<PAGE>
As filed with the Securities and Exchange Commission on July 27, 2000
Registration No. 333-36340
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------
AMENDMENT NO. 5
TO
FORM S-1
REGISTRATION STATEMENT
Under The Securities Act of 1933
---------------
MICROTUNE, INC.
(Exact name of Registrant as specified in its charter)
Delaware 3674 75-2883117
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Number) Identification No.)
incorporation or
organization)
Microtune, Inc.
2540 East Plano Parkway, Suite 188
Plano, Texas 75074
(972) 673-1600
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------
Douglas J. Bartek
Chief Executive Officer
Microtune, Inc.
2540 East Plano Parkway, Suite 188
Plano, Texas 75074
(972) 673-1600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
Copies to:
Christopher J. Ozburn, Esq. John E. Hayes III, Esq.
Wilson Sonsini Goodrich & Rosati Brobeck Phleger & Harrison LLP
Professional Corporation 370 Interlocken Blvd., Suite 500
8911 Capital of Texas Highway Broomfield, CO 80021
Westech 360, Suite 3350 (303) 410-2000
Austin, Texas 78759
(512) 338-5400
---------------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act") 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 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 this Form is a post-effective amendment filed pursuant to Rule 462(d)
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,
check the following box. [_]
---------------
The Registrant hereby amends this Registration Statement on the 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 or until the Registration Statement shall become effective on
the date that the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
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<PAGE>
EXPLANATORY NOTE
The primary purpose of this Amendment No. 5 to Microtune, Inc.'s Registration
Statement on Form S-1 (File No. 333-36340) is to file a certain exhibit.
1
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth all expenses to be paid by the Registrant,
other than the underwriting discounts and commissions payable by the Registrant
in connection with the sale of the common stock being registered. All amounts
shown are estimates except for the registration fee and the NASD filing fee.
<TABLE>
<S> <C>
SEC registration fee............................................. $ 19,182
NASD filing fee.................................................. 7,500
Nasdaq National Market listing fee............................... 150,000
Blue Sky qualification fees and expenses......................... 10,000
Printing and engraving expenses.................................. 250,000
Legal fees and expenses.......................................... 400,000
Accounting fees and expenses..................................... 475,000
Transfer agent and registrar fees................................ 10,000
Miscellaneous expenses........................................... 78,318
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Total.......................................................... $1,400,000
==========
</TABLE>
Item 14. Indemnification of Officers and Directors.
Section 145 of the Delaware General Corporation Law permits indemnification
of officers, directors and other corporate agents under certain circumstances
and subject to certain limitations. The Registrant's Certificate of
Incorporation and Bylaws provide that the Registrant shall indemnify its
directors, officers, employees and agents to the full extent permitted by
Delaware General Corporation Law, including in circumstances in which
indemnification is otherwise discretionary under Delaware law. In addition, the
Registrant intends to enter into separate indemnification agreements with its
directors, officers and certain employees which would require the Registrant to
indemnify them against certain liabilities which may arise by reason of their
status or service (other than liabilities arising from willful misconduct of a
culpable nature). The Registrant also intends to maintain director and officer
liability insurance, if available on reasonable terms.
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 Registrant intends to obtain in conjunction with the effectiveness of the
Registration Statement a policy of directors' and officers' liability insurance
that insures the Registrant's directors and officers against the cost of
defense, settlement or payment of a judgment under certain circumstances.
The underwriting agreement filed as Exhibit 1.1 to this Registration
Statement provides for indemnification by the underwriters of the Registrant
and its officers and directors for certain liabilities arising under the
Securities Act of 1933, or otherwise.
II-1
<PAGE>
Item 15. Recent Sales of Unregistered Securities.
During the past three years, we have issued and sold the following
unregistered securities to a limited number of persons as described below (as
adjusted to reflect a 2-for-1 stock split of the common stock effective as of
January 18, 2000). None of these transactions involved any underwriters,
underwriting discounts or commissions, or any public offering, and we believe
that each transaction was exempt from the registration requirements of the
Securities Act of 1933 by virtue of Section 4(2) thereof, Regulation D
promulgated thereunder or Rule 701 pursuant to compensatory benefit plans and
contracts relating to compensation as provided under Rule 701. The recipients
of securities in each transaction represented their intention to acquire the
securities for investment only and not with a view to or for sale in connection
with any distribution thereof, and appropriate legends were affixed to the
share certificates and instruments issued in those transactions. All recipients
had adequate access, through their relationships with us, to information about
us.
(a) In August 1997, we issued an aggregate of 250,000 shares of Series A
preferred stock at a purchase price of $3.00 per share for an aggregate
purchase price of $750,000 to Intel Corporation. In addition, we issued a
warrant to Intel Corporation in August 1997 to purchase 40,698 shares of Series
A preferred stock at an exercise price of $0.01 per share.
(b) In August 1997, we issued an aggregate of 1,000,000 shares of Series B
preferred stock at $4.00 per share for an aggregate purchase price of
$4,000,000 to 9 shareholders and 6 third-party private investors.
(c) In June and July 1998, we issued an aggregate of 1,450,166 shares of
Series C preferred stock at $6.00 per share for an aggregate purchase price of
$8,700,996 to 12 shareholders and 21 third-party private investors.
(d) In June 1999, we issued an aggregate of 12,500 shares of Series C
preferred stock at $6.00 per share for an aggregate purchase price of $75,000
to Mr. Alejandro Schwartzman.
(e) In October through December 1999, we issued an aggregate of 1,367,418
shares of Series D preferred stock at $12.00 per share for an aggregate
purchase price of $16,409,016 to seven third-party private investors.
(f) In January 2000, we issued an aggregate of 3,318,513 shares of Series E
preferred stock and warrants to purchase 2,212,342 shares of common stock at a
nominal exercise price to HMTF Temic/Microtune Cayman, L.P. and TIN
Vermogensverwaltungsgesellschaft in exchange for all of the outstanding shares
of HMTF Acquisition (Bermuda), Ltd., which securities were valued at, in the
aggregate, approximately $63 million.
(g) In January 2000, we granted three employees options to purchase 330,000
shares of Series E preferred stock at an exercise price of $16.00 per share,
and in April 2000 an option to purchase 110,000 shares of Series E preferred
stock was cancelled.
(h) Between July 1, 1997 and June 30, 2000, we granted options to purchase an
aggregate of 8,523,300 shares of common stock to our employees at per share
exercise prices ranging from $0.025 to $4.95.
(i) Between July 1, 1997 and June 30, 2000, we issued an aggregate of
1,929,861 shares of our common stock to our employees or other service
providers at a range of $0.025 to $0.875 per share upon the exercise of stock
options issued under our 1996 Stock Option Plan, for an aggregate purchase
price of $450,627.
(j) In June 2000, we issued an aggregate of 800,000 shares of Series F
preferred stock at $12.00 per share for an aggregate purchase price of
$9,600,000 to four of our customers.
II-2
<PAGE>
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- ----------------------------------------------------------------------
<C> <S>
1.1+ Form of Underwriting Agreement
3.1+ Certificate of Incorporation as currently in effect
3.2+ Form of Amended and Restated Certificate of Incorporation (to be filed
with the Delaware Secretary of State upon the closing of the offering
covered by this Registration Statement)
3.3+ Bylaws as currently in effect
3.4+ Form of Amended and Restated Bylaws (to be effective upon the closing
of the offering covered by this Registration Statement)
4.1+ Form of Specimen Stock Certificate
4.2+ Fifth Amended and Restated Registration Rights Agreement dated
effective as of June 14, 2000
5.1+ Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation,
regarding legality of the securities being issued
10.1+ Form of Indemnification Agreement, to be entered into between the
Registrant and each of its directors and officers, to become effective
upon the closing of the offering made under this Registration
Statement
10.2+ 1996 Stock Option Plan
10.3+ 2000 Stock Plan
10.4+ 2000 Director Option Plan
10.5+ 2000 Employee Stock Purchase Plan
10.6+ Employment Agreement between Douglas J. Bartek and the Registrant
dated March 23, 2000
10.7+ Employment Agreement between John P. Norsworthy and the Registrant
dated August 8, 1996
10.8+ Employment Agreement between James Fontaine and the Registrant dated
August 1, 1998
10.9+ Standard Commercial Lease dated May 18, 1998 between Jupiter Parkway
Village, Ltd. and the Registrant, as amended, for the premises located
at 2540 East Plano Parkway, Suite 388, Plano, Texas 75074
10.10+ Commercial Lease Agreement dated March 24, 2000 between Jupiter
Service Center, Ltd. and the Registrant for the premises located at
2201 10th Street, Plano, Texas 75074
10.11+ Property Leasing Contract, as supplemented as of January 1, 2000,
between Sanctor Grundstucks-Vermietungsgesellschaft mbH & Co. and
Temic Telefunken Hochfrequeztechnik GmbH for facility in Ingolstadt,
Germany
10.12+ Contract of Lease dated December 10, 1998 between MX Technology
Corporation and Temic RF-Technologies (Phils.), Inc. for factory space
in the Granville Industrial Complex in Cavite, Philippines
10.13+ Sublease Agreement dated December 10, 1998 between Temic RF-
Technologies (Phils.), Inc. and NSF RF-Technologies Corporation for
factory space in the Granville Industrial Complex in Cavite,
Philippines
10.14+ Securities Purchase Agreement dated January 10, 2000, effective
December 31, 1999, between HMTF Acquisition (Bermuda), Ltd. and the
Registrant
10.15+ Asset Purchase Agreement between Registrant, The Tuner Company and
Thomas Widmer dated January 10, 2000
10.16+ Line of Credit dated March 22, 1999 between Deutsche Bank AG and Temic
Telefunken Hochfrequenztechnik GmbH
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- ---------------------------------------------------------------------
<C> <S>
10.17+ Line of Credit dated September 9, 1999 between HypoVereinsbank and
Temic Telefunken Hochfrequenztechnik GmbH
10.18** Development and Supply Agreement dated June 14, 2000 between General
Instrument Corporation and the Registrant.
21.1+ List of Subsidiaries and Affiliates of Microtune, Inc.
23.1+ Consent of Ernst & Young LLP, independent auditors
23.2+ Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(contained in Exhibit 5.1)
24.1+ Power of Attorney (contained in the signature page to this
Registration Statement)
27.1+ Financial Data Schedule
</TABLE>
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* to be filed by amendment
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment and the omitted portions have been filed separately
with the Securities and Exchange Commission.
+ previously filed
(b) Financial Statement Schedules.
Schedules not listed above have been omitted because the information required
to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
Item 17. Undertakings
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement certificates in
denominations and registered in names as required by the Underwriters to permit
prompt delivery to each purchaser.
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 14 of this Registration Statement or otherwise, the Registrant has been
advised that in the opinion of the 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 that:
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 of 1933 shall be deemed to be part
of this Registration Statement as of the time it was declared effective;
and
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 the securities at the time
shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Plano, County of Collin,
State of Texas, on the 27th day of July 2000.
MICROTUNE, INC.
/s/ Everett Rogers
By: _________________________________
Everett Rogers
Chief Financial Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Douglas J. Bartek* Chief Executive Officer July 27, 2000
______________________________________ and Chairman (Principal
Douglas J. Bartek Executive Officer)
/s/ Everett Rogers Chief Financial Officer July 27, 2000
______________________________________ (Principal Financial and
Everett Rogers Accounting Officer)
/s/ Harvey B. Cash* Director July 27, 2000
______________________________________
Harvey B. Cash
/s/ Walter S. Ciciora* Director July 27, 2000
______________________________________
Walter S. Ciciora
/s/ James H. Clardy* Director July 27, 2000
______________________________________
James H. Clardy
/s/ Martin Englmeier* Vice Chairman July 27, 2000
______________________________________
Martin Englmeier
/s/ Kenneth G. Langone* Director July 27, 2000
______________________________________
Kenneth G. Langone
/s/ John Norsworthy Director July 27, 2000
______________________________________
John Norsworthy
/s/ Philippe Von Stauffenberg* Director July 27, 2000
______________________________________
Philippe von Stauffenberg
/s/ Lawrence D. Stuart, Jr.* Director July 27, 2000
______________________________________
Lawrence D. Stuart, Jr.
/s/ William P. Tai* Director July 27, 2000
______________________________________
William P. Tai
</TABLE>
/s/ Everett Rogers
*by: ____________________________
Attorney-in-fact
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- ----------------------------------------------------------------------
<C> <S>
1.1+ Form of Underwriting Agreement
3.1+ Certificate of Incorporation as currently in effect
3.2+ Form of Amended and Restated Certificate of Incorporation (to be filed
with the Delaware Secretary of State upon the closing of the offering
covered by this Registration Statement)
3.3+ Bylaws as currently in effect
3.4+ Form of Amended and Restated Bylaws (to be effective upon the closing
of the offering covered by this Registration Statement)
4.1+ Form of Specimen Stock Certificate
4.2+ Fifth Amended and Restated Registration Rights Agreement dated
effective as of June 16, 2000
5.1+ Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation,
regarding legality of the securities being issued
10.1+ Form of Indemnification Agreement, to be entered into between the
Registrant and each of its directors and officers, to become effective
upon the closing of the offering made under this Registration
Statement
10.2+ 1996 Stock Option Plan
10.3+ 2000 Stock Plan
10.4+ 2000 Director Option Plan
10.5+ 2000 Employee Stock Purchase Plan
10.6+ Employment Agreement between Douglas J. Bartek and the Registrant
dated March 23, 2000
10.7+ Employment Agreement between John P. Norsworthy and the Registrant
dated August 8, 1996
10.8+ Employment Agreement between James Fontaine and the Registrant dated
August 1, 1998
10.9+ Standard Commercial Lease dated May 18, 1998 between Jupiter Parkway
Village, Ltd. and the Registrant, as amended, for the premises located
at 2540 East Plano Parkway, Suite 388, Plano, Texas 75074
10.10+ Commercial Lease Agreement dated March 24, 2000 between Jupiter
Service Center, Ltd. and the Registrant for the premises located at
2201 10th Street, Plano, Texas 75074
10.11+ Property Leasing Contract, as supplemented as of January 1, 2000,
between Sanctor Grundstucks-Vermietungsgesellschaft mbH & Co. and
Temic Telefunken Hochfrequeztechnik GmbH for facility in Ingolstadt,
Germany
10.12+ Contract of Lease dated December 10, 1998 between MX Technology
Corporation and Temic RF-Technologies (Phils.), Inc. for factory space
in the Granville Industrial Complex in Cavite, Philippines
10.13+ Sublease Agreement dated December 10, 1998 between Temic RF-
Technologies (Phils.), Inc. and NSF RF-Technologies Corporation for
factory space in the Granville Industrial Complex in Cavite,
Philippines
10.14+ Securities Purchase Agreement dated January 10, 2000, effective
December 31, 1999, between HMTF Acquisition (Bermuda), Ltd. and the
Registrant
10.15+ Asset Purchase Agreement between Registrant, The Tuner Company and
Thomas Widmer dated January 10, 2000
10.16+ Line of Credit dated March 22, 1999 between Deutsche Bank AG and Temic
Telefunken Hochfrequenztechnik GmbH
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- ---------------------------------------------------------------------
<C> <S>
10.17+ Line of Credit dated September 9, 1999 between HypoVereinsbank and
Temic Telefunken Hochfrequenztechnik GmbH
10.18** Development and Supply Agreement dated June 14, 2000 between General
Instrument Corporation and the Registrant.
21.1+ List of Subsidiaries and Affiliates of Microtune, Inc.
23.1+ Consent of Ernst & Young LLP, independent auditors
23.2+ Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(contained in Exhibit 5.1)
24.1+ Power of Attorney (contained in the signature page to this
Registration Statement)
27.1+ Financial Data Schedule
</TABLE>
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* to be filed by amendment
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment and the omitted portions have been filed separately
with the Securities and Exchange Commission.
+ previously filed
