As filed with the Securities and Exchange Commission on August 2, 2001
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
MULTILINK TECHNOLOGY CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
California 95-4522566
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
300 Atrium Drive, 2nd Floor
Somerset, New Jersey 08873
(Address principal executive offices)
Multilink Technology Corporation 2000 Stock Incentive Plan
Multilink Technology Corporation 2000 Employee Stock Purchase Plan
(Full Title of the Plan)
Richard N. Nottenburg
President, Chief Executive Officer
300 Atrium Drive, 2nd Floor
Somerset, New Jersey 08873
(Name and Address of Agent for Service)
(732) 537-3700
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Mark J. Kelson
Allen Matkins Leck Gamble & Mallory LLP
1901 Avenue of the Stars, Suite 1800
Los Angeles, California 90067
(310) 788-2400
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 (1) Share(2) Price Registration Fee
- --------------------------------------- --------------------- --------------------- ---------------------- ---------------------
2000 Stock Incentive Plan 42,046,117 shares $2.0595 $86,593,995.25 $21,648.50
Class A Common Stock, $0.0001 par
value
(currently outstanding options)
- --------------------------------------- --------------------- --------------------- ---------------------- ---------------------
2000 Stock Incentive Plan
Class A Common Stock, $0.0001 par
value 6,834,323 shares $13.595 $92,912,621.18 $23,228.16
(options available for future grant)
- --------------------------------------- --------------------- --------------------- ---------------------- ---------------------
Shares issued pursuant to
2000 Stock Incentive Plan
Class A Common Stock, $0.0001 par 182,593 shares $13.595 $2,482,351.84 $620.59
value
- --------------------------------------- --------------------- --------------------- ---------------------- ---------------------
2000 Employee Stock Purchase Plan
Class A Common Stock, $0.0001 par
value 2,071,652 shares $13.595 $28,164,108.94 $7,041.03
(shares available for future grant)
- --------------------------------------- --------------------- --------------------- ---------------------- ---------------------
TOTAL 51,134,685 shares $210,153,077.21 $52,538.28
======================================= ===================== ===================== ====================== =====================
<FN>
(1) This registration statement also covers an indeterminate number of
shares which may be issuable by reason of any stock dividend, stock
split, recapitalization or other similar transaction, in accordance
with Rule 416.
(2) The proposed maximum offering price per share is estimated solely for
the purpose of computing the amount of the registration fee under Rule
457(c) and (h). With respect to the 42,046,117 shares underlying
outstanding stock options under the 2000 Stock Incentive Plan, the
proposed maximum offering price per share is based on the weighted
average exercise price of $2.06 per share. With respect to the
6,834,323 shares reserved for future issuance under the 2000 Stock
Incentive Plan, the 182,593 shares that have been issued under the
2000 Stock Incentive Plan and the 2,071,652 shares that have been
reserved for issuance under the 2000 Employee Stock Purchase Plan, the
proposed maximum offering price per share is based on the average of
the high and low sale price of $13.595 per share of Multilink's Class
A common stock reported on the Nasdaq Stock Market on July 26, 2001.
</FN>
EXPLANATORY NOTE
This registration statement registers (1) shares of Class A common
stock of Multilink Technology Corporation that may be issued upon the exercise
of options that have been or may be granted under the 2000 Stock Incentive Plan
and shares that may be issued under the 2000 Employee Stock Purchase Plan, and
(2) resales of shares of Class A common stock that have been issued under the
2000 Stock Incentive Plan.
This registration statement contains two parts. The first part
contains a reoffer prospectus prepared in accordance with Part I of Form S-3.
The second part contains information required in the registration statement
under Part II of Form S-8. The plan information specified by Part I of Form S-8
is not being filed with the Securities and Exchange Commission as permitted by
the Note in Part I of Form S-8. This plan information, the statement of
availability of registrant information and any other information required by
Item 2 of Form S-8 will be sent or given to participants of the employee benefit
plans as specified by Rule 428 under the Securities Act of 1933.
MULTILINK TECHNOLOGY CORPORATION
Class A Common Stock
182,593 Shares
-----------------
REOFFER PROSPECTUS
-----------------
Selling shareholders of our company may from time to time offer and sell up
to an aggregate of 182,593 shares of our Class A Common Stock to the public
under this reoffer prospectus. The selling shareholders are current or former
employees and directors of Multilink who acquired their shares of Class A common
stock under our employee benefit plans prior to the filing of the registration
statement of which this reoffer prospectus is a part.
The prices at which the selling shareholders may sell the shares will be
determined by the prevailing market price for the shares or in negotiated
transactions. We will not receive any proceeds from the sale of the shares.
Our Class A common stock is quoted on the Nasdaq National Market under the
symbol "MLTC".
-------------------
INVESTING IN OUR CLASS A COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 2.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
REOFFER PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this prospectus is August 2, 2001
TABLE OF CONTENTS
THE COMPANY...................................................................1
RISK FACTORS .................................................................2
FORWARD-LOOKING STATEMENTS ..................................................13
USE OF PROCEEDS..............................................................13
DILUTION ....................................................................13
SELLING SHAREHOLDERS ........................................................14
PLAN OF DISTRIBUTION ........................................................14
LEGAL MATTERS ...............................................................16
EXPERTS .....................................................................16
INCORPORATION BY REFERENCE ..................................................16
WHERE YOU CAN FIND ADDITIONAL INFORMATION ...................................17
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS REOFFER
PROSPECTUS OR TO ANY SUPPLEMENT TO WHICH WE HAVE REFERRED YOU. WE HAVE NOT
AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT. THIS
DOCUMENT MAY ONLY BE USED WHERE IT IS LEGAL TO SELL THESE SECURITIES. YOU SHOULD
ASSUME THAT THE INFORMATION IN THIS DOCUMENT IS ACCURATE ONLY AS OF THE DATE OF
THIS DOCUMENT.
THE COMPANY
We design, develop and market advanced integrated circuits, modules and
higher-level assemblies that enable next generation optical networking systems.
Our products address the markets for DWDM and SONET/SDH optical transport
equipment. We focus exclusively on the fastest commercially available speeds of
OC-192, or 10 gigabits, or billions of bits per second, or higher and are in the
early stages of developing products designed to address future systems that may
operate at speeds of OC-768, or 40 gigabits per second. We seek to be first to
develop innovative components that allow communications equipment manufactures
to rapidly build and deliver high performance fiber optic systems more quickly
and with more functionality and greater performance than their competitors.
We are organized and existing under the laws of the State of California.
Our principal executive offices are located at 300 Atrium Drive, 2nd Floor,
Somerset, New Jersey 08873 and our telephone number is (732) 537-3700. Our World
Wide Web address is www.mltc.com. Information contained in our Web site is not
incorporated by reference into this reoffer prospectus, and you should not
consider information in our Web site as part of this reoffer prospectus.
RISK FACTORS
This offering and any investment in our Class A Common Stock involve a high
degree of risk. You should carefully consider the risks described below and all
other information in this prospectus before deciding whether to purchase our
Class A Common Stock.
Our quarterly revenues and operating results have fluctuated in the past and may
continue to fluctuate because of a number of factors, any one of which could
adversely affect our stock price.
Our quarterly revenues and operating results have fluctuated in the past
and may continue to fluctuate significantly from quarter to quarter in the
future. It is possible that in future periods our revenues and operating results
could fall below the expectations of securities analysts or investors, which
could cause the market price of our Class A Common Stock to decline. Some of the
factors that affect our quarterly revenues and operating results, but which are
difficult to control or predict are:
o the reduction, rescheduling or cancellation of orders by any of our
customers or prospective customers;
o fluctuations in manufacturing yields and inventory levels;
o the availability of external foundry capacity, purchased parts and raw
materials;
o our ability to introduce new products and technologies on a timely
basis;
o the announcement or introduction of new products and technologies by
our competitors;
o competitive pressures on selling prices;
o the amounts and timing of costs associated with warranties and product
returns;
o the amounts and timing of investments in research and development;
o market acceptance of our products and of our customers' products;
o the ability of our customers to obtain components from their other
suppliers;
o costs associated with acquisitions and the integration of acquired
operations;
o general communications and semiconductor industry conditions; and
o general economic conditions.
A few customers account for a majority of our sales, and the loss of one or more
key customers could significantly reduce our revenues and any profits.
Historically, a relatively small number of customers has accounted for a
majority of our revenues. Our three largest customers accounted for
approximately 73% of our revenues for the six months ended June 30, 2001, 73% of
our revenues in 2000 and 74% of our revenues in 1999. Our top three customers
for the six months ended June 30, 2001 were Alcatel, TyCom and Marconi,
representing approximately 39%, 23% and 11% of our revenues, respectively. Our
top three customers in 2000 were Lucent, Alcatel and Cisco, representing
approximately 34%, 28% and 11% of our revenues, respectively. Our top three
customers in 1999 were Lucent, Alcatel and TyCom, representing approximately
36%, 20% and 18% of our revenues, respectively. We anticipate that relatively
few customers will continue to account for a significant portion of our
revenues. A reduction, delay or cancellation of orders from one or more
significant customers or the loss of one or more key customers in any period
could significantly reduce our revenues and any profits.
We have incurred net losses in the past and may incur net losses in the future.
We incurred net losses of $0.8 million in 1997 and $1.5 million in 1998. We
had net income of $24,540 in 1999. We had net losses of $3.7 million in 2000 and
$5.3 million for the six months ended June 30, 2001. We expect to continue to
incur amortization of deferred stock compensation and to increase our expenses
for research and development in the next few years. Consequently, our ability to
achieve and maintain profitability would be materially affected if we fail to
significantly increase our revenues.
Failure to effectively manage our anticipated growth and expansion could place a
significant strain on our limited personnel and other resources and could
adversely affect our business and operating results.
We have grown rapidly in the last year and expect to continue to grow in
future periods. Our current organizational structure and systems are not
adequate for our expected growth plans. To manage expanded operations
effectively, we must continue to improve our operational, financial and
management systems and successfully hire, train, motivate and manage our
employees. We also plan to expand our general administration capabilities to
address the increased reporting and other administrative demands that will
result from our becoming a public company. In addition, the expansion of our
manufacturing requirements and our ability to outsource our manufacturing needs
in the future will require significant additional management, technical and
administrative resources. We cannot be certain that we will be able to
effectively manage our growth.
Our future success depends on the continued service of our engineering,
technical and key management personnel and our ability to identify, hire and
retain additional engineering, technical and key management personnel, and our
failure to hire and retain such personnel would be harmful to our ongoing
operations and business prospects.
There is intense competition for qualified personnel in our industry,
particularly for engineers and senior level management. Loss of the services of,
or failure to recruit, engineers or other technical and key management personnel
could be significantly detrimental to our product and process development
programs and adversely affect our business and operating results. We may not be
able to continue to attract and retain engineers or other qualified personnel
necessary for the development of our products and business or to replace
engineers or other qualified personnel who may leave us in the future. Our
anticipated growth is expected to place increased demands on our resources and
likely will require the addition of new management personnel.
Our future success depends in part on the continued service of our key
executives, and the loss of any of these key executives could adversely affect
our business and operating results.
Our success depends in part upon the continued service of our executive
officers, particularly Dr. Richard N. Nottenburg, our President, Chief Executive
Officer and Co-Chairman of the Board, and Dr. Jens Albers, our Executive Vice
President and Co-Chairman of the Board. Neither Dr. Nottenburg nor Dr. Albers
has an employment or non-competition agreement with us. The loss of either of
these key individuals would be detrimental to our ongoing operations and
prospects.
Several of our key personnel are relatively new and must be integrated into our
organization. Our failure to integrate these individuals could adversely affect
our business.
Several of our key personnel have recently joined us, including Ron
Krisanda, our Senior Vice President of Operations, who joined us in November
2000 and Craig S. Lewis, our Senior Vice President of Sales, who joined us in
January 2001. Therefore, there has been little or no opportunity to evaluate the
effectiveness of our executive management team as a combined unit. Our future
performance will depend in part on our ability to successfully integrate our
newly hired executive officers and key personnel into our management team, and
our ability to develop an effective working relationship among management.
We sell substantially all of our products based on individual purchase orders,
and we cannot predict the size or timing of our orders. Our failure to
effectively plan production levels and inventory could materially harm our
business and operating results.
We sell substantially all of our products based on individual purchase
orders, rather than long-term contracts. As a result, our customers generally
can cancel or reschedule orders on short notice and are not obligated to
purchase a specified quantity of any product. For example, we have had
significant order cancellations in the first half of 2001. We cannot assure you
that our existing customers will continue to place orders with us, that orders
by existing customers will be repeated at current or historical levels or that
we will be able to obtain orders from new customers. We cannot predict the size,
timing or terms of incoming purchase orders; therefore, decreases in the number
or size of orders or the development of customer orders with new terms may
adversely affect our business and operating results.
Because we do not have substantial noncancellable backlog, we typically
plan our production and inventory levels based on internal forecasts of customer
demand that are highly unpredictable and can fluctuate substantially. In
anticipation of long lead times to obtain certain inventory and materials, we
order materials in advance of anticipated customer sales. This advance ordering
might result in excess inventory levels or unanticipated inventory write-downs
if our customers cancel orders or change the specifications for their orders. If
we are unable to plan inventory and production levels effectively, our business
and operating results could be materially harmed.
We will lose significant customer sales and may not be successful if customers
and prospective customers do not qualify our products to be designed into their
systems.
Because our products must function as part of a larger system or network,
our customers often undertake extensive qualification processes prior to placing
large product orders. Once communications equipment manufacturers decide to use
a particular supplier's products or components, they incorporate those products
or components into their system design, which are known as design-wins.
Suppliers who fail to achieve design-wins are unlikely to make sales to those
customers for particular projects until at least the adoption of future
redesigned systems. Even then, many companies may be reluctant to incorporate
entirely new products into their new system designs, as this could involve
significant additional redesign efforts. If we fail to achieve design-wins we
will lose the opportunity for significant sales to those customers for a lengthy
period of time. Although a design-win increases the likelihood that our products
will be incorporated into the systems of our customers or prospective customers,
it does not obligate that customer or prospective customer to purchase specified
quantities of our products.
Our products are incorporated into sophisticated systems, and defects may be
discovered only after full deployment, which could seriously harm our business.
Our products are complex and are designed to be deployed in large
quantities across sophisticated networks. Because of the nature of our products,
they can only be fully tested when completely deployed in large networks with
high amounts of traffic. Our customers may discover errors or defects in our
products, or our products may not operate as expected, after they have been
fully deployed. If our products have defects or do not operate as expected, we
could experience:
o loss of, or delay in, revenues and loss of market share;
o loss of existing customers;
o failure to attract new customers or achieve market acceptance for our
products;
o diversion of development resources;
o increased service and warranty costs;
o legal actions by our customers;
o increased insurance costs; and
o damage to our reputation and customer relationships.
The occurrence of any of these problems could seriously harm our business
and result in decreased revenues and increased operating expenses. Defects,
integration issues or other performance problems in our products could result in
financial or other damages to our customers or could negatively affect market
acceptance for our products.
We compete in highly competitive markets, against competitors with longer
operating histories, greater name recognition, greater resources or larger
market capitalizations. Our failure to compete effectively would harm our
business.
The markets in which we compete are highly competitive. Our ability to
compete successfully in our markets depends on a number of factors, including:
o product time-to-market;
o product performance;
o product price;
o product quality; product reliability;
o success in designing and subcontracting the manufacture of new
products that implement new technologies;
o market acceptance of our competitors' products;
o efficiency of production; expansion of production of our products for
particular systems manufacturers; and
o customer support and reputation.
We compete primarily against Agere, Applied Micro Circuits, Conexant, Giga
(acquired by Intel), Infineon, JDS Uniphase, Maxim, Nortel (microelectronics
division), NTT Electronics, Philips, PMC-Sierra and Vitesse. Many of our
competitors operate their own fabrication facilities and have longer operating
histories and a greater presence in key markets, greater name recognition,
access to larger customer bases and significantly greater financial, sales and
marketing, distribution, technical and other resources. As a result, our
competitors may be able to adapt more quickly to new or emerging technologies,
changes in customer requirements or devote greater resources to the promotion
and sale of their products. In addition, our competitors may develop
technologies that more effectively address the transmission of digital
information through existing analog infrastructures at a lower cost, thereby
rendering our products obsolete. Our competitors that have large market
capitalizations or cash reserves are also better positioned than we are to
acquire other companies, thereby obtaining new technologies or products. Any of
these acquisitions could give our competitors a strategic advantage that could
adversely affect our business, financial condition and results of operations.
Current and potential competitors have established or may establish
financial or strategic relationships among themselves or with existing or
potential customers, resellers or other third parties. Accordingly, it is
possible that new competitors or alliances forged by competitors could emerge
and rapidly acquire significant market share.
We must incur substantial research and development expenses. If we do not have
sufficient resources to invest in research and development, our business could
be seriously harmed.
In order to remain competitive, we must continue to make substantial
investments in research and development to develop new and enhanced products. We
cannot assure you that we will have sufficient resources to invest in the
development of new and enhanced technologies and competitive products. Our
failure to continue to make sufficient investments in research and development
programs could significantly reduce our revenue growth and harm our business.
Additionally, our products have a short life cycle; therefore, we have limited
time to capitalize upon our research and development investments and generate
revenues. We cannot assure you that our research and development investments
will result in revenues in excess of our expenses, if at all, or will result in
any commercially accepted products.
We incur research and development expenses in advance of obtaining access to the
required technology, and as a result, these investments may not result in the
production of any marketable products.
We often incur substantial research and development expenses for the
development of products incorporating emerging process technologies. We make
these substantial investments in the product design stage and prior to gaining
access to these process technologies. Failure to gain access to these process
technologies could prevent our products' development and commercialization and
materially harm our business.
We may not be able to effectively compete with IBM for sales of products that we
jointly develop.
We have a joint development agreement with International Business Machines,
or IBM, pursuant to which we jointly develop integrated circuits. Under this
agreement, both parties can sell our jointly developed products to third
parties. Because IBM is a larger company, with a longer operating history and
substantially greater resources, it may be able to attract more customers, and
we may not have the opportunity to sell the jointly developed products to those
customers.
We may need to make acquisitions in order to remain competitive in our market.
Our business or the value of your investment could be adversely affected as a
result of any potential acquisitions.
To compete effectively, we may find it necessary to acquire additional
businesses, products or technologies. If we identify an appropriate acquisition
candidate, we may not be able to negotiate the terms of the acquisition
successfully, finance the acquisition or effectively integrate the acquired
business, products, technologies or personnel into our existing business and
operations. Further, completing a potential acquisition and integrating an
acquired business will cause significant diversions of management's time and
resources. If we consummate one or more significant acquisitions in which the
consideration consists of stock or other securities, the value of your
investment in our company could be significantly diluted. If we were to proceed
with one or more significant acquisitions in which the consideration included
cash, we could be required to use a substantial portion of our available cash,
including proceeds from our initial public offering in June 2001. In addition,
we may be required to amortize significant amounts of intangible assets in
connection with future acquisitions, which could significantly reduce our
operating and net income.
Our operating results are subject to fluctuations because of sales to foreign
customers.
International sales accounted for approximately 37% of our revenues for the
six months ended June 30, 2001, 27% of our revenues in 2000 and 16% of our
revenues in 1999. International sales may continue to account for a significant
portion of our revenues, and as a result, we will be subject to certain risks
associated with international sales, including:
o changes in regulatory requirements;
o increases in tariffs and other trade barriers;
o timing and availability of export licenses;
o political and economic instability;
o difficulties in accounts receivable collections;
o difficulties in staffing and managing foreign subsidiary and branch
operations;
o difficulties in managing distributors;
o difficulties in obtaining governmental approvals for communications
and other products;
o foreign currency exchange fluctuations;
o the burden of complying with a wide variety of complex foreign laws
and treaties; and
o potentially adverse tax consequences.
We are subject to the risks associated with the imposition of legislation
and regulations relating to the import or export of high technology products. We
cannot predict whether quotas, duties, taxes or other charges or restrictions
upon the importation or exportation of our products will be implemented by the
United States or other countries. Some of our customer purchase orders and
agreements are governed by foreign laws, which may differ significantly from
U.S. laws. Therefore, we may be limited in our ability to enforce our rights
under these agreements and to collect damages, if awarded.
Because sales of our products are denominated in U.S. dollars, increases in
the value of the U.S. dollar could increase the price of our products so that
they become more expensive to customers in the local currency of a particular
country, leading to a reduction in sales and profitability in that country.
Future international activity may result in increased foreign currency
denominated sales. Gains and losses on the conversion to U.S. dollars of
accounts receivable, accounts payable and other monetary assets and liabilities
arising from international operations may contribute to fluctuations in our
results of operations.
If we become subject to unfair hiring claims, we could incur substantial costs
in defending ourselves, or our management's attention could be diverted away
from our operations.
Companies in our industry often hire individuals formerly employed by their
competitors. In such cases, these competitors frequently claim that the hiring
company has engaged in unfair hiring practices. We have received claims of this
kind in the past from our competitors, and we cannot assure you that we will not
receive claims of this kind in the future or that those claims will not result
in material litigation. We could incur substantial costs in defending ourselves
or our employees against such claims, regardless of the merits of the claims. In
addition, defending ourselves from such claims could divert the attention of our
management away from our operations.
Our dependence on TRW and other third-party manufacturing and supply
relationships could negatively impact the production of our products and
significantly harm our business.
We do not own or operate manufacturing facilities necessary for the
production of most of our products. We rely on several outside foundries for the
manufacture and assembly of most of our products, and we expect this to continue
for the foreseeable future. Our mixed-signal products, which comprise a
significant portion of our current revenues, are based predominantly on GaAs HBT
wafers supplied by TRW. GaAs HBT is an advanced process technology used to
manufacture a semiconductor device that allows a bipolar transistor to be
fabricated on a GaAs material. TRW is our sole supplier of these wafers. We have
a wafer supply agreement with TRW, under which we do not have the contractual
right to obtain all the GaAs HBT wafers we require for the current production of
our mixed-signal products. Finding alternative sources for these wafers will
result in substantial delays in production and additional costs. To date, we
have no other wafer supply agreements with our other suppliers.
Our dependence upon third parties that manufacture, assemble, package or
supply components for our products may result in:
o lack of assured semiconductor wafer supply and reduced control over
delivery schedules and quality;
o the unavailability of, or delays in obtaining access to, key process
technologies;
o limited control over manufacturing yields and quality assurance;
o inadequate capacity during periods of excess demand;
o inadequate allocation of production capacity to meet our needs;
o increased costs of materials or manufacturing services;
o difficulties selecting and integrating new subcontractors;
o limited warranties on wafers or products supplied to us;
o inability to take advantage of price reductions; and
o misappropriation of our intellectual property.
Any one of these factors could adversely affect our business.
While we believe we have good relations with our outside foundries and
suppliers, we cannot be certain that we will be able to maintain these favorable
relations. Additionally, because there is a limited number of foundries and
suppliers that can produce our products, establishing relationships and
increasing production with new outside foundries takes a considerable amount of
time. Thus, there is no readily available alternative source of supply for our
production needs. A manufacturing disruption, such as a raw material shortage,
experienced by TRW or any of our other outside foundries and suppliers could
impact the production of some of our products for a substantial period of time.
Our outside foundries' and suppliers' inability to increase their production
capacity or to continue to allocate capacity to manufacture our components could
also limit our ability to grow our business.
We may face production delays if the subcontractors we use to manufacture our
wafers or products discontinue the manufacturing processes needed to meet our
demands or fail to advance the process technologies needed to manufacture our
products.
Our wafer and product requirements represent a small portion of the total
production of the third-party foundries that manufacture our products. As a
result, we are subject to the risk that our external foundries may not continue
to devote resources to the continued development and improvement of the process
technologies on which the manufacturing of our products are based. This could
increase our costs and harm our ability to deliver our products on time.
Our operating results substantially depend on manufacturing output and yields,
which may not meet expectations.
Manufacturing semiconductors requires manufacturing tools that are unique
to each product produced. If one of these unique manufacturing tools of our
outside foundries were damaged or destroyed, then the ability of these foundries
to manufacture the related product would be impaired and our business would
suffer. In addition, our manufacturing yields decline whenever a substantial
percentage of wafers must be rejected or significant portions of each wafer are
nonfunctional. Such declines can be caused by many factors, including minute
levels of contaminants in the manufacturing environment, design imperfections,
defects in masks used to print circuits on a wafer and difficulties in the
fabrication process. Many of these problems are difficult to diagnose, are time
consuming and expensive to remedy and can result in shipment delays.
Difficulties associated with adapting our technology and product design to
the proprietary process technology and design rules of our outside foundries can
lead to reduced yields. Since low yields may result from either design or
process technology failures, yield problems may not be effectively determined or
resolved until an actual product exists that can he analyzed and tested. As a
result, yield problems may not be identified until well into the production
process, and resolution of yield problems may require cooperation between
ourselves and our manufacturers. In some cases this risk could be compounded by
the offshore location of some of our manufacturers, increasing the effort and
time required to identify, communicate and resolve manufacturing yield problems.
Manufacturing defects that we do not discover during the manufacturing or
testing process may lead to costly product recalls. Difficulties in diagnosing
and solving the complicated problems of assembling these types of semiconductors
could also reduce our yields.
If we are unable to commit to deliver sufficient quantities of our products to
satisfy our customers' needs, it may be difficult for us to attract new orders
and customers or we may lose current orders and customers.
Our customers typically require that we commit to provide specified
quantities of products over a given period of time. We may be unable to deliver
sufficient quantities of our products for any of the following reasons:
o our reliance on third-party manufacturers;
o our limited infrastructure, including personnel and systems;
o the limited availability of raw materials; and
o competing customer demands.
If we are unable to commit to deliver sufficient quantities of our products to
satisfy a customer's anticipated needs, we may lose the order and the
opportunity for significant sales to that customer and may be unable to attract
new orders and customers.
Our business depends on the continued availability of raw materials and advanced
process technologies at reasonable prices. If adequate amounts of raw materials
or advanced process technologies are unavailable, our operating results would be
adversely affected.
Highly specialized raw materials and advanced process technologies are
needed for the production of our products. In some cases, there are only two or
three suppliers of such materials and technologies in the world. We depend on
the continued availability of these materials and technologies at reasonable
prices. We may not be able to fulfill customer purchase requests if there is a
substantial increase in the price for these materials or if our outside
suppliers cannot provide adequate quantities of raw materials for the production
of our products. This may result in decreased revenues and adversely affect our
operating results.
Slow growth in the build-out of the communications infrastructure and
uncertainties in network service providers' purchasing programs, as well as
consolidation in the network service provider industry, may adversely affect our
future business and operating results.
Our business prospects depend substantially on the continued build-out of
the communications infrastructure. A number of network service providers have
recently announced plans to curtail the level of their capital expenditures on
their infrastructure build-out, which could significantly reduce the demand for
our products by communications equipment manufacturers. This recent slowdown has
caused our revenues and backlog to grow less rapidly than they otherwise would
have. In addition, network service providers typically purchase network
equipment pursuant to multi-year purchasing programs that may increase or
decrease annually as the providers adjust their capital equipment budgets and
purchasing priorities. Network service providers' curtailment or termination of
purchasing programs or decreases in capital budgets, including with respect to
undersea cable transmission systems which constitute a significant portion of
our sales, could materially and adversely affect our revenue and business
prospects. This is particularly true if significant and unanticipated by us and
our communications equipment manufacturer customers. Additionally, consolidation
among network service providers may cause delays in the purchase of our products
and a reexamination of strategic and purchasing decisions by these network
service providers and our current and potential communications equipment
manufacturer customers, which could harm our business and financial condition.
The markets we serve are subject to rapid technological change, and if we are
unable to develop and introduce new products, our revenues could stop growing or
could decline.
The markets we serve frequently undergo transitions in which products
rapidly incorporate new features and performance standards on an industry-wide
basis. Products for communications applications, as well as for high-speed
computing applications, are based on continually evolving industry standards. A
significant portion of our revenues in recent periods has been, and is expected
to continue to be, derived from sales of products based on existing transmission
standards. However, our ability to compete in the future will depend on our
ability to identify and ensure compliance with evolving industry standards.
The emergence of new industry standards could render our products
incompatible with products developed by major communications equipment
manufacturers. If our products are unable to support the new features, the
enhanced integration of functions or the performance levels required by
communications equipment manufacturers in these markets, we would likely lose
business from an existing or potential customer. Moreover, we would not have the
opportunity to compete for new business until the next product transition
occurs. As a result, we could be required to invest significant time and effort
and to incur significant expense to redesign our products to ensure compliance
with relevant standards. If our products are not in compliance with prevailing
industry standards for a significant period of time, we could miss opportunities
to achieve crucial design-wins.
Moreover, to improve the cost-effectiveness and performance of our
products, we may be required to transition one or more of our products to
process technologies with smaller components, other materials or higher speeds.
We may not be able to improve our process technologies and develop or otherwise
gain access to new process technologies in a timely or cost-effective manner. We
could record expenses or charges associated with such a transition. For example,
we wrote off $4.3 million of our inventory in the first quarter of 2001, which
resulted from a transition from certain GaAs products to SiGe products and an
order cancellation, reducing our gross profit.
These risks may lead to increased costs or delay product delivery, which
would harm our profitability and customer relationships. Consequently, our
revenues could be significantly reduced for a substantial period if we fail to
develop products with required features or performance standards, if we
experience a delay as short as a few months in bringing a new product to market,
or if our customers fail to achieve market acceptance of their products.
We operate in the highly cyclical semiconductor industry, and any downturns in
the industry could materially and adversely affect our business and operating
results.
The semiconductor industry has experienced significant downturns, often in
connection with, or in anticipation of, maturing product cycles (of both
semiconductor companies' and their customers' products) and declines in general
economic conditions. These downturns have been characterized by diminished
product demand, production overcapacity, high inventory levels and accelerated
erosion of average selling prices. Any future downturns could have a material
adverse effect on the growth of our business and revenues. From time to time,
the semiconductor industry also has experienced periods of increased demand and
production capacity constraints. We may experience substantial changes in future
operating results due to general semiconductor industry conditions, general
economic conditions and other factors.
Necessary licenses of third-party technology may not be available to us or may
be prohibitively expensive, which could adversely affect our ability to produce
and sell our products.
From time to time we may be required to license technology from third
parties to develop new products or product enhancements. We cannot assure you
that third-party licenses will be available to us on commercially reasonable
terms, if at all. Our inability to obtain any third-party license required to
develop new products and product enhancements could require us to obtain
substitute technology of lower quality or performance standards or at greater
cost, if at all, any of which could seriously harm our ability to sell our
products.
Our failure to protect our intellectual property adequately could adversely
affect our business.
Our intellectual property is critical to our ability to successfully design
products for the optical networking systems market. We currently have one U.S.
patent issued and four U.S. patent applications pending. We cannot assure you
that our pending patent applications or any future applications will be
approved. Further, we cannot assure you that any issued patents will provide us
with competitive advantages or will not be challenged by third parties, or that
if challenged, will be found to be valid or enforceable. Additionally, we cannot
assure you that the patents of others will not have an adverse effect on our
ability to do business. Furthermore, others may independently develop similar
products or processes, duplicate our products or processes or design around any
patents that may be issued to us.
We rely on the combination of maskwork protection under the Semiconductor
Chip Protection Act of 1984, trademarks, copyrights, trade secrets, employee and
third-party nondisclosure agreements and licensing arrangements to protect our
intellectual property. Despite these efforts, we cannot be certain that others
will not independently develop substantially equivalent intellectual property or
otherwise gain access to our intellectual property, or disclose such
intellectual property, or that we can meaningfully protect our intellectual
property.
We could be harmed by litigation involving patents and proprietary rights.
The semiconductor industry is characterized by substantial litigation
regarding patent and other intellectual property rights. We may be accused of
infringing upon the intellectual property rights of third parties. Additionally,
we have indemnification obligations to our customers with respect to
intellectual property infringement claims by third parties. Such intellectual
property infringement claims by third parties or indemnification claims by our
customers could harm our business.
Any litigation relating to the intellectual property rights of third
parties, whether or not determined in our favor or settled by us, could be
costly and could divert the efforts and attention of our management and
technical personnel. In the event of any adverse ruling in any litigation, we
could be required to:
o pay substantial damages;
o cease the manufacturing, use and sale of certain products;
o discontinue the use of certain process technologies; and
o obtain a license from the third-party claiming infringement, which
might not be available on reasonable terms, if at all.
The communications industry is subject to U.S. and foreign government
regulations that could harm our business. Our failure to timely comply with
regulatory requirements, or obtain and maintain regulatory approvals, could
materially harm our business.
The Federal Communications Commission, or FCC, has jurisdiction over the
entire communications industry in the United States and, as a result, our
products and our customers' products are subject to FCC rules and regulations.
Current and future FCC rules and regulations affecting communications services,
our products or our customers' businesses or products could negatively affect
our business. In addition, international regulatory standards could impair our
ability to develop products in the future. Delays caused by our compliance with
regulatory requirements could result in postponements or cancellations of
product orders, which would harm our business, results of operations and
financial condition. Further, we cannot be certain that we will be successful in
obtaining or maintaining any regulatory approvals that may, in the future, be
required to operate our business.
Technology company stock prices are especially volatile, and this volatility may
depress our stock price or lead to class action litigation.
The stock market, and specifically the stock prices of technology
companies, has been very volatile. The market price of our shares of Class A
Common Stock may fluctuate significantly in response to a number of factors,
beyond our control, including:
o changes in financial estimates by securities analysts;
o announcements by us, our customers or our competitors;
o changes in market valuations of similar companies;
o changes in accounting rules and regulations; and
o future sales of our common stock by our existing shareholders.
As a result of this market volatility, you may be unable to resell your
shares at or above the purchase price.
Securities class action litigation has often been brought against companies
that experience volatility in the market price of their securities. Litigation
brought against us could result in substantial costs to us in defending against
a lawsuit and management's attention could be diverted from our business.
If a significant number of shares become available for sale and are sold in a
short period of time, the market price of our stock could decline.
If our shareholders sell substantial amounts of our common stock in the
public markets following the expiration of the lock-up agreements in effect as
of our initial public offering in June 2001, it could materially adversely
affect the market price of our stock. After these agreements expire,
approximately 57,319,483 shares, as well as additional shares issuable upon
exercise of options, will become immediately eligible for sale in the public
market, subject to certain exceptions.
In addition, under certain investors' rights agreements, some of our
current shareholders have "demand" and/or "piggyback" registration rights in
connection with future offerings of our common stock. "Demand" rights enable
shareholders to demand that their shares be registered and may require us to
file a registration statement under the 1933 Act at our expense. "Piggyback"
rights require us to notify the shareholders of our stock if we propose to
register any of our securities under the 1933 Act, and grant such shareholders
the right to include their shares in the registration statement. Registration of
these additional shares would make them generally available to be sold in the
public market.
Because existing shareholders own a large percentage of our voting shares, your
voting power may be limited.
We currently have 28,000,000 shares of Class B Common Stock outstanding,
each of which entitles the holder to ten votes. Only Class A Common Stock will
be resold pursuant to this registration statement, with each share entitling the
holder to one vote. All of the Class B Common Stock is held by officers,
directors or other persons or entities owning 5% or more of the outstanding
shares of our common stock.
Our executive officers, directors and their affiliates beneficially own or
control shares representing 55.6% of the voting power of our outstanding capital
stock. Dr. Richard Nottenburg, as a result of his stock ownership and a voting
trust agreement with Dr. Jens Albers, alone controls approximately 47.9% of the
outstanding voting power of our capital stock. In addition, persons and entities
owning more than 5% of our outstanding shares of common stock, in the aggregate,
control 91.5% of the outstanding voting power of our capital stock. As a result,
our directors and 5% shareholders acting together have the ability to control
all matters submitted to our shareholders for approval, including the election
and removal of directors and the approval of any merger, consolidation or sale
of all or substantially all of our assets. These shareholders may make decisions
that are adverse to your interests.
Our board of directors may issue, without shareholder approval, shares of
preferred stock that have rights and preferences superior to those of our shares
of common stock and that may prevent or delay a change of control.
Our articles of incorporation provide that our board of directors may issue
new shares of preferred stock without shareholder approval. Some of the rights
and preferences of these shares of preferred stock would be superior to the
rights and preferences of shares of our common stock. Accordingly, the issuance
of new shares of preferred stock may adversely affect the rights of the holders
of shares of our common stock. In addition, the issuance of new shares of
preferred stock may prevent or delay a change of control of our company.
We may need additional capital, which may not be available, and our ability to
grow may be limited as a result.
We may be required, or could elect, to seek additional funding at any time.
We anticipate incurring significant expenses in connection with increased
research and development activities, and we may engage in acquisitions. The
hiring of additional personnel to support these functions, including the
expansion of our sales and marketing organizations, will also require a
significant commitment of resources. In addition, if the market for our products
develops at a slower pace than anticipated, or if we fail to continue to expand
our market share, we may continue to utilize significant amounts of capital. If
cash from available sources is insufficient, or if cash is used for acquisitions
or other unanticipated uses, we may need additional capital sooner than
anticipated. In the event we are required, or elect, to raise additional funds,
we may not be able to do so on favorable terms, if at all.
FORWARD-LOOKING STATEMENTS
This reoffer prospectus contains forward-looking statements that involve
substantial risks and uncertainties. These forward-looking statements are not
historical facts, but rather are based on current expectations, estimates and
projections about our industry, our beliefs and our assumptions. Words such as
"anticipates," "expects," "intends," "plans," believes," "seeks" and "estimates"
and variations of these words and similar expressions are intended to identify
forward-looking statements. These statements are not guarantees of future
performance and are subject to risks, uncertainties and other factors, some of
which are beyond our control and difficult to predict, and could cause actual
results to differ materially from those expressed or forecasted in the
forward-looking statements. These risks and uncertainties include those
described in "Risk Factors" and elsewhere in this reoffer prospectus. You should
not place undue reliance on these forward-looking statements, which apply only
as of the date of this reoffer prospectus.
USE OF PROCEEDS
We will not receive any proceeds when the selling shareholders sell their
Class A common stock to others. All sale proceeds will be received by the
selling shareholders.
DILUTION
Because the selling shareholders will offer and sell the common stock
covered by this reoffer prospectus at various times and at prices and terms then
prevailing or at prices related to the then current market price or in
negotiated transactions, we have not included in this reoffer prospectus
information about the dilution, if any, to the public arising from these sales.
SELLING SHAREHOLDERS
The following table sets forth the number of shares beneficially owned by
each of the selling shareholders. Each of the selling shareholders is an
employee or director of Multilink or was formerly an employee of Multilink. We
calculated beneficial ownership according to Rule 13d-3 of the Exchange Act as
of this date. Each of the selling shareholders currently owns less than 1% of
our outstanding Class A common stock.
Number of Shares Number of Shares
Name of Shareholder Owned Before Offering Offered For Sale Hereby
- ------------------- --------------------- -----------------------
Mamatha Deshpande 1,500 1,500
Paul Koep 37,500 29,000
Martin LaCon 28,260 28,260
Doug McAllister 25,000 23,000
Gilbert Nguyen 37,500 37,500
William Reinisch 45,000 5,000
Edward J. Zander 72,917 58,333
The selling shareholders will determine the actual number of shares, if
any, that they will sell. Because the selling shareholders may sell all, some or
none of the shares of Class A common stock that they hold, we are unable to
estimate the amount or percentage of shares of Class A common stock that they
will hold after completion of the offering.
PLAN OF DISTRIBUTION
The selling shareholders and any of their pledgees, donees, assignees,
transferees or successors-in-interest selling shares received from a named
selling shareholder as a gift, partnership distribution or other non-sale
related transfer after the date of this reoffer prospectus (collectively, the
"selling shareholders") may, from time to time, sell any or all of the shares of
common stock offered hereby on the Nasdaq Stock Market or any stock exchange,
market or trading facility on which the shares are traded, or in private
transactions. These sales may be made at market prices prevailing at the time of
the sale or at negotiated or fixed prices. The selling shareholders will act
independently of Multilink in making decisions with respect to the timing,
manner and size of each sale. The selling shareholders may use any one or more
of the following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o underwritten offerings;
o short sales;
o agreements by the broker-dealer and the selling shareholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted by applicable law.
The selling shareholders may also sell shares under Rule 144 under the
Securities Act, if available, or under Section 4(1) of the Securities Act,
rather than under this reoffer prospectus.
Unless otherwise prohibited, the selling shareholders may enter into
hedging transactions with broker-dealers or other financial institutions in
connection with distributions of the shares or otherwise. In such transactions,
broker-dealers or financial institutions may engage in short sales of the shares
in the course of hedging the position they assume with the selling shareholders.
The selling shareholders may also engage in short sales, puts and calls,
forward-exchange contracts, collars and other transactions in our securities or
derivatives of our securities and may sell or deliver shares in connection with
these trades. If the selling shareholders sell shares short, they may redeliver
the shares to close out such short positions. The selling shareholders may also
enter into option or other transactions with broker-dealers or financial
institutions which require the delivery to the broker-dealer or the financial
institution of the shares. The broker-dealer or financial institution may then
resell or otherwise transfer such shares pursuant to this reoffer prospectus. In
addition, the selling shareholders may loan their shares to broker-dealers or
financial institutions who are counterparties to hedging transactions and the
broker-dealers, financial institutions or counterparties may sell the borrowed
shares into the public market. The selling shareholders may also pledge their
shares to their brokers or financial institutions and under the margin loan the
broker or financial institution may, from time to time, offer and sell the
pledged shares. The selling shareholders have advised us that they have not
entered into any agreements, understandings or arrangements with any
underwriters, broker-dealers, or financial institutions regarding the sale of
their shares other than ordinary course brokerage arrangements, nor is there an
underwriter or coordinating broker acting in connection with the proposed sale
of shares by the selling shareholders.
The shares will be sold 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 complied with.
We will file a supplement to this reoffer prospectus, if required, under
Rule 424(b) under the Securities Act upon being notified by a selling
shareholder that any material arrangement has been entered into with a
broker-dealer or financial institution for the sale of shares through a block
trade, special or underwritten offering, exchange distribution or secondary
distribution or a purchase by a broker, dealer or financial institution. Such
supplement will disclose:
o the name of each selling shareholder and of the participating
broker-dealer(s) or financial institution(s);
o the number of shares involved;
o the price at which such shares were sold;
o the commissions paid or discounts or concessions allowed to such
broker-dealer(s) or financial institution(s), where applicable;
o that such broker-dealer(s) or financial institution(s) did not conduct
any investigation to verify the information set out or incorporated by
reference in this reoffer prospectus; and
o other facts material to the transaction.
In addition, upon being notified by a selling shareholder that a donee or
pledgee intends to sell more than 500 shares, we will file a supplement to this
reoffer prospectus.
We will not pay any of the expense associated with sales by the selling
shareholders. The selling shareholders may agree to indemnify any broker-dealer
or agent that participates in transactions involving sales of the shares against
certain liabilities in connection with the offering of the shares arising under
the Securities Act of 1933.
The selling shareholders and any underwriters, brokers, dealers, financial
institutions or agents that participate in the distribution of the common stock
may be deemed to be "underwriters" under the Securities Act, and any profit on
the sale of the common stock by them and any discounts, commissions or
concessions received by any such underwriters, dealers, financial institutions
or agents might be deemed to be underwriting discounts and commissions under the
Securities Act of 1933.
The selling shareholders and any other person participating in the
distribution will be subject to the applicable provisions of the Securities
Exchange Act of 1934 and the rules and regulations under the Exchange Act. The
Exchange Act rules include, without limitation, Regulation M, which may limit
the timing of any other person participating in the distribution. In addition,
Regulation M of the Exchange Act may restrict the ability of any person engaged
in the distribution of the common stock to engage in market-making activities
with respect to the particular shares of common stock being distributed for a
period of up to five business days prior to the commencement of the
distribution. This may affect the marketability of the shares of common stock
and the ability of any person or entity to engage in market-making activities
with respect to the shares of common stock.
LEGAL MATTERS
The validity of the shares of our Class A common stock offered by this
reoffer prospectus will be passed upon for Multilink by Allen Matkins Leck
Gamble & Mallory LLP, Century City, California. As of the date of this
prospectus, Allen Matkins and its affiliates own or have the right to purchase
481,800 shares of our Class A common stock.
EXPERTS
The financial statements of Multilink Technology Corporation as of December
31, 2000 and 1999, and for each of the three years in the period ended December
31, 2000 incorporated by reference in this reoffer prospectus, have been audited
by Deloitte & Touche LLP, independent auditors, as stated in their report, which
is incorporated by reference herein, and have been so incorporated in reliance
upon the report of Deloitte & Touche LLP given upon their authority as experts
in accounting and auditing.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" information from other
documents that we file with it, which means that we can disclose important
information by referring you to those documents. The information incorporated by
reference is an important part of this reoffer prospectus, and information that
we file later with the SEC will automatically update and supersede this
information. We incorporate by reference the following documents that have been
filed with the SEC:
o Final prospectus under Rule 424(b), filed on June 21, 2001, that
contains audited financial statements for our latest fiscal year and a
description of our Class A common stock;
o Registration statement on Form 8-A, filed on October 26, 2000, under
Section 12 of the Securities Exchange Act of 1934;
o Registration Statement on Form S-1 (File No. 333-47376) originally
filed on October 5, 2000, including all amendments; and
o Form 8-K filed on July 24, 2001.
All documents that we subsequently file under Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 before we file a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities 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.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and special reports and other information with
the SEC. You can read and copy any document filed by us at the Public Reference
Room maintained by the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549.
You may request copies of these documents, upon payment of a duplicating fee, by
writing the SEC at this address. Please call the SEC at 1-800-SEC-0330 for
further information on the operation of its Public Reference Room.
Our SEC filings are also available on the SEC's website at www.sec.gov.
That website contains reports, proxy and information statements, and other
information regarding issuers that file electronically with the SEC. We have
filed with the SEC a registration statement on Form S-8, of which this reoffer
prospectus is a part, under the Securities Act of 1933 with respect to the
securities being offered. This reoffer prospectus does not contain all of the
information set forth in the registration statement. We have omitted information
as permitted by the rules and regulations of the SEC. Statements contained in
this reoffer 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 other document filed as an exhibit to the registration statement.
Each statement made in this reoffer prospectus is qualified in all respects by
the contents of the exhibits and schedules to the registration statement.
We will provide to each person, including any beneficial owner, to whom a
prospectus is delivered, a copy of any or all of the information that has been
incorporated by reference in the prospectus but not delivered with the
prospectus. We will provide this information upon written or oral request and at
no cost to the requester. Requests for this information must be made to:
Director of Investor Relations, Multilink Technology Corporation, 300 Atrium
Drive, Somerset, New Jersey 08873, (732) 537-3700.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which have been filed by Multilink with the SEC,
are incorporated by reference in this registration statement:
(a) Final prospectus under Rule 424(b), filed on June 21, 2001, that
contains audited financial statements for our latest fiscal year and a
description of our Class A common stock;
(b) Registration statement on Form 8-A, filed on October 26, 2000,
under Section 12 of the Securities Exchange Act of 1934;
(c) Registration statement on Form S-1 (No. 333-47376), originally
filed on October 5, 2000, including all amendments; and
(d) Form 8-K filed on July 24, 2001.
All documents that we subsequently file under Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 before we file a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities 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.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this registration
statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
As of the date of this registration statement, Allen Matkins Leck Gamble &
Mallory LLP and its affiliates own or have the right to purchase 481,800 shares
of our Class A common stock.
Item 6. Indemnification of Directors and Officers
Our articles of incorporation limit the personal liability of our directors
for monetary damages to the fullest extent permitted by the California General
Corporation Law. Under the California General Corporation Law, a director's
liability to a company or its shareholders may not be limited with respect to
the following items: (a) acts or omissions that involve intentional misconduct
or a knowing and culpable violation of law, (b) acts or omissions that a
director believes to be contrary to the best interests of the company or its
shareholders or that involve the absence of good faith on the party of the
director, (c) any transaction from which a director derived an improper personal
benefit, (d) acts or omissions that show a reckless disregard for the director's
duty to the company or its shareholders in circumstances in which the director
was aware, or should have been aware, in the ordinary course of performing a
director's duties, of a risk of a serious injury to the company or its
shareholders, (e) acts or omissions that constitute an unexcused pattern of
inattentions that amounts to an abdication of the director's duty to the company
or its shareholders, (f) contracts or transactions between the company and a
director within the scope of Section 310 of the California General Corporation
Law or (g) improper dividends, loans and guarantees under Section 316 of the
California General Corporation Law. The limitation of liability does not affect
the availability of injunctions and other equitable remedies available to our
shareholders for any violation by a director of the director's fiduciary duty to
us or our shareholders.
Our articles of incorporation also include an authorization for Multilink
to indemnify its "agents," as defined in Section 317 of the California General
Corporation Law, through bylaw provisions, by agreement or otherwise, to the
fullest extent permitted by law. Pursuant to this provision, our bylaws provide
for indemnification of our directors, officers and employees. In addition, we
may, at our discretion, provide indemnification to persons whom we are not
obligated to indemnify.
Our bylaws also allow us to enter into indemnity agreements with individual
directors, officers, employees and other agents. We have entered into these
indemnity agreements with all of our directors and executive officers. These
agreements provide the maximum indemnification permitted by law. These
agreements, together with our bylaws and articles of incorporation, may require
us, among other things, to (a) indemnify our directors or executives officers,
other than for liability resulting from willful misconduct of a culpable nature,
(b) advance expenses to them as they are incurred, provided that they undertake
to repay the amount advanced if it is ultimately determined by a court that they
are not entitled to indemnification, and (c) obtain directors' and officers'
insurance if available on reasonable terms. Section 317 of the California
General Corporation Law and our bylaws make provision for the indemnification of
officers, directors and other corporate agents in terms sufficiently broad to
indemnify such persons, under certain circumstances, for liabilities, including
reimbursement of expenses incurred, arising under the Securities Act of 1933, as
amended.
Item 7. Exemption from Registration Claimed
The shares to be offered and sold under the reoffer prospectus were
initially issued by Multilink in transactions deemed exempt from registration
under the Securities Act in reliance on Rule 701 promulgated under the
Securities Act as offers and sales of securities pursuant to an employee benefit
plan or contract relating to compensation.
Item 8. Exhibits
Exhibit Number Exhibit
-------------- -------
4.1* Multilink 2000 Stock Incentive Plan
4.2* Multilink 2000 Employee Stock Purchase Plan
5.1 Opinion of Allen Matkins Leck Gamble & Mallory LLP
23.1 Consent of Independent Auditors
23.2 Consent of Allen Matkins Leck Gamble & Mallory LLP
is contained in Exhibit 5.1
24.1 Power of Attorney (contained on the signature page of this
- ----------- registration statement)
* Incorporated herein by reference from Multilink's Registration Statement
on Form S-1 (File No. 333-47376).
Item 9. Undertakings
(a) 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; and
(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 (a)(1)(i) and (a)(1)(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 with or furnished to the
Securities and Exchange Commission by Multilink pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the 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.
(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 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
Multilink pursuant to the foregoing provisions, or otherwise, Multilink has been
advised that in the opinion of the Securities and Exchange Commission such
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 such 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 such director, officer or controlling person in
connection with the securities being registered, Multilink 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 as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Multilink
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 Somerset, State of New Jersey, on the 2nd day of
August, 2001.
MULTILINK TECHNOLOGY CORPORATION
By: /s/ Richard N. Nottenburg
------------------------------------
Richard N. Nottenburg
President and Chief Executive Officer
POWER OF ATTORNEY
The undersigned directors and officers of Multilink Technology Corporation
hereby constitute and appoint Richard N. Nottenburg and Eric M. Pillmore and
each of them, as his true and lawful attorneys-in-fact and agents, with full
power to act without the other and 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 post-effective amendments)
to this registration statement, and new registration statements relating to this
Form S-8, and to file the same with all exhibits thereto, and other 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 done
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 either of them, or their or his 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 indicated below on the 2nd day of August 2001.
Signature Title
--------- -----
/s/ Richard N. Nottenburg President, Chief Executive Officer and
- ------------------------- Director (Principal Executive Officer)
Richard N. Nottenburg
/s/ Eric M. Pillmore Chief Financial Officer (Principal
- ------------------------- Financial and Accounting Officer),
Eric M. Pillmore Senior Vice President and Secretary
/s/ Jens Albers Executive Vice President and Director
- -------------------------
Jens Albers
/s/ Stephen Forrest Director
- -------------------------
Stephen Forrest
/s/ G. Bradford Jones Director
- -------------------------
G. Bradford Jones
/s/ John Walecka Director
- -------------------------
John Walecka
/s/ Edward J. Zander Director
- -------------------------
Edward J. Zander
EXHIBIT INDEX
Exhibit Number Exhibit
- --------------------------------------------------------------------------------
4.1* Multilink 2000 Stock Incentive Plan
4.2* Multilink 2000 Employee Stock Purchase Plan
5.1 Opinion of Allen Matkins Leck Gamble & Mallory LLP
23.1 Consent of Independent Auditors
23.2 Consent of Allen Matkins Leck Gamble & Mallory LLP is
contained in Exhibit 5.1
24.1 Power of Attorney (contained on the signature page of this
- ----------- registration statement
* Incorporated by reference from Multilink's Registration Statement on Form
S-1 (File No. 333-47376).