AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 24, 2001
REGISTRATION NO. 333-67808
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
AMENDMENT NO. 1
TO
FORM S-3
--------------------
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ULTRALIFE BATTERIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 16-387013
(State or Other Jurisdiction of Incorporation (I.R.S. Employer
or Organization) Identification Number)
2000 TECHNOLOGY PARKWAY
NEWARK, NEW YORK 14513
(315) 332-7100
(Address, including Zip Code, and Telephone Number, including Area Code,
of Registrant's Principal Executive Offices)
--------------------
John D. Kavazanjian
President and Chief Executive Officer
Ultralife Batteries, Inc.
2000 Technology Parkway
Newark, New York 14513
(315) 332-7100
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Agent for Service)
--------------------
Copy to:
Jeffrey H. Bowen, Esq.
Harter, Secrest & Emery LLP
1600 Bausch & Lomb Place
Rochester, New York 14604
(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
--------------------
This Prospectus relates to the public offering of 1,199,000 shares of our
Common Stock, par value $.10 per share. 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 such shares are being registered for the accounts of future
stockholders who will receive their shares upon the exercise of the warrants
held by those parties identified in Table B in the Section titled "Selling
Stockholders". This offering will not be underwritten. All 1,199,000 shares may
be offered by certain of our stockholders or by pledgees, donees, transferees or
other successors in interest who receive the shares as a gift, partnership
distribution or other non-sale related transfer. Of the shares being registered,
1,090,000 of such shares were originally issued in a private transaction
pursuant to that certain Share Purchase Agreement dated July 19, 2001 by and
among the Company and subscribers identified in Table A in the section of this
Prospectus entitled "Selling Stockholders". The issuance of these shares was
exempt from registration under Section 4(2) of the Securities Act of 1933, as
amended, and Regulation D. We are registering the shares pursuant to Section 7.1
of the Share Purchase Agreement. The remaining 109,000 shares are subject to
future issuance upon the exercise of warrants granted to our placement agent,
H.C. Wainwright & Co., Inc. and several of its affiliates, pursuant to that
certain Warrant Agreement dated as of July 20, 2001 by and among the Company,
H.C. Wainwright and its affiliates. We are registering these shares in
accordance with the provisions of that Warrant Agreement.
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, 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 act as agents or to whom they sell as principals, or both.
This compensation might be in excess of customary commissions. For further
information, see the section entitled "Plan of Distribution" below.
We will not receive any of the proceeds from the sale of these shares.
However, to the extent 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 certain expenses in
connection with the registration of the shares being offered and sold by the
selling stockholders (including those holding stock as a result of the future
exercise of the warrants). Our Common Stock is quoted on the Nasdaq National
Market under the symbol "ULBI." On October 19, 2001, the last reported sale
price for the Common Stock was $4.93.
--------------------
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.
This offering of our Common Stock involves certain risks. For further
information, please see the section entitled "Risk Factors".
The date of this Prospectus is October ___, 2001
Table of Contents
Page
----
Prospectus Summary 3
Risk Factors 3
Forward-Looking Statements 7
Use of Proceeds 8
Selling Stockholders 8
Plan of Distribution 12
Legal Matters 12
Experts 12
Where You Can Find More Information 13
Incorporation of Information by Reference 13
-2-
PROSPECTUS SUMMARY
This summary highlights selected information and does not contain all of
the information that is important to you. We urge you to read the entire
Prospectus carefully and any information contained in or incorporated by
reference in this Prospectus before you decide whether to buy our Common Stock.
You should pay special attention to the risks of investing in our Common Stock
discussed under Risk Factors below. Unless the context otherwise requires,
references in this Prospectus to Ultralife, we, us, and our refer to Ultralife
Batteries, Inc. and our subsidiaries.
Ultralife
We develop, manufacture and market a wide range of standard and customized
primary and rechargeable lithium batteries for use in a wide array of
applications and markets, including military, automotive telematics, safety and
medical, and computers and communications. We believe that our proprietary
technologies allow us to offer batteries that are ultra-thin, light weight and
that generally achieve greater operating performance than other batteries
currently available. We sell our products directly to original equipment
manufacturers in the United States and abroad and have contractual arrangements
with sales representatives who market our products on a commission basis in
particular areas. We also distribute our products to domestic and international
distributors and retailers that purchase our batteries for resale. We have
obtained ISO 9001 certification for our lithium batteries manufacturing
operations in Newark, New York and Abingdon, England. As of September 30, 2001,
we had approximately 499 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 the Company's
business, operating results, financial condition and the value of Ultralife
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 cannot assure
that we will generate an operating profit or achieve profitability in the
future.
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. We cannot assure that a
-3-
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 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 results of operations.
Dependence on OEM Relationships and their 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 OEMs that manufacture products which require
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 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. 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 business, financial condition and results of 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 cannot assure that we
-4-
will 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.
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 or these members, this could have a
material adverse effect on our business, financial condition and results of
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 cannot assure that we will 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, 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, 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 results of operations.
National, state and local laws impose various environmental controls on
the manufacture, storage, use and disposal of lithium batteries and/or of
certain chemicals used in the manufacture of lithium batteries. Although we
believe that our operations are in substantial compliance with current
environmental regulations and that, except as noted below, there are no
environmental conditions that will require material expenditures for clean-up at
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
-5-
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 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. We cannot assure that we will not face claims resulting in
substantial liability which would have a material adverse effect on our
business, financial condition and results of 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. 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 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.
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,
-6-
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.
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.
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
-7-
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.
-8-
Table A
Number of Number of Number of
Shares Shares Shares Percent of
Beneficially Registered Beneficially Outstanding
Owned Prior for Sale Owned Shares
to Hereby (1) After after
Completion Completion Completion
of the of the of the
Name of Selling Stockholder Offering Offering Offering(2)
-----------------------------------------------------------------------------------------------
First Trust as trustee for 22,000 22,000 0 *
Sheila Baird SERP
Weiss, Peck & Greer as trustee 10,000 10,000 0 *
for Sheila Baird IRA
Weiss, Peck & Greer as trustee 28,000 16,000 12,000 *
for Murray Berliner Sep IRA
Weiss, Peck & Greer as trustee 5,500 4,000 1,500 *
for Stephan Bermas IRA
William A. Birnbaum 22,500 16,000 6,500 *
William Birnbaum and Kathleen 22,500 16,000 6,500 *
Birnbaum
Harris J. Bixler 21,000 16,000 5,000 *
Weiss, Peck & Greer as trustee 8,000 4,000 4,000 *
for John V. Brennan IRA
Weiss, Peck & Greer as trustee 8,000 8,000 0 *
for 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 17,000 8,000 9,000 *
for John W. Dewey, IRA
Weiss, Peck & Greer as trustee 18,000 8,000 10,000 *
for John Dorman IRA
Weiss, Peck & Greer as trustee 14,500 8,000 6,500 *
for Joan Ellenbogen IRA
Weiss, Peck & Greer as trustee 9,500 4,000 5,500 *
for Marcia Goldstein IRA
Martha Grant 14,000 8,000 6,000 *
Claire S. Gulamerian, Living 16,600 8,000 8,600 *
Trust dtd 6/7/96
-9-
Ingolstadt Ltd. BVI 26,000 16,000 10,500 *
Oscar Lascano 9,000 4,000 5,000 *
Weiss, Peck & Greer as trustee 9,600 4,000 5,600 *
for Stanley Mailman IRA
Barbara V. May 5,200 4,000 1,200 *
Weiss, Peck & Greer as trustee 18,800 16,000 2,800 *
for 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 31,000 16,000 15,000 *
Trust dtd 7/22/92
Patricia C. Remmer, 1995 10,000 4,000 6,000 *
Charitable Lead Trust
The Remmer Family Foundation 8,000 4,000 4,000 *
Weiss, Peck & Greer as trustee 19,000 8,000 11,000 *
for Dorothy Rivkin IRA
Maurice Schlossberg and Amy 5,000 8,000 5,000 *
Schlossberg
Weiss, Peck & Greer as trustee 7,000 4,000 3,000 *
for Mary Simons IRA
Weiss, Peck & Greer as trustee 22,000 16,000 6,000 *
for Richard R. Stebbins
Sarah Tough 9,000 4,000 5,000 *
Weiss, Peck & Greer as trustee 11,000 4,000 7,000 *
for Leon 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 2,218,600 670,000 1,548,600 12.57%
Board
Total 3,355,600 1,090,000 2,273,600 18.46%
-------------
* Represents beneficial ownership of less than 1%.
-10-
(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 October 10, 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 for Sale Owned
Prior to Hereby after
Completion (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.
-11-
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.
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 and schedules 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 with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
reports.
-12-
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;
2. Our Forms 8-K filed on July 12, 2001 and July 24, 2001;
3. 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
4. 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.
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
-13-
(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.
-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.
(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. 1 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 24th day of
October, 2001.
ULTRALIFE BATTERIES, INC.
Dated: October 24, 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, October 24, 2001
_____________________* President and Director
John D. Kavazanjian (Principal Executive
Officer)
_____________________* Vice President-Finance and October 24, 2001
Robert W. Fishback Chief Financial Officer
(Principal Financial
Officer and Principal
Accounting Officer)
_____________________* Director October 24, 2001
Ranjit Singh
_____________________* Director October 24, 2001
Arthur M. Lieberman
_____________________* Director October 24, 2001
Joseph C. Abeles
_____________________* Director October 24, 2001
Joseph N. Barrella
_____________________* Director October 24, 2001
Carl H. Rosner
_____________________* Director October 24, 2001
Patricia C. Barron
______________________ Director October __, 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. 1 to Form S-3.