AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 28, 2001
REGISTRATION NO. 333-67808
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 3
TO
FORM S-3
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REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ULTRALIFE BATTERIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 16-387013
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
2000 Technology Parkway
NEWARK, NEW YORK 14513
(315) 332-7100
(Address, including Zip Code, and Telephone Number, including Area Code,
of Registrant's Principal Executive Offices)
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John D. Kavazanjian
President and Chief Executive Officer
Ultralife Batteries, Inc.
2000 Technology Parkway
Newark, New York 14513
(315) 332-7100
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Agent for Service)
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Copy to:
Jeffrey H. Bowen, Esq.
Harter, Secrest & Emery LLP
1600 Bausch & Lomb Place
Rochester, New York 14604
(716) 232-6500
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered to
dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
PROSPECTUS
1,199,000 SHARES
ULTRALIFE BATTERIES, INC.
COMMON STOCK
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This prospectus relates to the public offering of 1,199,000 shares of our
common stock. Of the total 1,199,000 shares, 1,090,000 of such shares are being
registered for the accounts of the selling stockholders identified in Table A in
the section titled "Selling Stockholders". The remaining 109,000 of those shares
are being registered for the accounts of future stockholders who will receive
their shares upon exercise of the warrants held by those parties identified in
Table B in the section titled "Selling Stockholders". This offering will not be
underwritten. The shares we are registering may be offered by the selling
stockholders (including those holding stock as a result of the future exercise
of the warrants) from time to time in transactions in the over-the-counter
market, in negotiated transactions, or in a combination of such methods of sale.
The shares may be offered at fixed prices that may be changed, at market prices
prevailing at the time of sale, at prices related to prevailing market prices or
at negotiated prices. The selling stockholders (including those holding stock as
a result of the future exercise of the warrants) may effect such transactions by
selling the shares to or through broker-dealers. We will not receive any of the
proceeds from the sale of these shares.
Our common stock is quoted on the Nasdaq National Market under the symbol
"ULBI." On December 27, 2001, the last reported sale price for the common stock
was $4.10.
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This offering of our common stock involves certain risks. For further
information, please see the section entitled "Risk Factors".
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is December ___, 2001
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Table of Contents
Page
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Prospectus Summary 3
Recent Developments 3
Outlook 4
Risk Factors 5
Forward-Looking Statements 11
Use of Proceeds 11
Selling Stockholders 11
Plan of Distribution 15
Legal Matters 15
Experts 15
Where You Can Find More Information 16
Incorporation of Information by Reference 16
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PROSPECTUS SUMMARY
This summary highlights selected information and does not contain all of
the information that is important to you. We urge you to read the entire
prospectus carefully and any information contained in or incorporated by
reference in this prospectus before you decide whether to buy our common stock.
You should pay special attention to the risks of investing in our common stock
discussed under Risk Factors below. Unless the context otherwise requires,
references in this prospectus to Ultralife, we, us, and our refer to Ultralife
Batteries, Inc. and our subsidiaries.
About Ultralife Batteries, Inc.
We develop, manufacture and market a wide range of standard and customized
primary and rechargeable lithium batteries for use in a wide array of
applications and markets, including military, automotive telematics, safety and
medical, and computers and communications. We believe that our proprietary
technologies allow us to offer batteries that are ultra-thin, light weight and
that generally achieve greater operating performance than other batteries
currently available. We sell our products directly to original equipment
manufacturers ("OEMs") in the United States and abroad and have contractual
arrangements with sales representatives who market our products on a commission
basis in particular areas. We also distribute our products to domestic and
international distributors and retailers that purchase our batteries for resale.
We have obtained ISO 9001 certification for our lithium batteries manufacturing
operations in Newark, New York and Abingdon, England. As of November 30, 2001,
we had approximately 450 employees worldwide.
We were formed in December 1990 as a Delaware corporation. In March 1991,
we acquired certain technology and assets from Eastman Kodak Company relating to
its 9-volt lithium manganese dioxide primary battery and in June 1994, as a
result of the formation of our United Kingdom subsidiary and acquisition of
certain battery-related assets, acquired a presence in Europe. In December 1998,
we announced a joint venture to produce our polymer rechargeable batteries in
Taiwan.
Our principal executive office is located at 2000 Technology Parkway,
Newark, New York 14513. Our telephone number is (315) 332-7100.
RECENT DEVELOPMENTS
In October 2001, we were informed by our primary lending institution that
our borrowing availability under our $20 million credit facility had been
effectively reduced to zero as a result of a recent appraisal of our fixed
assets. Accordingly, our liquidity depends on our ability to successfully
generate positive cash flow from operations and achieve adequate operational
savings. We are also exploring opportunities for new or additional equity or
debt financing. Notwithstanding the foregoing, there can be no assurance that we
will have sufficient cash flows to meet our working capital and capital
expenditure requirements.
On October 15, 2001, we announced the award of contracts from the
Department of the Army (CECOM) and the Department of Justice (UNICOR) for two of
its lithium-manganese dioxide (Li/MnO2) primary (non-rechargeable) cells and
batteries made in our Newark, New York facility. These contracts total in excess
of $3.0 million, with deliveries expected to begin immediately. The first
contract is an additional quantity release against an existing contract with
UNICOR previously announced in December 2000 for the BA-5368/U cell. The
BA-5368/U battery is used in the Tri-Service AN/PRC-90 pilot rescue radio, which
is extensively used by the U.S. Military, Coast Guard, Customs, and the National
Guard as well as other government agencies. Deliveries are scheduled through
March 2002. The second contract, with deliveries scheduled through June 2002,
represents releases exercised by CECOM (U.S. Army Communications Electronics
Command) for the BA-5372/U battery under a contract that was initially announced
in April 1999. The BA-5372/U battery is commonly used as memory back-up for the
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AN/PRC-119 MANPACK Single Channel Ground and Airborne Radio System (SINC-GARS)
as well as other electronic devices.
On November 21, 2001, we announced the appointment of William A. Schmitz
as Chief Operating Officer. Mr. Schmitz, formerly Vice President and General
Manager of our Primary Battery Business, now has responsibility for all Primary
and Rechargeable battery operations worldwide. Mr. Eric Dix, formerly Vice
President and General Manager of the Rechargeable Battery Business, will report
as a staff consultant to John D. Kavazanjian, President and CEO. The Company
also announced that Nancy C. Naigle, formerly Vice President of Worldwide Sales,
has been appointed Vice President of Sales and Marketing, with responsibility
for worldwide sales and marketing operations. Julius Cirin, formerly Vice
President of Corporate Marketing, has been appointed Vice President of Product
and Industry Marketing and will retain corporate marketing responsibility under
Ms. Naigle.
On December 5, 2001, we reported that in response to increased demand from
the U.S. Army, Ultralife and the State of New York recently announced an
expansion program that is expected to create over 100 new manufacturing jobs at
Ultralife by the end of 2002. Lt. Governor Mary Donohue of the State of New
York, state and local officials, and Ultralife executives gathered recently to
announce our expansion plans that include: the purchase of new manufacturing
equipment to be used to increase capacity and production, specifically to
produce batteries for the U.S. Army; a $300,000 commitment from Empire State
Development; and a $750,000 deferred loan that could convert into a grant from
the Governor's Office for Small Cities, through Wayne County.
On December 12, 2001, we announced the election of Charanjit Singh as
Chairman of the Board of Directors. He replaces Arthur Lieberman, who stepped
down after three years as Chairman of the Board. Mr. Lieberman remains as a
Director of Ultralife. Mr. Singh has been a Director of the Company since August
2000.
On December 19, 2001,we announced the election of two corporate officers.
Dr. Colin Newnham was appointed Vice President and Managing Director of European
Operations and Patrick R. Hanna, Jr. was appointed Vice President of Corporate
Business Strategy. Dr. Newnham joined the Company in 1994, and has held the
position of Managing Director of Ultralife Batteries (UK) Ltd. since July 1999.
He has over 30 years experience in the battery industry where he has held a
variety of senior positions and worked on a number of primary and rechargeable
battery technologies with companies such as Ever Ready and the Dowty Group. Mr.
Hanna joined the Company in February 2000 as Director of Corporate Business
Planning. Prior to that he spent 23 years with the Xerox Corporation and served
in many capacities in the areas of strategic and business planning development.
OUTLOOK
We expect to achieve a modest increase in consolidated revenues in the
fiscal quarter ending December 31, 2001 as compared to the fiscal quarter ended
September 30, 2001. During the second fiscal quarter ending December 31, 2001,
we are projecting growth to come largely from standard cylindrical and high rate
batteries for growth in military markets. Sales of 9-volt batteries are expected
to decline from the prior quarter due to current softness in orders from smoke
detector and medical customers. We expect to take advantage of our flexibility
to tailor and develop our existing and new products that will continue to
enhance revenue growth throughout the year. Additionally, we have seen a
noticeably higher level of interest from the military since the tragic events of
September 11, 2001. We believe that we are well-positioned with our current
portfolio of products, and our new products in development, to meet the current
demands communicated to us by the military, both in the US and UK. With respect
to the full fiscal year, we are projecting growth in virtually all major areas
of our business - 9 volt, standard cylindricals, high rate, and rechargeable. We
expect to take advantage of our ability to customize and
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develop new products that will continue to enhance growth throughout the year.
We believe that customer demand, most notably in our military markets, will
continue to grow. This growth is not only related to the success we have
experienced with our BA-5368 and BA-5372 battery products, but it is also
related to our anticipated success with the development of other new batteries
that are used by military organizations. While some of this increased demand is
related to the war on terrorism, most of our growth projection is a result of
our anticipated ability to obtain new business as we have been working closely
in design activities with the US Army and the UK Ministry of Defence. As we have
indicated previously, we continue to believe revenues will increase year over
year by at least 40%.
We previously set two key financial goals - to reach operating cash
breakeven by December 2001 and to attain positive net income by June 2002. Due
to the recent slowdown in the economy which has largely impacted sales of our
rechargeable batteries, we have extended our goal for cash breakeven to occur in
the March 2002 quarter, but remain steadfast on our goal to achieve
profitability by June 2002.
In October and November of 2001, we realigned our resources to address the
changing market conditions and to better meet customer demand in areas of our
business that are growing. The realignment did not significantly change any of
our existing operations nor were any product lines discontinued. A majority of
employees affected by this realignment were re-deployed from our rechargeable
segment and support functions into open direct labor positions in our primary
segment, due to the significantly growing demand for primary batteries from the
military. Less than 7% of our total employees were terminated. The realignment
did not result in any significant severance costs. We expect to realize cost
savings from these measures of approximately $1.5 million per quarter. These
quarterly savings are comprised of approximately $1.1 million of reduced labor
costs, approximately $0.2 million of reduced material usage, and approximately
$0.2 million of lower administrative expenses. Approximately one-third of these
savings, due to the timing of implementation of the actions taken, will be
realized in the fiscal quarter ending December 31, 2001, with the full amount to
be realized in the fiscal quarter ending March 31, 2002.
RISK FACTORS
An investment in shares of common stock offered hereby involves a high
degree of risk. The following risk factors should be considered carefully in
addition to the other information in this prospectus before purchasing the
common stock offered by this prospectus. The following factors could cause
actual results to differ materially from the matters described in the
forward-looking statements, with material and adverse effects on the Company's
business, operating results, financial condition and the value of Ultralife
stock.
Our company has a history of operating losses and, as a result, our future
profitability is uncertain.
We began operating our company in March 1991. During each year since 1991,
we have had net operating losses. These losses have resulted mainly from the
cost of researching, developing and manufacturing our products and general and
administrative costs associated with operating our company. Because of these
historical losses, we cannot assure that we will generate an operating profit or
achieve profitability in the future.
Our advanced rechargeable batteries have not achieved and may never achieve wide
acceptance in the market, and our competitors may introduce new rechargeable
batteries.
Although we have begun volume production of our rechargeable batteries,
our advanced rechargeable batteries have not yet achieved wide acceptance in the
market. We cannot assure that a market will ever accept our advanced
rechargeable batteries. The introduction of new products is subject to the
inherent risks of unforeseen delays and the time necessary to achieve market
success for any individual product is uncertain. If volume production and/or
market penetration of our advanced
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rechargeable batteries is delayed for any reason, our competitors may introduce
emerging technologies or improve existing technologies which could have a
material adverse effect on our business.
The sale of our advanced rechargeable batteries depends on our relationships
with our OEMs and their general business conditions.
We will continue to promote market demand for, and awareness of, our
advanced rechargeable batteries. We will accomplish this partly through the
development of relationships with OEMs that manufacture products which require
the performance characteristics of our advanced rechargeable batteries. The
success of any of these relationships depends upon the general business
condition of the OEM and our ability to produce our advanced rechargeable
batteries at the quality and cost and within the period required by such OEMs.
Our failure to develop a sufficient number of relationships with OEMs could
reduce the number of batteries we sell and therefore negatively affect our
profitability. The deterioration of these relationships may adversely affect our
business.
In fiscal 2001, one customer (Fyrnetics, Inc.) accounted for approximately
$3.1 million of sales, which amounted to approximately 13% of total revenues. We
believe that the loss of this customer's business would negatively affect our
revenues. While we believe that our current relationship with this customer is
good, there is no assurance that this relationship will continue in the future.
Our business depends on the success of OEMs selling products containing our
batteries.
A substantial portion of our business will depend upon the success of
products sold by OEMs that use our batteries. Therefore, our success is
substantially dependent upon the acceptance of the OEMs' products in the
marketplace. We are subject to many risks beyond our control that influence the
success or failure of a particular product manufactured by an OEM, including,
competition faced by the OEM in its particular industry; market acceptance of
the OEM's product; the engineering, sales, marketing and management capabilities
of the OEM; technical challenges unrelated to our technology or products faced
by the OEM in developing its products; and, the financial and other resources of
the OEM.
We may not be able to accommodate increased demand for our advanced rechargeable
batteries or our other products, and this may adversely affect our revenues.
Rapid growth of our advanced rechargeable battery business or other
segments of our business may significantly strain our management, operations and
technical resources. If we are successful in obtaining rapid market growth of
our advanced rechargeable batteries, we will be required to deliver large
volumes of quality products to our customers on a timely basis at a reasonable
cost to those customers. We cannot assure, however, that our business will
rapidly grow or that our efforts to expand our manufacturing and quality control
activities will be successful or that we will be able to satisfy commercial
scale production requirements on a timely and cost-effective basis. We will also
be required to continue to improve our operations, management and financial
systems and controls. Our failure to manage our growth effectively could have an
adverse effect on our ability to produce product and meet the demands of our
customers.
We face competition from a number of companies that have greater resources than
we do and that may develop more popular products than ours.
The primary and rechargeable battery industry is characterized by intense
competition with a large number of companies offering or seeking to develop
technology and products similar to ours. We are subject to competition from
manufacturers of traditional rechargeable batteries, such as nickel- cadmium
batteries, from manufacturers of rechargeable batteries of more recent
technologies, such as nickel-metal hydride and lithium batteries, as well as
from companies engaged in the development of batteries incorporating new
technologies. We also compete with large and small manufacturers of alkaline,
carbon-zinc, seawater, high rate and primary batteries as well as other
manufacturers of lithium batteries. Manufacturers of batteries include Eveready,
Sanyo Electric Co. Ltd., Sony Corp., Toshiba
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Corp., Matsushita Electric Industrial Co., Ltd., Duracell International, Inc.,
Saft-Soc des ACC, Sony Corp., Toshiba Corp., Matsushita Electric Industrial Co.,
Ltd., Sanyo Electric Co. Ltd. and Duracell International, Inc., Valence
Technology, Inc., Lithium Technology Corporation, and Yuasa-Exide, Inc. We
cannot assure that we will successfully compete with these manufacturers, many
of which have substantially greater financial, technical, manufacturing,
distribution, marketing, sales and other resources. Many companies, some with
substantially greater resources than ours, are developing a variety of battery
technologies which are expected to compete with our technology. If these
companies successfully market their batteries before the introduction of our
products, there could be a material adverse effect on our ability to sell our
products and gain a substantial market share. The market for our products is
characterized by changing technology and evolving industry standards, often
resulting in product obsolescence or short product lifecycles. Although we
believe that our batteries, particularly our 9-volt and advanced rechargeable
batteries, are based on technology that is continually refined to meet the needs
of the marketplace, there can be no assurance that competitors will not develop
technologies or products that would render our technology and products obsolete
or less marketable.
The loss of certain management, marketing, engineering or technical staff could
adversely affect our business.
Because of the specialized, technical nature of our business, we are
highly dependent on certain members of our management, marketing, engineering
and technical staff. If we lose the services or these members, this could have a
material adverse effect on our ability to produce marketable products. In
addition to developing manufacturing capacity so that we can produce high
volumes of our advanced rechargeable batteries, we must attract, recruit and
retain a sizeable workforce of technically competent employees. Our ability to
pursue effectively our business strategy will depend upon, among other factors,
the successful recruitment and retention of additional highly skilled and
experienced managerial, marketing, engineering and technical personnel. We
cannot assure that we will be able to retain or recruit this type of personnel.
Certain components of our batteries pose safety risks that may cause accidents
in our facilities and in the use of our products.
Components of our batteries contain certain elements that are known to
pose safety risks. Our primary battery products incorporate lithium metal, which
when it reacts with water may cause fires if not handled properly. For example,
a December 1996 fire at our Abingdon, England facility shut down our
manufacturing operation at this facility for 15 months. In August 1997, a fire
occurred at our Newark, New York facility, damaging batteries in inventory but
not disrupting ongoing production. Fires that occurred in July 1994 and
September 1995 at our Abingdon, England facility caused certain manufacturing
operations to be halted for 1 or 2 days of production. Although we incorporate
safety procedures in our research, development and manufacturing processes that
are designed to minimize safety risks, we cannot assure that more accidents will
not occur. Although we currently carry insurance policies which cover loss of
our plant and machinery, leasehold improvements, inventory and business
interruption, as well as personal injury losses related to accidents caused at
our facilities, any accident, whether at our manufacturing facilities or from
the use of our products, may result in significant production delays or claims
for damages resulting from injuries. We could incur significant costs in
connection with these types of losses.
We could incur significant costs for violations of or compliance with applicable
environmental laws and regulations.
National, state and local laws impose various environmental controls on
the manufacture, storage, use and disposal of lithium batteries and/or of
certain chemicals used in the manufacture of lithium batteries. Although we
believe that our operations are in substantial compliance with current
environmental regulations and that, except as noted in the risk factor entitled
"We may incur significant costs for environmental remediation at our Newark, New
York facility" below, there are no environmental conditions that will require
material expenditures for clean-up at our present or former
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facilities or at facilities to which it has sent waste for disposal, there can
be no assurance that changes in such laws and regulations will not impose costly
compliance requirements on us or otherwise subject us to future liabilities.
Moreover, state and local governments may enact additional restrictions relating
to the disposal of lithium batteries used by our customers which could require
us to respond to those restrictions or could negatively affect the demand for
those batteries. In addition, the U.S. Department of Transportation and certain
foreign regulatory agencies that consider lithium to be a hazardous material
regulate the transportation of batteries which contain lithium metal. We
currently ship our lithium batteries in accordance with regulations established
by the U.S. Department of Transportation. There can be no assurance that
additional or modified regulations relating to the manufacture, transportation,
storage, use and disposal of materials used to manufacture our batteries or
restricting disposal of batteries will not be imposed or how these regulations
will affect us or our customers.
We may incur significant costs for environmental remediation at our Newark, New
York facility.
Since 1998 when we entered into a lease/purchase agreement for our
facility in Newark, New York, we have been in regular communication with the New
York State Department of Environmental Conservation (NYSDEC) regarding low level
soil contamination at the facility. In January of 2001, we entered into a
Voluntary Clean-Up Agreement with the NYSDEC whereby we agreed to conduct
further environmental testing of soil and groundwater. Testing was completed in
the spring of 2001 and the results were communicated to the NYSDEC in the
summer. We have not yet received comments back from the NYSDEC. At the time of
the acquisition of the property in 1998, we estimated the cost of any required
remediation to be approximately $230,000. As a component of the lease/purchase
agreement, a former owner of the property agreed to share in the cost of further
testing and remediation with us. We cannot assure that we will not face claims
resulting in substantial liability which would have a material adverse effect on
profitability in the period in which such claims are resolved.
We rely on a limited number of suppliers for materials we use in our products.
Certain materials we use in our products are available only from a single
or a limited number of suppliers. Additionally, we may elect to develop
relationships with a single or limited number of suppliers for materials that
are otherwise generally available. Although we believe that alternative
suppliers are available to supply materials that could replace materials
currently used by us and that, if necessary, we would be able to redesign our
products to make use of such alternatives, any interruption in our supply from
any supplier that serves as our sole source could delay product shipments and
have a material adverse effect on our business, financial condition and results
of operations. Although we have experienced interruptions of product deliveries
by sole source suppliers, these interruptions have not had a material adverse
effect on our business, financial condition and results of operations. We cannot
guarantee that we will not experience a material interruption of product
deliveries from sole source suppliers.
We cannot guarantee the protection of our technology or prevent the development
of similar technology by our competition.
Our success depends more on the knowledge, ability, experience and
technological expertise of our employees than on the legal protection of our
patents and other proprietary rights. We claim proprietary rights in various
unpatented technologies, know-how, trade secrets and trademarks relating to our
products and manufacturing processes. We cannot guarantee the degree of
protection these various claims may or will afford, or that our competitors will
not independently develop or patent technologies that are substantially
equivalent or superior to our technology. We protect our proprietary rights in
our products and operations through contractual obligations, including
nondisclosure agreements with certain employees, customers, consultants and
strategic partners. There can be no assurance as to the degree of protection
these contractual measures may or will afford. We, however, have had patents
issued and patent applications pending in the U.S. and elsewhere. We cannot
assure (i) that patents will be issued from any pending applications, or that
the claims allowed under any patents will be sufficiently broad to
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protect our technology, (ii) that any patents issued to us will not be
challenged, invalidated or circumvented, or (iii) as to the degree or adequacy
of protection any patents or patent applications may or will afford. If we are
found to be infringing third party patents, there can be no assurance that we
will be able to obtain licenses with respect to such patents on acceptable
terms, if at all. Our failure to obtain necessary licenses could delay product
shipment or the introduction of new products, and costly attempts to design
around such patents could foreclose the development, manufacture or sale of our
products.
Our research and development efforts depend on technology transfer agreements.
Our research and development of advanced rechargeable battery technology
and products utilizes internally-developed technology, acquired technology and
certain patents and related technology licensed by us pursuant to non-exclusive,
technology transfer agreements. There can be no assurance that our competitors
will not develop, independently or through the use of similar technology
transfer agreements, rechargeable battery technology or products that are
substantially equivalent or superior to the technologies and products currently
under research and development by us.
An adverse outcome of our relationship with the China joint venture program may
adversely affect our financial condition.
In July 1992, we entered into several agreements related to the
establishment of a manufacturing facility in Changzhou, China, for the
production and distribution in and from China of 2/3A lithium primary batteries.
Changzhou Ultra Power Battery Co., Ltd., a company organized in China ("China
Battery"), purchased from us certain technology, equipment, training and
consulting services relating to the design and operation of a lithium battery
manufacturing plant. China Battery was required to pay approximately $6.0
million to us over the first two years of the agreement, of which approximately
$5.6 million has been paid. We have been attempting to collect the balance due
under this contract. China Battery has indicated that it will not make these
payments until certain contractual issues have been resolved. Due to China
Battery's questionable willingness to pay, we wrote off in fiscal 1997 the
entire balance owed to us as well as our investment aggregating $805,000. Since
China Battery has not purchased technology, equipment, training or consulting
services from us to produce batteries other than 2/3 A lithium batteries, we do
not believe that China Battery has the capacity to become our competitor. We do
not anticipate that the manufacturing or marketing of 2/3 A lithium batteries
will be a substantial portion of our product line in the future. However, in
December 1997, China Battery sent to us a letter demanding reimbursement of an
unspecified amount of losses they have incurred plus a refund for certain
equipment that we sold to China Battery. We have attempted to initiate
negotiations to resolve the dispute. However, an agreement has not yet reached.
Although China Battery has not taken any additional steps, there can be no
assurance that China Battery will not further pursue such a claim which, if
successful, would have a material adverse effect on our business, financial
condition and results of operations. We believe that such a claim is without
merit. As we have completely written down the balance we believe is owed by
China Battery, there is no risk for non-payment. The remaining risk is related
to any expenses we may be liable for with respect to the liquidation of the
assets of the venture.
We may face liability if our batteries fail to function properly and if these
liabilities are not covered by insurance.
Because certain of our primary batteries are used in a variety of security
and safety products and medical devices, we may be exposed to liability claims
if such a battery fails to function properly. We maintain what we believe to be
sufficient liability insurance coverage to protect against potential claims;
however, there can be no assurance that the liability insurance will continue to
be available, or that any such liability insurance would be sufficient to cover
any claim or claims.
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The market price of our common stock may be volatile, which could cause the
value of your stock to decline.
Future announcements concerning us or our competitors, including
technological innovations or commercial products, litigation or public concerns
as to the safety or commercial value of one or more of our products, may cause
the market price of our common stock to fluctuate substantially for reasons
which may be unrelated to operating results. These fluctuations, as well as
general economic, political and market conditions, may have a material adverse
effect on the market price of our common stock.
An adverse outcome of the lawsuit against us by certain stockholders could have
a material adverse effect on our financial condition.
In August 1998, we, along with our directors, and certain underwriters
were named as defendants in a complaint filed in federal court by certain
stockholders, alleging that the defendants, during 1998, violated various
provisions of the federal securities laws in connection with an offering of our
common stock. The trial court twice granted our motion to dismiss the
stockholders' complaint. The second time the court dismissed the complaint with
prejudice and directed the case to be closed. The stockholders filed an appeal
of the trial court's latest dismissal. Prior to the argument of stockholders'
appeal, we entered into a settlement agreement in which the stockholders agreed
withdraw their appeal with prejudice in exchange for a settlement payment of
$285,000. This payment was to be mainly paid by our insurance carrier. At that
time, we believed that the proposed settlement was in our best interests and the
best interests of our stockholders because it would terminate the stockholders'
action and eliminate the risks of uncertainty inherent in any litigation.
Since entering into the settlement agreement, the insurance carrier has
commenced liquidation proceedings. The insurance carrier informed us that in
light of the liquidation proceedings, it would no longer fund our settlement. In
addition, the value of the insurance policy is in serious doubt. Because of
these developments with the insurance carrier, we may cancel the settlement
agreement and allow the stockholders to proceed with their appeal.
We continue to believe that the stockholder suit lacks merit and that the
court will dismiss the suit on appeal. However, the liquidation of the insurance
carrier creates a new risk for our company because we would have to bear the
significant expenses of ongoing litigation, including any potential damages
award if stockholders were to win the case. These expenses will be without any
insurance coverage. Since stockholders are seeking damages in excess of $5
million, we believe that an unfavorable outcome would have a material adverse
impact on our financial condition.
We are presently evaluating our options, including whether to proceed with
the settlement either on the terms previously negotiated or on other terms that
the parties may mutually agree upon, with the expectation that any such
settlement would now be funded in whole or in large part by us. In addition, we
are exploring our rights against the insurance carrier.
Our ability to borrow under our credit facility is impaired, and we may have to
pursue other means of generating cash to support our business with no guarantee
of succeeding.
At September 30, 2001, we had a total of $4.9 million of cash and
investment securities. Based on our current financial outlook, we will require
additional external financing (debt or equity) to continue the implementation of
our growth strategies. In October 2001, we were informed by our primary lending
institution that our borrowing availability under our $20 million credit
facility had been effectively reduced to zero as a result of a recent appraisal
of our fixed assets. Accordingly, our liquidity depends on
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our ability to successfully generate positive cash flow from operations and
achieve adequate operational savings. We are also exploring opportunities for
new or additional equity or debt financing. We cannot guarantee that we will
have sufficient cash flows to meet our working capital and capital expenditure
requirements.
FORWARD-LOOKING STATEMENTS
This prospectus, including information contained in documents that are
incorporated by reference in this prospectus, contains forward-looking
statements, as that term is defined by federal securities laws, that relate to
the financial condition, results of operations, plans, objectives, future
performance and business of Ultralife. These statements are frequently preceded
by, followed by or include the words believes, expects, anticipates, estimates
or similar expressions. We have based these forward-looking statements on our
current expectations and projections about future events. The statements
contained in this prospectus relating to matters that are not historical facts
are forward-looking statements that involve risks and uncertainties, including
future demand for our products and services, the successful commercialization of
our advanced rechargeable batteries, general economic conditions, government and
environmental regulation, competition and customer strategies, technological
innovations in the primary and rechargeable battery industries, changes in our
business strategy or development plans, capital deployment, business
disruptions, including those caused by fire, raw materials, supplies and other
risks and uncertainties, certain of which are beyond our control. In addition to
these risks, in the section of this prospectus entitled Risk Factors, we have
summarized a number of the risks and uncertainties that could affect the actual
outcome of the forward-looking statements included in this prospectus. We advise
you not to place undue reliance on these forward-looking statements in light of
the material risks and uncertainties to which they are subject. Should one or
more of these risks or uncertainties materialize, or should underlying
assumptions prove incorrect, actual results may differ materially from those
described herein as anticipated, believed, estimated or expected. We undertake
no obligation to publicly update or revise any forward-looking statements,
whether as a result of new information, future events or otherwise.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares of
common stock by the selling stockholders. To the extent, however, that the
warrants are exercised through payment of the exercise price in cash, rather
than a cashless exercise, we will receive the proceeds of those exercises. We
have agreed to bear all expenses, other than selling commissions and fees and
expenses of counsel and other advisors to the selling stockholders, in
connection with the registration of the shares being offered.
SELLING STOCKHOLDERS
The following Table A sets forth the number of shares of common stock
owned by each of the selling stockholders who subscribed for shares of our
common stock in our recent private placement. None of these selling stockholders
has had a material relationship with us within the past three years other than
as a result of the ownership of our common stock. Because the selling
stockholders may offer all or some of the common stock which they hold pursuant
to the offering contemplated by this prospectus, and because there are currently
no agreements, arrangements or understandings with respect to the sale of any of
the shares, no estimate can be given as to the amount of shares that will be
held by the selling stockholders after completion of this offering. The shares
offered by this prospectus may be offered from time to time by the selling
stockholders named below or by pledgees, donees, transferees or other successors
in interest who receive the shares as a gift, partnership distribution or other
non-sale related transfer.
-11-
Table A
-------
Number of Shares Number of Number of
Beneficially Shares Shares
Owned Prior to Registered Beneficially Percent of
Completion of for Sale Owned After Outstanding
the Offering Hereby (1) Completion Shares after
of the Completion of
Name of Selling Stockholder Offering the Offering(2)
- ------------------------------------------------------------------------------------------------------------------------
*
First Trust as trustee for Sheila Baird 22,000 22,000 0
SERP
Weiss, Peck & Greer as trustee for 10,000 10,000 0 *
Sheila Baird IRA
Weiss, Peck & Greer as trustee for 28,000 16,000 12,000 *
Murray Berliner Sep IRA
Weiss, Peck & Greer as trustee for 5,500 4,000 1,500 *
Stephan Bermas IRA
William A. Birnbaum 22,500 16,000 6,500 *
William Birnbaum and Kathleen Birnbaum 22,500 16,000 6,500 *
Harris J. Bixler 21,000 16,000 5,000 *
Weiss, Peck & Greer as trustee for John 8,000 4,000 4,000 *
V. Brennan IRA
Weiss, Peck & Greer as trustee for 8,000 8,000 0 *
Julie Connelly IRA
Katharine Crossgrove 13,000 8,000 5,000 *
Daeg Partners, LLP 574,500 92,000 482,500 3.92%
Donna Darnell 7,500 4,000 3,500 *
Tirone E. David, M.D. 25,000 12,000 13,000 *
Weiss, Peck & Greer as trustee for John 17,000 8,000 9,000 *
W. Dewey, IRA
Weiss, Peck & Greer as trustee for John 18,000 8,000 10,000 *
Dorman IRA
Weiss, Peck & Greer as trustee for Joan 14,500 8,000 6,500 *
Ellenbogen IRA
Weiss, Peck & Greer as trustee for 9,500 4,000 5,500 *
Marcia Goldstein IRA
Martha Grant 14,000 8,000 6,000 *
Claire S. Gulamerian, Living Trust dtd 16,600 8,000 8,600 *
6/7/96
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Table A
-------
Number of Shares Number of Number of
Beneficially Shares Shares
Owned Prior to Registered Beneficially Percent of
Completion of for Sale Owned After Outstanding
the Offering Hereby (1) Completion Shares after
of the Completion of
Name of Selling Stockholder Offering the Offering(2)
- ------------------------------------------------------------------------------------------------------------------------
*
Ingolstadt Ltd. BVI 26,000 16,000 10,500 *
Oscar Lascano 9,000 4,000 5,000 *
Weiss, Peck & Greer as trustee for 9,600 4,000 5,600 *
Stanley Mailman IRA
Barbara V. May 5,200 4,000 1,200 *
Weiss, Peck & Greer as trustee for 18,800 16,000 2,800 *
Bernadette Murphy IRA
Joan Nazarro 8,000 4,000 4,000 *
1004050 Ontario Inc. 9,000 4,000 5,000 *
Arthur Panoff 9,300 8,000 1,300 *
Patricia C. Remmer, Revocable Trust dtd 31,000 16,000 15,000 *
7/22/92
Patricia C. Remmer, 1995 Charitable 10,000 4,000 6,000 *
Lead Trust
The Remmer Family Foundation 8,000 4,000 4,000 *
Weiss, Peck & Greer as trustee for 19,000 8,000 11,000 *
Dorothy Rivkin IRA
Maurice Schlossberg and Amy Schlossberg 5,000 8,000 5,000 *
Weiss, Peck & Greer as trustee for Mary 7,000 4,000 3,000 *
Simons IRA
Weiss, Peck & Greer as trustee for 22,000 16,000 6,000 *
Richard R. Stebbins
Sarah Tough 9,000 4,000 5,000 *
Weiss, Peck & Greer as trustee for Leon 11,000 4,000 7,000 *
Zeff IRA
Charles W. Phillips 10,000 10,000 0 *
Richard F. Morton 15,000 5,000 10,000 *
Neal P. Brooks 38,000 5,000 33,000 *
State of Wisconsin Investment Board 2,218,600 670,000 1,548,600 12.57%
Total 3,355,600 1,090,000 2,273,600 18.46%
- ----------
* Represents beneficial ownership of less than 1%.
-13-
(1) This Registration Statement shall also cover any additional shares of our
common stock which become issuable in connection with the common stock
registered for sale hereby by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration which results in an increase in the number of our
outstanding shares of common stock.
(2) Based on 12,578,186 shares of the Company's common stock, par value $.10
per share, outstanding as of November 30, 2001, less 27,250 treasury
shares and 231,980 shares out of 700,000 shares owned by Ultralife Taiwan,
Inc., a Taiwanese venture of which the Company owns approximately 33%.
The following Table B sets forth the number of shares of common stock to
be owned upon exercise of the warrants issued to H.C. Wainwright & Co., Inc. and
several of its affiliates as partial compensation for its services as placement
agent in connection with our private placement. The warrantholders have
confirmed to us that none had agreements or understandings, directly or
indirectly, with any person to distribute the common stock issuable upon
exercise of the warrants. Because the warrantholders or subsequent selling
stockholders may offer all or some of the common stock which they hold pursuant
to the offering contemplated by this prospectus, and because there are currently
no agreements, arrangements or understandings with respect to the sale of any of
the shares, no estimate can be given as to the amount of shares that will be
held by the warrantholders or subsequent selling stockholders after completion
of this offering. The shares offered by this prospectus may be offered from time
to time by the warrant holders or subsequent selling stockholders or by
pledgees, donees, transferees or other successors in interest who receive the
shares as a gift, partnership distribution or other non-sale related transfer.
Table B
-------
Number of Number of Number of
Shares Shares Shares
Beneficially Registered Beneficially
Owned Prior for Sale Owned after
to Completion Hereby (1)(2) Completion Percent of
of the of the Outstanding
Name of Selling Stockholder Offering Offering Shares
- ------------------------------------------------- ------------------------------------------- -------------
Eric Singer 38,900 38,900 0 *
Matthew Balk 5,000 5,000 0 *
Jason Adelman 5,000 5,000 0 *
Scott Weisman 5,600 5,600 0 *
H.C. Wainwright & Co., Inc. 54,500 54,500 0 *
Total 109,000 109,000 0 *
* Represents beneficial ownership of less than 1%.
(1) This Registration Statement shall also cover any additional shares of our
common stock which become issuable in connection with the common stock
registered for sale hereby by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt of
consideration which results in an increase in the number of our outstanding
shares of common stock.
(2) This figure includes the shares that will be issued upon exercise of the
warrants by such selling stockholder.
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PLAN OF DISTRIBUTION
We will receive no proceeds from this offering. The shares offered by this
prospectus may be sold by the selling stockholders (including those holding
stock as a result of the future exercise of the warrants) from time to time in
transactions in the over-the-counter market, in negotiated transactions, or in a
combination of such methods of sale, at fixed prices which may be changed, at
market prices prevailing at the time of sale, at prices related to prevailing
market prices or at negotiated prices. The selling stockholders (including those
holding stock as a result of the future exercise of the warrants) may effect
such transactions by selling the shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the selling stockholders (including those holding stock as a
result of the future exercise of the warrants) and/or the purchasers of the
shares for whom such broker-dealers may act as agents or to whom they sell as
principals, or both. This compensation might be in excess of customary
commissions. The shares we are offering may be sold either pursuant to this
Registration Statement or pursuant to Rule 144 issued by the SEC under the
Securities Act of 1933. Some of our selling stockholders are affiliated with
broker-dealers. To the best of our knowledge, any selling stockholder affiliated
with a broker-dealer purchased the shares of our common stock being sold by this
prospectus in the ordinary course of business, and no benefits accrued to them
as a result of their relationship with the broker-dealer.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The selling stockholders (including those holding stock as a result of the
future exercise of the warrants) and any broker-dealers or agents that
participate with the selling stockholders (including those holding stock as a
result of the future exercise of the warrants) in the distribution of the shares
may be deemed to be "underwriters" within the meaning of the Securities Act of
1933, and any commissions received by them and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under federal law.
Under applicable federal rules and regulations, any person engaged in the
distribution of our common stock may not simultaneously engage in market making
activities with respect to our common stock for a period of two business days
prior to the commencement of such distribution. In addition, and without
limiting the foregoing, each selling stockholder will be subject to applicable
provisions of the Securities Exchange Act of 1934 and the rules and regulations
of the SEC promulgated thereunder. These rules include, without limitation,
Rules 10b-6 and 10b-7, which may limit the timing of purchases and sales of
shares of our common stock by the selling stockholders (including those holding
stock as a result of the future exercise of the warrants).
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for us
by Harter, Secrest & Emery LLP, Rochester, New York.
EXPERTS
The financial statements incorporated by reference in this prospectus and
elsewhere in the Registration Statement have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports thereto, and
are included herein in reliance upon the authority of said firm as experts in
accounting and auditing in giving said reports.
-15-
WHERE YOU CAN FIND MORE INFORMATION
No person has been authorized to give any information or to make any
representations other than those contained in this prospectus in connection with
this offering of our common stock. If any such information or representations
are given or made, such information or representations must not be relied upon
as having been authorized by us, by any selling stockholder or by any other
person. Neither the delivery of this prospectus nor any sale made hereunder
shall, under any circumstances, create any implication that information herein
is correct as of any time subsequent to the date hereof. This prospectus does
not constitute an offer to sell or a solicitation of an offer to buy any
security other than the common stock covered by this prospectus, nor does it
constitute an offer to or solicitation of any person in any jurisdiction in
which such offer or solicitation may not lawfully be made.
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended. As a result, we file reports, proxy
statements, information statements and other information with the Securities and
Exchange Commission (the "SEC"). You may inspect and copy any reports, proxy
statements and other information that we file at the Public Reference Room
maintained by the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. You can
obtain copies of such materials by mail from the Public Reference Room of the
SEC at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates and at the Commission's regional offices in New York City, 75 Park Place,
Room 1400, New York, New York 10007 and Chicago, Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. You may obtain information
on the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330. The SEC maintains a World Wide Web site that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the SEC. The address of the SEC's web site is
http://www.sec.gov. Our common stock is quoted on the Nasdaq National Market,
and such material may also be inspected at the offices of Nasdaq Operations,
1735 K Street N.W. Washington, D.C. 20006.
We have filed with the SEC a Registration Statement on Form S-3 (together
with all amendments and exhibits, referred to in this prospectus as the
"Registration Statement") under the Securities Act of 1933 with respect to the
common stock we are offering. This prospectus does not contain, nor is it
required to contain, all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the SEC. For further information regarding us and our common
stock, you should refer to the Registration Statement and its exhibits and
schedules. The Registration Statement, including its exhibits and schedules, may
be inspected as described above.
INCORPORATION OF INFORMATION BY REFERENCE
The following documents filed with the SEC pursuant to the Securities
Exchange Act of 1934 are incorporated herein by reference:
1. Our Annual Report on Form 10-K for the fiscal year ended June 30, 2001,
filed September 26, 2001, as amended by our Annual Report on Form 10-K/A filed
December 12, 2001;
2. Our Quarterly Report on Form 10-Q for the period ended September 30,
2001, filed November 7, 2001, as amended by our Quarterly Report on Form 10-Q/A
filed December 28, 2001;
3. Our Forms 8-K filed on July 12, 2001 and July 24, 2001;
4. The description of our common stock, par value $.10 per share,
contained in our Registration Statement on Form S-1 filed on December 23, 1992
(Registration No. 33-54470), including any amendment or report filed for the
purpose of updating such description; and
5. All reports and other documents filed by us pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 subsequent to the date
of this prospectus and prior to the termination of this offering.
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Any statement contained in a document incorporated by reference herein
shall be deemed to be incorporated by reference in this prospectus and to be
part hereof from the date of filing of such documents. Any statement modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus. We will provide to you upon written or
oral request and without charge a copy of any or all of such documents which are
incorporated herein by reference (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into the documents that
this prospectus incorporates). Written or oral requests for copies (at no cost
to requestor) should be directed to our Secretary, at our principal executive
offices: Ultralife Batteries, Inc., 2000 Technology Parkway, Newark, New York
14513. Our telephone number is (315) 332-7100.
-17-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by Ultralife Batteries, Inc.
(the "Company") in connection with the sale of common stock being registered.
All amounts are estimates except the SEC registration fee.
SEC Registration Fee $ 1,800
Legal fees and expenses 20,000
Accounting fees and expenses 9,000
Miscellaneous fees and expenses 5,500
-------
Total $36,300
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
With respect to indemnification of directors and officers, Section 145 of
the Delaware General Corporation Law ("DGCL") provides that a corporation shall
have the power to indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding, if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the person's conduct was
unlawful. Under this provision of the DGCL, the termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which the person reasonably
believed to be in or not opposed to the best interests of the corporation, and
with respect to any criminal action or proceeding, had reasonable cause to
believe that the person's conduct was unlawful.
Furthermore, the DGCL provides that a corporation shall have the power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
The Company's Restated Certificate of Incorporation (the "Certificate of
Incorporation") and By-laws, as amended (the "By-laws") provide for limitation
of the liability of directors to the Company and its stockholders and for
indemnification of directors, officers, employees and agents of the Company,
respectively, to the maximum extent permitted by the DGCL.
II-1
The Certificate of Incorporation provides that directors are not liable to
the Company or its stockholders for monetary damages for breaches of fiduciary
duty as a director, except for liability (a) for any breach of the director's
duty of loyalty to the Company or its stockholders, (b) for acts or omissions
not in good faith or that involve intentional misconduct or a knowing violation
of law, (c) for dividend payments or stock repurchases in violation of Delaware
law, or (d) for any transaction from which the director derived any improper
personal benefit.
The By-laws include provisions by which the Company will indemnify its
officers and directors and other persons against expenses, judgments, fines and
amounts paid in settlement with respect to threatened, pending or completed
suits or proceedings against such persons by reason of serving or having served
the Company as officers, directors or in other capacities, except in relation to
matters with respect to which such persons shall be determined not to have acted
in good faith, lawfully or in the best interests of the Company. With respect to
matters to which the Company's officers, directors, employees, agents or other
representatives are determined to be liable for misconduct or negligence in the
performance of their duties, the By-laws provide for indemnification only to the
extent that the Company determines that such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company.
ITEM 16. EXHIBITS
2.1 Share Purchase Agreement*
2.2 Warrant Agreement*
5 Opinion of Harter, Secrest & Emery LLP*
23.1 Consent of Independent Accountants**
23.2 Consent of Harter, Secrest & Emery LLP (included in the
Opinion of Counsel filed as Exhibit 5 hereto)*
24 Power of Attorney*
*These Exhibits were previously filed with our Form S-3, filed on August 17,
2001, File No. 333-67808.
**Filed with this Amendment No. 3 to Form S-3.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes (subject to the proviso
contained in Item 512(a) of Regulation S-K):
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflect in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities
II-2
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes to supplement the prospectus,
after expiration of the subscription period, to set forth the results of the
subscription offer, the transactions by the underwriters during the subscription
period, the amount of unsubscribed securities to be purchased by the
underwriters, and the terms of any subsequent reoffering thereof. If any public
offering by the underwriters is to be made on terms different from those set
forth on the cover page of the prospectus, a post-effective amendment will be
filed to set forth the terms of such offering.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act of 1934; and,
where interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specially incorporated by referred in the prospectus to
provide such interim financial information.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that is has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Newark, State of New York, on this 28th day of
December, 2001.
ULTRALIFE BATTERIES, INC.
Dated: December 28, 2001
By: /s/ JOHN D. KAVAZANJIAN
--------------------------------------
John D. Kavazanjian,
President and Chief Executive
Officer, and with Powers of
Attorney, as granted in the
original S-3 filing, filed on
August 17, 2001
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
Chief Executive Officer, December 28, 2001
_____________________* President and Director
John D. Kavazanjian (Principal Executive Officer)
_____________________* Vice President-Finance and December 28, 2001
Robert W. Fishback Chief Financial Officer
(Principal Financial Officer
and Principal Accounting
Officer)
_____________________* Director December 28, 2001
Ranjit Singh
_____________________* Director December 28, 2001
Arthur M. Lieberman
_____________________* Director December 28, 2001
Joseph C. Abeles
_____________________* Director December 28, 2001
Joseph N. Barrella
_____________________* Director December 28, 2001
Carl H. Rosner
_____________________* Director December 28, 2001
Patricia C. Barron
_____________________ Director December __, 2001
Daniel W. Christman
*By: /s/ JOHN D. KAVAZANJIAN
--------------------------------------------
John D. Kavazanjian, as Attorney-in-Fact
II-4
INDEX TO EXHIBITS
2.1 Share Purchase Agreement*
2.2 Warrant*
5 Opinion of Harter, Secrest & Emery LLP*
23.1 Consent of Independent Accountants**
23.2 Consent of Harter, Secrest & Emery LLP (included in the
Opinion of Counsel filed as Exhibit 5)*
24 Power of Attorney*
*Previously filed with the Form S-3 filed on August 17, 2001, File No. 333-67808
**Filed with this Amendment No. 3 to Form S-3.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated August 16, 2001
(except with respect to the matter discussed in Note 14, as to which the date is
December 12, 2001) included in Ultralife Batteries, Inc.'s Form 10-K/A for the
year ended June 30, 2001, and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Rochester, New York
December 28, 2001
