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
<TABLE>
CALCULATION OF REGISTRATION FEE
=============================================================================================================================
<CAPTION>
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
- ------------------------------------------- ----------------------------------------- ---------------------- ----------------
<S> <C> <C> <C> <C>
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
<FN>
(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.
</FN>
</TABLE>
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<TABLE>
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.
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/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
<PAGE>
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
</TABLE>
II-5
<PAGE>
<TABLE>
EXHIBIT INDEX
<CAPTION>
Sequentially
Exhibit Number Exhibit Numbered Page
- -------------- ------- -------------
<S> <C>
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.
</TABLE>
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
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
