-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LqcmmMAXvs0qL0eGoHETTE3c0TqBZJwEWaSng10zf0G3XN8KMuLyen7vEPFzhcPl Oep4v1o0sMEOlSinR9RnOQ== 0000319815-97-000005.txt : 19970605 0000319815-97-000005.hdr.sgml : 19970605 ACCESSION NUMBER: 0000319815-97-000005 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970604 EFFECTIVENESS DATE: 19970604 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: MAXWELL LABORATORIES INC /DE/ CENTRAL INDEX KEY: 0000319815 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPUTERS [3571] IRS NUMBER: 952390133 STATE OF INCORPORATION: DE FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-28459 FILM NUMBER: 97618796 BUSINESS ADDRESS: STREET 1: 8888 BALBOA AVE CITY: SAN DIEGO STATE: CA ZIP: 92123 BUSINESS PHONE: 6192795100 MAIL ADDRESS: STREET 1: 8888 BALBOA AVE STREET 2: 8888 BALBOA AVE CITY: SAN DIEGO STATE: CA ZIP: 92123 S-8 1 1995 STOCK OPTION PLAN Registration No._________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Maxwell Technologies, Inc. (Exact name of issuer as specified in its charter) Delaware 95-2390133 (State of Incorporation) (I.R.S. Employer Identification No.) 8888 Balboa Avenue San Diego, California 92123 (Address of Principal Executive Offices including Zip Code) Maxwell Technologies, Inc. 1995 Stock Option Plan (Full Title of Plan) Donald M. Roberts General Counsel Maxwell Technologies, Inc. 8888 Balboa Avenue San Diego, California 92123 (619) 279-5100 (Name, address and telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE Proposed Title of Proposed Maximum Maximum Securities Amount Offering Aggregate Amount of to be to be Price Per Offering Registration Registered Registered Share (1) Price Fee - ---------- ----------- --------- ---------- ------------- Common Stock, $0.10 Par Value 300,000 shs. $19.625 $5,887,500 $1,784.09 (1) Determined solely for the purpose of computing the registration fee pursuant to Rule 457, based upon the average of the high and low price of the registrant's Common Stock reported on NASDAQ on May 29, 1997. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. ---------------------------------------- The registrant hereby incorporates by reference in this registration statement the Form S-8 (file no. 333-07831) filed on July 9, 1996. The following documents are incorporated by reference in the registration statement: (a) The registrant's latest annual report on Form 10-K or, if the financial statements therein are more current, the registrant's latest prospectus, other than the prospectus of which this document is a part, filed pursuant to Rule 424(b) of the Securities and Exchange Commission under the Securities Act of 1933. (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year covered by the annual report on Form 10-K or the prospectus referred to in (a) above; (c) The description of the registrant's Common Stock which is contained in the registrant's registration statement filed under section 12 of the Securities Exchange Act of 1934, including any amendment or reports filed for the purpose of updating such descriptions. All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment to the registration statement which indicates that all of the shares of common stock offered have been sold or which deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference in the registration statement and to be a part hereof from the date of filing of 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 registration statement 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 such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. Item 4. Description of Securities. -------------------------- Not applicable. Item 5. Interests of Named Experts and Counsel. --------------------------------------- Not applicable. Item 6. Indemnification of Directors and Officers. ------------------------------------------ Section 145 of the General Corporation Law of Delaware authorizes indemnification of directors, officers and employees of Delaware corporations and authorizes the Board of Directors to have the registrant provide the cost of defense, settlement or payment of any judgment against any such person under certain circumstances. The registrant's charter documents provide for similar indemnification of its directors, officers, employees and agents. The registrant currently maintains policies of insurance under which the directors and officers of registrant are insured, within the limits and subject to the limitations of the policies, against certain expenses in connection with the defense of actions, suits or proceedings, and certain liabilities which might be imposed as a result of such actions, suits or proceedings, to which they are parties by reason of being or having been such directors or officers. Item 7. Exemption from Registration Claimed. ------------------------------------ Not applicable. Item 8. Exhibits. --------- The exhibits to the registration statement are listed in the Exhibit Index elsewhere herein. Item 9. Undertakings. ------------- In connection with this Registration Statement on Form S-8, the registrant hereby makes the following undertakings: (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act 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; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in 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. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's 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. (e) The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. (h) 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 provisions described in Item 6, 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. SIGNATURES The Registrant. 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-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on the 30th day of April, 1997. MAXWELL TECHNOLOGIES, INC. By: /s/Kenneth F. Potashner ------------------------ Kenneth F. Potashner, President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. /s/Kenneth F. Potashner President and Chief April 30, 1997 - ----------------------- Executive Officer and Director Kenneth F. Potashner /s/Donn A. Starry Chairman of the Board, April 30, 1997 - ----------------------- and Director Donn A. Starry /s/Lewis J. Colby, Jr. Director April 30, 1997 - ----------------------- Lewis J. Colby, Jr. /s/Alan C. Kolb Director April 30, 1997 - ----------------------- Alan C. Kolb /s/Karl M. Samuelian Director April 30, 1997 - ----------------------- Karl M. Samuelian /s/Thomas L. Horgan Director April 30, 1997 - ----------------------- Thomas L. Horgan /s/Thomas B. Hayward Director April 30, 1997 - ----------------------- Thomas B. Hayward Director , 1997 - ----------------------- Henry F. Owsley /s/Gary J. Davidson Vice President- April 30, 1997 - ----------------------- Finance and Administration Gary J. Davidson and Treasurer (Principal Financial and Accounting Officer) Index of Exhibits ----------------- 5. Opinion of Donald M. Roberts, General Counsel of Registrant. 23. Consent of Ernst & Young LLP, Independent Auditors EX-5 2 OPINION OF GENERAL COUNSEL OF THE REGISTRANT Exhibit 5 June 2, 1997 To the Board of Directors of Maxwell Technologies, Inc. Re: Form S-8 Registration Statement covering 1995 Stock Option Plan; Listing of Underlying Shares Gentlemen: This opinion is rendered to you in connection with the registration under the Securities Act of 1933, as amended (the "Act"), and the listing for trading on the NASDAQ national market system, of 300,000 shares of the Company's $.10 par value Common Stock ("Common Stock") authorized for issuance upon the exercise of options granted under the Maxwell Technologies, Inc. 1995 Stock Option Plan (the "Plan"). In rendering this opinion, I have examined and relied upon, among other things, originals or copies, identified to my satisfaction as being true copies, of the following: Certificate of Incorporation of the Company, as amended to date; Bylaws of the Company, as amended to date; and corporate records and other instruments and documents as were deemed necessary or appropriate for purposes of this opinion. As to questions of fact material to this opinion, I have, when the relevant facts were not independently established by me, relied upon the documents I have examined or upon certificates of officers of the Company. In my examination of the documents referred to above, I have assumed the genuineness of all signatures, the authenticity of all documents submitted to me as originals and the conformity with the originals of all documents submitted to me as copies. I have investigated such questions of law for the purpose of rendering this opinion as I have deemed necessary. I am an attorney duly admitted and qualified to practice in the State of California and I express no opinion as to the laws of any other jurisdiction except Delaware corporate law and United States federal law. On the basis of the foregoing, and in reliance thereon, I am of the opinion that the 300,000 shares of Common Stock reserved for issuance under the Plan have been duly and validly authorized for issuance, and said shares, upon issuance pursuant to the provisions of the Plan, including receipt of the required consideration, will be validly issued, fully paid and nonassessable. To the Board of Directors of Maxwell Technologies, Inc. June 2, 1997 I hereby consent to the inclusion of this opinion as an Exhibit to the Form S-8 Registration Statement covering the shares of Common Stock issuable pursuant to the terms of the Plan. This opinion is intended solely for your use in connection with the registration under the Act of shares under the Plan and the listing of such shares with appropriate stock trading organizations, and this opinion may not be relied upon by any other party or for any other purpose. Very truly yours, /s/Donald M. Roberts Donald M. Roberts General Counsel and Secretary DMR/lp EX-23 3 CONSENT OF INDEPENDENT AUDITORS EXHIBIT 23 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Maxwell Technologies, Inc. 1995 Stock Option Plan of our report dated September 27, 1996, with respect to the financial statements of Maxwell Technologies, Inc. incorporated by reference in its Annual Report (Form 10-K) for the year ended July 31, 1996, filed with the Securities and Exchange Commission. /s/Ernst & Young LLP ERNST & YOUNG LLP San Diego, California May 30, 1997 -----END PRIVACY-ENHANCED MESSAGE-----