As
filed with the Securities and Exchange Commission on August 18, 2006
Registration No. 333-
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)
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Delaware
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16-1387013
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(State or other jurisdiction of incorporation or organization)
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(I.R.S Employer Identification No.)
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2000 Technology Parkway
Newark, New York
(Address of Principal Executive Offices)
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14513
(Zip Code)
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Ultralife Batteries, Inc.
Amended and Restated 2004 Long-Term Incentive Plan
as amended June 8, 2006
(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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Proposed maximum
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Proposed maximum
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Amount of
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Title of securities
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Amount to be
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offering price per
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aggregate offering
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registration
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to be registered
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registered
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share
(1)
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price
(1)
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fee
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Common Stock, par value $.10 per share
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750,000
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$9.74
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$7,305,000
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$781.64
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(1)
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Estimated in accordance with Rule 457(c), as of
August 16, 2006, solely for the purpose of
calculating the registration fee.
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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 to the Ultralife Batteries,
Inc. Amended and Restated 2004 Long-Term Incentive Plan pursuant to which the Registrant was
authorized to issue up to 750,000 shares of its Common Stock together with such additional shares
as remain available for issuance under the Company’s Amended and Restated 2000 Stock Option Plan,
as amended, or shares which become available upon the lapse, expiration, termination or
cancellation of outstanding stock options under the 2000 Option Plan. Such additional shares have
been previously registered pursuant to two separate S-8 registration statements (File No. 333-60984
and File No. 333-114271 filed with the Securities and Exchange Commission on May 15, 2001 and April
7, 2004, respectively). The amendment, approved by the Registrant’s stockholders on June 8, 2006,
increased the number of shares of Common Stock authorized pursuant to the Plan from 750,000 to
1,500,000. The initial 750,000 shares were previously registered pursuant to an S-8 registration
statement (File No. 333-117662). Pursuant to instruction E to Form S-8, the filing fee is being
paid only with respect to the 750,000 shares of Common Stock covered by the amendment, which were
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:
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(a)
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the Registrant’s Annual Report on Form 10-K for the year ended
December 31, 2005;
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(b)
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the Registrant’s Definitive Proxy Statement on Schedule 14A
filed with the Commission on April 28, 2006;
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(c)
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the Registrant’s Quarterly Report on Form 10-Q for the quarter
ended April 1, 2006 filed with the Commission on May 11, 2006; the
Registrant’s Quarterly Report on Form 10-Q for the quarter ended July 1, 2006
filed with the Commission on August 10, 2006; the Registrant’s Current Report
on Form 8-K filed with the Commission on January 26, 2006; the Registrant’s
Current Report on Form 8-K containing disclosure under Item 5.02 thereof filed
with the Commission on April 20, 2006; the Registrant’s Current Report on Form
8-K filed with the Commission on May 2, 2006; the Registrant’s Current Report
on Form 8-K filed with the Commission on May 23, 2006; the Registrant’s Current
Report on Form 8-K filed with the Commission on May 31, 2006; the Registrant’s
Current Report on Form 8-K filed with the Commission on June 9, 2006; both of
the Registrant’s Current Reports on Form 8-K filed with the Commission on June
14, 2006; the Registrant’s Current Report on Form 8-K filed with the Commission
on July 10, 2006, as amended by Form 8-K/A filed on July 21, 2006; and
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(d)
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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.
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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
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4.1
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Restated Certificate of Incorporation of the Registrant (Exhibit 4.3)(1)
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4.2
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Amendment to Certificate of Incorporation (Exhibit 3.1)(2)
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4.3
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By-laws of the Registrant (Exhibit 3.2)(3)
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4.4
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Form of Common Stock Certificate of the Registrant (Exhibit 4.1)(3)
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5.1
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Opinion of Harter Secrest & Emery LLP*
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23.1
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Consent of PricewaterhouseCoopers LLP*
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23.2
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Consent of Harter Secrest & Emery LLP(4)
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99.1
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Ultralife Batteries, Inc. Amended and Restated 2000 Stock
Option Plan (Exhibit 99.1)(5)
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99.2
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Ultralife Batteries, Inc. Amended and Restated 2004 Long-Term
Incentive Plan (Exhibit 99.2)(6)
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99.3
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Amendment to Ultralife Batteries, Inc. Amended and Restated
Long-Term Incentive Plan*
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*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.
(5) Exhibit previously filed as part of and is incorporated by reference to the Registrant’s
Registration Statement on Form S-8 (Registration No. 333-114271). The exhibit number contained in
parenthesis refers to the exhibit number in such Registration Statement.
(6) Exhibit previously filed as part of and is incorporated by reference to the Registrant’s
Registration Statement on Form S-8 (Registration No. 333-117662). The exhibit number contained in
parenthesis refers to the exhibit number in such 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 18th day of August
2006.
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ULTRALIFE BATTERIES, INC.
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By:
Name:
Title:
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/s/ John D. Kavazanjian
John D. Kavazanjian
President and Chief Executive Officer
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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.
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Signature
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Title
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Date
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/s/ John D. Kavazanjian
John D. Kavazanjian
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President and Chief
Executive Officer and
Director (Principal
Executive Officer)
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August 18, 2006
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/s/ Robert W. Fishback
Robert W. Fishback
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Vice President-Finance and
Chief Financial Officer
(Principal Financial Officer
and Principal Accounting
Officer)
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August 18, 2006
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Carole L. Anderson
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Director
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August ___, 2006
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Patricia C. Barron
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Director
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August __, 2006
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/s/ Anthony J. Cavanna
Anthony J. Cavanna
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Director
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August 17, 2006
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/s/ Paula H. J. Cholmondeley
Paula H. J. Cholmondeley
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Director
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August 18, 2006
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/s/ Daniel W. Christman
Daniel W. Christman
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Director
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August 18, 2006
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/s/ Ranjit C. Singh
Ranjit C. Singh
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Director
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August 18, 2006
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Exhibit 5.1
[LETTERHEAD OF HARTER SECREST & EMERY LLP]
August 18, 2006
Ultralife Batteries, Inc.
2000 Technology Parkway
Newark, New York 14513
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Re:
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Ultralife Batteries, Inc.
Registration Statement on Form S-8
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Ladies and Gentlemen:
You have requested our opinion in connection with your Registration Statement on Form S-8,
filed under the Securities Act of 1933, as amended (the “Registration Statement”), with the
Securities and Exchange Commission (the “Registration Statement”) in respect of the proposed
issuance by Ultralife Batteries, Inc. (the “Company”) of up to 750,000 additional shares of Common
Stock, par value $.10 per share (the “Common Stock”), of the Company pursuant to Amendment No. 1 to
the Company’s Amended and Restated 2004 Long-Term Incentive Plan (the “Amendment”).
We have examined the following corporate records and proceedings of the Company in connection
with the preparation of this opinion: its Certificate of Incorporation as amended and restated to
date; its By-laws as currently in force and effect; its minute books, containing minutes and
records of proceedings of its stockholders and its Board of Directors from the date of
incorporation to the date hereof; the Registration Statement and the related exhibits thereto;
applicable provisions of laws of the State of Delaware; and such other documents and matters as we
have deemed necessary.
In rendering this opinion, we have made such examination of laws as we have deemed relevant
for the purposes hereof. As to various questions of fact material to this opinion, we have relied
upon representations and/or certificates of officers of the Company, certificates and documents
issued by public official and authorities, and information received from searches of public
records. Based upon and in reliance on the foregoing, we are of the opinion that the 750,000
shares of Common Stock to be issued by the Company will, when issued and, where required, paid for
in accordance with the provisions of the Amendment and the respective award agreements pursuant to
which awards are made under the Amendment, be validly authorized and legally issued and
outstanding, fully paid and non-assessable.
We hereby consent to being named in the Registration Statement as attorneys who will, for the
Company, pass upon the validity of the issuance of the additional 750,000 shares of Common Stock
offered thereby, and we hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ HARTER SECREST & EMERY LLP