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As filed with the Securities and Exchange Commission on April 7, 2004
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ULTRALIFE BATTERIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 16-1387013
(State or other jurisdiction of (I.R.S Employer
incorporation or organization) Identification No.)
2000 Technology Parkway
Newark, New York 14513
(Address of Principal Executive Offices) (Zip Code)
Ultralife Batteries, Inc.
Amended and Restated 2000 Stock Option Plan
(Full title of the plan)
John D. Kavazanjian
President and Chief Executive Officer
Ultralife Batteries, Inc.
2000 Technology Parkway
Newark, New York 14513
(Name and address of agent for service)
315-332-7100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Exhibit 5.1
April 6, 2004
Ultralife Batteries, Inc.
2000 Technology Parkway
Newark, New York 14513
Re: Ultralife Batteries, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested our opinion in connection with your Registration
Statement on Form S-8, filed under the Securities Act of 1933, as amended (the
"Registration Statement"), with the Securities and Exchange Commission (the
"Registration Statement") in respect of the proposed issuance by Ultralife
Batteries, Inc. (the "Company") of up to 500,000 additional shares of Common
Stock, par value $.10 per share (the "Common Stock"), of the Company pursuant to
the Company's 2000 Amended and Restated Stock Option Plan (the "Plan").
We have examined the following corporate records and proceedings of the
Company in connection with the preparation of this opinion: its Certificate of
Incorporation as amended and restated to date; its By-laws as currently in force
and effect; its minute books, containing minutes and records of proceedings of
its stockholders and its Board of Directors from the date of incorporation to
the date hereof; the Registration Statement and the related exhibits thereto;
applicable provisions of 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 Company, certificates and documents issued by
public official 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 Company has been duly incorporated and is validly existing under
the laws of the State of Delaware as of April 6, 2004.
2. The Company has the authority to issue an additional 500,000 shares
of Common Stock pursuant to the terms of the Plan.
3. The 500,000 shares of Common Stock to be issued by the Company will,
when issued and paid for in accordance with the provisions of the
Plan and the respective stock option agreements pursuant to which
options are granted under the Plan, be validly authorized and
legally issued and outstanding, fully paid and non-assessable.
We hereby consent to being named in the Registration Statement as
attorneys who will, for the Company, pass upon the validity of the issuance of
the additional 500,000 shares of Common Stock offered thereby, and we hereby
consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement.
Very truly yours,
/s/ Harter, Secrest & Emery LLP
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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-8 of our report dated February 3, 2004, except for the first
paragraph of Note 13, as to which the date is March 1, 2004, relating to the
financial statements and financial statement schedule of Ultralife Batteries,
Inc., which appears in Ultralife Batteries, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 2003.
/s/ PricewaterhouseCoopers LLP
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PricewaterhouseCoopers LLP
Rochester, New York
April 6, 2004
Exhibit 99.1
ULTRALIFE BATTERIES, INC
AMENDED AND RESTATED
2000 STOCK OPTION PLAN
Section 1. Purpose.
The Plan authorizes the Committee (as hereafter defined) to provide
Employees (including officers of the Corporation), Directors and Consultants of
the Corporation and its Subsidiaries, who are in a position to contribute
materially to the long-term success of the Corporation, with options to acquire
common stock of the Corporation, in accordance with the terms specified herein.
The Corporation believes that this incentive program will cause those persons to
increase their interest in the Corporation's welfare, and aid in attracting and
retaining Employees, Directors and Consultants of outstanding ability.
Section 2. Definitions.
Unless the context clearly indicates otherwise, the following terms, when
used in this Plan, shall have the meanings set forth in this Section:
(a) "Board" shall mean the Board of Directors of the Corporation.
(b) "Change in Control" shall mean the occurrence of any of the following:
(i) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes a "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Corporation
representing 30% or more of the voting power of the then outstanding securities
of the Corporation; (ii) during any period of two consecutive calendar years
there is a change of 25% or more in the composition of the Board of the
Corporation in office at the beginning of the period except for changes approved
by at least two-thirds of the Directors then in office who were Directors at the
beginning of the period; (iii) the stockholders of the Corporation approve an
agreement providing for (A) the merger or consolidation of the Corporation with
another corporation where the stockholders of such corporation, immediately
after the merger or consolidation, own shares entitling such stockholders to 50%
or more of all votes (without consideration of the rights of any class of stock
to elect Directors by separate class vote) to which all stockholders of the
corporation issuing cash or securities in the merger or consolidation would be
entitled in the election of directors or where the members of the Board of
Directors of such corporation, immediately after the merger or consolidation,
constitute a majority of the Board of Directors of the corporation issuing cash
or securities in the merger or consolidation, or (B) the sale or other
disposition of all or substantially all the assets of the Corporation, or a
liquidation, dissolution or statutory exchange of the Corporation; or (iv) any
person has commenced, or announced an intention to commence, a tender offer or
exchange offer for 30% or more of the voting power of the then-outstanding
securities of the Corporation.
(c) "Code" shall mean the Internal Revenue Code of 1986 as it may be
amended from time to time.
(d) "Committee" shall mean a Committee of not less than two Directors who
are "Non-Employee Directors," as that term is defined and interpreted pursuant
to Rule 16b-3 under the Exchange Act. The Committee shall be appointed by and
serve at the pleasure of the Board.
(e) "Consultant" shall mean any consultant of the Corporation or its
Subsidiaries.
(f) "Control Person" shall mean any person who, as of the date of grant of
an Option, owns (within the meaning of Section 422A(b)(6) of the Code) stock
possessing more than 10% of the total combined voting power or value of all
classes of stock of the Corporation or of any parent or Subsidiary.
(g) "Corporation" shall mean Ultralife Batteries, Inc., a Delaware
corporation.
(h) "Director" shall mean any member of the Board.
(i) "Employee" shall mean any employee of the Corporation or its
Subsidiaries, including Directors who are otherwise employed by the Corporation.
(j) "Exchange Act" shall mean the Securities Exchange Act of 1934 as it
may be amended from time to time.
(k) "Fair Market Value" shall mean for any day (i) if the Corporation is a
registrant under Section 12 of the Exchange Act, the closing price of the Stock
in the over-the-counter market, as reported through the National Association of
Securities Dealers Automated Quotation System or, if the stock is listed or
admitted to trading on any national securities exchange, the last reported sale
price on such exchange or, (ii) if the Corporation in not a registrant under
Section 12 of the Exchange Act, the price of the Stock will be determined by the
Board on the date of grant but will not be less than the par value of such
Stock.
(l) "Grantee" shall mean a Person granted an Option under the Plan.
(m) "ISO" shall mean an Option granted pursuant to the Plan to purchase
shares of Stock and intended to qualify as an incentive stock option under
Section 422 of the Code, as now or hereafter constituted.
(n) "NQSO" shall mean an Option granted pursuant to the Plan to purchase
shares of the Stock that is not an ISO.
(o) "Options" shall refer collectively to NQSOs and ISOs subject to the
Plan.
(p) "Parent" shall mean any parent of the Corporation as defined in
Section 425 of the Code.
(q) "Plan" shall mean this 2000 Stock Option Plan as set forth herein and
as amended from time to time.
(r) "Securities Act" shall mean the Securities Act of 1933 as it may be
amended from time to time.
(s) "Stock" shall mean shares of the Common Stock of the Corporation.
(t) "Subsidiary" shall mean any subsidiary corporation as defined in
Section 425 of the Code.
Section 3. Shares of Stock Subject to the Plan.
Subject to the provisions of Section 8, the Stock which may be issued or
transferred pursuant to Options granted under the Plan shall not exceed
1,000,000 shares in the aggregate. Stock issuable upon the exercise of any
Option may be authorized but unissued shares or reacquired shares of Stock. If
any unexercised Options lapse or terminate for any reason, the Stock covered
thereby may again be optioned. More than one Option may be granted to one
person.
Section 4. Administration of the Plan.
The Plan shall be administered by the Committee. Subject to the express
provisions of the Plan, the Committee shall have the authority to interpret the
Plan, to prescribe, amend, and rescind rules and regulations relating to the
Plan, to determine the terms and provisions of stock option agreements
thereunder and to make all other determinations necessary or advisable for the
administration of the Plan. Any controversy or claim arising out of or related
to the Plan or the Options granted thereunder shall be determined unilaterally
by, and at the sole discretion of, the Committee. The provisions of stock option
agreements for Options granted under Section 6 hereof may provide that, upon the
occurrence of a Change in Control specified in Section 2(b)(iii) hereof, the
Committee may require the cancellation for cash of outstanding Options or the
issuance of comparable replacement options granted by the entity.
Section 5. Types of Options.
Options granted under the Plan may be of two types: ISOs and NQSOs. The
Committee shall have the authority and discretion to grant to an eligible
Employee either ISOs, NQSOs, or both, but shall clearly designate the nature of
each Option at the time of grant. Consultants and Directors shall only receive
NQSOs.
Section 6. Grant of Options to Employees, Consultants and Directors.
(a) Employees, Consultants and Directors of the Corporation and its
Subsidiaries shall be eligible to receive Options under the Plan. Employees
shall be eligible to receive ISOs and NQSOs; Consultants and Directors shall be
eligible to receive NQSOs only.
(b) The exercise price per share of Stock subject to an Option granted to
an Employee, Consultant or Director shall be determined by the Committee;
provided, however, that (i) the exercise price of each share subject to an ISO
shall be not less than 100% of the Fair Market Value of a share of the Stock on
the date such ISO is granted, (ii) such exercise price shall not be less than
110% of such Fair Market Value for any ISO granted to a Control Person, and
(iii) the exercise price of each share subject to a NQSO shall be not less than
85% of the Fair Market Value of a share of the Stock on the date such NQSO is
granted.
(c) The term of each Option granted to an Employee, Consultant or Director
shall be determined by the Committee, provided that no Option shall be
exercisable more than ten years from the date such Option is granted, and
provided further that no ISO granted to a Control Person shall be exercisable
more than five years from the date of Option grant.
(d) The Committee shall determine and designate from time to time the
Employees, Consultants and Directors who are to be granted Options, the nature
of each Option granted and the number of shares of Stock subject to each such
Option.
(e) Notwithstanding any other provisions hereof, the aggregate Fair Market
Value (determined at the time the ISO is granted) of the Stock with respect to
which ISOs are exercisable for the first time by any Employee during any
calendar year under all plans of the Corporation and any Parent or Subsidiary
corporation shall not exceed $100,000.
(f) The Committee, in its sole discretion, shall determine whether any
Option granted to an Employee, Consultant or Director shall become exercisable
in one or more installments and specify the installment dates. The Committee may
also make such other provisions, not inconsistent with the terms of this Plan as
it may deem desirable, including such provisions as it may deem necessary to
qualify any ISO under the provisions of Section 422 of the Code. The Committee,
in its discretion, shall have the power to accelerate the period or periods
during which Options become exercisable. Notwithstanding any determination by
the Committee regarding the exercise period of any Option granted to an
Employee, Consultant or Director, all such Options shall immediately become
exercisable upon a Change in Control of the Corporation.
(g) The Committee may, at any time, grant new or additional options to any
eligible Employee, Consultant or Director who has previously received Options
under this Plan, or options under other plans, whether such prior Options or
other options are still outstanding, have been exercised previously in whole or
in part, or have been canceled. The exercise price of such new or additional
Options may be established by the Board, subject to Section 6(b) hereof, without
regard to such previously granted Options or other options.
(h) No Option shall be granted under this Section 6 to Non-Employee
Directors unless that option, (i) provides that the Stock received upon exercise
of the Option may not be disposed of before the first day following the sixth
month anniversary date the Option was granted, or (ii) is granted pursuant to
Section 6(i) below.
(i) On the last day of each calendar quarter, there shall be granted to
each Non-Employee Director of the Corporation on such date, a NQSO to purchase
1,500 shares of Stock, up until the fifth anniversary of the grant date, for a
price equal to the closing price of the Stock on the Grant Date. These options
will be deemed vested on the date that they are granted.
(j) In no event shall any issued and outstanding option be repriced to a
lower exercise price at any time during the term of such option, without the
prior affirmative vote of a majority of shares of voting capital stock present
at a stockholders meeting in person or by proxy and entitled to vote thereon.
Any amendment or repeal of this provision shall require the affirmative vote of
a majority of shares of voting capital stock present at a stockholders meeting
in person or by proxy and entitled to vote thereon.
Section 7. Exercise of Options.
(a) Upon the exercise of any Option, the Grantee shall pay the exercise
price for the Stock being purchased in the manner provided in the particular
stock option agreement, including payment for such shares by surrender of shares
of Stock (at their Fair Market Value) if permitted by such stock option
agreement, including Stock acquired pursuant to the Option then being exercised.
(b) The number of shares which are issued pursuant to the exercise of an
Option shall be charged against the maximum limitation on shares set forth in
Section 3 hereof.
(c) Except as provided in Section 9, no Option granted to an Employee or
Consultant shall be exercised unless at the time of such exercise the Grantee is
then an Employee or Consultant.
(d) Before the Corporation issues Stock to a Grantee pursuant to the
exercise of a NQSO, the Corporation shall have the right to require that the
Grantee make such provisions, or furnish the Corporation such authorization,
necessary or desirable so that the Corporation may satisfy its obligation, under
applicable income tax laws, to withhold for income or other taxes due upon or
incident to such exercise. The Committee may adopt such rules, forms, and
procedures as it considers necessary or desirable to implement this Section
7(d), which rules, forms, and procedures shall be binding upon all Grantees, and
which shall be applied uniformly to all Grantees similarly situated.
Section 8. Adjustment Upon Changes in Capitalization.
In the event of any reclassification, recapitalization, merger,
consolidation, reorganization, issuance of warrants, rights or debentures, stock
dividend, stock split or reverse stock split, cash dividend, property dividend,
combination or exchange of shares, repurchase of shares or any other change in
corporate structure which in the judgment of the Committee materially affects
the value of shares, the Committee may determine the appropriate adjustment, if
any, to the number and class of shares and the exercise price per share set
forth in any Option theretofore granted, provided that no such adjustments shall
be made to any ISO without the Grantee's consent, if such adjustment would cause
such ISO to fail to qualify as such.
Section 9. Termination of Relationship with the Corporation.
(a) Upon the termination of an Employee's employment or a Consultant's
consulting relationship with the Corporation or a Director's term of office with
the Corporation, the Committee shall have the discretion to provide that upon
termination of an Employee's employment or a Consultant's consulting
relationship or a Director's term of office, such Grantee or his or her legal
representative may exercise any outstanding and then-exercisable installments of
his or her Options for a period to be determined by the Committee in its sole
discretion; provided, however, that in no event shall the period extend beyond
the expiration of the Option term. In no event shall any Option be exercisable
for more than the maximum number of shares that the Grantee was entitled to
purchase at the date of termination of an Employee's employment or a
Consultant's consulting relationship with the Corporation or a Director's term
of office with the Corporation. In the case of an Employee or Consultant, the
transfer among the Corporation and any Subsidiary shall not be deemed to be a
termination of the employment or consulting relationship, and a change from the
status of an Employee to a Consultant or from a Consultant to
an Employee shall not be deemed to be a termination of the employment or
consultant's relationship.
(b) Subject to the foregoing, in the event of death, Options may be
exercised by a Grantee's legal representative.
Section 10. General Provisions.
(a) Each Option grant shall be evidenced by a written stock option
agreement containing such terms and conditions, not inconsistent with this Plan,
as the Committee shall approve. ISOs and NQSOs may be granted to Employees
simultaneously and subject to a single stock option agreement; provided,
however, that in no event shall a NQSO be granted in tandem with an ISO such
that the exercise of one affects the right to exercise the other. The terms and
provisions of such stock option agreements (including the exercise price
specified therein) may vary among Grantees and among different Options granted
to the same Grantee.
(b) The grant of an Option in any year shall not give the Grantee any
right to similar grants in future years or any right to continue such Grantee's
employment or consultant relationship with the Corporation or its Subsidiaries.
All Grantees shall remain subject to discharge to the same extent as if the Plan
were not in effect.
(c) No Grantee, and no beneficiary or other persons claiming under or
through the Grantee shall have any right, title or interest by reason of any
Option to any particular assets of the Corporation or its Subsidiaries, or any
shares of Stock allocated or reserved for the purposes of the Plan or subject to
any Option except as set forth herein. The Corporation shall not be required to
establish any fund or make any other segregation of assets to assure the payment
of any Option.
(d)(i) Except as otherwise determined by the Committee or as otherwise
provided in Section 10(d)(ii) below, no Option or other right under the Plan
shall be subject to anticipation, sale, assignment, pledge, encumbrance, or
charge except by will or the laws of descent and distribution, and an Option
shall be exercisable during the Grantee's lifetime only by the Grantee.
(ii) The Committee shall have the discretionary authority to grant NQSOs
or amend outstanding NQSOs to provide that they be transferable, subject to such
terms and conditions as the Committee shall establish. In addition to any such
terms and conditions, the following terms and conditions shall apply to all
transfers of NQSOs:
(A) Except as otherwise permitted by the Committee, only Directors
and corporate officers of the Corporation shall be permitted to transfer their
NQSOs, and such individuals must be a Director or a corporate officer on the
date of transfer.
(B) Transfers shall only be permitted to: (1) the transferor's
"Immediate Family Members," as that term is defined in Section 10(d)(2)(I); (2)
a trust or trusts for the exclusive benefit of the transferor's Immediate Family
Members; or (3) a family partnership or family limited partnership in which each
partner is, at the time of transfer and all time subsequent thereto, either an
Immediate Family Member or a trust for the exclusive benefit of one or more
Immediate Family Members.
(C) All transfers shall be made for no consideration.
(D) Once a NQSO is transferred, any subsequent transfer of such
transferred Option shall, notwithstanding Section 10(d)(i) to the contrary, be
permitted; provided, however, such subsequent transfer complies with all of the
terms and conditions of this Section 10(d)(ii), with the exception of Section
10(d)(ii)(A).
(E) In order for a transfer to be effective, the Committee's
designated transfer agent must be used to effectuate the transfer. The costs of
such transfer agent shall be borne solely by the transferor.
(F) In order for a transfer in accordance with Section 10(d)(ii) to
be effective, the transferor must agree in writing prior to the transfer on a
form provided by the Corporation to pay any and all payroll and withholding
taxes due upon exercise of the transferred Option. In addition, prior to the
exercise of the transferred Option by a transferee, arrangements must be made by
the Grantee with the Corporation for the payment of any and all payroll and
withholding taxes.
(G) Upon transfer, a NQSO continues to be governed by and subject to
the terms and conditions of the Plan. A transferee of a NQSO is entitled to the
same rights as the Grantee to whom such NQSO was originally granted, as if no
transfer had taken place. Accordingly, the rights of the transferee are subject
to the terms and conditions of the original grant of the NQSO, including
provisions relating to expiration date, exercisability, option price and
forfeiture.
(H) The Corporation shall be under no obligation to provide a
transferee with any notice regarding the transferred options held by the
transferee upon forfeiture or any other circumstance.
(I) For purposes of this Section 10(d)(ii), the term "Immediate
Family Member" shall mean the transferor and his or her spouse, children or
grandchildren, whether natural, step or adopted children or grandchildren.
(e) Notwithstanding any other provision of this Plan or stock option
agreements made pursuant thereto, the Corporation shall not be required to issue
or deliver any certificate or certificates for shares of Stock under this Plan
prior to fulfillment of all of the following conditions:
(1) The listing, or approval for listing upon notice of issuance, of
such shares on any securities exchange on which the Stock may then be
traded;
(2) Any registration or other qualification of such shares under any
state or federal law or regulation, or other qualification which the Board
shall, in its absolute discretion and upon the advice of counsel, deem
necessary or advisable;
(3) The obtaining of any other consent approval or permit from any
state or federal government agency which the Board shall, in its absolute
discretion and upon the advice of counsel, determine to be necessary or
advisable; and
(4) The execution by the Grantee (or the Grantee's legal
representative) of such written representation that the Committee may in
its sole discretion deem necessary or advisable to the effect that the
shares then being purchased are being purchased for investment with no
present intention of reselling or otherwise disposing of such shares in
any manner which may result in a violation of the Securities Act of 1933,
as amended, and the placement upon certificates for such shares of an
appropriate legend in connection therewith.
(f) The issuance of shares of Stock to Grantees or to their legal
representatives shall be subject to any applicable taxes and other laws or
regulations of the United States or of any state having jurisdiction thereof.
(g) In the case of a grant of an Option to any Employee or Consultant of a
Subsidiary, the Corporation may, if the Committee so directs, issue or transfer
the shares covered by the Option to the Subsidiary, for such lawful
consideration as the Committee may specify, upon the condition or understanding
that the Subsidiary will transfer the shares to the Employee or Consultant in
accordance with the terms of the Plan and the stock option agreement relating to
such Option.
Section 11. Amendment or Termination.
Subject to the provisions of Section 6(j), the Board may, at any time,
alter, amend, suspend, discontinue or terminate this Plan; provided, however,
that no such action shall adversely affect the rights of Grantees to Options
previously granted hereunder and, provided further, however, that any
stockholder approval necessary or desirable in order to comply with Rule 16b-3
under the Exchange Act or with Section 422 of the Code (or other applicable law
or regulation) shall be obtained in the manner required therein.
Section 12. Duration of Plan.
This Plan is effective upon its adoption by the Board on September 15,
2000, subject to the approval of the Corporation's stockholders. This Plan shall
terminate at the close of business on September 15, 2010, and no Option may be
granted under the Plan thereafter, but such termination shall not affect any
Options theretofore granted.