As filed with the Securities and Exchange Commission on December 18, 2001.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MICROTUNE, INC.
(Exact Name of Registrant as Specified in Its Charter)
_______________________________________
Delaware 75-2883117
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
2201 Tenth Street
Plano, Texas 75074
(972) 673-1600
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
_______________________________________
Everett ("Buddy") Rogers
CFO and Vice President of Finance and Administration
2201 Tenth Street
Plano, Texas 75074
(972) 673-1600
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
_______________________________________
Copies to:
Nancy A. Richardson, Esq. P. Steven Hacker, Esq.
Vice President and General Counsel Thomas B. Montano, Esq.
Microtune, Inc. Phillip D. Peterson, Esq.
2201 Tenth Street Gray Cary Ware & Freidenrich LLP
Plano, Texas 75074 1221 S. MoPac Expressway, Suite 400
Telephone: (972) 673-1600 Austin, Texas 78746
Facsimile: (972) 673-1876 Telephone: (512) 457-7000
Facsimile: (512) 457-7001
______________________________________
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
Proposed Maximum Proposed Maximum
Title of each Class of Amount to be Offering Price Per Aggregate Offering Amount of
Securities to be Registered Registered Share (1) Price Registration Fee
-------------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.001 par value per share 7,206,125 Shares $22.80 164,299,650 $39,267.62
===============================================================================================================================
(1) The price of $22.80 per share, the average of the high and low sales prices
of our common stock reported on the Nasdaq National Market on December 13,
2001, is set forth solely for the purpose of computing the registration fee
pursuant to Rule 457(c).
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
================================================================================
The information contained in this Prospectus is not complete and may be changed.
These securities may not be sold until the Registration Statement filed with the
Securities and Exchange Commission is effective. This Prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS
SUBJECT TO COMPLETION, DATED DECEMBER ___, 2001
[MICROTUNE, INC. LOGO]
7,206,125 Shares
Common Stock
____________________
In connection with our acquisition of Transilica Inc., we issued 7,206,125
shares of our common stock to the former shareholders of Transilica and assumed
options to acquire 832,125 shares of our common stock. This prospectus may be
used by former shareholders of Transilica to resell 7,206,125 shares of our
common stock issued to them in the Transilica acquisition. This prospectus may
also be used by the former President and Chief Executive Officer of Transilica
who is our current Executive Vice President and General Manager, Wireless
Connectivity Division, to resell 497,383 shares of our common stock.
The prices at which these stockholders may sell these shares will be
determined by the prevailing market price for shares of our common stock or in
negotiated transactions. We will not receive any proceeds from the sale of these
shares.
Our common stock is listed for trading on the Nasdaq National Market under
the trading symbol "TUNE." On December 17, 2001, the last reported sale price of
our common stock was $23.00 per share.
The address of our executive offices is 2201 Tenth Street, Plano, Texas
75074, and our telephone number is (972) 673-1600.
____________________
Investing in our common stock involves risks. See the sections entitled
"Risk Factors" in the documents we file with the Securities and Exchange
Commission that are incorporated by reference in this prospectus for certain
risks and uncertainties that you should consider.
____________________
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
No person has been authorized to give any information or to make any
representation not contained or incorporated by reference in this prospectus
and, if given or made, such information or representation must not be relied
upon as having been authorized by our company. This prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any securities
other than the common stock offered by this prospectus, or an offer to sell or a
solicitation of an offer to buy the common stock in any jurisdiction to or from
any person to whom it is unlawful to make such offer or solicitation in such
jurisdiction. Neither the delivery of this prospectus nor any sale made under
this prospectus will under any circumstances create any implication that there
has been no change in our affairs since the date of this prospectus or that the
information contained herein is correct as of any time subsequent to the date of
this prospectus.
____________________
Prospectus dated December ___, 2001.
TABLE OF CONTENTS
Page
----
MICROTUNE, INC ............................................................. 1
SELLING STOCKHOLDERS ....................................................... 2
USE OF PROCEEDS ............................................................ 5
PLAN OF DISTRIBUTION ....................................................... 6
VALIDITY OF SHARES ......................................................... 8
EXPERTS .................................................................... 8
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE ............................ 8
WHERE YOU CAN FIND MORE INFORMATION ........................................ 9
______________________
MICROTUNE, INC.
We are a radio frequency silicon and systems company, providing
high-performance radio frequency tuners, upstream amplifiers and transceivers to
the broadband communications markets. Using proprietary technologies and
advanced design methodologies, we have designed and developed radio frequency
integrated circuits and radio frequency systems, called modules, for a variety
of broadband communications access devices, including cable modems, PC/TVs
(which are multimedia personal computers with broadband reception capabilities),
set-top boxes, digital TVs and other consumer electronic devices. Our radio
frequency products are the gateway devices for reception of video, audio, data
and/or voice over existing broadband communications infrastructures, such as
cable and terrestrial. Our tuners receive and tune radio frequency signals,
transferring a selected signal (or channel) to the rest of the system's
electronics for further operation. Our upstream amplifiers transmit radio
frequency data from the user through the broadband system, amplifying the signal
to levels required by the network. Our transceivers, consisting of both tuners
and upstream amplifiers, enable interactivity by permitting two-way, or
bi-directional, communications. Our latest radio frequency integrated circuit
products offer a high level of integration, resulting in significant cost,
performance, size, reliability and manufacturability benefits. Our radio
frequency module products provide a complete, manufacturing-ready radio
frequency system, eliminating a customer's need for radio frequency design and
manufacturing expertise.
We are a Delaware corporation with our principal executive offices located
at 2201 Tenth Street, Plano, Texas 75074. Our telephone number is (972)
673-1600. Our fiscal year ends on December 31. We maintain a website at
www.microtune.com. The reference to our website does not constitute
incorporation by reference of the information contained at this site. Microtune,
MicroTune and the Microtune logo are our trademarks. All other brand names and
trademarks appearing in this prospectus are the property of their holders.
References in this prospectus to the terms "we," "us," or "Microtune" or
other similar terms refer to Microtune, Inc. unless we state or the context
indicates otherwise.
1
SELLING STOCKHOLDERS
On November 28, 2001, we acquired Transilica Inc. pursuant to the terms of
an Agreement and Plan of Merger and Reorganization. In this merger, the selling
stockholders received shares of our common stock and cash in exchange for their
outstanding shares of Transilica common and preferred stock. In connection with
this merger, we agreed to register the resale by the selling stockholders of the
shares issued to the selling stockholders in this merger.
The following table sets forth the number of shares beneficially owned by
each of the selling stockholders. None of the selling stockholders has had a
material relationship with us within the past three years other than as a result
of the ownership of our common stock or other securities of ours or as a result
of their employment with us as of the date of the closing of the acquisition of
Transilica. No estimate can be given as to the amount of our common stock that
will be beneficially owned by the selling stockholders after completion of this
offering because the selling stockholders may offer all, some or none of the
shares of our common stock beneficially owned by them. The shares offered by
this prospectus may be offered from time to time by the selling stockholders
named below.
Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission. Except as set forth below, the persons named
in this table have sole voting and investment power with respect to all shares
of common stock shown as beneficially owned by them. The number of outstanding
shares of our common stock as of December 13, 2001 was 52,728,166 (including
5,000,000 shares of our common stock to be sold in our public offering which is
expected to close on December 19, 2001).
Maximum
Shares of Number of Shares of Percentage of
Common Stock Common Stock Common Stock Common Stock
Owned Prior that May Be Owned After Owned After
Name of Selling Stockholder to Offering(6) Sold Hereunder the Offering(3) the Offering(4)
--------------------------- ----------- -------------- -------------- --------------
Bela Lin .......................................... 1,263 1,263 ---- ----
Blakely Sokoloff Taylor & Zapman .................. 19,913 19,913 ---- ----
Brian Alford Irrevocable Trust .................... 4,182 4,182 ---- ----
Kevin Alford Irrevocable Trust .................... 4,182 4,182 ---- ----
Chris Alford/(1)(2)/............................... 75,276 75,276 ---- ----
Bryan Batten/(1)/.................................. 6,691 6,691 ---- ----
CDIB & Partners Investment Holding Corporation .... 79,653 79,653 ---- ----
Chao-Chang Chen/(1)(2)/............................ 148,923 148,923 ---- ----
Chao-Hua Wu ....................................... 379 379 ---- ----
Chau-Yuan Lin ..................................... 7,965 7,965 ---- ----
Chee Kwang Quek/(1)/............................... 6,691 6,691 ---- ----
Cheng-Fang Huang .................................. 13,275 13,275 ---- ----
Cheng-Han Lai ..................................... 6,637 6,637 ---- ----
Chiang-Chu Lee .................................... 26,551 26,551 ---- ----
Chieu Quang Dinh/(1)/.............................. 4,460 4,460 ---- ----
China Corporate Venture Fund, Ltd. ................ 66,377 66,377 ---- ----
Chin-Chang Kuo .................................... 39,826 39,826 ---- ----
Chin-Fu Chiang .................................... 13,275 13,275 ---- ----
Chin-Hu Wei ....................................... 2,655 2,655 ---- ----
Chi-Yin Ko ........................................ 6,637 6,637 ---- ----
Chu-Huang Hu ...................................... 325 325 ---- ----
Chung-Shu Yo ...................................... 6,637 6,637 ---- ----
Chun-Hsien Lin .................................... 6,637 6,637 ---- ----
Chun-Lei Young .................................... 2,655 2,655 ---- ----
Daliang Shi/(1)/................................... 8,921 8,921 ---- ----
Daniel Lee Green .................................. 2,788 2,788 ---- ----
Dennis Kwan/(1)(2)/ ............................... 406,494 406,494 ---- ----
2
Maximum
Shares of Number of Shares of Percentage of
Common Stock Common Stock Common Stock Common Stock
Owned Prior that May Be Owned After Owned After
Name of Selling Stockholder to Offering(6) Sold Hereunder the Offering(3) the Offering(4)
--------------------------- ----------- -------------- ----------------- -----------------
Digital Value Investment Ltd .................... 132,755 132,755 ---- ----
Edmond Ming-Tak Chiu ............................ 1,115 1,115 ---- ----
Ee Hong Kwek/(1)(2)/............................. 11,151 11,151 ---- ----
Eng Chuan Low/(1)(2)/ ........................... 33,456 33,456 ---- ----
eSunsino Venture Co., Ltd. ...................... 66,377 66,377 ---- ----
Feng-Tseng Hsu .................................. 13,275 13,275 ---- ----
Gamelan Capital Fund, L.P./(2)/.................. 78,960 78,960 ---- ----
Gamelan LLC ..................................... 84,536 84,536 ---- ----
GC&H Investments ................................ 6,637 6,637 ---- ----
Han-Tsung Hsiao ................................. 6,637 6,637 ---- ----
Ho Tung Lin ..................................... 26,551 26,551 ---- ----
Hock Law/(1)(2)(5)/.............................. 497,383 497,383 ---- ----
Hongyu Xie/(1)(2)/............................... 11,152 11,152 ---- ----
Hsiao-Chun Lee .................................. 2,655 2,655 ---- ----
Hsin Kuang Chen ................................. 223 223 ---- ----
Hsin-Chia Cheng ................................. 13,275 13,275 ---- ----
Hsin-Fa Hsu ..................................... 26,551 26,551 ---- ----
Hsing-Tsun Chou ................................. 26,551 26,551 ---- ----
Hui-Shu Tao/(2)/................................. 1,672 1,672 ---- ----
IBT Venture Co. ................................. 66,377 66,377 ---- ----
Jacob Hibrawi/(1)(2)/............................ 85,871 85,871 ---- ----
Jeffrey Scott Ricards/(1)(2)/.................... 22,303 22,303 ---- ----
Jianping Pan/(1)(2)/............................. 6,691 6,691 ---- ----
Joe David Campa/(2)/............................. 33,456 33,456 ---- ----
Joinwin Investment Co. Ltd. ..................... 39,826 39,826 ---- ----
Jonathan Masters ................................ 3,949 3,949 ---- ----
Jonathon Cheah/(1) (2)/.......................... 195,161 195,161 ---- ----
Ju-Fen Hsieh .................................... 13,275 13,275 ---- ----
Jui-Chu Su ...................................... 15,930 15,930 ---- ----
Kim Phuong Tran/(1)/............................. 4,460 4,460 ---- ----
Kuo Rong Ling ................................... 26,551 26,551 ---- ----
Kuo-Tang Hsu .................................... 232 232 ---- ----
Kye-Won Ryan/(1)/................................ 557 557 ---- ----
Lakshmi Technologies LLC/(2)/.................... 359,054 359,054 ---- ----
Lakshmi Ventures I, LLC/(2)/..................... 311,976 311,976 ---- ----
Lakshmi Ventures II, LLC/(2)/.................... 265,511 265,511 ---- ----
Laurent Valosek/(2)/............................. 55,760 55,760 ---- ----
Le Nguyen Luong/(1)/............................. 5,575 5,575 ---- ----
Longyin Wei/(1)(2)/.............................. 11,152 11,152 ---- ----
Lun Wang/(1)(2)/ ................................ 22,304 22,304 ---- ----
Masafumi Nakamura/(1)(2)/........................ 11,152 11,152 ---- ----
Mehran Matloubian/(2)/........................... 3,717 3,717 ---- ----
Michael Cubillas/(2)/............................ 37,451 37,451 ---- ----
Mike Chun Hung Wang/(2)/......................... 39,496 39,496 ---- ----
3
Maximum
Shares of Number of Shares of Percentage of
Common Stock Common Stock Common Stock Common Stock
Owned Prior that May Be Owned After Owned After
Name of Selling Stockholder to Offering(6) Sold Hereunder the Offering(3) the Offering(4)
--------------------------- ----------- -------------- -------------- ---------------
Min-Hsien Chiang ........................................... 26,551 26,551 ---- ----
Mu-Tien Chang .............................................. 6,637 6,637 ---- ----
Olli Jussi Salminen/(2)/.................................... 4,530 4,530 ---- ----
Paul Chan/(1)(2)/........................................... 85,871 85,871 ---- ----
Po-Chuan Wu ................................................ 3,790 3,790 ---- ----
R.O.C. Venture Company, Ltd. ............................... 66,377 66,377 ---- ----
Roy Enright/(1)/............................................ 16,728 16,728 ---- ----
Shian-Ho Shen .............................................. 20,378 20,378 ---- ----
Shih-Ching Chen ............................................ 6,637 6,637 ---- ----
Shih-Tsung Yang/(1)/........................................ 6,691 6,691 ---- ----
Shu-Hui Hung ............................................... 62 62 ---- ----
Shui Cheong Lee/(1)(2)/..................................... 8,921 8,921 ---- ----
Shu-Ling Wang .............................................. 65 65 ---- ----
Siliconware Investment Co. Ltd. ............................ 39,826 39,826 ---- ----
Smart Technology Ventures III SBIC, LP/(2)/................. 1,400,624 1,400,624 ---- ----
SOFTBANK Technology Ventures Advisors Fund VI L.P./(2)/..... 26,017 26,017 ---- ----
SOFTBANK Technology Ventures Side Fund VI L.P./(2)/......... 27,311 27,311 ---- ----
SOFTBANK Technology Ventures VI L.P./(2)/................... 667,849 667,849 ---- ----
SOFTBANK U.S. Ventures Fund VI L.P./(2)/.................... 716,291 716,291 ---- ----
Soon Fatt Yong/(1)/......................................... 8,921 8,921 ---- ----
Sunil Kumar Gutti/(1)/...................................... 6,691 6,691 ---- ----
Suresh Kumar/(1)(2)/........................................ 111,521 111,521 ---- ----
Tai Hwa Investment Co., Ltd. ............................... 13,275 13,275 ---- ----
Thomas Cook/(1)(2)/......................................... 8,921 8,921 ---- ----
Tieng Ying Choke ........................................... 1,951 1,951 ---- ----
Vladimir Mirochnikov/(1)/................................... 4,460 4,460 ---- ----
Wei-Chung Lee .............................................. 13,275 13,275 ---- ----
Wen-Hua Wang/(1)(2)/........................................ 211,890 211,890 ---- ----
Wen-Sheng Kuo/(2)/.......................................... 6,300 6,300 ---- ----
Wing Fat Lau/(1)/........................................... 4,460 4,460 ---- ----
Ya-Chuan Chung ............................................. 464 464 ---- ----
Ya-Chuan Lin ............................................... 379 379 ---- ----
Ya-Yung Hwang .............................................. 6,637 6,637 ---- ----
Yi Guo/(1)/................................................. 1,115 1,115 ---- ----
Yujiro Mori/(1)/............................................ 6,691 6,691 ---- ----
Yu-Lin Liu ................................................. 6,637 6,637 ---- ----
Yung-Hua Chung ............................................. 13,275 13,275 ---- ----
Yun-Yuan Huang ............................................. 139 139 ---- ----
--------- --------- ---- ----
Total ................................................. 7,206,125 7,206,125
--------- --------- ---- ----
_________
4
(1) Shares are subject to a right of repurchase in favor of the Company that
lapses with the passing of time pursuant to either (a) an Employee
Restricted Stock Agreement dated May 6, 2000 or (b) an early exercise of a
stock option grant pursuant to the terms and conditions of the Transilica
Inc. 2000 Stock Option, Deferred Stock and Restricted Stock Plan.
(2) Shares are subject to a Lock-Up Agreement by and between the stockholder
and the Company dated approximately November 18, 2001 pursuant to which the
transfer of the shares is restricted until December 28, 2002, except that
this restriction shall expire with respect to ten percent (10%) of the
shares on (a) the date that is the earlier of (i) February 28, 2001 or (ii)
recognition by Transilica Inc. of $3 million of cumulative product revenue
recognized in accordance with generally accepted accounting principles
(such earlier date referred to as the "Lock-Up Termination Date"); and (b)
each monthly anniversary of the Lock-Up Termination Date.
(3) Because each selling stockholder may sell all or some of the shares
registered on its behalf, from time to time as more fully described on the
following page, subject to the restrictions in (1) and (2) above, if
applicable, no estimate can be given at this time as to how many shares of
Common Stock will be owned by each selling stockholder after the offering.
(4) Because each selling stockholder may sell all or some of the shares
registered on its behalf subject to the restrictions in (1) and (2), if
applicable, no estimate can be given at this time as to the percentage of
shares owned by each selling stockholder after the completion of the
offering.
(5) Hock Law was the former President and Chief Executive Officer of Transilica
Inc. which was acquired by Microtune, Inc. on November 28, 2001. Hock Law
currently serves as Executive Vice President and General Manager, Wireless
Connectivity Division, of Microtune, Inc.
(6) Each of the selling stockholders owns less than 1% of the outstanding
shares of our common stock with the exception of Smart Technology Ventures
III SBIC, L.P., which owns 2.66%; SOFTBANK Technology Ventures VI, L.P.,
which owns 1.27%; and SOFTBANK U.S. Ventures Fund VI L.P., which owns 1.36%
prior to any sale hereunder.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares by the selling
stockholders.
5
PLAN OF DISTRIBUTION
We are registering 7,206,125 shares of our common stock on behalf of the
selling stockholders. As used herein, "selling stockholders" includes the
selling stockholders (including the former President and Chief Executive Officer
of Transilica who is, as of the date of this prospectus, our Executive Vice
President and General Manager, Wireless Connectivity Division) named in the
table above and pledgees, donees, transferees or other successors-in-interest
selling shares received from a named selling stockholder as a gift, partnership
distribution or other non-sale-related transfer after the date of this
prospectus. The selling stockholders may sell the shares from time to time and
may also decide not to sell all the shares they are allowed to sell under this
prospectus. The selling stockholders will act independently of us in making
decisions with respect to the timing, manner and size of each sale. The sales
may be made on one or more exchanges or in the over-the-counter market or
otherwise, at prices and at terms then prevailing or at prices related to the
then current market prices, or in negotiated transactions. The selling
stockholders may effect such transactions by selling the shares to or through
broker-dealers. The shares may be sold by one or more of, or a combination of,
the following:
. a block trade in which the broker-dealer so engaged will attempt to
sell shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
. purchases by a broker-dealer as principal and resale by such
broker-dealer for its account pursuant to this prospectus;
. an exchange distribution in accordance with the rules of such
exchange;
. ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
. privately negotiated transactions.
To the extent required, this prospectus may be amended or supplemented from
time to time to describe a specific plan of distribution. In effecting sales,
broker-dealers engaged by the selling stockholders may arrange for other
broker-dealers to participate in the resales.
The selling stockholders may enter into hedging transactions with
broker-dealers in connection with distributions of shares or otherwise. In such
transactions, broker-dealers may engage in short sales of shares in the course
of hedging the positions they assume with selling stockholders. The selling
stockholders also may sell shares short and redeliver shares to close out such
short positions. The selling stockholders may enter into option or other
transactions with broker-dealers which require the delivery of shares to the
broker-dealer. The broker-dealer may then resell or otherwise transfer such
shares pursuant to this prospectus. The selling stockholders also may loan or
pledge shares to a broker-dealer. The broker-dealer may sell the shares so
loaned, or upon a default the broker-dealer may sell the shares so pledged,
pursuant to this prospectus.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from selling stockholders. Broker-dealers
or agents may also receive compensation from the purchasers of shares for whom
they act as agents or to whom they sell as principals, or both. Compensation as
to a particular broker-dealer might be in excess of customary commissions and
will be in amounts to be negotiated in connection with transactions involving
shares. Broker-dealers or agents and any other participating broker-dealers or
the selling stockholders may be deemed to be "underwriters" within the meaning
of Section 2(11) of the Securities Act of 1933 in connection with sales of
shares. Accordingly, any such commission, discount or concession received by
them and any profit on the resale of shares purchased by them may be deemed to
be underwriting discounts or commissions under the Securities Act of 1933.
Because selling stockholders may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act of 1933, the selling stockholders
will be subject to the prospectus delivery requirements of the Securities Act of
1933. In addition, any shares of a selling stockholder covered by this
prospectus which qualify for sale pursuant to Rule 144 promulgated under the
Securities Act of 1933 may be sold under Rule 144 rather than pursuant to this
prospectus. The selling stockholders have advised us that they have not entered
into any agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their shares.
The shares may be sold by selling stockholders only through registered or
licensed brokers or dealers if required under applicable state securities laws.
In addition, in certain states the shares may not be sold unless they have been
registered or qualified for sale in the applicable state or an exemption from
the registration or qualification requirement is available and such sale
complies with such exemption.
6
Under applicable rules and regulations under the Securities Exchange Act of
1934, any person engaged in the distribution of shares may not simultaneously
engage in market making activities with respect to our common stock for a period
of two business days prior to the commencement of such distribution. In
addition, each selling stockholder will be subject to applicable provisions of
the Securities Exchange Act of 1934 and the associated rules and regulations
under the Securities Exchange Act of 1934, including Regulation M, which
provisions may limit the timing of purchases and sales of shares of our common
stock by the selling stockholders. We will make copies of this prospectus
available to the selling stockholders, and we have informed them of the need for
delivery of copies of this prospectus to purchasers at or prior to the time of
any sale of the shares.
We will file a supplement to this prospectus, if required, pursuant to Rule
424(b) under the Securities Act of 1933 upon being notified by a selling
stockholder that any material arrangement has been entered into with a
broker-dealer for the sale of shares through a block trade, special offering,
exchange distribution or secondary distribution or a purchase by a broker or
dealer. Such supplement will disclose:
. the name of each such selling stockholder and of the participating
broker-dealer(s);
. the number of shares involved;
. the price at which such shares were sold;
. the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
. that such broker-dealer(s) did not conduct any investigation to verify
the information set out or incorporated by reference in this
prospectus; and
. other facts material to the transaction.
We will bear all costs, expenses and fees in connection with the
registration of the shares. The selling stockholders will bear all commissions
and discounts, if any, attributable to the sales of the shares. The selling
stockholders may agree to indemnify any broker-dealer or agent that participates
in transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act of 1933.
7
VALIDITY OF SHARES
The validity of the common stock will be passed upon for us by Gray Cary
Ware & Freidenrich LLP, Austin, Texas.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K/A for the year
ended December 31, 2000, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the Registration Statement of
which this prospectus is a part. Our financial statements are incorporated by
reference in reliance on Ernst & Young LLP's report, given upon their authority
as experts in accounting and auditing.
Ernst & Young LLP, independent auditors, have also audited the consolidated
financial statements of HMTF Acquisition (Bermuda) Ltd. and Temic Telefunken
Hochfrequenztechnik GmbH included in our Registration Statement on Form S-1
(Registration No. 333-36340) on pages F-26 through F-42 of that registration
statement, as set forth in their report, which is incorporated by reference in
this prospectus and elsewhere in the Registration Statement of which this
prospectus is a part. These financial statements are incorporated by reference
in reliance on Ernst & Young LLP's report, given upon their authority as experts
in accounting and auditing.
The financial statements of Transilica Inc. included in Amendment No. 2 to
the Form 8-K dated December 5, 2001 and incorporated by reference in this
prospectus and elsewhere in the registration statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in giving said report.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information we file with
them, which means:
. incorporated documents are considered part of this prospectus;
. we can disclose important information to you by referring you to those
documents; and
. information that we file with the SEC will automatically update this
prospectus.
The following documents that we filed with the SEC either pursuant to the
Securities Act of 1933 or the Securities Exchange Act of 1934 are incorporated
by reference and made a part of this prospectus:
. Our Annual Report on Form 10-K/A for the fiscal year ended
December 31, 2000;
. Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2001;
. Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2001;
. Our Quarterly Report on Form 10-Q for the quarter ended September 30,
2001;
. Our Amendment No. 2 to our Current Report on Form 8-K dated December
5, 2001, and originally filed with the SEC on November 15, 2001;
. Our Current Report on Form 8-K dated December 14, 2001; and
. The description of our securities contained in Item 1 to our
Registration Statement on Form 8-A filed with the SEC on July 14,
2000.
In addition, pursuant to Rule 3-05(b)(4)(iii) of Regulation S-X, the
consolidated financial statements of HMTF Acquisition (Bermuda) Ltd. ("HMTF
Acquisition"), and Temic Telefunken Hochfrequenztechnik GMBH ("Temic") that
appear on pages F-26 through F-42 of our Registration Statement on Form S-1
(Registration No. 333-36340) are incorporated herein by reference.
This prospectus is part of a registration statement on Form S-3 filed with
the SEC. We are incorporating by reference the documents listed above and any
future filings that we make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 prior to the sale of all the
securities covered by this prospectus.
8
We will provide, without charge, to each person to whom this prospectus is
delivered, upon oral or written request, a copy of any or all of the documents
incorporated by reference in this prospectus (other than exhibits to those
documents unless the exhibits are specifically incorporated by reference into
the information that this prospectus incorporates). Written or telephone
requests should be directed to Investor Relations at Microtune, Inc., 2201 Tenth
Street, Plano, Texas 75074, telephone number (972) 673-1600.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, along with other
information, with the SEC. You may read and copy any document we file at the
public reference facilities maintained by the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. The SEC maintains an Internet site
that contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC. The address of that
website is www.sec.gov.
This prospectus constitutes part of a registration statement on Form S-3
filed under the Securities Act with respect to the securities offered. As
permitted by the SEC's rules, this prospectus omits some of the information,
exhibits and undertakings included in the registration statement.
Statements contained in this prospectus as to the contents of any contract
or other document are not necessarily complete, and in each instance we refer
you to the copy of the contract or document filed as an exhibit to the
registration statement, each such statement being qualified in all respects by
that reference.
9
[MICROTUNE, INC. LOGO]
7,206,125 Shares
Common Stock
PROSPECTUS
Neither we nor any selling stockholders have authorized any dealer,
salesperson or other person to give any information or to make any
representation other than those contained or incorporated by reference in this
prospectus and any accompanying prospectus supplement. You must not rely upon
any information or representation not contained or incorporated by reference in
this prospectus or any accompanying prospectus supplement as if we had
authorized it. This prospectus and any accompanying prospectus supplement do not
constitute an offer to sell or the solicitation of an offer to buy any
securities other than the registered securities to which they relate, nor does
this prospectus and any accompanying prospectus supplement constitute an offer
to sell or the solicitation of any offer to buy securities in any jurisdiction
to any person to whom it is unlawful to make such offer or solicitation in such
jurisdiction. You should not assume that this prospectus or any prospectus
supplement is correct on any date after the date of the prospectus or prospectus
supplement, or, even though this prospectus or any prospectus supplement is
delivered, or securities are sold, on a later date.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses Of Issuance and Distribution.
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by us in connection with the
sale of the common stock being registered. All amounts shown are estimates
except for the SEC registration fee.
SEC registration fee............................. $ 39,267.62
Printing and engraving expenses.................. $ 5,000.00
Legal fees and expenses.......................... $ 25,000.00
Accounting fees and expenses..................... $ 5,000.00
Transfer agent, trustee and registrar fees....... $ 5,000.00
Miscellaneous expense............................ $ 10,000.00
................................................. -------------
Total expenses $ 89,267.62
=============
Item 15. Indemnification Of Officers And Directors.
Delaware law provides that a corporation has the ability to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding if the person acted
in good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the person's
conduct was unlawful. Our amended and restated certificate of incorporation
provides that our directors will not be personally liable to us or our
stockholders for monetary damages for breach of fiduciary duty as a director to
the maximum extent permitted by Delaware law. Our Bylaws provide that the
Registrant shall indemnify its directors, officers, employees and agents to the
fullest extent permitted by Delaware law, including in circumstances in which
indemnification is otherwise discretionary under Delaware law. In addition, we
have entered into separate indemnification agreements with our directors,
officers and certain employees that require us to indemnify those individuals
against certain liabilities which may arise by reason of their status or service
(other than liabilities arising from willful misconduct of a culpable nature).
We also maintain director and officer liability insurance for these individuals.
These indemnification provisions and the indemnification agreement to be
entered into between the Registrant and its officers and directors may be
sufficiently broad to permit indemnification of the Registrant's officers and
directors for liabilities (including reimbursement of expenses incurred) arising
under the Securities Act of 1933.
The above discussion of our Amended and Restated Certificate of
Incorporation, our Bylaws and Section 145 of the Delaware General Corporation
Law and any indemnification agreements is not intended to be exhaustive and is
qualified in its entirety by such documents and statute.
II-1
Item 16. Exhibits.
Exhibit
Number Description of Document
------ -----------------------
4.1 Amended and Restated Certificate of Incorporation of Microtune,
Inc., incorporated herein by reference to Exhibit 3.2 to our
Registration Statement on Form S-1 (Registration No. 333-36340)
declared effective on August 4, 2000.
4.2 Amended and Restated Bylaws of Microtune, Inc., incorporated
herein by reference to Exhibit 3.4 to our Registration Statement
on Form S-1 (Registration No. 333-36340) declared effective on
August 4, 2000.
*5.1 Opinion of Gray Cary Ware & Freidenrich LLP.
*23.1 Consent of Ernst & Young LLP, independent auditors.
*23.2 Consent of Gray Cary Ware & Freidenrich LLP (included in Exhibit
5.1).
*23.3 Consent of Arthur Andersen LLP, independent public accountants.
*24.1 Power of Attorney (included on page II-4 of this Registration
Statement).
-----
* Filed herewith
Item 17. Undertakings
Insofar as indemnification by the Registrant 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 referenced in
Item 15 of this Registration Statement or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission
indemnification is against public policy as expressed in the Securities Act of
1933, and is, therefore, unenforceable. In the event that a claim for
indemnification against 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 a director, officer or controlling person in connection with the
securities being registered hereunder, 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
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of that issue.
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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement.
(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 (i) and (ii) do not apply if 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 this 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.
II-2
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.
4. For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act of 1933 shall be deemed to be part of this Registration
Statement as of the time it was declared effective; and
5. For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of Prospectus shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of the securities at the time shall be deemed to be
the initial bona fide offering thereof.
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 therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-3
SIGNATURES
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Plano, State of Texas, on the 18th day of December,
2001.
MICROTUNE, INC.
By: /s/ Everett "Buddy" Rogers
----------------------------
Everett "Buddy" Rogers
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Everett "Buddy" Rogers and Nancy A.
Richardson, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including pre- or post-effective amendments or supplements) 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, and hereby grants to such 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 done, 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 his or their 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:
Signature Title Date
--------- ----- ----
/s/ Douglas J. Bartek Chief Executive Officer and Chairman December 18, 2001
------------------------------------ (Principal Executive Officer)
Douglas J. Bartek
/s/ Everett "Buddy" Rogers Chief Financial Officer December 18, 2001
------------------------------------ (Principal Financial and Accounting Officer)
Everett "Buddy" Rogers
/s/ Harvey B. Cash Director December 18, 2001
------------------------------------
Harvey B. Cash
/s/ Walter S. Ciciora
------------------------------------ Director December 18, 2001
Walter S. Ciciora
/s/ James H. Clardy Director December 18, 2001
------------------------------------
James H. Clardy
/s/ Jack D. Furst Director December 18, 2001
------------------------------------
Jack D. Furst
/s/ Eric Lindberg Director December 18, 2001
------------------------------------
Eric Lindberg
/s/ William P. Tai Director December 18, 2001
------------------------------------
William P. Tai
II-4
Exhibit
Number Description of Document
------ -----------------------
4.1 Amended and Restated Certificate of Incorporation of Microtune,
Inc., incorporated herein by reference to Exhibit 3.2 to our
Registration Statement on Form S-1(Registration No. 333-36340)
declared effective on August 4, 2000.
4.2 Amended and Restated Bylaws of Microtune, Inc., incorporated
herein by reference to Exhibit 3.4 to our Registration Statement
on Form S-1 (Registration No. 333-36340) declared effective on
August 4, 2000.
*5.1 Opinion of Gray Cary Ware & Freidenrich LLP.
*23.1 Consent of Ernst & Young LLP, independent auditors.
*23.2 Consent of Gray Cary Ware & Freidenrich LLP (included in Exhibit
5.1).
*23.3 Consent of Arthur Andersen LLP, independent public accountants.
*24.1 Power of Attorney (included on page II-4 of this Registration
Statement).
-------
* Filed herewith
II-5