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
Rochester, New York
November 7, 2003