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As filed with the Securities and Exchange Commission on November 6, 1997
Registration No.333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
AMERICAN SUPERCONDUCTOR CORPORATION
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(Exact name of issuer as specified in its charter)
DELAWARE 04-2959321
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
TWO TECHNOLOGY DRIVE, WESTBOROUGH, MASSACHUSETTS 01581
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(Address of Principal Executive Offices) (Zip Code)
1997 DIRECTOR STOCK OPTION PLAN
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(Full title of the Plan)
Patrick J. Rondeau, Esq.
Hale and Dorr LLP
60 State Street
BOSTON, MASSACHUSETTS 02109
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(Name and Address of agent for service)
(617) 526-6000
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
Registered registered per share price fee
- ---------- ---------- --------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock, 240,000 $11.0625(1) $2,655,000(1) $804.55(1)
$.01 par value shares
</TABLE>
- --------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as
amended, based on the average of the high and low price of the Registrant's
Common Stock on the Nasdaq National Market on November 3, 1997.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the 1997 Director Stock Option Plan of American
Superconductor Corporation, a Delaware corporation (the "Registrant"), pursuant
to Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities
Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission. The following documents, which are on file with the Securities and
Exchange Commission, are incorporated in this registration statement by
reference:
(1) The Registrant's latest annual report, as amended, filed pursuant
to Section 13(a) or 15(d) of the Exchange Act or the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act that contains,
either directly or by incorporation by reference, audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document
referred to in (1) above.
(3) The description of the class of securities contained in a
registration statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act prior to the filing of
a post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters all shares of common stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby will be passed upon
for the Company by the law firm of Hale and Dorr LLP, Boston, Massachusetts.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of Delaware provides that
a corporation has the power to indemnify a director, officer, employee or agent
of the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Article V of the Registrant's By-laws provides that a director or
officer of the Registrant (a) shall be indemnified by the Registrant against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with any litigation or
other legal proceeding (other than an action by or in the right of the
Registrant) brought against him by virtue of his position as a director or
officer of the Registrant if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful and (b) shall be
indemnified by the Registrant against expenses (including attorneys' fees)
incurred in connection with the defense or settlement of any action or suit by
or in the right of the Registrant by virtue of his position as a director or
officer of the Registrant if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Registrant, except that no indemnification shall be made with respect to any
such matter as to which such director or officer shall have been adjudged to be
liable to the Registrant, unless and only to the extent that a court determines
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper. Notwithstanding the
foregoing, to the extent that a director or officer has been successful, on the
merits or otherwise, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith. Expenses incurred in defending
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a civil or criminal action, suit or proceeding may be paid by the Registrant
upon receipt of an undertaking by the director or officer to repay such amount
if the Registrant ultimately determines that he is not entitled to
indemnification.
Indemnification shall be made by the Registrant upon a determination
that the applicable standard of conduct required for indemnification has been
met and that indemnification of a director or officer is proper. Such
determination shall be made (a) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to the action, or (b) if
such a quorum is not obtainable, or if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (c) by the
stockholders of the Registrant.
Article V of the By-laws of the Registrant further provides that the
indemnification provided therein is not exclusive, and provides that to the
extent the Delaware General Corporation Law is amended or supplemented, Article
V shall be amended automatically and construed so as to permit indemnification
and advancement of expenses to the fullest extent permitted by such law.
Article EIGHTH of the Registrant's Certificate of Incorporation
provides that no director of the Registrant shall be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director; provided, that a director shall remain liable (i) for any breach
of such director's duty of loyalty to the Registrant or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) for participation in a Board of Directors'
action authorizing an unlawful dividend or unlawful stock purchase or redemption
under Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which such director derived an improper personal benefit.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits attached hereto
is incorporated herein by reference.
Item 9. UNDERTAKINGS
1. The Registrant hereby undertakes:
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(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement;
PROVIDED, HOWEVER that paragraphs (i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the Registration
Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment 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.
(c) 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.
2. 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 Section 15(d) of 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 in the initial
bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted for directors, officers and controlling persons
of the Registrant
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pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8, and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Westborough, Commonwealth of
Massachusetts, on the 31st day of October, 1997.
AMERICAN SUPERCONDUCTOR CORPORATION
By: /s/ Gregory J. Yurek
------------------------------
Gregory J. Yurek,
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned Directors and Officers of American Superconductor
Corporation, hereby constitute Gregory J. Yurek, Roland Lefebvre and Patrick J.
Rondeau, and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all subsequent amendments to said Registration Statement,
and generally to do all such things in our name and behalf in our capacities as
Directors and Officers to enable American Superconductor Corporation to comply
with all requirements of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by said attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gregory J. Yurek Chairman, ) October 31, 1997
- ------------------------------ President and )
Gregory J. Yurek Chief Executive )
Officer )
(Principal )
Executive Officer) )
)
)
/s/ Tom Rosa ) October 31, 1997
- ------------------------------ (Principal )
Thomas Rosa Financial and )
Accounting Officer) )
)
)
/s/ Albert J. Baciocco, Jr. Director ) October 31, 1997
- ------------------------------ )
Albert J. Baciocco, Jr. )
)
)
/s/ Frank Borman Director ) October 31, 1997
- ------------------------------ )
Frank Borman )
)
)
/s/ Peter O. Crisp Director ) October 31, 1997
- ------------------------------ )
Peter O. Crisp )
)
Director )
- ------------------------------ )
Richard Drouin )
)
)
/s/ Gerard Menjon Director ) October 31, 1997
- ------------------------------ )
Gerard Menjon )
)
)
/s/ Andrew G.C. Sage, II Director ) October 31, 1997
- ------------------------------ )
Andrew G.C. Sage, II )
)
)
/s/ John B. Vander Sande Director ) October 31, 1997
- ------------------------------ )
John B. Vander Sande )
)
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description Page
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<S> <C> <C>
4.1* Certificate of Incorporation of
the Registrant --
4.2** By-Laws of the Registrant, as --
amended to date
5.1 Opinion of Hale and Dorr LLP
24.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
24.2 Consent of Coopers & Lybrand L.L.P.
24.3 Consent of Ernst & Young LLP
24.4 Consent of Smith & Gesteland, LLP
25.1 Power of Attorney (included on the signature page of this
Registration Statement)
</TABLE>
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* Incorporated by reference to Exhibits to the Registrant's Annual Report on
Form 10-K filed with the Commission on June 29, 1992.
** Incorporated by reference to Exhibits to the Registrant's Registration
Statement on Form S-1 (File No. 33-43647).
<PAGE> 1
[Hale and Dorr LLP letterhead appears here]
EXHIBIT 5.1
November 5, 1997
American Superconductor Corporation
Two Technology Drive
Westborough, MA 01581
Re: 1997 Director Stock Option Plan
-------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission relating to 240,000 shares of Common Stock, $.01 par value
per share (the "Shares"), of American Superconductor Corporation, a Delaware
corporation (the "Company"), issuable under the Company's 1997 Director Stock
Option Plan (the "Plan").
We have examined the Amended and Restated Certificate of Incorporation
and By-laws of the Company and all amendments thereto, the Registration
Statement, and originals, or copies certified to our satisfaction, of all
pertinent records of meetings, written actions in lieu of meetings or
resolutions adopted at meetings of the directors and stockholders of the
Company, and such other documents and instruments as in our judgment are
necessary or appropriate to enable us to render the opinions expressed below.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the legal capacity of all signatories, and the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as copies, and the
authenticity of the originals of all such documents.
Based upon and subject to the foregoing, we are of the opinion that
the shares covered by the Registration Statement to be issued under the Plan
have been duly and validly authorized for issuance and, when issued and paid for
in accordance with the terms of the Plan, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the Securities
and Exchange Commission as an Exhibit to the Registration Statement.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
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Exhibit 24.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
American Superconductor Corporation on Form S-8 of our report dated August 18,
1997, on our audits of the consolidated financial statements of American
Superconductor Corporation as of March 31, 1997 and 1996, and for the years
ended March 31, 1997, 1996 and 1995, which report is included on Form 8K.
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Boston, Massachusetts
November 5, 1997
<PAGE> 1
Exhibit 24.3
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 and related prospectus of American Superconductor Corporation for the
registration of 240,000 shares of its common stock, of our report dated
February 29, 1996, with respect to the financial statements of
Superconductivity, Inc. for the years ended December 31, 1995 and 1994 and for
the period from March 22, 1988 (Inception) to December 31, 1995 included in the
Current Report of Form 8-K dated September 5, 1997 and Form 8-K/A dated June
19, 1997 filed by American Superconductor Corporation with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
November 4, 1997
Milwaukee, Wisconsin
<PAGE> 1
Exhibit 24.4
[Smith & Gesteland, LLP letterhead appears here]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 and related prospectus of American Superconductor
Corporation for the registration of 240,000 shares of its common stock, of our
report dated February 7, 1997, on our audit of the financial statements of
Superconductivity, Inc. as of December 31, 1996, and for the year then ended,
which report is included in the Current Report of Form 8-K and Form 8-K/A filed
by American Superconductor Corporation with the Securities and Exchange
Commission.
/s/ Smith & Gesteland, LLP
SMITH & GESTELAND, LLP
Madison, Wisconsin
November 4, 1997
