As filed with the Securities and Exchange Commission on June 7, 2000
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 3674 77-0138960
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation Classification Code Number) Identification
or organization) Number)
741 Calle Plano
Camarillo, CA 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, CA 93012
(805) 388-3700
-----------------------
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-----------------------
Copies to:
Francis S. Currie
Davis Polk & Wardwell
1600 El Camino Real
Menlo Park, CA 94025
(650) 752-2000
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 this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
-----------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
===================================================================================================================
Proposed
Maximum Proposed Maximum
Title of Each Class Amount to be Offering Price Aggregate Amount of
of Securities to be Registered Registered Per Share (1) Offering Price (1) Registration Fee
--------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01
per share.......................... 4,546,869 shares $ 50.63 $230,207,977.47 $ 60,800
===================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457 under the Securities Act of 1933
based on the closing price for Vitesse Common Stock on May 31, 2000.
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>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and we are not soliciting offers to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JUNE 7, 2000
4,546,869 Shares
VITESSE SEMICONDUCTOR CORPORATION
Common Stock
-----------------------
All of the shares of common stock offered by this Prospectus are being
sold by 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 May 31, 2000, the last reported sales price
of our common stock on the Nasdaq National Market was [$50.63].
Investing in our common stock involves risks. See "Risk Factors" starting
on page 3.
We originally issued all of the shares offered by this prospectus pursuant
to an Agreement and Plan of Merger and Reorganization among Vitesse
Semiconductor Corporation, Holiday Acquisition Corp. and Orologic, Inc. dated
March 24, 2000, and we are registering the shares pursuant to that agreement.
The selling stockholders 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 June __, 2000.
<PAGE>
-----------------------
TABLE OF CONTENTS
-----------------------
Page
----
Vitesse Semiconductor Corporation............................................1
Special Note Regarding Forward-Looking Statements............................1
Where You Can Find Additional Information....................................1
Risk Factors.................................................................3
Use of Proceeds..............................................................7
Selling Stockholders.........................................................7
Plan of Distribution.........................................................8
Legal Matters................................................................8
Experts......................................................................9
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.
i
<PAGE>
VITESSE SEMICONDUCTOR CORPORATION
Vitesse is a leader in the design, development, manufacturing and
marketing of high-performance digital integrated circuits. Integrated circuits
are components necessary to all electronic systems. Our principal executive
offices 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 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 have
previously 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 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 Annual Report on Form 10-K for the fiscal year ended September 30,
1999.
(b) Our Quarterly Reports on Form 10-Q for the quarters ended December 31,
1999 and March 31, 2000.
(c) Our current reports on Form 8-K dated March 6, 2000, March 13, 2000,
March 27, 2000 (as amended on May 25, 2000 and on June 7, 2000), April 10, 2000
and April 19, 2000.
(d) 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.
<PAGE>
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].
2
<PAGE>
RISK FACTORS
You should carefully consider the following factors and other information
in this prospectus before deciding to purchase our common stock. Any of these
risks could have a material adverse effect on our business, financial
condition, results of operations and prospects, which could in turn have a
material adverse effect on the price of our common stock.
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. For the six months ended March 31, 2000, our three largest
customers accounted for 16%, 15% and 11% of our total revenues and no other
customer 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:
o The loss of major customers
o Variations, delays or cancellations of orders and shipments of our
products
o Reduction in the selling prices of our products
o Significant changes in the type and mix of products being sold
o Delays in introducing new products
o Design changes made by our customers
o Our failure to manufacture and ship products on time
o Changes in manufacturing capacity, the utilization of this capacity
and manufacturing yields
o Variations in product and process development costs
o Changes in inventory levels; and
o Expenses or operational disruptions resulting from acquisitions
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. In
future periods, we expect a substantial increase in amortization of intangible
assets resulting from recent acquisitions and interest expense resulting from
recent financing activities. These additional expenses will have a material and
adverse effect on our earnings in future periods. The occurrence of any of the
above mentioned 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. We
are faced with several risks in the successful operation of this facility as
well as in our overall production operations. We had only produced finished
four-inch wafers until 1998 and therefore 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. Further, some of our
products have been qualified for manufacture at only one of the two facilities.
Consequently, our failure to successfully operate the new facility could
severely damage financial results.
3
<PAGE>
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
In fiscal 1999, we made four strategic acquisitions. In March 2000, we
completed the acquisition of Orologic, Inc., in exchange for approximately 4.6
million shares of our common stock. In April 2000, we agreed to acquire SiTera,
Inc., for approximately $750 million of our common stock, and we expect to
complete the acquisition in the quarter ending June 30, 2000. 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 and
adversely affected.
In addition, acquisitions could result in dilutive issuances of equity
securities, substantial debt, and amortization expenses related to goodwill and
other intangible assets. In particular, in connection with our acquisition of
Orologic, Inc., we were required to expense in-process research and development
of $45.6 million in the three months ended March 31, 2000. Further, we expect
to amortize an aggregate of approximately $446 million of goodwill and other
identifiable intangible assets over the next 2 to 6 years. In addition, we
presently expect to account for our acquisition of SiTera, Inc., as a
pooling-of-interests. However, this accounting treatment is not a condition for
the completion of the acquisition. If we are required to account for the
acquisition of SiTera, Inc., under the purchase method of accounting, we would
be required to record additional acquisition related expenses and amortization
expense related to intangible assets acquired. Except as described above, we do
not currently have any binding obligations with respect to any particular
material 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:
o Gallium Arsenide fabrication operations of systems companies such as
Conexant and Fujitsu
o High-performance silicon integrated circuit manufacturers who use
Emitter Coupled Logic ("ECL"), Bipolar Complementary
Metal-Oxide-Semiconductor ("BiCMOS") or Complementary Metal-Oxide-
Semiconductor ("CMOS") technologies such as Hewlett Packard, Fujitsu,
Motorola, Lucent Technologies, Texas Instruments and Applied Micro
Circuits Corporation
o 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 do.
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.
4
<PAGE>
There is Risk Associated with Doing Business in Foreign Countries
In fiscal 1999, international sales accounted for 33% of our total
revenues, and we expect international sales to constitute a substantial portion
of our total revenues for the foreseeable future. International sales involve a
variety of risks and uncertainties, including risks related to:
o Reliance on strategic alliance partners
o Compliance with foreign regulatory requirements
o Variability of foreign economic conditions
o Changing restrictions imposed by U.S. export laws, and
o Competition from U.S. based companies that have firmly established
significant international operations
Failure to successfully address these risks and uncertainties could
adversely affect our international sales, which could in turn have a material
and adverse effect on our results of operations and financial condition.
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 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 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 a 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.
5
<PAGE>
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, Serano
Systems Corporation in January 1999, XaQti Corporation in July 1999, and
Orologic, Inc. in March 2000, and agreed to acquire SiTera, Inc. in April 2000,
and 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 of our key employees or the failure to hire additional skilled
technical personnel could have a material adverse effect on our business and
financial results.
6
<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
stockholders, as described below. See "Selling Stockholders" and "Plan of
Distribution" described below.
SELLING STOCKHOLDERS
The selling stockholders listed below acquired the Shares pursuant to an
Agreement and Plan of Merger and Reorganization among Vitesse Semiconductor
Corporation, Holiday Acquisition Corp. and Orologic, Inc. dated March 24, 2000.
We completed the acquisition of Orologic and issued the shares listed below on
March 31, 2000. The following is a list of officers of Orologic prior to the
acquisition who are Selling Stockholders:
Raif Onvural President and Chief Executive Officer
Ioannis Viniotis Vice President
Hwan-Hsin Jan Vice President
The following table sets forth, as of the date of this prospectus, the
names of the selling stockholders, the number of our shares that the selling
stockholders own as of such date, the number of our shares owned by selling
stockholders 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. Except as set forth above, the
selling stockholders have 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 keep the registration statement of which this prospectus
constitutes a part effective until March 31, 2001. We may amend or supplement
this prospectus from time to time to update the disclosure hereunder.
<TABLE>
Percent of Percent of
Shares Outstanding Shares Shares Owned Outstanding
Beneficially Vitesse Stock Offered After Offering Vitesse Stock
Name of Beneficial Owner Owned(1)(2) (3) (4) (4) (3)(4)
------------------------ ------------ ------------ ------- -------------- -------------
<S> <C> <C> <C> <C> <C>
Raif Onvural.......................... 958,353 * 958,353 -- --
Raif Onvural Irrevocable Trust........ 46,912 * 46,912 -- --
Ioannis Viniotis...................... 301,579 * 301,579 -- --
Hwan-Hsin Jan......................... 150,789 * 150,789 -- --
James E. Kristof...................... 2,178 * 2,178 -- --
Baldwin Venture Partners.............. 33,508 * 33,508 -- --
Jon Fjeld............................. 8,377 * 8,377 -- --
Robin O'Connor........................ 8,900 * 8,900 -- --
Stan Peter DiPretoro.................. 23,037 * 23,037 -- --
Uday Sankar Mudoi..................... 3,141 * 3,141 -- --
Hau Trinh............................. 9,703 * 9,703 -- --
James O'Connor........................ 14,834 * 14,834 -- --
Rajender Kumar Dayal.................. 7,417 * 7,417 -- --
Kim Parolari.......................... 2,966 * 2,966 -- --
Abdulhameed Manadath.................. 7,417 * 7,417 -- --
Paul Yanik............................ 8,158 * 8,158 -- --
Keith Glover.......................... 22,251 * 22,251 -- --
Leo Quilici........................... 4,188 * 4,188 -- --
Mayank Singhal........................ 2,617 * 2,617 -- --
Silicon Valley Bankshares............. 10,694 * 10,694 -- --
7
<PAGE>
Percent of Percent of
Shares Outstanding Shares Shares Owned Outstanding
Beneficially Vitesse Stock Offered After Offering Vitesse Stock
Name of Beneficial Owner Owned(1)(2) (3) (4) (4) (3)(4)
------------------------ ------------ ------------ ------- -------------- -------------
<S> <C> <C> <C> <C> <C>
Gray Ventures, Inc.................... 68,208 * 68,208 -- --
The North Carolina Enterprise Fund,
L.P. ............................... 1,726,202 1.0 1,726,202 -- --
Valley Capital Fund, LLC.............. 102,312 * 102,312 -- --
Galaxy Venture Partners, LLC.......... 170,521 * 170,521 -- --
Alliance Semiconductor Corporation.... 852,607 * 852,607 -- --
--------- --------- -- --
4,546,869 2.7 4,546,869 -- --
========= ========= == ==
</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 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) For each stockholder listed below, approximately 11.21% of the shares
listed are held in escrow for such stockholder's account by US Bank Trust,
National Association, as escrow agent pursuant to the Agreement and Plan
of Merger and Reorganization. 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 March 31, 2001.
(3) Based on the number of shares of Vitesse common stock outstanding as of
April 28, 2000.
(4) Assumes the sale of all shares offered hereby.
8
<PAGE>
PLAN OF DISTRIBUTION
On March 24, 2000, Vitesse entered into the Agreement and Plan of Merger
and Reorganization with Orologic, Inc., and certain other parties, a copy of
which is attached as an exhibit to the registration statement of which this
prospectus is a part. Vitesse completed the acquisition of Orologic and issued
the Shares registered for resale hereon on March 31, 2000. The registration
statement has been filed pursuant to the agreement. To our knowledge, the
selling stockholders have not entered into any agreements, arrangements or
understandings with any particular brokers or market makers 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 stockholders. Subject to the Agreement and Pan of Merger and
Reorganization, the selling stockholders will act independently of us 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. 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.
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 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.
Pursuant to the terms of the Agreement and Plan of Merger and
Reorganization, the selling stockholders may not sell any of the shares during
the period including the last two weeks of each fiscal quarter through and
until 24 hours from announcement of that quarter's operating results. The
selling stockholder also may not sell at such other times that the officers and
directors are restricted from selling in accordance with applicable policies of
Vitesse.
We cannot assure you that the selling stockholders 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 Davis Polk & Wardwell, Menlo Park, California.
EXPERTS
The consolidated financial statements and schedule of Vitesse
Semiconductor Corporation as of September 30, 1999 and 1998 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, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing. Ernst & Young LLP, independent auditors, have audited Orologic,
Inc.'s financial statements included in Vitesse Semiconductor Corporation's
Current Report on Form 8-K dated March 31, 2000, as
9
<PAGE>
amended on May 25, 2000 and on June 7, 2000, for the years ended December 31,
1999 and 1998, as set forth in their report (which contains an explanatory
paragraph describing conditions that raise substantial doubt about Orologic,
Inc.'s ability to continue as a going concern as described in Note 2 to the
financial statements), which is incorporated by reference in this prospectus
and elsewhere in the registration statement. Orologic, Inc.'s financial
statements are incorporated by reference in reliance on Ernst & Young LLP's
report, given on their authority as experts in accounting and auditing.
10
<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.
SEC registration fee..................................................$ 60,800
Legal fees and expenses...............................................$ 30,000
Accounting fees and expenses..........................................$ 30,000
Miscellaneous expenses................................................--------
$ 4,200
Total..........................................................$125,000
========
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.
Item 16. Exhibits.
2.1* Agreement and Plan of Merger and Reorganization among Vitesse
Semiconductor Corporation, Holiday Acquisition Corp. and Orologic,
Inc. dated March 24, 2000.
5.1 Opinion of Davis Polk & Wardwell.
23.1 Consent of KPMG LLP, Independent Accountants.
23.2 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (included on page II-3).
* Previously filed with the Securities and Exchange Commission on the
Registrant's Current Report on Form 8-K dated March 31, 2000.
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<PAGE>
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
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.
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<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 4th day of
June, 2000.
VITESSE SEMICONDUCTOR CORPORATION
By /s/ Eugeme F. Hova
-----------------------------------------
Name: Eugene F. Hovanec
Title: Chief Financial Officer
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
4th day of June 2000 in the capacities indicated.
Signature Title
--------- -----
/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
Eugene F. Hovanec and accounting 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
/s/ Vincent Chan Director
----------------------------------
Vincent Chan
II-3
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
------- -----------
2.1* Agreement and Plan of Merger and Reorganization among Vitesse
Semiconductor Corporation, Holiday Acquisition Corp. and Orologic,
Inc. dated March 24, 2000.
5.1 Opinion of Davis Polk & Wardwell.
23.1 Consent of KPMG LLP, Independent Accountants.
23.2 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (included on page II-3).
---------
* Previously filed with the Securities and Exchange Commission on the
Registrant's Current Report on Form 8-K dated March 31, 2000.
II-3
