<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY , 1999
REGISTRATION STATEMENT NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
LEVEL ONE COMMUNICATIONS, INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 33-0128224
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
9750 GOETHE ROAD
SACRAMENTO, CALIFORNIA 95827
(Address of Principal Executive Offices)
JOHN KEHOE
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
LEVEL ONE COMMUNICATIONS, INCORPORATED
9750 GOETHE ROAD
SACRAMENTO, CALIFORNIA 95827
(916) 855-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
COPIES TO:
GILLES S. ATTIA
WILLIAM W. BARKER
Graham & James LLP
400 Capitol Mall, Suite 2400
Sacramento, California 95814
Telephone: (916) 558-6700
Facsimile: (916) 441-6700
------------------------
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 to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
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 (the "Securities Act"), other than securities offered only in connection
with dividend or interest reinvestment plans, 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE(1) FEE(3)
<S> <C> <C> <C> <C>
Common Stock, $.001 par value per share...... 2,551,752 $37.50 $95,690,700 $26,602.01
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee required
by Section 6(b) of the Securities Act and computed pursuant to Rule 457(c)
under the Securities Act based upon the average of the high and low prices
of the Common Stock of the Registrant on January 12, 1999, as reported on
the Nasdaq National Market.
------------------------------
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, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SUCH SECTION 8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PROSPECTUS
[LOGO]
LEVEL ONE COMMUNICATIONS, INCORPORATED
2,551,752 shares of Common Stock
These shares of common stock are being sold by the selling stockholders
listed beginning on page 6. Level One will not receive any proceeds from the
sale of these shares.
Level One's common stock is traded on the Nasdaq National Market under the
symbol "LEVL." The last reported sale price on January , 1999 was $ per
share.
The common stock may be sold in transactions on the Nasdaq National Market
at market prices then prevailing, in negotiated transactions, or otherwise. See
"Plan of Distribution."
------------------------
THIS OFFERING INVOLVES MATERIAL RISKS.
SEE "RISK FACTORS" BEGINNING ON PAGE 3.
------------------------
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 January , 1999
<PAGE>
ABOUT LEVEL ONE
Level One designs and sells semiconductor chips in the semiconductor
industry. Our products are described as application specific standard integrated
circuits, or "ASSPs." Our products are used for high-speed analog and digital
signal transmission, to build and connect networks to systems that transport
information, within an office or around the world. Our products are used to
produce systems for local area networks, called "LANs," wide area networks,
called "WANs," and public telephone transmission networks. LANs, WANs, and
telephone transmission networks are what makes it possible for you to use
intranets, the Internet, and the World Wide Web. Level One combines its
strengths as an industry leader in analog and digital circuit design with its
communications systems expertise to produce solutions with increased
functionality.
Level One was incorporated in California in November 1985 and reincorporated
in Delaware in December 1998. Our executive offices are located at 9750 Goethe
Road, Sacramento, California 95827. Our telephone number is (916) 855-5000.
2
<PAGE>
RISK FACTORS
This prospectus and information incorporated by reference contain
forward-looking statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act. Our actual results could differ
materially from those anticipated in these forward-looking statements as a
result of different factors, including those discussed in "Risk Factors" or
incorporated by reference into this prospectus.
OUR RELIANCE ON THIRD PARTIES TO MANUFACTURE, ASSEMBLE AND TEST OUR PRODUCTS MAY
RESULT IN INCREASED COSTS OR DELAYS
Because we do not manufacture the silicon wafers used for our products, we
depend on our wafer suppliers to produce wafers in sufficient quantities to meet
customer demand at acceptable yields and at competitive prices. We also depend
on wafer suppliers to assemble, test and deliver wafers on time. In 1994 and
1995, our foundries reduced shipments without prior notice to us which resulted
in increased costs and delays and required us to transfer the production of some
products to a new foundry. Supply agreements with wafer suppliers cannot
eliminate this risk since our suppliers may not be able to produce enough wafers
to meet increased demand because of their own capacity limitations.
IN ORDER TO COMPETE EFFECTIVELY IN THE SEMICONDUCTOR INDUSTRY, WE NEED TO
CONTINUALLY DEVELOP NEW PRODUCTS THAT GAIN MARKET ACCEPTANCE
In the semiconductor industry, price competition is intense and product life
cycles are short. As a result, the average selling price for our products
decreases rapidly as new or competing products are introduced. To compensate, we
rely on obtaining yield improvements to reduce manufacturing costs and on
introducing new products which incorporate advanced features that result in
higher average selling prices. To the extent that we do not successfully develop
and timely introduce new products that achieve market acceptance, or to the
extent that we do not achieve sufficient cost reductions on existing products to
maintain margins, we may be adversely impacted.
To be successful, we must identify new product opportunities, stay ahead of
the competition so that their products will not render our products obsolete or
noncompetitive, and gain market acceptance of our products with target
customers. Because of the increasing complexity of our new products, we could
experience delays in completing development and introduction of new products
that could adversely impact our anticipated market share for new products. We
may be adversely affected by a failure in any of these areas.
OUR RECENT ACQUISITIONS PLACE A STRAIN ON OUR MANAGEMENT AND PERSONNEL RESOURCES
In July 1998, we acquired Acclaim Communications, Inc. In late November
1998, we acquired Jato Technologies, Inc. In order to successfully integrate
these two newly acquired businesses and successfully manage our existing
business, we will need to expand and refine our management and personnel
resources. We will also need to significantly increase our development, testing,
quality control, marketing, logistics and service capabilities. If we do not
effectively expand and deploy our resources to meet these needs, our business
may be adversely impacted.
ASSERTING AND DEFENDING INTELLECTUAL PROPERTY RIGHTS MAY IMPACT RESULTS OF
OPERATIONS REGARDLESS OF SUCCESS
In the semiconductor industry, competitors often assert intellectual
property infringement claims against one another. The success of our business
depends on our ability to successfully defend our intellectual property. This
litigation may have a material impact on our financial condition regardless of
whether or not we are successful. There is no assurance that we will be
successful in defending or asserting our intellectual property rights.
3
<PAGE>
EXCESS OR INSUFFICIENT INVENTORIES MAY ADVERSELY IMPACT OUR REVENUES AND
EARNINGS
If we produce excess or insufficient product inventories because we do not
accurately anticipate customer demand, our revenues and earnings could be
materially adversely impacted. This may happen for three reasons: First, some of
our customers place orders with long lead-times, which may be cancelled or
rescheduled without significant penalty. Second, our inventory risk increases
during periods of strong demand and/or restricted semiconductor capacity
because, based on our past experience, customers often over-order to assure
adequate supply and then may cancel or postpone orders without notice or
significant penalty if other product becomes available. Third, component
shortages from our customers' suppliers could cause our customers to cancel or
delay plans to incorporate our products into the design of target products,
resulting in the cancellation or delay of orders for our products.
THE COMPLETION OF OUR 4% CONVERTIBLE NOTE OFFERING HAS INCREASED OUR INTEREST
EXPENSE AND MAY LIMIT OUR ABILITY TO OBTAIN ADDITIONAL FINANCING FOR WORKING
CAPITAL, ACQUISITIONS OR OTHER PURPOSES
We incurred approximately $115 million in additional debt as a result of our
issuance of 4% Convertible Subordinated Notes due 2004 in September 1997. These
notes increased our ratio of long-term debt to total capitalization from 3.0% at
September 28, 1997, to 44.6% at September 27, 1998. This increased leverage has
increased our interest expense substantially. This increased leverage could
adversely affect our ability to obtain additional financing for working capital,
acquisitions or other purposes and could make us more vulnerable to economic
downturns and competitive pressures. This increased leverage could also affect
our liquidity, as a substantial portion of available cash from operations may
have to be applied to meet debt service requirements and, in the event of a cash
shortfall, we could be forced to reduce other expenditures and/or forego
potential acquisitions to be able to meet such requirements.
THE FAILURE OF OUR KEY SUPPLIERS TO BE YEAR 2000 COMPLIANT AND OUR FAILURE TO
DEVELOP YEAR 2000 CONTINGENCY PLANS COULD CAUSE US TO EXPERIENCE MANUFACTURING
INTERRUPTIONS OR DELAYS THAT COULD ADVERSELY IMPACT OUR BUSINESS, FINANCIAL
CONDITION OR RESULTS OF OPERATIONS
We are currently in the process of determining whether there are any
critical areas in our business that are not Year 2000 compliant. We have begun a
comprehensive project to prepare our computer systems for the Year 2000. We
presently estimate that the total cost of addressing our Year 2000 problems will
be approximately $100,000, of which approximately 5% has been expended to date.
This cost estimate was derived utilizing numerous assumptions, including the
assumption that we have already identified our most significant Year 2000
problems and that the assessment, remediation and contingency plans of our third
party suppliers will be fulfilled in a timely manner without significant
additional cost to us.
We believe that there is a remote possibility of an adverse impact on our
business due to problems with our internal systems or products. Our products
have no date specific functions or date dependencies and will operate according
to published specifications through the Year 2000 and dates into the 21st
century.
As part of our Year 2000 assessment, we are contacting key suppliers of
products and services to determine whether such suppliers' operations, products
and services are Year 2000 capable and/or to monitor their progress toward Year
2000 compliance. If our suppliers are not Year 2000 compliant, we could
experience manufacturing interruptions or shutdowns, decreased yields, quality
inconsistencies, delayed or inaccurate product testing, delivery delays, or
service interruptions. It is possible that one or more of these problems could
have a material adverse effect on our business, financial condition, or results
of operations.
There is also a risk because we have not yet fully developed Year 2000
contingency plans to address any failure of our Year 2000 assessment to identify
and remediate significant Year 2000 risks to our business operations.
Development of contingency plans is in progress and will continue during
calendar
4
<PAGE>
year 1999. Such plans could include accelerating replacement of affected
equipment or software, using back-up equipment and software, developing
temporary manual procedures to compensate for system deficiencies, and
identifying Year 2000 capable suppliers and service providers. There can be no
assurance that any such contingency plans would adequately address the Year 2000
problem. The failure to develop a successful contingency plan could result in
significant delays and inefficiency in our business which could have a material
adverse effect on our business, financial condition and results of operations.
5
<PAGE>
SELLING STOCKHOLDERS
The selling stockholders listed below received their shares of Level One
common stock in connection with the acquisition by Level One of Jato
Technologies, Inc., whereby the selling stockholders exchanged their shares of
Jato Technologies for shares of Level One.
Except as described in the table, none of the selling stockholders has held
any position or office or had a material relationship with Level One or any of
its affiliates within the past three years other than as a result of the
ownership of Level One's common stock.
<TABLE>
<CAPTION>
SHARES
SHARES BENEFICIALLY
SHARES WHICH ISSUABLE OWNED AFTER
SHARES MAY BE SOLD UPON OFFERING
BENEFICIALLY PURSUANT TO THIS EXERCISE OF ----------------
SELLING STOCKHOLDER OWNED(1) PROSPECTUS(2) OPTIONS(3) NUMBER PERCENT
- --------------------------------------------- ------------ ---------------- ------------ ------ -------
<S> <C> <C> <C> <C> <C>
Michael C. Gibson............................ 2,507 1,146 1,361 -- --
Brooks Ivey.................................. 26,569 21,025 5,544 -- --
Lawrence Rubin............................... 4,023 2,150 1,873 -- --
Robert O. Sharp.............................. 2,507 1,146 1,361 -- --
Walter Thirion............................... 1,627,371 1,627,371 -- -- --
Floyd Watson................................. 1,433 1,433 -- -- --
Michael Elswick.............................. 77,984 9,174 68,810 -- --
Peter Rauch.................................. 77,984 9,174 68,810 -- --
Kelley Guest................................. 26,280 22,936 3,344 -- --
MSD and SLD Charitable
Trusts Investing Partnership............... 802,782 802,782 -- -- --
Joel Rollins................................. 18,464 6,422 12,042 -- --
WSGR Retirement Plan
FBO David J. Segre......................... 3,207 3,207 -- -- --
WSGR Retirement Plan
FBO Kenneth M. Siegel...................... 3,207 3,207 -- -- --
WSGR Retirement Plan
FBO Aaron J. Alter......................... 3,207 3,207 -- -- --
Morton L. Topfer............................. 22,936 22,936 -- -- --
WS Investment Company 97B.................... 14,436 14,436 -- -- --
</TABLE>
- ------------------------
(1) 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 January 12, 1999, through the exercise of
any stock option or other right. Unless otherwise indicated in the
footnotes, each person has sole voting and investment power (or shares such
powers with his or her spouse) with respect to the shares shown as
beneficially owned.
(2) See "Plan of Distribution".
(3) Represents shares issuable upon exercise of options assumed by Level One
that are exerciseable within 60 days of January 12, 1999. If any of the
options are exercised before the end of the escrow period described in the
Agreement and Plan of Reorganization by and among Level One, Thunderhill
Acquisition Corp. and Jato Technologies, Inc., ten percent of the shares
issued upon such exercise will be deposited into the escrow fund in
accordance with the terms of the Agreement and Plan of Reorganization.
6
<PAGE>
PLAN OF DISTRIBUTION
The common stock covered by this prospectus may be offered and sold from
time to time by the selling stockholders, including in one or more of the
following transactions:
- on the Nasdaq National Market;
- in the over-the-counter market;
- in transactions other than on the Nasdaq National Market or in the
over-the-counter market;
- in connection with short sales;
- by pledge to secure debts and other obligations;
- in connection with the writing of options, in hedge transactions, and in
settlement of other transactions in standardized or over-the-counter
options;
- in a combination of any of the above transactions; or
- pursuant to Rule 144, assuming the availability of an exemption from
registration.
The selling stockholders may sell their shares at market prices prevailing
at the time of sale, at prices related to prevailing market prices, at
negotiated prices, or at fixed prices.
Broker-dealers that are used to sell shares will either receive discounts or
commissions from the selling stockholders, or will receive commissions from the
purchasers for whom they acted as agents.
The sale of common stock by the selling stockholders is subject to
compliance by the selling stockholders with certain contractual restrictions
with Level One including certain restrictions contained in a registration rights
agreement between Level One and the selling stockholders. There can be no
assurance that the selling stockholders will sell all or any of the common
stock.
Level One has agreed to keep this prospectus effective until such time as
each selling stockholder may sell all of their shares of common stock pursuant
to Rule 144 in a single three-month period. Level One intends to deregister any
of the common stock not sold by the selling stockholders immediately after that
date.
Level One and the selling stockholders have agreed to customary
indemnification obligations with respect to the sale of the common stock by use
of this prospectus.
LEGAL MATTERS
Graham & James LLP, Sacramento, California, has passed on the validity of
the shares.
EXPERTS
Arthur Andersen LLP, independent public accountants, has audited the
consolidated financial statements of Level One and its subsidiaries, as
indicated in the report of Arthur Andersen LLP, in reliance on its authority as
an expert in the fields of auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
Level One files reports with the SEC on a regular basis that contain
financial information and results of operations. You may read or copy any
document that Level One files with the SEC at the SEC's Public Reference Room at
450 5th Street, N.W., Washington, D.C. 20549. You may obtain information about
the Public Reference Room by calling the SEC for further information at
1-800-SEC-0330. Level One's SEC filings are also available at the SEC's web site
at www.sec.gov.
7
<PAGE>
INCORPORATION BY REFERENCE
To avoid repeating information in this prospectus that has already been
filed with the SEC, we have "incorporated by reference" the following SEC
filings of Level One (SEC File No. 22068). This information is considered a part
of this prospectus. Those documents are:
(1) Form 10-K for the year ended December 29, 1997;
(2) Form 10-Q for the quarters ended March 29, June 28 and September 27;
(3) Form 8-K, Form 8-K/A (Amendment No. 1), Form 8-K/A (Amendment No 2) and
Form 8-K/A (Amendment No. 3), filed with the SEC July 17, September 21,
October 7, and December 16, 1998;
(4) Form 8-K filed with the SEC on November 20, 1998;
(5) Form 8-K filed with the SEC on December 9, 1998;
(6) Description of common stock in Item 1 and 2 of Form 8-A filed on July 9,
1993; and
(7) All other documents subsequently filed under Sections 13(a), 13(c), 14
or 15(d).
We will send you a copy of these filings, at no cost to you, if you write or
call us:
Investor Relations
Level One Communications, Incorporated
9750 Goethe Road
Sacramento, California 95827
(916) 855-5000
8
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---
<S> <C>
About Level One................................... 2
Risk Factors...................................... 3
Selling Stockholders.............................. 6
Plan of Distribution.............................. 7
Legal Matters..................................... 7
Experts........................................... 7
</TABLE>
2,551,752 SHARES
LEVEL ONE COMMUNICATIONS,
INCORPORATED
COMMON STOCK
---------------------
PROSPECTUS
---------------------
JANUARY , 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Level One 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
SEC registration fee.
<TABLE>
<S> <C>
SEC registration fee.............................. $26,602
NASDAQ National Market listing fee................ $17,500
Legal fees and expenses........................... $15,000
Accounting fees and expenses...................... $10,000
Miscellaneous expenses............................ $20,000
-------
Total........................................... $89,102
-------
-------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Level One has provisions in its certificate of incorporation which eliminate
the liability of Level One's directors to Level One and its stockholders for
monetary damages to the fullest extent permissible under the General Corporation
Law of the State of Delaware and provisions which authorize Level One to
indemnify its directors, officers and employees to the fullest extent permitted
by law. Such limitation of liability does not affect the availability of
equitable remedies such as injunctive relief or rescission. Level One's bylaws
provide that Level One shall indemnify its directors and officers to the fullest
extent permitted by the General Corporation Law of the State of Delaware.
In addition, Level One has entered into agreements with its directors and
executive officers that will require Level One, among other things, to indemnify
them against certain liabilities that may arise by reason of their status of
service as directors or executive officers to the fullest extent not prohibited
by law.
The indemnification provisions in the bylaws and the indemnification
agreements entered into between Level One and its directors and officers may be
sufficiently broad to permit indemnification of Level One's directors and
officers for liabilities arising under the Securities Act.
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
2.1* Agreement and Plan of Reorganization by and between Level One, Thunderhill
Acquisition Corp. and Jato Technologies, Inc.
4.1** Certificate of Incorporation of Level One.
4.2** Bylaws of Level One.
4.3*** Registration Rights Agreement by and among Level One and the former stockholders of
Jato Technologies, Inc.
5.1 Opinion of Graham & James LLP.
23.1+ Consent of Arthur Andersen LLP, Independent Public Accountants.
23.3 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (included on page II-4).
</TABLE>
- ------------------------
* Filed with Level One's Form 8-K filed with the Commission on December 9,
1998, and incorporated by reference herein (the "Form 8-K").
II-1
<PAGE>
** Incorporated by reference to Level One's Registration Statement on Form S-8
filed with the Commission on January , 1999.
*** Included as an exhibit to the Agreement and Plan of Reorganization filed
with the Form 8-K and incorporated by reference herein.
+ To be filed by Amendment.
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:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low
or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
(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
II-2
<PAGE>
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.
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 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 Sacramento, State of California, on this 19th day of
January, 1999.
LEVEL ONE COMMUNICATIONS,
INCORPORATED
By: /s/ JOHN KEHOE
-----------------------------------
John Kehoe
Senior Vice President
and Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Robert S.
Pepper and John Kehoe, and each of them, as attorneys-in-fact, each with the
power of substitution, for him or her in any and all capacities, to sign any
amendment to this Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting to said attorneys-in-fact, and each of them, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on the
19th day of January, 1999, in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ---------------------------------------------------------
<C> <S>
/s/ ROBERT S. PEPPER President, Chief Executive Officer and Director
------------------------------------------- (Principal Executive Officer)
Robert S. Pepper, Ph.D.
/s/ JOHN KEHOE Senior Vice President and Chief Financial Officer
------------------------------------------- (Principal Financial OFficer)
John Kehoe
/s/ THOMAS J. CONNERS Director
-------------------------------------------
Thomas J. Conners
/s/ PAUL GRAY Director
-------------------------------------------
Paul Gray, Ph.D.
/s/ MARTIN JURICK Director
-------------------------------------------
Martin Jurick
/s/ HENRY KRESSEL Director
-------------------------------------------
Henry Kressel
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ---------------------------------------------------------
<C> <S>
/s/ JOSEPH P. LANDY Director
-------------------------------------------
Joseph P. Landy
/s/ KENNETH A. PICKAR Director
-------------------------------------------
Kenneth A. Pickar, Ph.D.
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ---------- ------------------------------------------------------------------------------------------------------
<S> <C>
2.1* Agreement and Plan of Reorganization by and between Level One, Thunderhill Acquisition Corp. and Jato
Technologies, Inc....................................................................................
4.1** Certificate of Incorporation of Level One.............................................................
4.2** Bylaws of Level One...................................................................................
4.3*** Registration Rights Agreement, by and among Level One and the former stockholders of Jato Technologies
Inc..................................................................................................
5.1 Opinion of Graham & James LLP.........................................................................
23.1+ Consent of Arthur Andersen LLP, Independent Public Accountants........................................
23.3 Consent of Counsel (included in Exhibit 5.1)..........................................................
24.1 Power of Attorney (included on page II-4).............................................................
</TABLE>
- ------------------------
* Filed with the Registrant's Form 8-K filed with the Commission on December
9, 1998, and incorporated by reference herein (the "Form 8-K").
** Incorporated by reference to Level One's Registration Statement on Form S-8
filed with the Commission on January , 1999.
*** Included as an exhibit to the Agreement and Plan of Reorganization filed
with the Form 8-K and incorporated by reference herein.
+ To be filed by Amendment.
<PAGE>
EXHIBIT 5.1
[Graham & James LLP Letterhead]
January 19, 1999
Level One Communications, Incorporated
9750 Goethe Road
Sacramento, California 95827
RE: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 to be filed by you
with the Securities and Exchange Commission on or about the date hereof (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of up to 2,551,752 shares of your Common
Stock, $.001 par value per share (the "Shares"). All of the Shares are issued
and outstanding and may be offered for sale for the benefit of the selling
stockholders named in the Registration Statement. We understand that the Shares
are to be sold from time to time in the over-the-counter-market at prevailing
prices or as otherwise described in the section entitled "Plan of Distribution"
in the Registration Statement. As your legal counsel, we have also examined the
proceedings taken by you in connection with the issuance of the Shares. We
assume that the consideration received by you in connection with each issuance
of Shares will include an amount in the form of cash, services rendered or
property that exceeds the greater of (i) the aggregate par value of such Shares
or (ii) the portion of such consideration determined by the Company's Board of
Directors to be "capital" for purposes of the Delaware General Corporation Law.
It is our opinion that the Shares are validly issued, fully paid and
non-assessable. We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement, including the Prospectus constituting a
part thereof, and any amendments thereto.
Very truly yours,
/s/ Graham & James LLP
GRAHAM & JAMES LLP
