Exhibit 2.1
ULTRALIFE BATTERIES, INC. SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (this "Agreement"), is made and entered into as of
July 19, 2001, by and among ULTRALIFE BATTERIES, INC., a Delaware corporation
(the "Company"), and the purchasers listed on Schedule A attached hereto
(collectively, the "Purchasers" and individually, a "Purchaser").
1. AUTHORIZATION OF SALE OF THE SHARES
Subject to the terms and conditions of this Agreement, the Company has
authorized the sale of up to 1,200,000 shares (the "Shares") of common stock,
par value $.10 per share (the "Common Stock"), of the Company.
2. AGREEMENT TO SELL AND PURCHASE THE SHARES
2.1 Purchase and Sale
Subject to the terms and conditions of this Agreement, each Purchaser severally
agrees to purchase, and the Company agrees to sell and issue to each Purchaser,
at the Closing (as defined below) that number of Shares set forth opposite such
Purchaser's name on Schedule A attached hereto.
2.2 Purchase Price
The purchase price of each Share shall be $6.25 (the "Per Share Price"). The
Company shall not, during the period beginning on the date of this Agreement and
ending ninety (90) days after the Closing Date (as defined below), without
adjusting the price per Share hereunder accordingly, (i) sell Shares at a price
per Share of less than the Per Share Price, or (ii) grant or issue options,
warrants or any other securities that can be converted into, or otherwise
exchanged for, shares of the Company's common stock at a conversion, exchange or
exercise price per Share of less than the Per Share Price. In the event the
Company shall, during the period beginning on the date of this Agreement and
ending ninety (90) days after the Closing Date, sell any shares of the Company's
common stock at, or grant or issue any instruments that can be converted into or
otherwise exchanged for the Company's common stock (the "Subsequent Sale")
exercisable at, a price per Share (the "Subsequent Purchase Price") of less than
the Per Share Price, the Company shall, within ten (10) business days of the
Subsequent Sale, pay to the Purchaser a cash amount equal to the number of
Shares times the difference between the Per Share Price and the Subsequent
Purchase Price.
3. DELIVERY OF THE SHARES AT THE CLOSING
(a) The completion of the purchase and sale of the Shares (the "Closing")
shall occur at the offices of Xxxxxx, Xxxxxxx & Xxxxx LLP, counsel to the
Company, at Rochester, New York at 9:00 a.m. local time on June 28, 2001 or such
other time and date as may be agreed by the parties (the "Closing Date").
(b) At the Closing, the Company shall authorize its transfer agent (the
"Transfer Agent") to issue to each Purchaser one or more stock certificates
registered in the name of such Purchaser, or in such nominee name(s) as
designated by such Purchaser in writing, representing the number of Shares set
forth in Section 2 above and bearing an appropriate legend referring to the fact
that the Shares were sold in reliance upon the exemption from registration
provided by Section 4(2) of the Securities Act of 1933, as amended (the
"Securities Act"), and Rule 506 under the Securities Act. Within ten (10)
business days of Closing, the Company will cause to be delivered to each
Purchaser one certificate representing 100% of the Shares purchased by that
Purchaser (the "Certificates") against delivery of payment for the Shares by the
Purchasers; subject, however, to the provision that with respect to Shares
purchased by State of Wisconsin Investment Board, the Company will cause to be
delivered to that Purchaser one certificate representing 80% of the Shares
purchased and a second certificate representing 20% of the Shares purchased.
Prior to the Purchasers' delivery of payment for the Shares, the Company will
deliver via facsimile a copy of the Certificates to be delivered upon Closing to
the office of the Purchasers (at the fax number indicated on the signature pages
attached hereto).
(c) The Company's obligation to complete the purchase and sale of the
Shares shall be subject to the following conditions, any one or more of which
may be waived by the Company:
(i) receipt by the Company from stockholders holding rights to require
the Company to register the sale of any securities owned by such holder in the
Registration Statement (as defined below) of waivers of such rights (including
the waiver of any notice requirements related to such rights);
(ii) receipt by the Company of same-day funds in the full amount of
the purchase price for the Shares being purchased under this Agreement; and
(iii) the accuracy in all material respects of the representations and
warranties made by the Purchasers and the fulfillment in all material respects
of those undertakings of the Purchasers to be fulfilled before the Closing.
(d) The Purchasers' obligations to accept delivery of such stock
certificates and to pay for the Shares evidenced by the certificates shall be
subject to the following conditions, any one or more of which may be waived by a
Purchaser with respect to such Purchaser's obligation:
(i) the representations and warranties made by the Company in this
Agreement shall be accurate in all material respects and the undertakings of the
Company shall have been fulfilled in all material respects on or before the
Closing;
(ii) the Company shall have delivered to the Purchasers a certificate
executed by the chairman of the board or president and the chief financial or
accounting officer of the Company, dated the Closing Date, in form and substance
reasonably satisfactory to the Purchasers, to the effect that the
representations and warranties of the Company set forth in Section 4 hereof are
true and correct in all material respects as of the date of this Agreement and
as of the Closing Date, and that the Company has complied with all the
agreements and satisfied
all the conditions in this Agreement on its part to be performed or satisfied on
or before the Closing Date; and
(iii) the Company shall have delivered to Purchasers a legal opinion
in substantially the form attached hereto as Exhibit A.
(iv) the Company shall have obtained gross proceeds of at least
$5,000,000 from the sale of the Shares at the Closing.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
Except as set forth on the Schedule of Exceptions attached hereto as Exhibit B,
the Company hereby represents and warrants to the Purchasers as follows (which
representations and warranties shall be deemed to apply, where appropriate, to
each subsidiary of the Company):
4.1 Organization and Qualification
The Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware. The Company has the
corporate power and authority to own, lease and operate its properties and to
conduct its business as currently conducted and to enter into and perform its
obligations under this Agreement. The Company is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify would not, singly or in the aggregate, have a material adverse effect on
the condition, financial or otherwise, or the earnings, assets, business affairs
or business prospects of the Company.
4.2 Capitalization
(a) The authorized capital stock of the Company consists of 40,000,000
shares of Common Stock and 1,000,000 shares of Preferred Stock.
(b) As of May 31, 2001, the issued and outstanding capital stock of the
Company consisted of 11,460,536 shares of Common Stock and no shares of
Preferred Stock. The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued, are fully paid and
nonassessable and have not been issued in violation of or are not otherwise
subject to any preemptive or other similar rights.
(c) The Company has reserved 2,564,850 shares of Common Stock for issuance
upon the exercise of stock options granted or available for future grant under
the Company's stock option plans.
(d) The Company has reserved 12,500 shares of Common Stock for issuance
upon the exercise of outstanding warrants to purchase Common Stock and up to
120,000 shares of Common Stock for issuance upon the exercise of the warrant to
be issued to X.X. Xxxxxxxxxx at Closing.
With the exception of the foregoing, there are no outstanding subscriptions,
options, warrants, convertible or exchangeable securities or other rights
granted to or by the Company to purchase
shares of Common Stock or other securities of the Company and there are no
commitments, plans or arrangements to issue any shares of Common Stock or any
security convertible into or exchangeable for Common Stock.
4.3 Issuance, Sale and Delivery of the Shares
(a) The Shares have been duly authorized for issuance and sale to the
Purchasers pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration set
forth in this Agreement, will be validly issued and fully paid and nonassessable
and free and clear of all pledges, liens and encumbrances. The certificates
evidencing the Shares are in due and proper form under Delaware law.
(b) The issuance of the Shares is not subject to preemptive or other
similar rights. No further approval or authority of the shareholders or the
Board of Directors of the Company will be required for the issuance and sale of
the Shares to be sold by the Company as contemplated in this Agreement.
(c) Subject to the accuracy of the Purchasers' representations and
warranties in Section 5 of this Agreement, the offer, sale, and issuance of the
Shares in conformity with the terms of this Agreement constitute transactions
exempt from the registration requirements of Section 5 of the Securities Act and
from the registration or qualification requirements of the laws of any
applicable state or United States jurisdiction.
4.4 Financial Statements
The financial statements included (as exhibits or otherwise) in the Company
Documents (as defined below) present fairly the financial position of the
Company as of the dates indicated and the results of their operations for the
periods specified. Except as otherwise stated in such Company Documents, such
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and any supporting
schedules included with the financial statements present fairly the information
stated in the financial statements. The financial and statistical data set forth
in the Company Documents were prepared on an accounting basis consistent with
such financial statements.
4.5 No Material Change
Since March 31, 2001,
(a) there has been no material adverse change or any development involving
a prospective material adverse change in or affecting the condition, financial
or otherwise, or in the earnings, assets, business affairs or business prospects
of the Company, whether or not arising in the ordinary course of business;
(b) there have been no transactions entered into by the Company other than
those in the ordinary course of business, which are material with respect to the
Company; and
(c) there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
The Company has no material contingent obligations.
4.6 Environmental
Except as would not, singly or in the aggregate, reasonably be expected to have
a material adverse effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the Company,
(a) the Company is in compliance with all applicable Environmental Laws
(as defined below);
(b) the Company has all permits, authorizations and approvals required
under any applicable Environmental Laws and is in compliance with the
requirements of such permits authorizations and approvals;
(c) there are no pending or, to the best knowledge of the Company,
threatened Environmental Claims (as defined below) against the Company; and
(d) under applicable law, there are no circumstances with respect to any
property or operations of the Company that are reasonably likely to form the
basis of an Environmental Claim against the Company.
For purposes of this Agreement, the following terms shall have the following
meanings: "Environmental Law" means any United States (or other applicable
jurisdiction's) Federal, state, local or municipal statute, law, rule,
regulation, ordinance, code, policy or rule of common law and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the environment, health, safety
or any chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority. "Environmental Claims" means any and
all administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law.
4.7 No Defaults
The Company is not in violation of its certificate of incorporation or bylaws or
in material default in the performance or observance of any obligation,
agreement, covenant or condition contained in any material contract, indenture,
mortgage, loan agreement, deed, trust, note, lease, sublease, voting agreement,
voting trust, or other instrument or material agreement to which the Company is
a party or by which it may be bound, or to which any of the property or assets
of the Company is subject.
4.8 Labor Matters
No labor dispute with the employees of the Company exists or, to the best
knowledge of the Company, is imminent.
4.9 No Actions
There is no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or
affecting the Company which, singly or in the aggregate, might result in any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company, or which,
singly or in the aggregate, might materially and adversely affect the properties
or assets thereof or which might materially and adversely affect the
consummation of this Agreement, nor, to the best knowledge of the Company, is
there any reasonable basis therefor. The Company is not in default with respect
to any judgment, order or decree of any court or governmental agency or
instrumentality which, singly or in the aggregate, would have a material adverse
effect on the assets, properties or business of the Company.
4.10 Intellectual Property
(a) The Company, to the best of its knowledge in the course of diligent
inquiry, owns or is licensed to use all patents, patent applications,
inventions, trademarks, trade names, applications for registration of
trademarks, service marks, service xxxx applications, copyrights, know-how,
manufacturing processes, formulae, trade secrets, licenses and rights in any
thereof and any other intangible property and assets that are material to the
business of the Company as now conducted and as proposed to be conducted (in
this Agreement called the "Proprietary Rights"), or is seeking, or will seek, to
obtain rights to use such Proprietary Rights that are material to the business
of the Company as proposed to be conducted.
(b) The Company does not have any knowledge of, and the Company has not
given or received any notice of, any pending conflicts with or infringement of
the rights of others with respect to any Proprietary Rights or with respect to
any license of Proprietary Rights which are material to the business of the
Company.
(c) No action, suit, arbitration, or legal, administrative or other
proceeding, or investigation is pending, or, to the best knowledge of the
Company, threatened, which involves any Proprietary Rights, nor, to the best
knowledge of the Company, is there any reasonable basis therefor.
(d) The Company is not subject to any judgment, order, writ, injunction or
decree of any court or any Federal, state, local, foreign or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, or any arbitrator, and has not entered into or is not a party to any
contract which restricts or impairs the use of any such Proprietary Rights in a
manner which would have a material adverse effect on the use of any of the
Proprietary Rights.
(e) The Company has not received written notice of any pending conflict
with or infringement upon such third-party proprietary rights.
(f) The Company has not entered into any consent, indemnification,
forbearance to xxx or settlement agreement with respect to Proprietary Rights
other than in the ordinary course of business. No claims have been asserted by
any person with respect to the validity of the Company's ownership or right to
use the Proprietary Rights and, to the best knowledge of the Company, there is
no reasonable basis for any such claim to be successful.
(g) The Company has complied, in all material respects, with its
obligations relating to the protection of the Proprietary Rights which are
material to the business of the Company used pursuant to licenses.
(h) To the best knowledge of the Company, no person is infringing on or
violating the Proprietary Rights.
4.11 Permits
The Company possesses and is operating in compliance with all material licenses,
certificates, consents, authorities, approvals and permits from all state,
federal, foreign and other regulatory agencies or bodies necessary to conduct
the businesses now operated by it, and the Company has not received any notice
of proceedings relating to the revocation or modification of any such permit or
any circumstance which would lead it to believe that such proceedings are
reasonably likely which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely affect
the condition, financial or otherwise, or the earnings, assets, business affairs
or business prospects of the Company.
4.12 Due Execution, Delivery and Performance
(a) This Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms.
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement, including the sale, issuance and
delivery of the Shares, (i) have been duly authorized by all necessary corporate
action on the part of the Company, its directors and stockholders; (ii) will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any contract, indenture, mortgage, loan
agreement, deed, trust, note, lease, sublease, voting agreement, voting trust or
other instrument or agreement to which the Company is a party or by which it may
be bound, or to which any of the property or assets of the Company is subject;
(iii) will not trigger anti-dilution rights or other rights to acquire
additional equity securities of the Company; and (iv) will not result in any
violation of the provisions of the articles of incorporation or bylaws of the
Company or any applicable statute, law, rule, regulation, ordinance, decision,
directive or order.
4.13 Properties
The Company has good and marketable title to its properties, free and clear
of all material security interests, mortgages, pledges, liens, charges,
encumbrances and claims of record. The properties of the Company are, in the
aggregate, in good repair (reasonable wear and tear excepted), and suitable for
their respective uses. Any real property held under lease by the Company is held
under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the conduct of the business of the Company.
The Company owns or leases all such properties as are necessary to its business
or operations as now conducted.
4.14 Compliance
The Company has conducted and is conducting its business in compliance with all
applicable Federal, state, local and foreign statutes, laws, rules, regulations,
ordinances, codes, decisions, decrees, directives and orders, except where the
failure to do so would not, singly or in the aggregate, have a material adverse
effect on the condition, financial or otherwise, or on the earnings, assets,
business affairs or business prospects of the Company.
4.15 Security Measures
The Company takes security measures designed to enable the Company to assert
trade secret protection in its non-patented technology.
4.16 Contributions
To the best of the Company's knowledge, neither the Company nor any employee or
agent of the Company has made any payment of funds of the Company or received or
retained any funds in violation of any law, rule or regulation.
4.17 Use of Proceeds; Investment Company
The Company intends to use the proceeds from the sale of the Shares for working
capital and other general corporate purposes. The Company is not now, and after
the sale of the Shares under this Agreement and under all other agreements and
the application of the net proceeds from the sale of the Shares described in the
proceeding sentence will not be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
4.18 Prior Offerings
All offers and sales of capital stock of the Company before the date of this
Agreement were at all relevant times duly registered or exempt from the
registration requirements of the Securities Act and were duly registered or
subject to an available exemption from the registration requirements of the
applicable state securities or Blue Sky laws.
4.19 Taxes
The Company has filed all material tax returns required to be filed, which
returns are true and correct in all material respects, and the Company is not in
default in the payment of any taxes, including penalties and interest,
assessments, fees and other charges, shown thereon due or otherwise assessed,
other than those being contested in good faith and for which adequate
reserves have been provided or those currently payable without interest which
were payable pursuant to said returns or any assessments with respect thereto.
4.20 Other Governmental Proceedings
To the Company's knowledge, there are no rulemaking or similar proceedings
before any Federal, state, local or foreign government bodies that involve or
affect the Company, which, if the subject of an action unfavorable to the
Company, could involve a prospective material adverse change in or effect on the
condition, financial or otherwise, or in the earnings, assets, business affairs
or business prospects of the Company.
4.21 Non-Competition Agreements
To the knowledge of the Company, any full-time employee who has entered into any
non-competition, non-disclosure, confidentiality or other similar agreement with
any party other than the Company is neither in violation of nor is expected to
be in violation of that agreement as a result of the business currently
conducted or expected to be conducted by the Company or such person's
performance of his or her obligations to the Company. The Company has not
received written notice that any consultant or scientific advisor of the Company
is in violation of any non-competition, non-disclosure, confidentiality or
similar agreement.
4.22 Transfer Taxes
On the Closing Date, all stock transfer or other taxes (other than income taxes)
that are required to be paid in connection with the sale and transfer of the
Shares to be sold to the Purchasers under this Agreement will be, or will have
been, fully paid or provided for by the Company and all laws imposing such taxes
will be or will have been fully complied with.
4.23 Insurance
The Company maintains insurance of the type and in the amount that the Company
reasonably believes is adequate for its business, including, but not limited to,
insurance covering all real and personal property owned or leased by the Company
against theft, damage, destruction, acts of vandalism and all other risks
customarily insured against by similarly situated companies, all of which
insurance is in full force and effect.
4.24 Governmental/ Regulatory Consents
No registration, authorization, approval, qualification or consent with or
required by any court or governmental/ regulatory authority or agency is
necessary in connection with the execution and delivery of this Agreement or the
offering, issuance or sale of the Shares under this Agreement.
4.25 Securities and Exchange Commission Filings
The Company has timely filed with the Securities and Exchange Commission (the
"Commission") all documents required to be filed by the Company under the
Securities Exchange Act of 1934, as amended (the "Exchange Act.")
4.26 Additional Information
The Company represents and warrants that the information contained in the
following documents (the "Company Documents"), which will be provided to
Purchaser before the Closing, is or will be true and correct in all material
respects as of their respective final dates:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 2000.
(b) the Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended September 30, 2000, December 31, 2000 and March 31, 2001;
(c) the Company's Proxy Statement for its 2000 Annual Meeting of
Shareholders; and
(d) all other documents, if any, filed by the Company with the Commission
since May 14, 2001 pursuant to the reporting requirements of the Securities
Exchange Act.
4.27 Contracts
The contracts described in the Company Documents or incorporated by reference
therein are in full force and effect on the date hereof, except for contracts
the termination or expiration of which would not, singly or in the aggregate,
have a material adverse effect on the business, properties or assets of the
Company. Neither the Company nor, to the best knowledge of the Company, any
other party is in material breach of or default under any such contracts.
4.28 No Integrated Offering
Neither the Company, nor any of its affiliates, nor any person acting on its or
their behalf, has directly or indirectly made any offers or sales in any
security or solicited any offers to buy any security under circumstances that
would require registration under the Securities Act of the issuance of the
Shares to the Purchasers. The issuance of the Shares to the Purchasers will not
be integrated with any other issuance of the Company's securities (past, current
or future) for purposes of the Securities Act or any applicable rules of Nasdaq
(or of any national securities exchange on which the Company's Common Stock is
then traded). The Company will not make any offers or sales of any security
(other than the Shares) that would cause the offering of the Shares to be
integrated with any other offering of securities by the Company for purposes of
any registration requirement under the Securities Act or any applicable rules of
Nasdaq (or of any national securities exchange on which the Company's Common
Stock is then traded).
4.29 Listing of Shares
The Company agrees to promptly secure the listing of the Shares upon each
national securities exchange or automated quotation system upon which shares of
Common Stock are then listed and, so long as any Purchaser owns any of the
Shares, shall maintain such listing of all Shares. The Company has taken no
action designed to delist, or which is likely to have the effect of delisting,
the Common Stock from any of the national securities exchange or automated
quotation system upon which the shares of Common Stock are then listed.
4.30 No Manipulation of Stock
The Company has not taken and will not, in violation of applicable law, take any
action outside the ordinary course of business designed to or that might
reasonably be expected to cause or result in unlawful manipulation of the price
of the Common Stock to facilitate the sale or resale of the Shares.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS
5.1 Securities Law Representations and Warranties
Each Purchaser represents, warrants and covenants to the Company as follows:
(a) The Purchaser is knowledgeable, sophisticated and experienced in
making, and is qualified to make, decisions with respect to investments in
shares representing an investment decision like that involved in the purchase of
the Shares, including investments in securities issued by the Company, and has
requested, received, reviewed and considered all information it deems relevant
in making an informed decision to purchase the Shares.
(b) The Purchaser is acquiring the number of Shares set forth in Section 2
above in the ordinary course of its business and for its own account for
investment (as defined for purposes of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvement Act of 1976 and the regulations thereunder) only, and has no present
intention of distributing any of the Shares nor any arrangement or understanding
with any other persons regarding the distribution of such Shares within the
meaning of Section 2(11) of the Securities Act, other than as contemplated in
Section 7 of this Agreement.
(c) The Purchaser will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Shares except in compliance
with the Securities Act and the rules and regulations promulgated thereunder
(the "Rules and Regulations").
(d) The Purchaser has completed or caused to be completed the Stock
Certificate Questionnaire and the Registration Statement Questionnaire, attached
to this Agreement as Appendices I and II, for use in preparation of the
Registration Statement (as defined in Section 7.3 below), and the answers to the
Questionnaires are true and correct as of the date of this Agreement and will be
true and correct as of the effective date of the Registration Statement;
provided that the Purchasers shall be entitled to update such information by
providing notice thereof to the Company before the effective date of such
Registration Statement.
(e) The Purchaser has, in connection with its decision to purchase the
number of Shares set forth in Section 2 above, relied solely upon the Company
Documents and the representations and warranties of the Company contained in
this Agreement.
(f) The Purchaser is an "accredited investor" within the meaning of Rule
501 of Regulation D promulgated under the Securities Act.
5.2 Resales of Shares
(a) The Purchaser hereby covenants with the Company not to make any sale
of the Shares without satisfying the requirements of the Securities Act and the
Rules and Regulations, including, in the event of any resale under the
Registration Statement, the prospectus delivery requirements under the
Securities Act, and the Purchaser acknowledges and agrees that such Shares are
not transferable on the books of the Company pursuant to a resale under the
Registration Statement unless the certificate submitted to the transfer agent
evidencing the Shares is accompanied by a separate officer's certificate
(i) in the form of Appendix III to this Agreement;
(ii) executed by an officer of, or other authorized person designated
by, the Purchaser; and
(iii) to the effect that (A) the Shares have been sold in accordance
with the Registration Statement and (B) the requirement of delivering a current
prospectus has been satisfied.
(b) The Purchaser acknowledges that there may occasionally be times when
the Company determines, in good faith following consultation with its Board of
Directors or a committee thereof, the use of the prospectus forming a part of
the Registration Statement (the "Prospectus," as further defined in Section
7.3.1 below) should be suspended until such time as an amendment or supplement
to the Registration Statement or the Prospectus has been filed by the Company
and any such amendment to the Registration Statement is declared effective by
the Commission, or until such time as the Company has filed an appropriate
report with the Commission pursuant to the Exchange Act. The Purchaser hereby
covenants that it will not sell any Shares pursuant to the Prospectus during the
period commencing at the time at which the Company gives the Purchaser written
notice of the suspension of the use of the Prospectus and ending at the time the
Company gives the Purchaser written notice that the Purchaser may thereafter
effect sales pursuant to the Prospectus. The Company may, upon written notice to
the Purchasers, suspend the use of the Prospectus for up to thirty (30) days in
any 365-day period based on the reasonable determination of the Company's Board
of Directors that there is a significant business purpose for such
determination, such as pending corporate developments, public filings with the
SEC or similar events. The Company shall in no event be required to disclose the
business purpose for which it has suspended the use of the Prospectus if the
Company determines in its good faith judgment that the business purpose should
remain confidential. In addition, the Company shall notify each Purchaser (i) of
any request by the SEC
for an amendment or any supplement to such Registration Statement or any related
prospectus, or any other information request by any other governmental agency
directly relating to the offering, and (ii) of the issuance by the SEC of any
stop order suspending the effectiveness of such Registration Statement or of any
order preventing or suspending the use of any related prospectus or the
initiation or threat of any proceeding for that purpose.
(c) The Purchaser further covenants to notify the Company promptly of the
sale of any of its Shares, other than sales pursuant to a Registration Statement
contemplated in Section 7 of this Agreement or sales upon termination of the
transfer restrictions pursuant to Section 7.4 of this Agreement.
5.3 Due Execution, Delivery and Performance
(a) This Agreement has been duly executed and delivered by the Purchaser
and constitutes a valid and binding obligation of the Purchaser, enforceable
against the Purchaser in accordance with its terms.
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement have been duly authorized by all
necessary corporate action and will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Purchaser pursuant to, any
contract, indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust or other instrument or agreement to
which the Purchaser is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Purchaser is subject, nor will such
action result in any violation of the provisions of the charter or bylaws of the
Purchaser or any applicable statute, law, rule, regulation, ordinance, decision,
directive or order.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Purchasers in this Agreement and in the certificates for the Shares
delivered pursuant to this Agreement shall survive the execution of this
Agreement, the delivery to the Purchasers of the Shares being purchased and the
payment therefor.
7. FORM D FILING; REGISTRATION; COMPLIANCE WITH THE SECURITIES ACT; COVENANTS
7.1 Form D Filing; Registration of Shares
7.1.1 Registration Statement; Expenses
The Company shall:
(a) file in a timely manner a Form D relating to the sale of the
Shares under this Agreement, pursuant to Securities and Exchange Commission
Regulation D.
(b) as soon as practicable after the Closing Date, but in no event later
than the 30th day following the Closing Date, prepare and file with the
Commission a Registration Statement on Form S-3 (or, if the Company is
ineligible to use Form S-3, then on Form S-1) relating to the sale of the Shares
by the Purchasers from time to time on the Nasdaq National Market (or the
facilities of any national securities exchange on which the Company's Common
Stock is then traded) or in privately negotiated transactions (the "Registration
Statement");
(c) provide to Purchasers any information required to permit the sale of
the Shares under Rule 144A of the Securities Act;
(d) subject to receipt of necessary information from the Purchasers, use
its best efforts to cause the Commission to notify the Company of the
Commission's willingness to declare the Registration Statement effective on or
before 90 days after the Closing Date;
(e) notify Purchasers promptly upon the Registration Statement, and any
post-effective amendment thereto, being declared effective by the Commission;
(f) prepare and file with the Commission such amendments and supplements
to the Registration Statement and the Prospectus (as defined in Section 7.3.1
below) and take such other action, if any, as may be necessary to keep the
Registration Statement effective until the earlier of (i) the date on which the
Shares may be resold by the Purchasers without registration and without regard
to any volume limitations by reason of Rule 144(k) under the Securities Act or
any other rule of similar effect or (ii) all of the Shares have been sold
pursuant to the Registration Statement or Rule 144 under the Securities Act or
any other rule of similar effect;
(g) promptly furnish to the Purchasers with respect to the Shares
registered under the Registration Statement such reasonable number of copies of
the Prospectus, including any supplements to or amendments of the Prospectus, in
order to facilitate the public sale or other disposition of all or any of the
Shares by the Purchasers;
(h) during the period when copies of the Prospectus are required to be
delivered under the Securities Act or the Exchange Act, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of the
Exchange Act within the time periods required by the Exchange Act and the rules
and regulations promulgated thereunder;
(i) file documents required of the Company for customary Blue Sky
clearance in all states requiring Blue Sky clearance; provided, however, that
the Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so qualified or
has not so consented; and
(j) bear all expenses (other than the expenses of a Purchaser's attorney,
accountant or other consultant retained by a Purchaser) in connection with the
procedures in paragraphs (a) through (i) of this Section 7.1.1 and the
registration of the Shares pursuant to the Registration Statement.
7.1.2 Delay in Effectiveness of Registration Statement
In the event that the Registration Statement is not declared effective on or
before the 90th day following the Closing Date (the "Penalty Date"), the Company
shall pay to each Purchaser liquidated damages in an amount equal to 0.25% of
the total purchase price of the Shares purchased by such Purchaser pursuant to
this Agreement for each week after the Penalty Date that the Registration
Statement is not declared effective.
7.2 Transfer of Shares After Registration
Each Purchaser agrees that it will not effect any disposition of the Shares or
its right to purchase the Shares that would constitute a sale within the meaning
of the Securities Act, except as contemplated in the Registration Statement
referred to in Section 7.1 or as otherwise permitted by law, and that it will
promptly notify the Company of any changes in the information set forth in the
Registration Statement regarding the Purchaser or its plan of distribution.
7.3 Indemnification
For the purpose of this Section 7.3, the term "Registration Statement" shall
include any preliminary or final prospectus, exhibit, supplement or amendment
included in or relating to the Registration Statement referred to in Section
7.1.
7.3.1 Indemnification by the Company
The Company agrees to indemnify and hold harmless each of the Purchasers and
each person, if any, who controls any Purchaser within the meaning of the
Securities Act, against any losses, claims, damages, liabilities or expenses,
joint or several, to which such Purchasers or such controlling person may become
subject, under the Securities Act, the Exchange Act, or any other federal or
state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Company, which consent shall not be unreasonably withheld),
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof as contemplated below) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, including the Prospectus, financial statements and
schedules, and all other documents filed as a part thereof, as amended at the
time of effectiveness of the Registration Statement, including any information
deemed to be a part thereof as of the time of effectiveness pursuant to
paragraph (b) of Rule 430A, or pursuant to Rule 434, of the Rules and
Regulations, or the Prospectus, in the form first filed with the Commission
pursuant to Rule 424(b) of the Regulations, or filed as part of the Registration
Statement at the time of effectiveness if no Rule 424(b) filing is required (the
"Prospectus"), or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state in any of them a material
fact required to be stated therein or necessary to make the statements in any of
them, in light of the circumstances under which they were made, not misleading,
or arise out of or are based in whole or in part on any inaccuracy in the
representations and warranties of the Company contained in this Agreement, or
any failure of the Company to perform its obligations under this Agreement or
under law, and will reimburse each Purchaser and each such controlling person
for any legal and other expenses as such expenses are reasonably incurred by
such Purchaser or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided,
however, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage, liability or expense arises out of or is based
upon (i) an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, the Prospectus or any amendment or
supplement of the Registration Statement or Prospectus in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Purchaser expressly for use in the Registration Statement or the Prospectus,
or (ii) the failure of such Purchaser to comply with the covenants and
agreements contained in Sections 5.2 or 7.2 of this Agreement respecting resale
of the Shares, or (iii) the inaccuracy of any representations made by such
Purchaser in this Agreement or (iv) any untrue statement or omission of a
material fact required to make such statement not misleading in any Prospectus
that is corrected in any subsequent Prospectus that was delivered to the
Purchaser before the pertinent sale or sales by the Purchaser.
7.3.2 Indemnification by the Purchaser
Each Purchaser will severally and not jointly indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of the Securities Act, against any losses, claims, damages, liabilities or
expenses to which the Company, each of its directors, each of its officers who
signed the Registration Statement or controlling person may become subject,
under the Securities Act, the Exchange Act, or any other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Purchaser, which consent shall not be unreasonably withheld)
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof as contemplated below) arise out of or are based upon (i) any
failure on the part of such Purchaser to comply with the covenants and
agreements contained in Sections 5.2 or 7.2 of this Agreement respecting the
sale of the Shares or (ii) the inaccuracy of any representation made by such
Purchaser in this Agreement or (iii) any untrue or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement to the Registration Statement or Prospectus, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Purchaser expressly
for use therein; provided, however, that the Purchaser shall not be liable for
any such untrue or alleged untrue statement or omission or alleged omission of
which the Purchaser has delivered to the Company in writing a correction before
the occurrence of the transaction from which such loss was incurred, and the
Purchaser will reimburse the Company, each of its directors, each of its
officers who signed the Registration Statement or controlling person for any
legal and other expense reasonably incurred by the Company, each of its
directors, each of its officers who signed the Registration Statement or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action.
7.3.3 Indemnification Procedure
(a) Promptly after receipt by an indemnified party under this Section 7.3
of notice of the threat or commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 7.3, promptly notify the indemnifying party in writing of the
claim; but the omission so to notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party for contribution
or otherwise under the indemnity agreement contained in this Section 7.3 or to
the extent it is not prejudiced as a result of such failure.
(b) In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with all other indemnifying parties similarly
notified, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be a conflict
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it or other indemnified parties that are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 7.3 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless:
(i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel,
approved by such indemnifying party representing all of the indemnified parties
who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of action, in each of which cases
the reasonable fees and expenses of counsel shall be at the expense of the
indemnifying party. Notwithstanding the provisions of this Section 7.3, the
Purchaser shall not be liable for any indemnification obligation under this
Agreement in excess of the amount of gross proceeds received by the Purchaser
from the sale of the Shares.
7.3.4 Contribution
If the indemnification provided for in this Section 7.3 is required by its terms
but is for any reason held to be unavailable to or otherwise insufficient to
hold harmless an indemnified party under this Section 7.3 in respect to any
losses, claims, damages, liabilities or expenses referred to in this Agreement,
then each applicable indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of any losses, claims, damages,
liabilities or expenses referred to in this Agreement
(a) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Purchaser from the sale of Common Stock or
(b) if the allocation provided by clause (a) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (a) above but the relative fault of the
Company and the Purchaser in connection with the statements or omissions or
inaccuracies in the representations and warranties in this Agreement that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations.
The respective relative benefits received by the Company on the one hand and
each Purchaser on the other shall be deemed to be in the same proportion as the
amount paid by such Purchaser to the Company pursuant to this Agreement for the
Shares purchased by such Purchaser that were sold pursuant to the Registration
Statement bears to the difference (the "Difference") between the amount such
Purchaser paid for the Shares that were sold pursuant to the Registration
Statement and the amount received by such Purchaser from such sale. The relative
fault of the Company and each Purchaser shall be determined by reference to,
among other things, whether the untrue or alleged statement of a material fact
or the omission or alleged omission to state a material fact or the inaccurate
or the alleged inaccurate representation or warranty relates to information
supplied by the Company or by such Purchaser and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 7.3.3, any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in
Section 7.3.3 with respect to the notice of the threat or commencement of any
threat or action shall apply if a claim for contribution is to be made under
this Section 7.3.4; provided, however, that no additional notice shall be
required with respect to any threat or action for which notice has been given
under Section 7.3 for purposes of indemnification. The Company and each
Purchaser agree that it would not be just and equitable if contribution pursuant
to this Section 7.3 were determined solely by pro rata allocation (even if the
Purchaser were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this paragraph. Notwithstanding the provisions of this Section 7.3, no
Purchaser shall be required to contribute any amount in excess of the amount by
which the Difference exceeds the amount of any damages that such Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Purchasers' obligations to contribute pursuant
to this Section 7.3 are several and not joint.
7.4 Termination of Conditions and Obligations
The restrictions imposed by Section 5 or this Section 7 upon the transferability
of the Shares shall cease and terminate as to any particular number of the
Shares upon the passage of two years
from the Closing Date or at such time as an opinion of counsel satisfactory in
form and substance to the Company shall have been rendered to the effect that
such conditions are not necessary in order to comply with the Securities Act.
7.5 Information Available
From the date of this Agreement through the date the Registration Statement
covering the resale of Shares owned by any Purchaser is no longer effective, the
Company will furnish to such Purchaser:
(a) as soon as practicable after available (but in the case of the
Company's Annual Report to Shareholders, within 90 days after the end of each
fiscal year of the Company), one copy of
(i) its Annual Report to Shareholders (which Annual Report shall
contain financial statements audited in accordance with generally accepted
accounting principles by a national firm of certified public accountants);
(ii) if not included in substance in the Annual Report to
Shareholders, its Annual Report on Form 10-K;
(iii) its quarterly reports on Form 10-Q; and
(iv) a full copy of the particular Registration Statement covering the
Shares (the foregoing, in each case, excluding exhibits);
(b) upon the request of the Purchaser, a reasonable number of copies of
the Prospectus to supply to any other party requiring the Prospectus.
7.6 Rule 144 Information
Until the earlier of (i) the date on which the Shares may be resold by the
Purchasers without registration and without regard to any volume limitations by
reason of Rule 144(k) under the Securities Act or any other rule of similar
effect or (ii) all of the Shares have been sold pursuant to the Registration
Statement or Rule 144 under the Securities Act or any other rule of similar
effect, the Company shall file all reports required to be filed by it under the
Securities Act, the Rules and Regulations and the Exchange Act and shall take
such further action to the extent required to enable the Purchasers to sell the
Shares pursuant to Rule 144 under the Securities Act (as such rule may be
amended from time to time).
7.7 Stock Option Matters and Prohibition on Toxics
(a) To the extent the Company has not already done so, the Company shall,
within thirty (30) days of the Closing Date, adopt such amendments to, with
respect to (i) and (ii) below, the Company's stock option plans and By-laws,
and, with respect to (iii) and (iv) below, the Company's By-laws (together, the
"Stock Option Plan and By-law Amendments") to provide that, unless approved by
the holders of a majority of the shares present and entitled to vote at a duly
convened meeting of shareholders, the Company shall not:
(i) grant any stock options with an exercise price that is less than
100% of the fair market value of the underlying stock on the date of grant;
(ii) reduce the exercise price of any stock option granted under any
existing or future stock option plan;
(iii) sell or issue any security of the Company convertible,
exercisable or exchangeable into shares of Common Stock, having a conversion,
exercise or exchange price per share which is subject to downward adjustment
based on the market price of the Common Stock at the time of conversion,
exercise or exchange of such security into Common Stock (except for appropriate
adjustments made to give effect to any stock splits or stock dividends); or
(iv) enter into (a) any equity line or similar agreement or
arrangement; or (b) any agreement to sell Common Stock (or any security
convertible, exercisable or exchangeable into shares of Common Stock ("Common
Stock Equivalent")) at a per share price (or, with respect to a Common Stock
Equivalent, at a conversion, exercise or exchange price, as the case may be
("Equivalent Price")) that is fixed after the execution date of the agreement,
whether or not based on any predetermined price-setting formula or calculation
method. Notwithstanding the foregoing, however, a price protection clause shall
be permitted in an agreement for sale of Common Stock or Common Stock
Equivalent, if such clause provides for an adjustment to the price per share of
Common Stock or, with respect to a Common Stock Equivalent, to the Equivalent
Price (provided that such price or Equivalent Price is fixed on or before the
execution date of the agreement) (the "Fixed Price") in the event that the
Company, during the period beginning on the date of the agreement and ending no
later than 90 days after the closing date of the transaction, sells shares of
Common Stock or Common Stock Equivalent to another investor at a price or
Equivalent Price, as the case may be, below the Fixed Price.
(v) The Stock Option Plan and By-law Amendments may not be further
amended or repealed without the affirmative vote of the holders of a majority of
the shares present and entitled to vote at a duly convened meeting of
shareholders. Upon the adoption of the Stock Option Plan and By-law Amendments,
the Company shall promptly furnish a copy of such amendments to the Purchasers.
The Company agrees that, prior to the adoption of the Stock Option Plan and
By-law Amendments by all necessary corporate action of the Company as described
above, the Company shall not conduct any of the actions specified in (i), (ii),
(iii) or (iv) above of this Section 7.7.
8. LEGAL FEES AND OTHER TRANSACTION EXPENSES
8.1.1 [For the Purchaser known as State of Wisconsin Investment Board]: At
the Closing, the Company agrees to pay a flat fee of $5,000 to the State of
Wisconsin Investment Board for their legal and other transaction expenses
(whether internal or external) arising in connection with the transactions
contemplated by this Agreement.
[For the remaining Purchasers listed on Schedule "A" attached hereto and
made a part hereof.]: The Company and each Purchaser shall be responsible for
their own legal and other transaction expenses (whether internal or external)
arising in connection with the transactions contemplated by this Agreement.
9. BROKER'S FEE
The Purchasers acknowledge that the Company intends to pay to X.X. Xxxxxxxxxx &
Co., Inc., the placement agent, a fee in respect of the sale of the Shares to
certain of the Purchasers that will consist of $200,000 and a five-year warrant
to purchase for $6.25 per share up to that number of shares of the Company's
Common Stock as equals 10% of the Shares purchased pursuant to this Agreement.
The Purchasers also acknowledge that the Company intends to pay to Xxxxxxxx &
Xxxxx LLC a cash fee equal to 5% of the amount raised through the sale of the
Shares to certain of the Purchasers affiliated with Xxxxxxxx & Xxxxx LLC. Each
of the parties to this Agreement hereby represents that, on the basis of any
actions and agreements by it, there are no other brokers or finders entitled to
compensation in connection with the sale of the Shares to the Purchasers. The
Company shall indemnify and hold harmless the Purchasers from and against all
fees, commissions or other payments owing by the Company to X.X. Xxxxxxxxxx &
Co., Inc. and Xxxxxxxx & Xxxxx LLC or any other person or firm acting on behalf
of the Company hereunder, and each Purchaser, severally and not jointly, shall
indemnify and hold harmless the Company from and against all fees, commissions
or other payments owing by such Purchaser to any person or firm acting on behalf
of such Purchaser.
10. NOTICES
All notices, requests, consents and other communications under this Agreement
shall be in writing, shall be mailed by first-class registered or certified
airmail, confirmed facsimile or nationally recognized overnight express courier
postage prepaid, and shall be delivered as addressed as follows:
(a) if to the Company, to:
Ultralife Batteries, Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
or to such other person at such other place as the Company shall designate to
the Purchaser in writing; and
(b) if to a Purchaser, at its address as set forth on the signature page
to this Agreement, or at such other address or addresses as may have been
furnished to the Company in writing.
Such notice shall be deemed effectively given upon confirmation of receipt by
facsimile, one business day after deposit with such overnight courier or three
days after deposit of such registered or certified airmail with the U.S. Postal
Service, as applicable.
11. MODIFICATION; AMENDMENT
This Agreement may not be modified or amended except pursuant to an instrument
in writing signed by the Company and each of the Purchasers.
12. TERMINATION
This Agreement may be terminated as to any Purchaser, at the option of such
Purchaser, if the Closing has not occurred on or before thirty (30) days from
the date of this Agreement.
13. HEADINGS
The headings of the various sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed to be part of this
Agreement.
14. SEVERABILITY
If any provision contained in this Agreement should be held to be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained in this Agreement shall not
in any way be affected or impaired thereby.
15. GOVERNING LAW; JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of
the state of Delaware and the federal law of the United States of America. The
parties hereto hereby submit to the jurisdiction of the courts of the State of
Wisconsin, or of the United States of America sitting in the State of Wisconsin,
over any action, suit, or proceeding arising out of or relating to this
Agreement. Nothing herein shall affect the right of the Purchaser to serve
process in any manner permitted by law or limit the right of the Purchaser to
bring proceedings against the Company in the competent courts of any other
jurisdiction or jurisdictions.
16. NO CONFLICTS OF INTEREST.
The Company represents, warrants, and covenants that, to the best of its
knowledge, no trustee or employee of the State of Wisconsin Investment Board
identified on the attached list, either directly or indirectly (a) currently
holds, except as may be specifically set forth below, a personal interest in the
Company or any of its affiliates (together, the "Entity") or the Entity's
property or securities, or (b) will, in connection with the investment made
pursuant to this Agreement, receive (i) a personal interest in the Entity or the
Entity's property or securities or (ii) anything of substantial economic value
for his or her private benefit from the Entity or anyone acting on its behalf.
As to ownership of an interest in the Entity's publicly traded securities,
"knowledge" hereunder is based on an examination of record holders of the
Entity's securities and actual knowledge of the undersigned.
17. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one instrument, and shall become effective when one or more counterparts
have been signed by each party to this Agreement and delivered to the other
parties.
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
ULTRALIFE BATTERIES, INC.
BY: /s/ Xxxxxx X. Xxxxxxxx, Vice President of Finance
PURCHASERS
The Purchasers set forth on SCHEDULE "A" attached
hereto have executed this Share Purchase Agreement.
SCHEDULE A
ULTRALIFE BATTERIES, INC. SHARE PURCHASE AGREEMENT
JULY 19, 2001
1. State of Wisconsin Investment Board 670,000 shares
Lake Terrace
000 Xxxx Xxxxxx Xxxxxx
XX Xxx 0000
Xxxxxxx, XX 00000
2. Xxxxxxxx & Xxxxx, LLC, as agent for 400,000 shares
those Investors set forth on Schedule 1
attached hereto - shares to be issued to the
Investors set forth on Schedule 1
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
3. Fraser Management Associates, as agent for 20,000 shares
those Investors set forth on Schedule 2
attached hereto - shares to be issued to the
Investors set forth on Schedule 2
Box 494
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
SCHEDULE 1
XXXXXXXX & XXXXX, LLC
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000-000-0000 Fax: 000-000-0000
Number of
Purchaser Name and Address Shares
-------------------------- ------
First Trust as trustee for 22,000
Xxxxxx Xxxxx SERP
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Xxxxx, Xxxx & Xxxxx as trustee for 10,000
Xxxxxx Xxxxx XXX
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Xxxxx, Xxxx & Xxxxx as trustee for 16,000
Xxxxxx Xxxxxxxx Sep XXX
000 Xxxxxxx Xxxxx
Xxxxxxxxx Xxxx, XX 00000
Xxxxx, Xxxx & Xxxxx as trustee for 4,000
Xxxxxxx Xxxxxx XXX
0 Xxxxxxx Xxx Xxxxx
Xxxxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxxxx 16,000
0000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxxx & 16,000
Xxxxxxxx Xxxxxxxx
0000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Schedule 1
(Continued)
Number of
Purchaser Name and Address Shares
-------------------------- ------
Xxxxxx X. Xxxxxx 16,000
00 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx, Xxxx & Xxxxx as trustee for 4,000
Xxxx X. Xxxxxxx XXX
00 Xxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Xxxxx, Xxxx & Xxxxx as trustee for 8,000
Xxxxx Xxxxxxxx XXX
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxxx Xxxxxxxxxx 8,000
000X Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Daeg Partners, LLP 92,000
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Xxxxx Xxxxxxx 4,000
0 Xxxxxxx Xxxxx
Xxxxxx Xxx Xxx, XX 00000
Tirone E. Xxxxx, M.D. 12,000
000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx XX0 0X0
Xxxxxx
Xxxxx, Xxxx & Xxxxx as trustee for 8,000
Xxxx X. Xxxxx, XXX
000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Schedule 1
(continued)
Number of
Purchaser Name and Address Shares
-------------------------- ------
Xxxxx, Xxxx & Xxxxx as trustee for 8,000
Xxxx Xxxxxx XXX
00 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx, Xxxx & Xxxxx as trustee for 8,000
Xxxx Xxxxxxxxxx XXX
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx, Xxxx & Xxxxx as trustee for 4,000
Xxxxxx Xxxxxxxxx XXX
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxx 8,000
000 Xxxxxxxxxxx Xxxxx
Xxxxxxx Xxxxxxx X0X 0X0
Xxxxxx
Xxxxxx X. Xxxxxxxxxx 8,000
Living Trust dtd 6/7/96
00 Xxxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Ingolstadt Ltd. BVI 16,000
c/o Kimelman & Xxxxx LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxxxx 4,000
00 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Schedule 1
(continued)
Number of
Purchaser Name and Address Shares
-------------------------- ------
Xxxxx, Xxxx & Xxxxx as trustee for Xxxxxxx Xxxxxxx XXX 4,000
000 Xxxxxxx Xxxx Xxxx
Xxx Xxxx, XX 00000
Xxxxxxx X. May 4,000
0 Xxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxx, Xxxx & Xxxxx as trustee for 16,000
Xxxxxxxxxx Xxxxxx XXX
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Xxxx Xxxxxxx 4,000
000 Xxx Xxxxxxxx Xxxx
Xxx. #00X
Xxxx Xxx, XX 00000
1004050 Ontario Inc. 4,000
c/o Xxxxxxx Xxxxx
000 Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxxxxx X0X 0X0
Xxxxxx
Xxxxxx Xxxxxx 8,000
x/x Xxxxx XxXxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxx X. Xxxxxx 16,000
Revocable Trust dtd 7/22/92
0000 Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxx Xxxxx Xxxxx, XX 00000
Schedule 1
(continued)
Number of
Purchaser Name and Address Shares
-------------------------- ------
Xxxxxxxx X. Xxxxxx 4,000
1995 Charitable Lead Trust
Xxxxx X. Xxxxxxx ttee
0000 Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxx 0
Xxxxx Xxxxx Xxxxx, XX 00000
The Remmer Family Foundation 4,000
c/o Xxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxx 0
Xxxxx Xxxxx Xxxxx, XX 00000
Xxxxx, Xxxx & Xxxxx as trustee for 8,000
Xxxxxxx Xxxxxx XXX
000 Xxxx 00xx Xxxxxx
Xxx. #0X
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxxxxxxxx & 8,000
Xxx Xxxxxxxxxxx
0000 X. Xxxxxxxxx Xxx
Xxxxxx, XX 00000
Xxxxx, Xxxx & Xxxxx as trustee for 4,000
Xxxx Xxxxxxx XXX
000 Xxxx 00xx Xxxxxx
Xxx. #0X
Xxx Xxxx, XX 00000
Xxxxx, Xxxx & Xxxxx as trustee for 16,000
Xxxxxxx X. Xxxxxxxx XXX
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxx Tough 4,000
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxxx X0X 0X0
Xxxxxx
Xxxxx, Xxxx & Xxxxx as trustee for 4,000
Xxxx Xxxx XXX
000 00xx Xxxxxx
Xxxxxxx, XX 00000
Schedule 2
Purchaser Name and Address Number of Shares
-------------------------- ----------------
Xxxxxxx X. Xxxxxxxx 10,000
X.X. Xxx 000
Xxxxx-Xxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxx 5,000
000 X. Xxxxxxx Xxxx Apr. 1404
Xxxxx Xxxxxx, XX 00000
Xxxx X. Xxxxxx 5,000
X.X. Xxx 000000
Xxxxxxxxx, XX 00000-0000
EXHIBIT A
[LOGO OMITTED]
XXXXXX XXXXXXX & XXXXX LLP
--------------------------
ATTORNEYS AND COUNSELORS
July 19, 2001
To the Purchasers of Common Stock
of Ultralife Batteries, Inc. Listed on
Exhibit A Attached Hereto
Ladies and Gentlemen:
We have acted as counsel to Ultralife Batteries, Inc., a Delaware corporation
(the "Company"), in connection with the issuance and sale to you of 1,090,000
shares of the Company's Common Stock (the "Shares") pursuant to the Ultralife
Batteries, Inc. Share Purchase Agreement dated as of July 19, 2001 between the
Company and each of the Purchasers listed on Exhibit A hereto (the "Agreement").
We are rendering this opinion pursuant to Section 3(d)(iii) of the Agreement.
Except as otherwise defined herein, capitalized terms used but not defined
herein shall have the respective meanings given to them in the Agreement.
In connection with this opinion, we have examined and relied upon the
representations and warranties as to factual matters contained in and made
pursuant to the Agreement by the various parties as well as contained in
certificates of officers of the Company, and originals or copies, certified to
our satisfaction, of such records, documents, certificates, opinions, memoranda
and other instruments as in our judgment are necessary or appropriate to enable
us to render the opinions expressed below. Where we render an opinion "to the
best of our knowledge" or concerning an item "known to us" or our opinion
otherwise refers to our knowledge, it is based solely upon (i) an inquiry of
attorneys within this firm who have performed legal services for the Company and
(ii) such other investigation, if any, that we specifically set forth herein.
Based upon and reliance on the foregoing, and subject to the assumptions and
qualifications hereinafter set forth, we are of the opinion that:
1. The Company is a corporation duly incorporated and, as of June 26,
2001, validly existing and in good standing under the laws of the State of
Delaware. The Company is duly licensed or qualified and in good standing as a
foreign corporation authorized to do business in all jurisdictions where the
character of the property owned or leased by it, or the nature of the activities
conducted by it, make such licensing or qualification necessary, except where
failure to so qualify would not have a material adverse effect on the Company's
results of operations. As
XXXXXX XXXXXXX & XXXXX LLP
--------------------------
ATTORNEYS AND COUNSELORS
Page 2
of June 18, 2001, the Company is duly qualified to do business and in good
standing as a foreign corporation under the laws of the State of New York. The
foregoing opinions are given solely on the basis of certificates of appropriate
state agencies in the states of Delaware and New York. In determining
appropriate state agencies we have relied, without further inquiry, on the
advice of CT Corporation System and Accelerated Information Document & Filing,
Inc. as to those agencies from which certificates should be received. The
foregoing opinion is limited to the meaning ascribed to such certificates by
each applicable state agency.
2. The Company has the corporate power and authority to own or lease its
properties and operate its business as now conducted, and to execute, deliver
and perform its obligations under the Agreement.
3. The Company's execution and delivery of, and its performance of its
obligations under the Agreement have been duly authorized by all necessary
corporate action on the part of the Company, and the Agreement has been duly
executed and delivered by the Company.
4. The Agreement is the valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
5. The Company's execution and delivery of, and the Company's performance
of its obligations under, the Agreement do not on this date (a) conflict with or
result in a breach of any provision of the Restated Certificate of
Incorporation, as amended, or By-laws, as amended, of the Company, or (b)
violate any existing law, rule, regulation or ordinance applicable to the
Company and affecting the enforceability of the Agreement, or (c) to our actual
knowledge without independent investigation (i) result in a breach of any of the
provisions of, or constitute a default under, or result in the creation or
imposition of a lien, charge or encumbrance upon any of the assets of the
Company pursuant to any agreement or instrument to which the Company is a party
or by which the Company or its assets is bound (assuming the laws of each
jurisdiction governing such agreement or instrument are the same as the laws of
the State of New York) or (ii) violate any existing judgment, order, writ,
injunction or decree expressly applicable to the Company.
6. To our actual knowledge, without independent investigation, there is no
action, suit or proceeding pending, or overtly threatened by written
communication, against the Company or expressly affecting it or its assets,
where an unfavorable decision, ruling or finding would materially adversely
affect the validity or enforceability of the Agreement, or the business,
operations, properties, or financial condition of the Company except as
disclosed in the Schedule of Exceptions to the Agreement and in the Company's
Form 10-Q for the quarter ended March 31, 2001.
7. As of the date hereof, the authorized capital stock of the Company
consists of 40,000,000 shares of Common Stock and 1,000,000 shares of Preferred
Stock. Relying solely on the certification of American Stock Transfer & Trust
Company, the issued and outstanding capital stock of the Company as of June 20,
2001 consists of 11,460,936 shares of Common
XXXXXX XXXXXXX & XXXXX LLP
--------------------------
ATTORNEYS AND COUNSELORS
Page 3
Stock and no shares of Preferred Stock. The sale, issuance and delivery of the
Shares pursuant to the Agreement have been duly authorized by all necessary
corporate action on the part of the Company. When issued, delivered and paid for
in accordance with the terms of the Agreement, the Shares will be validly
issued, fully paid and non-assessable and free of any pre-emptive or similar
rights.
8. Assuming the accuracy of the representations and warranties of the
Purchasers set forth in the Agreement, the offer and sale of the Shares by the
Company to the Purchasers is exempt from the registration requirements of the
Securities Act, subject to the timely filing of a Form D pursuant to Securities
and Exchange Commission Regulation D, and the qualification and registration
requirements of all applicable state securities and "blue sky" laws.
9. All consents, approvals, authorizations, or orders of, and filings,
registrations and qualifications with or required by any regulatory or
governmental body or authority in the United States necessary for the issuance
by the Company of the Shares as contemplated by the Agreement, have been made or
obtained, except for (i) the filing of a Form D pursuant to Securities and
Exchange Commission Regulation D, (ii) the filing of a Form D with the
Securities Commissioners of those states where the Purchasers reside, and (iii)
the filing of a Notice of Listing of Additional Shares with NASDAQ.
The foregoing opinions are subject to the following qualifications and are
based upon the following further assumptions:
(A) We have assumed, without any investigation, with respect to each
party thereto other than the Company (i) the full capacity, power
and authority of such party to execute, deliver and perform the
Agreement, (ii) the due execution and delivery of the Agreement by
such party, and (iii) the legality, validity and binding effect of
the Agreement with respect to such party.
(B) We have assumed without any investigation the genuineness of all
signatures, the legal capacity of natural persons, the authenticity
and completeness of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as
certified, photostatic or telestatic copies, and the authenticity
and completeness of the originals of such copies.
(C) The foregoing opinions are subject to the effect of (i) applicable
bankruptcy, reorganization, insolvency, moratorium and/or similar
laws relating to or affecting the rights of creditors generally,
including without limitation fraudulent conveyance provisions under
applicable laws and (ii) equitable, constitutional and public policy
limitations (regardless of whether considered in a proceeding in
equity or at law).
(D) With respect to the performance by the Company of its obligations
under the Agreement with respect to the registration of the Shares,
we have assumed compliance by the Company at the time of such
performance with the registration requirements of the Securities Act
and with applicable state securities laws, and we disclaim any
opinion as to the validity or enforceability of the indemnification
provisions of the Agreement.
(E) We express no opinion with respect to the effect of any law other
than the law of the State of New York, the Delaware General
Corporation Law and the Federal law of the United
XXXXXX XXXXXXX & XXXXX LLP
--------------------------
ATTORNEYS AND COUNSELORS
Page 4
States, irrespective of any choice of law provisions which may be
contained in the Agreement.
This opinion is rendered solely to you and is intended solely for your
benefit in connection with the transaction described in this opinion, and may
not be relied upon, referred to or otherwise used by you for any other purpose,
or by any other person or entity.
Very truly yours,
/s/ XXXXXX, XXXXXXX & XXXXX LLP
EXHIBIT B
SCHEDULE OF EXCEPTIONS
SECTION 4.6 Environmental.
As disclosed in the Company's Form 10-K for the fiscal year ended June 30,
2000, in connection with the Company's purchase/lease of its Newark, New York
facility, a consulting firm performed a Phase I and II Environmental Site
Assessment which revealed the existence of contaminated soil around one of the
Company's buildings. The Company retained an engineering firm which estimated
that the cost of remediation should be in the range of $230,000; however, there
can be no assurance that this will be the case. In February 1998, the Company
entered into an agreement with a third party which provided that the Company and
the third party would retain an environmental consulting firm to verify the
existence of the contaminants and further delineate the nature of the
environmental concern. A voluntary investigation work plan of the site to fully
characterize the nature and extent of the contamination that was found during a
Phase II investigation is underway. The third party has agreed to reimburse the
Company for 50% of the cost associated with remediating the environmental
concern. There can be no assurance that the Company will not face claims
resulting in substantial liability which would have a material adverse effect on
the Company's business, financial condition and results of operations in the
period in which such claims are resolved.
Section 4.9 No Action.
As disclosed in the Company's Report on Form 10-Q for the quarter ended
March 31, 2001, in August 1998, the Company, its Directors, and certain
underwriters were named as defendants in a complaint filed in the United States
District Court for the District of New Jersey by certain shareholders,
purportedly on behalf of a class of shareholders, alleging that the defendants,
during the period April 30, 1998 through June 12, 1998, violated various
provisions of the federal securities laws in connection with an offering of
2,500,000 shares of the Company's Common Stock. The complaint alleged that the
Company's offering documents were materially incomplete, and as a result
misleading, and that the purported class members purchased the Company's Common
Stock at artificially inflated prices and were damaged thereby. Upon motion made
on behalf of the Company, the Court dismissed the shareholder action, without
prejudice, allowing the complaint to be refiled. The shareholder action was
subsequently refiled, asserting substantially the same claims as in the prior
pleading. The Company again moved to dismiss the complaint. By Opinion and Order
dated September 28, 2000, the Court dismissed the action, this time with
prejudice, thereby barring plaintiffs from any further amendments to their
complaint and directing that the case be closed. Plaintiffs filed a Notice of
Appeal to the Third Circuit Court of Appeals, the parties submitted their
briefs, and oral argument, originally scheduled for the week of May 21, 2001,
has been suspended pending further discussions with the Court. The Company
believes that the litigation is without merit and will continue to defend it
vigorously. The amount of alleged damages, if any, cannot be quantified, nor can
the outcome of this litigation be predicted. Accordingly, management cannot
determine whether the ultimate resolution of this litigation could have a
material adverse effect on the Company's financial position and results of
operations.
EXHIBIT C
TRUSTEES OF THE STATE OF WISCONSIN INVESTMENT BOARD
Xxx X. Xxxxxx Xxxxx XxXxxxxxx
Xxxx Xxxxxxxx III Xxxxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxxx Xxxxx X. Xxxxxx
Xxxxxx Xxxxx Xxxxxxxx Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxx
RELEVANT EMPLOYEES OF THE STATE OF WISCONSIN INVESTMENT BOARD
All Transactions
Xxxxxxxx Xxxxxx Executive Director
Xxxxxx Xxxxxx Chief Investment Officer - Equities
Xxxxx Xxxxxxx Chief Legal Counsel
Xxxxxx Xxx Assistant Legal Counsel
Xxxxxxx Xxxxxxx Assistant Legal Counsel
Xxx Xxxxxx Chief Investment Officer - Fixed Income
For Real Estate Transactions
Xxxxxx Xxxxxxxxx Investment Director
Xxxxx Xxxxxxxxx Assistant Investment Director
Xxxx Xxxxxxxxxxx Investment Officer
Xxxxx Xxxxxxxxxx Investment Officer
For Private Placement Loans
Xxx Xxxxxx Investment Director
Xxx Xxxxxxxxx Portfolio Manager
Xxxxxx Xxxxxxx Portfolio Manager
For Private Placement Funds & Equity Investments
Xxx Xxxxxx Investment Director
Xxx Xxxxxxxxxxx Portfolio Manager
Xxxxxx Xxxxx Assistant Portfolio Manager
Xxx Xxxxx Investment Officer
or Non-traditional Investments
Xxxx Xxxxxx Investment Director
Xxx Xxxxx Securities Analyst
For Small Cap Portfolio Direct Placements
Xxxx Xxxxxx Investment Director
Xxxx Xxxxxxx Assistant Portfolio Manager
Xxxxxx Xxxxxx Securities Analyst
Xxxx Xxxxxxx Securities Analyst
Xxx Xxxx Securities Analyst
APPENDIX I
ULTRALIFE BATTERIES, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of the Agreement, please provide us with the following
information:
1. The exact name that your Shares are to be registered in (this is the name
that will appear on your stock certificate(s)). You may use a nominee name
if appropriate:
-----------------------------------------------------
2. The relationship between the Purchaser of the Shares and the Registered
Holder listed in response to item 1 above:
--------------------------
3. The mailing address of the Registered Holder listed in response to item 1
above:
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
4. The Social Security Number or Tax Identification Number of the Registered
Holder listed in response to item 1 above:
--------------------------
APPENDIX II
ULTRALIFE BATTERIES, INC.
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement, please provide
us with the following information:
5. Pursuant to the "Selling Stockholder" section of the Registration
Statement, please state your or your organization's name exactly as it
should appear in the Registration Statement:
-----------------------------------------------------------------------
6. Please provide the number of shares that you or your organization will own
immediately after Closing, including those Shares purchased by you or your
organization pursuant to this Purchase Agreement and those shares
purchased by you or your organization through other transactions:
-----------------------------------------------------------------------
7. Have you or your organization had any position, office or other material
relationship within the past three years with the Company or its
affiliates?
_____ Yes _____ No
If yes, please indicate the nature of any such relationships below:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
APPENDIX III
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, an officer of, or other person duly authorized by
--------------------------------------------------------------------------------
[fill in official name of individual or institution]
hereby certifies that he/she/it is the Purchaser of the shares evidenced by the
attached certificate, and as such, sold such shares on ________________, 200__
in accordance with Registration Statement number 333-________________, and
complied with the requirement of delivering a current prospectus in connection
with such sale.
Print or Type:
Name of Purchaser (Individual or Institution):
--------------------------------------------------------------------------------
Name of Individual representing Purchaser (if an Institution)
--------------------------------------------------------------------------------
Title of Individual representing Purchaser (if an Institution):
--------------------------------------------------------------------------------
Signature:
Individual Purchaser or Individual representing Purchaser:
--------------------------------------------------------------------------------
