<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 12, 1999
REGISTRATION NO. 333-76589
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDENT NO. 3
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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VALENCE TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
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<TABLE>
<S> <C> <C>
DELAWARE 3570 77-0214673
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
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301 CONESTOGA WAY
HENDERSON, NEVADA 89015
(702) 558-1000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------
LEV M. DAWSON
CHAIRMAN OF THE BOARD, CHIEF EXECUTIVE OFFICER AND PRESIDENT
VALENCE TECHNOLOGY, INC.
301 CONESTOGA WAY
HENDERSON, NEVADA 89015
(702) 558-1000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
COPIES TO:
ANDREI MANOLIU, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CALIFORNIA 94306
(650) 843-5000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
------------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
number for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. /X/
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT(2) OFFERING PRICE(2)
<S> <C> <C> <C>
Common Stock, $.001 par value...................... $ $
Preferred Stock, $.001 par value...................
Warrants...........................................
Total............................................ $50,000,000(3) $50,000,000(4)(5)
<CAPTION>
TITLE OF EACH CLASS OF AMOUNT OF
SECURITIES TO BE REGISTERED REGISTRATION FEE
<S> <C>
Common Stock, $.001 par value...................... $
Preferred Stock, $.001 par value...................
Warrants...........................................
Total............................................ 13,900.00
</TABLE>
(1) Also includes such indeterminate number of shares of Common Stock and/or
Preferred Stock as may be issued upon conversion or exercise of any
Preferred Stock and/or Warrants that provide for conversion or exercise into
other securities.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(o).
(3) Pursuant to General Instruction II.D of Form S-3, not specified as to each
class and/or series of securities to be registered.
(4) Represents the aggregate (i) issue price of Preferred Stock or Warrants,
(ii) amount used when computing the registration fee pursuant to Rule 457(c)
for Common Stock, (iii) liquidation preference of any Preferred Stock and
(iv) exercise price of any securities issuable upon exercise of Warrants.
(5) No separate consideration will be received for any Common Stock issuable
upon conversion of Preferred Stock.
(6) $13,900.00 of the Registration Fee was previously paid.
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A)
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses, other than the placement agent
fees, underwriting discounts and commissions, payable by the Registrant in
connection with the sale of the Common Stock being registered. All the amounts
shown are estimates except for the registration fee and the NASD filing fee.
<TABLE>
<CAPTION>
<S> <C>
Registration fee................................................................... $ 13,900
Printing and engraving expenses.................................................... $ 20,000
Legal fees and expenses............................................................ $ 20,000
Accounting fees and expenses....................................................... $ 5,000
Miscellaneous...................................................................... $ 10,000
---------
Total.............................................................................. $ 68,900
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933, as amended ("Securities Act"). The Registrant's Bylaws also provide
that the Registrant will indemnify its directors and executive officers and may
indemnify its other officers, employees and other agents to the fullest extent
permitted by Delaware law.
The Registrant's Restated Certificate of Incorporation ("Restated
Certificate") provides that the liability of its directors for monetary damages
shall be eliminated to the fullest extent permissible under Delaware law.
Pursuant to Delaware law, this includes elimination of liability for monetary
damages for breach of the directors' fiduciary duty of care to the Registrant
and its stockholders. These provisions do not eliminate the directors' duty of
care and, in appropriate circumstances, equitable remedies such as injunctive or
other forms of non-monetary relief will remain available under Delaware law. In
addition, each director will continue to be subject to liability for breach of
the director's duty of loyalty to the Registrant, for acts or omissions not in
good faith or involving intentional misconduct, for knowing violations of law,
for any transaction from which the director derived an improper personal
benefit, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
The Registrant has entered into agreements with its directors and officers
that require Valence to indemnify such persons to the fullest extent authorized
or permitted by the provisions of the Restated Certificate and Delaware law
against expenses, judgements, fines, settlements and other amounts actually and
responsibly incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director,
officer, employee or other agent of the Registrant or any of its affiliated
enterprise. Delaware law permits such indemnification, provided such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interest of the Registrant and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder. In addition,
the Registrant maintains director and officer liability insurance which, subject
to certain exceptions and limitations, insures directors and officers for any
alleged breach of duty, neglect, error, misstatement, misleading statement,
omission or act in their respective capacities as directors and officer of the
Registrant.
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At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The following exhibits are filed herewith or incorporated by reference
herein:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
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<S> <C>
1.1 Form(s) of Underwriting Agreement(s).+
4.1 Form of Warrant.+
4.2 Form of Warrant Agreement.+
5.1 Opinion of Cooley Godward LLP
12.1 Computation of Ratios of Earnings to Fixed Charges.*
23.1 Consent of PricewaterhouseCoopers LLP, independent auditors.*
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
23.3 Consent of Samil Accounting Corporation.*
24.1 Power of Attorney of certain directors and officers of the registrant (contained on Page 13).*
</TABLE>
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+ To be filed by amendment or by a report on Form 8-K pursuant to Section 601
of Regulation S-K.
* Previously Filed
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrants pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities
11
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offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of periodic
report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") containing information required to be included
in a post-effective amendment that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes to file, during any period in
which offers or sales are being made, a post-effective amendment to this
Registration Statement to include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
The undersigned Registrant hereby undertakes to remove from registration by
means of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 14 or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
The undersigned Registrant undertakes that: (1) for purposes of determining
any liability under the Securities Act, the information omitted from the form of
prospectus as filed as part of the registration statement in reliance upon Rule
430A and contained in the form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of the registration statement as of the time it was declared effective; and
(2) for the purpose of determining any liability under the Securities Act, each
post-effective amendment that contained a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
12
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Henderson, State of Nevada on May 12, 1999.
<TABLE>
<S> <C>
Valence Technology, Inc.
By: /s/ LEV M. DAWSON
--------------------------------------------
Lev M. Dawson
Chairman of the Board,
Chief Executive Officer and President
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ------------------------------------------------- ---------------
<C> <S> <C>
/s/ LEV M. DAWSON Chairman of the Board, Chief Executive Officer May 12, 1999
------------------------------------ and President (Principal Executive Officer)
Lev M. Dawson
* Chief Financial Officer (Principal Financial and May 12, 1999
------------------------------------ Accounting Officer)
Jay L. King
* Director May 12, 1999
------------------------------------
Carl E. Berg
* Director May 12, 1999
------------------------------------
Alan F. Shugart
* Director May 12, 1999
------------------------------------
Bert C. Roberts, Jr.
*By: /s/ LEV M. DAWSON
-------------------------------
Lev M. Dawson
Attorney-in-Fact
</TABLE>
13
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
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<S> <C>
1.1 Form(s) of Underwriting Agreement(s).+
4.1 Form of Warrant.+
4.2 Form of Warrant Agreement.+
5.1 Opinion of Cooley Godward LLP
12.1 Computation of Ratios of Earnings to Fixed Charges.*
23.1 Consent of PricewaterhouseCoopers LLP, independent auditors.*
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
23.3 Consent of Samil Accounting Corporation.*
24.1 Power of Attorney of certain directors and officers of the registrant (contained on Page 13).*
</TABLE>
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+ To be filed by amendment or by a report on Form 8-K pursuant to Section 601
of Regulation S-K.
* Previously Filed
<PAGE>
EXHIBIT 5.1
[COOLEY GODWARD LOGO]
May 12, 1999
Valence Technology, Inc.
301 Conestoga Way
Henderson, NV 89015
RE: VALENCE TECHNOLOGY, INC.
REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as counsel to Valence Technology, Inc., a Delaware corporation
(the "Company"), in connection with the registration on Form S-3 of the
Securities Act of 1933, as amended, of up to $50,000,000 aggregate amount of (i)
shares of common stock, par value $.001 per share ("Common Stock"), (ii) shares
of preferred stock, in one or more series, as may be designated by the Board of
Directors of the Company ("Preferred Stock") and (iii) securities warrants
("Securities Warrants") to purchase Common Stock and Preferred Stock
(collectively, the "Securities").
In rendering the opinions set forth below, we have examined the Amended and
Restated Certificate of Incorporation, bylaws and corporate proceedings of the
Company, and have made such other examinations as we have deemed necessary and,
based upon such examination and having regard for applicable legal principles,
it is our opinion that:
(i) the shares of Common Stock and Preferred Stock, when duly issued and
delivered in accordance with the resolutions of the Board of Directors of
the Company of even date herewith ("Enabling Resolutions"), or in
accordance with the terms of any Preferred Stock or Securities Warrants,
will be duly authorized, validly issued, fully paid and nonassessable
shares of Common Stock and Preferred Stock of the Company; and
(ii) the Securities Warrants, when duly authenticated, issued and delivered
in accordance with the Enabling Resolutions, will constitute legal, valid
and binding obligations of the Company enforceable in accordance with
their terms, except as such enforcement may be limited by public policy,
bankruptcy, insolvency, reorganization or similar laws affecting
creditor's rights generally and that the remedies of specific performance
and injunctive and other forms of equitable relief are subject to certain
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
The foregoing opinions are subject to, and qualified by, the following
additional conditions:
(a) with respect to the Securities Warrants, the due authorization,
execution and delivery by the Company, and by each counterparty thereto,
of each applicable warrant agreement evidencing any of the Securities
Warrants and payment therefore in accordance with the terms of such
authorization,
(b) with respect to Preferred Stock, the due designation of an applicable
series within that class and the due authorization for issuance of such
number of shares of Preferred Stock within the series
<PAGE>
[COOLEY GODWARD LOGO]
May 12, 1999
Page Two
that are offered and sold (or the reservation of such shares as may
become issuable upon the conversion or exercise of any Preferred Stock or
Securities Warrants),
(c) with respect to Common Stock, the due authorization for issuance of such
number of shares of Common Stock that are offered and sold (or the
reservation of such shares as may become issuable upon the conversion or
exercise of any Preferred Stock or Securities Warrants), and
(d) with respect to the Preferred Stock and Common Stock, such Preferred
Stock and Common Stock has been paid for in accordance with applicable
resolutions of the Board of Directors and the consideration is legal and
sufficient under the General Corporation Law of State of Delaware.
We hereby consent to the use of our name in the Registration Statement and
the related prospectus wherever contained therein and we also consent to the
filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
Cooley Godward LLP
/s/ ANDREI M. MANOLIU
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Andrei M. Manoliu
