<PAGE>
As filed with the Securities and Exchange Commission on February 19, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
VITESSE SEMICONDUCTOR CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 770138960
--------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
741 Calle Plano
Camarillo, California 93012
(805) 388-3700
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
-----------------------
Louis R. Tomasetta
President
Vitesse Semiconductor Corporation
741 Calle Plano
Camarillo, California 93012
(805) 388-3700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------------
Copies to:
Francis S. Currie, Esq.
Martin A. Wellington, Esq.
Kelly S. Boyd, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
-----------------------
Approximate date of commencement of proposed sale to the public: From time
to time after the Effective Date of this Registration Statement.
[ ] If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box.
[X] If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box.
[ ] If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. _____________
[ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. _____________
[ ] If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.
-----------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================================================================================================
Proposed Proposed
Maximum Maximum
Title of Each Class Amount Offering Aggregate Amount of
of Securities to to be Price Offering Registration
be Registered Registered Per Share (1) Price (1) Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock..................................... 327,628 shares $44.03 $14,425,461 $4,011.00
=================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rule 457(c) under the Securities Act, based on
the average of the high and low prices of the Common Stock on the Nasdaq
National Market on February 18, 1999.
-----------------------
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
Subject to Completion, dated February 19, 1999
327,628 Shares
LOGO
Common Stock
-----------------------
All of the shares of common stock offered by this Prospectus (the "Shares")
are being sold by the selling stockholders named under "Selling Stockholders"
(the "Selling Stockholders"). Vitesse Semiconductor Corporation will not
receive any of the proceeds from the sale of these shares.
Our shares are listed for trading on The Nasdaq Stock Market's National
Market under the symbol "VTSS". On February 18, 1999, the last reported sales
price of our common stock on the Nasdaq National Market was $45.00.
Investing in our common stock involves risks. See "Risk Factors" starting
on page 4.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
Prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
We originally issued all of the Shares in connection with our acquisition
of Serano Systems Corporation, a Colorado corporation ("Serano"). We are
registering the Shares pursuant to an agreement between us and the former
shareholders of Serano.
The date of this Prospectus is April __, 1999.
-2-
<PAGE>
-----------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
The Company.................................... 4
Risk Factors................................... 4
Use of Proceeds................................ 9
Selling Stockholders........................... 9
Plan of Distribution........................... 11
Legal Matters.................................. 12
Experts........................................ 12
Available Information.......................... 13
Incorporation of Certain Documents
by Reference................................. 13
</TABLE>
-----------------------
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<PAGE>
THE COMPANY
Vitesse is a leader in the design, development, manufacturing and marketing
of digital gallium arsenide integrated circuits which are high-performance
integrated circuits. Integrated circuits are necessary components to all
electronic systems. Our principal executive officers are located at 741 Calle
Plano, Camarillo, CA 93012 and our telephone number is (805) 388-3700.
References to Vitesse, the Company, "we", "us" and "our" in this Prospectus
refer to Vitesse Semiconductor Corporation and its subsidiaries unless the
context requires otherwise.
RISK FACTORS
You should carefully consider the risks described below before making
an investment decision. The risks and uncertainties described below are not the
only ones facing our company. Our business, financial condition or results of
operations could be materially adversely affected by any of the following risks.
This Prospectus also contains forward-looking statement that involve
risks and uncertainties. Our actual results could differ materially from those
anticipated in these forward-looking statements as a result of different
factors, including the risks faced by us described below and elsewhere in this
prospectus.
We Are Dependent on a Small Number of Customers in a Few Industries
We intend to continue focusing our sales effort on a small number of customers
in the communications and test equipment markets that require high-performance
integrated circuits. Some of these customers are also our competitors. In
fiscal 1998, our two largest customers accounted for 23% and 15% of our total
revenues and no other customers accounted for more than 10% of our total
revenues. If any of our major customers delays orders of our products or stops
buying our products, our business and financial condition would be severely
affected.
Our Operating Results May Fluctuate
Our quarterly revenues and expenses may fluctuate in the future. These
variations may be due to a number of factors, many of which are outside our
control. Factors that could affect our future operating results include the
following:
. The loss of major customers
. Variations, delays or cancellations of orders and shipments of our products
. Reduction in the selling prices of our products
. Significant changes in the type and mix of products being sold
. Delays in introducing new products
. Design changes made by our customers
. Our failure to manufacture and ship products on time
. Changes in manufacturing capacity, the utilization of this capacity and
manufacturing yields
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<PAGE>
. Variations in product and process development costs; and
. Changes in inventory levels
In the past, we have recorded significant new product and process development
costs because our policy is to expense these costs at the time that they are
incurred. We may incur these types of expenses in the future. The occurrence
of any of the above factors could have a material adverse effect on our business
and on our financial results.
We Have Limited Manufacturing Capacity and We Depend on a New Production
Facility
During 1998, we started producing high-performance integrated circuits at our
new six-inch wafer fabrication factory in Colorado Springs, Colorado. This
facility includes a 10,000 square-foot Class I clean room with capacity for
future expansion to 15,000 square feet. We are faced with several risks in the
successful operation of this facility as well as in our overall production
operations. We have only produced finished four-inch wafers in the past and we
have limited experience with the equipment and processes involved in producing
finished six-inch wafers. We do not have excess production capacity at our
Camarillo plant to offset failure of the new Colorado facility to meet
production goals. Consequently, our failure to successfully operate the new
facility could severely damage financial results.
We also must now effectively coordinate and manage two facilities. We have
limited experience in managing production facilities located at two different
sites, and our failure to successfully do so could have a material adverse
effect on our business and operating results.
Our Industry is Highly Competitive
The high-performance semiconductor market is extremely competitive and is
characterized by rapid technological change, price-erosion and increased
international competition. The communications and test equipment industries,
which are our primary target markets, are also becoming intensely competitive
because of deregulation and international competition. We compete directly or
indirectly with the following categories of companies:
. Gallium Arsenide fabrication operations of systems companies such as Rockwell
and Fujitsu
. Silicon high-performance integrated circuit manufacturers who use Emitter
Coupled Logic ("ECL") or Bipolar Complementary Metal-Oxide-Semiconductor
BiCMOS technologies such as Hewlett Packard, Fujitsu, Motorola, National
Semiconductor, Texas Instruments and Applied Micro Circuits Corporation
Additionally, in lower frequency applications we face increased competition with
Complementary Metal-Oxide-Semiconductor ("CMOS")-based products, particularly as
the performance of these products continues to improve. Our current and
prospective competitors include many large companies that have substantially
greater marketing, financial, technical and manufacturing resources than we
have.
-5-
<PAGE>
Competition in the markets that we serve is primarily based on
price/performance, product quality and the ability to deliver products in a
timely fashion. Some prospective customers may be reluctant to adopt our
products because of perceived risks relating to H-GaAs ("High-integration
Gallium Arsenide") technology. Additionally, product qualification is typically
a lengthy process and some prospective customers may be unwilling to invest the
time or expense necessary to qualify suppliers such as Vitesse. Prospective
customers may also have concerns about the relative advantages of our products
compared to more familiar silicon-based semiconductors. Further, customers may
also be concerned about relying on a relatively small company for a critical
sole-sourced component. To the extent we fail to overcome these challenges,
there could be material and adverse effects on our business and financial
results.
Asian Economic Issues
Our international business is subject to risks customarily encountered overseas
such as the recent financial turmoil in Asia. Although we have not been
materially impacted by the recent downturn in the Asian economy, similar
problems in the future could affect us adversely.
We Must Keep Pace With Product and Process Development and Technological Change
The market for our products is characterized by rapid changes in both product
and process technologies. We believe that our success to a large extent depends
on our ability to continue to improve our product and process technologies and
to develop new products and technologies in order to maintain our competitive
position. Further, we must adapt our products and processes to technological
changes and adopt emerging industry standards. Our failure to accomplish any of
the above could have a negative impact on our business and financial results.
We Are Dependent on Key Suppliers
We manufacture our products using a variety of components procured from third-
party suppliers. Most of our high-performance integrated circuits are packaged
in plastic by third parties since we have no internal plastic packaging
capability. We currently package the balance of our high-performance integrated
circuits at the Camarillo facility using customized ceramic packaging, which is
sole-sourced. Other components and materials used in our manufacturing process
are available from only a limited number of sources. Any difficulty in
obtaining sole- or limited-sourced parts or services from third parties could
affect our ability to meet scheduled product deliveries to customers. This in
turn could have a material adverse effect on our customer relationships,
business and financial results.
Our Manufacturing Yields Are Subject to Fluctuation
Semiconductor fabrication is a highly complex and precise process. Defects in
masks, impurities in the materials used, contamination of the manufacturing
environment and equipment failures can cause a large percentage of wafers or die
to be rejected. Manufacturing yields vary among products, depending on a
particular high-performance integrated circuit's complexity and on our
-6-
<PAGE>
experience in manufacturing it. In the past, we have experienced difficulties
in achieving acceptable yields on some high-performance integrated circuits,
which has led to shipment delays. Our overall yields are lower than yields
obtained in a mature silicon process because we manufacture a large number of
different products in limited volume and because our process technology is less
developed. We anticipate that many of our current and future products may never
be produced in volume.
Since a majority of our manufacturing costs are relatively fixed, maintaining
the number of shippable die per wafer is critical to our operating results.
Yield decreases can result in higher unit costs and may lead to reduced gross
profit and net income. We use estimated yields for valuing work-in-process
inventory. If actual yields are materially different than these estimates, we
may need to revalue work-in-process inventory. Consequently, if any of our
current or future products experience yield problems, our financial results may
be adversely affected.
Our Business is Subject to Environmental Regulations
We are subject to various governmental regulations related to toxic, volatile
and other hazardous chemicals used in our manufacturing process. Our failure to
comply with these regulations could result in the imposition of fines or in the
suspension or cessation of our operations. Additionally, we may be restricted
in our ability to expand operations at our present locations or we may be
required to incur significant expenses to comply with these regulations.
Our Failure to Manage Growth May Adversely Affect Us
The management of our growth requires qualified personnel, systems and other
resources. In particular, the continued operation of the new facility in
Colorado Springs and its integration with the Camarillo facility will require
significant management, technical and administrative resources. Additionally,
we have recently established several product design centers worldwide. Finally,
we acquired Vermont Scientific Technologies, Inc. in November 1998 and Serano
Systems Corporation in January 1999, and we have only limited experience in
integrating the operations of acquired businesses. Failure to manage our growth
or to successfully integrate new and future facilities or newly acquired
businesses could have a material adverse effect on our business and financial
results.
We Are Dependent on Key Personnel
Due to the specialized nature of our business, our success depends in part upon
attracting and retaining the services of qualified managerial and technical
personnel. The competition for qualified personnel is intense. The loss of any
our key employees or the failure to hire additional skilled technical personnel
could have a material adverse effect on our business and financial results.
Our Business Could Be Impacted by Year 2000 Issues
-7-
<PAGE>
The "Year 2000 Problem" is the result of computer programs being written using
two digits rather than four to define the applicable year. Computer programs
that contain date-sensitive software may recognize a date using "00" as the year
1900 rather than the year 2000. This can affect both information technology
(IT) and non-IT systems such as manufacturing equipment, as the latter may
contain date-sensitive embedded devices such as microcontrollers.
We have formed an internal task force to evaluate Year 2000 issues associated
with both our IT and non-IT systems. Many of these systems are already
compliant. We intend to replace or upgrade other systems that have been
identified as non-compliant. We have not completely evaluated all the
manufacturing equipment for Year 2000 compliance. We expect to substantially
complete our remediation and testing procedures by July 1999. None of our
products are date-sensitive and will operate according to specifications through
the Year 2000 and thereafter.
To date, we have not incurred incremental material costs associated with our
efforts to become Year 2000 compliant, as the majority of the costs have
occurred as a result of normal upgrade procedures. Furthermore, we believe that
future costs associated with these compliance efforts will not be material.
We may also be affected by Year 2000 compliance by our suppliers and customers.
We have contacted several critical suppliers to determine whether the products
and services they provide are Year 2000 compliant or to monitor their progress
towards being fully compliant. Our business and results of operations could
experience material adverse effects if our key suppliers were to experience Year
2000 issue that caused them to delay shipment of critical components to us.
Based on our efforts to date, we do not believe that the Year 2000 Problem will
have a material impact on our business or financial results. The most
reasonably likely worst case would be minor delays in production and shipments.
We have not developed a contingency plan detailing actions that will be taken in
the event that our compliance efforts fail to fully remediate any risk to our
operations. We are in the process of developing a contingency plan and expect
that it will be completed by July 1999. The information in this risk factor is
"Year 2000 Readiness Disclosure" within the meaning of the Year 2000 Information
and Readiness Disclosure Act.
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<PAGE>
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the Shares.
All proceeds from the sale of the Shares will be for the account of the Selling
Stockholders, as described below. See "Selling Stockholders" and "Plan of
Distribution" described below.
SELLING STOCKHOLDERS
The Selling Stockholders acquired the Shares in connection with the Company's
acquisition of Serano on January 21, 1999. The following is a list of officers
of Serano prior to the acquisition who are Selling Stockholders:
Robert J. Edens, Jr. - President and Chief Executive Officer
A. Ashutosh - Vice President, Software Development
and Assistant Secretary
John J. Ives - Vice President, Marketing and Business
Development, Treasurer and Secretary
Mark J. Jander - Vice President, Hardware Development
The following table sets forth, as of the date of this Prospectus, the name
of each of the Selling Stockholders, the number of Shares that each such Selling
Stockholder owns as of such date, the number of Shares owned by each Selling
Stockholder that may be offered for sale from time to time by this Prospectus,
and the number of Shares to be held by each such Selling Stockholder assuming
the sale of all of the Shares offered hereby. Except as indicated, none of the
Selling Stockholders has held any position or office or had a material
relationship with the Company or any of its affiliates within the past three
years other than as a result of the ownership of the Company's Common Stock.
The Company may amend or supplement this Prospectus from time to time to update
the disclosure set forth herein.
-9-
<PAGE>
<TABLE>
<CAPTION>
Shares Shares Owned
Shares Beneficially Owned Being After
Prior to Offering Percent Offered Offering
Name Number (1) (1) (2) (2)
- ------------------------------ ------------------------- -------- -------- -------------
<S> <C> <C> <C> <C>
Michael B. Anderson 76 * 76
A. Ashutosh 49,848 * 49,848
Hugh N. Chapman 4,793 * 4,793
Robert J. Edens, Jr. 49,959 * 49,959
Robert L. Etzkom, Jr. 958 * 958
Manoj Gupta and
Sapna Gupta JTWROS 2,396 * 2,396
Samer A. Abuel-Haija 718 * 718
Timothy D. Hornback 3,594 * 3,594
Jerome C. Ives and
Nancy Peek Ives, JT 4,793 * 4,793
John J. Ives 47,931 * 47,931
Mark J. Jander 47,931 * 47,931
Jeffrey D. Kasyon 1,437 * 1,437
Ann M. Koontz
(Hepler) 1,437 * 1,437
Glen P. Kozivk 2,396 * 2,396
LSI Logic Corporation 57,517 * 57,517
Robert M. Lester and
Norissa F. Lester, JT 5,308 * 5,308
Joseph R. Mathis 287 * 287
L. Martin Nussbaum 575 * 575
Pamela J. Perkins TOD,
Steven J. Perkins 4,793 * 4,793
Brian Purvis 1,509 * 1,509
Prakash Ramanan and
Bharathl Ramanan, JTWROS 2,396 * 2,396
John C. Ridges 9,586 * 9,586
Kurt W. Shetler 359 * 359
Reuben K. Sparks, Jr. 1,917 * 1,917
Reuben K. Sparks, III. 1,342 * 1,342
Gregory A. Tabor 3,642 * 3,642
Philip J. Tubb 4,793 * 4,793
Robert M. Wilson 958 * 958
Stace S. Wilson 9,586 * 9,586
</TABLE>
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<PAGE>
_________________
*Represents less than 1% of the outstanding shares of Common Stock
(1) The number and percentage of shares beneficially owned is determined in
accordance with Rule 13d-3 of the Exchange Act, and the information is not
necessarily indicative of beneficial ownership for any other purpose.
Under such rule, beneficial ownership includes any shares as to which the
individual has sole or shared voting power or investment power and also any
shares which the individual has the right to acquire within 60 days of the
date of this Prospectus through the exercise of any stock option or other
right.
(2) Assumes the sale of all Shares offered hereby. Each Selling Stockholder
above is having all of the shares of the Company's Common Stock owned by
them registered hereon. The Company is unaware of whether such Selling
Stockholders intend to sell any, some or all of such shares. None, some or
all of such shares may be sold.
PLAN OF DISTRIBUTION
In connection with the Company's acquisition of Serano, the Company entered
into a Registration Rights Agreement with the Selling Stockholders (the
"Agreement"), a copy of which is attached as an Exhibit to the registration
statement of which this Prospectus is a part (the "Registration Statement").
The Registration Statement has been filed pursuant to the Agreement. To the
Company's knowledge, the Selling Stockholder has not entered into any agreement,
arrangement or understanding with any particular broker or market maker with
respect to the Shares, nor does the Company know the identity of the brokers or
market makers which will participate in the offering.
The Shares covered hereby may be offered and sold from time to time by the
Selling Stockholders. Subject to agreements between the Selling Stockholders
and the Company, the Selling Stockholders will act independently of the Company
in making decisions with respect to the timing, manner and size of each sale.
The Selling Stockholders plan to sell the Shares offered hereby only in brokers'
transactions, as defined in Rule 144 promulgated under the Securities Act. In
general, brokers' transactions are ones in which the broker merely executes the
sell order, receives no more than the customary commission and does not solicit
orders to buy the Shares. No assurances can be given that the Selling
Stockholders will sell any of the Shares subject to this Prospectus or that the
Selling Stockholders will not sell such Shares in a private transaction or other
transaction that is exempt from the registration requirements of the Securities
Act. The Company has been advised by the Selling Stockholders that they have
not, as of the date hereof, entered into any arrangement with a broker-dealer
for the sale of Shares. In effecting sales, broker-dealers engaged by the
Selling Stockholders may arrange for other broker-dealers to participate.
Broker-dealers will receive commissions or discounts from the Selling
Stockholders in amounts to be negotiated immediately prior to the sale. The
Selling Stockholders may also loan or pledge the Shares registered hereunder to
a broker-dealer and the broker-dealer may sell the Shares so loaned or upon a
default the broker-dealer may effect sales of the pledged Shares pursuant to
this Prospectus.
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<PAGE>
In offering the Shares, the Selling Stockholders and any broker-dealers who
execute sales for the Selling Stockholders may be deemed to be "underwriters"
within the meaning of the Securities Act in connection with such sales, and any
profits realized by the Selling Stockholders and the compensation of each
broker-dealer may be deemed to be underwriting discounts and commissions.
Rule 102 of Regulation M prohibits a Selling Stockholder in a distribution
from bidding for or purchasing, directly or indirectly, any of the securities
which are the subject to the distribution. Rule 104 under Regulation M governs
bids and purchases made to stabilize the price of a security in connection with
a distribution of the security.
The Selling Stockholders have agreed not to sell any of the Shares offered
hereby without first submitting a written notice to the Company (the "Notice of
Resale"). The Company has in turn agreed to notify the Selling Stockholders as
soon as practicable, but in no event more than ten business days after receipt
of the Notice of Resale, whether it believes this Prospectus is current (with
the Company using the ten business day period to supplement this Prospectus or
make an appropriate filing under the Exchange Act) or should be amended prior to
use in connection with such sale (with the Company amending the Registration
Statement as soon as practicable). Once the Company has notified the Selling
Stockholders that this Prospectus is available to use, the Selling Stockholders
will have up to 60 days within which to sell Shares of Common Stock subject to
compliance with the Company's policies applicable to executive officers of the
Company, including trading windows.
This offering will terminate as to the Selling Stockholders on the earlier
of January 21, 2000, or the date on which all Shares offered hereby have been
sold by the Selling Stockholders. There can be no assurance that the Selling
Stockholders will sell any or all of the Shares offered hereby.
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon by Wilson
Sonsini Goodrich & Rosati, Professional Corporation, Palo Alto, California,
counsel to the Company.
EXPERTS
The consolidated financial statements and the related financial statement
schedule of Vitesse Semiconductor Corporation as of September 30, 1998, and for
each of the years in the three-year period ended September 30, 1998, have been
incorporated by reference herein and in the Registration Statement in reliance
upon the report of KPMG LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
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<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
The Company is subject to the informational reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information filed by
the Company can be inspected without charge and copied at the public reference
facilities of the Commission located at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549 and at the Commission's regional offices at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, IL
60661 and Seven World Trade Center, 13th Floor, New York, NY 10048. Copies of
such material also can be obtained from the Public Reference Section of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 at prescribed rates. Information regarding the operation of the
Public Reference Room may be obtained by calling the Commission at 1-800-SEC-
0330. The Commission maintains a World Wide Web site that contains reports,
proxy and information statements and other information regarding registrants
that is filed electronically with the Commission. The address of that site is
http://www.sec.gov. The Company's common stock is traded on the Nasdaq National
Market. The foregoing materials should also be available for inspection at the
National Association of Securities Dealers, Inc., 9513 Key West Avenue,
Rockville, MD 20850.
This Prospectus contains information concerning Vitesse Semiconductor
Corporation and the sale of its common stock by the Selling Shareholders, but
does not contain all the information set forth in the Registration Statement,
which the Company has filed with the Commission under the Securities Act. The
Registration Statement, including various exhibits, may be inspected at the
Commission's office in Washington, D.C.
The following documents filed with the Commission are incorporated herein by
reference:
(a) The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1998, filed pursuant to Section 13(a) or 15(d) of the
Exchange Act.
(b) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1998, filed pursuant to Section 13(a) or 15(d) of the
Exchange Act.
(c) The description of the Company's common stock which is contained in
the Company's Registration Statement on Form 8-A filed with the
Commission on November 8, 1991, pursuant to Section 12 of the Exchange
Act, including any amendment or report filed for the purpose of
updating any such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates
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<PAGE>
that all securities registered 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 part hereof from the date of
filing of such documents.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the information that has been
or may be incorporated by reference in this Prospectus, other than exhibits to
such documents. Requests for such copies should be directed in writing to
Vitesse Semiconductor Corporation, 741 Calle Plano, Camarillo, CA 93012,
Attention: Vice President and Controller, by calling (805) 388-7559, or by e-
mailing [email protected].
No person is authorized in connection with any offering made by this
Prospectus to give any information or to make any representations not contained
in this Prospectus, and, if given or made, such information or representations
must not be relied upon as having been authorized by the Company, any Selling
Stockholder or by any other person. This Prospectus does not constitute an
offer to sell or a solicitation of an offer to buy any security other than the
Shares offered hereby, nor does it constitute an offer to sell or a solicitation
of an offer to buy any of the Shares offered hereby to any person in any
jurisdiction in which it is unlawful to make such an offer or solicitation.
Neither the delivery of this Prospectus nor any sale of or offer to sell the
Shares made hereunder shall under any circumstances create any implication that
there has been no change in the affairs of the Company since the date hereof or
that the information contained herein is correct as of any time subsequent to
the date hereof.
-----------------------
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The Company will pay all expenses incident to the offering and sale to the
public of the shares being registered other than any commissions and discounts
of underwriters, dealers or agents and any transfer taxes. Such expenses are
set forth in the following table. All of the amounts shown are estimates except
the Securities and Exchange Commission ("SEC") registration fee.
<TABLE>
<S> <C>
SEC registration fee........................................... $ 4,011
---------
Legal fees and expenses........................................ 15,000
---------
Accounting fees and expenses................................... 30,000
---------
Miscellaneous expenses......................................... $ 989
---------
Total....................................................... $ 50,000
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a court to award,
or a corporation's Board of Directors to grant, indemnity to directors and
officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act. Paragraph 9 of the Registrant's
Amended Certificate of Incorporation and Article 6 of the Registrant's Bylaws
provide for indemnification of the Registrant's directors and officers to the
maximum extent permitted by the Delaware General Corporation Law. The Registrant
also maintains, and intends to continue to maintain, insurance for the benefit
of its directors and officers to insure such persons against certain
liabilities, including liabilities under the Securities laws. Reference is also
made to Section 8 of the Registration Rights Agreement (Exhibit 4.1 hereof)
indemnifying officers and directors of the Registration against certain
liabilities.
ITEM 16. EXHIBITS
3.1 Amended and Restated Certificate of Incorporation.
4.1 Registration Rights Agreement by and among Vitesse Semiconductor
Corporation, the Selling Stockholders and Serano.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
23.1 Consent of KPMG LLP, Independent Accountants.
23.2 Consent of Counsel (included in Exhibit 5.1).
-15-
<PAGE>
24.1 Power of Attorney (included on page II-4).
ITEM 17. UNDERTAKINGS
A. UNDERTAKING PURSUANT TO RULE 415
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 to include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change
to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, 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 this offering.
B. UNDERTAKING REGARDING FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT
DOCUMENTS BY REFERENCE
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. UNDERTAKING IN RESPECT OF INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the 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, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
-16-
<PAGE>
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
-17-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Camarillo, State of California, on this 18th day of
February, 1999.
VITESSE SEMICONDUCTOR CORPORATION
By: /s/ Louis R. Tomasetta
-------------------------------------
Louis R. Tomasetta
PRESIDENT AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Louis R.
Tomasetta and Eugene F. Hovanec and each of them, as attorneys-in-fact, each
with the power of substitution, for him or her in any and all capacities, to
sign any amendment to this Registration Statement and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact, 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 connection therewith, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
-18-
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on the
18th day of February 1999 in the capacities indicated.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Louis R. Tomasetta President, Chief Executive Officer, and Director
- ---------------------- (principal executive officer)
Louis R. Tomasetta
/s/ Eugene F. Hovanec Vice President, Finance and Chief Financial
- --------------------- Officer (principal financial and accounting
Eugene F. Hovanec officer)
/s/ James A. Cole Director
- -----------------
James A. Cole
/s/ Pierre R. Lamond Chairman of the Board of Directors
- --------------------
Pierre R. Lamond
/s/ John C. Lewis Director
- -----------------
John C. Lewis
/s/ Alex Daly Director
- -------------
Alex Daly
</TABLE>
-19-
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<S> <C>
3.1 Amended and Restated Certificate of Incorporation.
4.1 Registration Rights Agreement by and among Vitesse Semiconductor Corporation, the
Selling Stockholders and Serano.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
23.1 Consent of KPMG LLP, Independent Accountants.
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (included on page II-4).
</TABLE>
-20-
<PAGE>
Exhibit 3.1
-----------
Amended and Restated Certificate of Incorporation
<PAGE>
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
-------------------------------------------------
OF
--
VITESSE SEMICONDUCTOR CORPORATION
---------------------------------
The undersigned Eugene F. Hovanec does hereby verify that:
1. He is the duly elected Vice President, Finance, Chief Financial Officer
and Secretary of Vitesse Semiconductor Corporation, a Delaware corporation.
2. The Certificate of Incorporation of this corporation is amended and
restated to read in its entirety as follows:
1. The name of the corporation is Vitesse Semiconductor Corporation (the
"Corporation").
2. The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, zip code 19801. The name of its registered
agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful act or activity for which
Corporations may be organized under the General Corporation Law of Delaware.
4. This Corporation is authorized to issue two classes of shares to be
designated respectively Preferred Stock ("Preferred") and Common Stock
("Common"). The total number of shares of Preferred this Corporation shall have
authority to issue shall be 10,000,000, $.01 par value, and the total number of
Common this Corporation shall have authority to issue shall be 100,000,000, $.01
par value.
The Preferred Stock may be issued from time to time in one or more series
pursuant to a resolution or resolutions providing for such issue duly adopted by
the Board of Directors (authority to do so being hereby expressly vested in the
Board). The Board of Directors is further authorized to determine or alter the
rights, preferences, privileges and restrictions granted to or imposed upon any
wholly unissued series of Preferred Stock and, to fix the number of shares of
any series of Preferred Stock and the designation of any such series of
Preferred Stock. The Board of Directors, within the limits and restrictions
stated in any resolution or resolutions of the Board of Directors originally
fixing the number of shares constituting any series, may increase or decrease
(but not below the number of shares in any such series then outstanding) the
number of shares of any series subsequent to the issue of shares of that series.
<PAGE>
5. The Corporation is to have perpetual existence.
6. Elections of directors need not be by written ballot unless a
stockholder demands election by written ballot at the meeting and before voting
begins or unless the Bylaws of the Corporation shall so provide.
7. The number of directors which constitute the whole Board of Directors
of the Corporation shall be designated in the Bylaws of the Corporation.
8. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter, amend or
repeal the Bylaws of the Corporation.
9. (a) To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or as may hereafter be amended, a director of
the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
(b) The Corporation shall indemnify to the fullest extent permitted by
law any person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that he, his testator or intestate is or was a director, officer or employee of
the Corporation or any predecessor of the Corporation or serves or served at any
other enterprise as a director, officer or employee at the request of the
Corporation or any predecessor to the Corporation.
(c) Neither any amendment nor repeal of this Article 9, nor the
adoption of any provision of this Corporation's Certificate of Incorporation
inconsistent with this Article 9, shall eliminate or reduce the effect of this
Article 9 in respect of any matter occurring, or any action or proceeding
accruing or arising or that, but for this Article 9, would accrue or arise,
prior to such amendment, repeal or adoption of an inconsistent provision.
10. Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation.
11. Following the effectiveness of the registration of any class of
securities of the Corporation pursuant to the requirements of the Securities
Exchange Act of 1934, as amended, no action shall be taken by the stockholders
of the Corporation except at an annual or special meeting of the stockholders
call in accordance with the Bylaws and no action shall be taken by the
stockholders by written consent.
3. The foregoing amendment and restatement of the Certificate of
Incorporation has been duly approved by the Board of Directors.
<PAGE>
4. The foregoing amendment and restatement of the Certificate of
Incorporation has been duly approved by the required vote of stockholders in
accordance with Section 242 of the General Corporation Law of the State of
Delaware. The total number of outstanding shares of Common Stock of the
Corporation is 74,798,956 and there are no shares of Preferred Stock
outstanding. The number of shares voting in favor of the Amended and Restated
Certificate of Incorporation equalled or exceeded the vote required. The
percentage vote required was more than 50% of the Common voting as a class.
Notice has been given to any non-consenting stockholders in accordance with the
provisions of Section 228(c) of the General Corporation Law of the State of
Delaware.
The undersigned declares under penalty of perjury under the laws of the
State of Delaware that the matters set forth in this certificate are true,
correct and of his own knowledge.
Executed at Camarillo, California on February 11, 1998.
______________________________
Eugene F. Hovanec
Vice President, Finance &
Chief Financial Officer and
Secretary
<PAGE>
Exhibit 4.1
-----------
Registration Rights Agreement
<PAGE>
VITESSE SEMICONDUCTOR CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made effective as
of January ___, 1999 (the "Effective Date"), by and among Vitesse Semiconductor
Corporation, a Delaware corporation (the "Parent"), Serano Systems Corporation,
a Colorado corporation (the "Company") and all shareholders of the Company (the
"Shareholders").
RECITALS
--------
A. The Company, Parent, Pepper Acquisition Corp., a Delaware corporation
("Sub") and certain others, are parties to the Agreement and Plan of
Reorganization dated January ___, 1999 (together with the exhibits and schedules
thereto, the "Merger Agreement"), pursuant to which Sub shall be merged with and
into the Company, the separate corporate existence of Sub shall cease and the
Company shall continue as the surviving corporation and as a wholly-owned
subsidiary of Parent.
B. Pursuant to the Merger Agreement, among other things, all of the issued
and outstanding shares of capital stock of the Company shall be converted into
the right to receive shares of common stock of Parent (the "Shares").
AGREEMENT
---------
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, all parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
-------------------
shall have the following respective meanings:
"Black-Out Period" means any period during which executive officers and
----------------
directors of Parent are generally prohibited from engaging in trades in Parent's
securities pursuant to Parent's Insider Trading Policy.
"Commission" means the Securities and Exchange Commission or any other
----------
Federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
------------
any similar Federal rule or statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
<PAGE>
"Holder" means any of LSI and the Shareholders, for so long as such person
------
holds any Registrable Securities, or any person holding Registrable Securities
to whom the rights under this Agreement have been transferred in accordance with
Section 11 hereof.
"Insider Trading Policy" means the policy adopted by Parent's Board of
----------------------
Directors, as such may be amended from time to time, relating to transactions in
Parent's securities by Parent's executive officers and directors.
"Permitted Window" means the period during which a Holder entitled to sell
----------------
Registrable Securities pursuant to a registration statement under Section 5(a)
of this Agreement shall be permitted to sell Registrable Securities pursuant to
such a registration. Except as otherwise set forth in this Agreement, a
Permitted Window shall (i) commence upon the tenth business day following
receipt by Parent of a written notice from a Holder to Parent that such Holder
intends to sell Shares pursuant to such registration statement, or such earlier
date as Parent may agree to, and shall (ii) terminate upon the commencement of a
Black-Out Period.
"Registrable Securities" means the Shares and any Common Stock of Parent
----------------------
issued or issuable in respect thereof upon any conversion, stock split, stock
dividend, recapitalization, merger or other reorganization; provided, however,
-------- -------
that securities shall only be treated as Registrable Securities if and so long
as they have not been registered or sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction.
"Register," "registered" and "registration" refer to a registration
-------- ---------- ------------
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" means all expenses, except Selling Expenses,
---------------------
incurred by Parent in complying with Section 5 hereof, including without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for Parent, blue sky fees and
expenses, the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of Parent
which shall be paid in any event by Parent).
"Restricted Securities" means the securities of Parent required to bear a
---------------------
legend as described in Section 3 hereof.
"Securities Act" means the Securities Act of 1933, as amended, or any
--------------
similar Federal rule or statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" means all underwriting discounts, selling commissions
----------------
and stock transfer taxes applicable to the securities registered by the Holders
and all fees and disbursements of counsel for any Holder.
2. Restrictions on Transferability. The Restricted Securities and any
-------------------------------
other securities issued in respect of such securities upon any stock split,
stock dividend, recapitalization, merger or other reorganization, shall not be
sold, assigned, transferred or pledged except upon the conditions
-2-
<PAGE>
specified in this Agreement, which conditions are intended to ensure compliance
with the provisions of the Securities Act. Each Holder or transferee will cause
any proposed purchaser, assignee, transferee, or pledgee of any such securities
held by the Holder or transferee to agree to take and hold such securities
subject to the restrictions and upon the conditions specified in this Agreement,
including without limitation the restrictions set forth in Section 4.
3. Restrictive Legend. Each certificate representing the Shares or any
------------------
other securities issued in respect of such securities upon any stock split,
stock dividend, recapitalization, merger or other reorganization shall be
stamped or otherwise imprinted with the following legends:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. SUCH SECURITIES MAY NOT BE TRANSFERRED UNLESS A REGISTRATION
STATEMENT UNDER SAID ACT IS IN EFFECT AS TO SUCH TRANSFER OR, IN THE
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER, SUCH TRANSFER MAY BE
MADE WITHOUT REGISTRATION UNDER SAID ACT
Each Holder consents to Parent making a notation on its records and giving
instructions to any transfer agent of its capital stock in order to implement
the restrictions on transfer established in this Agreement and the Purchase
Agreement.
4. Notice of Proposed Transfers. The holder of each certificate
----------------------------
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 4. Without in any way limiting the
immediately preceding sentence or the provisions of Section 2, no sale,
assignment, transfer or pledge (other than (i) a sale made pursuant to a
registration statement filed under the Securities Act and declared effective by
the Commission or (ii) a sale made in accordance with the applicable provisions
of Rule 144) of Restricted Securities shall be made by any holder thereof to any
person unless such person shall first agree in writing to be bound by the
restrictions of this Agreement, including without limitation this Section 4.
Prior to any proposed sale, assignment, transfer or pledge of any Restricted
Securities, unless there is in effect a registration statement under the
Securities Act covering the proposed transfer, the holder thereof shall give
written notice to Parent of such holder's intention to effect such transfer,
sale, assignment or pledge. Each such notice shall describe the manner and
circumstances of the proposed transfer, sale, assignment or pledge in sufficient
detail, and, if requested by Parent, the holder shall also provide, at such
holder's expense, a written opinion of legal counsel (who shall be, and whose
legal opinion shall be, reasonably satisfactory to Parent) addressed to Parent,
to the effect that the proposed transfer of the Restricted Securities may be
effected without registration under the Securities Act and under applicable
state securities laws and regulations. Upon delivery to Parent of such notice
and, if required, such opinion, the holder of such Restricted Securities shall
be entitled to transfer such Restricted Securities in accordance with the terms
of such notice. Parent agrees that it shall not request such an opinion of
counsel with respect to (i) a transfer not involving a change in beneficial
ownership, (ii) a transaction involving the transfer without consideration of
Restricted Securities by an individual holder during such holder's lifetime by
way of gift or on death by will or intestacy. Each certificate evidencing the
Restricted Securities transferred as above provided shall
-3-
<PAGE>
bear, except if such transfer is made pursuant to Rule 144, the appropriate
restrictive legend set forth in Section 3 above, except that such certificate
shall not bear such restrictive legend if, in the opinion of counsel for such
holder and counsel for Parent, such legend is not required in order to establish
or ensure compliance with any provision of the Securities Act.
5. Registration on Form S-3.
------------------------
(a) Registration. Parent shall use its commercial best efforts to
------------
cause a registration statement on Form S-3 (or any successor form, collectively,
a "Form S-3") covering all Registrable Securities to be filed and declared
effective no later than the second day after the day that Parent publicly
announces financial results covering at least thirty (30) days of combined
operations of Parent and Company. Parent shall use its commercially reasonable
efforts to keep such registration statement effective until the first
anniversary of the date of this Agreement, or such earlier date upon which no
Holder holds any Registrable Securities. Upon receipt of a notice from any
Holder that such Holder intends to sell Registrable Securities during a
Permitted Window, Parent shall, prior to the commencement of the Permitted
Window, inform the other Holders of the commencement of the Permitted Window.
Parent shall notify each of the Holders of the termination of a Permitted Window
no later than the time Parent notifies its executive officers and directors of
the corresponding Black-Out Period; provided, however, that Parent need not
-------- -------
notify the Holders of regularly scheduled Black-Out Periods relating to the
closing of Parent's fiscal quarters, which periods commence on the fifteenth day
prior to the end of the last month of each fiscal quarter and terminate twenty-
four hours after Parent publicly announces its results for such quarters.
(b) Limitations on Registration and Sale of Registrable Securities.
--------------------------------------------------------------
Notwithstanding anything in this Agreement to the contrary, Parent's obligations
and the Holders' rights under this Section 5 are subject to the limitations and
qualifications set forth below, which may be waived in writing by Parent.
(i) Parent shall have no obligation to keep effective a
registration statement hereunder following such time as each Holder is eligible
to sell all of its Registrable Securities in a three month period under the
applicable provisions of Rule 144.
(ii) The Holders will sell Registrable Securities pursuant to a
registration effected hereunder only during a Permitted Window.
(iii) If Parent furnishes to the Holders a certificate signed by the
President Chief Financial Officer of Parent stating that, in the good faith
judgment of the Board of Directors of Parent, it would be seriously detrimental
to Parent for a Form S-3 registration to be effected, or a Permitted Window to
be in effect, due to (A) the existence of a material development or potential
material development involving Parent which Parent would be obligated to
disclose in the prospectus contained in the Form S-3 registration statement,
which disclosure would in the good faith judgment of the Board of Directors be
premature or otherwise inadvisable, (B) the existence of other facts or
circumstances as a result of which the prospectus contained or to be contained
in the Form S-3 registration statement includes or would include an untrue
statement of a material fact or omits or would omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made or then
-4-
<PAGE>
existing or (C) Parent's bona fide intention to effect the filing of a
registration statement with the Commission within sixty (60) days of the receipt
of a notice from a Holder that it intends to sell Registrable Securities during
a Permitted Window, Parent may defer the filing of the Form S-3 registration
statement or delay the commencement of a Permitted Window or may effect an early
termination of a Permitted Window that has commenced, as the case may be. Parent
may elect to so defer, delay or terminate under clause (A) above only to the
extent that the event described in clause (A) also gives rise to a Black-Out
Period applicable to all of Parent's executive officers and directors under
Parent's Insider Trading Policy. If Parent elects to so defer, delay or
terminate under clause (B) above, Parent shall use its commercially reasonable
efforts to amend the registration statement or take such other action as may be
necessary to eliminate the situation described in clause (B) as soon as
practicable. Any Holder receiving any notice from Parent with respect to the
matters covered by this Section 5(b)(iii) shall keep the fact and content of
such notice, and the event or circumstances giving rise to such notice,
confidential.
(iv) The obligations of Parent hereunder are conditioned upon its
being eligible to register its securities on Form S-3 or at the time any such
registration is otherwise required hereunder;
(v) At any time that Parent is obligated under this Agreement to
permit the Holders to sell Registrable Securities pursuant to a registration
statement on Form S-3, Parent may, instead of maintaining an effective
registration statement on Form S-3 for the benefit of the Holders, include such
Registrable Securities in a registration effected for the benefit of Parent
and/or other selling stockholders. In the event that such registration is in
connection with an underwritten offering, the Holders participating in such
registration shall enter into an underwriting agreement in customary form with
the managing underwriter selected by Parent, notwithstanding the provisions of
Section 5(c).
(vi) Notwithstanding anything to the contrary in this Agreement,
Parent shall have no obligation to effect a registration hereunder, and no
Permitted Window will exist, with respect to Registrable Securities that are
subject to the escrow provisions of the Merger Agreement (including any
agreement which is an exhibit thereto) during the time that such Registrable
Securities are subject to such provisions and no Holder shall sell any such
Registrable Securities pursuant to a registration hereunder, or pursuant to Rule
144, during any such period.
(c) Underwriting. At the election of the Holders representing a majority
------------
of the Registrable Securities that are proposed to be sold during a Permitted
Window (the "Deciding Holders"), all sales of Registrable Securities under this
Section 5 during such Permitted Window shall be made through an underwriting
managed by an underwriter selected by Parent and acceptable to Deciding Holders
(the "Managing Underwriter"). Parent shall, together with all Holders proposing
to distribute their Registrable Securities though such underwriting, enter into
an underwriting agreement in customary form with the Managing Underwriter. If
any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
Parent. Any Holder so withdrawing shall not sell any Registrable Securities
pursuant to a registration effected under this Agreement until after the
completion of such underwritten distribution. Nothing in this section shall
require the holders to select and sell any of the Shares through a Managing
Underwriter.
-5-
<PAGE>
(d) Registration Procedures. In connection with any registration required
-----------------------
under this Agreement, Parent shall take the actions set forth below.
(i) Prior to filing any registration statement, prospectus, amendment
or supplement with the Commission in connection with any registration hereunder,
Parent shall furnish to one counsel selected by the Holders of a majority of the
Registrable Securities copies of such documents.
(ii) Parent shall notify each Holder of any stop order issued or
threatened by the Commission and will take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered.
(iii) Parent shall comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by a registration
statement filed pursuant to this Agreement with respect to the disposition of
all Registrable Securities covered by such registration statement in accordance
with the intended methods of disposition by the Holders as set forth in such
registration statement.
(iv) Parent shall furnish to each Holder and each underwriter, if any,
of Registrable Securities covered by a registration statement filed pursuant to
this Agreement such number of copies of such registration statement, each
amendment and supplement thereto (in each case including all exhibits thereto),
and the prospectus included in such registration statement (including each
preliminary prospectus), in conformity with the requirements of the Securities
Act, and such other documents as a selling Holder may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
Holder.
(v) Parent shall use its best efforts to register or qualify the
Registrable Securities under the securities or "blue sky" laws of each State of
the United States of America as any of the Holders or underwriters, if any, of
the Registrable Securities covered by a registration statement filed hereunder
reasonably requests, and shall do any and all other acts and things which may be
reasonably necessary or advisable to enable each selling Holder and each
underwriter, if any, to consummate the disposition in such States of the
Registrable Securities owned by such selling Holders; provided that Parent shall
--------
not be required to (A) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this subsection (v),
(B) subject itself to taxation in any such jurisdiction or (C) consent to
general service of process in any such jurisdiction.
(vi) Parent shall immediately notify each Holder entitled to sell
Registrable Securities during a Permitted Window of the happening of any event
which comes to Parent's attention if, as a result of such event, the prospectus
included in the registration statement filed under this Agreement contains any
untrue statement of a material fact or omits to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and Parent shall promptly prepare and
furnish to each Holder and file with the Commission a supplement or amendment to
such prospectus so that such prospectus will no longer contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
-6-
<PAGE>
(vii) Parent shall take all such other reasonable and customary
actions as each Holder or the underwriters, if any, may reasonably request in
order to expedite or facilitate the disposition of the Registrable Securities in
accordance with the terms of this Agreement.
(viii) Parent shall make available for inspection by the Holders, any
underwriter participating in any disposition pursuant to a registration
statement filed under this Agreement, and any attorney, accountant or other
agent retained by such Holders or underwriters, all financial and other records,
pertinent corporate documents and properties of Parent and its subsidiaries, as
such person may reasonably request for the purpose of confirming that such
registration statement does not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, provided
that Parent obtains reasonably satisfactory assurances that such information
will be used solely for such purpose and will be held in confidence (except to
the extent that it is included in the registration statement). Parent shall
cause the officers, directors and employees of Parent and each of its
subsidiaries to supply such information and respond to such inquiries as any
Holder or underwriter may reasonably request or make for the purpose of
confirming that such registration statement does not contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, provided that Parent obtains reasonably satisfactory
assurances that such information will be used solely for such purpose and will
be held in confidence (except to the extent that it is included in the
registration statement).
6. Other Registration Rights. The Holders acknowledge that certain other
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stockholders of Parent may now or hereafter have registration rights, and that
such other stockholders may be entitled to sell their securities at the same
time, or pursuant to the same registration and underwriting, as the Holders
hereunder.
7. Expenses of Registration. All Registration Expenses incurred in
------------------------
connection with Parent's obligations hereunder shall be borne by Parent. All
Selling Expenses relating to securities proposed to be registered hereunder and
all other registration expenses shall be borne by the Holders of such securities
pro rata on the basis of the number of shares proposed to be sold by each of
them during the applicable Permitted Window.
8. Indemnification.
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(a) Parent will indemnify each Holder, each of its officers and
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration
has been effected pursuant to this Agreement, against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading and Parent will reimburse each such Holder, each of its officers,
directors and partners, and each person controlling such Holder, for any legal
-7-
<PAGE>
and any other expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action,
provided that Parent will not be liable in any such case to the extent that any
- --------
such claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission or alleged untrue statement or omission, made in
reliance upon and in conformity with written information furnished to Parent by
an instrument duly executed by such Holder or controlling person, and stated to
be specifically for use therein; and provided, further, that the foregoing
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indemnity Agreement is subject to the condition that, insofar as it relates to
any such untrue statement, alleged untrue statement, omission or alleged
omission made in a preliminary prospectus, such indemnity agreement shall not
inure to the benefit of any person, if a copy of the final prospectus or an
amended or supplemented prospectus, as applicable, was not furnished to the
person asserting the loss, liability, claim or damage at or prior to the time
such action is required by the Securities Act, and if the final prospectus or
the amended or supplemented prospectus, as applicable, would have cured the
defect giving rise to the loss, liability, claim or damage. In no event,
however, shall Parent have any indemnification obligation to the extent that the
expenses, claims, losses, damages or liabilities as to which indemnification is
sought are in connection with an offer or sale made by a person other than
Parent in violation of the terms of this Agreement (a "Violation").
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which a registration hereunder is effected,
indemnify Parent, each of its directors and officers, each person who controls
Parent within the meaning of Section 15 of the Securities Act, and each other
such Holder, each of its officers and directors and each person controlling such
Holder within the meaning of Section 15 of the Securities Act, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on (i) a Violation by such Holder or (ii) any untrue statement
(or alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other document, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse Parent, such Holders, such directors, officers or control persons
for any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action,
but, in the case of clause (ii) above, only to the extent that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with information furnished to Parent
by such Holder. Notwithstanding the foregoing, the liability of each Holder
under this subsection 8.7(b) shall be limited in an amount equal to the initial
public offering price of the shares sold by such Holder, unless such liability
arises out of or is based on a Violation or willful misconduct by such Holder.
(c) Each party entitled to indemnification under this Section 8 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this
-8-
<PAGE>
Agreement unless the failure to give such notice is materially prejudicial to an
Indemnifying Party's ability to defend such action and provided further, that
the Indemnifying Party shall not assume the defense for matters as to which
there is a conflict of interest or there are separate and different defenses. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party (whose consent shall not be
unreasonably withheld), consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
9. Information by Holder. The Holder or Holders of Registrable Securities
---------------------
included in any registration hereunder shall furnish to Parent such information
regarding such Holder or Holders, the Registrable Securities held by them and
the distribution proposed by such Holder or Holders as Parent may request in
writing and as shall be required in connection with any registration referred to
in this Agreement.
10. Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission which may permit the sale of the
Restricted Securities to the public without registration Parent agrees to use
all reasonable efforts, at any time after the first anniversary of the Effective
Date, to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act; and
(b) File with the Commission in a timely manner all reports and other
documents required of Parent under the Securities Act and the Exchange Act.
11. Transfer of Registration Rights. The rights to cause Parent to
-------------------------------
register securities granted to Holders under Section 5 may be assigned to a
transferee or assignee reasonably acceptable to Parent in connection with any
transfer or assignment of Registrable Securities by the Holder, provided that
(i) such transfer is otherwise effected in accordance with applicable securities
laws and the terms of this Agreement, (ii) such assignee or transferee acquires
at least 50,000 shares of Registrable Securities (as adjusted for stock splits,
stock dividends, stock combinations and the like), (iii) written notice is
promptly given to Parent and (iv) such transferee agrees in writing to be bound
by the provisions of this Agreement. Notwithstanding the foregoing, the rights
to cause Parent to register securities may be assigned without compliance with
item (ii) above to a family member or trust for the benefit of a Holder who is
an individual, or a trust for the benefit of a family member of such a Holder.
12. Amendment. Except as otherwise provided above, any provision of this
---------
Agreement may be amended or the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of Parent and Holders of a
majority of the Registrable Securities remaining at the time such amendment or
waiver is made.
13. Governing Law. This Agreement shall be governed in all respects by
-------------
the laws of the State of Colorado, without regard to conflict of laws
provisions.
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<PAGE>
14. Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and Agreement among the parties regarding the matters set forth
herein. Except as otherwise expressly provided herein, all other agreements
regarding the registration rights of the Company's shareholders shall hereby
expire. The provisions hereof shall inure to the benefit of, and be binding
upon the successors, assigns, heirs, executors and administrators of the parties
hereto.
15. Notices, etc. All notices and other communications required or
-------------
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by facsimile
transmission, by hand or by messenger, addressed:
(a) if to a Holder, at such Holder's address as set forth below such
Holder's signature on this Agreement, or at such other address as such Holder
shall have furnished to Parent.
(b) if to Parent, to:
Vitesse Semiconductor Corporation
741 Calle Plano
Camarillo, California 93012
Fax: (805) 388-7565
Attn: Yatin Mody
or at such other address as Parent shall have furnished to the Holders,
with a copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, CA 94304-1050
Attn: Francis S. Currie, Esq.
Fax: (415) 493-6811
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally or by facsimile transmission, or, if sent by mail, at the
earlier of its receipt or 72 hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid.
16. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
"PARENT"
Vitesse Semiconductor Corporation
a Delaware corporation
By:
---------------------------------------
Title:
------------------------------------
"THE HOLDERS"
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By:
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Its:
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[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
<PAGE>
Exhibit 5.1
-----------
Opinion of Wilson Sonsini Goodrich & Rosati
<PAGE>
February 17, 1999
Vitesse Semiconductor Corporation
741 Calle Plano
Camarillo, California 93012
RE: REGISTRATION STATEMENT ON FORM S-3
Gentlemen:
We have examined the Registration Statement on Form S-3 to be filed by you
with the Securities and Exchange Commission on or about the date hereof (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 327,628 shares of your Common Stock (the
"Shares"), all of which will be sold by certain selling stockholders. The
Shares are to be resold to the public as described in the Registration
Statement. As your counsel, we have examined the proceedings taken by you in
connection with the issuance of the Shares.
It is our opinion that the Shares are validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
<PAGE>
Exhibit 23.1
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Accountant's Consent
The Board of Directors
Vitesse Semiconductor Corporation
We consent to incorporation by reference in the registration statement on
Form S-3 of our report dated October 14, 1998, relating to the consolidated
balance sheets of Vitesse Semiconductor Corporation and subsidiaries as of
September 30, 1998 and 1997, and the related consolidated statements of
operations, shareholders' equity and cash flows for each of the years in the
three year period ended September 30, 1998, and related schedule, which report
appears in the September 30, 1998 annual report on Form 10-K of Vitesse
Semiconductor Corporation, and to reference to our firm under the heading
"Experts" in the registration statement.
Los Angeles, California
February 17, 1999
