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As filed with the Securities and Exchange Commission on November 12, 1997
Registration Statement No. 333-36301
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1 TO FORM S-3
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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AMERICAN SUPERCONDUCTOR CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 04-2959321
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2 TECHNOLOGY DRIVE
WESTBOROUGH, MASSACHUSETTS 01581
(508) 836-4200
(Address, including zip code, and
telephone number, including area code,
of registrant's principal
executive offices)
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GREGORY J. YUREK
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
AMERICAN SUPERCONDUCTOR CORPORATION
2 TECHNOLOGY DRIVE
WESTBOROUGH, MASSACHUSETTS 01581
(508) 836-4200
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
COPY TO:
PATRICK J. RONDEAU, ESQ.
HALE AND DORR LLP
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(617) 526-6000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO 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. [ ]
2
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. [ ] 333- ________ .
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. [ ] 333- ________.
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum Amount
Amount Offering Price Aggregate of
Title of Each Class of to be Per Offering Registration
Securities to be Registered Registered Share Price Fee
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Common Stock, $.01 par value per share 68,306(1) N/A N/A N/A
Common Stock, $.01 par value per share 41,315 $10.688 $441,575(2) $133.81
(1) 68,306 shares were originally registered on September 24, 1997 pursuant
to the Registration Statement filed on Form S-3 (File No. 333-36301).
The registration fee paid at that time for such shares was $247.10.
(2) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act and based upon the
average of the high and low prices on the Nasdaq National Market on
November 10, 1997.
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THE COMPANY HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE COMPANY 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),
SHALL DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED NOVEMBER 12, 1997
PROSPECTUS
AMERICAN SUPERCONDUCTOR CORPORATION
109,621 SHARES OF COMMON STOCK
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The 109,621 shares (the "Shares") of Common Stock, $.01 par value per
share ("Common Stock"), of American Superconductor Corporation ("ASC" or the
"Company") covered by this Prospectus are issued and outstanding shares which
may be offered and sold, from time to time, for the account of certain
stockholders of the Company (the "Selling Stockholders"). See "The Selling
Stockholders." The Shares covered by this Prospectus were issued to one of the
Selling Stockholders, James Maguire, as part of the acquisition of Applied
Engineering Technologies, Ltd. ("AET") by the Company through a merger completed
on July 31, 1997 and to the remainder of the Selling Stockholders (the "Former
SI Stockholders") as part of the merger of Superconductivity, Inc. ("SI") into a
wholly-owned subsidiary of the Company completed on April 8, 1997. All of the
shares offered hereunder are to be sold by the Selling Stockholders.
The Company will not receive any of the proceeds from the sale of the
Shares covered by this Prospectus. The Company will bear all expenses incurred
in effecting the registration of the Shares covered by this Prospectus,
including all registration and filing fees, exchange listing fees, and fees and
expenses of counsel and accountants for the Company but excluding (i) any
brokerage fees, selling commissions or underwriting discounts incurred by the
Selling Stockholders in connection with a sale under the Registration Statement
of which this Prospectus is a part and (ii) the fees and expenses of any counsel
retained by the Selling Stockholders.
The Shares covered by this Prospectus may be sold from time to time by
the Selling Stockholders, or by their pledgees, donees, transferees or other
successors in interest, on the Nasdaq National Market, in the over-the-counter
market, through the writing of options on the Shares, in ordinary brokerage
transactions, in negotiated transactions, or otherwise, at market prices
prevailing at the time of sale or at negotiated prices. See "Plan of
Distribution."
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The Selling Stockholders and intermediaries through whom the Shares are
sold may be deemed "underwriters" within the meaning of the Securities Act of
1933, as amended (the "Securities Act"), with respect to the Shares offered, and
any profits realized or commissions received may be deemed underwriting
compensation. The Company and the Selling Stockholders have agreed to certain
indemnification arrangements with respect to the offering. See "Plan of
Distribution."
The Common Stock is traded on the Nasdaq National Market under the
symbol "AMSC." On November 10, 1997, the closing sale price of the Common Stock
on the Nasdaq National Market was $10.625 per share.
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THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE
OF RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 9.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
-----------------------------------------
THE DATE OF THIS PROSPECTUS IS NOVEMBER 12, 1997.
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TABLE OF CONTENTS PAGE
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Available Information 5
Incorporation of Certain Documents by Reference 7
Special Note Regarding Forward-Looking Information 8
The Company 9
Risk Factors 9
Use of Proceeds 9
The Transactions 9
The Selling Stockholders 10
Plan of Distribution 11
Legal Matters 12
Experts 12
AVAILABLE INFORMATION
The Company is subject to the informational requirements 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 "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549 and at the Commission's regional offices
located at Seven World Trade Center, Suite 1300, New York, New York 10048, and
at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such materials also may be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. In addition, the Company is required to file electronic
versions of these documents through the Commission's Electronic Data Gathering,
Analysis and Retrieval System (EDGAR). The Commission maintains a World Wide Web
site at http://www.sec.gov that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission. The Common Stock of the Company is traded on the Nasdaq
National Market. Reports and other information concerning the Company may be
inspected at the National Association of Securities Dealers, Inc., 1735 K
Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement on
Form S-3 (together with all amendments, supplements, exhibits and schedules
thereto, the "Registration Statement") under the Securities Act, with respect to
the Shares offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement, as certain items are
omitted in accordance with the rules and regulations of the Commission. For
further information pertaining to the Company and the Shares, reference is made
to such Registration Statement. Statements contained in this Prospectus
regarding the contents of any agreement or other document are not necessarily
complete, and in each instance reference is made to the copy of such agreement
or document filed as an exhibit to the Registration Statement, each such
statement being qualified in all respects by such reference. The
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Registration Statement may be inspected without charge at the office of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies of all
or any part thereof may be obtained from the Commission at prescribed rates.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(I) The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1997, filed with the Commission on June 30,
1997, as amended by Amendment No. 1 on Form 10-K/A, filed with
the Commission on July 3, 1997 (the "Form 10-K");
(ii) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1997, filed with the Commission on August 14,
1997;
(iii) The Company's Definitive Notice, Proxy Statement and Proxy for
the Annual Meeting of Stockholders held on September 5, 1997
(the "Annual Meeting"), filed with the Commission on July 29,
1997, and the Revised Definitive Notice, Proxy Statement and
Proxy for the Annual Meeting, filed with the Commission on
August 8, 1997;
(iv) The Company's Current Report on Form 8-K dated April 8, 1997,
filed with the Commission on April 23, 1997, as amended by
Amendment No. 1 on Form 8-K/A, filed with the Commission on June
23, 1997; and
(v) The Company's Current Report on Form 8-K dated September 5,
1997, filed with the Commission on September 5, 1997.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the termination of the offering of the Shares registered
hereby shall be deemed to be incorporated by reference into this Prospectus and
to be a part hereof from the date of filing such documents. 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 or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written request of such person, a copy of any or
all of the foregoing documents incorporated by reference into this Prospectus
(without exhibits to such documents other than exhibits specifically
incorporated by reference into such documents). All such requests shall be
directed to: American Superconductor Corporation, 2 Technology Drive,
Westborough, Massachusetts 01581, Attention: Secretary, Telephone: (508)
836-4200.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION AND
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH IT
RELATES. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
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OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL.
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION
Certain statements in this Prospectus and in the documents incorporated
herein constitute "forward-looking statements" within the meaning of Section 27A
of the Securities Act and Section 2B of the Exchange Act. Without limiting the
foregoing, the words "believes," "anticipates," "plans," "expects" and similar
expressions are intended to identify forward-looking statements. Any statements
contained herein or incorporated herein that are not statements of historical
fact may be deemed to be forward-looking statements. There are a number of
important factors that could cause the results of the Company to differ
materially from those indicated by such forward-looking statements. These
factors include those set forth under the heading "Future Operating Results"
included as part of Exhibit 99.2 to the Company's Current Report on Form 8-K
dated September 5, 1997 and those set forth in "Risk Factors" herein.
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THE COMPANY
The Company develops and commercializes high temperature superconductor
wires, wire products and systems, including current leads, multistrand
conductors, electromagnetic coils and electromagnets, and subsystems comprising
electromagnetic coils integrated with appropriate cooling systems. The focus of
the Company's development and commercialization efforts is on electrical
equipment for use by electric utilities and industrial users of electrical
power. For large-scale applications, the Company's development efforts are
focused on power transmission cables, motors, transformers, generators and fault
current limiters. In the area of power quality, the Company is focused on
marketing and selling commercial, low temperature superconducting magnetic
energy storage ("SMES") devices, on development and commercialization of new
SMES products, and on development of power electronic subsystems and engineering
services for the power quality marketplace.
American Superconductor Corporation was incorporated in Delaware in
April 1987. The Company's principal executive offices are located at 2
Technology Drive, Westborough, Massachusetts 01581 and its telephone number is
(508) 836-4200.
RISK FACTORS
The Securities offered hereby involve a high degree of risk. The
following risk factors, together with the factors set forth under the heading
"Future Operating Results" included as part of APPENDIX A to the Form 10-K,
should be considered carefully in addition to the other information included or
incorporated by reference in this Prospectus before purchasing the Shares
offered hereby.
POSSIBLE VOLATILITY OF SHARE PRICE
Investors should be aware that market prices for securities of companies
such as ASC are highly volatile. Factors such as fluctuations in the Company's
operating results, announcements of technological innovations or new commercial
products by the Company or its competitors, governmental regulation,
developments in patent or other proprietary rights, and general market
conditions may have a significant effect on the market price of the Company's
Common Stock.
NO DIVIDENDS ANTICIPATED IN FUTURE
The Company has not paid any cash dividends on the Common Stock since
its inception and does not anticipate paying any cash dividends on its Common
Stock in the future.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares by
the Selling Stockholders, or by their respective pledgees, donees, transferees
or other successors in interest.
THE TRANSACTIONS
THE AET MERGER
Pursuant to an Agreement and Plan of Merger dated July 31, 1997 by and
among the Company, AET and James Maguire, effective July 31, 1997 (the "AET
Merger Agreement"), AET was merged with and into ASC (the "AET Merger"). In
consideration of the AET Merger, James Maguire, as the sole stockholder of AET,
was issued a total of 68,306 shares of Common Stock.
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THE SI MERGER
Pursuant to an Agreement and Plan of Merger dated March 7, 1997 by and
among the Company, ASC Merger Corp., a wholly-owned subsidiary of the Company,
and SI, effective April 8, 1997 (the "SI Merger Agreement"), SI was merged with
and into ASC Merger Corp. (the "SI Merger"). In consideration of the SI Merger,
the Former SI Stockholders were issued a total of 942,961 shares of Common
Stock.
THE SELLING STOCKHOLDERS
The following table sets forth the number of shares of Common Stock
owned by the Selling Stockholders as of October 31, 1997, the number of shares
of Common Stock to be offered by the Selling Stockholders pursuant to this
Prospectus and the number of shares of Common Stock to be owned by the Selling
Stockholders if all of the Shares offered hereby are sold as described herein.
If all of the shares offered hereby are sold as described herein, no Selling
Stockholder will own more than 1% of the Common Stock of the Company.
Prior to the AET Merger, James Maguire had not held any positions or
offices with, been employed by, or otherwise had a material relationship with,
the Company or any of its affiliates. Following the AET Merger, James Maguire
became an employee of ASC.
Prior to the SI Merger, the following persons were employed by SI and
continue to be employed at SI: Warren Buckles and Aaron King. Carel DeWinkel and
Susan Fettig were employed by SI until their resignations in August 1996 and May
1996, respectively.
NUMBER OF SHARES OF NUMBER OF SHARES OF
COMMON STOCK NUMBER OF SHARES OF COMMON STOCK
NAME OF OWNED AS COMMON STOCK OWNED
SELLING STOCKHOLDER OF OCTOBER 31, 1997 OFFERED HEREBY AFTER OFFERING
------------------- ------------------- -------------- --------------
James Maguire 68,306 61,475 6,831
Susan Fettig 2,634 2,371 263
Aaron King 1,165 1,048 117
Mark & Mary Daugherty 518 466 52
Warren Buckles 8,230 5,000 3,230
RWBCO II Partners Fund Limited
Partnership 15,298 13,768 1,530
Baird Capital Partners Limited
Partnership 23,717 21,345 2,372
Carel DeWinkel 4,609 4,148 461
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PLAN OF DISTRIBUTION
The Shares may be offered and sold from time to time by the Selling
Stockholders, or by their pledgees, donees, transferees or other successors in
interest. The Selling Stockholders will act independently of the Company in
making decisions with respect to the timing, manner and size of each sale. Such
sales may be made in the over-the-counter market or otherwise, at prices related
to the then current market price or in negotiated transactions, including
pursuant to one or more of the following methods: (a) purchases by a
broker-dealer as principal and resale by such broker or dealer for its account
pursuant to this Prospectus; (b) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; and (c) block trades in
which the broker-dealer so engaged will attempt to sell the shares as agent but
may position and resell a portion of the block as principal to facilitate the
transaction. The Company has been advised by the Selling Stockholders that they
have not made any arrangements relating to the distribution of the shares
covered by this Prospectus. In effecting sales, broker-dealers engaged by the
Selling Stockholders, or by their pledgees, donees, transferees or other
successors in interest, may arrange for other broker-dealers to participate.
Broker-dealers will receive commissions or discounts from the Selling
Stockholders, or their pledgees, donees, transferees or other successors in
interest, in amounts to be negotiated immediately prior to the sale.
In offering the Shares, the Selling Stockholders and any broker-dealers
and any other participating broker-dealers who execute sales for the Selling
Stockholders may be deemed to be "underwriters" within the meaning of the
Securities Act in connection with such sales, and any profits realized by the
Selling Stockholders and the compensation of such broker-dealer may be deemed to
be underwriting discounts and commissions. In addition, any of the Shares which
qualify for sale pursuant to Rule 144 may be sold under Rule 144 rather than
pursuant to this Prospectus. None of the Shares presently qualify for sale
pursuant to Rule 144.
The Company has advised the Selling Stockholders that during such time
as they may be engaged in a distribution of Common Stock included herein, they
are required to comply with the Securities Act, any rule or regulation under the
Securities Act, and Rule 10b-6 under the Exchange Act.
The Company has agreed to indemnify James Maguire against certain
liabilities set forth in Section 4.3(e) of the AET Merger Agreement in
connection with the offer and sale of the Shares, including liabilities under
the Securities Act. James Maguire has agreed to indemnify in certain
circumstances the Company and certain related persons against certain
liabilities set forth in Section 4.3(d)(ii)(A) of the AET Merger Agreement,
including liabilities under the Securities Act.
The Company has agreed to indemnify the Former SI Stockholders against
certain liabilities set forth in Section 7(a) of a Registration Rights Agreement
between the Company and each of the Former SI Stockholders dated April 8, 1997
(the "Registration Rights Agreement") in connection with the offer and sale of
the Shares, including liabilities under the Securities Act, the Securities
Exchange Act of 1934, state securities laws or Blue Sky laws. The Former SI
Stockholders have agreed to indemnify in certain circumstances and up to a
certain amount the Company and certain related persons against certain
liabilities set forth in Section 7(b) of the Registration Rights Agreement in
connection with the offer and sale of the Shares, including liabilities under
the Securities Act, the Securities Exchange Act of 1934, state securities laws
or Blue Sky laws.
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The Company has agreed with James Maguire to keep the Registration
Statement of which this Prospectus is a part effective until the earlier of (i)
one month after the date on which such Registration Statement is declared
effective, or (ii) the date on which all shares offered by James Maguire have
been sold by Mr. Maguire. The Company intends to de-register any of the Shares
not sold by James Maguire and any other shares remaining unsold at the end of
such period. The Company may, under specified circumstances set forth in Section
4.3(b) of the AET Merger Agreement, suspend the Registration Statement of which
this Prospectus is a part after effectiveness and require that sales of shares
pursuant to such Registration Statement cease immediately.
LEGAL MATTERS
The validity of the shares offered hereby will be passed upon for the
Company by Hale and Dorr LLP, a limited liability partnership including
professional corporations, 60 State Street, Boston, Massachusetts 02109.
EXPERTS
The Consolidated Financial Statements incorporated in this Prospectus by
reference have been audited by Coopers & Lybrand L.L.P., Smith and Gesteland,
LLP and Ernst & Young LLP, all independent public accountants, as indicated in
their reports with respect thereto, and are incorporated by reference in
reliance upon the authority of such firms as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses to be incurred in
connection with the sale and distribution of the shares being registered hereby,
all of which will be borne by the Company. All amounts shown are estimates
except the Securities and Exchange Commission registration fee.
Filing Fee - Securities and Exchange Commission $ 381
Legal fees and expenses of the Company $13,000
Accounting fees and expenses of the Company $ 4,000
Printing expenses $ 3,000
Miscellaneous expenses $ 2,000
Total Expenses $22,381
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law 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
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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.
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.
The Company has agreed to indemnify James Maguire against certain
liabilities set forth in Section 4.3(e) of the AET Merger Agreement in
connection with the offer and sale of the Shares, including liabilities under
the Securities Act. James Maguire has agreed to indemnify in certain
circumstances the Company and certain related persons against certain
liabilities set forth in Section 4.3(d)(ii)(A) of the AET Merger Agreement,
including liabilities under the Securities Act.
The Company has agreed to indemnify the Former SI Stockholders against
certain liabilities set forth in Section 7(a) of the Registration Rights
Agreement. The Former SI Stockholders have agreed to indemnify in certain
circumstances and up to a certain amount the Company and certain related persons
against certain liabilities set forth in Section 7(b) of the Registration Rights
Agreement in connection with the offer and sale of the Shares, including
liabilities under the Securities Act, the Securities Exchange Act of 1934, state
securities laws or Blue Sky laws.
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ITEM 16. LIST OF EXHIBITS.
2*** Agreement and Plan of Merger by and among American
Superconductor Corporation, Applied Engineering Technologies,
Ltd. and James Maguire dated July 31, 1997.
4.1* Restated Certificate of Incorporation of the Registrant.
4.2** By-laws of the Registrant, as amended to date.
5 Opinion of Hale and Dorr LLP.
23.1 Consent of Hale and Dorr LLP, included in Exhibit 5 filed
herewith.
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Smith & Gesteland, LLP
23.4 Consent of Ernst & Young LLP
24*** Power of Attorney
- ------------------
* 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).
*** Incorporated by reference to Exhibits to the Registrant's Registration
Statement on Form S-3 (File No. 333-36301) filed with the Commission on
September 24, 1997.
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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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any derivation from the low or high and 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 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement.
(2) That, for the purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at the 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.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Corporation pursuant to the indemnification provisions described herein, or
otherwise, the Company 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 Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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, 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 Amendment
No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Westborough, Commonwealth
of Massachusetts, on this 12th day of November, 1997.
AMERICAN SUPERCONDUCTOR CORPORATION
By: /S/ GREGORY J. YUREK
---------------------------------------
Gregory J. Yurek
Chairman of the Board, President and
Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Gregory J. Yurek Chairman of the Board, November 12, 1997
- ----------------------------- President and Chief Executive
Gregory J. Yurek Officer and Director
(Principal Executive Officer)
/s/ Thomas Rosa Controller November 12, 1997
- ----------------------------- (Principal Financial Officer
Thomas Rosa and Principal Accounting
Officer)
/s/ Albert J. Baciocco, Jr. * Director November 12, 1997
- -----------------------------
Albert J. Baciocco, Jr.
/s/ Frank Borman * Director November 12, 1997
- -----------------------------
Frank Borman
/s/ Peter O. Crisp * Director November 12, 1997
- -----------------------------
Peter O. Crisp
/s/ Richard Drouin * Director November 12, 1997
- -----------------------------
Richard Drouin
/s/ Gerard J. Menjon * Director November 12, 1997
- -----------------------------
Gerard Menjon
/s/ Andrew G.C. Sage, II * Director November 12, 1997
- -----------------------------
Andrew G.C. Sage, II
/s/ John B. Vander Sande * Director November 12, 1997
- -----------------------------
John B. Vander Sande
*By: /s/ Gregory J. Yurek
-------------------------
Gregory J. Yurek
Attorney-in-Fact
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EXHIBIT INDEX
2*** Agreement and Plan of Merger by and among American
Superconductor Corporation, Applied Engineering
Technologies, Ltd. and James Maguire dated July 31, 1997.
4.1* Restated Certificate of Incorporation of the Registrant.
4.2** By-laws of the Registrant, as amended to date.
5 Opinion of Hale and Dorr LLP.
23.1 Consent of Hale and Dorr LLP, included in Exhibit 5 filed
herewith.
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Smith & Gesteland, LLP
23.4 Consent of Ernst & Young LLP
24*** Power of Attorney
------------------
* 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).
*** Incorporated by reference to Exhibits to the Registrant's Registration
Statement on Form S-3 (File No. 333-36301) filed with the Commission on
September 24, 1997.