Exhibit 10.9





Exhibit 10.9




AMENDMENT NO. 2 TO THE ASSET PURCHASE AGREEMENT DATED 




OCTOBER 31, 2008 




This amendment agreement (this “Amendment” or the “Agreement”) is made and entered into by and
among Ken Cotton, Shawn O’Connell and Simon Baitler, the Selling Shareholders of U.S. Energy
Systems, Inc., a now dissolved California corporation (each a “Selling Shareholder” and
collectively, “Selling Shareholders”), Tim Jacobs (“Jacobs”), solely for the purposes of Sections 6
through 14 inclusive, and Ultralife Corporation (“Ultralife” or “Buyer”). Selling Shareholders,
Jacobs and Buyer are referred to collectively herein as the “Parties.”



WHEREAS, Selling Shareholders and Ultralife are parties to an Asset Purchase Agreement dated
October 31, 2008 (the “APA”), which was subsequently amended on November 10, 2008 and closed on
November 10, 2008;



WHEREAS, Ultralife has previously paid the elements of the Purchase Price specified in Section
2.6(a)(i) and (ii), as amended, to U.S. Energy Systems, Inc. and the Selling Shareholders;



WHEREAS, as currently written, Section 2.6(a)(iii) of the APA provides for Sales Payments in
an aggregate amount of up to, but in no event more than, 200,000 shares of Ultralife’s common
stock; and



WHEREAS, the Parties have determined that it is in their respective best interests to amend
Section 2.6(a)(iii).



NOW, THEREFORE, in consideration of the foregoing, the mutual promises contained in this
Agreement and for other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged by the Parties, it is agreed as follows:



TERMS AND CONDITIONS





	1.	 	Definitions. Unless expressly set forth herein in this Amendment, capitalized terms
contained in this Amendment shall have the meaning set forth in the APA.







	2.	 	Effective Date. The Effective Date of this Agreement shall be date upon which it becomes
fully executed.







	3.	 	Final Payment.In full satisfaction of
its Purchase Price obligations under
Section 2.6(a)(iii), Ultralife agrees
to issue to the Selling Shareholders
an aggregate total of 200,000 shares
of Ultralife’s common stock (the
“Shares”) within thirty (30) days of
the Effective Date (the “Final
Payment”). The Selling Shareholders
have determined that the Final Payment
shall be distributed as follows:






	 	 	 	 
	 	Tim Jacobs:

	 	10,000 shares
	 	Shawn O’Connell:

	 	63,333 shares
	 	Simon Baitler:

	 	63,333 shares
	 	Ken Cotton:

	 	63,334 shares






 


 









 






	4.	 	Release by Selling Shareholders. Subject to and conditioned upon timely payment of the Final
Payment, and subject to the other terms and conditions of this Agreement, Selling Shareholders
hereby individually, jointly and severally, completely release and forever discharge Ultralife
(including any of its parents, subsidiaries, divisions, successors, affiliates, agents,
officers, directors, insurers, reinsurers, employees and attorneys — hereafter the “Ultralife
Affiliates”) from any and all past and present claims, demands, obligations, actions, suits,
causes of action, rights, damages, costs, expenses, interest, attorney’s fees, compensation
and liabilities of any nature whatever based on a tort, contract, statute, regulatory scheme
or other theory of recovery, in law or in equity and whether for compensatory, liquidated
and/or punitive damages, whether matured or unmatured, whether at law or in equity, whether
known or unknown as of the Effective Date, and whether liquidated or unliquidated, that
Selling Shareholders have, have had, or claim to have or have had relating to payment of the
Purchase Price pursuant to or required by Section 2.6 of the APA.







	5.	 	Amendment of the APA. Subject to and conditioned upon timely payment in full of the Final
Payment, and subject to the other terms and conditions of this Agreement, the Parties do
hereby agree as follows:







	 	5.1.	 	Section 3 of this Agreement shall constitute a written amendment of the APA, as
required by Section 9.2 of the APA.







	6.	 	No Modification of Other Agreements or Arrangements. Notwithstanding anything to the
contrary in this Agreement, this Agreement shall not affect any closed or finalized
transaction under the APA, such as tax elections and prior payments, and nothing in this
Agreement shall affect, limit or otherwise alter or amend the terms of those certain
Confidentiality, Non-Disclosure, Non-Compete, Non-Disparagement and Assignment Agreements by
and between Ultralife and each of the Selling Shareholders, dated November 10, 2008, or alter
or amend any agreement or arrangement by and between Ultralife and Jacobs.







	7.	 	The Shares. Each Selling Shareholder and Jacobs acknowledge that the Shares have not been
registered under the Securities Act and accordingly may not be transferred by sale, gift,
pledge or otherwise unless: (i) a registration statement with respect to the transfer of the
Shares shall be in effect under the Securities Act; or (ii) the transferor shall have obtained
an opinion of counsel and/or other documentation related to such transfer, in form and content
satisfactory to Ultralife and its counsel, evidencing that the transfer is exempt from the
registration requirements of the Securities Act, is in compliance with applicable state
securities law, and will not result in any violation of the Securities Act or any other
applicable law. The Shares are being acquired by each Selling Shareholder and Jacobs without
a view to resale in connection with any distribution thereof within the meaning of the
Securities Act and each Selling Shareholder and Jacobs acknowledge and represent and warrant
that the Shares will not thereafter be transferred except in accordance with the provisions of
this Section 7.





 


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	8.	 	Attorneys’ Fees.







The Parties shall bear their own attorneys’ fees and costs in connection with this Agreement
and any dispute between them giving rise thereto. However, if either party brings any
action alleging breach of this Agreement or seeking the specific enforcement thereof, the
prevailing party in any such action shall be entitled to recover its reasonable attorneys’
fees, expenses and costs from the party that does not prevail.




	9.	 	Warranty of Capacity to Execute Agreement.







The Parties represent to each other that the person executing this Agreement on each Party’s
behalf has full authority to bind that Party to the terms of this Agreement.




	10.	 	Entire Agreement and Successors in Interest.







This Agreement contains the entire agreement between the Parties with regard to the matters
set forth in it and shall be binding upon and inure to the benefit of the representatives,
successors and assigns of each.




	11.	 	Construction by New York Law.







This Agreement shall be governed by and construed in accordance with the domestic laws of
the State of New York without giving effect to any choice or conflict of law provision or
rule (whether of the State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New York. The language
of all parts of this Agreement shall in all cases be construed as a whole, according to
their fair meaning, and not strictly for or against any of the Parties.




	12.	 	Waiver of Provisions.







Neither one nor more waivers by either of the Parties of any rights under any of the
provisions of this Agreement, nor one or more failures of either of the Parties to enforce
any of the provisions of this Agreement shall thereafter be construed as a waiver of any
provisions, rights, or privileges under this Agreement.


 


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	13.	 	Enforcement of Breach; Submission to Jurisdiction.







All actions arising under this Agreement shall be brought in the United States District
Court for the Western District of New York (the “Federal Court”), and the parties hereby
submit to personal jurisdiction in that Federal Court. If such Federal Court does not
possess subject matter jurisdiction over any dispute related to this Agreement, then such
dispute shall be brought in any state court located in Wayne County, New York.




	14.	 	Modification and Severability.







No change or waiver of any provision of this Agreement shall be valid unless the same is in
writing and signed by all Parties to this Agreement. The invalidity, illegality or
unenforceability of any provision or any part of any provision of this Agreement shall not
affect or impair the validity, legality or enforceability of any other provisions or part of
any other provision hereof. This Agreement is the entire Agreement between the Parties on
the subject matter hereof.



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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and
delivered.



	 	 	 	 	 
	Ultralife Corporation
	 
	 	 	 	 
	By:

	 	/s/ John D. Kavazanjian
	 	Date: 04/27/10
	 

	 	 	 	 
	 

	 	Title: President and Chief Executive Officer	 	 
	 
	 	 	 	 
	Selling Shareholders:
	 
	 	 	 	 
	/s/ Ken Cotton	 	Date: 04/20/10
	 	 	 
	Ken Cotton, Individually	 	 
	 
	 	 	 	 
	/s/ Shawn O’Connell	 	Date: 04/19/10
	 	 	 
	Shawn O’ Connell, Individually	 	 
	 
	 	 	 	 
	/s/ Simon Baitler	 	Date: 04/19/10
	 	 	 
	Simon Baitler, Individually	 	 
	 
	 	 	 	 
	Jacobs, solely for the purposes of Sections 6 through 14, inclusive:
	 
	 	 	 	 
	/s/ Tim Jacobs	 	Date: 04/20/10
	 	 	 
	Tim Jacobs	 	 







 


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