<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 20, 1999
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
VALENCE TECHNOLOGY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
--------------------------
Delaware 3570 77-0214673
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification
organization) Number)
--------------------------------
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
---------------------------
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
- --------------------------------------------------------------------------------------------------------------------------------
Title of Each Class of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered(1) Registered(1) Offering Price Per Aggregate Offering Registration Fee
Share Price(2)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value.............. $ $ $
Preferred Stock, $.001 par value...........
Warrants...................................
- --------------------------------------------------------------------------------------------------------------------------------
Total.................................... $50,000,000(3) $50,000,000(4)(5) 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.
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting offers to buy these securities
in any state where the offer or sale is not permitted.
<PAGE>
PROSPECTUS
SUBJECT TO COMPLETION, DATED APRIL 20, 1999
VALENCE TECHNOLOGY, INC.
BY THIS PROSPECTUS, WE MAY OFFER UP TO $50,000,000 OF OUR
COMMON STOCK
PREFERRED STOCK
WARRANTS
Our common stock is listed on the Nasdaq National Market under the
symbol "VLNC." On April 13, 1999 the closing sale price of a share of our
common stock, as reported on the Nasdaq National Market, was $6.75.
The securities offered or sold under this prospectus have not been approved
by the SEC or any state securities commission, nor have these organizations
determined that this prospectus is accurate or complete. Any representation to
the contrary is a criminal offense.
---------------------------
We will provide the specific terms of the securities offered in a
supplement to this Prospectus. You should read this Prospectus and the
supplements carefully before you invest.
---------------------------
This investment involves a high degree of risk. See "Risk Factors" in the
supplement to this prospectus.
---------------------------
We may offer the securities directly or through underwriters, agents or
dealers. The supplement will describe the terms of that plan of distribution.
"Plan of Distribution" below also provides more information on this topic.
The date of this prospectus is _____________,1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
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PAGE
<S> <C>
About this Prospectus.................................................... 2
Where You Can Get More Information....................................... 2
About Valence............................................................ 4
Risk Factors............................................................. 5
Use of Proceeds.......................................................... 5
General Description of Securities........................................ 5
Description of Preferred Stock........................................... 5
Description of Common Stock.............................................. 6
Description of Warrants.................................................. 7
Plan of Distribution..................................................... 8
Legal Matters............................................................ 9
Experts.................................................................. 9
</TABLE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
from time to time offer up to $50,000,000 in the aggregate of (a) shares of
common stock, $0.001 par value per share, of Valence, (b) shares of preferred
stock, $0.001 par value per share, of Valence, in one or more series, (c)
warrants to purchase shares of common stock or preferred stock or (d) any
combination of the foregoing, either individually or as units consisting of one
or more of the foregoing, each at prices and on terms to be determined at the
time of sale. The common stock, preferred stock and warrants are collectively
referred to herein as "securities." The securities offered pursuant to this
prospectus may be issued in one or more series of issuances and the aggregate
offering price of the securities will not exceed $50,000,000 (or its equivalent
(based on the applicable exchange rate at the time of the sale) in one or more
foreign currencies, currency units or composite currencies as shall be
designated by Valence).
Each time we offer these securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering.
The registration statement that contains this prospectus (including
exhibits to the registration statement) contains additional information about
our company and the securities offered under this prospectus. The registration
statement can be read at the SEC web site or at the SEC offices mentioned under
the heading "Where You Can Get More Information." This prospectus may not be
used to consummate sales of Securities unless accompanied by a prospectus
supplement.
WHERE YOU CAN GET MORE INFORMATION
We are a reporting company and file annual, quarterly and current reports,
proxy statements and other information with the SEC. You may read and copy these
reports, proxy statements and other information at the SEC's public reference
rooms in Washington, DC, New York, NY and Chicago, IL. You can request copies of
these documents by writing to the SEC and paying a fee for the copying cost.
Please call the SEC at 1-800-SEC-0330 for more information about the operation
of the public reference rooms. Our SEC filings are also available at the SEC's
web site at "http://www.sec.gov." In addition, you can read and copy our SEC
filings at the office of the National Association of Securities Dealers, Inc. at
1735 "K" Street, Washington, DC 20006.
The SEC allows us to "incorporate by reference" information that we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings we will make with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934:
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- Annual Report on Form 10-K for the year ended March 29, 1998, filed
June 29, 1998;
- Current Report on Form 8-K, dated July 27, 1998 and filed August 4,
1998;
- Quarterly Report on Form 10-Q, for the fiscal quarter ended June 28,
1998, filed August 11, 1998;
- Quarterly Report on Form 10-Q, for the fiscal quarter ended September
27, 1998, filed November 12, 1998;
- Current Report on Form 8-K, dated December 18, 1998 and filed December
21, 1998;
- Quarterly Report on Form 10-Q, for the fiscal quarter ended December
27, 1998, filed February 10, 1999;
- Quarterly Report on Form 10-Q/A, for the fiscal quarter ended
September 27, 1998, filed February 24, 1999; and
- The description of the common stock contained in Valence's
Registration Statement on Form 8-A filed with the SEC under the
Securities Exchange Act of 1934.
You may request a copy of these filings at no cost, by writing, telephoning
or e-mailing us at the following address:
VALENCE TECHNOLOGY, INC., 301 CONESTOGA WAY, HENDERSON, NV 89015 (702)
558-1000 HTTP://WWW.VALENCE-TECH.COM
This prospectus is part of a Registration Statement we filed with the SEC.
You should rely only on the information incorporated by reference or provided in
this prospectus and the Registration Statement. We have not authorized anyone
else to provide you with different information. You should not assume that the
information in this prospectus or any supplement is accurate as of any date
other than the date on the front of those documents.
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ABOUT VALENCE
OUR BUSINESS
We are engaged in research and development to produce advanced rechargeable
batteries based upon specialized technologies, which are referred to in the
industry as lithium ion and polymer technologies. Our objective is to become a
leading provider of rechargeable batteries. In July 1995, we announced that we
obtained a license to a related specialized battery technology from Bell
Communications Research, Inc. Since that time, we have been working to integrate
the Bell Communications technology with our own lithium polymer battery
technology. At the same time, we have continued the redesign and modifications
to our manufacturing equipment in Northern Ireland to support the potential
future commercial introduction of this new battery design.
THE MARKET FOR OUR BATTERIES
Widespread use of a variety of portable consumer electronics such as
portable computers, cellular telephones, camcorders and handheld power tools, as
well as continued demand from conventional applications such as automobiles,
have resulted in large markets for rechargeable batteries. These new and
conventional applications are placing growing demands on existing battery
technologies to deliver increasing amounts of electricity through smaller and
lighter batteries. In some cases, current battery capabilities are a major
limitation to the introduction of enhanced electronic products.
OUR STAGE OF DEVELOPMENT
We are a development stage company whose primary activities to date have
been:
- acquiring and developing technology;
- implementing a production line;
- manufacturing limited quantities of prototype batteries;
- recruiting personnel; and
- obtaining capital.
However, our current research prototype batteries meet some of the exacting
specifications demanded by the marketplace. Except for insubstantial revenues
from limited sales of prototype lithium polymer batteries, we presently have no
products available for sale. Prior to commencing volume production, we do not
expect to receive any significant revenues from the sale of our products. To
achieve profitable operations, we must successfully develop, manufacture and
market our products. There is a risk that we will not develop or manufacture our
products at an acceptable cost or with appropriate performance characteristics,
and that we will not be able to successfully market such products or that such
products will not achieve market acceptance. See "Risk Factors."
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RISK FACTORS
An investment in our securities involves a high degree of risk. You should
carefully consider the information contained under the heading "Risk Factors" in
the applicable supplement to this prospectus before investing in our securities.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, the net
proceeds from the sale of securities offered hereby will be used for general
corporate purposes. We expect from time to time to evaluate the acquisition of
products, businesses and technologies for which a portion of the net proceeds
may be used. Currently, however, we do not have any understandings, commitments
or agreements with respect to any material acquisitions for which a portion of
the net proceeds may be used.
GENERAL DESCRIPTION OF SECURITIES
We may offer under this prospectus shares of common stock, shares of
preferred stock, warrants to purchase common stock or preferred stock or any
combination of the foregoing, either individually or as units consisting of one
or more securities. The aggregate offering price of securities offered by us
under this prospectus will not exceed $50,000,000. If securities are offered as
units, the terms of the units will be set forth in a prospectus supplement.
Certain of the securities to be offered hereby involve a high degree of risk.
Such risks will be set forth in the prospectus supplement relating to such
security.
DESCRIPTION OF PREFERRED STOCK
GENERAL
Our Amended and Restated Certificate of Incorporation, as amended,
authorize the board of directors of Valence, without further shareholder action,
to provide for the issuance of up to 50,000,000 shares of preferred stock, in
one or more series, and to fix the designations, terms, and relative rights and
preferences, including the dividend rate, voting rights, conversion rights,
redemption and sinking fund provisions and liquidation values of each of these
series. We may amend from time to time our restated certificate to increase the
number of authorized shares of preferred stock. Any amendment like this would
require the approval of the holders of a majority of the common stock, without a
vote of the holders of preferred stock or any series thereof unless a vote of
any such holder is required pursuant to the restated certificate or certificates
of designations establishing a series of preferred stock. As of the date of this
prospectus, we have 15,000 shares of preferred stock outstanding, 7,500 shares
of which are Series A Preferred Stock and 7,500 shares of which are Series B
Preferred Stock.
The particular terms of any series of preferred stock being offered by us
under this shelf registration will be described in the prospectus supplement
relating to that series of preferred stock. Those terms may include:
- the title and liquidation preference per share of the preferred stock
and the number of shares offered;
- the purchase price of the preferred stock;
- the dividend rate (or method of calculation), the dates on which
dividends will be paid and the date from which dividends will begin to
accumulate;
- any redemption or sinking fund provisions of the preferred stock;
- any conversion provisions of the preferred stock;
- the voting rights, if any, of the preferred stock; and
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- any additional dividend, liquidation, redemption, sinking fund and
other rights, preferences, privileges, limitations and restrictions of
the preferred stock.
If the terms of any series of preferred stock being offered differ from the
terms set forth in this prospectus, those terms will also be disclosed in the
prospectus supplement relating to that series of preferred stock. The summary in
this prospectus is not complete. You should refer to our restated certificate
establishing a particular series of preferred stock, which will be filed with
the Secretary of State of Delaware and the SEC in connection with the offering
of the preferred stock.
The preferred stock will, when issued, be fully paid and nonassessable.
The preferred stock will bear no dividends.
DIVIDEND RIGHTS
The preferred stock will be preferred over the common stock as to payment
of dividends. Before any dividends or distributions (other than dividends or
distributions payable in common stock) on the common stock shall be declared and
set apart for payment or paid, the holders of shares of each series of preferred
stock will be entitled to receive dividends when, as and if declared by the
board of directors of Valence. We will pay those dividends either in cash,
shares of common stock or preferred stock or otherwise, at the rate and on the
date or dates set forth in the prospectus supplement. With respect to each
series of preferred stock, the dividends on each share of the series will be
cumulative from the date of issue of the share unless some other date is set
forth in the prospectus supplement relating to the series. Accruals of dividends
will not bear interest.
RIGHTS UPON LIQUIDATION
The preferred stock will be preferred over the common stock as to assets so
that the holders of each series of preferred stock will be entitled to be paid,
upon our voluntary or involuntary liquidation, dissolution or winding up and
before any distribution is made to the holders of common stock, the amount set
forth in the applicable prospectus supplement. However, in this case the holders
of preferred stock will not be entitled to any other or further payment unless
otherwise specified in the applicable prospectus supplement. If upon any
liquidation, dissolution or winding up our net assets are insufficient to permit
the payment in full of the respective amounts to which the holders of all
outstanding preferred stock are entitled, our entire remaining net assets and
funds legally available for distribution to the preferred stock shall be
distributed ratably among such shares in proportion to the ratio that the
liquidation preference payable on each such share bears to the aggregate
liquidation preference payable on all such shares.
REDEMPTION
All shares of any series of preferred stock will be redeemable to the
extent set forth in the prospectus supplement relating to the series. All shares
of any series of preferred stock will be convertible into shares of common stock
or into shares of any other series of preferred stock to the extent set forth in
the applicable prospectus supplement.
VOTING RIGHTS
Except as indicated in the prospectus supplement, the holders of preferred
stock shall have no voting power whatsoever except as provided by law.
DESCRIPTION OF COMMON STOCK
As of the date of this prospectus, we are authorized to issue up to
50,000,000 shares of common stock of which 7,000,000 shares are reserved solely
for the purpose of effecting the conversion of the preferred stock. As of
April 15, 1999, we had 26,727,841 shares of common stock issued and
outstanding and had
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reserved 8,250,000 additional shares of common stock for issuance under our
various stock and compensation incentive plans.
DIVIDENDS
The holders of common stock are entitled to receive dividends when, as and
if declared by the board of directors of Valence, out of funds legally available
for their payment.
VOTING RIGHTS
The holders of common stock are entitled to one vote per share on all
matters submitted to a vote of stockholders.
RIGHTS UPON LIQUIDATION
In the event of our voluntary or involuntary liquidation, dissolution or
winding up, the holders of common stock will be entitled to share equally in any
of our assets available for distribution after the payment in full of all debts
and distributions and after the holders of all series of outstanding preferred
stock have received their liquidation preferences in full.
MISCELLANEOUS
The outstanding shares of common stock are fully paid and nonassessable.
The holders of common stock are not entitled to preemptive or redemption rights.
Shares of common stock are not convertible into shares of any other class of
capital stock. Boston EquiServe is the transfer agent and registrar for our
common stock.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of preferred stock or common stock.
Warrants may be issued independently or together with preferred stock or common
stock and may be attached to or separate from any offered securities. Each
series of warrants will be issued under a separate warrant agreement to be
entered into between us and a bank or trust company, as warrant agent. The
warrant agent will act solely as our agent in connection with the warrants and
will not assume any obligation or relationship of agency or trust for or with
any registered holders of warrants or beneficial owners of warrants. This
summary of some provisions of the warrants is not complete. You should refer to
the warrant agreement, including the forms of warrant certificate representing
the warrants, relating to the specific warrants being offered for the complete
terms of the warrant agreement and the warrants. That warrant agreement,
together with the terms of warrant certificate and warrants, will be filed with
the SEC in connection with the offering of the specific warrants.
The particular terms of any issue of warrants will be described in the
prospectus supplement relating to the issue. Those terms may include:
- the designation, number of shares, stated value and terms (including,
without limitation, liquidation, dividend, conversion and voting
rights) of the series of preferred stock purchasable upon exercise of
warrants to purchase shares of preferred stock and the price at which
such number of shares of preferred stock of such series may be
purchased upon such exercise;
- the number of shares of common stock purchasable upon the exercise of
warrants to purchase shares of common stock and the price at which
such number of shares of common stock may be purchased upon such
exercise;
- the date on which the right to exercise the warrants will commence and
the date on which the right will expire;
- United States Federal income tax consequences applicable to the
warrants; and
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- any other terms of the warrants.
Warrants for the purchase of preferred stock and common stock will be
offered and exercisable for U.S. dollars only. Warrants will be issued in
registered form only. The exercise price for warrants will be subject to
adjustment in accordance with the applicable prospectus supplement.
Each warrant will entitle its holder to purchase the number of shares of
preferred stock or common stock at the exercise price set forth in, or
calculable as set forth in, the applicable prospectus supplement. The exercise
price may be adjusted upon the occurrence of certain events as set forth in the
prospectus supplement. After the close of business on the expiration date,
unexercised warrants will become void. We will specify the place or places
where, and the manner in which, warrants may be exercised in the applicable
prospectus supplement.
Prior to the exercise of any warrants to purchase preferred stock or common
stock, holders of the warrants will not have any of the rights of holders of the
preferred stock or common stock purchasable upon exercise, including the right
to vote or to receive any payments of dividends on the preferred stock or common
stock purchasable upon exercise.
PLAN OF DISTRIBUTION
We may sell the securities through underwriters, agents or dealers or
directly to purchasers. A prospectus supplement will set forth the terms of each
specific offering, including the name or names of any underwriters or agents,
the purchase price of the securities and the proceeds to us from such sales, any
delayed delivery arrangements, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale, the securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. The underwriter or underwriters with respect to a
particular underwritten offering and, if an underwriting syndicate is used, the
managing underwriter or underwriters will be set forth on the cover of such
prospectus supplement. Unless otherwise set forth in the prospectus supplement,
the underwriters will be obligated to purchase all the securities if any are
purchased.
During and after an offering through underwriters, the underwriters may
purchase and sell the securities in the open market. These transactions may
include overallotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters also may impose a penalty bid, under which selling concessions
allowed to syndicate members or other broker-dealers for the securities they
sell for their account may be reclaimed by the syndicate if the syndicate
repurchases the securities in stabilizing or covering transactions. These
activities may stabilize, maintain or otherwise affect the market price of the
securities then offered, which may be higher than the price that might otherwise
prevail in the open market, and, if commenced, may be discontinued at any time.
We may sell the securities directly or through agents we designate from
time to time. Any agent involved in the offer or sale of the securities covered
by this prospectus will be named, and any commissions payable by us to an agent
will be set forth, in a prospectus supplement relating thereto. Unless otherwise
indicated in a prospectus supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
If dealers are used in any of the sales of securities covered by this
prospectus, we will sell those securities to dealers as principals. The dealers
may then resell the securities to the public at varying prices the dealers
determine at the time of resale. The names of the dealers and the terms of the
transactions will be set forth in a prospectus supplement.
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We may sell the securities directly to institutional investors or others
who may be deemed to be underwriters within the meaning of the Securities Act
with respect to any sale thereof. The terms of any such sales will be described
in a prospectus supplement.
If so indicated in a prospectus supplement, we will authorize agents,
underwriters or dealers to solicit offers from certain types of institutions to
purchase securities from us at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. These contracts will be
subject only to those conditions set forth in the prospectus supplement, and the
prospectus supplement will set forth the commission payable for solicitation of
such contracts.
Agents, dealers and underwriters may be entitled under agreements entered
into with us to indemnification by us against certain civil liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which such agents, dealers or underwriters may be required to make
in respect thereof. Agents, dealers and underwriters may be customers of, engage
in transactions with, or perform services on our behalf.
LEGAL MATTERS
The validity of any securities offered by this prospectus or any supplement
will be passed upon for Valence by Cooley Godward LLP, Palo Alto, California.
EXPERTS
The consolidated balance sheets as of March 29, 1998 and March 30, 1997 and
the consolidated statements of operations, stockholders' equity (deficit), and
cash flows for the period from March 3, 1989 (date of inception) to March 29,
1998 and for each of the years ending March 29, 1998, March 30, 1997 and March
31, 1996 incorporated by reference in this prospectus, have been incorporated in
the reliance on the report, which includes an explanatory paragraph regarding
Valence's ability to continue as a going concern, of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
The balance sheet as of March 31, 1998, and the statements of operations
and accumulated deficit and cash flows for the year ended March 31, 1998, and
incorporated by reference in this prospectus, have been incorporated in the
reliance on the report, which includes an explanatory paragraph regarding Hanil
Valence Co., Ltd.'s ability to continue as a going concern, of Samil Accounting
Corporation, independent accountants, given on the authority of that firm as
experts in accounting and auditing.
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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>
<S> <C>
Registration fee................................................$13,900
NASD filing fee.................................................$
Nasdaq listing fee..............................................$
Blue sky qualification fees and expenses........................$
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.
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.
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<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The following exhibits are filed herewith or incorporated by reference
herein:
EXHIBIT
NUMBER EXHIBIT TITLE
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).
* To be filed by amendment or by a report on Form 8-K pursuant to
Section 601 of Regulation S-K.
ITEM 17. UNDERTAKINGS
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
11
<PAGE>
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
<PAGE>
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 April 19, 1999.
VALENCE TECHNOLOGY, INC.
BY: /S/ LEV M. DAWSON
---------------------------------------
Lev M. Dawson
Chairman of the Board,
Chief Executive Officer and President
POWER OF ATTORNEY
Know all persons by these presents, that each person whose signature appears
below constitutes and appoints Lev M. Dawson his true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective
amendments) to the Registration Statement on Form S-3, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/S/ LEV M. DAWSON Chairman of the Board, Chief Executive April 19, 1999
- --------------------------------------- Officer and President (Principal Executive
Lev M. Dawson Officer)
/S/ JAY L. KING Chief Financial Officer (Principal April 19, 1999
- --------------------------------------- Financial and Accounting Officer)
Jay L. King
/S/ CARL E. BERG Director April 19, 1999
- ---------------------------------------
Carl E. Berg
/S/ ALAN F. SHUGART Director April 19, 1999
- ---------------------------------------
Alan F. Shugart
/S/ BERT C. ROBERTS, JR. Director April 19, 1999
- ---------------------------------------
Bert C. Roberts, Jr.
</TABLE>
13
<PAGE>
INDEX TO EXHIBITS
EXHIBIT EXHIBIT TITLE
NUMBER
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).
* To be filed by amendment or by a report on Form 8-K pursuant to
Section 601 of Regulation S-K.
<PAGE>
Exhibit 12.1
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS(1)
(1) For purposes of calculating the ratio of earnings to combined fixed
charges and preferred stock dividends, earnings represent the net loss plus
fixed charges and preferred stock dividends. Fixed charges consist of (a)
interest, whether expensed or capitalized; (b) amortization of debt expense
and discount or premium relating to indebtedness, whether expensed of
capitalized; and preferred stock dividends. For the years ended March 31,
1998, 1997, 1996, 1995 and 1994 and for the nine months ended December 31,
1998, earnings were insufficient to cover fixed charges by (in thousands)
$25,014, $16,702, $18,524, $34,406, $18,903 and $17,822, respectively.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of Valence Technology, Inc. (a company in the development stage)
(the "Company") on Form S-3 of our report, which includes an explanatory
paragraph regarding the Company's ability to continue as a going concern,
dated June 8, 1998, on our audits of the consolidated financial statements of
the Company as of March 29, 1998 and March 30, 1997, and for the period from
March 3, 1989 (date of inception) to March 29, 1998 and for each of the years
ending March 29, 1998, March 30, 1997 and March 31, 1996, which report is
included in the Company's annual report on Form 10-K.
PRICEWATERHOUSECOOPERS LLP
San Jose, California
April 16, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of Valence Technology, Inc. (a company in the development stage)
(the "Company") on Form S-3 of our report, which includes an explanatory
paragraph regarding Hanil Valence Co. Ltd.'s ability to continue as a going
concern, dated May 11, 1998, on our audit of the financial statements of
Hanil Valence Co., Ltd. as of March 31, 1998, and for the year then ended,
which report is included in the Company's annual report on Form 10-K.
SAMIL ACCOUNTING CORPORATION
Seoul, Korea
April 14, 1999
