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As filed with the Securities and Exchange Commission on August 11, 2000.
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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CONDUCTUS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 77-0162388
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
969 WEST MAUDE AVENUE
SUNNYVALE, CALIFORNIA 94086
(Address of principal executive offices) (Zip Code)
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1992 STOCK OPTION/STOCK ISSUANCE PLAN
1994 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
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CHARLES E. SHALVOY
PRESIDENT AND CHIEF EXECUTIVE OFFICER (408) 523-9950
969 WEST MAUDE AVENUE, SUNNYVALE, CA 94086 (Telephone number, including
(Name and address of agent for service) area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (1) PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
1992 STOCK OPTION/STOCK ISSUANCE PLAN:
Common Stock, $0.0001 par value* 2,000,000 Shares $13.218 (2) $26,436,500 (2) $6,979.10
1994 EMPLOYEE STOCK PURCHASE PLAN:
Common Stock, $0.0001 par value* 200,000 Shares $11.236 (3) $ 2,247,200 (3) $ 593.26
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</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Conductus, Inc. 1992 Stock
Option/Stock Issuance Plan or the 1994 Employee Stock Purchase Plan, by
reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the receipt of consideration which
results in an increase in the number of the outstanding shares of Common
Stock of Conductus, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low price per share of Common Stock of Conductus, Inc. as reported on
the Nasdaq SmallCap Market on August 4, 2000.
(3) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low price per share of Common Stock of Conductus, Inc. as reported on
the Nasdaq SmallCap Market on August 4, 2000, multiplied by 85%, which
is the percentage of the trading purchase price applicable to purchases
under the referenced Plan.
* Associated with the Common Stock are Preferred Share Purchase Rights which
will not be exercisable or be evidenced separately from the Common Stock
prior to the occurrence of certain events.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Conductus, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "SEC"):
1. The latest annual report of the Registrant filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
2. All reports filed by the Registrant pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
Company's latest annual report;
3. The Registrant's Registration Statement No. 0-19915 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 Exchange Act, in which there is described the
terms, rights and provisions applicable to the Registrant's
outstanding Common Stock; and
4. The Registrant's Registration Statement No. 000-19915 on Form 8-A,
filed with the SEC on January 29, 1998, pursuant to Section 12(g) of
the Exchange Act, in which there is described the terms, rights and
provisions applicable to the Registrant's preferred share purchase
rights.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
Item 6. 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 1933 Act. The
Registrant's Bylaws provide 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, and except as provided below, its directors shall not be liable for
monetary damages for breach of the directors' fiduciary duty as directors to the
Registrant 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 Registrant or its stockholders, for acts or
omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for actions leading to improper personal benefit of the
director, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. In addition, the Registrant
has, and intends in the future to enter into, agreements to provide
indemnification for directors and officers.
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Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
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EXHIBIT NUMBER EXHIBIT
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5.1 Opinion and consent of Orrick Herrington & Sutcliffe LLP
23.1 Consent of PricewaterhouseCoopers LLP - Independent Accountants.
23.2 Consent of Orrick Herrington & Sutcliffe LLP is contained in Exhibit 5.1.
24.1 Power of Attorney (included on signature page).
</TABLE>
Item 9. UNDERTAKINGS
(a) 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:
(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. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 (a)(1)(i) and (a)(1)(ii) do not apply if 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.
(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.
(b) 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 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.
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(c) 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 foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the 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 Sunnyvale, state of California, on this 11th day
of August, 2000.
CONDUCTUS, INC.
By: /s/ Charles E. Shalvoy
--------------------------------
Charles E. Shalvoy
President, Chief Executive Officer
and Director
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 Charles E. Shalvoy and
Ron Wilderink, and either of them, the lawful attorneys-in-fact and agent with
full power and authority to do any and all acts and things and to execute any
and all instruments which said attorney and agent, determines may be necessary
or advisable or required to enable said corporation to comply with the
Securities Act of 1933, as amended, 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 and directors in the capacities indicated below to this
Registration Statement, 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 ratifies and confirms all that said attorney and agent, shall
do or cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Charles E. Shalvoy President, Chief Executive Officer and August 11, 2000
------------------------------ Director (Principal Executive Officer)
Charles E. Shalvoy
/s/ Ron Wilderink Chief Financial Officer, Vice President, August 11, 2000
------------------------------ Finance (Principal Financial and
Ron Wilderink Accounting Officer)
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Signature Title Date
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<S> <C> <C>
Chairman of the Board August ___, 2000
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John F. Shoch
/s/ Martin Cooper Director August 11, 2000
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Martin Cooper
/s/ Robert Janowiak Director August 11, 2000
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Robert Janowiak
/s/ Martin Kaplan Director August 11, 2000
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Martin A. Kaplan
/s/ Charles E. Shalvoy Director August 11, 2000
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Charles E. Shalvoy
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A majority of the members of the Board of Directors.
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<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
CONDUCTUS, INC.
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EXHIBIT INDEX
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Exhibit Number Exhibit
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5.1 Opinion and consent of Orrick Herrington & Sutcliffe LLP.
23.1 Consent of PricewaterhouseCoopers L.L.P. - Independent Accountants.
23.2 Consent of Orrick Herrington & Sutcliffe LLP is contained in Exhibit 5.1.
24.1 Power of Attorney (included on signature page).
</TABLE>
