As filed with the Securities and Exchange Commission on April 7, 2004
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ULTRALIFE BATTERIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 16-1387013
(State or other jurisdiction of (I.R.S Employer
incorporation or organization) Identification No.)
2000 Technology Parkway
Newark, New York 14513
(Address of Principal Executive Offices) (Zip Code)
Ultralife Batteries, Inc.
Amended and Restated 2000 Stock Option Plan
(Full title of the plan)
John D. Kavazanjian
President and Chief Executive Officer
Ultralife Batteries, Inc.
2000 Technology Parkway
Newark, New York 14513
(Name and address of agent for service)
315-332-7100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price aggregate registration
per share(1) offering price(1) fee
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Common Stock, par value $.10 per share 500,000 $22.64 $11,320,000 $1,434.24
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(1) Estimated in accordance with Rule 457(c), as of April 2, 2004, solely for
the purpose of calculating the registration fee.
In addition, pursuant to Rule 416 under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the stock option plan described herein.
This Registration Statement on Form S-8 relates to an amendment and restatement
of Ultralife Batteries, Inc.'s 2000 Stock Option Plan that increased the number
of shares of Common Stock par
value $.10 per share (the "Common Stock") to be issued thereunder by 500,000
shares. After this amendment, a total of 1,000,000 shares of Common Stock will
be authorized under the Amended and Restated 2000 Stock Option Plan (500,000 of
which were previously registered on Form S-8 (File No. 333-60984) filed with the
Securities and Exchange Commission on May 15, 2001). Also, pursuant to
instruction E to Form S-8, the filing fee is being paid only with respect to the
500,000 shares of Common Stock not previously registered.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents of the Registrant previously filed with the
Securities and Exchange Commission are incorporated herein by reference:
(a) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 2003;
(b) the Registrant's Definitive Proxy Statement on Schedule 14A
filed with the Commission on April 25, 2003;
(c) the description of the Registrant's Common Stock, par value
$.10 per share, contained in the Registrant's Registration
Statement on Form S-1 (Registration No. 33-54470), filed with
the Securities and Exchange Commission on December 23, 1992.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date of this Registration Statement (and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold) shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
The Company's Certificate of Incorporation and By-laws, each as
amended, provide for elimination of the liability of Directors to the Registrant
to the fullest extent permitted by
Section 102(7)(b) of the Delaware General Corporation Law, as the same may be
amended and supplemented.
The Registrant's Certificate of Incorporation, as amended, provides,
in accordance with the Delaware General Corporation Law, 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 (i) for any breach of the
Director's duty of loyalty to the Registrant or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for dividend payments or stock repurchases in
violation of the Delaware General Corporation Law, or (iv) for any transaction
from which the Director derived any improper personal benefit.
The Certificate of Incorporation and the By-laws of the Registrant
include provisions by which the Registrant will indemnify all persons whom it
shall have the power to indemnify under Section 145 of the Delaware General
Corporation Law from and against any and all of the expenses, liabilities, or
other matters referred to in or covered by said section. The indemnification
provided for in Section 145 shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under any Bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such person.
The general effect of these provisions will be to eliminate the
rights of the Registrant and its stockholders (through stockholders' derivative
suits on behalf of the Registrant) to recover monetary damages in the event of a
breach of fiduciary duty as a director (including breach of duty in the case of
negligence or grossly negligent behavior) except in the situations as described
above. These provisions will not affect the availability of injunctive relief
against directors of the Registrant (although such relief may not always be
available as a practical matter) nor will it limit directors' liability for
violations of the federal securities laws.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
4.1 Restated Certificate of Incorporation of the Registrant
(Exhibit 4.3)(1)
4.2 Amendment to Certificate of Incorporation (Exhibit 3.1)(2)
4.3 By-laws of the Registrant (Exhibit 3.2)(3)
4.4 Form of Common Stock Certificate of the Registrant (Exhibit
4.1)(3)
5.1 Opinion of Harter, Secrest & Emery LLP*
23.1 Consent of PricewaterhouseCoopers LLP*
23.2 Consent of Harter, Secrest & Emery LLP(4)
99.1 Ultralife Batteries, Inc. Amended and Restated 2000 Stock
Option Plan*
*Exhibit filed with this Registration Statement
(1) Exhibit previously filed as part of and is incorporated by reference to the
Registrant's Registration Statement on Form S-8 (Registration No. 333-60984).
The exhibit number contained in parenthesis refers to the exhibit number in such
Registration Statement.
(2) Exhibit previously filed as part of and is incorporated by reference to the
Registrant's Form 10-Q for the quarterly period ended December 31, 2000
(Commission File No. 0-20852). The exhibit number contained in parenthesis
refers to the exhibit number in the Form 10-Q.
(3) Exhibit previously filed as part of and is incorporated by reference to the
Registrant's Registration Statement on Form S-1 (Registration No. 33-544701).
The exhibit number contained in parenthesis refers to the exhibit number in such
Registration Statement.
(4) Included in Exhibit 5.1 to this Registration Statement.
Item 9. Undertakings
(a) 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, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement;
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
(2) that, for the purpose of determining any liability under
the Securities Act, 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.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, controlling persons of
the Registrant pursuant to the provisions described under Item 6 above, 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 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 of whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Village of Newark, State of New York, on this 6th day of
April 2004.
ULTRALIFE BATTERIES, INC.
By: /s/ John D. Kavazanjian
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Name: John D. Kavazanjian
Title: President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ John D. Kavazanjian President and Chief Executive Officer April 6, 2004
------------------------------- and Director (Principal Executive Officer)
John D. Kavazanjian
/s/ Robert W. Fishback Vice President-Finance and Chief April 6, 2004
------------------------------- Financial Officer (Principal Financial
Robert W. Fishback Officer and Principal Accounting Officer)
/s/ Joseph C. Abeles Director April 6, 2004
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Joseph C. Abeles
Director April __, 2004
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Joseph N. Barrella
Director April __, 2004
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Patricia C. Barron
/s/ Anthony J. Cavanna Director April 6, 2004
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Anthony J. Cavanna
/s/ Daniel W. Christman Director April 6, 2004
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Daniel W. Christman
Director April __, 2004
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Carl H. Rosner
/s/ Ranjit C. Singh Director April 6, 2004
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Ranjit C. Singh