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As filed with the Securities and Exchange Commission on February 27, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
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 16-1387013
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1350 ROUTE 88 SOUTH MR. BRUCE JAGID
NEWARK, NEW YORK 14513 ULTRALIFE BATTERIES, INC.
TEL: (315) 332-7100 1350 ROUTE 88 SOUTH
NEWARK, NEW YORK 14513
TEL: (315) 332-7100
(Address, including zip code and (Name, address, including zip code
telephone number including area and telephone number, including area
code, of registrant's principal code, of agent for service)
executive offices)
Copies to:
HENRY I. ROTHMAN, ESQ. BARBARA L. BECKER, ESQ.
JORDAN A. HORVATH, ESQ. CHADBOURNE & PARKE LLP
PARKER CHAPIN FLATTAU & KLIMPL, LLP 30 ROCKEFELLER PLAZA
1211 AVENUE OF THE AMERICAS NEW YORK, N.Y. 10112
NEW YORK, NEW YORK 10036 TEL: (212) 408-5100
TEL: (212) 704-6000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this Form are being offered
pursuant 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. [_]
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. [_]
[2,500,000] SHARES
ULTRALIFE BATTERIES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
February , 1998
LEHMAN BROTHERS INC.
A.G. EDWARDS & SONS, INC.
PENNSYLVANIA MERCHANT GROUP
As Representatives of the several
Underwriters named in Schedule 1,
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Dear Sirs:
Ultralife Batteries, Inc., a Delaware corporation (the "Company"),
proposes to sell an aggregate of [2,500,000] shares (the "Firm Stock") of the
Company's Common Stock, par value $0.10 per share (the "Common Stock"). In
addition, the Company proposes to grant to the Underwriters named in Schedule 1
hereto (the "Underwriters") an option to purchase up to an additional [375,000]
shares of the Common Stock on the terms and for the purposes set forth in
Section 2 (the "Option Stock"). The Firm Stock and the Option Stock, if
purchased, are hereinafter collectively called the "Stock." This is to confirm
the agreement concerning the purchase of the Stock from the Company by the
Underwriters.
1. Representations, Warranties and Agreements of the Company. The
Company with respect to itself and Ultralife Batteries (UK) Ltd., a company
formed under the laws of England (the "Subsidiary") represents, warrants and
agrees that:
(a) A registration statement on Form S-3 and [an] amendment[s]
thereto with respect to the Stock have (i) been prepared by the
Company in conformity with the requirements of the United States
Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations (the "Rules and Regulations") of the United
States Securities and Exchange Commission (the "Commission")
thereunder, (ii) been filed with the Commission under the Securities
Act and (iii) become effective under the Securities Act. Copies of
such registration statement and the amendment[s] thereto have been
delivered by the Company to you as the representatives (the
"Representatives") of the Underwriters. As used in this Agreement,
"Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time; "Preliminary Prospectus"
means each prospectus included in such registration statement, or
amendments thereof, before it became effective under the Securities
Act and any prospectus filed with the Commission by the Company with
the consent of the Representatives pursuant to Rule 424(a) of the
Rules and Regulations; "Registration Statement" means such
registration statement, as amended at the Effective Time, including
any documents incorporated by reference therein at such time and all
information contained in the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations in
accordance with Section 5(a) hereof and deemed to be a part of the
registration statement as of the Effective Time pursuant to paragraph
(b) of Rule 430A of the Rules and Regulations; and "Prospectus" means
such final prospectus, as first filed with the Commission pursuant to
paragraph (1) or (4) of Rule 424(b) of the Rules and Regulations.
Reference made herein to any Preliminary Prospectus or to the
Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, as of the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and any reference to
any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document filed
under the United States Securities Exchange Act of 1934, as amended
(the "Exchange Act"), after the date of such Preliminary Prospectus or
the Prospectus, as the case may be, and incorporated by reference in
such Preliminary Prospectus or the Prospectus, as the case may be, and
any reference to any amendment to the Registration Statement shall be
deemed to include any annual report of the Company filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Time that is incorporated by reference in the
Registration Statement. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the Securities Act and the Rules and Regulations and
do not and will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as
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of the applicable filing date (as to the Prospectus and any amendment
or supplement thereto) contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that
no representation or warranty is made as to information contained in
or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information concerning
such Underwriter furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein.
(c) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such documents
are filed with the Commission, will conform in all material respects
to the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(d) The Company has registered the Common Stock with the
Commission pursuant to Section 12 of the Exchange Act, and all
documents filed with the Commission under the Exchange Act, when they
were filed, conformed in all respects to the requirements of the
Exchange Act and the Rules and Regulations thereunder and did not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(e) The Company and the Subsidiary have been duly incorporated
and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification, except where the failure to so qualify
would not have a material adverse effect on the financial position,
stockholders' equity, results of operations, business or prospects of
the Company and the Subsidiary, taken as a whole (herein, a "Material
Adverse Effect"), and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in
which they are engaged as described in the Registration Statement;
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and the Subsidiary is not a "significant subsidiary," as such term is
defined in Rule 405 of the Rules and Regulations.
(f) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof
contained in the Prospectus; the Company is the sole stockholder of
the Subsidiary and all of the issued shares of capital stock of the
Subsidiary have been duly and validly authorized and issued and are
fully paid and non-assessable and (except for directors' qualifying
shares) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims. Other than the
Subsidiary, the Company does not own, have a material interest in or
control directly or indirectly, any corporation, association or
entity.
(g) The unissued shares of the Stock to be issued and sold by the
Company to the Underwriters hereunder have been duly and validly
authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued, fully paid and
non-assessable and the Stock will conform to the description thereof
contained in the Prospectus; and the issuance of the Stock is not
subject to preemptive or other similar rights.
(h) This Agreement has been duly authorized, executed and
delivered by the Company and is enforceable in accordance with its
terms.
(i) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated
hereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or the Subsidiary is a party or by
which the Company or the Subsidiary is bound or to which any of the
property or assets of the Company or the Subsidiary is subject, nor
will such actions result in any violation of the provisions of the
certificate of incorporation, by-laws or other constituent documents
of the Company or the Subsidiary or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or the Subsidiary or any of their
properties or assets; and except for the registration of the Stock
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act, and applicable state securities laws in connection with the
purchase and distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
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required for the execution, delivery and performance of this Agreement
by the Company and the consummation of the transactions contemplated
hereby.
(j) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Securities Act
with respect to any securities of the Company owned or to be owned by
such person or the right to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act.
(k) Except as described in the Registration Statement, the
Company has not sold or issued any shares of Common Stock during the
six-month period preceding the date of the Prospectus, including any
sales pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act, other than shares issued pursuant to employee benefit
plans, stock option or other employee compensation plans or pursuant
to outstanding options outstanding prior to the commencement of such
six-month period.
(l) Neither the Company nor the Subsidiary has sustained, since
the date of the latest audited financial statements included in the
Prospectus, any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since such date, there has not been any change in the
capital stock or long-term debt of the Company or the Subsidiary or
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company or the Subsidiary, otherwise than
as set forth or contemplated in the Prospectus.
(m) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly
the financial condition and results of operations of the Company and
the Subsidiary purported to be shown thereby, at the dates and for the
periods indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved. The selected and summary financial
and statistical data and information included in the Registration
Statement present fairly the information shown therein and have been
compiled on a basis substantially consistent with the financial
statements presented therein.
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(n) To the knowledge of the Company, each of Ernst & Young LLP
and Arthur Andersen LLP, who have certified certain financial
statements of the Company, whose respective reports appear in the
Prospectus and who have each delivered an initial letter referred to
in Section 7(h) hereof, are independent public accountants as required
by the Securities Act and the Rules and Regulations.
(o) The Company and the Subsidiary have good and marketable title
in fee simple to all real property and good and marketable title to
all personal property owned by each of them, in each case free and
clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the
value of such property and do not materially interfere with the use
made and proposed to be made of such property by the Company and the
Subsidiary and all real and personal property and buildings held under
lease by the Company and the Subsidiary are held by each of them, as
the case may be, under valid, subsisting and enforceable leases, with
such exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by the
Company or the Subsidiary, as the case may be.
(p) The Company and the Subsidiary carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in
similar businesses in similar industries all of which insurance is in
full force and effect.
(q) The Company and the Subsidiary own or possess, free and clear
of all liens, charges, claims, encumbrances, pledges, security
interests, defects or other restrictions or equities of any kind
whatsoever, adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights and licenses
necessary for the conduct of their businesses and neither the Company
nor the Subsidiary has any reason to believe that the conduct of their
respective businesses will conflict with, or has received any notice
of any claim of conflict with, any such rights of others.
(r) There are no legal or governmental proceedings pending to
which the Company or the Subsidiary is a party or of which any
property or assets of the Company or the Subsidiary is the subject
which, if determined adversely to the Company or the Subsidiary, might
have a Material Adverse Effect; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
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(s) The conditions for the use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(t) There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed
as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
(u) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand,
which is required to be described in the Prospectus which is not so
described.
(v) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent.
(w) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Section 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and each
"pension plan" for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(x) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof or,
if requests for extensions to file such returns have been made, such
requests for extension have been timely filed and any such extensions
have been granted and have not expired, and has paid all taxes due
thereon, and no tax deficiency has been determined adversely to the
Company or the Subsidiary which has had nor does the Company have any
knowledge of any tax deficiency which, if determined adversely to the
Company or the Subsidiary, might have a Material Adverse Effect.
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(y) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or granted
any securities other than securities issued or granted pursuant to
employee benefit plans, stock or other employee compensation plans,
(ii) incurred any liability or obligation, direct or contingent, other
than liabilities and obligations which were incurred in the ordinary
course of business, (iii) entered into any transaction not in the
ordinary course of business or (iv) declared or paid any dividend on
its capital stock.
(z) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as
necessary to permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization and (D)
the reported accountability for its assets is compared with existing
assets at reasonable intervals.
(aa) Neither the Company nor the Subsidiary is (i) in violation
of its certificate of incorporation, by-laws or other constituent
documents, (ii) in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is
a party or by which it is bound or to which any of its properties or
assets is subject, (iii) in violation in any material respect of any
law, ordinance, governmental rule, regulation or court decree to which
it or its property or assets may be subject or has failed to obtain
any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its
property or to the conduct of its business and (iv) has received any
notice of proceedings relating to the revocation or modification of
any such license, permit, certificate, franchise or authorization
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect.
(ab) Neither the Company nor the Subsidiary, nor any director,
officer, agent, employee or other person associated with or acting on
behalf of the Company or the Subsidiary, has used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of
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any provision of the Foreign Corrupt Practices Act of 1977; or made
any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(ac) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous substances
by the Company or the Subsidiary (or, to the knowledge of the Company
or the Subsidiary, any of its predecessors in interest) at, upon or
from any of the property now or previously owned or leased by the
Company or the Subsidiary in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or
which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except
for any violation or remedial action which would not have, or could
not be reasonably likely to have, singularly or in the aggregate with
all such violations and remedial actions, a material adverse effect on
the general affairs, management, financial position, stockholders'
equity or results of operations of the Company or the Subsidiary;
there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property
or into the environment surrounding such property of any toxic wastes,
medical wastes, solid wastes, hazardous wastes or hazardous substances
due to or caused by the Company or the Subsidiary or with respect to
which the Company or the Subsidiary has knowledge, except for any such
spill, discharge, leak, emission, injection, escape, dumping or
release which would not have or would not be reasonably likely to
have, singularly or in the aggregate with all such spills, discharges,
leaks, emissions, injections, escapes, dumpings and releases, a
material adverse effect on the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
or the Subsidiary; and the terms "hazardous wastes," "toxic wastes,"
"hazardous substances" and "medical wastes" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(ad) Neither the Company nor the Subsidiary is an "investment
company" within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission
thereunder.
2. Purchase of the Stock by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell [2,500,000] shares of
the Firm Stock to the several Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the Firm
Stock set opposite that Underwriter's name in Schedule l hereto. Each
Underwriter shall be obligated to purchase from the Company that number of
shares of the Firm Stock which represents the same proportion of the
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number of shares of the Firm Stock to be sold by the Company as the number of
shares of the Firm Stock set forth opposite the name of such Underwriter in
Schedule l represents of the total number of shares of the Firm Stock to be
purchased by all of the Underwriters pursuant to this Agreement. The respective
purchase obligations of the Underwriters with respect to the Firm Stock shall be
rounded among the Underwriters to avoid fractional shares, as the
Representatives may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to [375,000] shares of Option Stock. Such option is granted solely
for the purpose of covering overallotments in the sale of Firm Stock and is
exercisable as provided in Section 4 hereof. Shares of Option Stock shall be
purchased severally for the account of the Underwriters in proportion to the
number of shares of Firm Stock set opposite the name of such Underwriters in
Schedule l hereto. The respective purchase obligations of each Underwriter with
respect to the Option Stock shall be adjusted by the Representatives so that no
Underwriter shall be obligated to purchase Option Stock other than in 100 share
amounts. The price of both the Firm Stock and any Option Stock shall be $ per
share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on the First Delivery Date or the Second Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the Stock to be
purchased on such Delivery Date as provided herein.
3. Offering of Stock by the Underwriters. Upon authorization by the
Representatives of the release of the Firm Stock, the several Underwriters
propose to offer the Firm Stock for sale upon the terms and conditions set forth
in the Prospectus.
4. Delivery of and Payment for the Stock. Delivery of and payment
for the Firm Stock shall be made at the office of Chadbourne & Parke LLP, 30
Rockefeller Plaza, New York, New York 10112, at 10:00 A.M., New York City time,
on the third full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the
Representatives and the Company. This date and time are sometimes referred to as
the First Delivery Date. On the First Delivery Date, the Company shall deliver
or cause to be delivered certificates representing the Firm Stock to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by wire transfer of immediately
available funds to a bank account designated by the Company. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Firm Stock shall be registered in such names and
in such denominations as the Representatives shall request in writing not less
than two full business days prior to the
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First Delivery Date. For the purpose of expediting the checking and packaging of
the certificates for the Firm Stock, the Company shall make the certificates
representing the Firm Stock available for inspection by the Representatives in
New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 2 may be exercised, in whole or in
part, at any time and from time to time, upon written notice being given to the
Company by the Representatives. Such notice shall set forth the aggregate number
of shares of Option Stock as to which the option is being exercised, the names
in which the shares of Option Stock are to be registered, the denominations in
which the shares of Option Stock are to be issued and the date and time, as
determined by the Representatives, when the shares of Option Stock are to be
delivered; provided, however, that this date and time shall not be earlier than
the First Delivery Date nor earlier than the second business day after the date
on which the option shall have been exercised nor later than the fifth business
day after the date on which the option shall have been exercised. The date and
time the shares of Option Stock are delivered are sometimes referred to as the
"Second Delivery Date" and the First Delivery Date and the Second Delivery Date
are sometimes each referred to as a "Delivery Date."
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 4
(or at such other place as shall be determined by agreement between the
Representatives and the Company) at 10:00 A.M., New York City time, on the
Second Delivery Date. On the Second Delivery Date, the Company shall deliver or
cause to be delivered the certificates representing the Option Stock to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by wire transfer of immediately
available funds to a bank account designated by the Company. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Option Stock shall be registered in such names and
in such denominations as the Representatives shall request in the aforesaid
written notice. For the purpose of expediting the checking and packaging of the
certificates for the Option Stock, the Company shall make the certificates
representing the Option Stock available for inspection by the Representatives in
New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to the Second Delivery Date.
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5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than Commission's close of business
on the second business day following the execution and delivery of
this Agreement or, if applicable, such earlier time as may be required
by Rule 430A(a)(3) under the Securities Act; to make no further
amendment or any supplement to the Registration Statement or to the
Prospectus except as permitted herein; to advise the Representatives,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Representatives with
copies thereof; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of the Prospectus is required in connection with the
offering or sale of the Stock; to advise the Representatives, promptly
after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request:
(i) conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto, (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented Prospectus
and (iii) every document incorporated by reference in the Prospectus
(excluding exhibits thereto); and, if the delivery of a prospectus is
required at any time after the Effective Time in connection with the
offering or sale of the Stock or any other securities relating
12
thereto and if at such time any events shall have occurred as a result
of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Securities Act, to notify the
Representatives and, upon their request, to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended or supplemented
Prospectus which will correct such statement or omission or effect
such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus or any Prospectus pursuant
to Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Representatives and counsel for the Underwriters and obtain the
consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date (but in no
event later than 15 months after the Effective Date), to make
generally available to the Company's security holders and to deliver
to the Representatives an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Representatives copies of all materials furnished by
the Company to its shareholders and all public reports and all reports
and financial statements furnished by the Company to the principal
national securities exchange upon which the Common Stock may be listed
pursuant to requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rule or regulation of
the Commission thereunder;
13
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Stock;
(i) Without the prior written consent of Lehman Brothers Inc. on
behalf of the Representatives, whether directly or indirectly, for a
period of 90 days subsequent to the date of the Prospectus, not to (1)
offer for sale, sell, pledge or otherwise dispose of (or enter into
any transaction or device which is designed to, or could be expected
to, result in the disposition by any person at any time in the future
of) any shares of Common Stock (other than the Stock and shares issued
pursuant to employee benefit plans, stock option or equity plans or
other employee compensation plans existing on the date hereof or
pursuant to currently outstanding options, warrants or rights), or
securities convertible into or exchangeable for Common Stock (other
than the grant of options pursuant to option plans existing on the
date hereof), or (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the
economic benefits or risks of ownership of such shares of Common
Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise; and to cause each officer and
director of the Company and Intermagnetics General Corporation to
furnish to the Representatives, prior to the First Delivery Date, a
letter or letters, in form and substance satisfactory to counsel for
the Underwriters, pursuant to which each such person shall agree that
without the prior written consent of Lehman Brothers Inc. on behalf of
the Representatives, whether directly or indirectly, for a period of
90 days subsequent to the date of the Prospectus, not to (1) offer for
sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of)
any shares of Common Stock or securities convertible into or
exchangeable for Common Stock or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in
part, any of the economic benefits or risks of ownership of such
shares of Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock
or other securities, in cash or otherwise;
(j) Prior to the Effective Date, to apply for the listing of the
Stock for quotation on the Nasdaq National Market and to use its best
efforts to effect such listing, subject only to official notice of
listing, prior to the First Delivery Date;
14
(k) To apply the net proceeds from the sale of the Stock being
sold by the Company as set forth in the Prospectus; and
(l) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary of the Company shall become an
"investment company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder.
6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus or any documents
incorporated by reference therein, all as provided in this Agreement; (d) the
costs of producing and distributing this Agreement and any other related
documents in connection with the offering, purchase, sale and delivery of the
Stock; (e) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of sale of the
Stock; (f) any applicable listing or other fees, including the fees for
quotation of the Stock on the Nasdaq National Market; (g) the fees and expenses
of qualifying the Stock under the securities laws of the several jurisdictions
as provided in Section 5(h) and of preparing, printing and distributing a Blue
Sky Memorandum (including related fees and expenses of counsel to the
Underwriters); and (h) all other costs and expenses incident to the performance
of the obligations of the Company under this Agreement; provided that, except as
provided in this Section 6 and in Section 11 the Underwriters shall pay their
own costs and expenses, including the costs and expenses of their counsel, any
transfer taxes on the Stock which they may sell and the expenses of advertising
any offering of the Stock made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
contained herein, to the performance by the Company of their respective
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the
15
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus
or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Delivery Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of
Chadbourne & Parke LLP, counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such counsel, is
required to be stated therein or is necessary to make the statements
therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Stock, the
Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby,
shall be reasonably satisfactory in all material respects to counsel
for the Underwriters, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
(d) Parker Chapin Flattau & Klimpl, LLP shall have furnished to
the Representatives its written opinion, as counsel to the Company,
addressed to the Underwriters and dated such Delivery Date, in form
and substance reasonably satisfactory to the Representatives, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in
which its ownership or lease of property or the conduct of its
business requires such qualification and has all power and
authority necessary and has obtained all material authorizations,
approvals, orders, licenses, certificates, franchises and permits
of and from all governmental or regulatory officials and bodies
(including, without limitation, those having jurisdiction over
employee benefits, environmental or similar matters) to own or
hold its properties and conduct the business in which it is
engaged as described in the Registration Statement and
Prospectus; and the Company has no subsidiaries other than
Ultralife Batteries (UK), Ltd.;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company
16
(including the shares of Stock being delivered on such Delivery
Date) and the outstanding warrants or options to purchase stock
have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description thereof
contained in the Prospectus and the form of the certificate for
the Stock conforms to the requirements of the laws of the State
of Delaware. There are no outstanding warrants, options,
convertible securities or other similar securities or rights to
purchase securities of the Company or the Subsidiary, except as
described in the Prospectus;
(iii) There are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or
transfer of, any shares of the Stock pursuant to the Company's
certificate of incorporation or by-laws or, to such counsel's
knowledge, any agreement or other instrument to which the Company
is a party or by which it may be bound;
(iv) The Company and the Subsidiary have good and marketable
title in fee simple to all real property owned by them, in each
case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not
materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of
such property by the Company or the Subsidiary; and all real
property and buildings held under lease by the Company or the
Subsidiary are held by them under valid, subsisting and
enforceable leases, with such exceptions as are not material and
do not interfere with the use made and proposed to be made of
such property and buildings by the Company or the Subsidiary, and
all personal property owned by the Company or the Subsidiary is
free and clear of all liens as do not materially affect the value
of such properties and do not interfere with the use made or
proposed to be made of such properties by the Company or the
Subsidiary, as the case may be;
(v) To such counsel's knowledge and other than as set forth
in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or the Subsidiary is a party or of
which any property or assets of the Company or the Subsidiary is
the subject which might, individually or in the aggregate, have a
Material Adverse Effect; and, to such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vi) The Registration Statement was declared effective under
the Securities Act as of the date and time specified in such
opinion, the
17
Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Rules and Regulations
specified in such opinion on the date specified therein and no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose is
pending or threatened by the Commission;
(vii) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company
prior to such Delivery Date (other than the financial statements
and schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations,
any documents incorporated by reference in the Prospectus (other
than the financial statements and related schedules therein, as
to which such counsel need express no opinion) when they were
filed with the Commission complied as to form in all material
respects with the requirements of the Exchange Act and the Rules
and Regulations of the Commission thereunder;
(viii) To such counsel's knowledge, there are no contracts
or other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations which have not
been described or filed as exhibits to the Registration Statement
or incorporated therein by reference as permitted by the Rules
and Regulations;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company, and is enforceable against the Company
in accordance with its terms, except insofar as rights to
indemnity and/or contribution may be limited by United States
federal or state securities laws or the public policy underlying
such laws;
(x) The issue, sale and delivery of the shares of Stock
being delivered on such Delivery Date by the Company, the
execution, delivery and performance of this Agreement, the
compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions contemplated
hereby (a) do not conflict and will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which
the Company or the Subsidiary is a party or by which the Company
or the Subsidiary is bound
18
or to which any of the property or assets of the Company or the
Subsidiary is subject, nor will such actions result in any
violation of the provisions of the certificate of incorporation
or by-laws or other constituent documents of the Company or the
Subsidiary or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or the Subsidiary or any of their properties or assets
and (b) will not result in the imposition of any lien, charge or
encumbrance upon any property or assets of the Company or the
Subsidiary under any such indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument, nor will any
such action result in any violation of any existing law,
regulation or ruling (assuming compliance with all state
securities laws), judgment, injunction, order or decree to be
applicable to the Company, the Subsidiary or any of their
properties; and, except for the registration of the Stock under
the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required by the
National Association of Securities Dealers, Inc. (the "NASD") or
under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Stock by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and
performance of this Agreement, by the Company or the Subsidiary,
the valid issuance, sale and delivery of the Stock to the
Underwriters and the consummation of the transactions
contemplated hereby;
(xi) To such counsel's knowledge, except as set forth in the
Prospectus, there are no contracts, agreements or understandings
between the Company and any person granting such person the right
to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company
owned or to be owned by such person, or the right (other than
rights which have been waived or satisfied or not yet exercised)
to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or
in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities
Act;
(xii) Except as described in the Registration Statement, to
such counsel's knowledge there is not claim, action or
proceeding, pending or threatened, which challenges the rights of
the Company with respect to any trademarks, service marks,
copyrights, service names, trade names, patents,
19
copyrights licenses (and applications therefor) and other
intellectual property rights used in the conduct of the Company's
businesses (including, without limitation, any such licenses or
intellectual property rights described in the Prospectus as being
owned or possessed by the Company) which, singly or in the
aggregate, if the subject of a decision, ruling or finding
unfavorable to the Company, would result in a Material Adverse
Effect; and nothing has come to such counsel's attention which
causes such counsel to believe that the Company of the
Subsidiary's current product, technology and processes do not
infringe on, or conflict with, any patents, copyrights, licenses
(or applications therefor) or other intellectual property rights
currently held by third parties; and
(xiii) The statements under the captions "Risk Factors --
Shares Eligible for Future Sale," "Business--Battery Safety;
Regulatory Matters; Environmental Considerations,"
"Business--Legal Proceedings," "Principal Stockholders,"
"Description of Capital Stock," "Shares Eligible for Future
Sale," and "Additional Information" have been reviewed by such
counsel, and insofar as they refer to statements of law,
descriptions of statutes, rules or regulations or legal
conclusions, are correct in all material respects.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States
of America, the laws of the State of New York and the General
Corporation Law of the State of Delaware. Such counsel shall also have
furnished to the Representatives a written statement, addressed to the
Underwriters and dated such Delivery Date, in form and substance
satisfactory to the Representatives, to the effect that (x) such
counsel has acted as counsel to the Company in connection with
previous financing transactions and has acted as counsel to the
Company in connection with the preparation of the Registration
Statement, and (y) based on the foregoing, no facts have come to the
attention of such counsel which lead it to believe that (I) the
Registration Statement, as of the Effective Date, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus contains any
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading or (II) any documents incorporated by
reference in the Prospectus when they were filed with the Commission
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the
20
statements therein, in light of the circumstances under which they
were made, not misleading.
(e) [U.K. Counsel] shall have furnished to the Representatives,
its written opinion, as counsel to Ultralife Batteries UK, Ltd.,
addressed to the Underwriters and dated such delivery date, in form
and substance reasonably satisfactory to the Representatives, to the
effect that:
(i) The Subsidiary is duly incorporated and is validly
existing as a private limited liability company and is in good
standing under the laws of England;
(ii) The Subsidiary has the power in its Memorandum of
Association to carry on business as a general commercial company
and, inter alia, to purchase or by any other means acquire and
take options over any property and any rights or privileges of
any kind over or in respect of any property and accordingly has
full power and corporate authority to own and lease its
properties and to conduct its business as described in the
Registration Statement and the Prospectus;
(iii) Neither the Memorandum or the Articles of Association
of the Subsidiary nor any agreements of the Subsidiary contain
any pre-emptive or other rights to subscribe for or to purchase
shares or any other securities of the Subsidiary;
(iv) Except that the directors of the Subsidiary may in
their absolute discretion and without any reason decline to
register the transfer of any shares in the capital of the
Subsidiary, neither the Memorandum and Articles of Association of
the Subsidiary nor any agreement, indenture or instrument to
which the Subsidiary is a party contains any restrictions upon
the voting or transfer of any securities of the Subsidiary. In
relation to voting at general meetings of the Subsidiary, on a
show of hands every member who is present in person or by duly
authorized representative has one vote and on a poll every member
has one vote for every share of which he is the holder;
(v) The authorized share capital of the Subsidiary is
L.____________ divided into ___________ Ordinary Shares of L.1
each, of which ____________ Ordinary Shares of (pound)1 each have
been issued;
21
(vi) The Company is the registered holder of all of the
issued Ordinary Shares and all such shares have been validly
issued, are fully paid up and were not issued in violation of the
Memorandum and Articles of Association of the Subsidiary or any
agreement to which the Subsidiary is a party;
(vii) The Subsidiary has passed the written Special
Resolution dated 23rd May 1994 attached as Annex H permitting its
board of directors by resolution to allot securities of any kind,
but has not filed any additional resolutions to authorize the
issue of warrants, convertible securities or other similar
securities nor to enable it to grant any options over its shares.
Such counsel's inspection of the Minute Books of the Company on
_________ 1998 did not reveal any allotment by the board of
directors of any securities except for those referred to as
issued under paragraph (v) above;
(viii) By the execution and delivery of the Company of the
Underwriting Agreement the Subsidiary is not, nor with the giving
of notice or lapse of time or both would it be, in violation of
or in default under, and consummation by the Company of the
transactions contemplated thereby will not result in a breach or
violation of, or constitute a default under, the Memorandum or
Articles of Association of the Subsidiary or any agreement,
indenture or instrument to which the Subsidiary is a party which
would result in a material adverse effect or result in the
creation or imposition of any lien, charge, claim or encumbrance
upon, any property or asset of the Subsidiary;
(ix) The performance by the Company of its obligations under
the Underwriting Agreement will not violate any law, rule,
administrative regulation or decree of any English court or any
United Kingdom governmental agency or body having jurisdiction
over the Subsidiary or any of its properties which would result
in a material adverse effect or result in the creation or
imposition of any lien, charge, claim or encumbrance upon, any
property or asset of the Subsidiary;
(x) No consent, approval, authorization or order of any
English court, governmental agency, body or financial institution
is required in connection with the consummation by the Company of
the transactions contemplated by the Agreement;
22
(xi) All descriptions in the Prospectus of all legal or
governmental proceedings, contract and other documents relating
to the Subsidiary, and the description of the consequences to the
Subsidiary of such laws, proceedings or documents are accurate in
all material respects;
(xii) Searches made on ____________ 1998 of the Register of
the Chancery Division of the High Court, the Commercial Court
Register and the Central Index of Winding Up Petitions at the
Royal Courts of Justice in London and the Patents County Court
reveal no record of any current action or proceeding against the
Subsidiary in such divisions of the relevant Court including,
without limitation, claims, actions, or proceedings in respect of
patents, trademarks, licenses and other intellectual property
rights owned, used or enjoyed by the Subsidiary;
(xiii) There are no security interests in favor of any third
party in respect of any assets of the Subsidiary;
(xiv) The statements in the Prospectus which refer to
statements of law, descriptions of statutes, rules or regulations
or legal conclusions, with respect of the laws of England, are
correct in all material respects; and
(xv) The Subsidiary has obtained all material
authorizations, approvals, orders, licenses, certificates,
franchises and permits of and from all United Kingdom
governmental or regulatory officials and bodies (including,
without limitation, those having jurisdiction over employee
benefit, environmental or similar matters), to own or lease its
properties and conduct its business as described in the
Registration Statement and the Prospectus, and the Subsidiary has
not received any notice of proceedings relating to the revocation
or modification of any such authorization, approval, order,
consent, license, certificate, franchise, or permit which, singly
or in the aggregate, is the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(f) [Intellectual Property Counsel] shall have furnished to the
Representatives, its written opinion, as special intellectual property
counsel to the Company, addressed to the Underwriters and dated such
delivery date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The list of patents and patent applications (the "Patent
List") annexed hereto as Annex __ is a complete and correct
listing of all the patents (each a "Patent" and together the
"Patents") owned by, and all the
23
applications for patents filed by or on behalf of (the "Pending
Applications"), the Company or its Subsidiary or any person
legally bound to assign full right, title and interest therein
and thereto to the Company or its Subsidiary;
(ii) Such counsel has no reason to believe that either the
Company or the Subsidiary, does not have full right and title in
and to each of the Patents, as well as full right and title in
the Pending Applications, or that the Company or the Subsidiary
is not the beneficiary of legally binding, enforceable and
non-transferable assignments or similar agreements with respect
to the Patents and the Pending Applications, and such counsel has
conducted and caused to be conducted by foreign attorneys or
agents searches of the assignment records of the United States
Patent Office and of foreign Patent Offices with regard to the
Company's record ownership of the Patents and the Pending
Applications, have reviewed the list of record owners of the
Patents and the Pending Applications, and have no knowledge of
any facts which would lead such counsel to believe that the
Company may be precluded from having clear title to the Patents
and Pending Applications referenced in the Patent List;
(iii) Such counsel has no knowledge that the Company lacks
or will be unable to obtain any rights or licenses to use all
patents, trademarks, service marks, trade names, copyrights and
know-how necessary to conduct the business now or proposed to be
operated by the Company as described in the Prospectus, except as
described in the Prospectus. Such counsel is unaware of any facts
which form a basis for a finding of unenforceability or
invalidity of any of the Patents or patent rights owned or
licensed by the Company. To the best of such counsel's knowledge,
the Company has not received any notice of infringement or of
conflict with rights or claims of others with respect to any
patents, trademarks, service marks, trade names, copyrights or
know-how. Such counsel are not aware of any patents of others
which are infringed by specific products or processes referred to
in the Prospectus in such a manner as to materially and adversely
affect the Company;
(iv) To such counsel's knowledge, each Patent is valid and
each U.S. Patent enjoys a presumption of validity under the laws
of the United States, and each Pending Application has been duly
and validly filed in the jurisdiction or jurisdictions noted
opposite its name in the Patent List and is pending therein
subject only to customary legal review and similar procedures;
24
(v) To such counsel's knowledge, each Patent owned by the
Company is owned by it free and clear of all liens, claims and
encumbrances of any nature or kind whatsoever. To such counsel's
knowledge, other than patent and trademark prosecution by the
Company or the Subsidiary, there are no legal or governmental
proceedings pending relating to patent rights, trade secrets,
service marks or other proprietary information or materials of
the Company, and to the best of such counsel's knowledge no such
proceedings are threatened or contemplated by governmental
authorities or others;
(vi) Such counsel has read the sections of the Registration
Statement and the Prospectus captioned "Risk Factors --
Dependence on Proprietary Technologies" and "Business -- Patents,
Trade Secrets and Trademarks" and have participated in
conferences with representatives of the Company at which the
contents of those sections and related matters were discussed.
The statements in the Registration Statement and the Prospectus
under the captions "Risk Factors - Dependence on Proprietary
Technologies" and "Business - Patents, Trade Secrets and
Trademarks" are accurate and complete statements or summaries of
the matters therein set forth and nothing has come to such
counsel's attention that would lead such counsel to believe that
either of those sections in the Registration Statements, as of
the date it was declared effective under the Securities Act by
the Commission, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
that those sections in the Prospectus, as of its date and as of
the Closing Date, includes an untrue statement of a material fact
or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and
(vii) Based upon such counsel's discussions with Parker
Chapin Flattau & Klimpl, counsel to the Company, with respect to
the transactions contemplated by the Registration Statement, and
such counsel's discussions with the responsible employees,
officers and representatives of the Company and its Subsidiaries,
such counsel does not know of any material contracts or other
documents, relating to the Company's patents or proprietary
information, other than those filed as an exhibit to the
Registration Statement, or described in the Registration
Statement or the Prospectus.
(g) The Representatives shall have received from Chadbourne &
Parke
25
LLP, counsel for the Underwriters, such opinion or opinions, dated
such Delivery Date, with respect to the issuance and sale of the
Stock, the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the
Representatives shall have received from each of Ernst & Young, LLP
and Arthur Andersen, LLP a letter, in form and substance satisfactory
to the Representatives, addressed to the Underwriters and dated the
date hereof (i) confirming that each of them are independent public
accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, and (ii) stating, as of the date hereof (or, with respect
to matters involving changes or developments since the respective
dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date
hereof), the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by
accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(i) With respect to the letter of Arthur Andersen, LLP referred
to in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Representatives a
letter (the "bring-down letter") of such accountants, addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date of the bring-down letter
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five days prior to
the date of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters
covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
(j) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its Chairman of the Board,
its President or a Vice President and its Chief Financial Officer
stating that:
26
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of such Delivery
Date; the Company has complied with all its agreements contained
herein; and the conditions set forth in Sections 7(a) and 7(k)
have been fulfilled; and
(ii) They have carefully examined the Registration Statement
and the Prospectus and, in their opinion (A) as of the Effective
Date, the Registration Statement and Prospectus did not include
any untrue statement of a material fact and did not omit to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (B) since the
Effective Date no event has occurred which should have been set
forth in a supplement or amendment to the Registration Statement
or the Prospectus.
(k) (i) Neither the Company nor the Subsidiary shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus or (ii) since such
date there shall not have been any change in the capital stock or
long-term debt of the Company or the Subsidiary or any change, or any
development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company or the Subsidiary, otherwise
than as set forth or contemplated in the Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is, in the
judgment of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Stock being delivered on such Delivery Date on the
terms and in the manner contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum trading prices shall have
been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities, (iii) the
United States shall have become engaged in hostilities, or there shall
have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse
change
27
in general economic, political or financial conditions (or the effect
of international conditions on the financial markets in the United
States shall be such) as to make it, in the judgment of a majority in
interest of the several Underwriters, impracticable or inadvisable to
proceed with the public offering or delivery of the Stock being
delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(m) The Nasdaq National Market shall have approved the Stock for
listing, subject only to official notice of listing.
(n) You shall have been furnished such additional documents and
certificates as you or counsel for the Underwriters may reasonably
request related to this Agreement and the transactions contemplated
hereby.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter,
its officers and employees and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Stock), to which that Underwriter, officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto or (B) in
any blue sky application or other document prepared or executed by the Company
(or based upon any written information furnished by the Company) specifically
for the purpose of qualifying any or all of the Stock under the securities laws
of any state or other jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"), (ii) the
omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Stock or the offering
contemplated hereby, and which is included as part of or referred
28
to in any loss, claim, damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above (provided that the Company shall not
be liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct), and shall reimburse each Underwriter and each
such officer, employee or controlling person promptly upon demand for any legal
or other expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any such amendment or
supplement, or in any Blue Sky Application, in reliance upon and in conformity
with written information concerning such Underwriter furnished to the Company
through the Representatives by or on behalf of any Underwriter specifically for
inclusion therein. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors
(including any person who, with his or her consent, is named in the Registration
Statement as about to become a director of the Company), and each person, if
any, who controls the Company within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the Registration Statement or
the Prospectus or in any amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Underwriter furnished to the
Company through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director,
29
officer or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred. The foregoing indemnity agreement is in addition to
any liability which any Underwriter may otherwise have to the Company or any
such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their respective officers,
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Underwriters
against the Company under this Section 8 if, in the reasonable judgment of the
Representatives, it is advisable for the Representatives and those Underwriters,
officers, employees and controlling persons to be jointly represented by
separate counsel and in that event the fees and expenses of such separate
counsel shall be paid by the Company. No indemnifying party shall (i) without
the prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless, such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent
30
shall not be unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Stock or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Underwriters on the
other with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Stock purchased under this Agreement (before deducting expenses)
received by the Company, on the one hand, and the total underwriting discounts
and commissions received by the Underwriters with respect to the shares of the
Stock purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the shares of the Stock under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section shall be deemed to
include, for purposes of this Section 8(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8(d), no Underwriter shall be required to
31
contribute any amount in excess of the amount by which the total price at which
the Stock underwritten by it and distributed to the public was offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 8(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company acknowledges
that the statements with respect to the public offering of the Stock by the
Underwriters set forth on the cover page of, the legend concerning
over-allotments on the inside front cover page of and the concession and
reallowance figures appearing under the caption "Underwriting" in, the
Prospectus are correct and constitute the only information concerning such
Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement and the
Prospectus.
9. Defaulting Underwriters. If, on either Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
Stock which the defaulting Underwriter agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of shares of the
Firm Stock set opposite the name of each remaining non-defaulting Underwriter in
Schedule 1 hereto bears to the total number of shares of the Firm Stock set
opposite the names of all the remaining nondefaulting Underwriters in Schedule 1
hereto; provided, however, that the remaining nondefaulting Underwriters shall
not be obligated to purchase any of the Stock on such Delivery Date if the total
number of shares of the Stock which the defaulting Underwriter or Underwriters
agreed but failed to purchase on such date exceeds 9.09% of the total number of
shares of the Stock to be purchased on such Delivery Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110% of
the number of shares of the Stock which it agreed to purchase on such Delivery
Date pursuant to the terms of Section 2. If the foregoing maximums are exceeded,
the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representatives who so agree, shall have the right, but
shall not be obligated, to purchase, in such proportion as may be agreed upon
among them, all the Stock to be purchased on such Delivery Date. If the
remaining Underwriters or other underwriters satisfactory to the Representatives
do not elect to purchase the shares which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such Delivery Date, this Agreement
(or, with respect to the Second Delivery Date, the obligation of the
Underwriters to purchase,
32
and of the Company to sell, the Option Stock) shall terminate without liability
on the part of any non-defaulting Underwriter or the Company, except that the
Company will continue to be liable for the payment of expenses to the extent set
forth in Sections 6 and 11. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1 hereto who, pursuant to this
Section 9, purchases Firm Stock which a defaulting Underwriter agreed but failed
to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If other
underwriters are obligated or agree to purchase the Stock of a defaulting or
withdrawing Underwriter, either the Representatives or the Company may postpone
the Delivery Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, the Prospectus or
in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the Company
prior to delivery of and payment for the Firm Stock if, prior to that time, any
of the events described in Sections 7(k) or 7(l), shall have occurred or if the
Underwriters shall decline to purchase the Stock for any reason permitted under
this Agreement.
11. Reimbursement of Underwriters' Expenses. If (a) the Company shall
fail to tender the Stock for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of
the Stock, and upon demand the Company shall pay its proportionate share of the
full amount thereof to the Representative(s). If this Agreement is terminated
pursuant to Section 10 by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to Lehman Brothers Inc., Three World Financial
Center, New York, New York 10285, Attention: Syndicate Department (Fax:
33
212-526-6588), with a copy, in the case of any notice pursuant to Section
8(d), to the Director of Litigation, Office of the General Counsel, Lehman
Brothers Inc., Three World Financial Center, 10th Floor, New York, NY
10285;
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Bruce Jagid (Fax: 201-930-1144) with a
copy to Parker Chapin Flattau & Klimpl, LLP, 1211 Avenue of the Americas,
New York, New York 10036, Attention: Henry Rothman, Esq.;
provided, however, that any notice to an Underwriter pursuant to Section 8(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriters by Lehman Brothers Inc. on behalf of the
Representatives.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
their respective personal representatives and successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements of
the Company contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act and (B) the indemnity agreement of
the Underwriters contained in Section 8(c) of this Agreement shall be deemed to
be for the benefit of directors of the Company, officers of the Company who have
signed the Registration Statement and any person controlling the Company within
the meaning of Section 13 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 13, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
14. Survival. The respective indemnities, representations, warranties
and agreements of the Company and the Underwriters contained in this Agreement
or made by or on behalf on them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Stock and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
34
15. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW
PROVISIONS.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
35
If the foregoing correctly sets forth the agreement among the Company,
and the Underwriters, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
ULTRALIFE BATTERIES, INC.
By:
------------------------------
Name:
Title:
Accepted:
LEHMAN BROTHERS INC.
A.G. EDWARDS & SONS, INC.
PENNSYLVANIA MERCHANT GROUP LTD
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By: LEHMAN BROTHERS INC.
By:
---------------------------
Authorized Representative
36
SCHEDULE 1
Number of Number of
Underwriters Firm Shares Option Shares
- ------------ ----------- -------------
Lehman Brothers Inc. ...........................
A.G. Edwards & Sons, Inc........................
Pennsylvania Merchant Group ....................
TOTAL [2,500,000] [375,000]
---------- ---------
EXHIBIT 4.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ULTRALIFE BATTERIES, INC.
FIRST. NAME. The name of the Corporation is Ultralife Batteries,
Inc. (The "Corporation").
SECOND. PURPOSE AND POWERS. The purpose for which the Corporation is
organized is as follows:
To engage in any lawful act or activity for which
corporations may be organized under the General Corporation
Law of the State of Delaware.
THIRD. CAPITALIZATION. The total number of shares of stock that the
Corporation shall have authority to issue is 13 million shares, consisting of 12
million shares of Common Stock, par value $.10 per share (the "Common Stock")
and 1 million shares of Preferred Stock, $.10 par value (the "Preferred Stock").
The voting powers, designations, preferences and relative,
participating, optional or other special rights and qualifications, limitations
or restrictions of the classes of stock of the Corporation are as follows:
I. SHARES OF COMMON STOCK. All shares of Common Stock will be
identical and will entitle the holders thereof to the same rights and
privileges.
A. VOTING RIGHTS. Except as otherwise required by law, the
holders of Common Stock shall be entitled to one vote per share on each matter
on which the stockholders of the Corporation shall be entitled to vote.
B. DIVIDENDS. The Board of Directors of the Corporation may
cause dividends or other distributions to be paid to the holders of shares of
Common Stock out of funds legally available for the payment of dividends by
declaring an amount per share as a dividend or other distribution.
C. LIQUIDATION RIGHTS. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation and after payment shall have been made to the holders of Preferred
Stock of the full amount to which they may be entitled, the holders of shares of
Common Stock shall be entitled, to the exclusion of the holders of shares of
Preferred Stock, to share ratably, share for share, in all remaining assets of
the Corporation available for distribution to its stockholders. Neither a
consolidation or merger of the Corporation with or into any other corporation,
nor a merger of any other corporation into the
Corporation, nor a reorganization of the Corporation, nor the purchase or
redemption of all or part of the outstanding shares of any class or classes of
the Corporation, nor a sale or transfer of all or any part of its assets shall
be considered a liquidation, dissolution or winding up of the Corporation within
the meaning of this paragraph.
II. PREFERRED STOCK. The Board of Directors of the Corporation
shall have the full authority permitted by law to fix by resolution full,
limited or no voting powers and such designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions of any series of Preferred Stock that may be desired.
FOURTH. ELECTIONS BY BALLOT. Elections of directors need not be by
written ballot.
FIFTH. AMENDMENT OF BYLAWS. The Board of Directors shall have the
power, in addition to the stockholders, to make, alter or repeal the bylaws of
the Corporation.
SIXTH. LIMIT ON LIABILITY AND INDEMNIFICATION.
A. LIABILITY. To the full extent that the General corporation
Law of the State of Delaware, as it exists on the date hereof or may hereafter
be amended, permits the limitation or elimination of the liability of directors
or officers, a director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages.
B. INDEMNIFICATION. To the full extent permitted by the General
Corporation Law of the State of Delaware, as it exists on the date hereof or may
hereafter be amended, and any other applicable law, the Corporation shall
indemnify a director of the Corporation who is or was a party to any proceeding
by reason of the fact that such person is or was such a director or is or was
serving at the request of the Corporation as a director of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise.
The Board of Directors is hereby empowered to contract in advance to indemnify
any director.
SEVENTH. AMENDMENT OF CERTIFICATE OF INCORPORATION. The Corporation
reserves the right to amend, alter, change or repeal any provision contained in
this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders are granted subject to this
reservation.
EIGHTH. REGISTERED OFFICE.
The registered office of the Corporation is to be located at
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, in the
County of New Castle, in the State of Delaware. The name of its registered agent
at that address is The Corporation Trust Company.
-2-
EXHIBIT 23.2
Consent of Independent Auditors
As independent public accountants, we hereby consent to the use of our report
and to all references to our firm, included in or made a part of this
registration statement.
/s/ Arthur Andersen LLP
Rochester, NY
February 26, 1998
EXHIBIT 23.3
Consent of Independent Auditors
We consent to the reference to our firm under the captions "Experts" and
"Selected Consolidated Financial Data" and to the use of our report dated August
31, 1995, with respect to the 1995 consolidated financial statements of
Ultralife Batteries, Inc. and Subsidiary included in the Registration Statement
(Form S-3) and related Prospectus of Ultralife Batteries, Inc. and Subsidiary
for the registration of 2,500,000 shares of its common stock.
/s/ Ernst & Young LLP
Syracuse, New York
February 26, 1998