<PAGE>
As filed with the Securities and Exchange Commission on April 8, 1999
Registration No. 333-72659
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
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)
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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.
-----------------------
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>
327,628 Shares
VITESSE SEMICONDUCTOR CORPORATION
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 April 7, 1999, the last reported sales
price of our common stock on the Nasdaq National Market was $56.625.
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 12, 1999.
1
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
The Company.................................... 3
Risk Factors................................... 3
Use of Proceeds................................ 8
Selling Stockholders........................... 8
Plan of Distribution........................... 11
Legal Matters.................................. 12
Experts........................................ 12
Available Information.......................... 13
Incorporation of Certain Documents
by Reference................................. 13
</TABLE>
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2
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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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. 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.
4
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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
5
<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
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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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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.
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<TABLE>
<CAPTION>
Shares Shares Owned
Shares Beneficially Owned Being After
Prior to Offering Percent Offered Offering Percent
Name (1) (1) (2) (2) (2)
- ------------------------------ ------------------------- -------- -------- ------------- --------
<S> <C> <C> <C> <C> <C>
Michael B. Anderson (3) 69 * 69 0 *
A. Ashutosh (3) 44,864 * 44,864 0 *
Hugh N. Chapman (3) 4,314 * 4,314 0 *
Robert J. Edens, Jr. (3) 44,964 * 44,964 0 *
Robert L. Etzkorn, Jr. (3) 863 * 863 0 *
Manoj Gupta and 2,157 2,157
Sapna Gupta
JTWROS (3) *
Samer A. Abuel-Haija (3) 647 * 647 0 *
Timothy D. Hornback (3) 3,235 * 3,235 0 *
Jerome C. Ives and Nancy 4,314 4,314
Peek Ives,
JT (3) * 0 *
Nancy Peek Ives and 4,314 * 4,314
Jerome C. Ives, JT (3)
John J. Ives (3) 43,138 * 43,138 0 *
Mark J. Jander(3) 43,138 * 43,138 0 *
Jeffrey D. Kasyon(3) 1,294 * 1,294 0 *
Ann M. Hepler (3) 1,294 * 1,294 0 *
Glen P. Koziuk(3) 2,157 * 2,157 0 *
LSI Logic Corporation (3) 51,766 * 51,766 0 *
Robert M. Lester 4,778 * 4,778 0 *
& Nerissa Z.
Lester, JT (3)
Joseph R. Mathis (3) 259 * 259 0 *
L. Martin Nussbaum (3) 518 * 518 0 *
Pamela J. Perkins 4,314 4,314
TOD,
Steven J. Perkins (3) * 0 *
Brian Purvis (3) 1,359 * 1,359 0 *
Prakash Ramanan and 2,157 * 2,157
Bharathi Ramanan,
JTWROS (3) 0 *
John C. Ridges (3) 8,628 * 8,628 0 *
Kurt W. Shetler (3) 324 * 324 0 *
Reuben K. Sparks, Jr. (3) 1,726 * 1,726 0 *
Reuben K. Sparks III (3) 1,208 * 1,208 0 *
Gregory A. Tabor (3) 3,278 * 3,278 0 *
Philip J. Tubb (3) 4,314 * 4,314 0 *
Robert M. Willson (3) 863 * 863 0 *
Stace S. Wilson (3) 8,628 * 8,628 0 *
U.S. Bank Trust (Escrow 32,746 * 32,746 0 *
Agent (4)
</TABLE>
- ----------------
* Represents less than 1% of the outstanding shares of Common Stock
9
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_________________
*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.
(3) Does not include shares of Common Stock held in escrow on behalf of the
stockholder by U.S. Bank Trust (the "Escrow Agent"). See Note 4.
(4) Includes shares held on behalf of the Selling Stockholders in escrow by the
Escrow Agent, pursuant to the Agreement and Plan of Reorganization by and
among the Company, Serano, the Escrow Agent and certain of the Selling
Stockholders dated as of January 13, 1999. Shares held in escrow are for
the account of each Selling Stockholder in the same proportion that the
aggregate number of shares of Vitesse Common Stock issued to each Selling
Stockholder in the Serano acquisition bears to the aggregate number of
shares issued in the Serano acquisition. Unless subject to a claim for
indemnification by Vitesse, or reacquired by Vitesse as a result of the
resolution of such a claim, the shares held in escrow will be released to
the Selling Stockholders on the earlier of the date which is ten days
following delivery to the Company of the auditor's report for the first
audit of the Company's financial statements after January 21, 1999 or
January 21, 2000.
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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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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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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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.
-----------------------
13
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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................................... 15,000
---------
Miscellaneous expenses......................................... $ 989
---------
Total....................................................... $ 35,000
=========
</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).
14
<PAGE>
24.1* Power of Attorney.
--------------------
* Previously filed on February 19, 1999 with the Securities and Exchange
Commission on Registration Statement Form S-3 (SEC File Number 333-72659).
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
15
<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.
16
<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 Amendment No. 1 to the 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 8th day of April, 1999.
VITESSE SEMICONDUCTOR CORPORATION
By: /s/ Louis R. Tomasetta
-------------------------------------
Louis R. Tomasetta
PRESIDENT AND CHIEF EXECUTIVE OFFICER
17
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on the
8th day of April, 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/ Louis R. Tomasetta Vice President, Finance and Chief Financial
- ---------------------- Officer (principal financial and accounting
Eugene F. Hovanec* officer)
/s/ Louis R. Tomasetta Director
- ----------------------
James A. Cole*
/s/ Louis R. Tomasetta Chairman of the Board of Directors
- ----------------------
Pierre R. Lamond*
/s/ Louis R. Tomasetta Director
- ----------------------
John C. Lewis*
/s/ Louis R. Tomasetta Director
- ----------------------
Alex Daly*
* Louis R. Tomasetta, Attorney-in-fact
</TABLE>
18
<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.
</TABLE>
- ------------
* Previously filed on February 19, 1999 with the Securities and Exchange
Commission on Registration Statement Form S-3 (SEC File Number 333-72659).
19
<PAGE>
Exhibit 23.1
------------
Accountant's Consent
The Board of Directors
Vitesse Semiconductor Corporation
We consent to incorporation by reference in this registration statement
Post-Effective Amendment to Form S-3 of Vitesse Semiconductor Corporation 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.
KPMG LLP
Los Angeles, California
April 2, 1999
