Filed pursuant to Rule 424(b)(3)
File No. 333-109377
Dated October 9, 2003
PROSPECTUS
[NVE CORPORATION LOGO]
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1,221,487 Shares of Common Stock
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This Prospectus relates to 1,221,487 shares of common stock of NVE
Corporation which may be offered from time to time by the selling shareholder
named in this Prospectus. We will not receive any of the proceeds from the
offer and sale of the shares. Rather, the selling shareholder will receive all
of the net proceeds from any sale of the common stock.
We have been advised that the selling shareholder may from time to time
sell the common stock to or through brokers or dealers in one or more
transactions, in the NASDAQ SmallCap Market or other over-the-counter market or
otherwise, at market prices prevailing at the time of sale, at prices relating
to prevailing prices, or at negotiated prices. For additional information on
the methods of sale which may be used by the selling shareholder, see the
section entitled "Plan of Distribution" on page 13 of this Prospectus.
Our common stock is traded on the NASDAQ SmallCap Market under the symbol
NVEC. On October 8, 2003, the closing sales price of our common stock as
reported by the NASDAQ SmallCap Market was $38.30.
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Investing in our common stock involves certain risks. See "Risk Factors"
beginning on page 4 of this Prospectus.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this Prospectus. Any representation to the contrary is
a criminal offense.
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The date of this Prospectus is October 9, 2003
SUMMARY
The following summary is qualified by, and should be read in conjunction with,
the more detailed information included in this Prospectus and the documents
incorporated by reference into this Prospectus. In this prospectus, "NVE,"
"we," "our," and the "Company" refer to NVE Corporation, unless the context
otherwise requires.
NVE CORPORATION
NVE Corporation develops and sells devices using "sprintronics,"
technology we helped pioneer, which utilizes electron spin rather than electron
charge to acquire, store and transmit information. Our products include
magnetic sensors to acquire ultra-precise data such as the position of a robot
arm, and couplers to transmit data between electronic systems at very high
speed. We are also a licensor of spintronics/magnetic random access memory
technology, commonly referred to as MRAM, which we believe has the potential to
revolutionize electronic memory.
We currently have two commercial product lines based on our spintronics
technology:
* Sensors to precisely and quickly determine position; and
* Couplers which transmit digital data at high speed.
We have also developed intellectual property relating to Magnetic Random
Access Memory (commonly referred to as MRAM) which uses spintronics to store
data, combining the speed of semiconductor memory with the nonvolatility of
magnetic disk drives. MRAM is inherently nonvolatile, meaning the data remains
even if power is removed. In addition to our own MRAM intellectual property, we
have a license to use Honeywell International MRAM technology and certain
Cypress Semiconductor Corporation and Motorola, Inc. intellectual property. If
MRAM products are produced under our license agreements, we could potentially
earn significant royalty revenues.
We were founded in 1989 primarily as a government contract research
company. During the past several years we began licensing our intellectual
property to others, including Union Semiconductor Technology Corporation,
Honeywell International, Motorola, Inc., and Cypress Semiconductor Corporation.
We have also begun selling commercial products, primarily for factory
automation. Our products are sold throughout the world through a network of
manufacturers' representatives and distributors. We also have an agreement with
Agilent Technologies, Inc. to distribute our couplers under their brand. Our
commercial product revenues have been growing rapidly, allowing us to make a
profit in the most recent fiscal year.
In November 2000 our shareholders approved our merger with and into Premis
Corporation, a publicly-traded and reporting corporation, with Premis surviving
under the new name NVE Corporation. We executed a one-for-five reverse split of
our common stock to shareholders of record at the close of business on November
21, 2002, and on January 22, 2003 our common stock began trading on the NASDAQ
SmallCap Market.
We are incorporated under the laws of the State of Minnesota. Our
executive offices are located at 11409 Valley View Road, Eden Prairie,
Minnesota 55344, telephone number (952) 829-9217. Our website address is
www.nve.com.
2
THE OFFERING
Securities: 1,221,487 shares of common stock offered by the selling
shareholder identified in this Prospectus.
Use of Proceeds: We will not receive any proceeds from the sale of common
stock by the selling shareholder.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements made in this Prospectus and the documents
incorporated by reference in this Prospectus under the captions "NVE
Corporation" and "Risk Factors" and elsewhere in this Prospectus constitute
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. These statements are subject to the safe harbor
provisions of the reform act. Forward-looking statements may be identified by
the use of the terminology such as may, will, expect, anticipate, intend,
believe, estimate, should, or continue or the negatives of these terms or other
variations on these words or comparable terminology. To the extent that this
Prospectus contains forward-looking statements regarding the financial
condition, operating results, business prospects or any other aspect of NVE,
you should be aware that our actual financial condition, operating results and
business performance may differ materially from that projected or estimated by
us in the forward-looking statements. We have attempted to identify, in
context, some of the factors that we currently believe may cause actual future
experience and results to differ from their current expectations. These
differences may be caused by a variety of factors, including but not limited to
adverse economic conditions, intense competition, including entry of new
competitors, our ability to obtain sufficient financing to support our
operations, progress in research and development activities by us and others,
variations in costs that are beyond our control, adverse federal, state and
local government regulations, unexpected costs, lower sales and net income, or
higher net losses than forecasted, price increases for equipment, our
dependence on significant suppliers, including Taiwan Semiconductor
Manufacturing Corporation for foundry semiconductor wafers, our ability to meet
stringent customer technical requirements, our ability to consummate additional
license agreements, our ability to continue eligibility for SBIR awards, our
inability to raise prices, failure to obtain new customers, the possible
fluctuation and volatility of our operating results and financial condition,
inability to carry out marketing and sales plans, loss of key executives, and
other specific risks that may be alluded to in this Prospectus.
3
RISK FACTORS
An investment in shares of our common stock involves a high degree of
risk. Prospective investors should carefully consider the following risks and
speculative factors set forth below prior to a purchase of shares of common
stock.
RISKS RELATED TO OUR BUSINESS
ALTHOUGH WE WERE PROFITABLE IN THE MOST RECENT QUARTER AND FISCAL YEAR, WE HAVE
A HISTORY OF OPERATING LOSSES AND COULD SUFFER FURTHER LOSSES IN THE FUTURE.
We had net income (loss) of $646,850 and ($2,100,442) for the years ended March
31, 2003 and 2002, which we refer to as Fiscal 2003 and Fiscal 2002. As of June
30, 2003 we had an accumulated deficit of $4,473,070. We reported net income in
Fiscal 2003 and in the first quarter of the Fiscal 2004. During Fiscal 2004
approximately $250,000 per quarter of contract research and development revenue
and recognition of MRAM license revenues of approximately $98,000 per quarter
have ceased. We were able to replace those revenue and profit sources with
expanded commercial product sales in the quarter ended June 30, 2003, but we
may not be able to do so in future periods. Furthermore, start-up costs
associated with manufacturing, marketing, and selling MRAM devices could lead
to operating losses.
WE RELY ON GOVERNMENT CONTRACTS FOR A LARGE PERCENTAGE OF OUR REVENUES AND WE
WILL LOSE REVENUE IF WE LOSE THESE CONTRACTS.
During Fiscal 2003 United States government contracts accounted for
approximately 60% of our revenues. Disqualification as a vendor to the United
States government for any reason or a material decrease in government funding
research would cause serious setbacks and would likely hamper both future
research and development activity, as well as related revenues.
OUR POTENTIAL FUTURE INELIGIBILITY FOR GOVERNMENT FUNDED RESEARCH GRANTS COULD
HAVE A SIGNIFICANT IMPACT ON OUR REVENUE AND OUR ABILITY TO MAKE RESEARCH AND
DEVELOPMENT PROGRESS.
Federal regulations require a business to be at least 51% owned by one or more
individuals to be eligible to compete for Small Business Innovation Research
(SBIR) awards. In the three months ended June 30, 2003, we were awarded
approximately $735,000 in SBIR contracts. SBIR contracts represented 47.7% of
total revenue in Fiscal 2003. While we believe we currently meet the 51%
ownership rule, purchases by non-individuals in the open market or by other
means could cause us to become ineligible. Such changes in ownership are beyond
our control and could cause us to lose our eligibility to compete for SBIR
awards, which in turn could have a material adverse effect on our revenues
profits, and research and development efforts. Furthermore, if all or a
substantial portion of the shares to be offered through this Prospectus are
purchased by or distributed to non-individuals, we risk becoming ineligible to
compete for SBIR awards.
WE MAY LOSE REVENUE IF ANY OF OUR LARGE CUSTOMERS CANCEL, POSTPONE, OR REDUCE
THEIR PURCHASES.
We rely on several large customers for a large percentage of our commercial
revenues; these include Agilent, St. Jude Medical, Inc., United States
Government, and certain distributors. Orders from these customers can be
cancelled, postponed, or reduced without cause or notice, and the loss of any
of these customers could have a significant impact on our commercial revenues
and our profitability.
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WE FACE A DIFFICULT AND UNCERTAIN ECONOMIC ENVIRONMENT IN OUR INDUSTRY WHICH
COULD ADVERSELY AFFECT OUR BUSINESS AND OPERATIONS.
The semiconductor and electronics industries in general have experienced a
significant economic downturn during the past two years. The poor economic
environment may have adversely affected the sales of many of our customers'
products, thus limiting our sales. Economic conditions may not improve in the
near term or at all. Any failure of the economic environment to improve or a
future downtown would likely have a material adverse impact on our business and
revenues.
OUR REPUTATION COULD BE DAMAGED AND WE COULD LOSE REVENUE IF WE FAIL TO MEET
TECHNICAL CHALLENGES REQUIRED TO PRODUCE MARKETABLE PRODUCTS.
Our products use new technology and we are continually researching and
developing product designs and production processes. Our production processes
require control of magnetic and other parameters that are not required in
conventional semiconductor processes. If we are unable to develop stable
designs and production processes we may not be able to produce products that
meet our customers' requirements, which could cause damage to our reputation
and loss of revenues.
WE MAY LOSE BUSINESS AND REVENUE IF OUR CRITICAL PRODUCTION EQUIPMENT FAILS.
Our production process relies on certain critical pieces of equipment for
defining, depositing, and modifying the magnetic properties of very thin metal
films. Some of this equipment was designed or customized by us, and some may no
longer be in production. While we have back-ups for some of the equipment, an
in-house maintenance staff, some critical spare parts, and maintenance
agreements for certain pieces of equipment, we cannot be sure we could repair
or replace critical manufacturing equipment were it to fail.
OUR FAILURE TO MEET STRINGENT CUSTOMER TECHNICAL REQUIREMENTS COULD RESULT IN
THE LOSS OF KEY CUSTOMERS AND POTENTIAL REDUCED SALES.
Some of our customers, including Agilent and St. Jude Medical, have stringent
technical requirements which require our products to pass certain test and
qualification criteria before they are accepted by such customers. Failure to
meet those criteria could result in the loss of current sales revenue,
customers and future sales.
IF WE ARE UNABLE TO DELIVER PRODUCTS WE FACE PENALTIES, INCLUDING LOSS OF
CERTAIN EXCLUSIVE MANUFACTURING RIGHTS.
Our Agilent supply agreement allows Agilent to gain rights to manufacture
couplers based on our technology if we are unable to deliver products on time.
The imposition of this penalty could have a material impact on future sales of
our products. Furthermore, on reaching certain sales goals, Agilent could gain
exclusive rights to distribute certain couplers based on our technology, which
could reduce our product sales and leave us partially or totally dependent on
Agilent for future coupler sales.
THE LOSS OF SUPPLY FROM ANY OF OUR KEY SINGLE-SOURCE SUPPLIERS COULD IMPACT OUR
ABILITY TO PRODUCE AND DELIVER PRODUCTS AND CAUSE LOSS OF REVENUE.
Critical suppliers include our suppliers of certain semiconductor wafers which
are incorporated in our products. These critical suppliers include Taiwan
Semiconductor Manufacturing Corporation, Advanced Semiconductor Manufacturing
Corporation of Shanghai (China), Texas Instruments Inc., and AMI Semiconductor,
Inc. We maintain inventory of some critical wafers, but we have not identified
or qualified alternate suppliers for many of the wafers now being obtained from
single sources. We are also dependent on our packaging vendors, including
Circuit Electronics Industries (Ayutthaya, Thailand), and NS Electronics
Bangkok (Thailand), Ltd. Some of our products use processes or tooling unique
to a particular packaging vendor, and it might be expensive, time-consuming, or
impractical to convert to another vendor in the event of a supply interruption.
Supply interruptions could seriously jeopardize our ability to provide products
that are critical to our business and operations which may cause us to lose
revenue.
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BECAUSE WE ARE SIGNIFICANTLY SMALLER THAN THE MAJORITY OF OUR COMPETITORS, WE
MAY LACK THE FINANCIAL RESOURCES NEEDED TO INCREASE OUR MARKET SHARE AND FUTURE
REVENUE.
Our known competitors and potential competitors include Royal Philips
Electronics, Allegro Microsystems, Inc., Agilent Technologies, Inc., Vishay
Intertechnology, NEC Corporation, Analog Devices, Inc., Advanced Micro Devices,
Inc., Intel Corporation, Ramtron International Corporation, Infineon
Technologies AG, Xicor, Inc., IBM Corporation, Fujitsu Limited, and others.
Most of our competitors and potential competitors are established companies
that have significantly greater financial, technical, and marketing resources
than us. While we believe that our products have important competitive
advantages, our competitors may succeed in developing and marketing products
that perform better or are less expensive than ours, or that would render our
products and technology obsolete or noncompetitive.
OUR LICENSE AGREEMENTS INCLUDE REVENUE MINIMUMS AND ROYALTY LIMITS WHICH COULD
LIMIT THE TOTAL AMOUNT OF REVENUE WE CAN DERIVE UNDER THESE AGREEMENTS.
Our existing license agreements do not provide for us to receive royalties
until revenue minimums are met by licensees. In addition, some of these
agreements place limits on future royalty and license payments. These
provisions could substantially delay our potential revenues and profits from
these licensing arrangements and could limit the total amount of revenue that
we can derive under these license agreements. Such limits are common practice
in our industry, but they could limit our potential MRAM revenues and profits
even if our intellectual property is widely adopted. Therefore, we may never
derive significant revenues under these licenses.
OUR BUSINESS MAY SUFFER BECAUSE WE HAVE LIMITED INFLUENCE OVER THE RATE OF
ADOPTION OF OUR TECHNOLOGY, AND MRAM TECHNOLOGY MAY NOT BUILD INTO A LARGE OR
SIGNIFICANT MARKET.
A significant portion of our future revenues and profits is dependent on our
licensees and manufacturing partners introducing MRAM products. Production
difficulties, technical barriers, high production costs, poor market reception
or other problems, almost all of which are outside our control, could prevent
the deployment of MRAM or limit its market potential. In addition, our
licensees and manufacturing partners may have other priorities that detract
attention and resources from introduction of MRAM products using our
technology. Furthermore, competing technologies could prevent or supplant MRAM
from becoming an important memory technology.
OUR LICENSEES MAY NOT BE ABLE TO MAKE COMMERCIALLY VIABLE MRAMS WHICH WOULD
LIMIT OUR REVENUE FROM MRAM AND LIKELY CAUSE OUR STOCK PRICE TO DECLINE.
MRAM is a new technology, and we are almost completely dependent on our
licensees to convert our intellectual property into commercially viable MRAM.
While our licensees have made prototypes, several technical and manufacturing
issues must be resolved before commercially viable devices can be produced, and
these problems may never successfully be solved. In particular, Cypress has
missed several targets for the production of sample devices and has
significantly changed its estimate of the timetable to sample a working MRAM.
Cypress executives have currently stated a timeframe of sometime in the next
year. Additional delays and/or changes would likely have a material impact on
our revenues from MRAM and the likelihood of its widespread adoption.
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WE ARE HIGHLY DEPENDENT ON CYPRESS FOR POTENTIAL SUPPLY OF MRAM DEVICES USING
THEIR DESIGNS AND MAY LOSE REVENUE IF WE NEED TO REPLACE CYPRESS AS A SUPPLIER.
Although we have rights to Cypress' MRAM designs, mask works, and other
intellectual property, it could be difficult for us to fabricate devices at a
foundry other than Cypress. This is because other potential foundries might not
have the needed equipment, and Cypress' designs are tailored for their
factories. If Cypress is unable to manufacture devices for us for any reason,
it could be difficult for us to find another manufacturer for their designs.
CYPRESS COULD CANCEL THEIR MRAM DEVELOPMENT PROGRAM, WHICH WOULD REDUCE OUR
FUTURE REVENUE BECAUSE WE COULD NO LONGER SELL DEVICES BASED ON THEIR DESIGNS.
Cypress is not obligated to continue their MRAM development program
indefinitely. While we have no indication of any plans to cancel their MRAM
development program, they could do so at any time because of financial or other
considerations. Such a cancellation would eliminate our opportunity to sell
devices based on their designs.
OUR FUTURE BUSINESS MAY SUFFER BECAUSE WE MAY NOT BE ABLE TO CONSUMMATE
ADDITIONAL MRAM LICENSE AGREEMENTS.
Although there are potential licensees for our MRAM intellectual property in
addition to our current licensees and partners, we may never be able to
consummate additional license agreements. Potential licensees for our MRAM
intellectual property might not be interested unless and until the commercial
viability of the technology is demonstrated. Potential licensees could also use
their own or a third party's MRAM intellectual property rather than ours. In
addition, our existing agreements place restrictions on future license
agreements. Specifically, one of our agreements allows one of our licensees to
approve licenses with certain other potential licensees. Each of these
limitations could hinder our ability to consummate additional MRAM license
agreements.
WE WILL NOT RECEIVE ROYALTIES IF OUR LICENSEES DO NOT USE OUR INTELLECTUAL
PROPERTY.
Our license agreements do not require our licensees to use our intellectual
property. Our licensees could circumvent or find alternatives to our
technology, and our license agreements apply only if our licensees use our
intellectual property in their devices. It is possible that our licensees might
make MRAM devices without using our intellectual property or infringing on our
patents, and we would not to receive royalties on such devices.
WE MAY NOT BE ABLE TO ENFORCE OUR INTELLECTUAL PROPERTY RIGHTS OR OUR
TECHNOLOGY MAY PROVE TO INFRINGE UPON PATENTS OR RIGHTS OWNED BY OTHERS WHICH
MAY PREVENT THE FUTURE SALE OF OUR PRODUCTS.
We protect our proprietary technology and intellectual property by seeking
patents and maintaining trade secrets, which we implement by entering into
confidentiality agreements with employees and suppliers, depending on the
circumstances. We hold patents or are the licensee of patented technology
covering certain aspects of our sensor, coupler, and MRAM technology. These
patent rights may be challenged, rendered unenforceable, invalidated or
circumvented. In addition, rights granted under the patents or under licensing
agreements may not provide a competitive advantage to us. Efforts to legally
enforce patent rights can involve substantial expense and may not be
successful. Further, others may independently develop similar or superior
technologies or duplicate any technology developed by us, or our technology may
prove to infringe upon patents or rights owned by others. Thus the patents held
by or licensed to us may not afford us any meaningful competitive advantage.
Also, our confidentiality agreements may not provide meaningful protection of
our proprietary information. Our inability to maintain our proprietary rights
could have a material adverse effect on our business, financial condition and
results of operations.
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OUR BUSINESS SUCCESS MAY BE ADVERSELY AFFECTED IF WE ARE UNABLE TO ATTRACT AND
RETAIN HIGHLY-QUALIFIED MANAGEMENT AND TECHNICAL EMPLOYEES.
We have no employment agreements with any of our management other than our
Chief Executive Officer, Dr. Baker, and have no key-person insurance covering
employees. Competition for highly-qualified management and technical personnel
is generally intense and we may not be able to attract and retain the personnel
necessary for the development and operation of our business. The loss of the
services of key personnel could have a material adverse effect on our business,
financial condition and results of operations. Our Chief Technology Officer,
Dr. Daughton, may decide to retire at any time in the next several years, and
we may not be able to replace his technical or contract development expertise.
RISKS RELATED TO BUYING OUR STOCK
OUR STOCK IS SUBJECT TO VOLATILITY BECAUSE OF LOW LIQUIDITY AND TRADING
VOLUMES.
Our common stock is traded on the NASDAQ SmallCap Market, which has less daily
trading volume on average than the average trading market for companies quoted
on the NASDAQ National Market or any other national securities exchange. While
the trading volume of our common stock has been much higher in the second half
of 2003, for most of our history since we became public in November 2000 there
had been a limited trading market for our common stock. A public trading market
having the desired characteristics of depth, liquidity and orderliness depends
on the presence in the marketplace of willing buyers and sellers of our common
stock at any given time. This presence depends on the individual decisions of
investors and general economic and market conditions over which we have no
control.
THE PRICE OF OUR COMMON STOCK MAY BE ADVERSELY AFFECTED BY SIGNIFICANT PRICE
FLUCTUATIONS DUE TO A NUMBER OF FACTORS, MANY OF WHICH ARE BEYOND OUR CONTROL.
The market price of our common stock has experienced significant fluctuations
and may continue to fluctuate in the future. The market price of the common
stock may be significantly affected by many factors, including:
* changes in requirements or demands for our products;
* the announcement of new products or product enhancements by us or our
competitors;
* technological innovations by us or our competitors;
* quarterly variations in our or our competitors' operating results;
* changes in prices of our or our competitors' products and services;
* changes in our revenue and revenue growth rates;
* changes in earnings estimates by market analysts, speculation in the
press or analyst community; and
* general market conditions or market conditions specific to particular
industries.
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The stock prices for many companies in the technology sector have experienced
wide fluctuations that often have been unrelated to their operating
performance. Such fluctuations may adversely affect the market price of our
common stock.
RISKS RELATED TO THIS OFFERING
THIS OFFERING COULD JEOPARDIZE OUR ELIGIBILITY TO COMPETE FOR SMALL BUSINESS
INNOVATION RESEARCH (SBIR) GOVERNMENT CONTRACTS AND CAUSE THE LOSS OF A
SUBSTANTIAL PORTION OF OUR REVENUES.
In the three months ended June 30, 2003 we were awarded approximately $735,000
in SBIR contracts. SBIR contracts represented 47.7% of total revenue in Fiscal
2003. While we believe we currently meet the 51% ownership rule, purchases by
non-individuals in the open market or by other means could cause us to become
ineligible. Such changes in ownership are beyond our control and could cause us
to lose our eligibility to compete for SBIR awards, which in turn could have a
material adverse effect on our revenues, profits, and research and development
efforts. Furthermore, if all or a substantial portion of the shares to be
offered through this Prospectus are purchased by or distributed to non-
individuals, we risk becoming ineligible to compete for SBIR awards.
THIS OFFERING WILL SUBSTANTIALLY INCREASE THE POTENTIAL SUPPLY OF OUR COMMON
STOCK, WHICH COULD SIGNIFICANTLY DECREASE THE MARKET PRICE OF OUR SHARES.
The shares covered by this Prospectus represent approximately 28% of our total
shares outstanding and such shares are not currently tradable, but will become
tradable with the effectiveness of this registration. The additional shares
could create substantial pressure on the price of our common stock as the
supply of shares increases without a concurrent increase of demand.
OUR ARTICLES OF INCORPORATION MAY DISCOURAGE LAWSUITS AND OTHER CLAIMS AGAINST
OUR DIRECTORS.
Our articles of incorporation provide, to the fullest extent permitted by
Minnesota law, that our directors shall have no personal liability for breaches
of their fiduciary duties to us. These provisions may reduce the likelihood of
derivative litigation against directors and may discourage shareholders from
bringing a lawsuit against directors for a breach of their duty.
THE MARKET PRICE OF OUR COMMON STOCK MAY BE REDUCED BY FUTURE SALES OF OUR
COMMON STOCK IN THE PUBLIC MARKET.
Sales of substantial amounts of common stock in the public market that are not
currently freely tradable, or even the potential for such sales, could have an
adverse effect on the market price for shares of our common stock and could
impair the ability of purchasers of our common stock to recoup their investment
or make a profit. As of September 24, 2003 these shares consist of:
* approximately 329,659 shares owned by our executive officers and
directors of our outstanding common stock; and
* approximately 841,239 shares issuable to option and warrant holders.
Unless the shares of our outstanding common stock owned by our executive
officers and directors are further registered under the securities laws, they
may not be resold except in compliance with Rule 144 promulgated by the SEC, or
some other exemption from registration. Rule 144 does not prohibit the sale of
these shares but does place conditions on their resale which must be complied
with before they can be resold.
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PROVISIONS IN OUR ARTICLES OF INCORPORATION ALLOW US, WITHOUT OBTAINING
SHAREHOLDER APPROVAL, TO ISSUE ADDITIONAL SHARES OF STOCK THAT MAY REDUCE THE
VALUE OF THE COMMON STOCK OR INHIBIT A THIRD-PARTY ACQUISITION.
Our articles of incorporation authorize our Board of Directors to issue up to
6,000,000 shares of common stock and 4,000,000 shares of undesignated stock,
the terms of which may be determined at the time of issuance by the Board of
Directors, without further action by our shareholders. Undesignated stock
authorized by the Board of Directors may include voting rights, preferences as
to dividends and liquidation, conversion and redemptive rights and sinking fund
provisions. If the Board of Directors authorizes the issuance of preferred
stock in the future, this authorization could affect the rights of the holders
of our common stock, thereby reducing the value of our common stock, and could
make it more difficult for a third party to acquire us, even if a majority of
the holders of our common stock approved of an acquisition.
WE ARE SUBJECT TO PROVISIONS OF THE MINNESOTA BUSINESS CORPORATION ACT,
INCLUDING THE CONTROL SHARE ACQUISITION PROVISIONS, WHICH MAY INHIBIT A THIRD-
PARTY ACQUISITION.
We are subject to the application control share acquisition provisions of the
Minnesota Business Corporation Act. The control share acquisition provisions
generally prohibits any business combination by us or our subsidiary with any
shareholder that purchases ten percent or more of our voting shares within four
years following such interested shareholder's share acquisition date, unless
the business combination is approved by a committee of all the disinterested
members of our Board of Directors before the interested shareholder's share
acquisition date.
MATERIAL CHANGES
The following discussion describes the material changes to our business affairs
since the filing of our annual report on Form 10-KSB for the fiscal year ended
March 31, 2003.
RETENTION OF OUR ELIGIBILITY TO COMPETE FOR SMALL BUSINESS INNOVATION RESEARCH
(SBIR) CONTRACTS.
On July 1, 2003 we announced that the United States Small Business
Administration had found us ineligible to compete for Small Business Innovation
Research (SBIR) awards because of our ownership structure. Our largest
shareholder, Norwest Equity Partners IV, L.P., transferred most of its holdings
to an individual (who is the selling shareholder named in this Prospectus) to
facilitate NVE's recertification efforts. On July 21, 2003 we were notified
that we had been recertified as eligible to compete for awards under the SBIR
program. The brief period of ineligibility did not have a significant impact on
our SBIR revenue or total revenue.
While we believe we currently meet the eligibility requirements for SBIR
awards, we cannot control who purchases our common stock. Furthermore, if all
or a substantial portion of the shares offered through this Prospectus are
purchased by or distributed to non-individuals, we could once again become
ineligible to compete for SBIR awards. While brief ineligibility was not
material earlier this year, an extended period of ineligibility causing
reduction in the amount of such awards, which historically has accounted for a
significant portion of our revenue, would be materially adverse to future
revenue.
SALE OF SHARES BY JAMES M. DAUGHTON.
On August 25, 2003 we announced that James M. Daughton, an officer and director
of NVE, completed the sale of 213,700 shares of our common stock on the open
market pursuant to Rule 144 under the Securities Act of 1933, as amended. Dr.
Daughton continues to own 216,800 shares of our common stock. We were informed
by Dr. Daughton that he sold the shares for estate-planning purposes and was
planning to hold his remaining shares indefinitely.
10
SALE OF SHARES BY CYPRESS SEMICONDUCTOR CORPORATION--CYPRESS MRAM SCHEDULE
DELAYED.
On September 5, 2003 Cypress Semiconductor Corporation announced that it had
sold on the open market all of the 686,849 shares of our common stock it had
held pursuant to Rule 144 under the Securities Act of 1933, as amended. Cypress
retains warrants to purchase 408,000 shares of our common stock at various
prices and expiration dates. Cypress announced, in a press release relating to
the sale, that the Cypress MRAM development is taking slightly longer than
expected, and the profit from the NVE investment will be used for continuing
MRAM development and other research and development. Cypress also announced
that it intends to sample a working MRAM within the next year and that it would
continue to honor its partnership with NVE, including sharing MRAM intellectual
property and supplying NVE with MRAM foundry wafers. Cypress further stated
that it intended to maintain its NVE board seat, although we are no longer
obligated to nominate a Cypress designee to our Board of Directors.
We have rights to Cypress' designs, mask works, and other intellectual
property, so any delays in Cypress' programs also delay the potential
availability of devices that we could sell under our agreement with Cypress.
USE OF PROCEEDS
The selling shareholder is offering all of the shares to be sold under
this Prospectus. We will not receive any of the proceeds from the offer and
sale of the shares.
SELLING SHAREHOLDERS
John P. Whaley acquired the shares to be registered from Norwest Equity
Partners IV, L.P. on July 10, 2003. Pursuant to a prior agreement between NVE
and Norwest there were certain registration rights attached to the shares. The
registration rights transferred from Norwest to John P. Whaley with the
purchase of the securities. Norwest is a Minnesota limited partnership, of
which Itasca Partners, LLP, a Minnesota limited liability partnership, is the
general partner. John E. Lindahl and George J. Still, Jr. are the managing
partners of Itasca Partners and John P. Whaley is the managing administrative
partner of Itasca Partners. Due to the operation of a price adjustment
mechanism contained in the stock purchase agreement whereby John P. Whaley
purchased the shares, Norwest retained the economic risk for the ownership of
the shares and may be deemed to be the indirect beneficial owner of those
shares. John P. Whaley also beneficially owns shares that are not covered by
this Prospectus. Combined, the number of shares of our common stock
beneficially owned by John P. Whaley represents 28.4% of our total shares. Our
registration of these shares of common stock for resale does not necessarily
mean that the selling shareholder will sell all or any of his shares. In this
Prospectus, when we refer to the "selling shareholder" we are referring to Mr.
Whaley and any pledgees, donees, transferees or other successors in interest
who receive shares from Mr. Whaley in non-sale transactions, including without
limitation, Norwest and Wells Fargo & Company, a limited partner in Norwest.
The following table sets forth the number of shares owned by the selling
shareholder as of September 22, 2003. The information provided in the table
below with respect to the selling shareholder has been obtained from such
selling shareholder. The selling shareholder has not had a material
relationship with us within the past three years other than as described below
or as a result of the ownership of the shares or other securities of NVE
Corporation. No estimate can be given as to the amount of shares that will be
held by the selling shareholder after completion of this offering because the
selling shareholder may offer all or only some of the shares and because there
currently are no agreements, arrangements or understandings with respect to the
11
sale of the shares. The shares offered by this Prospectus may be offered from
time to time by the selling shareholder named below.
Number of Shares
Which May be Sold
Name of Selling Shares Beneficially Pursuant to this
Shareholder Owned (1) Percentage Prospectus (2)
------------------ ------------------- ---------- -----------------
John P. Whaley (3) 1,221,716 28.4% 1,221,487
______________________
(1) The number and percentage of shares beneficially owned is determined in
accordance with Rule 13d-3 of the Securities Exchange Act of 1934, and the
information is not necessarily indicative of beneficial ownership for any other
purpose. Under such rule, beneficial ownership includes any shares as to which
the individual has sole or shared voting power or investment power and also any
shares which the individual has the right to acquire within 60 days of the date
of this prospectus through the exercise of any stock option or other right.
Unless otherwise indicated in the footnotes, each person has sole voting and
investment power (or shares such powers with his or her spouse) with respect to
the shares shown as beneficially owned.
(2) This Prospectus also covers any additional shares of common stock that
become issuable in connection with the shares registered for sale hereby by
reason of any stock dividend, stock split, recapitalization or other similar
transaction effected without the receipt of consideration that results in an
increase in the number of outstanding shares of common stock.
(3) Includes 1,221,487 shares of common stock of NVE Corporation transferred
by Norwest to John P. Whaley on July 10, 2003, making him the record holder of
the securities. Due to the operation of a price adjustment mechanism contained
in the stock purchase agreement whereby Mr. Whaley purchased the shares,
Norwest retained the economic risk for the ownership of the shares and may be
deemed to be the indirect beneficial owner of those shares. Also includes 120
shares of common stock of NVE Corporation for which John P. Whaley is the
record holder, independent of his relationship with Norwest.
PLAN OF DISTRIBUTION
The sale of the shares offered by this Prospectus may be made in the
NASDAQ SmallCap Market or other over-the-counter markets at prices and at terms
then prevailing or at prices related to the then current market price or in
negotiated transactions. These shares may be sold by one or more of the
following:
* A block trade in which the broker or dealer will attempt to sell shares
as agent but may position and resell a portion of the block as
principal to facilitate the transaction.
* Purchases by a broker or dealer as principal and resale by a broker or
dealer for its account using this Prospectus.
* Ordinary brokerage transactions and transactions in which the broker
solicits purchasers.
* In privately negotiated transactions not involving a broker or dealer.
* In any method permitted pursuant to applicable law.
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Each sale may be made either at market prices prevailing at the time of
such sale, at negotiated prices, at fixed prices which may be changed, or at
prices related to prevailing market prices.
In effecting sales, brokers or dealers engaged to sell the shares may
arrange for other brokers or dealers to participate. Brokers or dealers engaged
to sell the shares will receive compensation in the form of commissions or
discounts in amounts to be negotiated immediately prior to each sale. These
brokers or dealers and any other participating brokers or dealers may be deemed
to be underwriters within the meaning of the Securities Act of 1933 in
connection with these sales. We will receive no proceeds from any resales of
the shares offered by this Prospectus, and we anticipate that the brokers or
dealers, if any, participating in the sales of the shares will receive the
usual and customary selling commissions.
In connection with distributions of the shares or otherwise, the selling
shareholder may enter into hedging transactions with broker-dealers. In
connection with such transactions, broker-dealers may engage in short sales of
the shares registered hereunder in the course of hedging the positions they
assume with the selling shareholders. The selling shareholder may also sell
shares short and deliver the shares to close out such short positions. The
selling shareholder may also enter into option, swaps, derivatives or other
transactions with broker-dealers that require the delivery to the broker-dealer
of the shares covered by this Prospectus, which the broker-dealer may resell
pursuant to this Prospectus. The selling shareholder may also pledge the shares
registered hereunder to a broker or dealer and upon a default, the broker or
dealer may effect sales of the pledged shares pursuant to this Prospectus.
From time to time the selling shareholder may be engaged in short sales,
short sales against the box, puts and calls and other hedging transactions in
our securities, and may sell and deliver the shares covered by this Prospectus
in connection with such transactions or in settlement of securities loans.
These transactions may be entered into with broker-dealers or other financial
institutions. In addition, from time to time, the selling shareholder may
pledge his shares pursuant to the margin provisions of its customer agreements
with its broker-dealer. Upon delivery of the shares or a default by the selling
shareholder, the broker-dealer or financial institution may offer and sell the
pledged shares from time to time.
To comply with the securities laws of some states, if applicable, the
shares will be sold in those states only through brokers or dealers. In
addition, in some states, the shares may not be sold in those states unless
they have been registered or qualified for sale in those states or an exemption
from registration or qualification is available and is satisfied.
If necessary, the specific shares of our common stock to be sold, the name
of the selling shareholder, the respective purchase prices and public offering
prices, the names of any agent, dealer or underwriter, and any applicable
commissions or discounts with respect to a particular offer will be set forth
in an accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement of which this Prospectus is a part.
Under applicable rules and regulations under Regulation M under the
Securities Exchange Act of 1934, any person engaged in the distribution of the
common stock generally may not simultaneously engage in market making
activities with respect to the common stock for a specified period set forth in
Regulation M prior to the commencement of such distribution and until its
completion. In addition, the selling shareholder will be subject to the
applicable provisions of the Securities Act of 1933 and Securities Exchange Act
of 1934 and the rules and regulations thereunder, which may limit the timing of
purchases and sales of shares of the common stock by the selling shareholder.
The foregoing may affect the marketability of the common stock.
The selling shareholder will pay any applicable underwriting commissions
and expenses, brokerage fees, transfer taxes, and fees and disbursements of
counsel and accountants for the selling shareholder in connection with the
registration of his shares. We will bear all other expenses in connection with
13
the offering and sale of the shares. We have agreed to indemnify and hold
harmless the selling shareholder from certain liabilities under the Securities
Act of 1933. The selling shareholder also has agreed to indemnify us against
certain liabilities in connection with the registration and the offering and
sale of the shares.
DESCRIPTION OF SECURITIES
General
Our articles of incorporation authorize our Board of Directors to issue
10,000,000 shares of capital stock, including 6,000,000 shares of common stock,
$0.01 par value, and 4,000,000 shares of undesignated stock, with rights,
preferences and privileges as are determined by our board of directors. At
present, we have no plans to authorize or issue any shares of preferred stock.
Common Stock
As of September 24, 2003 we had 4,305,430 shares of common stock
outstanding. All outstanding shares of our common stock are fully paid and
nonassessable. The following is a summary of the material rights and privileges
of our common stock.
Voting. Holders of our common stock are entitled to cast one vote for each
share held at all shareholder meetings for all purposes, including the election
of Directors. The holders of more than 50% of the voting power of our common
stock issued and outstanding and entitled to vote and present in person or by
proxy constitute a quorum at all meetings of our shareholders. The vote of the
holders of a majority of our common stock present and entitled to vote at a
meeting will decide any question brought before the meeting, except when
Minnesota law, our articles of incorporation or our bylaws require a greater
vote. Holders of our common stock do not have cumulative voting for the
election of directors.
Dividends. Holders of our common stock are entitled to dividends when, as
and if declared by the board of directors out of funds available for
distribution. The payment of any dividends may be limited or prohibited by loan
agreement provisions or priority dividends for preferred stock that may be
outstanding.
Preemptive Rights. The holders of our common stock have no preemptive
rights to subscribe for any additional shares of any class of our capital stock
or for any issue of bonds, notes or other securities convertible into any class
of our capital stock.
Liquidation. If we liquidate or dissolve, the holders of each outstanding
share of our common stock will be entitled to share equally in our assets
legally available for distribution to our shareholders after payment of all
liabilities and after distributions to holders of preferred stock legally
entitled to be paid distributions prior to the payment of distributions to
holders of our common stock.
LEGAL MATTERS
Gray, Plant, Mooty, Mooty & Bennett, P.A., Minneapolis, Minnesota, has
issued an opinion about the legality of the shares registered by this
Prospectus.
14
EXPERTS
The consolidated financial statements of NVE Corporation appearing in NVE
Corporation's Annual Report (Form 10-KSB) for the year ended March 31, 2003,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file with the
SEC at the SEC's public reference room located at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the SEC's public reference rooms located at its
regional offices in New York, New York and Chicago, Illinois. Please call the
SEC at 1-800-SEC-0330 for further information on the operation of public
reference rooms. You can also obtain copies of these materials from the SEC's
Internet web site located 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, D.C. 20006.
The SEC allows us to "incorporate by reference" the information 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
considered to be a 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 Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934.
* Our Annual Report on Form 10-KSB for the year ended March 31, 2003.
* Our definitive Proxy Statement on Schedule 14A, filed June 2, 2003.
* Our report filed on Form 8-K, filed April 24, 2003.
* Our report filed on Form 8-K, filed June 20, 2003.
* Our report filed on Form 8-K, filed June 27, 2003.
* Our Quarterly Report on Form 10-QSB for the quarter ended June 30,
2003.
* The description of our common stock is contained in our report on Form
8-K, filed on December 6, 2000, including any amendments or reports
filed for the purpose of updating such description.
You may request a copy of these filings, at no cost, by writing,
telephoning or sending an electronic message to us at the following:
NVE Corporation
Investor Relations
11409 Valley View Road
Eden Prairie, Minnesota 55344
(952) 829-9217
www.nve.com
15
This Prospectus is part of a registration statement we filed with the SEC.
You should rely only on the information or representations provided in this
Prospectus. We have authorized no one to provide you with different
information. The selling shareholders will not make an offer of these shares in
any state where the offer is not permitted. You should not assume that the
information in this Prospectus is accurate as of any date other than the date
on the front page of this Prospectus.
16
INDEMNIFICATION
Our articles of incorporation provide that our directors shall not be
personally liable to us or our shareholders for breach of fiduciary duty,
except for:
* Any breach of the director's duty of loyalty;
* Acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
* Liability resulting from the authorization of an improper distribution;
* Any transaction from which the director received an improper personal
benefit; or
* Any act or omission occurring prior to November 21, 2002.
Our articles of incorporation also provide that we shall indemnify our
directors to the fullest extent permitted under Minnesota law. Although
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to our directors, officers and controlling persons under these
provisions, we have been advised that, in the opinion of the SEC,
indemnification for liabilities arising under the Securities Act of 1933 is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
17
No dealer, salesperson or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offer made by this Prospectus and, if given
or made, the information or representations must not be relied upon as having
been authorized by us. This Prospectus does not constitute an offer to sell or
the solicitation of any offer to buy any security other than the securities
offered by this Prospectus, nor does it constitute an offer to sell or a
solicitation of any offer to buy the securities offered by this Prospectus by
anyone in any jurisdiction in which the offer or solicitation is not
authorized, or in which the person making the offer or solicitation is not
qualified to do so, or to any person to whom it is unlawful to make an offer or
solicitation. Neither the delivery of this Prospectus nor any sale made under
this Prospectus shall, under any circumstances, create any implication that
information contained in this Prospectus is correct as of any time subsequent
to the date of this Prospectus.
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TABLE OF CONTENTS
SUMMARY.......................................................................2
RISK FACTORS..................................................................4
MATERIAL CHANGES.............................................................10
USE OF PROCEEDS..............................................................11
SELLING SHAREHOLDERS.........................................................11
PLAN OF DISTRIBUTION.........................................................12
DESCRIPTION OF SECURITIES....................................................14
LEGAL MATTERS................................................................14
EXPERTS......................................................................14
WHERE YOU CAN FIND MORE INFORMATION..........................................15
INDEMNIFICATION..............................................................16
1,221,487 Shares
NVE CORPORATION
Common Stock
---------------
PROSPECTUS
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October 9, 2003