sv3
As filed with the Securities and Exchange Commission on February 11, 2011
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
SUPERCONDUCTOR TECHNOLOGIES INC.
(Exact name of registrant as specified in its charter)
|
|
|
Delaware
|
|
77-0158076 |
(State or other jurisdiction of incorporation or organization)
|
|
(I.R.S. Employer Identification Number) |
460 Ward Drive
Santa Barbara, CA 93111-2310
(805) 690-4500
(Address, including zip code, and telephone number, including area code, of registrants principal
executive offices)
|
|
|
|
|
Copies of communications sent to: |
Jeffrey A. Quiram |
|
|
President and Chief Executive Officer
|
|
Ben D. Orlanski, Esq. |
Superconductor Technologies Inc.
|
|
Matthew S. OLoughlin, Esq. |
460 Ward Drive
|
|
Manatt, Phelps & Phillips, LLP |
Santa Barbara, CA 93111-2310
|
|
11355 West Olympic Boulevard |
(805) 690-4500
|
|
Los Angeles, CA 90064 |
(Name, address, including zip
code, and telephone number,
|
|
(310) 312-4000 |
including area code, of agent for service)
|
|
(310) 312-4224 Facsimile |
|
|
|
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement as determined by market conditions.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box: o
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: þ
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 of the same offering. o
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. o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is, a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act:
Large accelerated filer o | Accelerated filer o | Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company
þ |
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proposed maximum |
|
|
Proposed maximum |
|
|
|
|
|
|
|
|
Amount |
|
|
offering price |
|
|
aggregate |
|
|
Amount of |
|
|
Title of Securities to be Registered |
|
|
to be registered (1) |
|
|
per unit(2) |
|
|
offering price(2) |
|
|
registration fee |
|
|
Common Stock, par value $0.001 per share |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred Stock, par value $0.001 per share |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Warrants |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
|
|
|
$80,000,000 |
|
|
$9,288(3)(4) |
|
|
|
|
|
(1) |
|
We are registering an indeterminate number of shares of common stock and preferred stock and an indeterminate amount of
warrants to purchase common stock or preferred stock, each of which may be offered from time to time at prices to be
determined at the time of any such offering. The aggregate offering price of these securities will not exceed $80,000,000.
Any securities registered hereunder may be sold separately from, or together in the same offering with, other securities
registered hereunder. The securities registered also include such indeterminate amounts and numbers of shares of common
stock and preferred stock that may be issued upon the exercise of warrants registered hereunder or, in the case of the
common stock, upon the conversion of or in exchange for, or pursuant to the antidilution provisions of, shares of
preferred stock registered hereunder. |
|
(2) |
|
The proposed maximum aggregate offering price per class of security will be determined from time to time by the Registrant
in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each
class of security in reliance on Rule 457(o) under the Securities Act of 1933 and General Instruction II.D of Form S-3
under the Securities Act of 1933. |
|
(3) |
|
Estimated solely for purposes of determining the registration fee pursuant to Rule 457(o) under the Securities Act of 1933. |
|
(4) |
|
Pursuant to Rule 415(a)(6) and Rule 457(p) under the Securities Act of 1933, the Registrant hereby offsets the total
registration fee due under this registration statement by the amount of the filing fee associated with the unsold
securities from the Registrants registration statement on Form S-3, filed with the Commission on December 17, 2007 (File
No. 333-148115), registering securities for a maximum aggregate offering price of $80,000,000 (the Prior Registration
Statement). Of that amount, the Registrant sold common stock with an aggregate offering price of $30,591,365, leaving a
balance of unsold securities with an aggregate offering price of $49,408,635. The associated filing fee of $1,516 for such
unsold securities, calculated under Rule 457(o), is hereby used to offset the current registration fee due. Accordingly,
the full amount of the $9,288 registration fee currently due for this registration statement has been partially paid by
offset against the balance of the fee paid for the Prior Registration Statement and the Registrant is paying $7,772 in
filing fees for this registration statement. Pursuant to Rule 415(a)(6), the offering of the unsold securities registered
under the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this registration
statement. |
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 Securities and Exchange Commission, acting pursuant to
said Section 8(a), may determine.
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.
SUBJECT TO COMPLETION, DATED FEBRUARY 11, 2011
PROSPECTUS
$80,000,000
Common Stock
Preferred Stock
Warrants
We may offer, from time to time, separately or together in any combination, common stock,
preferred stock or warrants having an aggregate offering price of up to $80,000,000.
We may offer the securities in one or more series, in amounts, at prices and on terms
determined at the time of offering. We will provide the specific terms of any securities we
actually offer for sale in supplements to this prospectus.
We may sell these securities directly, through agents, dealers or underwriters as designated
from time to time, or through a combination of these methods. We reserve the sole right to accept,
and together with our agents, from time to time, to reject in whole or in part any proposed
purchase of securities to be made directly or through agents. If our agents or any dealers or
underwriters are involved in the sale of securities, the applicable prospectus supplement will set
forth the names of the agents, dealers or underwriters and any applicable commissions or discounts.
You should read carefully this prospectus, each prospectus supplement and the documents
incorporated by reference into this prospectus and any prospectus supplement before you invest in
any of our securities. This prospectus may not be used to sell securities unless accompanied by a
prospectus supplement.
Our common stock is traded on the NASDAQ Capital Market under the symbol SCON. On
February 10, 2011, the closing sale price of our common stock on the NASDAQ Capital Market was $3.31 per
share. We have sold an aggregate of $13,335,350 of securities pursuant to General Instruction
I.B.6 of Form S-3 during the 12 calendar months prior to and including the date hereof.
Investing in our Securities involves risks. You should carefully consider the risk
factors included under the heading Risk Factors in the applicable prospectus supplement and
under that heading or similar headings in the other documents incorporated by reference in this
prospectus or any prospectus supplement before making a decision to purchase our securities.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of the securities described in this prospectus or passed upon the adequacy
or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2011.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement we filed with the Securities and Exchange
Commission, or the SEC, using a shelf registration process. Under the shelf registration process,
using this prospectus, together with a prospectus supplement, we may sell, from time to time, in
one or more offerings, any combination of the securities described in this prospectus in a dollar
amount that does not exceed $80,000,000 in the aggregate. This prospectus provides you with a
general description of the securities we may offer. Each time we offer securities, a prospectus
supplement will be provided that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information contained in this
prospectus. To the extent that any statement we make in a prospectus supplement is inconsistent
with statements made in this prospectus, the statements made in this prospectus will be deemed
modified or superseded by those made in the prospectus supplement.
You should read this prospectus, the applicable prospectus supplement and the information
incorporated by reference in this prospectus or any prospectus supplement before making an investment in our securities. See
Documents Incorporated by Reference and Where You Can Find More Information for more
information. You should rely only on the information contained in or incorporated by reference in
this prospectus or a prospectus supplement. We have not authorized anyone to provide you with
different information. This document may be used only in jurisdictions where offers and sales of
these securities are permitted. You should not assume that information contained in this
prospectus, in any supplement to this prospectus, or in any document incorporated by reference is
accurate as of any date other than the date on the front page of the document that contains the
information, regardless of when this prospectus or a prospectus supplement is delivered or when any
sale of our securities occurs.
i
SUMMARY
Our Company
We are a global leader in high temperature superconductor (HTS) materials and related
technologies. HTS materials have the unique ability to conduct electrical current with little or no
resistance when cooled to very low critical temperatures. As a result, HTS materials can
substantially improve the performance of electrical systems by reducing the power loss and
minimizing heat generation caused when electrical currents flow through conventional conductors. To
obtain these benefits on a cost-effective basis, we have developed patented and proprietary
technologies relating to matters such as thin film deposition manufacturing, cryogenic cooling and
radio frequency (RF) circuit filter tuning. We have had over $150 million in HTS sales to date,
with over 6,000 of our commercial systems deployed worldwide. We are now pursuing new applications
in HTS wire and tunable handset filters, as well as expanding our existing applications in the next
generation of wireless networks.
Our Proprietary Technology
We focus on research and development to maintain our technological edge in solving the
technical challenges in commercializing HTS technology. Many of our employees hold advanced degrees
in physics, materials science, electrical engineering and other related fields. Our development
efforts have yielded an extensive patent portfolio as well as critical trade secrets, unpatented
technology and proprietary knowledge. As of October 2, 2010, our 60 U.S. patents, 19 pending U.S.
patent applications, 21 foreign patents and 62 pending foreign patent applications covered matters
including superconducting technologies, the production of thin film materials and structures,
cryogenics systems and packaging, advanced circuit design and tunable RF filters. Our patented
RCE-CDR HTS thin film deposition manufacturing process can produce HTS materials of the highest
quality with an order-of-magnitude cost advantage over competing approaches. Our proprietary and
patented cryocoolers provide us with a significant competitive advantage by maintaining our HTS
materials at their critical temperatures, having demonstrated a mean-time-between-failure through
field and in-house lifetime tests of over one million hours without scheduled maintenance. Our
technology also permits us to design and fabricate extremely small, high-performance circuits,
including HTS circuits, to remove interference inherent in some RF signals.
Our Target Markets
We are currently focusing our efforts on applications of our proprietary HTS technology
in the following areas:
Superconducting Power Applications
We are adapting our patented HTS material deposition techniques to develop energy
efficient, cost-effective and high performance second generation (2G) HTS wire for existing and
emerging power applications. HTS wire enables greater electrical current carrying capacity than
comparable size copper wires, dramatically reducing the volume and weight of the required wire. To
date, the market for 2G HTS wire has been limited by the inability of the existing suppliers to
establish production processes that are capable of producing wire that meets target specifications
and cost requirements. We plan to utilize our patented and proprietary manufacturing methods to
overcome these challenges and make the HTS wire cost-effective in a number of applications.
To accelerate our efforts in the development and manufacturing processes for our 2G HTS
wire, we have established a Cooperative Research and Development Agreement with Los Alamos National
Laboratory and have partnered with other HTS industry leaders. After successfully producing 2G HTS
wire in one meter lengths, we are now completing the design of a wire deposition machine to produce
50 meter lengths, with the goal of producing one kilometer lengths in our production machine.
Assuming we overcome the technical hurdles, we intend to be a supplier of HTS wire to manufacturing
concerns, primarily large businesses, which would incorporate the wire into their products. We have
begun delivering samples of our 2G HTS wire for testing by prospective customers, which will allow
us to begin to formalize our commercial relationships with these customers.
1
We are initially targeting markets where we believe the advantages of HTS wire are at a
premium, such as:
|
|
Wind Turbines: Current wind turbine power generating
capacity is limited by the size and weight of the
generator. Turbine manufacturers believe that building a
generator utilizing HTS wire will reduce its size and
weight sufficiently to enable the development of 10
megawatt (MW) and larger wind turbines. According to
Emerging Energy Research, 2731 MW of worldwide offshore
capacity of wind turbines producing more than 5 MW is
expected to be installed in 2016, which will rise to
nearly 5377 MW in 2020. Using a current estimated
installed offshore cost of $2 million per MW, this
translates into an investment for 5 MW capacity or
larger wind turbines of approximately $5.5 billion in
2016 and nearly $11 billion in 2020. |
|
|
|
Power Cables: Because they can carry significantly more
electrical current with less electrical loss than
conventional cables, HTS power cables allow utilities to
deliver significantly more electrical current utilizing
existing power cable entry facilities in office
buildings and other facilities with large and growing
power requirements. |
|
|
|
Fault Current Limiters: A fault current limiter is a
device in a power transmission network which cuts off
electrical flow in the same manner as a ground fault
interrupter in the home. By eliminating the
superconductor properties of the HTS wire when too much
electricity is flowing, the resistance in the fault
current limiter can be substantially increased, stopping
current flow and preventing damage to the rest of the
power distribution network. |
|
|
|
Superconducting Magnetic Energy Storage (SMES): As
renewable energy generating systems continue to
proliferate, the power grid needs reliable power backup
to offset the intermittent nature of those systems. The
low power loss from HTS wire could be used to provide an
alternative to chemical and other forms of current
battery technology for energy storage. |
|
|
|
Magnetic Resonance Imaging (MRI): MRI machines used for
medical imaging already use existing low temperature
superconducting wire; the improvements targeted for 2G
HTS wire may enable the manufacturers of MRI machines to
reduce the initial cost and operating expenses of these
devices. |
|
|
|
Industrial Motors and Generators: The reduced weight
and size required for a generator built with HTS wire
could enable motors and generators to generate two to
three times the power as existing generators of the same
size. |
Tunable Filter Products
We have developed and patented several techniques to allow a single HTS or conventional
(SAW or BAW) RF filter to be tuned between multiple frequency bands. Current cell phone handsets
generally utilize two or three discrete filters for each frequency band, and thus require ten or
more filters in each handset to enable seamless worldwide coverage with todays five bands.
However, with the forecasted growth in the future generations of cell phones to ten or more bands,
a discrete filter approach would be both expensive and occupy scarce space in the handset. To
address this challenge, we are pursuing opportunities with existing wireless handset module
providers to incorporate tunable filters into future generations of smart phones. These tunable
filters will allow significant reduction in size, power, and cost over conventional discrete filter
technologies.
Wireless Networks
Our current commercial products help maximize the performance of wireless telecommunications
networks by improving the quality of uplink signals from mobile wireless devices. Our products
increase capacity utilization, lower dropped and blocked calls, extend coverage, and enable higher
wireless data throughput, while reducing capital and operating costs for the carrier. While we
continue to serve the market for retrofitting existing towers, we are currently pursuing an
opportunity to include our HTS filters in the Long Term Evolution (LTE) data networks now being
deployed by the top U.S. wireless carriers (expected to be over 75,000 base stations in the next
few years). Our HTS filters have been incorporated into one of the two base station solutions
selected by a major carrier for live market trials.
2
Corporate Information
Our facilities and executive offices are located at 460 Ward Drive, Santa Barbara,
California 93111, and our telephone number is (805) 690-4500. We were incorporated in Delaware on
May 11, 1987. Additional information about us is available on our website at www.suptech.com. The
information contained on or that may be obtained from our website is not, and shall not be deemed
to be, a part of this prospectus. Our common stock is currently traded on the NASDAQ Capital Market
under the symbol SCON.
The Securities We May Offer
With this prospectus, we may offer common stock, preferred stock and warrants, separately or
together in any combination of the foregoing. The aggregate initial offering price of all
securities we sell in the primary offerings under this prospectus will not exceed $80,000,000. Each
time we offer securities with this prospectus, we will provide offerees with a prospectus
supplement that will contain the specific terms of the securities being offered. The following is a
summary of the securities we may offer with this prospectus.
We may sell the securities to or through underwriters, dealers or agents or directly to
purchasers. We, as well as any agents acting on our behalf, reserve the sole right to accept and to
reject in whole or in part any proposed purchase of securities. Each prospectus supplement will set
forth the names of any underwriters, dealers or agents involved in the sale of securities described
in that prospectus supplement and any applicable fee, commission or discount arrangements with
them.
Common Stock
We may offer shares of our common stock, par value $0.001 per share, either alone or
underlying other registered securities convertible into or exchangeable for our common stock.
Holders of our common stock are entitled to such dividends as our board of directors may declare
from time to time out of legally available funds, subject to the preferential rights of the holders
of any shares of our preferred stock that are outstanding or that we may issue in the future.
Currently, we do not pay any dividends. Each holder of our common stock is entitled to one vote per
share. Holders of our common stock have no preemptive rights. In this prospectus, we provide a
general description of, among other things, our dividend policy and the transfer and voting
restrictions that apply to holders of our common stock.
Preferred Stock
We may issue shares of preferred stock in one or more classes or series. Our board of
directors or a committee designated by our board of directors will determine the dividend, voting
and conversion rights and other provisions at the time of sale. The particular terms of each class
or series of preferred stock, including redemption privileges, liquidation preferences, voting
rights, dividend rights and/or conversion rights, will be more fully described in the applicable
prospectus supplement relating to the preferred stock offered thereby.
Warrants
We may offer warrants for the purchase of shares of preferred or common stock. We may issue the
warrants by themselves or together with preferred stock or common stock and the warrants may be
attached to or separate from any offered securities. Each series of warrants will be issued under a
separate warrant agreement to be entered into between us and a warrant agent. Our board of
directors or a committee designated by our board of directors will determine the terms of the
warrants at the time of sale. This prospectus contains only general terms and provisions of the
warrants. The applicable prospectus supplement will describe the particular terms of the warrants
being offered thereby.
3
RISK FACTORS
We have included discussions of cautionary factors describing risks relating to our business
and an investment in our securities in our Annual Report on Form 10-K for the year ended December
31, 2009, which is incorporated by reference into this prospectus. See Where You Can Find More
Information for an explanation of how to get a copy of this report. Additional risks related to
our securities may also be described in a prospectus supplement. Before purchasing our securities,
you should carefully consider the risk factors we describe in any prospectus supplement or in any
report incorporated by reference into this prospectus or such prospectus supplement, including our
Annual Report on Form 10-K for the year ended December 31, 2009 or any Annual Report on Form 10-K
or Quarterly Report on Form 10-Q that is incorporated by reference into this prospectus or such
prospectus supplement after the date of this prospectus. Although we discuss key risks in those
risk factor descriptions, additional risks not currently known to us or that we currently deem
immaterial also may impair our business. Our subsequent filings with the SEC may contain amended
and updated discussions of significant risks. We cannot predict future risks or estimate the
extent to which they may affect our financial performance.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains, and may incorporate by reference, forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933, as amended, or Securities Act, and
Section 21E of the Securities Exchange Act of 1934, as amended, or Exchange Act. You can find many
(but not all) of these statements by looking for words such as approximates, believes, hopes,
expects, anticipates, estimates, projects, intends, plans, would, should, could,
may, will or other similar expressions in this prospectus or the documents incorporated by
reference. These forward-looking statements are subject to certain risks and uncertainties that
could cause actual results to differ materially from our historical experience and our present
expectations or projections. Factors that could cause actual results to differ from those discussed
in the forward-looking statements include, but are not limited to:
|
|
Our limited cash and a history of losses; |
|
|
|
The limited number of potential customers; |
|
|
|
The limited number of suppliers for some of our components; |
|
|
|
There being no significant backlog from quarter to quarter; |
|
|
|
Our market being characterized by rapidly advancing technology; |
|
|
|
Fluctuations in product demand from quarter to quarter; |
|
|
|
The impact of competitive filter products, technologies and pricing; |
|
|
|
Manufacturing capacity constraints and difficulties; |
|
|
|
Local, regional, national and international economic conditions and events and the impact they may have
on us and our customers, such as the current worldwide recession; |
|
|
|
Political instability, acts of war or terrorism, or natural disasters; |
|
|
|
Continued volatility in the credit and equity markets and the resulting effect on the general economy; and |
|
|
|
Our success at managing the risks involved in the foregoing items. |
4
We claim the protection of the safe harbor contained in the Private Securities Litigation
Reform Act of 1995. We caution investors that any forward-looking statements presented in this
prospectus or any prospectus supplement or the documents incorporated by reference herein or
therein, or those that we may make orally or in writing from time to time, are based upon
managements beliefs and assumptions and are made based on information available to us as of the
time made. We undertake no obligation to publicly update or revise any forward-looking statements
included or incorporated by reference in this prospectus or any prospectus supplement or to update
the reasons why actual results could differ from those contained in such statements, whether as a
result of new information, future events or otherwise, except to the extent required by federal
securities laws. Forward-looking statements may be contained in this prospectus or any prospectus
supplement (and the documents incorporated by reference herein or therein) under Risk Factors, or
may be contained in our Annual Report on Form 10-K or in our Quarterly Reports on Form 10-Q under
headings such as Managements Discussion and Analysis of Financial Conditions and Results of
Operations and Business, or in our Current Reports on Form 8-K, among other places. Any investor
in us should consider all risks and uncertainties disclosed in our filings with the SEC described
below under the heading Where You Can Find More Information, all of which are accessible on the
SECs website at www.sec.gov.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we anticipate that the net
proceeds from the sale of the securities under this prospectus will be used for general corporate
purposes. General corporate purposes may include repayment of debt, capital expenditures, and any
other purposes that we may specify in any prospectus supplement. In addition, we may use a portion
of any net proceeds to acquire complementary products, technologies or businesses. We will have
significant discretion in the use of any net proceeds. Investors will be relying on the judgment of
our management regarding the application of the proceeds of any sale of the securities. We may
invest the net proceeds temporarily until we use them for their stated purpose.
DESCRIPTION OF CAPITAL STOCK
The following description of our common stock and preferred stock, together with the
additional information we include in any applicable prospectus supplement, summarizes the material
terms and provisions of the common stock and the preferred stock that we may offer pursuant to this
prospectus. While the terms we have summarized below will apply generally to any future common
stock or preferred stock that we may offer, we will describe the particular terms of any class or
series of these securities in more detail in the applicable prospectus supplement. For the complete
terms of our common stock and preferred stock, please refer to our restated certificate of
incorporation, as amended, or our certificate of incorporation, and our amended and restated
bylaws, as amended, or our bylaws, which are exhibits to the registration statement of which this
prospectus is a part. The terms of these securities may also be affected by the General Corporation
Law of the State of Delaware. The summary below and that contained in any prospectus supplement is
qualified in its entirety by reference to our certificate of incorporation and our bylaws, as
either may be amended from time to time after the date of this prospectus, but before the date of
any such prospectus supplement.
Authorized Capitalization
We have 252,000,000 shares of capital stock authorized under our certificate of incorporation,
consisting of 250,000,000 shares of common stock and 2,000,000 shares of preferred stock, of which
706,829 have been designated as Series A Convertible Preferred Stock, par value $0.001 per share,
or Series A Preferred Stock. As of February 10, 2011, we had 33,002,352 shares of common stock
outstanding and 611,523 shares of our Series A Preferred Stock outstanding. Our authorized shares
of common stock and preferred stock are available for issuance without further action by our
stockholders, unless such action is required by applicable law or the rules of any stock exchange
or automated quotation system on which our securities may be listed or traded. If the approval of
our stockholders is not so required, our board of directors may determine not to seek stockholder
approval.
Common Stock
Holders of our common stock are entitled to such dividends as may be declared by our board of
directors out of funds legally available for such purpose, subject to any preferential dividend
rights of any then outstanding
5
preferred stock. The shares of common stock are neither redeemable nor convertible. Holders
of common stock have no preemptive or subscription rights to purchase any of our securities.
Each holder of our common stock is entitled to one vote for each such share outstanding in the
holders name. No holder of common stock is entitled to cumulate votes in voting for directors.
In the event of our liquidation, dissolution or winding up, the holders of our common stock
are entitled to receive pro rata our assets that are legally available for distribution, after
payments of all debts and other liabilities and subject to the prior rights of any holders of
preferred stock then outstanding. All of the outstanding shares of our common stock are, and the
shares of common stock issued upon the conversion of any securities convertible into our common
stock will be, fully paid and non-assessable. The shares of common stock offered by this prospectus
or upon the conversion of any preferred stock or debt securities or exercise of any warrants
offered pursuant to this prospectus, when issued and paid for, will also be, fully paid and
non-assessable.
Our common stock is listed on the NASDAQ Capital Market under the symbol SCON. Registrar &
Transfer Company is the transfer agent and registrar for our common stock. Its address is 10
Commerce Drive, Cranford, NJ 07016, and its telephone number is (800) 866-1340.
Preferred Stock
Our certificate of incorporation permits us to issue up to 2,000,000 shares of preferred stock
in one or more series and with rights and preferences that may be fixed or designated by our board
of directors without any further action by our stockholders. We currently have 706,829 shares of
our Series A Preferred Stock designated, and as of February 10, 2011, we had 611,523 shares of our
Series A Preferred Stock outstanding.
Subject to the limitations prescribed in our certificate of incorporation and under Delaware
law, our certificate of incorporation authorizes the board of directors, from time to time by
resolution and without further stockholder action, to provide for the issuance of shares of
preferred stock, in one or more series, and to fix the designation, powers, preferences and other
rights of the shares and to fix the qualifications, limitations and restrictions thereof. Although
our board of directors has no present intention to issue any additional preferred stock, the
issuance of preferred stock could adversely affect the rights of holders of our common stock,
including with respect to voting, dividends and liquidation, by issuing shares of preferred stock
with certain voting, conversion and/or redemption rights. Such issuance of preferred stock may have
the effect of delaying, deferring or preventing a change of control.
Preferred stock could thus be issued quickly with terms calculated to delay or prevent a
change in control of our company or to make removal of management more difficult. Additionally,
the issuance of preferred stock may decrease the market price of our common stock. The number of
authorized shares of preferred stock may be increased or decreased, but not decreased below the
number of shares then outstanding, by the affirmative vote of the holders of a majority of our
common stock without a vote of the holders of preferred stock, or any series of preferred stock,
unless a vote of any such holder is required pursuant to the terms of such series of preferred
stock.
The following description sets forth certain general terms and provisions of the preferred
stock we may issue. If we offer convertible preferred stock, such stock will be convertible into
shares of our common stock. With respect to any convertible preferred stock or preferred stock
(each referred to herein as preferred stock) we may choose to offer, the specific designations and
rights will be described in the prospectus supplement relating to the preferred stock offered,
including the following terms. Each time that we issue a new series of preferred stock, we will
file with the SEC a definitive certificate of designations that will state the designation, powers,
preferences, rights and qualifications, limitations and restrictions of that series of preferred
stock. In addition, the prospectus supplement relating to that new series of preferred stock will
specify the particular amount, price and other terms of that new series. These terms will include:
|
|
|
the designation of the series, which may be by distinguishing number, letter or title; |
|
|
|
|
the number of shares of the series, which number the board of directors may thereafter (except where
otherwise provided in the preferred stock designation) increase or decrease (but not below the number
of shares thereof then outstanding); |
6
|
|
|
the price at which the preferred stock will be issued; |
|
|
|
|
the dividend rate, the dates on which the dividends will be payable, if any, whether dividends shall be
cumulative or noncumulative and other terms relating to the payment of dividends on the preferred
stock; |
|
|
|
|
the redemption rights and price or prices, if any, for shares of the series; |
|
|
|
|
whether the preferred stock is redeemable or subject to a sinking fund, and the terms and amount of
such sinking fund provided for the purchase or redemption of shares of the series; |
|
|
|
|
the amounts payable on shares of the series, and the special or relative rights of such shares, in the
event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of our
company; |
|
|
|
|
whether the shares of the series shall be convertible into shares of any other class or series, or any
other security, of our company or any other corporation, and, if so, the specification of such other
class or series or such other security, the conversion price or prices or rate or rates, any
adjustments thereof, the date or dates as of which such shares shall be convertible and all other terms
and conditions upon which such conversion may be made; |
|
|
|
|
any listing of the preferred stock on any securities exchange; |
|
|
|
|
the relative ranking and preferences of the preferred stock as to dividend rights and rights upon
liquidation and dissolution or winding up; |
|
|
|
|
restrictions on the issuance of shares of the same series or of any other class or series; |
|
|
|
|
the voting rights, if any, of the holders of shares of the series, provided that no share of preferred
stock of any series will be entitled to more than one vote per share of preferred stock; and |
|
|
|
|
any additional rights, preferences, qualifications, limitations and restrictions of the preferred stock. |
Any prospectus supplement filed in connection with an offering of preferred stock will
describe all material terms of such series of preferred stock and all material terms of any common
stock, if any, issuable upon conversion of such preferred stock. However, the description of the
terms of the preferred stock to be set forth in an applicable prospectus supplement will not be
complete and will be subject to and qualified in its entirety by reference to the certificate of designations or the certificate of
amendment to our certificate of incorporation relating to the applicable series of preferred stock,
together with our bylaws. The registration statement of which this prospectus forms a part
currently does or will in the future include the certificate of designations or the certificate of amendment and our bylaws as
exhibits or incorporate them by reference.
The preferred stock will, if and when issued, be fully paid and non-assessable. The holders of
the preferred stock will not have preemptive rights.
Series A Convertible Preferred Stock
In October 2007, in connection with entering into an amended investment agreement with Hunchun
BaoLi Communication Co. Ltd., or BAOLI, our board of directors authorized the designation and
issuance of 706,829 shares of our Series A Preferred Stock. On January 8, 2008, the terms of the
investment agreement with BAOLI were amended, and we issued to BAOLI and two related purchasers a
total of 3,101,361 shares of common stock and 611,523 shares of Series A Preferred Stock. Subject
to the terms and conditions of our Series A Preferred Stock and to customary adjustments to the
conversion rate, each share of our Series A Preferred Stock is convertible into ten shares of our
common stock so long as the number of shares of our common stock beneficially owned by BAOLI
following such conversion does not exceed 9.9% of our outstanding common stock. Except for a
preference on liquidation of $0.01 per share, each share of Series A Preferred Stock is the
economic equivalent of the ten shares of common stock into which it is convertible. Except as
required by law, the Series A Preferred Stock will not have
7
any voting rights. For a complete description of the terms of the Series A Preferred Stock,
please see the certificate of designations, filed with, and incorporated by reference into, this
prospectus.
Anti-Takeover Effects of Certain Provisions of Delaware Law and Our Charter Documents
The following is a summary of certain provisions of Delaware law, our certificate of
incorporation and our bylaws. This summary does not purport to be complete and is qualified in its
entirety by reference to the corporate law of Delaware and our certificate of incorporation and
bylaws.
Effect of Delaware Anti-Takeover Statute. We are subject to Section 203 of the Delaware
General Corporation Law, an anti-takeover law. In general, Section 203 prohibits a Delaware
corporation from engaging in any business combination with any interested stockholder for a period
of three years following the date that the stockholder became an interested stockholder, unless:
|
|
|
prior to that date, the board of directors of the
corporation approved either the business combination or the
transaction that resulted in the stockholder becoming an
interested stockholder; |
|
|
|
|
upon consummation of the transaction that resulted in the
stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting
stock of the corporation outstanding at the time the
transaction commenced, excluding for purposes of
determining the number of shares of voting stock
outstanding (but not the voting stock owned by the
interested stockholder) those shares owned by persons who
are directors and officers and by excluding employee stock
plans in which employee participants do not have the right
to determine whether shares held subject to the plan will
be tendered in a tender or exchange offer; or |
|
|
|
|
on or subsequent to that date, the business combination is
approved by the board of directors of the corporation and
authorized at an annual or special meeting of stockholders,
and not by written consent, by the affirmative vote of at
least 66-2/3% of the outstanding voting stock that is not
owned by the interested stockholder. |
Section 203 defines business combination to include the following:
|
|
|
any merger or consolidation involving the corporation and the interested stockholder; |
|
|
|
|
any sale, transfer, pledge or other disposition of 10% or more of the assets of the
corporation involving the interested stockholder; |
|
|
|
|
subject to certain exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the interested
stockholder; |
|
|
|
|
any transaction involving the corporation that has the effect of increasing the
proportionate share of the stock of any class or series of the corporation
beneficially owned by the interested stockholder; or |
|
|
|
|
the receipt by the interested stockholder of the benefit of any loans, advances,
guarantees, pledges or other financial benefits provided by or through the
corporation. |
In general, Section 203 defines an interested stockholder as any entity or person beneficially
owning 15% or more of the outstanding voting stock of the corporation, or who beneficially owns 15%
or more of the outstanding voting stock of the corporation at anytime within a three year period
immediately prior to the date of determining whether such person is an interested stockholder, and
any entity or person affiliated with or controlling or controlled by any of these entities or
persons.
Our Charter Documents. Our charter documents include provisions that may have the effect of
discouraging, delaying or preventing a change in control or an unsolicited acquisition proposal
that a stockholder might consider favorable, including a proposal that might result in the payment
of a premium over the market price for the shares held by our stockholders. Certain of these
provisions are summarized in the following paragraphs.
8
Classified Board of Directors. Pursuant to our certificate of incorporation, the number of
directors is fixed by our board of directors. Our directors are divided into three classes, each
class to serve a three-year term and to consist as nearly as possible of one third of the total
number of directors. Pursuant to our bylaws, directors elected by stockholders at an annual meeting
of stockholders will be elected by a plurality of all votes cast.
No Stockholder Action by Written Consent. Our bylaws provide that a special meeting of
stockholders may be called only by the chairman of the board, a majority of the entire board of
directors or the president. Stockholders are not permitted to call, or to require that the board of
directors call, a special meeting of stockholders. Moreover, the business permitted to be conducted
at any special meeting of stockholders is limited to the business brought before the meeting
pursuant to the notice of the meeting given. In addition, our certificate of incorporation provides
that any action taken by our stockholders must be effected at an annual or special meeting of
stockholders and may not be taken by written consent instead of a meeting. Our bylaws establish an
advance notice procedure for stockholders to nominate candidates for election as directors or to
bring other business before meetings of our stockholders.
Change in Control Agreements. A number of our executives have agreements with us that entitle
them to payments in certain circumstances following a change in control.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of preferred stock or common stock. Warrants may be
issued independently or together with preferred stock or common stock and may be attached to or
separate from any offered securities. Each series of warrants will be issued under a separate
warrant agreement to be entered into between us and a warrant agent. The warrant agreement may
provide that, in certain circumstances, we and the warrant agent will be permitted to amend the
warrant agreement without the consent of the holders of warrants. The warrant agent will act solely
as our agent in connection with the warrants and will not assume any obligation or relationship of
agency or trust for or with any registered holders of warrants or beneficial owners of warrants.
This summary of certain provisions of the warrants is not complete. You should refer to the warrant
agreement, including the forms of warrant certificate representing the warrants, relating to the
specific warrants being offered for the complete terms of the warrant agreement and the warrants.
The warrant agreement, together with the terms of warrant certificate and warrants, will be filed
with the SEC in connection with the offering of the specific warrants.
The particular terms of any issue of warrants will be described in the prospectus supplement
relating to the issue. Those terms may include:
|
|
|
the title of such warrants; |
|
|
|
|
the aggregate number of such warrants; |
|
|
|
|
the price or prices at which such warrants will be issued; |
|
|
|
|
the currency or currencies (including composite currencies) in which the price of such warrants may
be payable; |
|
|
|
|
the amount and terms of the securities purchasable upon exercise of such warrants and the
procedures and conditions relating to the exercise of such warrants; |
|
|
|
|
the purchase price of each of the securities purchasable upon exercise of such warrants; |
|
|
|
|
the date on which the right to exercise such warrants will commence and the date on which such
right shall expire; |
|
|
|
|
any provisions for adjustment of the number or amount of securities to be received upon exercise of
the warrants or of the exercise price of the warrants; |
9
|
|
|
if applicable, the minimum or maximum amount of such warrants that may be exercised at any one time; |
|
|
|
|
if applicable, the designation and terms of the securities with which such warrants are issued and
the number of such warrants issued with each such security; |
|
|
|
|
if applicable, the date on and after which such warrants and the related securities will be
separately transferable; |
|
|
|
|
information with respect to book-entry procedures, if any; and |
|
|
|
|
any other terms of such warrants, including terms, procedures, conditions and limitations relating
to the exercise of such warrants. |
The prospectus supplement relating to any warrants to purchase equity securities may also
include, if applicable, a discussion of certain U.S. federal income tax and ERISA considerations.
Warrants for the purchase of preferred stock and/or common stock will be offered and
exercisable for U.S. dollars only. Warrants will be issued in registered form only.
Each warrant will entitle its holder to purchase the number of shares of preferred stock or
common stock at the exercise price set forth in, or calculable as set forth in, the applicable
prospectus supplement. The applicable prospectus supplement will also describe the circumstances
pursuant to which the exercise price and/or the number or amount of the securities to be issued
upon exercise of the warrants would be adjusted and the method of making and notifying the holder
of any such adjustment.
After the close of business on the applicable expiration date, unexercised warrants will
become void. We will specify the place or places where, and the manner in which, warrants may be
exercised in the applicable prospectus supplement.
Upon receipt of payment and the warrant certificate properly completed and duly executed at
the corporate trust office of the warrant agent or any other office indicated in the applicable
prospectus supplement, we will, as soon as practicable, issue and deliver the purchased securities
in the manner described in the applicable prospectus supplement. If less than all of the warrants
represented by the warrant certificate are exercised, a new warrant certificate will be issued for
the remaining unexpired warrants.
Prior to the exercise of any warrants to purchase preferred stock or common stock, holders of
the warrants will not have any of the rights of holders of the preferred stock or common stock
purchasable upon exercise, including the right to vote or to receive any payments of dividends on
the preferred stock or common stock purchasable upon exercise.
PLAN OF DISTRIBUTION
We may sell the securities being offered hereby in one or more of the following ways from time
to time:
|
|
|
through agents to the public or to investors; |
|
|
|
|
to underwriters for resale to the public or to investors; |
|
|
|
|
directly to investors; or |
|
|
|
|
through a combination of any of these methods of sale. |
We will set forth in a prospectus supplement the terms of that particular offering of securities,
including:
|
|
|
the name or names of any agents or underwriters; |
10
|
|
|
the purchase price of the securities being offered and the proceeds we will receive from the sale; |
|
|
|
|
any over-allotment options under which underwriters may purchase additional securities from us; |
|
|
|
|
any agency fees or underwriting discounts and other items constituting agents or underwriters
compensation; |
|
|
|
|
any initial public offering price; |
|
|
|
|
any discounts or concessions allowed or reallowed or paid to dealers; and |
|
|
|
|
any securities exchanges or markets on which such securities may be listed. |
We have been advised by the Financial Industry Regulatory Authority, or FINRA, that the
maximum commission or discount to be received by any FINRA member or independent broker-dealer in
connection with any sales of securities being offered hereby is 8%.
Agents
We may designate agents who agree to use their reasonable efforts to solicit purchases of our
securities for the period of their appointment or to sell our securities on a continuing basis.
Underwriters
If we use underwriters for a sale of securities, the underwriters will acquire the securities
for their own account. The underwriters may resell the securities in one or more transactions,
including negotiated transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The obligations of the underwriters to purchase the securities will be subject
to the conditions set forth in the applicable underwriting agreement. The underwriters will be
obligated to purchase all the securities of the series offered if they purchase any of the
securities of that series. We may change from time to time any initial public offering price and
any discounts or concessions the underwriters allow or reallow or pay to dealers.
Direct Sales
We may also sell securities directly to one or more purchasers without using underwriters or
agents. Underwriters, dealers and agents that participate in the distribution of the securities may
be underwriters as defined in the Securities Act, and any discounts or commissions they receive
from us and any profit on their resale of the securities may be treated as underwriting discounts
and commissions under the Securities Act. To the extent known to us, we will identify in the
applicable prospectus supplement any underwriters, dealers or agents and will describe their
compensation.
Derivative Securities
We may enter into derivative transactions with third parties, or sell securities not covered
by this prospectus to third parties in privately negotiated transactions. If the applicable
prospectus supplement indicates, in connection with those derivatives, the third parties may sell
securities covered by this prospectus and the applicable prospectus
supplement, including in short sale transactions. If so, the third party may use securities pledged
by us or borrowed from us or others to settle those sales or to close out any related open
borrowings of stock, and may use securities received from us in settlement of those derivatives to
close out any related open borrowings of stock. The third party in such sale transactions will be
an underwriter and will be identified in the applicable prospectus supplement (or a post-effective
amendment).
Trading Markets and Listing of Securities
Unless otherwise specified in the applicable prospectus supplement, each class or series of
securities will be a new issue with no established trading market, other than our common stock,
which is listed on the NASDAQ Capital Market. We may elect to list any other class or series of
securities on any exchange or market, but we are not obligated to do so. It is possible that one or
more underwriters may make a market in a class or series of securities,
11
but the underwriters will not be obligated to do so and may discontinue any market making at
any time without notice. We cannot give any assurance as to the liquidity of the trading market for
any of the securities.
Stabilization Activities
Any underwriter may engage in overallotment, stabilizing transactions, short covering
transactions and penalty bids in accordance with Regulation M under the Exchange Act. Overallotment
involves sales in excess of the offering size, which create a short position. Stabilizing
transactions permit bids to purchase the underlying security so long as the stabilizing bids do not
exceed a specified maximum. Short covering transactions involve purchases of the securities in the
open market after the distribution is completed to cover short positions. Penalty bids permit the
underwriters to reclaim a selling concession from a dealer when the securities originally sold by
the dealer are purchased in a covering transaction to cover short positions. Those activities may
cause the price of the securities to be higher than it would otherwise be. If commenced, the
underwriters may discontinue any of these activities at any time.
Passive Market Making
Any underwriters who are qualified market makers on the NASDAQ Capital Market may engage in
passive market making transactions in the securities on the NASDAQ Capital Market in accordance
with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before
the commencement of offers or sales of the securities. Passive market makers must comply with
applicable volume and price limitations and must be identified as passive market makers. In
general, a passive market maker must display its bid at a price not in excess of the highest
independent bid for such security. If all independent bids are lowered below the passive market
makers bid, however, the passive market makers bid must then be lowered when certain purchase
limits are exceeded.
Material Relationships
We may use underwriters, dealers and agents with whom we have a material relationship. To the
extent required, we will describe the nature of any such relationship in any prospectus supplement
naming any such underwriter, dealer or agent. Underwriters, dealers and agents may engage in
transactions with or perform services for us in the ordinary course of their businesses, and we
will include in any prospectus supplement any required disclosure related to such transactions or
services. We may have agreements with the underwriters, dealers and agents to indemnify them
against specified civil liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
Certain legal matters relating to the validity of the common stock, preferred stock and
warrants offered by this prospectus will be passed upon for us by Manatt, Phelps & Phillips, LLP,
Los Angeles, California.
EXPERTS
The consolidated financial statements of Superconductor Technologies Inc., as of December 31,
2009 and 2008, and for each of the three years in the period ended December 31, 2009, incorporated
in this prospectus by reference to the Annual Report on Form 10-K of Superconductor Technologies
Inc. for the year ended December 31, 2009 have been so incorporated in reliance on the report
(which contains an explanatory paragraph related to the companys ability to continue as a going
concern) of Stonefield Josephson, Inc., independent registered public accounting firm, given on the
authority of said firm as experts in auditing and accounting.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference information that we file with them, which
means that we can disclose important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus, and the information
that we file later with the SEC will automatically update and supersede this information. The
following documents have been previously filed by us with the SEC pursuant to the Exchange Act and
are hereby incorporated by reference in this prospectus and the registration statement of which
this prospectus forms a part:
12
|
|
|
our Annual Report on Form 10-K for the fiscal year ended
December 31, 2009 filed with the SEC on March 17, 2010,
including portions incorporated by reference therein to our
Definitive Proxy Statement on Schedule 14A, filed with the
SEC on April 2, 2010; |
|
|
|
|
our Quarterly Reports on Form 10-Q for the fiscal quarter
ended April 3, 2010 filed with the SEC on May 5, 2010, for
the fiscal quarter ended July 3, 2010 filed with the SEC on
August 9, 2010 and for the fiscal quarter ended October 2,
2010 filed with the SEC on November 10, 2010; |
|
|
|
|
our Current Reports on Form 8-K filed with the SEC on April
2, 2010, May 10, 2010, August 26, 2010, September 3, 2010,
September 8, 2010, October 7, 2010, October 27, 2010,
February 4, 2011 and February 9, 2011; and |
|
|
|
|
the description of our common stock contained in our
registration statement on Form 8-A filed with the SEC on
January 4, 1993. |
Certain Current Reports on Form 8-K dated both prior to and after the date of this prospectus
are or will be furnished to the SEC and shall not be deemed filed with the SEC and will not be
incorporated by reference into this prospectus. However, all other reports and documents filed by
us after the date of this prospectus under Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act prior to the termination of the offering of the securities covered by this prospectus
will also be deemed incorporated by reference in this prospectus and considered to be part of this
prospectus from the date those documents are filed. If you make a request, orally or in writing,
for any information that has been incorporated by reference into this prospectus but not delivered
with this prospectus, we will provide you, without charge, a copy of any or all of that
information. Requests for this information should be submitted in writing to our Secretary, at our
principal executive offices at Superconductor Technologies Inc., 460 Ward Drive, Santa Barbara,
California 93111-2310 or by telephone at (805) 690-4500.
This prospectus is part of a registration statement we have filed with the SEC. You should
rely only on the information incorporated by reference or provided in this prospectus, or any
prospectus supplement. No one else is authorized to provide you with different information. You
should not rely on any other representations. We are not making an offer of these securities in any
state where the offer is not permitted. Our affairs may change after this prospectus or any
prospectus supplement is distributed. You should not assume that the information in or incorporated
by reference into this prospectus or any prospectus supplement is accurate as of any date other
than the date on the front of those documents. You should read all information supplementing or
incorporated by reference into this prospectus or any prospectus supplement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other information with the
SEC. You may read and copy any document we file with the SEC at the SECs Public Reference Room at
100 F Street, N.E., Washington D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the Public Reference Room. The SEC also maintains a web site that
contains reports, proxy and information statements, and other information regarding registrants
that file electronically with the SEC at http://www.sec.gov. In addition, we maintain a web site
that contains information about us at http://www.suptech.com. The information contained on or that
may be obtained from our website is not, and shall not be deemed to be, a part of this prospectus.
We have filed with the SEC a registration statement on Form S-3, of which this prospectus is a
part, including exhibits, schedules and amendments filed with, or incorporated by reference in,
this registration statement, under the Securities Act, with respect to the securities registered
thereby. This prospectus does not contain all of the information set forth in the registration
statement and exhibits and schedules to the registration statement. For further information with
respect to our company and the securities registered thereby, reference is made to the registration
statement, including the exhibits to the registration statement. Statements contained in this
prospectus as to the contents of any contract or other document referred to in, or incorporated by
reference in, this prospectus are not necessarily complete and, where that contract is an exhibit
to the registration statement, each statement is qualified in all respects by the exhibit to which
the reference relates. Copies of the registration statement, including the exhibits and schedules
to the registration statement, may be examined and copied (upon payment of applicable
13
fees) at the SECs Public Reference Room at 100 F Street, N.E., Washington D.C. 20549. Please
call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference
Room. The registration statement is also available to you on the SECs web site,
http://www.sec.gov.
14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
|
|
ITEM 14. |
|
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION |
The following table itemizes the fees and expenses incurred or expected to be incurred by the
Registrant in connection with the preparation and filing of this registration statement. All
amounts in the table below are estimates, except the Securities and Exchange Commission and
Financial Industry Regulatory Authority registration fees. The fees and expenses we will incur in
connection with any issuance and distribution of the securities being registered will be included
in a Current Report on Form 8-K and incorporated by reference herein.
|
|
|
|
|
SEC registration fee |
|
$ |
7,772 |
|
FINRA registration fee |
|
|
8,500 |
|
Printing and engraving expenses |
|
|
5,000 |
|
Legal fees and expenses |
|
|
35,000 |
|
Accounting fees and expenses |
|
|
10,000 |
|
Transfer Agent Fees |
|
|
1,000 |
|
Miscellaneous fees |
|
|
5,000 |
|
Total |
|
$ |
72,272 |
|
|
|
|
ITEM 15. |
|
INDEMNIFICATION OF DIRECTORS AND OFFICERS |
Section 145 of the Delaware General Corporation Law, or the Delaware Law, provides that a
corporation may indemnify directors and officers as well as other employees and individuals against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement in connection
with specified actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation a derivative
action), if they acted in good faith and in a manner they reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only extends to expenses
(including attorneys fees) incurred in connection with defense or settlement of such action, and
the statute requires court approval before there can be any indemnification where the person
seeking indemnification has been found liable to the corporation. Under Section 145, a corporation
shall indemnify an agent of the corporation for expenses actually and reasonably incurred if and to
the extent such person was successful on the merits in a proceeding or in defense of any claim,
issue or matter therein.
We may from time to time be subject to Section 2115 of the California Corporations Code, or
the California Code, according to which Section 317 of the California Code applies to the
indemnification of our officers and directors. Under Section 317 of the California Code,
permissible indemnification by a corporation of its officers and directors is substantially the
same as permissible indemnification under Section 145 of the Delaware Law, except that (i)
permissible indemnification does not cover actions the person reasonably believed were not opposed
to the best interests of the corporation, as opposed to those the person believed were in fact in
the best interests of the corporation, (ii) the Delaware Law permits advancement of expenses to
agents other than officers and directors only upon approval of the board of directors, (iii) in a
case of stockholders approval of indemnification, the California Code requires certain minimum
votes in favor of such indemnification and excludes the vote of the potentially indemnified person
and (iv) the California Code only permits independent counsel to approve indemnification if an
independent quorum of directors is not obtainable, while the Delaware Law permits the directors in
any circumstances to appoint counsel to undertake such determination.
Section 145 of the Delaware Law and Section 317 of the California Code provide that they are
not exclusive of other indemnification that may be granted by a corporations charter, bylaws,
disinterested director vote, stockholders vote, agreement or otherwise. The limitation of liability
contained in our restated certificate of incorporation, as amended, and the indemnification
provision included in our amended and restated bylaws, as amended, are consistent with Delaware Law
Sections 102(b)(7) and 145 and California Code Section 317. We have purchased directors and
officers liability insurance.
II-1
Section 145 of the Delaware Law authorizes court to award, or a corporations board of
directors to grant, indemnity 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. Our restated certificate of incorporation, as
amended, and amended and restated bylaws, as amended, provide for indemnification of our directors,
officers, employees and other agents to the maximum extent permitted by the Delaware Law. In
addition, we have entered into indemnification agreements with our officers and directors.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers or persons controlling our company pursuant to such provisions, we
have been informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such Act and is therefore unenforceable.
|
|
|
EXHIBIT |
|
|
NUMBER |
|
DESCRIPTION |
|
|
|
1.1
|
|
Form of Underwriting Agreement (*) |
|
|
|
3.1
|
|
Restated Certificate of Incorporation of Registrant as amended through March 1, 2006 (1) |
|
|
|
3.2
|
|
Amended and Restated Bylaws of Registrant (1) |
|
|
|
3.3
|
|
Amendment of Amended and Restated Bylaws of Registrant (2) |
|
|
|
4.1
|
|
Certificate of Designations of Series A Convertible Preferred Stock of Registrant (3) |
|
|
|
4.2
|
|
Certificate of Designations of Series E Convertible Preferred Stock of Registrant (4) |
|
|
|
4.3
|
|
Certificate of Designations of Preferred Stock (*) |
|
|
|
4.4
|
|
Form of Common Stock Certificate (5) |
|
|
|
4.5
|
|
Form of Preferred Stock Certificate (*) |
|
|
|
4.6
|
|
Form of Warrant Agreement (*) |
|
|
|
5.1
|
|
Legal Opinion of Manatt, Phelps & Phillips, LLP (6) |
|
|
|
23.1
|
|
Consent of Manatt, Phelps & Phillips LLP (included in legal opinion filed as Exhibit 5.1) |
|
|
|
23.2
|
|
Consent of Stonefield Josephson, Inc. (6) |
|
|
|
24.1
|
|
Powers of Attorney (included on signature page) |
|
|
|
(*) |
|
To be filed, if necessary, subsequent to the effectiveness of this registration statement by an
amendment to this registration statement or incorporated by reference to a current report on
Form 8-K in connection with an offering of securities. |
|
(1) |
|
Incorporated by reference from Registrants Annual Report on Form 10-K for the year ended
December 31, 2009. |
|
(2) |
|
Incorporated by reference from Registrants Current Report on Form 8-K filed April 2, 2010. |
|
(3) |
|
Incorporated by reference from Registrants Current Report on Form 8-K/A filed February 25, 2008. |
|
(4) |
|
Incorporated by reference from Registrants Current Report on Form 8-K filed October 4, 2000. |
|
(5) |
|
Incorporated by reference from Registrants Annual Report on Form 10-K for the year ended
December 31, 2008. |
|
(6) |
|
Filed herewith. |
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;
(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
II-2
increase or decrease in volume of securities offered (if the total 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 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), (a)(1)(ii) and
(a)(1)(iii) of this Section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration statement, or is contained in a form
of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be
part of the registration statement as of the date the filed prospectus was deemed part of and
included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to
Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section
10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement or prospectus that
is part of the registration statement will, as to a purchaser with a time of contract of sale prior
to such effective date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date;
(5) That, for the purpose of determining liability of the Registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the securities: The undersigned Registrant
undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the
offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned Registrant;
II-3
(iii) The portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided by or on behalf of
the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, 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
Securities and Exchange Commission such indemnification is against public policy as expressed in
the 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 Act and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933, 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.
(2) For the purpose of determining any liability under the Securities Act of 1933, 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 that time shall be deemed to be the initial bona fide offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that the Registrant 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 Santa Barbara, State of
California, on February 11, 2011.
|
|
|
|
|
|
SUPERCONDUCTOR TECHNOLOGIES INC.
|
|
|
By: |
/s/ Jeffrey A. Quiram
|
|
|
|
Jeffrey A. Quiram |
|
|
|
President and Chief Executive Officer |
|
|
POWER OF ATTORNEY
KNOW ALL THESE PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Jeffrey A. Quiram and William J. Buchanan, and each of them, his or her
true and 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 sign any and
all amendments (including post-effective amendments) to this registration statement (and to any
registration statement filed pursuant to Rule 462 under the Securities Act of 1933), and to file
the same, with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed below by the following persons on behalf of the Registrant and in the capacities and on
the dates indicated:
|
|
|
|
|
|
|
|
|
|
/s/ Jeffrey A. Quiram
Jeffrey A. Quiram
|
|
President, Chief Executive Officer and Director
(Principal Executive Officer)
|
|
February 11, 2011 |
|
|
|
|
|
/s/ William J. Buchanan
William J. Buchanan
|
|
Chief Financial Officer (Principal Accounting
Officer and Principal Financial Officer)
|
|
February 11, 2011 |
|
|
|
|
|
/s/ David W. Vellequette
David W. Vellequette
|
|
Director
|
|
February 11, 2011 |
|
|
|
|
|
/s/ Lynn J. Davis
Lynn J. Davis
|
|
Director
|
|
February 11, 2011 |
|
|
|
|
|
/s/ Dennis J. Horowitz
Dennis J. Horowitz
|
|
Director
|
|
February 11, 2011 |
|
|
|
|
|
/s/ Martin A. Kaplan
Martin A. Kaplan
|
|
Chairman of the Board
|
|
February 11, 2011 |
|
|
|
|
|
/s/ John D. Lockton
John D. Lockton
|
|
Director
|
|
February 11, 2011 |
S-1