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As filed with the Securities and Exchange Commission on June 2, 2000.
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SOUTHWALL TECHNOLOGIES INC.
(Exact name of registrant as specified in its charter)
94-2251470
(I.R.S. employer identification no.)
DELAWARE
(State or other jurisdiction of incorporation or organization)
1029 CORPORATION WAY, PALO ALTO, CALIFORNIA 94303
(Address of principal executive offices) (Zip Code)
1997 EMPLOYEE STOCK PURCHASE PLAN
(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
<TABLE>
<CAPTION>
=========================================================================================
Proposed Proposed
Title of securities Amount maximum maximum Amount
to be to be registered offering aggregate of
registered (1) price per offering registration
share (2) price (2) fee
------------------- ---------------- --------- --------- ------------
<S> <C> <C> <C> <C>
COMMON STOCK, 75,000 $7.75 $581,250 $153.45
$.001 PAR VALUE
==========================================================================================
</TABLE>
(1) This registration statement shall also cover any additional number of
shares as may be required pursuant to the plans in the event of a stock
dividend, split-up of shares, recapitalization or other similar change
in the Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee,
in accordance with Rule 457(h)(1), on the basis of the average of the
high and low prices of the Common Stock as reported on the NASDAQ
National Market on May 25, 2000.
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EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8, as amended, and relates to 75,000 shares of Common
Stock, $.001 par value per share, of Southwall Technologies Inc. (the
"Company"), which represent the increase in the number of shares issuable
under the Company's 1997 Employee Stock Purchase Plan (the "Plan") approved
by the Board of Directors of the Company on May 25, 2000. The Company
previously filed with the Securities and Exchange Commission (the
"Commission"), on August 25, 1997, a Registration Statement on Form S-8 (File
No. 333-34287), covering 100,000 shares of the Company's Common Stock then
reserved for issuance under the Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION BY REFERENCE.
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1999, containing the Company's audited financial statements for
the fiscal year then ended;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ending April 2, 2000; and
(c) The description of the Company's Common Stock contained in (i)
the Company's registration statement No. 0-15930 on Form 8-A filed with the
Commission on July 6, 1987, under 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.
In addition, all documents filed by the Company after the initial
filing date of this Registration Statement pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and prior to the filing of a post-effective amendment which
indicates that all shares registered hereunder have been sold or which
de-registers all shares then remaining unsold, shall be deemed to be
incorporated by reference in 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 OFFICERS AND DIRECTORS
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
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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.
ITEM 8. EXHIBITS.
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 Choate, Hall & Stewart
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Choate, Hall & Stewart is contained in Exhibit 5.
24 Power of Attorney.
99.1 The Company's 1997 Employee Stock Purchase Plan (as amended and
restated as of May 25, 2000).
ITEM 9. UNDERTAKINGS
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement 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;
(2) that, for the purpose of determining any liability
under the Securities Act of 1933, as amended (the "Securities 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 offering.
(b) The Company hereby undertakes that, for purpose of determining
any liability under
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the Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the 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
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company will, unless in
the opinion of 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 Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the Company
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 in the State of California, on June 2,
2000.
SOUTHWALL TECHNOLOGIES INC.
(Registrant)
By:
Thomas G. Hood
President, Chief Executive Officer,
and Director
