<PAGE>
As filed with the Securities and Exchange Commission on February 15, 20000
Registration No.
================================================================================
<TABLE>
<CAPTION>
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)
<S> <C> <C>
Delaware 3674 77-0138960
-------------------- -------------- -------------------
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) 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:
Larry W. Sonsini
Robert Sanchez
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
(650) 493-9300
-------------------------
</TABLE>
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. [X]
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 the only securities being delivered pursuant to this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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. [ ]
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================
Title of Each Class Amount Proposed Maximum Proposed Maximum Amount of
of Securities to to be Offering Price Aggregate Offering Registration
be Registered Registered Per Share (1) Price (1) Fee (2)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 7,604 $54.50 $414,418.00 $110.00
==================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the registration
fee based on the average of the high and low prices for the Common Stock as
reported on the Nasdaq Stock Market on February 9, 2000, in accordance with
Rule 457(c) under the Securities Act of 1933, as amended.
---------------------------
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 that specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until the Registration Statement shall
become effective on such date as the SEC, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
The information in this preliminary prospectus is not complete and may be
changed. These securities may not be sold until the registration statement
filed with the Securities and Exchange Commission is effective. This
preliminary prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any jurisdiction where the offer
of sale is not permitted.
SUBJECT TO COMPLETION, DATED FEBRUARY 14, 2000
7,604 Shares
VITESSE SEMICONDUCTOR CORPORATION
Common Stock
-------------
All of the shares of common stock offered by this Prospectus are being sold
by Imperial Bancorp, the selling stockholder. 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 14, 2000, the last reported sales
price of our common stock on the Nasdaq National Market was $64.625.
Investing in our common stock involves risks. See "Risk Factors" starting
on page 4.
We originally issued all of the shares offered by this prospectus pursuant
to the selling stockholder's exercise of a warrant obtained in connection with
our acquisition of XaQti Corporation. We are registering the shares pursuant to
an agreement between us and the selling stockholder.
The selling stockholder may sell all or a portion of the shares from time
to time on the Nasdaq Stock Market's National Market and at prices which will be
determined by the prevailing market price for the shares.
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.
The date of this Prospectus is February ___, 2000.
-1-
<PAGE>
__________________
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----------
<S> <C>
The Company..................................................... 3
Special Note Regarding Forward-Looking Statements............... 3
Where You Can Find Additional Information....................... 3
Risk Factors.................................................... 4
Use of Proceeds................................................. 10
Selling Stockholders............................................ 10
Plan of Distribution............................................ 11
Legal Matters................................................... 12
Experts......................................................... 12
</TABLE>
You should rely only on information contained in this document or to which
we have referred you. We have not authorized anyone to provide you with
information that is different. This document may only be used where it is legal
to sell these securities. The information in this document may only be accurate
on the date of this document.
-2-
<PAGE>
VITESSE SEMICONDUCTOR CORPORATION
Vitesse is a leader in the design, development, manufacturing and marketing
of digital integrated circuits which are high-performance integrated circuits.
Integrated circuits are components necessary 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.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents we incorporate by reference may contain
certain forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. Statements in this prospectus that are not
historical facts are hereby identified as "forward-looking statements" for the
purpose of the safe harbor provided by Section 21E of the Exchange Act and
Section 27A of the Securities Act. Words such as "estimate," "project," "plan,"
"intend," "expect," "believe" and similar expressions are intended to identify
forward-looking statements. These forward-looking statements are found at
various places throughout this prospectus and the other documents incorporated
by reference, including, but not limited to, the Annual Report on Form 10-K for
the year ended September 30, 1999 of Vitesse, including any amendment. Readers
are cautioned not to place undue reliance on these forward-looking statements,
which speak only as of the date of this prospectus. We do not undertake any
obligation to publicly update or release any revisions to these forward-looking
statements to reflect events or circumstances after the date of this prospectus
or to reflect the occurrence of unanticipated events.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file reports, proxy statements and other information with the
Securities and Exchange Commission (the "SEC"), in accordance with the
Securities Exchange Act of 1934 (the "Exchange Act"). You may read and copy our
reports, proxy statements and other information filed by us at the public
reference facilities of the SEC in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
about the public reference rooms. Our reports, proxy statements and other
information filed with the SEC are available to the public over the Internet at
the SEC's World Wide Web site at http://www.sec.gov.
We have filed a registration statement on Form S-3 under the Securities
Act of 1933 (the "Securities Act") with respect to our common stock. This
prospectus, which forms a part of the registration statement, does not contain
all of the information included in the registration statement. Some information
is omitted and you should refer to the registration statement and its exhibits.
The SEC allows us to "incorporate by reference" the information we filed
with them, which means that we can disclose important information by referring
you to those documents. The information incorporated by reference is considered
to be a part of this prospectus, and information that we file later with the SEC
will automatically update and supersede this information. We incorporate
-3-
<PAGE>
by reference the documents listed below as well as any future filings made by
us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
until our offering is complete:
(a) Our Quarterly Report on Form 10-Q for the quarter ended December 31,
1999.
(b) Our Annual Report on Form 10-K for the fiscal year ended September
30, 1999.
(c) The description of our common stock contained in our Registration
Statement on Form 8-A filed with the SEC on November 8, 1991,
including any amendment or report filed for the purpose of updating
any such description.
You may request a copy of these filings, at no cost, by writing, calling or
e-mailing us at the following address:
Vitesse Semiconductor Corporation
741 Calle Plano
Camarillo, CA 93012
Attention: Investor Relations
(805) 388-3700
[email protected].
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 statements 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 1999, our two largest customers accounted for 18% and
14% of our total revenues and no other customers accounted for more than
-4-
<PAGE>
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 one or several 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;
. 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.
There Are Risks Associated With Recent and Future Acquisitions
-5-
<PAGE>
In fiscal 1999, we made three strategic acquisitions. These acquisitions
may result in the diversion of management's attention from the day-to-day
operations of the Company's business. Risks of making these acquisitions
include difficulties in the integration of acquired operations, products and
personnel. If we fail in our efforts to integrate recent and future
acquisitions, our business and operating results could be materially adversely
affected. In addition, acquisitions we have made or will make could result in
dilutive issuances of equity securities, substantial debt, and amortization
expenses related to goodwill and other intangible assets. We do not have any
binding obligations with respect to any particular acquisition; however our
management frequently evaluates strategic opportunities available. In the
future we may pursue additional acquisitions of complementary products,
technologies or businesses.
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 Conexant
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; and
. Internal integrated circuit manufacturing units of systems companies such as
Lucent Technologies, Siemens and Fujitsu.
Our current and prospective competitors include many large companies that have
substantially greater marketing, financial, technical and manufacturing
resources than we have.
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. 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.
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
-6-
<PAGE>
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 by third parties. 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
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
-7-
<PAGE>
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, Serano Systems Corporation in January 1999
and XaQti Corporation in July 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
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 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 replaced or upgraded other systems that were identified as non-
compliant. We have completely evaluated all the manufacturing equipment for
Year 2000 compliance, and have completed our remediation and testing procedures.
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.
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<PAGE>
To date, we have not experienced any year 2000 issues and 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 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. 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
We 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
stockholder, as described below. See "selling stockholder" and "Plan of
Distribution" described below.
SELLING STOCKHOLDERS
The selling stockholder listed acquired the Shares pursuant to the exercise
of a warrant obtained in connection with our acquisition of XaQti on July 16,
1999.
The following table sets forth, as of the date of this prospectus, the name
of the selling stockholder, the number of our shares that the selling
stockholder owns as of such date, the number of our shares owned by such selling
stockholder that may be offered for sale from time to time by this prospectus,
and the number of our shares to be held by such selling stockholder assuming the
sale of all of the shares offered hereby. The selling stockholder has not held
any position or office or had a material relationship with us or any of our
affiliates within the past three years other than as a result of the ownership
of our common stock.
We have agreed to indemnify the selling stockholder against certain
liabilities, including liabilities under the Securities Act of 1933. The selling
stockholders have agreed to indemnify us and certain related persons against
certain liabilities, including liabilities under the Securities Act of 1933.
We have agreed with the selling stockholder to keep the registration
statement of which this prospectus constitutes a part effective until the date
on which the selling stockholder is able to sell all shares offered pursuant to
this Registration Statement in a single three-month period in accordance with
Rule 144 under the Securities Act of 1933.
<TABLE>
<S> <C> <C> <C> <C> <C>
Shares
Beneficially
Owned Prior to Shares Shares Owned
Offering Percent Being Offered After Offering Percent
Name (1) (1) (2) (2) (2)
- ---------------------- ------------------- -------------- -------------------- -------------- -----------------
Imperial Bancorp 7,604 * 7,604 0 *
</TABLE>
_________________
*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
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<PAGE>
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.
PLAN OF DISTRIBUTION
On July 16, 1999, the Company entered into a registration rights agreement
with the selling stockholder, a copy of which is attached as an exhibit to the
registration statement of which this prospectus is a part. The registration
statement has been filed pursuant to the agreement. To the our 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 do we 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 stockholder. Subject to agreements between the selling stockholder and
us, the selling stockholder will act independently of us in making decisions
with respect to the timing, manner and size of each sale. The selling
stockholder plans 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
stockholder will sell any of the shares subject to this prospectus or that the
selling stockholder will not sell such shares in a private transaction or other
transaction that is exempt from the registration requirements of the Securities
Act. In effecting sales, broker-dealers engaged by the selling stockholder may
arrange for other broker-dealers to participate. Broker-dealers will receive
commissions or discounts from the Selling Stockholder in amounts to be
negotiated immediately prior to the sale. The Selling Stockholder 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.
In offering the shares, the selling stockholder and any broker-dealers who
execute sales for the selling stockholder 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 stockholder 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 stockholder has agreed not to sell any of the shares offered
hereby without first submitting a written notice of resale to us. We have in
turn agreed to notify the selling stockholder as soon as practicable, but in no
event more than ten business days after receipt of the notice of
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resale, whether we believe 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 we have notified the selling stockholder that this prospectus
is available to use, the selling stockholder will have up to 60 days within
which to sell shares of common stock subject to compliance with our policies
applicable to our executive officers, including trading windows.
We cannot assure you that the selling stockholder will sell any or all of
the shares offered hereby.
LEGAL MATTERS
Certain legal matters relating to 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 condensed consolidated financial statements of Vitesse Semiconductor
Corporation and subsidiaries as of, and for the three month period ending, and
the consolidated financial statements and the related financial statement
schedule of Vitesse Semiconductor Corporation and subsidiaries as of September
30, 1999, and for each of the years in the three-year period ended September 30,
1999, have been incorporated by reference herein and in the Registration
Statement in reliance upon the report of KPMG LLP, independent certified public
accountants, and upon the authority of said firm as experts in accounting and
auditing.
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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............................................................................... $ 110.00
----------
Legal fees and expenses............................................................................ $15,000.00
----------
Accounting fees and expenses....................................................................... $15,000.00
----------
Miscellaneous expenses............................................................................. $ 2,012.00
----------
Total........................................................................................... $32,122.00
==========
</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
4.1* Registration Rights Agreement by and among Vitesse Semiconductor
Corporation and the selling stockholder.
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).
II-1
<PAGE>
24.1 Power of Attorney (included on page II-4).
- -------------------------
* Previously filed on October 22, 1999 with the Securities and Exchange
Commission on Registration Statement Form S-3 (SEC File Number 333-89525)
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
II-2
<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.
II-3
<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 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 15th day of
February, 2000.
VITESSE SEMICONDUCTOR CORPORATION
By: /s/ Louis R. Tomasetta
--------------------------------
President And Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Louis R. Tomasetta and Eugene F. Hovanec,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-3, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said attorneys-in-
fact, or his substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on the
15th day of February 2000 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 officer)
Eugene F. Hovanec
/s/ James A. Cole Director
- ---------------------------------------------------------
James A. Cole
/s/ Pierre R. Lamond Chairman of the Board of Directors
- ---------------------------------------------------------
Pierre R. Lamond
</TABLE>
II-4
<PAGE>
<TABLE>
<S> <C>
/s/ John C. Lewis Director
- --------------------------------------------------------
John C. Lewis
/s/ Alex Daly Director
- --------------------------------------------------------
Alex Daly
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
----- -----------
<C> <S>
4.1* Registration Rights Agreement by and among Vitesse Semiconductor Corporation and the selling stockholder.
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>
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* Previously filed on October 22, 1999 with the Securities and Exchange
Commission on Registration Statement Form S-3 (SEC File Number 333-89525).
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF WILSON SONSINI GOODRICH & ROSATI]
February 15, 2000
Vitesse Semiconductor Corporation
Attention: Eugene Hovanec
741 Calle Plano
Camarillo, CA 93012
Re: S-3 Registration Statement
We have examined the Registration Statement on Form S-3 to be filed by you
with the Securities and Exchange Commission on February 15, 2000 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 7,604 shares of your common stock (the
"Shares"), all of which are authorized and have been previously issued to the
selling stockholders named therein in connection with the exercise of a warrant
issued in conjunction with the acquisition by you of XaQti Corporation.
The Shares are to be offered by the selling stockholders for sale to the
public as described in the Registration Statement. As your counsel in connection
with this transaction, we have examined the proceedings taken and proposed to be
taken in connection with the sale of the Shares. It is our opinion that, upon
completion of the proceedings being taken or contemplated to be taken prior to
the registration of the Shares, including such proceedings to be carried out in
accordance with the securities laws of the various states, where required, the
Shares, when sold in the manner referred to in the Registration Statement, will
be legally and 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 amendment thereto.
Sincerely,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
<PAGE>
Exhibit 23.1
Consent of Independent Accountants
----------------------------------
The Board of Directors
Vitesse Semiconductor Corporation:
We consent to the use of our reports incorporation by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
Los Angeles, California
February 9,2000
