AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 1, 2004.
REGISTRATION NO. 333-__________
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 94-2251470
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
3975 EAST BAYSHORE ROAD, PALO ALTO, CALIFORNIA 94303
(Address of principal executive offices) (Zip Code)
1998 STOCK PLAN FOR EMPLOYEES AND CONSULTANTS
1997 STOCK INCENTIVE PLAN
(Full title of the plans)
MAURY AUSTIN
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
SOUTHWALL TECHNOLOGIES INC.
3975 EAST BAYSHORE ROAD
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
AMOUNT PROPOSED PROPOSED AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED(1) MAXIMUM OFFERING PRICE MAXIMUM AGGREGATE REGISTRATION FEE
TO BE REGISTERED PER SHARE (2) OFFERING PRICE (2)
COMMON STOCK, $.001 PAR VALUE 5,250,000 $ 0.485 $ 2,546,250 $ 366
(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 of Southwall Technologies Inc.
(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 Over-the-Counter Bulletin Board on
October 29, 2004.
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8, as amended, and relates to 5,250,000 shares of Common
Stock, $.001 par value per share, of Southwall Technologies Inc. (the
"Company"). Of those shares, (a) 4,000,000 represent an increase in the number
of shares issuable under the Company's 1997 Stock Incentive Plan, as amended
(the "1997 Plan"), and (b) 1,250,000 represent an increase in the number of
shares issuable under the Company's 1998 Stock Plan for Employees and
Consultants, as amended (the "1998 Plan"). The Company previously filed with
the Securities and Exchange Commission (the "Commission"), on July 22, 2002,
September 17, 2001, June 2, 2000, May 26, 1999, October 28, 1998, August 25,
1997, and October 27, 2003, Registration Statements on Form S-8 (File Nos.
333-96893, 333-69486, 333-38530, 333-79359, 333-66277, 333-34287 and 333-109992,
respectively), covering an aggregate of 1,900,000 shares of the Company's Common
Stock then reserved for issuance under the 1997 Plan and an aggregate of
1,000,000 shares of the Company's Common Stock then reserved for issuance under
the 1998 Plan.
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/A for the year ended
December 31, 2003, containing the Company's audited financial statements for the
fiscal year then ended, filed May 7, 2004, as amended by Form 10-K/A filed
August 10, 2004, and Form 10-K/A filed September 8, 2004;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ending
March 28, 2004, filed May 17, 2004, as amended by Form 10-Q/A filed September 8,
2004; and the Company's Quarterly Report on Form 10-Q for the quarter ending
June 27, 2004 filed August 11, 2004, as amended by Form 10-Q/A filed September
8, 2004; and
(c) The description of the Company's Common Stock contained in 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, as amended (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 1934 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.
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. The Company maintains
directors and officers liability insurance for the benefit of its directors and
officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
Number Description
------ -----------
4 Instrument Defining Rights of Stockholders. Reference is made to the Registrant's Registration Statement on
Form 8-A, which is incorporated herein by reference under 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. Reference is made to page II-3 of this Registration Statement.
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 the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the 1934 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 November 1,
2004.
SOUTHWALL TECHNOLOGIES INC.
(Registrant)
By: /s/ Thomas G. Hood
---------------------------------------------
Thomas G. Hood
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Thomas G. Hood and Maury Austin, jointly
and severally, his true and lawful attorneys-in-fact and agents with full powers
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and all 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 and necessary to be in and about the premises, as fully to all intents
and purposes as he 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
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on November 1, 2004, by the
following persons in the capacities indicated.
NAME CAPACITY
/s/ Thomas G. Hood
------------------------- President, Chief Executive Officer and Director
Thomas G. Hood (Principal Executive Officer)
/s/ Maury Austin
------------------------- Chief Financial Officer (Principal Financial and
Maury Austin Accounting Officer)
/s/ George Boyadjieff
------------------------- Director
George Boyadjieff
/s/ William A. Berry
------------------------- Director
William A Berry
/s/ Dr. Joseph B. Reagan
------------------------- Director
Dr. Joseph B. Reagan
/s/ Jami Dover Nachtsheim
------------------------- Director
Jami Dover Nachtsheim
/s/ Walter C. Sedgwick
------------------------- Director
Walter C. Sedgwick
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