As filed with the Securities and Exchange Commission
on May 19th, 1997
Registration No. 333-26747
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Amendment No. 1
To
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SAWTEK INC.
(Exact name of registrant as specified in its charter)
Florida
(State or other jurisdiction or incorporation or organization)
59-1864440
(I.R.S. Employer Identification Number)
1818 South Highway 441, Apopka, Florida 32703 (407) 886-8860
(Address including zip code, and telephone number including area code, of
registrant's principal executive offices)
Steven P. Miller, 1818 South Highway 441, Apopka,
Florida 32703 (407) 886-8860 (Name, address including zip code,
and telephone number including area code, of agent for service)
Copies to:
WILLIAM A. GRIMM, ESQ. ANDREI M. MANOLIU, ESQ.
Gray Harris & Robinson, P.A. L. KAY CHANDLER, ESQ.
201 East Pine Street Cooley Godward LLP
Suite 1200 Five Palo Alto Square
Orlando, Florida 32801 3000 El Camino Real
(407) 843-8880 Palo Alto, California 94306-2155
(415) 843-5000
------------------------------
Approximate date of commencement of proposed sale to the public:
As soon as practicable 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. / /
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. / /
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
Title of Each Class of Proposed Maximum Proposed Maximum
Securities to be Amount to be Aggregate Price Per Aggregate Offering Amount of Registration
Registered Registered(1) Unit(2) Price Fee
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 2,875,000 $30.5625 $87,867,188 $26,626
- --------------------------------------------------------------------------------------------------------------------------
<FN>
(1) Includes 375,000 shares that the Underwriters have the option to purchase
from certain Selling Shareholders to cover over-allotments, if any.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 (c) under the Securities Act of 1933.
</FN>
</TABLE>
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 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
- -----------------------------------------------------
The following is a statement of estimated expenses of the issuance and
distribution of the securities being registered other than underwriting
compensation:
<TABLE>
<CAPTION>
Estimated
---------
<S> <C>
Securities and Exchange Commission Registration $ 27,000
NASD Filing Fee 15,000
Blue Sky Fee and Expenses
(including attorney's fees and expenses) 15,000
Printing and Engraving Expenses 100,000
Transfer agent Fees and Expenses 5,000
Accounting Fees and Expenses 35,000
Legal Fees and Expenses 225,000
Miscellaneous Expense 78,000
--------
Total $500,000
========
</TABLE>
Item 15. Indemnification of Directors and Officers.
- ---------------------------------------------------
The Registrant, a Florida corporation, is empowered by Section 607.0850
of the Florida Business Corporation Act, subject to the procedures and
limitations stated therein, to indemnify any person who was or is a party to any
proceeding (other than an action by, or in the right of, the corporation), by
reason of the fact that he is or was a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust or other enterprise
against liability incurred in connection with such proceeding, including any
appeal thereof, if he acted in good faith and in a manner he 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
his conduct was unlawful.
Section 607.0850 also empowers a Florida corporation to indemnify any
person who was or is a party to any proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, or other
enterprise, against expenses and amounts paid in settlement not exceeding, in
the judgment of the board of directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in connection with
the defense or settlement of such proceeding, including any appeal thereof, if
he acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudicated to be liable unless, and only to the
extent that, the court in which such proceeding was brought, or any other court
of competent jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper. To the extent that a director, officer, employee
or agent of a corporation has been successful on the merits or otherwise in
defense of any proceeding referred to above, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses actually and
reasonably incurred by him in connection therewith.
<PAGE>
The indemnification and advancement of expenses provided pursuant to
Section 607.0850 are not exclusive, and a corporation may make any other or
further indemnification or advancement of expenses of any of its directors,
officers, employees or agents, under any bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
However, a director, officer, employee or agent is not entitled to
indemnification or advancement of expenses if a judgment or other final
adjudication establishes that his action or omissions to act were material to
the cause of action so adjudicated and constitute (a) a violation of the
criminal law, unless the director, officer, employee or agent had reasonable
cause to believe his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful; (b) a transaction from which the director, officer,
employee or agent derived an improper personal benefit; (c) in the case of a
director, a circumstance under which the liability provisions of Section
607.0834 of the Business Corporation Act, relating to a director's liability for
voting in favor of or asserting to an unlawful distribution, are applicable; or
(d) willful misconduct or a conscious disregard for the best interests of the
corporation in a proceeding by or in the right of the corporation to procure a
judgment in its favor or in a proceeding by or in the right of a shareholder.
The Registrant's Articles of Incorporation provides that the Company
shall indemnify its officers and directors to the extent permitted by Section
607.0850.
Pursuant to the Underwriting Agreement filed as Exhibit 1.1 to this
Registration Statement, the Underwriters have agreed to indemnify the directors,
officers and controlling persons of the Registrant against certain civil
liabilities that may be incurred in connection with this offering, including
certain liabilities under the Securities Act of 1933, as amended.
The Registrant maintains an insurance policy covering directors and
officers of the Registrant for the wrongful act for which they become legally
obligated to pay or for which the Registrant is required to indemnify its
directors or officers.
Item 16. Exhibits.
- ------------------
1.1 Underwriting agreement (to be filed by amendment).
3.1 Amended and Restated Articles of Incorporation of Sawtek Inc.
(incorporated by reference to Registration Statement on Form S-8,
File No. 333-10579).
3.11 Amendment to Articles of Incorporation of Sawtek Inc.(incorporated
by reference to Form 8-K, File No. 000-28276).
3.2 1996 Bylaws of Sawtek Inc.(incorporated by reference to
Registration Statement on Form S-8, File No. 333-11523).
4.1 *Specimen stock certificate.
5.1 Opinion regarding legality (to be filed by amendment).
11.1 Statement regarding computation of per share earnings (previously
filed).
21.1 *List of subsidiaries of the Registrant.
23.1 Consent of Ernst & Young LLP (previously filed).
24.1 Power of attorney (previously filed).
*Incorporated by reference to Registration Statement on Form S-1, File
No.333-1860.
<PAGE>
Item 17. Undertakings.
- ----------------------
The Company hereby undertakes:
(1) 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 shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) 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 such securities at the time shall be deemed
to be the initial bona fide offering thereof.
The Company hereby undertakes that, for purposes 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 Exchange Act (and where
applicable, each filing of an employee benefit plan's annual report pursuant to
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.
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 provisions described in Item 15 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 by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceedings) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company 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 and as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this amendment to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Apopka, State of Florida, on the 19th
day of May, 1997.
SAWTEK INC.
By:/s/Steven P. Miller
Steven P. Miller
Chairman and Chief Executive Officer
By:/s/Raymond A. Link
Raymond A. Link
Vice President-Finance and
Chief Financial Officer
By:/s/Ronald A. Stribling
Ronald A. Stribling
Controller and Chief Accounting Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment
has been signed below by the following persons on behalf of the Registrant and
in the capacities indicated on the 19th day of May, 1997.
/s/Neal J. Tolar* /s/Steven P. Miller*
Neal J. Tolar Steven P. Miller
Senior Vice President and Director Chairman, CEO and Director
/s/Robert C. Strandberg* /s/Willis C. Young*
Robert C. Strandberg Willis C. Young
Director Director
/s/Bruce S. White*
Bruce S. White
Director
*By:/s/Raymond A. Link
Raymond A. Link
Attorney-in-fact
<PAGE>
