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As filed with the Securities and Exchange Commission on October 3, 1997
Registration No.333-
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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)
1996 Stock Incentive 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
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
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Common Stock, 1,400,000 $13.875(1) $19,425,000(1) $5,886.36(1)
$.01 par value shares
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(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 October 1, 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 1996 Stock Incentive 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 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 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.
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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:
(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;
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(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 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
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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 3rd day of October, 1997.
AMERICAN SUPERCONDUCTOR CORPORATION
By: /s/ Gregory J. Yurek
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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 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
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<S> <C> <C>
/s/ Gregory J. Yurek Chairman, ) October 3, 1997
- -------------------------- President and )
Gregory J. Yurek Chief Executive )
Officer )
(Principal )
Executive Officer) )
)
/s/ Tom Rosa ) October 3, 1997
- -------------------------- (Principal )
Thomas Rosa Financial and )
Accounting Officer) )
)
/s/ Albert J. Baciocco, Jr. Director ) October 3, 1997
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Albert J. Baciocco, Jr. )
)
/s/ Frank Borman Director ) October 3, 1997
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Frank Borman )
)
)
/s/ Peter O. Crisp Director ) October 3, 1997
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Peter O. Crisp )
)
/s/ Richard Drouin Director ) October 3, 1997
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Richard Drouin )
)
/s/ Gerard Menjon Director ) October 3, 1997
- -------------------------- )
Gerard Menjon )
)
/s/ Andrew G.C. Sage, II Director ) October 3, 1997
- -------------------------- )
Andrew G.C. Sage, II )
</TABLE>
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<TABLE>
<S> <C> <C>
)
)
/s/ John B. Vander Sande Director ) October 3, 1997
- -------------------------- )
John B. Vander Sande )
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number Description Page
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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 (see page 8 of this Registration Statement)
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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).
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[Hale and Dorr LLP letterhead appears here]
EXHIBIT 5.1
October 3, 1997
American Superconductor Corporation
Two Technology Drive
Westborough, MA 01581
Re: 1996 STOCK INCENTIVE 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 1,400,000 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 1996 Stock Incentive
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 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 8-K.
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Boston, Massachusetts
October 2, 1997
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Exhibit 24.3
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 1,400,000 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
October 3, 1997
Milwaukee, Wisconsin
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Exhibit 24.4
[Smith & Gesteland, LLP letterhead appears here]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement of Form S-8 and related prospectus of American Superconductor
Corporation for the registration of 1,400,000 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
October 2, 1997
