<PAGE>
As filed with the Securities and Exchange Commission on October 28, 1998
Registration No. 333-_________
================================================================================
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 3081 94-2551470
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation Classification Identification
or Organization) Code Number) Number)
1029 CORPORATION WAY
Palo Alto, California 94303
(Address of principal executive offices) (Zip Code)
___________________
SOUTHWALL TECHNOLOGIES INC.
1997 STOCK INCENTIVE PLAN
1998 STOCK PLAN FOR EMPLOYEES AND CONSULTANTS
(Full title of the Plans)
___________________
BILL R. FINLEY
VICE PRESIDENT OF FINANCE, CHIEF FINANCIAL OFFICER AND SECRETARY
SOUTHWALL TECHNOLOGIES INC.
1029 CORPORATION WAY
PALO ALTO, CALIFORNIA 94303
(Name and address of agent for service)
(650) 962-9111
_____________________
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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<TABLE>
<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
- ----------------------------------- -------------- ------------------- ------------------- --------------
1997 Stock Incentive Plan
- -------------------------
<S> <C> <C> <C> <C>
Options 250,000 N/A N/A N/A
Common Stock (par value $0.001) 250,000 shares $5.75 $1,437,500 $399.63
1998 Stock Plan for Employees and
- ---------------------------------
Consultants
- -----------
Options 250,000 N/A N/A N/A
Common Stock (par value $0.001) 250,000 shares $5.75 $1,437,500 $399.63
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1997 Stock Incentive Plan and
the 1998 Stock Plan for Employees and Consultants 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 October 23, 1998.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
- ------- ---------------------------------------
Southwall Technologies Inc. ("Southwall") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "SEC"):
(a) Southwall's Annual Report on Form 10-K filed with the SEC for the
fiscal year ended December 31, 1997, including any amendments
thereto,
(b) Southwall's Quarterly Reports on Forms 10-Q filed with the SEC for
the fiscal quarter ended March 30, 1998 and June 30, 1998; and
(c) The description of Southwall's outstanding Common Stock contained
in Southwall's Registration Statement No. 0-15930 on Form 8-A filed
with the SEC on July 6, 1987, under the 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 under the
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"). Southwall'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.
Southwall's Certificate of Incorporation provides that, under the Delaware law,
its directors shall not be liable for monetary damages for breach of their
fiduciary duty as directors to Southwall 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 Southwall 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. Southwall has entered
into Indemnification Agreements with its officers and directors. The
Indemnification Agreements provide Southwall's officers and directors with
further indemnification to the maximum extent permitted by the Delaware General
Corporation Law.
Item 7. Exemption from Registration Claimed
- ------- -----------------------------------
Not Applicable.
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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 under the Item 3(c) of
this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of PricewaterhouseCoopers 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. Southwall 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 Southwall under the 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 Southwall's 1997
Stock Incentive Plan and 1998 Stock Plan for Employees and
Consultants.
B. Southwall hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of Southwall's annual
report under the 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
Southwall under the indemnification provisions summarized in Item 6 or
otherwise, Southwall 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
II-3
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against such liabilities (other than the payment by Southwall of expenses
incurred or paid by a director, officer or controlling person of Southwall 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, Southwall 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-4
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SIGNATURES
Under the requirements of the Securities Act of 1933, as amended,
Southwall 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 28th day of
October, 1998.
SOUTHWALL TECHNOLOGIES INC.
By: /s/ Thomas G. Hood
---------------------------------------
Thomas G. Hood
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 Thomas G. Hood
and Bill R. Finley, 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.
Under 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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Thomas G. Hood President, Chief Executive October 28, 1998
- -------------------- Officer and Director
Thomas G. Hood (Principal Executive Officer)
/s/ Bill R. Finley Vice President of Finance, October 28, 1998
- -------------------- Chief Financial Officer and Secretary
Bill R. Finley (Principal Financial and Accounting
Officer)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ J. Larry Smart Chairman of the Board October 28, 1998
- --------------------
J. Larry Smart
/s/ Bruce J. Alexander Director October 28, 1998
- ----------------------
Bruce J. Alexander
/s/ Dr. Joseph B. Reagan Director October 28, 1998
- ------------------------
Dr. Joseph B. Reagan
/s/ Walter C. Sedgwick Director October 28, 1998
- ----------------------
Walter C. Sedgwick
/s/ Dr. Yoshimichi Hase Director October 28, 1998
- -----------------------
Dr. Yoshimichi Hase
</TABLE>
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<PAGE>
EXHIBIT INDEX
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 under the Item 3(c) of
this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of PricewaterhouseCoopers 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.
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<PAGE>
Exhibit 5
---------
CONSENT OF GUNDERSON DETTMER STOUGH VILLENEUVE FRANKLIN & HACHIGIAN, LLP
October 28, 1998
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) 250,000 shares of Common Stock
under the Company's 1997 Stock Incentive Plan, and (ii) 250,000 shares of Common
Stock under the Company's 1998 Stock Plan for Employees and Consultants. We
advise you that, in our opinion, when such shares have been issued and sold
under the applicable provisions of the Company's 1997 Stock Incentive Plan and
1998 Stock Plan for Employees and Consultants 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
<PAGE>
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 22, 1998 appearing on page 18
of Southwall Technologies Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1997.
/s/ PricewaterhouseCoopers LLP
- --------------------------------
PricewaterhouseCoopers LLP
San Jose, California
October 27, 1998
