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.)
9275 Sky Park Court
San Diego, California 92123
(Address of Principal Executive Offices including Zip Code)
Maxwell Technologies, Inc. Savings Plan
(Full Title of Plan)
Donald M. Roberts
General Counsel
Maxwell Technologies, Inc.
9275 Sky Park Court
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(1) Share (2) Price Fee
- ---------- ----------- --------- ---------- -------------
Common Stock,
$0.10 Par
Value 50,000 shs. $21.00 $1,050,000 $309.75
(1) In addition, pursuant to Rule 416(c), this registration also covers an
indeterminate amount of interests to be offered or sold pursuant to the Maxwell
Technologies, Inc. Savings Plan described herein.
(2) 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 September 14, 1998.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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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.Item 3. Incorporation of Documents by Reference.
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.
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The Company is a Delaware corporation. Article V of the Company's
Bylaws provides that the Company may indemnify its officers and directors to
the full extent permitted by law. Section 145 of the General Corporation Law
of the State of Delaware (the "GCL") provides that a Delaware corporation has
the power to indemnify its officers and directors in certain circumstances.
<PAGE>
Subsection (a) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director or officer acted in good faith
and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided that such director or officer had no cause to believe his
or her conduct was unlawful.
Subsection (b) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person acted in any of
the capacities set forth above, against expenses actually and reasonably
incurred in connection with the defense or settlement of such action or suit
provided that such director or officer acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any
claim, issue or matter as to which such director or officer shall have been
adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action was brought shall
determine that despite the adjudication of liability such director or officer
is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 145 of the GCL further provides that to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsections (a) and (b) or in the defense of
any claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him
or her in connection therewith; that indemnification provided for by Section
145 shall not be deemed exclusive of any other rights to which the indemnified
party may be entitled; and that the corporation shall have power to purchase
and maintain insurance on behalf of a director or officer of the corporation
against any liability asserted against him or her or incurred by him or her
in any such capacity or arising out of his or her status as such whether or
not the corporation would have the power to indemnify him or her against such
liabilities under Section 145.
Article Seventeenth of the Company's Certificate of Incorporation
currently provides that each director shall not be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty
as a director, except for liability (i) for any breach of the director's duty
of loyalty to the Company or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the GCL, or (iv) for any transaction from
which the director derived an improper benefit.
The Company has entered into indemnity agreements with each of its
directors. The indemnity agreements generally indemnify such persons against
liabilities arising out of their service in their capacities as directors,
officers, employees or agents of the Company. The Company may from time to
time enter into indemnity agreements with additional individuals who become
officers and/or directors of the Company.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.
<PAGE>
Item 8. Exhibits.
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5.1 The registrant has submitted the plan subsequent amendments
thereto to the Internal Revenue Service ("IRS") in a timely
manner and has made all changes required by the IRS in order
to qualify the plan.
23.1 Consent of Ernst & Young LLP, Independent Auditors
24.1 Powers of Attorney (included on signature page hereto)
Item 9. Undertakings.
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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.
<PAGE>
(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.
<PAGE>
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 17th day of September, 1998.
MAXWELL TECHNOLOGIES, INC.
By: /s/Kenneth F. Potashner
------------------------
Kenneth F. Potashner,
President and
Chief Executive Officer
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kenneth F. Potashner and Gary J.
Davidson, 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 to this Registration Statement, 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 or 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 their or his 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 by the following persons in the
capacities and on the dates indicated.
/s/Kenneth F. Potashner Chairman of the Board, September 17, 1998
- ----------------------- President, Chief Executive
Kenneth F. Potashner Officer and Director
/s/Thomas L. Horgan Director September 17, 1998
- -----------------------
Thomas L. Horgan
/s/Lewis J. Colby, Jr. Director September 17, 1998
- -----------------------
Lewis J. Colby, Jr.
<PAGE>
/s/Alan C. Kolb Director September 17, 1998
- -----------------------
Alan C. Kolb
/s/Karl M. Samuelian Director September 17, 1998
- -----------------------
Karl M. Samuelian
/s/Mark Rossi Director September 17, 1998
- -----------------------
Mark Rossi
/s/Carlton J. Eibl Director September 17, 1998
- -----------------------
Carlton J. Eibl
/s/Gary J. Davidson Vice President- September 17, 1998
- ----------------------- Finance and Treasurer
Gary J. Davidson (Principal Financial and
Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, the
Plan's Administrative Committee has duly caused this Registration Statement to
be signed on its behalf by the undersigned, there into duly authorized in the
City of San Diego, State of California, on September 17, 1998.
By: /s/Donald M. Roberts
------------------------
Donald M. Roberts,
Maxwell Technologies, Inc.
Savings Plan
Administrative Committee
Member
<PAGE>
Index of Exhibits
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23.1 Consent of Ernst & Young LLP, Independent Auditors
24.1 Powers of Attorney (included on signature page hereto)
EXHIBIT 23.1
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. Savings
Plan of our report dated September 17, 1997, with respect to the consolidated
financial statements of Maxwell Technologies, Inc. incorporated by reference
in its Annual Report (Form 10-K) for the year ended July 31, 1997,
filed with the Securities and Exchange Commission.
/s/Ernst & Young LLP
ERNST & YOUNG LLP
San Diego, California
September 17, 1998
