-----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, UTqcuU5tzXmpsU0P6w8z6jmfqLDEnW4yoj2y1hEfOECw2a4o4AVWMKS3OVgXshUw 2KLx2UjyGGhN92V25zIW0A== 0000950005-97-000732.txt : 19970826 0000950005-97-000732.hdr.sgml : 19970826 ACCESSION NUMBER: 0000950005-97-000732 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970825 EFFECTIVENESS DATE: 19970825 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOUTHWALL TECHNOLOGIES INC /DE/ CENTRAL INDEX KEY: 0000813619 STANDARD INDUSTRIAL CLASSIFICATION: UNSUPPORTED PLASTICS FILM & SHEET [3081] IRS NUMBER: 942551470 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-34287 FILM NUMBER: 97668974 BUSINESS ADDRESS: STREET 1: 1029 CORPORATION WAY CITY: PALO ALTO STATE: CA ZIP: 94303 BUSINESS PHONE: 4159629111 S-8 1 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on August 22, 1997 Registration No. ----------- ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------- FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 ------------------- SOUTHWALL TECHNOLOGIES INC. (Exact name of registrant as specified in its charter) Delaware 94-2551470 (State or other jurisdiction (IRS Employer of incorporation or organization) Identification No.) 1029 Corporation Way Palo Alto, California 94303 (Address of principal executive offices) (Zip Code) ------------------- SOUTHWALL TECHNOLOGIES INC. 1997 STOCK INCENTIVE PLAN 1997 EMPLOYEE STOCK PURCHASE PLAN (Full title of the Plans) ------------------- L. Ray Christie Vice President, Chief Financial Officer and Secretary SOUTHWALL TECHNOLOGIES INC. 1029 Corporation Way Palo Alto, California 94303 (Name and address of agent for service) --------------------------------- (Telephone number, including area code, of agent for service) (415) 962-9111 CALCULATION OF REGISTRATION FEE =============================================================================================================================
Title of Amount Proposed Maximum Proposed Maximum Amount of Securities to be Offering Aggregate Registration to be Registered Registered (1) Price per Share (2) Offering Price (2) Fee - ------------------------------------------- ----------------------------------------- ---------------------- ---------------- 1997 Stock Incentive Plan Options 400,000 N/A N/A N/A Common Stock (par value $0.001) 400,000 $6.94 $2,776,000 $842 1997 Employee Stock Purchase Common Stock (par value $0.001) 100,000 $6.94 $ 694,000 $211 (1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the 1997 Stock Incentive Plan and the 1997 Employee Stock Purchase Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock of Southwall Technologies Inc. (2) Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the average of the high and low prices per share of Common Stock of Southwall Technologies Inc. on August 18, 1997.
PART II Information Required in the Registration Statement Item 3. Incorporation of Documents by Reference Southwall Technologies Inc. (the "Registrant") hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "SEC"): (a) The Registrant's Annual Report on Form 10-K filed with the SEC for the fiscal year ended December 31, 1996, including any amendments thereto, (b) The Registrant's Quarterly Reports on Forms 10-Q filed with the SEC for the fiscal quarters ended March 30, 1997 and June 29, 1997, and (c) The description of the Registrant's outstanding Common Stock contained in the Registrant's Registration Statement No. 0-15930 on Form 8-A filed with the SEC on July 6, 1987, pursuant to Section 12 of the Securities Exchange Act of 1934 (the "1934 Act), including any amendment or report filed for the purpose of updating such description. All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities Not Applicable. Item 5. Interests of Named Experts and Counsel Not Applicable. Item 6. Indemnification of Directors and Officers Section 145 of the Delaware General Corporation Law authorizes a court to award or a corporation's Board of Directors to grant indemnification to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933 (the "1933 Act"). The Registrant's Bylaws provide for mandatory indemnification of its directors and permissible indemnification of officers, employees and other agents to the maximum extent permitted by the Delaware General Corporation Law. The Registrant's Certificate of Incorporation provides that, pursuant to Delaware law, its directors shall not be liable for monetary damages for breach of their fiduciary duty as directors to the Registrant and its stockholders. This provision in the Certificate of Incorporation does not eliminate the fiduciary duty of the directors, and, in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the director's duty of loyalty to the Registrant for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for actions leading to improper personal benefit to the director and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a director's responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. The Registrant has entered into Indemnification Agreements with its officers and directors. The Indemnification Agreements provide the Registrant's officers and directors with further indemnification to the maximum extent permitted by the Delaware General Corporation Law. II-2 Item 7. Exemption from Registration Claimed Not Applicable. Item 8. Exhibits Exhibit Number Exhibit - -------------- ------- 4 Instrument Defining Rights of Stockholders. Reference is made to Registrant's Registration Statement No. 0-15930 on Form 8-A, which is incorporated herein by reference pursuant to Item 3(c) of this Registration Statement. 5 Opinion and consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP. 23.1 Consent of Price Waterhouse LLP, Independent Accountants. 23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP is contained in Exhibit 5. 24 Power of Attorney. Reference is made to page II-4 of this Registration Statement. Item 9. Undertakings A. The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement (i) to include any prospectus required by Section 10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference in this Registration Statement; (2) that for the purpose of determining any liability under the 1933 Act each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof and (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 Registrant's 1997 Stock Incentive Plan and 1997 Employee Stock Purchase Plan. B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers or controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6 or otherwise, the Registrant has been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Palo Alto, State of California on this 20th day of August, 1997. SOUTHWALL TECHNOLOGIES INC. By: /s/ Martin M. Schwartz ----------------------- Martin M. Schwartz President, Chief Executive Officer and Director POWER OF ATTORNEY ----------------- KNOW ALL PERSONS BY THESE PRESENTS: That the undersigned officers and directors of Southwall Technologies Inc., a Delaware corporation, do hereby constitute and appoint Martin M. Schwartz and L. Ray Christie, and either of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and either one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms all that said attorneys and agents, or either one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts. IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature Title Date - --------- ----- ---- /s/ Martin M. Schwartz President, Chief Executive August 20, 1997 - ----------------------- Officer and Director Martin M. Schwartz (Principal Executive Officer) /s/ L. Ray Christie Vice President, Chief Financial Officer August 20, 1997 - -------------------- and Secretary L. Ray Christie (Principal Financial and Accounting Officer) II-4 Signature Title Date - --------- ----- ---- /s/ J. Larry Smart Chairman of the Board August 20, 1997 - ------------------- J. Larry Smart /s/ Bruce J. Alexander Director August 20, 1997 - ----------------------- Bruce J. Alexander /s/ Joseph B. Reagan Director August 20, 1997 - --------------------- Joseph B. Reagan - ------------------- Director ______, 1997 Walter C. Sedgwick /s/ Dr. Yoshimichi Hase Director August 20, 1997 - ------------------------ Dr. Yoshimichi Hase
II-5 EXHIBIT INDEX
Sequentially Exhibit Number Exhibit Numbered Page - -------------- ------- ------------- 4 Instrument Defining Rights of Stockholders. Reference is made to Registrant's Registration Statement No. 0-15930 on Form 8-A, which is incorporated herein by reference pursuant to Item 3(c) of this Registration Statement. 5 Opinion and consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP. 23.1 Consent of Price Waterhouse LLP, Independent Accountants. 23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP is contained in Exhibit 5. 24 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
EX-5 2 OPINION AND CONSENT LETTER Exhibit 5 August 20, 1997 Southwall Technologies Inc. 1029 Corporation Way Palo Alto, California 94303 Re: Southwall Technologies Inc. Registration Statement for Offering of 500,000 Shares of Common Stock Ladies and Gentlemen: We refer to your registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of (i) 400,000 shares of Common Stock under the Company's 1997 Stock Incentive Plan, and (ii) 100,000 shares of Common Stock under the Company's Employee Stock Purchase Plan. We advise you that, in our opinion, when such shares have been issued and sold pursuant to the applicable provisions of the Company's 1997 Stock Incentive Plan and Employee Stock Purchase Plan and in accordance with the Registration Statement, such shares will be validly issued, fully paid and nonassessable shares of the Company's Common Stock. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP EX-23.1 3 CONSENT OF PRICE WATERHOUSE Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 24, 1997 appearing on page 17 of Southwall Technologies Inc.'s Annual Report on Form 10-K for the year ended December 31, 1996. /s/ Price Waterhouse LLP San Jose, California August 19, 1997 -----END PRIVACY-ENHANCED MESSAGE-----