AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 21, 2002
REGISTRATION NO. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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 (I.R.S. Employer
of Incorporation or Organization) Identification Number)
2000 Technology Parkway
NEWARK, NEW YORK 14513
(315) 332-7100
(Address, including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
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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
(585) 232-6500
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title Of Each Class Of Amount Offering Price Aggregate Offering Registration
Securities To Be Registered To Be Registered Per Security Price Fee
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Common Stock, $.10 par value....... 1,001,333(1) $3.41(2) $3,414,545.53 $314.14
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(1) Includes 200,000 shares of the Registrant's Common Stock issuable upon the
conversion of a Debenture issued by the Registrant.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of Regulation C under the Securities Act of 1933,
based upon the average of the high and low prices of the Registrant's
Common Stock, as quoted on the Nasdaq National Market on June 19, 2002.
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
Dated June __, 2002
1,001,333 Shares of Common Stock, Par Value $.10
Ultralife Batteries, Inc.
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This Prospectus relates to the public offering of 1,001,333 shares of our
Common Stock, par value $.10 per share. Of the total 1,001,333 shares of Common
Stock being registered, 801,333 shares are being registered for the accounts of
the selling stockholders identified in Table A of the section of this Prospectus
entitled "Selling Stockholders". The remaining 200,000 of such shares are being
registered for the account of Joseph C. Abeles, who is one of our directors and
the owner of a $600,000 Senior Convertible Subordinated Debenture issued by us.
This offering will not be underwritten. All 1,001,333 shares may be
offered by certain of our stockholders or by pledgees, donees, transferees or
other successors-in-interest who receive the shares as a gift, partnership
distribution or other non-sale related transfer. Of the 1,001,333 shares of our
Common Stock being registered, 801,333 shares were originally issued in private
transactions pursuant to the terms of Stock Purchase Agreements by and between
us and each of the stockholders identified in the section of this Prospectus
entitled "Selling Stockholders". The Debenture, which will automatically convert
into the remaining 200,000 shares of Common Stock upon approval of the
conversion at our Annual Meeting of Shareholders scheduled to take place in
December 2002, was issued in a private transaction pursuant to the terms of that
certain Debenture Purchase Agreement by and between us and Mr. Abeles.
The issuance of the Debenture and shares of our Common Stock was exempt
from registration pursuant to Section 4(2) of the Securities Act of 1933, as
amended, and Regulation D, as promulgated under the Securities Act of 1933. We
are registering the shares of our Common Stock pursuant to the terms of certain
Registration Rights Agreements by and among us and the selling stockholders
identified in the section of this Prospectus entitled "Selling Stockholders".
The shares of Common Stock that we are registering may be offered by the
selling stockholders (including those holding stock as a result of the future
conversion of the Debenture) 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 conversion of the Debenture) 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 conversion of the Debenture) and/or the purchasers of the
shares for whom such broker-dealers act as agents or to whom they sell as
principals, or both. This compensation might be in excess of customary
commissions. For further information, see the section entitled "Plan of
Distribution" below.
We will not receive any of the proceeds from the sale of the shares of our
Common Stock. We have agreed to bear certain expenses in connection with the
registration of the shares of our Common Stock being offered and sold by the
selling stockholders (including those holding stock as a result of the future
conversion of the Debenture). Our Common Stock is quoted on the Nasdaq National
Market under the symbol "ULBI". On June 19, 2002, the last reported sale price
for the Common Stock was $3.35.
Investing in shares of our Common Stock involves certain risks. For more
information, please see the section of this Prospectus entitled "Risk Factors",
which begins on Page 3 of this Prospectus.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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Table of Contents
PROSPECTUS SUMMARY............................................................2
RISK FACTORS..................................................................3
Forward-Looking Statements....................................................9
USE OF PROCEEDS..............................................................10
SELLING STOCKHOLDERS.........................................................10
PLAN OF DISTRIBUTION.........................................................11
LEGAL MATTERS................................................................12
EXPERTS......................................................................12
WHERE YOU CAN FIND MORE INFORMATION.........................................12
INCORPORATION OF INFORMATION BY REFERENCE....................................13
COMMISSION'S POSITION ON INDEMNIFICATION.....................................14
You should rely only on the information contained or incorporated by
reference in this Prospectus. We have not authorized any other person to provide
you with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. If you are in a
jurisdiction where offers to sell, or solicitations of offers to purchase, the
securities offered by this Prospectus are unlawful, or if you are a person to
whom it is unlawful to direct these types of activities, then the offer
presented in this Prospectus does not extend to you. You should assume that the
information appearing in this Prospectus is accurate only as of the date on the
front cover of this Prospectus. Our business, financial condition, results of
operations and prospects may have changed since that date.
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 below under the heading "Risk Factors". Unless the context otherwise
requires, references in this Prospectus to Ultralife, we, us, and our refer to
Ultralife Batteries, Inc. and our subsidiaries.
Our Business
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
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directly to original equipment manufacturers in the United States and abroad and
have contractual arrangements with sales representatives who market our products
on a commission basis in particular areas. We also distribute our products to
domestic and international distributors and retailers that purchase our
batteries for resale. We have obtained ISO 9001 certification for our lithium
batteries manufacturing operations in Newark, New York and Abingdon, England. As
of May 31, 2002, we had approximately 350 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.
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 our business,
operating results, financial condition and the value of our stock.
History of Operating Losses; Uncertainty of Future Profitability
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. We may not generate
an operating profit or achieve profitability in the future.
Uncertainty of Our Ability to Generate Positive Cash Flows and Continue as a
Going Concern
We have experienced negative cash flow since our inception. Our current
cash and credit situation is strained. While we are focusing intently on
increasing revenues and reducing costs and expenses, these efforts may not
generate cash. Our failure to successfully attain positive cash flow could have
a material adverse effect on the our business, financial condition, and the
results of our operations. Such material adverse effects could include a
violation of debt covenants, an inability to pay vendors in a timely fashion, or
could impact upon our ability to continue as a going concern. If we are
unsuccessful in generating positive cash flows, we may need to access capital
markets for additional debt or equity funding, and we may not be successful in
doing so.
Uncertainty of Our Ability to Borrow Money to Fund Our Operations
In October 2001, we were informed by our primary lending institution that
our borrowing availability under our credit facility had been effectively
reduced to zero as a result of an appraisal of our fixed assets. In February
2002, our primary lending institution amended the credit facility to reduce our
available line of credit from $20,000,000 to $15,000,000, mainly due to the
reduction in the valuation of our fixed assets, which limited our borrowing
capacity under the term loan component, as well as minimized the cost of unused
line fees. Additionally, the term loan and revolving line components of our
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line of credit were revised and the minimum net worth covenant was reduced.
While these changes to the credit facility improve our overall financial
flexibility, our future liquidity depends on our ability to successfully
generate positive cash flow from operations and achieve adequate operational
savings. We may not have sufficient credit available to us to meet our working
capital and capital expenditure requirements.
Uncertainty of Current and Future Demand for Our Primary Battery Products
Although we are currently producing various primary battery products, this
demand may not continue. We are in the process of developing new battery
configurations for use in the manufacture of original equipment and for military
applications. Such products may not be accepted in the market. Additionally,
while we have recently been awarded a contract to supply several models of our
non-rechargeable batteries to the U.S. Army's Communications and Electronics
Command, our products may not pass military qualification standards in the
future. Our inability to manufacture and sell new products could have a material
adverse effect on our business, financial condition and the results of our
operations.
Uncertainty of Market Acceptance of Advanced 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. The market may not 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 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, financial condition and the
results of our operations.
Need to Create New Jobs to Fulfill Conditions of Government Grants
In November 2001, we received approval for two grants from New York State
and a federally sponsored small cities program in the aggregate amount of
$1,050,000. The grants will assist us in funding current capital expansion plans
that we expect will lead to job creation. However, in connection with the
receipt of the grants, we are obligated to create a certain level of new jobs
over the next five years. Our capital expansion may not lead to the creation of
a sufficient number of jobs to satisfy the employment quotas required by the
government grants. If we do not meet these employment quotas, we could be
required to pay back a portion of the amount of the grants.
Dependence on OEM Relationships and Products for Sale of Advanced Rechargeable
Batteries
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 original equipment manufacturers, or OEMs,
that manufacture products requiring the performance characteristics of our
advanced rechargeable batteries. The success of any such relationship 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 have a material adverse effect on our business,
financial condition and results of operations.
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
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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.
Risks Relating to Growth and Expansion
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. Our business may not rapidly grow and our efforts to
expand our manufacturing and quality control activities may be unsuccessful.
Likewise, we may not 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
business, financial condition and the results of our operations.
Competition; Technological Obsolescence
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, lithium-ion liquid electrolyte and
lithium-ion solid-polymer batteries, as well as from companies engaged in the
development of batteries incorporating new technologies.
Manufacturers of nickel-cadmium and nickel-metal hydride batteries include
Eveready, Sanyo Electric Co. Ltd., Sony Corp., Toshiba Corp., Matsushita
Electric Industrial Co., Ltd. and Duracell International, Inc. Manufacturers of
lithium-ion liquid electrolyte batteries currently include 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. have developed prototype
solid-polymer batteries and are constructing commercial-scale manufacturing
facilities. 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.
We may not successfully compete with these manufacturers, many of which
have substantially greater financial, technical, manufacturing, distribution,
marketing, sales and other resources. Many companies with substantially greater
resources than ours are developing a variety of battery technologies, including
liquid electrolyte lithium and solid electrolyte lithium batteries, which are
expected to compete with our technology. Other companies undertaking research
and development activities of solid-polymer batteries have already developed
prototypes and are constructing commercial scale production facilities. If these
companies successfully market their batteries before the introduction of our
products, there could be a material adverse effect on our business, financial
condition and results of operations. 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 comprised of state-of-the-art technology,
there can be no assurance that competitors will not develop technologies or
products that would render our technology and products obsolete or less
marketable.
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Dependence on Key Personnel
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 of these members, this could have a
material adverse effect on our business, financial condition and the results of
our operations. 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 may not be able to retain or recruit this type of personnel.
Safety Risks; Demands of Environmental and Other Regulatory Compliance
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. In addition
to a December 1996 fire at our Abingdon, England facility, a fire occurred
August 1997 at our Newark, New York facility and fires occurred in July 1994 and
September 1995 at our Abingdon, England facility, each of which temporarily
interrupted certain manufacturing operations in a specific area of these
facilities. Although we incorporate safety procedures in our research,
development and manufacturing processes that are designed to minimize safety
risks, more accidents may occur. Although we currently carry insurance policies
which cover loss of our plant and machinery, leasehold improvements, inventory
and business interruption, 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. These types of losses could have a
material adverse effect on our business, financial condition and the results of
our operations.
National, state and local laws impose various environmental controls on
the manufacture, storage, use and disposal of lithium batteries and/or of
certain chemicals used in the manufacture of lithium batteries. Although we
believe that our operations are in substantial compliance with current
environmental regulations and that, except as noted below, there are no
environmental conditions that will require material expenditures for clean-up at
our present or former 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 we or otherwise subject it 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 have a material adverse effect on our business, financial condition
and results of operations. In addition, the U.S. Department of Transportation
and certain foreign regulatory agencies that consider lithium to be a hazardous
material regulate the transportation of batteries 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.
In connection with our purchase/lease of our Newark, New York facility in
1998, a consulting firm performed a Phase I and II Environmental Site Assessment
which revealed the existence of contaminated soil and ground water around one of
our buildings. We retained an engineering firm which estimated that the cost of
remediation should be in the range of $230,000. This cost, however, is merely an
estimate and the cost may in fact be much higher. In February 1998, we entered
into an agreement with a third party which provides that we and this third party
will retain an environmental consulting firm to conduct a supplemental Phase II
investigation to verify the existence of the contaminants and further
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delineate the nature of the environmental concern. The third party agreed to
reimburse us for fifty percent of the cost of correcting the environmental
concern on the Newark property. Test sampling occurred in the fourth quarter of
fiscal 2001 and the engineering report was submitted to the New York State
Department of Environmental Conservation (NYSDEC) for review. NYSDEC reviewed
the report and, in January 2002, recommended additional testing. We responded by
submitting a proposed work plan to NYSDEC, which was approved by NYSDEC in April
2002. We are now soliciting proposals from engineering firms to complete
remedial work contained in the work plan, and it is unknown at this time whether
the final cost to remediate will be in the range of the original estimate, given
the passage of time. The ultimate resolution of this matter may have a
significant adverse impact on the results of our operations in the period in
which it is resolved. Furthermore, we may face claims resulting in substantial
liability which would have a material adverse effect on our business, financial
condition and the results of our operations in the period in which such claims
are resolved.
Limited Sources of Supply
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.
Dependence on Proprietary Technologies
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. However, we
cannot guarantee (1) that patents will be issued from any pending applications,
or that the claims allowed under any patents will be sufficiently broad to
protect our technology, (2) that any patents issued to us will not be
challenged, invalidated or circumvented, or (3) as to the degree or adequacy of
protection any patents or patent applications may or will afford. 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.
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Dependence 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.
Risks Related to China Joint Venture Program
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.
Ability to Insure Against Losses
Because certain of our primary batteries are used in a variety of security
and safety products and medical devices, we may be exposed to liability claims
if such a battery fails to function properly. We maintain what we believe to be
sufficient liability insurance coverage to protect against potential claims;
however, 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.
Possibility of Warranty Claims
We provide warranties for our various products. The longest warranty
duration is ten years, which covers our 9-volt battery used in certain smoke
detector applications. We maintain a warranty reserve to cover potential
warranty claims. We cannot guarantee, however, that the reserves will be
sufficient to satisfy warranty claims made. In the event that we experience a
significant rise in warranty claims made, such action could have a material
adverse effect on our business, financial condition and the results of our
operations.
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Possible Volatility of Stock Price
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.
Risk Related to Arthur Andersen's Role in Auditing Our Financial Statements
Arthur Andersen LLP audited our annual financial statements and issued a
report, dated August 16, 2001, concerning those financial statements. Our
financial statements and Arthur Andersen's report are incorporated by reference
into this Prospectus. The Rochester, New York office of Arthur Andersen, which
was primarily responsible for auditing our financial statements, is undergoing a
mandatory employee force reduction and is expected to permanently close in the
imminent future. Accordingly, we are unable to obtain the consent of Arthur
Andersen to incorporate its report into this Prospectus. Our inability to obtain
Arthur Andersen's consent to incorporate such report into this Prospectus may
prevent you from being able to recover damages from Arthur Andersen under the
Securities Act of 1933. In particular, because of this lack of consent, you will
not be able to sue Arthur Andersen under Section 11(a)(4) of the Securities Act
for any untrue statements of material fact contained in the report or financial
statements audited by Arthur Andersen or any failure to state a material fact
required to be stated in the report or those financial statements and therefore
your right of recovery under that section may be limited.
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.
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USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares of
Common Stock by the selling stockholders. We have agreed to bear all expenses,
other than selling commissions and fees and expenses of counsel and other
advisors to the selling stockholders, in connection with the registration of the
shares being offered.
SELLING STOCKHOLDERS
The following Table A sets forth the number of shares of Common Stock
owned by each of the selling stockholders who purchased 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.
Table A
Number of
Shares
Number of Shares Number of Beneficially Percent of
Beneficially Shares Owned After Outstanding
Owned Prior to Registered Completion Shares after
Completion of for Sale of the Completion of
Name of Selling Stockholder the Offering Hereby(1) Offering the Offering(2)
-------------------------------------------------------------------------------------------------------------------
Grace Brothers, Ltd. 1,085,633 433,333 652,300 *
W. Anthony Hitschler 330,000 330,000 0 *
Stuart Shikiar 120,600 30,000 90,600 *
Holly E. Zug Trust Dated 8/5/97 11,500 8,000 3,000 *
Total 1,547,773 801,333 745,900 5.57%
----------
* 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) Based on 13,379,519 shares of our Common Stock, par value $.10 per share,
outstanding as of June 20, 2002, prior to subtraction of 27,250 treasury
shares and 231,980 out of 700,000 shares owned by Ultralife Taiwan, Inc.,
a Taiwanese venture of which we own approximately approximately 33%.
The following Table B sets forth the number of shares of Common Stock to
be owned upon the conversion of the $600,000 Debenture issued to Joseph C.
Abeles. Mr. Abeles is our Treasurer and a member of our Board of Directors. Mr.
Abeles has confirmed to us that he has not engaged in any
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agreement or understanding, directly or indirectly, with any person, to
distribute the Common Stock issuable upon conversion of the Debenture. Because
the Mr. Abeles 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 Mr. Abeles or subsequent
selling stockholders after completion of this offering. The shares offered by
this Prospectus may be offered from time to time by the Mr. Abeles 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
Shares Percent of
Number of Shares Number of Beneficially Outstanding
Beneficially Shares Owned After Shares after
Owned Prior to Registered Completion Completion of
Completion of the for Sale of the the Offering
Name of Selling Stockholder Offering(1) Hereby(1)(2) Offering (3)
------------------------------------------------------------------------------------------------------------------
Joseph C. Abeles 461,989 200,000 261,989 *
Total 461,989 200,000 261,989 *
----------
* Represents beneficial ownership of less than 1%.
(1) Figures include the shares that will be issued upon the conversion of the
Debenture by such selling stockholder.
(2) 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.
(3) Based on 13,379,519 shares of our Common Stock, par value $.10 per share,
outstanding as of June 20, 2002, prior to subtraction of 27,250 treasury
shares and 231,980 out of 700,000 shares owned by Ultralife Taiwan, Inc.,
a Taiwanese venture of which we own approximately approximately 33%.
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 conversion of the Debenture) 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 conversion of the Debenture) 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 conversion of the Debenture) 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.
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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 conversion of the Debenture) and any broker-dealers or agents that
participate with the selling stockholders (including those holding stock as a
result of the future conversion of the Debenture) 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 conversion of the Debenture).
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for us
by Harter, Secrest & Emery LLP, Rochester, New York.
EXPERTS
Our consolidated balance sheets as of June 30, 2000 and June 30, 2001 and
our consolidated statements of income, retained earnings, and cash flow for each
of the three years in the period ended June 30, 2001 incorporated by reference
in this Prospectus, have been incorporated herein in reliance on the report of
Arthur Andersen LLP, independent accountants, given on the authority of that
firm as experts in accounting and auditing.
After reasonable efforts, we have not been able to obtain Arthur
Andersen's written consent to the inclusion of their report in this Prospectus,
and we have dispensed with the requirement to file their consent in reliance on
Rule 437a, as promulgated under the Securities Act of 1933. Because Arthur
Andersen has not consented to the inclusion of its report in this Prospectus,
your ability to assert claims against Arthur Andersen may be limited. In
particular, because of this lack of consent, you will not be able to sue Arthur
Andersen under Section 11(a)(4) of the Securities Act for any untrue statements
of material fact contained in the financial statements audited by Arthur
Andersen or any omissions to state a material fact required to be stated in
those financial statements and therefore your right of recovery under that
section may be limited.
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
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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 on September 26, 2001, as amended on Form 10-K/A, filed
on December 12, 2001;
2. Our Quarterly Reports on Form 10-Q, filed on February 13, 2002 and
May 14, 2002;
3. Our Quarterly Report on Form 10-Q, filed on November 7, 2001, as
amended on Form 10-Q/A, filed on December 28, 2002;
4. Our Current Reports on Form 8-K, filed on July 12, 2001, July 24,
2001, April 24, 2002 and June 7, 2002;
5. 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
6. 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.
-13-
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.
COMMISSION'S POSITION ON INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers of persons controlling us pursuant
to the foregoing provisions, we have been informed that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in such Act and is therefore unenforceable.
-14-
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. in
connection with the sale of Common Stock being registered. All amounts are
estimates except the SEC registration fee.
SEC Registration Fee............................. $ 314.14
Legal fees and expenses.......................... 20,000.00
Accounting fees and expenses..................... 5,000.00
Miscellaneous fees and expenses.................. 5,500.00
----------
Total............................................ $30,814.14
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.
II-1
The Registrant'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 Registrant and its stockholders
and for indemnification of directors, officers, employees and agents of the
Registrant, respectively, to the maximum extent permitted by the DGCL.
The Certificate of Incorporation provides that directors are not liable to
the Registrant 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 Registrant 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 Registrant 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 Registrant 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 Registrant. With
respect to matters to which the Registrant'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 Registrant 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 Registrant.
ITEM 16. EXHIBITS
4.1 Form of Stock Purchase Agreement entered into by the Registrant and
certain Selling Stockholders
4.2 Specimen of Registrant's Common Stock Certificate (incorporated by
reference to Exhibit 3.1 of the Registrant's Registration Statement,
Commission File No. 33-54470)
4.3 Debenture Purchase Agreement, by and between the Registrant and Joseph C.
Abeles
4.4 $600,000 Senior Convertible Subordinated Debenture issued by the
Registrant to Joseph C. Abeles
4.5 Form of Registration Rights Agreement entered into by the Registrant and
the Selling Stockholders
4.6 Registration Rights Agreement, by and between the Registrant and Joseph C.
Abeles
5.1 Opinion of Harter, Secrest & Emery LLP
23.1 Consent of Arthur Andersen LLP, Independent Accountant (omitted pursuant
to Rule 437a, as promulgated under the Securities Act of 1933)
23.2 Consent of Harter, Secrest & Emery LLP (included in the Opinion of Counsel
filed as Exhibit 5.1 hereto)
24.1 Power of Attorney (included with signatures on page II-5)
-2-
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes (subject to the proviso
contained in Item 512(a) of Regulation S-K):
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any Prospectus required by section 10(a)(3) of the
Securities Act of 1933; (ii) to reflect in the Prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflect in the form of
Prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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
-3-
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.
-4-
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 21st day of June,
2002.
ULTRALIFE BATTERIES, INC.
By: /s/ John D. Kavazanjian
-------------------------------------
John D. Kavazanjian,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John D. Kavazanjian, Robert W.
Fishback and Peter F. Comerford as his or her true and lawful attorney-in-fact,
each with full power of substitution and resubstitution for and in the name,
place and stead to sign, attest and file this Registration Statement and any and
all amendments and exhibits hereto and any and all applications or other
documents to be filed with the Securities and Exchange Commission, granting unto
said attorneys full power and authority to do and perform any and all acts and
things whatsoever requisite or necessary to be done in the premises.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
/s/ John D. Kavazanjian Chief Executive Officer, June 21, 2002
------------------------------------ President and Director
John D. Kavazanjian (Principal Executive Officer)
/s/ Robert W. Fishback Vice President-Finance and June 21, 2002
------------------------------------ Chief Financial Officer (Principal
Robert W. Fishback Financial Officer and Principal
Accounting Officer)
/s/ Joseph C. Abeles Director June 21, 2002
------------------------------------
Joseph C. Abeles
Director June 21, 2002
/s/ Joseph N. Barrella
------------------------------------
Joseph N. Barrella
Director June 21, 2002
/s/ Patricia C. Barron
------------------------------------
Patricia C. Barron
Director June 21, 2002
/s/ Daniel W. Christman
------------------------------------
Daniel W. Christman
Director June 21, 2002
/s/ Carl H. Rosner
------------------------------------
Carl H. Rosner
Director June 21, 2002
/s/ Ranjit Singh
------------------------------------
Ranjit Singh
II-5
Index to Exhibits
4.1 Form of Stock Purchase Agreement entered into by the Registrant and
certain Selling Stockholders
4.2 Specimen of Registrant's Common Stock Certificate (incorporated by
reference to Exhibit 3.1 of the Registrant's Registration Statement,
Commission File No. 33-54470)
4.3 Debenture Purchase Agreement, by and between the Registrant and Joseph C.
Abeles
4.4 $600,000 Senior Convertible Subordinated Debenture issued by the
Registrant to Joseph C. Abeles
4.5 Form of Registration Rights Agreement entered into by the Registrant and
the Selling Stockholders
4.6 Registration Rights Agreement, by and between the Registrant and Joseph C.
Abeles
5.1 Opinion of Harter, Secrest & Emery LLP
23.1 Consent of Arthur Andersen LLP, Independent Accountant (omitted pursuant
to Rule 437a, as promulgated under the Securities Act of 1933)
23.2 Consent of Harter, Secrest & Emery LLP (included in the Opinion of Counsel
filed as Exhibit 5.1 hereto)
24.1 Power of Attorney (included with signatures on page II-5)