<PAGE>
As filed with the Securities and Exchange Commission on March 31, 2000
Registration No. 333-_____
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
CONDUCTUS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 3361 77-0162388
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
969 W. MAUDE AVENUE
SUNNYVALE, CALIFORNIA 94086
(408) 523-9950
(Address, including zip code, and telephone
number, including area code, of registrant's
principal executive offices)
CHARLES E. SHALVOY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CONDUCTUS, INC.
969 W. MAUDE AVENUE
SUNNYVALE, CALIFORNIA 94086
(408) 523-9950
(Name and address, including zip code, and telephone number, including
area code, of agent for service)
------------------
COPIES TO:
RICHARD S. GREY, ESQ.
ORRICK, HERRINGTON & SUTCLIFFE LLP
400 SANSOME ST.
SAN FRANCISCO, CA 94111
------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS SOON AS
PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| _____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------- ------------------ --------------------- -------------------------- ---------------------------
Proposed Maximum
Title of each class of Amount to be Offering Price Proposed Maximum Amount of
Securities to be Registered Registered per Security (1) Aggregate Offering Price (1) Registration Fee
- -------------------------------- ------------------ --------------------- -------------------------- ---------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.0001 par value 5,500,000 shares $37.875 $208,312,500 $54,994.50
- -------------------------------- ------------------ --------------------- -------------------------- ---------------------------
</TABLE>
(1) The price of $37.875 per share, which was the average of the high and low
prices of the common stock on the Nasdaq Stock Market on March 28, 2000 is
set forth solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) of the Securities Act of 1933, as amended.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED MARCH 31, 2000
5,500,000 SHARES
CONDUCTUS, INC.
COMMON STOCK
-----------------
This prospectus is part of a registration statement that covers 5,500,000
shares of our common stock. These shares may be offered and sold from time to
time by certain of our shareholders, as identified below in the section entitled
"Selling Shareholders." We will not receive any proceeds from the sale of the
shares. We will bear the costs relating to the registration of the shares.
4,500,000 of the shares were issued to certain selling shareholders in
connection with a sale of Series C preferred stock and warrants on December 10,
1999. 1,000,000 of the shares were issued to certain selling shareholders in
connection with a sale of common stock on January 18, 2000. The selling
shareholders may sell the shares from time to time on the Nasdaq SmallCap Market
in regular brokerage transactions, in transactions directly with market makers
or in certain privately negotiated transactions. See "Plan of Distribution."
Each selling stockholder has advised us that no sale or distribution other than
as disclosed herein will be effected until after this prospectus shall have been
appropriately amended or supplemented, if required, to set forth the terms
thereof. We will not receive any proceeds from the sale of the shares by the
selling shareholders. Selling commissions, brokerage fees, any applicable stock
transfer taxes and any fees and disbursements of counsel to the selling
shareholders are payable individually by the selling shareholders.
Each of the selling shareholders may be deemed to be an "Underwriter," as
such term is defined in the Securities Act of 1933, as amended (the "Securities
Act").
On March 28, 2000, the last sale price of our common stock on the Nasdaq
SmallCap Market was $37.00 per share.
INVESTING IN THE SHARES INVOLVES CONSIDERABLE RISKS. SEE "RISK FACTORS" IN
OUR ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 1999, WHICH IS
INCORPORATED BY REFERENCE HEREIN.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR AN STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-----------------
You should rely only on the information contained or incorporated by
reference in this prospectus and in any accompanying prospectus supplement. No
one has been authorized to provide you with different information.
The shares are not being offered in any jurisdiction where the offer is not
permitted.
You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of the documents.
-------------------------------
PROSPECTUS DATED ______, 2000
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
Conductus, Inc. (the "Company") files annual, quarterly and special reports
and other information with the Securities and Exchange Commission (the "SEC").
You may read and copy any document that we file at the SEC's public reference
rooms in Washington, D.C., New York, New York, and Chicago, Illinois. Please
call the SEC at 1-800-SEC-0330 for further information on the public reference
rooms. Our SEC filings are also available to you free of charge at the SEC's
Website at http://www.sec.gov.
Our common stock is quoted on the Nasdaq SmallCap Market under the symbol
"CDTS." Reports, proxy and information statements and other information about us
may be inspected at the office of the National Association of Securities
Dealers, Inc., 9513 Key West Ave., Rockville, Maryland 20850.
We have filed with the Commission a registration statement (the
"Registration Statement") under the Securities Act of 1933 (the "Securities
Act") with respect to the securities offered hereby. This Prospectus, which is
part of the Registration Statement, does not contain all of the information set
forth in the Registration Statement and its exhibits and schedules, certain
items of which are omitted as allowed by the rules and regulations of the
Commission. For further information with respect to the Company and the
securities offered hereby, we refer you to the Registration Statement and its
exhibits and schedules.
THE COMPANY
Conductus, Inc. was founded in 1987 and is based in Sunnyvale, California.
Conductus develops, manufactures and markets electronic components and systems
based on superconductors for applications in the worldwide telecommunications
market. For many applications, the unique properties of superconductors offer
significant performance advantages over products based on conventional copper
electronic components. These advantages, including improved sensitivities and
efficiencies, can lower the cost or improve the performance of electronic
components at the system level.
OUR ADDRESS:
Conductus, Inc.
969 W. Maude Avenue
Sunnyvale, California 94086
(408) 523-9950
2
<PAGE>
USE OF PROCEEDS
Conductus will not receive any proceeds from the sale of these shares of
common stock.
PLAN OF DISTRIBUTION
We have filed with the Securities and Exchange Commission a registration
statement on Form S-3, of which this prospectus forms a part, in connection with
the future resale of these shares. We have agreed to keep this registration
statement effective until the later of January 16, 2002 or the time all of these
shares may be sold under Securities and Exchange Commission Rule 144 within a
90-day period (assuming exercise of all applicable warrants and conversion of
applicable Series C preferred stock), or at least until these shares have been
sold by the selling stockholders. Although we will receive no proceeds from this
offering, we will bear all costs, expenses and fees in connection with this
offering. The selling stockholders will bear any brokerage commissions or
similar selling expenses related to their resale of their common stock.
The common stock offered in this offering may be sold by the selling
stockholders, from time to time, in the following manners:
- in the over-the counter market,
- on the Nasdaq SmallCap Market,
- in privately negotiated transactions, or
- by a combination of the above methods.
The selling stockholders may sell at various fixed prices, at prevailing
market prices or at negotiated prices. The selling stockholders may use
broker-dealers to sell their shares. If this happens, these broker-dealers will
either receive discounts or commissions from the selling stockholders, or they
will receive commissions from purchasers of shares for whom they acted as
agents. These broker-dealers may receive compensation in excess of customary
commissions.
SELLING SHAREHOLDERS
The following table sets forth, as of March 3, 2000, information regarding
ownership of our common stock by the selling shareholders, as adjusted to
reflect the sale of the shares offered in this offering. The selling
shareholders are divided into two groups. The first group will offer shares that
were acquired from us by purchase under a common stock purchase agreement. The
second group of selling shareholders will offer shares that will be acquired
through the exercise of their warrants to purchase common stock and conversion
of their shares of Series C preferred stock into shares of common stock. The
ownership figures in the table below assume the conversion of all outstanding
shares of Series C preferred stock into common stock and the exercise of all
outstanding warrants to purchase common stock. Under this assumption, 14,537,726
shares of our common stock were outstanding as of March 3, 2000. The
registration statement also covers any additional shares of common stock which
become issuable in connection with these shares by reason of any stock dividend,
stock split, recapitalization or similar transaction, including any dividends
paid in common stock upon conversion of Series C preferred stock.
Alloy Management Partners LLC is the general partner of AMA98 Partners, LP,
AMA98 Ventures, LP, AMA98 Corporate, LP and AMA98 Investors, LP. Dr. Shoch, the
Chairman of the Board, is a Managing Member of Alloy Management Partners LLC and
a limited partner of AMA98 Partners, LP. Martin A. Kaplan is a director of the
Company.
3
<PAGE>
<TABLE>
<CAPTION>
THE NUMBER OF SHARES OWNED
PRIOR TO THIS OFFERING ASSUMES
------------------------------
THE CONVERSION OF THE EXERCISE PERCENTAGE
NUMBER OF SERIES C OF WARRANTS OF
SHARES PREFERRED FOR THE NUMBER OF NUMBER OF CONDUCTUS'
NAME AND ADDRESS OF SELLING STOCKHOLDER OWNED STOCK INTO THE FOLLOWING SHARES SHARES TO COMMON STOCK
- --------------------------------------- PRIOR TO FOLLOWING NUMBER NUMBER OF OFFERED BE OWNED TO BE OWNED
THIS OF SHARES OF SHARES IN THIS AFTER THIS AFTER THIS
OFFERING COMMON STOCK* OF COMMON STOCK OFFERING OFFERING OFFERING
-------- ------------- --------------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Snowdon LP............................... 0 0 0 500,000 0 0
The Nevis Fund........................... 0 0 0 500,000 0 0
Banner Partners Minaret.................. 152,400 230,000 46,000 276,000 152,400 1.0
William H. Draper III Revocable Trust.... 14,039 41,500 8,300 49,800 14,039 **
Fred M. Gibbons.......................... 28,079 43,500 8,700 52,200 28,079 **
Micro Cap Partners, L.P.................. 142,949 185,000 37,000 222,000 142,949 1.0
ACI Capital America Fund, L.P............ 0 250,000 50,000 300,000 0 0
Cerebus International, Ltd............... 0 462,500 92,500 555,000 0 0
Pequod Investments, L.P. 0 450,000 90,000 540,000 0 0
Pequod International, L.P................ 0 323,000 64,600 384,600 0 0
Cerebus Partners, L.P.................... 0 187,500 37,500 225,000 0 0
Steve Feinberg........................... 0 100,000 20,000 120,000 0 0
John Colton.............................. 0 62,500 12,500 75,000 0 0
Amy Gallen............................... 0 50,000 10,000 60,000 0 0
TK Duggan................................ 0 50,000 10,000 60,000 0 0
Doug Birmingham.......................... 0 25,000 5,000 30,000 0 0
Bear Stearns & Co. Custodian for Jonathan
Gallen IRA #051-35790.......... 0 37,500 7500 45,000 0 0
Michael Hisler........................... 0 2,000 400 2,400 0 0
Charles Grimes .......................... 0 300,000 60,000 360,000 0 0
Bay Area Microcap Fund LP................ 0 125,000 25,000 150,000 0 0
Seki Technotron Corp..................... 0 25,000 5,000 30,000 0 0
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
THE NUMBER OF SHARES OWNED
PRIOR TO THIS OFFERING ASSUMES
------------------------------
THE CONVERSION OF THE EXERCISE PERCENTAGE
NUMBER OF SERIES C OF WARRANTS OF
SHARES PREFERRED FOR THE NUMBER OF NUMBER OF CONDUCTUS'
NAME AND ADDRESS OF SELLING STOCKHOLDER OWNED STOCK INTO THE FOLLOWING SHARES SHARES TO COMMON STOCK
- --------------------------------------- PRIOR TO FOLLOWING NUMBER NUMBER OF OFFERED BE OWNED TO BE OWNED
THIS OF SHARES OF SHARES IN THIS AFTER THIS AFTER THIS
OFFERING COMMON STOCK* OF COMMON STOCK OFFERING OFFERING OFFERING
-------- ------------- --------------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Martin A. Kaplan......................... 43,500 25,000 5,000 30,000 43,500 **
AMA98 Partners, LP....................... 0 18,190 3,638 21,828 0 0
AMA98 Ventures, LP....................... 0 300,600 60,120 360,720 0 0
AMA98 Corporate, LP...................... 0 36,070 7,214 43,284 0 0
AMA98 Investors, LP...................... 0 45,140 9,028 54,168 0 0
Asset Management Partners................ 222,222 50,000 10,000 60,000 222,222 1.5
Cypress Growth Fund III, LP.............. 0 120,000 24,000 144,000 0 0
Cypress Growth Fund, L.P................. 0 30,000 6,000 36,000 0 0
The Pickard Family Trust................. 0 12,500 2,500 15,000 0 0
Bolsa VIII, LLC.......................... 0 50,000 10,000 60,000 0 0
Gallagher Enterprises L.L.C.............. 0 62,500 12,500 75,000 0 0
O'Reilly Family Revocable Trust of 1982.. 0 25,000 5,000 30,000 0 0
O. Stuart Chase.......................... 0 10,000 2,000 12,000 0 0
Eaglebrook School........................ 23,612 10,000 2,000 12,000 23,612 **
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Does not include shares of common stock issuable as dividends-in-kind upon
conversion of Series C preferred stock.
** Less than 1%
5
<PAGE>
LEGAL MATTERS
Orrick, Herrington & Sutcliffe LLP will pass upon the validity of the
common stock offered in this offering.
EXPERTS
The financial statements incorporated in this prospectus by reference to
the Annual Report on Form 10-K of Conductus, Inc. for the year ended December
31, 1999 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
ADDITIONAL INFORMATION
We have filed with the Securities and Exchange Commission a registration
statement on Form S-3 under the Securities Act with respect to these shares of
common stock. This prospectus does not contain all of the information set forth
in the registration statement and the exhibits and schedules to the registration
statement. We refer you to the registration statement and its exhibits and
schedules for further information. Statements contained in this prospectus
concerning the contents of any contract or any other document referred to are
not necessarily complete; reference is made in each instance to the copy of such
contract or document filed as an exhibit to the registration statement. Each
such statement is qualified by such reference to such exhibit.
The registration statement, including exhibits and schedules thereto, may
be inspected without charge at the Commission's Public Reference Room at 450
Fifth Street, N.W., Washington D.C. 20549. You may obtain information on the
operation of the Public Reference Room by calling the Commission at
1-900-SEC-0330. You may obtain copies of all or any part of the registration
statement from the Commission after paying the prescribed fees. The Commission
maintains a web site that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission at http://www.sec.gov.
All documents filed by Conductus pursuant to Sections 13(a), 13(c), 14 or
15(d) of the 1934 Act subsequent to the date of this prospectus but prior to the
termination of the offering to which this prospectus relates shall be deemed to
be incorporated by reference and made a part of this prospectus as of their
respective filing dates. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated herein modifies, supersedes or replaces such statement. Any
statement so modified or superseded shall not be deemed, except as so modified,
superseded or replaced, to constitute a part of this prospectus.
The information relating to Conductus contained in this prospectus does not
purport to be comprehensive and should be read together with the information
contained in the documents incorporated by reference herein.
Upon written or oral request, we will provide without charge to each
person, including any beneficial owner, to whom a copy of the prospectus is
delivered a copy of the documents incorporated by reference herein (other than
exhibits to such documents unless such exhibits are specifically incorporated by
reference herein). Requests should be submitted in writing or by telephone to
(468) 523-9950 to Chief Financial Officer, Conductus, Inc., at our principal
executive offices, 969 W. Maude Avenue, Sunnyvale, California 94086.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission (File No.
0-20540) pursuant to the 1934 Act are incorporated by reference in this
Prospectus:
1. Our Annual Report on Form 10-K for the year ended December 31, 1999;
2. Our Proxy Statement for Annual Meeting of Stockholders held on August
19, 1999, filed with the SEC on July 13, 1999; and
6
<PAGE>
3. Our Registration Statement No. 000-19915 on Form 8-A, filed with the
SEC on January 29, 1998, pursuant to Section 12(g) of the 1934 Act, in
which there is described the terms, rights and provisions applicable to
the Company's preferred share purchase rights.
4. Our Registration Statement No. 000-19915 on Form 8-A filed with the SEC
on March 6, 1992, and amended on July 6, 1993, pursuant to Section
12(b) of the 1934 Act, in which there is described the terms, rights
and provisions applicable to the Company's outstanding stock.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the 1934 Act subsequent to the date of this Prospectus but prior to the
termination of the offering to which this Prospectus relates shall be deemed to
be incorporated by reference in this Prospectus and to be part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is incorporated herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, in its unmodified form, to constitute a part of this
Prospectus.
Upon written or oral request, we will provide without charge to each person
to whom a copy of the Prospectus is delivered a copy of the documents
incorporated by reference herein (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference herein). Requests
should be submitted in writing or by telephone at (408) 523-9950 to Chief
Financial Officer, Conductus, Inc., at the principal executive offices of the
Company, 969 W. Maude Avenue, Sunnyvale, California 94086.
7
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY US. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY BY ANYONE IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE OF THE PROSPECTUS.
--------------------------------
TABLE OF CONTENTS
PAGE
WHERE YOU CAN FIND MORE
INFORMATION......................................2
THE COMPANY.........................................2
USE OF PROCEEDS.....................................3
PLAN OF DISTRIBUTION................................3
SELLING SHAREHOLDERS................................3
LEGAL MATTERS.......................................6
EXPERTS.............................................6
ADDITIONAL INFORMATION..............................6
INFORMATION INCORPORATED BY REFERENCE...............6
UNTIL _____ __, 2000 (25 DAYS AFTER THE DATE OF THIS
PROSPECTUS), ALL DEALERS EFFECTING TRANSACTIONS IN THE COMMON STOCK, WHETHER OR
NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN
ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
5,500,000 SHARES
COMMON STOCK
CONDUCTUS, INC.
----------
PROSPECTUS
----------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The fees and expenses we incur in connection with the offering are payable
by us and, other than filing fees, are estimated as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration fee............................................ $54,995
Printing and engraving expenses................................................................ 20,000
Legal fees and expenses........................................................................ 10,000
Accounting fees and expenses................................................................... 10,000
Blue sky fees and expenses..................................................................... 10,000
Transfer agent fees............................................................................ 5,000
Miscellaneous fees and expenses................................................................ 5,005
---------
Total................................................................................. $ 115,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a court to
award or a corporation's board of directors to grant indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act"). Article VII, Section 6, of the Registrant's
bylaws provides for mandatory indemnification of its directors and officers and
permissible indemnification of employees and other agents to the maximum extent
permitted by the Delaware General Corporation Law. The Registrant's Certificate
of Incorporation provides that, pursuant to Delaware law, its directors shall
not be liable for monetary damages for breach of the directors' fiduciary duty
as directors to the Company and its stockholders. This provision in the
Certificate of Incorporation does not eliminate the directors' fiduciary duty,
and in appropriate circumstances equitable remedies such as injunctive or other
forms of non-monetary relief will remain available under Delaware law. In
addition, each director will continue to be subject to liability for breach of
the director's duty of loyalty to the Company for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
actions leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Delaware law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws. The Registrant has entered into
Indemnification Agreements with its officers and directors, a form of which is
incorporated herein by reference. The Indemnification Agreements provide the
Registrant's officers and directors with further indemnification to the maximum
extent permitted by the Delaware General Corporation Law.
II-1
<PAGE>
ITEM 16. EXHIBITS
(A) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Orrick, Herrington & Sutcliffe LLP (included in the opinion filed as Exhibit 5.1)
24.1 Power of Attorney (See Page II-4).
</TABLE>
- ---------------
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement 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.
(2) 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.
(3) To remove from registration by means of a post-effective amendment any
of the Securities being registered which remain unsold at the termination of the
offering.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the following 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.
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
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the 1934 Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Sunnyvale,
State of California on this 30th day of March, 2000.
CONDUCTUS, INC.
By: /S/ CHARLES E. SHALVOY
---------------------------------------
Charles E. Shalvoy
President and Chief Executive Officer
II-3
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned officers and
directors of Conductus, Inc., a Delaware corporation, do hereby constitute and
appoint jointly and severally, Charles E. Shalvoy and Ron Wilderink, and each of
them, the lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to do any and all acts and things and to execute any and
all instruments which said attorneys-in-fact and agents determine may be
necessary or advisable or required to enable said corporation to comply with the
Securities Act, and any rules or regulations or requirements of the Securities
and Exchange Commission in connection with this Registration Statement. Without
limiting the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned officers to
any and all amendments, both pre-effective and post-effective, and supplements
to this Registration Statement, and to any and all instruments or documents
filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and each of the undersigned hereby ratified
and confirms all that said attorneys and agents or any of them shall do or cause
to be done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ CHARLES E. SHALVOY President, Chief Executive March 30, 2000
- ------------------------------------------ Officer and Director
Charles E. Shalvoy (Principal Executive Officer)
/S/ RON WILDERINK Vice President, Finance March 30, 2000
- ------------------------------------------ Chief Financial Officer
Ron Wilderink (Principal Accounting Officer)
/s/ JOHN F. SHOCH Chairman of the Board of March 30, 2000
- ------------------------------------------ Directors
John F. Shoch, Ph.D.
/s/ MARTIN COOPER
- ------------------------------------------ Director March 30, 2000
Martin Cooper
/s/ ROBERT JANOWIAK
- ------------------------------------------ Director March 30, 2000
Robert Janowiak
/s/ MARTY KAPLAN
- ------------------------------------------ Director March 30, 2000
Marty Kaplan
</TABLE>
II-4
<PAGE>
EXHIBIT 5.1
[Date]
Conductus, Inc.
969 West Maude Avenue
Sunnyvale, CA 94086
Re: Conductus, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
At your request, we are rendering this opinion in connection with a
proposed sale by certain shareholders and warrantholders (collectively, the
"Holders") of Conductus, Inc. a Delaware corporation (the "Company") of up to
5,500,000 shares (the "Shares") of common stock, $.0001 par value (the
"Common Stock") pursuant to a Registration Statement on Form S-3. The Shares
were issued, or are issuable, pursuant to: (i) conversion of the Company's
Series C Preferred Stock (the "Series C Preferred") issued and sold pursuant
to a Series C Preferred Stock and Warrant Purchase Agreement dated as of
December 10, 1999 between the Company and certain investors identified
therein (the "Series C Preferred Purchase Agreement"), (ii) exercise of
warrants issued and sold pursuant to the Series C Preferred Purchase
Agreement; and (iii) a Common Stock Purchase Agreement dated as of January
18, 2000 between the Company and certain investors identified therein.
We have examined instruments, documents, and records, which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the following: (a) the authenticity of
original documents and the genuineness of all signatures; (b) the conformity to
the originals of all documents submitted to us as copies; and (c) the truth,
accuracy, and completeness of the information, representations, and warranties
contained in the records, documents, instruments, and certificates we have
reviewed.
Based on such examination, we are of the opinion that, assuming the
conversion of the Series C Preferred or exercise of the warrants and the payment
of the exercise price thereunder, as applicable, the Shares to be issued and
covered by the Registration Statement will be legally issued, fully paid, and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement and to the use of our name wherever it
appears in said Registration Statement, including the Prospectus constituting a
part thereof, as originally filed or as subsequently amended or supplemented. In
giving such consent, we do not consider that we are "experts" within the meaning
of such term as used in the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission issued thereunder, with
respect to any part of the Registration Statement, including this opinion as an
exhibit or otherwise.
Very truly yours,
/s/ Orrick, Herrington & Sutcliffe LLP
ORRICK, HERRINGTON & SUTCLIFFE LLP
<PAGE>
EXHIBIT 23.1
CONDUCTUS, INC.
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of Conductus, Inc. on Form S-3 of our reports dated February 15, 2000,
relating to the financial statements and financial statement schedule, which
appears in Conductus, Inc.'s Annual Report on Form 10-K. We also consent to the
reference to us under the heading "Experts."
/s/ PricewaterhouseCoopers LLP
San Jose, California
March 29, 2000
