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As filed with the Securities and Exchange Commission on January 12, 1998
Registration No. 333-40897
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
AMENDMENT NO. 1 TO
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TRANSWITCH CORPORATION
(Exact name of Registrant as specified in its charter)
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DELAWARE 3674 06-1236189
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification No.)
incorporation or
organization)
Three Enterprise Drive
Shelton, Connecticut 06484
(203) 929-8810
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
DR. SANTANU DAS, President and Chief Executive Officer
TranSwitch Corporation
Three Enterprise Drive
Shelton, Connecticut 06484
(203) 929-8810
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Timothy C. Maguire, Esq.
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being 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, 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. [ ]
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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. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following. [ ]
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 Section 8(a), may
determine.
In accordance with Rule 416 under the Securities Act, this Registration
Statement also covers such indeterminate number of additional shares of the
Registrant's Common Stock, $.001 par value, as may become issuable upon
conversion of the Registrant's Series A Convertible Preferred Stock, $.01 par
value per share (the "Series A Stock"), to prevent dilution resulting from stock
splits, stock dividends or similar transactions or by reason of changes in
conversion price of the Series A Stock in accordance with the terms thereof.
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PROSPECTUS
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TRANSWITCH CORPORATION
1,600,000 Shares of Common Stock
($.001 par value)
All of the shares of Common Stock, par value $.001 per share ("Common
Stock"), of TranSwitch Corporation (the "Company") offered hereby (the "Shares")
will be sold from time to time by certain stockholders of the Company (the
"Selling Stockholders"). The Shares consist of 1,600,000 of Common Stock
issuable upon the conversion of 14,500 shares of the Company's Series A
Convertible Preferred Stock, $.01 par value per share (the "Series A Stock").
The Company will not receive any of the proceeds from the sale of the Shares
offered hereby. All brokerage commissions and other similar expenses incurred
by the Selling Stockholders will be borne by the Selling Stockholders. Other
expenses of the offering, estimated at $25,000, will be borne by the Company.
The sale of the Shares by the Selling Stockholders may be effected from
time to time in one or more transactions (which may involve block transactions)
on the Nasdaq National Market (the "Nasdaq") or in the over-the-counter market,
in negotiated transactions or by a combination of such methods of sale, at fixed
prices, at market prices prevailing at the time of the sale, at prices related
to the prevailing market prices or at negotiated prices. The Selling
Stockholders may effect such transactions with or through one or more broker-
dealers, which may act as agent or principal. The Selling Stockholders and/or
any broker-dealer effecting the sales may be deemed to be an "underwriter"
within the meaning of Section 2(11) of the Securities Act of 1933, as amended
(the "Securities Act"), and any commissions received by the broker-dealer and
any profit on the resale of shares as principal may be deemed to be underwriting
discounts and commissions under the Securities Act. The Selling Stockholders
may transfer the Shares and the Series A Stock to other persons who may, in
turn, resell Shares in the manner described above. Additionally, the Selling
Stockholders may pledge or make gifts of the Shares, and the Shares may also be
sold by the pledgees or transferees. The Selling Stockholders may also transfer
the Shares pursuant to Rule 144 under the Securities Act, whether or not the
Registration Statement of which this Prospectus forms a part is effective at the
time of any such transfer. The Company has agreed to indemnify the Selling
Stockholders against certain liabilities, including certain liabilities under
the Securities Act, and to the extent any indemnification by an indemnifying
party is prohibited or limited by law, the Company has agreed to make the
maximum contribution with respect to any amounts for which it would otherwise be
liable under such indemnification provision to the fullest extent permitted by
law. See "Plan of Distribution."
The Common Stock is currently traded on the Nasdaq National Market under
the symbol "TXCC." On January 8, 1998, the closing bid price of the Common
Stock, as reported by the Nasdaq National Market, was $8.25 per share.
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THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 5.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this Prospectus is January 12, 1998
AVAILABLE INFORMATION
TranSwitch Corporation, a Delaware corporation, is subject to the
informational requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and in accordance therewith, files reports and other
information with the Securities and Exchange Commission (the "Commission").
Reports and other information filed by the Company with the Commission pursuant
to the informational requirements of the Exchange Act may be inspected and
copied at the public reference facilities maintained by the Commission at
Judiciary Plaza, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and
at the following Regional Offices of the Commission: Seven World Trade Center,
Suite 1300, New York, New York 10048; and 500 West Madison Avenue, Suite 1400,
Chicago, Illinois 60661. Copies of such material may be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Commission also maintains a
Web site (at http://www.sec.gov) that contains reports, proxy and information
statements and other information regarding the Company. The Company's Common
Stock is traded on the Nasdaq National Market, and such reports and other
information can be inspected at the offices of Nasdaq Operations, 1735 K Street,
N.W., Washington, D.C. 20006.
The Company has filed with the Commission in Washington, D.C. a
Registration Statement on Form S-3 under the Securities Act with respect to the
securities offered hereby. As permitted by the rules and regulations of the
Commission, this Prospectus omits certain information contained in the
Registration Statement. For further information with respect to the Company and
the securities offered hereby, reference is hereby made to the Registration
Statement and to the exhibits and schedules filed therewith. Statements
contained in this Prospectus regarding the contents of any documents filed with,
or incorporated by reference in, the Registration Statement as exhibits are not
necessarily complete, and each such statement is qualified in all respects by
reference to the copy of the applicable documents filed with the Commission.
The Registration Statement, including the exhibits and schedules thereto, may be
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inspected at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, and copies of all or any part
thereof may be obtained from such office upon payment of the prescribed fees.
INFORMATION INCORPORATED BY REFERENCE
The following documents heretofore filed by the Company with the Commission
(File No. 0-25996) pursuant to the Exchange Act are incorporated by reference in
this Prospectus:
(1) Annual Report on Form 10-K for the fiscal year ended December 31, 1996;
(2) Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
1997, June 30, 1997 and September 30, 1997;
(3) The Company's Proxy Statement for its Annual Meeting of Stockholders,
which was held on May 29, 1997;
(4) All other documents filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the Annual
Report referred to in (1) above; and
(5) The "Description of Capital Stock" contained in the Company's
Registration Statement No. 33-91694 on Form S-1, as amended.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of this offering shall be deemed to be incorporated by reference
in this Prospectus and to be a part hereof from the date of filing such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein, or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
Copies of the documents incorporated herein by reference (excluding exhibits
unless such exhibits are specifically incorporated by reference into such
documents) may be obtained upon written or oral request without charge by
persons, including beneficial owners, to whom this Prospectus is delivered.
Request should be made to Mr. Michael C. McCoy, Controller, TranSwitch
Corporation, Three Enterprise Drive, Shelton, Connecticut 06484 (Telephone 203-
929-8810).
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PROSPECTUS SUMMARY
The following summary information is qualified in its entirety by the more
detailed information appearing elsewhere in this Prospectus or incorporated
herein by reference and the financial statements which are incorporated herein
by reference.
The Company............... TranSwitch Corporation (the "Company") develops and
markets high-speed semiconductor solutions to
telecommunications and data communications original
equipment manufacturers.
Risk Factors.............. The offering involves substantial risk. See "Risk
Factors."
Securities Offered........ 1,600,000 shares of the Company's Common Stock, par
value $.001 per share.
Offering Price............ All or part of the Shares offered hereby may be sold
from time to time in amounts and on terms to be
determined by the Selling Stockholders at the time
of sale.
Use of Proceeds........... The Company will receive no part of the proceeds
from the sale of any of the Shares by the Selling
Stockholders.
Selling Stockholders...... The Shares being offered hereby are being offered
for the account of the Selling Stockholders
specified under the caption "Selling Stockholders."
Stock Market Symbols: Nasdaq National Market
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Common Stock TXCC
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RISK FACTORS
OPERATING LOSSES
The Company has largely not been profitable since its inception. As of
September 30, 1997, the Company had an accumulated deficit of $30.4 million.
For 1996 and the first three quarters of 1997, the Company incurred net losses
of approximately $10.1 million and $2.3 million, respectively. The Company
expects to continue to incur losses at least through 1997, and there can be no
assurance that the Company will achieve or maintain profitability in the future.
FACTORS AFFECTING OPERATING RESULTS
The Company's quarterly and annual operating results are affected by a wide
variety of factors that could materially and adversely affect revenues and
profitability, including competitive pressures on selling prices; the timing and
cancellation of customer orders; the timing and provision of pricing protections
and returns from certain distributors; availability of foundry capacity and raw
materials; fluctuations in yields; changes in product mix; the Company's ability
to introduce new products and technologies on a timely basis; introduction of
products and technologies by the Company's competitors; market acceptance of the
Company's and its customers' products; the level of orders received which can be
shipped in a quarter; the amount and timing of recognition of non-recurring
engineering revenue; the timing of investments in research and development,
including tooling expenses associated with product development and pre-
production; and whether the Company's customers buy from a distributor or
directly from the Company. Sudden shortages of raw materials or production
capacity constraints can lead producers to allocate available supplies or
capacity to customers with resources greater than those of the Company, which
could interrupt the Company's ability to meet its production obligations.
Historically, average selling prices in the semiconductor industry have
decreased over the life of a product, and as a result, the average selling
prices of the Company's products may be subject to significant pricing pressures
in the future. The Company's business is characterized by short-term orders and
shipment schedules, and customer orders typically can be canceled or rescheduled
without significant penalty to the customer. Due to the absence of substantial
noncancellable backlog, the Company typically plans its production and inventory
levels based on internal forecasts of customer demand, which are highly
unpredictable and can fluctuate substantially. Because the Company is
continuing to increase its operating expenses for personnel and new product
development and for inventory in anticipation of increasing sales levels,
operating results would be adversely affected if increased sales are not
achieved. In addition, the Company is limited in its ability to reduce costs
quickly in response to any revenue shortfalls. From time to time, in response
to anticipated long lead times to obtain inventory and materials from its
foundries, the Company may order in advance of anticipated customer demand,
which might result in excess inventory levels if expected orders fail to
materialize or other factors render the customer's product less marketable. As
a result of the foregoing or other factors, the Company may experience material
fluctuations in future operating
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results on a quarterly or annual basis which could materially and adversely
affect its business, financial condition and operating results.
DEPENDENCE ON VERY LARGE SCALE INTEGRATED CIRCUIT ("VLSI") FABRICATION
FACILITIES
The Company does not own or operate a VLSI fabrication facility, and all of
its semiconductor device requirements are currently supplied by four outside
foundries. There are significant risks associated with the Company's reliance
on outside foundries, including the lack of assured wafer supply and control
over delivery schedules, the unavailability of or delays in obtaining access to
key process technologies and limited control over quality assurance,
manufacturing yields and production costs. In addition, the manufacture of
integrated circuits is a highly complex and technology demanding process.
Although the Company has undertaken to diversify its sources of semiconductor
device supply and works closely with its foundries to minimize the likelihood of
reduced manufacturing yields, the Company's foundries have from time to time
experienced lower than anticipated manufacturing yields, particularly in
connection with the introduction of new products and the installation and start-
up of new process technologies. Such reduced yields have at times adversely
affected the Company's operating results. There can be no assurance that the
Company's foundries will not experience lower than expected manufacturing yields
in the future, which could materially and adversely affect the Company's
business, financial condition and operating results.
The Company purchases semiconductor devices from outside foundries pursuant
to purchase orders and does not have a guaranteed level of production capacity
at any of its foundries. The Company provides the foundries with rolling
forecasts of its production requirements; however, the ability of each foundry
to provide wafers to the Company is limited by the foundry's available capacity.
Therefore, the Company's foundry suppliers could choose to prioritize capacity
for other customers or uses or reduce or eliminate deliveries to the Company on
short notice. Accordingly, there is no assurance that the Company's foundries
will allocate sufficient capacity to satisfy the Company's requirements. In
addition, the Company has been, and expects in the future to be, particularly
dependent upon a limited number of foundries for its VLSI device requirements.
In particular, as of the date of this filing, all of the Company's BiCMOS
devices were manufactured by a single foundry supplier. Any sudden demand for
an increased amount of semiconductor devices or sudden reduction or elimination
of any existing source or sources of semiconductor devices could result in a
material delay in the shipment of the Company's products. There can be no
assurance that material disruptions in supply, which have occurred periodically
in the past, will not occur in the future. In the event of any such disruption,
if the Company were unable to qualify alternative manufacturing sources for
existing or new products in a timely manner or if such sources were unable to
produce VLSI devices with acceptable manufacturing yields, the Company's
business, financial condition and operating results would be materially and
adversely affected.
DEPENDENCE ON TELECOMMUNICATIONS AND DATA COMMUNICATIONS MARKETS
Virtually all of the Company's product revenues are derived from sales of
products for telecommunications and data communications applications. These
markets are characterized by
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intense competition, rapid technological change and short product life cycles.
In addition, the telecommunications and data communications equipment markets
have undergone a period of rapid growth and consolidation in the last few years.
The Company's business, financial condition and operating results would be
materially and adversely affected in the event of a significant slowdown in
these markets.
Products for telecommunications and data communications applications are
based on industry standards, which are continually evolving. The emergence of
new industry standards could render the Company's products unmarketable or
obsolete. There can be no assurance that the Company will be able to
successfully develop and introduce new products based on emerging industry
standards and the failure of the Company to introduce such products could
materially and adversely affect the Company's business, financial condition and
operating results. In addition, a substantial majority of the Company's revenues
has been, and will continue to be, derived from sales of Synchronous Optical
Network/Synchronous Digital Hierarchy ("SONET/SDH") and Asynchronous Transfer
Mode ("ATM")-based products. There can be no assurance that SONET/SDH and ATM-
based products will achieve a significant degree of market acceptance and that
the Company's customers will be able to assimilate the Company's SONET/SDH and
ATM-based products. Failure of SONET/SDH and ATM-based products to achieve
market acceptance or of the Company's customers to assimilate the Company's
SONET/SDH and ATM-based products would materially and adversely affect the
Company's business, financial condition and operating results.
DEPENDENCE ON NEW PRODUCTS; RISK OF PRODUCT DEVELOPMENT DELAYS
The Company's success depends upon its ability to develop new VLSI devices
for existing and new markets, to introduce such products in a timely manner and
to have such products selected for design into new products of leading systems
manufacturers. The development of these new devices is highly complex and from
time to time the Company has experienced delays in completing the development of
new products. Successful product development and introduction depends on a
number of factors, including accurate new product definition, timely completion
and introduction of new product designs, availability of foundry capacity,
achievement of manufacturing yields and market acceptance of the Company's and
its customers' products. The Company's success also depends upon its ability to
accurately specify and certify the conformance of its products to applicable
standards and to develop its products in accordance with customer requirements.
There can be no assurance that the Company will be able to adjust to changing
market conditions as quickly and cost-effectively as necessary to compete
successfully. Furthermore, there can be no assurance that the Company will be
able to introduce new products in a timely and cost-effective manner or in
sufficient quantities to meet customer demand or that such products will achieve
market acceptance. In addition, there can be no assurance that the electronic
systems manufactured by the Company's customers will be introduced in a timely
manner or that such systems will achieve market acceptance. The Company's or
its customers' failure to develop and introduce new products successfully and in
a timely manner would materially and adversely affect the Company's business,
financial condition and operating results.
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The Company's new products are generally incorporated into a customer's
products or systems at the design stage. However, customer decisions to use the
Company's products (design wins), which can often require significant
expenditures by the Company without any assurance of success, often precede the
generation of volume sales, if any, by a year or more. Moreover, the value of
any design win will largely depend upon the commercial success of the customer's
product and on the extent to which the design of the customer's electronic
system accommodates components manufactured by the Company's competitors. There
can be no assurance that the Company will continue to achieve design wins.
CUSTOMER CONCENTRATION
Historically, a relatively small number of customers have accounted for a
significant portion of the Company's total revenues in any particular period.
The Company has no long-term volume purchase commitments from any of its major
customers. For the nine months ended September 30, 1997, Insight Electronics,
Inc. (a distributor selling to various end users, none of which comprise more
than 10% of the Company's total revenues) and Tellabs Operations, Inc. accounted
for 41% and 16% of total revenues, respectively. In 1996 ECI Telecom Ltd,
Insight Electronics, Inc. and Tellabs Operations, Inc. accounted for 22%, 16%
and 14% of total revenues, respectively. In 1995, Tellabs Operations, Inc. and
Insight Electronics, Inc. accounted for 17% and 16% of total revenues,
respectively. In 1994, ECI Telecom Ltd. accounted for approximately 16% of total
revenues. The Company anticipates that sales of its products to relatively few
customers will continue to account for a significant portion of its total
revenues. The reduction, delay or cancellation of orders from one or more
significant customers could materially and adversely affect the Company's
business, financial condition and operating results. In addition, since the
Company's products are often sole sources to its customers, the Company's
business, financial condition and operating results could be materially and
adversely affected if one or more of its major customers were to develop other
sources of supply. Furthermore, in view of the relatively short product life
cycles in the telecommunications and data communications equipment markets, the
Company's business, financial condition and operating results would be
materially and adversely affected if one or more of its significant customers
were to select devices manufactured by one of the Company's competitors for
inclusion in future product generations. There can be no assurance that the
Company's current customers will continue to place orders with the Company, that
orders by existing customers will continue at the levels of previous periods or
that the Company will be able to obtain orders from new customers. Loss of one
or more of the Company's current customers or a disruption in the Company's
sales and distribution channels could materially and adversely affect the
Company's business, financial condition and operating results.
PATENTS, LICENSES AND INTELLECTUAL PROPERTY CLAIMS
The Company's success depends in part on its ability to obtain patents and
licenses and to preserve other intellectual property rights covering its
products and development and testing tools. To that end, the Company has
obtained certain domestic and foreign patents and intends to continue to seek
patents on its inventions when appropriate. The process of seeking patent
protection can be time consuming and expensive and there can be no assurance
that patents will issue from currently pending or future applications or that
the Company's existing patents or any new patents that may be issued will be
sufficient in scope or strength to provide meaningful protection or any
commercial advantage to the Company. There can be no assurance that foreign
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intellectual property laws will protect the Company's intellectual property
rights. Furthermore, there can be no assurance that others will not
independently develop similar products, duplicate the Company's products or
design around any patents issued to the Company. The Company may be subject to
or may initiate interference proceedings in the patent office, which can demand
significant financial and management resources. From time to time, the Company
may be notified that it is infringing certain patents and other intellectual
property rights of others. As claims arise, the Company evaluates their merits.
No assurance can be given that licenses will be obtainable on acceptable terms,
that damages for infringement will not be assessed or that litigation will not
occur. Litigation, which could result in substantial cost to and diversion of
resources of the Company, may be necessary to enforce patents or other
intellectual property rights of the Company or to defend the Company against
claimed infringement of the rights of others. The failure to obtain necessary
licenses or other rights or litigation arising out of any such claims could have
a material adverse effect on the Company's business, financial condition and
operating results.
COMPETITION
The semiconductor industry is intensely competitive and is characterized by
price erosion, rapid technological change, shortage in fabrication capacity,
heightened international competition in many markets, and unforeseen
manufacturing yield problems. The telecommunications and data communications
industries, which are the primary target markets for the Company, are also
becoming intensely competitive because of deregulation and heightened
international competition. This is likely to result in pricing pressures on the
Company's products, potentially affecting its margins.
TranSwitch believes that the principal bases of competition include product
definition, product design, test capabilities, reliability, functionality, time-
to-market, reputation and price. The ability of the Company to compete
successfully in the rapidly evolving area of high performance integrated circuit
technology depends on factors both within and outside its control, including
success in designing and subcontracting the manufacture of new products that
implement new technologies, protection of Company products by effective
utilization of intellectual property laws, product quality, reliability, price,
efficiency of production, the pace at which customers incorporate the Company's
integrated circuits into their products, success of competitors' products and
general economic conditions.
The Company's competition consists of suppliers from the United States as
well as other countries, including competition from semiconductor divisions of
vertically integrated companies like AT&T, IBM Corporation, NEC Corporation and
Siemens Corporation. New entrants are also likely to attempt to obtain a share
of the market for the Company's current and future products. Certain of the
Company's competitors are more established, benefit from greater market
recognition, and have substantially greater financial, development,
manufacturing, and marketing resources than the Company.
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FOREIGN SALES
For the nine months ended September 30, 1997 and the fiscal years ended
December 31, 1996 and 1995, foreign sales accounted for approximately 28%, 46%
and 38%, respectively, of the Company's total revenues. Specifically, sales to
Europe and the Middle East accounted for $2.7 million, $6.3 million and $3.1
million, respectively; sales to the Far East accounted for $1.9 million, $2.0
million and $1.8 million, respectively; and sales to Canada and other foreign
regions accounted for $534,000, $592,000 and $1.6 million, respectively. The
Company anticipates that foreign sales will continue to account for a
significant percentage of its revenues. A significant portion of the Company's
total revenues will therefore be subject to risks associated with foreign sales,
including unexpected changes in legal and regulatory requirements and policy
changes affecting the telecommunications and data communications markets,
changes in tariffs, exchange rates and other barriers, political and economic
instability, difficulties in accounts receivable collection, difficulties in
managing distributors or representatives, difficulties in staffing and managing
foreign operations, difficulties in protecting the Company's intellectual
property overseas, seasonality of sales and potentially adverse tax
consequences. In particular, sales to Korea and other Pacific Rim countries may
be impacted by the current financial instability plaguing these nations. The
currency fluctuations and difficulty of obtaining loans from unstable banking
and other financial institutions in the Far East may cause the Company's
customers in that region to delay or reduce their orders. Although the Company's
sales to date have been denominated in United States dollars, the value of the
United States dollar in relation to foreign currencies may also adversely affect
the Company's sales to foreign customers. To the extent that the Company expands
its international operations or changes its pricing practices to denominate
prices in foreign currencies, the Company will be exposed to increased risks of
currency fluctuations.
THE SEMICONDUCTOR INDUSTRY
The Company provides semiconductor devices to the telecommunications and
data communications markets. The semiconductor industry is highly cyclical and
has been subject to significant economic downturns at various times,
characterized by diminished product demand, accelerated erosion of average
selling prices and production over-capacity. Although the semiconductor
industry has in recent periods experienced increased demand and production
capacity constraints, there can be no assurance as to how long this condition
will continue. The Company may experience substantial period-to-period
fluctuations in future operating results due to general semiconductor industry
conditions, overall economic conditions, or other factors.
DEPENDENCE ON KEY PERSONNEL
The Company's success depends to a significant extent upon the continued
service of its executive officers, including Dr. Santanu Das, President and
Chief Executive Officer, and other key management and technical personnel,
including Daniel C. Upp, Vice President, Technology Strategy, and on its ability
to continue to attract, retain and motivate qualified personnel, such as
experienced mixed-signal circuit designers and systems applications engineers.
the competition for such employees is intense. The loss of the services of one
or more of the Company's design engineers, executive officers or other key
personnel or the Company's inability to recruit replacements for such personnel
or to otherwise attract, retain and motivate qualified personnel could have a
material adverse effect on the Company's business, financial condition and
operating results. To help retain the continued services of Dr. Das and Mr. Upp,
the Company was entered into a Severance Agreement with each of them, providing
for severance payments upon the occurrence of a termination without cause or
upon resignation prompted by a significant reduction in the nature or scope of
employment. The Company has also entered into Executive Agreements with Dr. Das,
Mr. Upp and other key personnel, which provide for severance payments in the
event of a termination without cause after a change in control of the Company.
The Company has no long-term employment contracts with any of its employees.
TRANSITION TO NEW PROCESS TECHNOLOGIES
The Company's future success is also dependent upon its ability to develop
products that utilize new process technologies, to introduce them to the
marketplace ahead of competitors and
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to have them selected to be designed into products of leading systems
manufacturers. Semiconductor design and process methodologies are subject to
rapid technological change, and require large expenditures for research and
development. Most of the Company's products are currently manufactured using a
0.8 or O.5 micron CMOS process or a 1.0 micron BiCMOS process. The Company
continuously evaluates the benefits, on a product-by-product basis, of migrating
to smaller geometry process technologies in order to reduce costs. Other
companies in the industry have experienced difficulty in effecting transitions
to new manufacturing processes and, consequently, have suffered reduced yields
or delays in product deliveries. The Company believes that transitioning its
products to a smaller geometry will be important for the Company to remain
competitive. The Company's business, financial condition and operating results
could be materially adversely affected if such transitions are substantially
delayed or inefficiently implemented.
MANAGEMENT OF GROWTH
Due to the level of technical and marketing expertise necessary to support
its existing and new customers, the Company must attract highly qualified and
well-trained personnel. There may be only a limited number of persons with the
requisite skills to serve in these positions and it may become increasingly
difficult for the Company to hire such personnel. Future expansion by the
Company may also significantly strain the Company's management, manufacturing,
financial and other resources. There can be no assurance that the Company's
systems, procedures, controls and existing space will be adequate to support the
Company's operations. Failure to manage the Company's growth properly could
have a material adverse effect on the Company's business, financial condition
and operating results.
VOLATILITY OF STOCK PRICE AND DILUTION
The market for securities of high technology companies, including those of
the Company, has been highly volatile. The market price of the Company's Common
Stock has fluctuated between $21.625 and $3.625 from June 19, 1995 to January
8, 1998 and was $8.25 on January 8, 1998, and it is likely that the price of
the Common Stock will continue to fluctuate widely in the future. The trading
price of the Company's Common Stock could be subject to wide fluctuations in
response to quarter-to-quarter variations in operating results, announcements of
technological innovations or new products by the Company or its competitors,
general conditions in the telecommunications and data communications equipment
markets, changes in earnings estimates by analysts, or other events or
factors.
-11-
<PAGE>
DILUTION
"Dilution" represents the difference between the assumed price to public per
share of Common Stock and the net tangible book value per share immediately
after the completion of this offering. "Net tangible book value per share"
represents the amount of total tangible assets less total liabilities, divided
by the number of shares of Common Stock outstanding.
On October 10, 1997, the Company issued 14,500 shares of the Series A Stock
to the Selling Stockholders as part of a private placement transaction. Each
share of Series A Stock is convertible into shares of Common Stock at any time
at the option of the Selling Stockholder holding such share of Series A Stock,
subject to certain limitations, at the lesser of (i) $10.58 per share and (ii)
ninety percent (90%) of the average of the closing bid price of the Company's
Common Stock, as reported by the Nasdaq National Market, for the ten (10)
trading days immediately preceding the date written notice of conversion is
received by the Company. Unless converted sooner at the option of the holders of
the Series A Stock, all shares of Series A Stock will convert to Common Stock on
October 10, 2002 if, at that time, the Registration Statement of which this
Prospectus is a part is in force and effect and the Company is in compliance
with the terms of the Series A Stock. No Series A Stock may be converted until
the earlier of (i) January 8, 1998 or (ii) the date the Registration Statement
of which this Prospectus is a part is declared effective.
As of September 30, 1997, the net tangible book value of the Company's Common
Stock was $14,594,000 or $1.19 per share of Common Stock. The pro forma net
tangible book value of the Company's Common Stock at September 30, 1997,
assuming full conversion of the Series A Stock, (based upon a conversion price
of $10.58 for the Common Stock), resulting in the issuance of approximately
1,370,510 shares, would be $29,094,000 or $2.14 per share. Assuming a price to
the public of $10.58 per share, there would be an immediate dilution per share
of $8.44 to new investors.
The following table illustrates the dilution per share described above:
<TABLE>
<CAPTION>
<S> <C> <C>
Assumed Offering price per share $10.58
Net tangible book value per share before the Offering $ 1.19
Increase per share attributable to new investors 0.95
------
Pro forma net tangible book value per share after the Offering 2.14
------
Dilution per share to new investors (1) $ 8.44
======
</TABLE>
(1) As of September 30, 1997, there were 683,199 shares of Common Stock
issuable upon the exercise of outstanding Stock Options at a weighted average
exercise price of $3.82 per share and 1,400 shares of Common Stock issuable
upon the exercise of outstanding warrants at a weighted exercise price of $0.82
per share. The issuance of shares upon exercise of these options and these
warrants is not reflected in the preceding table. If all the outstanding Options
and Warrants were exercised in full, the dilution per share to new investors
would be $8.54.
USE OF PROCEEDS
The Company will receive no part of the proceeds from the sale of any of
the Shares by any of the Selling Stockholders. The Company has, however,
received proceeds from the sale of the Series A Stock to the Selling
Stockholders, which proceeds were applied to working capital.
-12-
<PAGE>
SELLING SHAREHOLDERS
<TABLE>
<CAPTION>
Percentage of
Number of Shares of Number of Shares Number of Class to be
Common Stock Owned to be Acquired upon Shares of Held upon
Prior Conversion of Common Stock Completion of
Names to the Offering Series A Stock to be Sold Offering
- ------------------ --------------------- -------------------- ------------ ---------------------
<S> <C> <C> <C> <C>
Deltec Asset 385,650(1) (2) 551,724(3) 3.1%
Management
Corporation
Tudor BVI Futures 0(1) (2) 169,048(3) 0.0%
Ltd.
Raptor Global 0(1) (2) 66,207(3) 0.0%
Fund, L.P.
Raptor Global 0(1) (2) 183,614(3) 0.0%
Fund, Ltd.
Tudor Arbitrage 200(1) (2) 22,510(3) (4)
Partners, Ltd.
John D. Gruber 146,000(1) (2) 22,069(3) 1.1%
and Linda W.
Gruber JTWROS
Gruber and 19,500(1) (2) 33,103(3) (4)
McBaine
International
Lagunitas 45,000(1) (2) 110,346(3) (4)
Partners, L.P.
Clarion Capital 0(1) (2) 55,172(3) 0.0%
Corporation
Unigestion Holding 0(1) (2) 55,172(3) 0.0%
The Kaufman Fund, 0(1) (2) 331,035(3) 0.0%
Inc.
</TABLE>
____________________
(1) Does not include shares of Common Stock issuable upon conversion of the
Series A Stock.
(2) The Selling Stockholder can receive shares of Common Stock through
conversion of the Series A Stock. The Series A Stock is convertible into
Common Stock at the lesser of (i) $10.58 and (ii) ninety percent (90%) of
------
the average market price for the Common Stock for the ten (10) trading days
immediately preceding the date on which the Series A Stock is converted.
(3) Consists of shares of Common Stock included in this offering that are
issuable upon conversion of the Series A Stock held by such Selling
Stockholder.
(4) Percentage of class to held upon completion of offering is less than 1.0%.
-13-
<PAGE>
PLAN OF DISTRIBUTION
The distribution by the Selling Stockholders of the Shares may be effected
in one or more transactions that may take place in the over-the-counter market,
or such other market on which the Company's securities may from time to time be
trading, including ordinary broker's transactions or through sales to one or
more dealers for resale of the Shares as principals, in privately negotiated
transactions, through the writing of options on the Shares (whether such options
are listed on an options exchange or otherwise) or by a combination of such
methods of sale, at fixed prices that may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. If the Selling Stockholders effect such
transactions by selling the Shares through underwriters, dealers or agents, such
underwriters, dealers or agents may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling Stockholders
and/or the purchasers of the Shares for whom they may act as agent. The Selling
Stockholders and any such underwriters, dealers or agents that participate in
the distribution of the Shares may be deemed to be underwriters, and any profit
on the sale of the Shares by them and any discounts, commissions or concessions
received by them may be deemed to be underwriting discounts and commissions
under the Securities Act. The Selling Stockholders may also sell the Shares
pursuant to Rule 144 under the Securities Act. Brokers or dealers acting in
connection with the sale of the Shares may receive fees or commissions in
connection therewith. The Company will not receive any of the proceeds from the
sale of the Shares by the Selling Stockholders.
Under applicable rules and regulations under the Exchange Act, any person
engaged in a distribution of shares of Common Stock may not simultaneously
engage in market making activities with respect to such shares of Common Stock
for a period of up to five business days prior to the commencement of such
distribution, subject to certain exceptions. In addition and without limiting
the foregoing, the Selling Stockholders and any other person participating in
the distribution of the Shares will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including, without
limitation, Rule 10b-5 and Regulation M, which provisions may limit the time of
purchases and sales of any Shares by the Selling Stockholders or any other such
person. All of the foregoing may affect the marketability of the Shares.
The Company has agreed with the Selling Stockholders to file the
Registration Statement of which this Prospectus is a part with the Commission,
and has agreed with the Selling Stockholders to keep the Registration Statement
effective until October 10, 2003 or such earlier time as all of the Shares have
been sold. The Company will pay all of the expenses incident to the
registration of the Shares and certain other expenses related to the offering.
The Company has agreed to indemnify the Selling Stockholders against certain
liabilities they may incur in connection with the issuance and sale of the
Shares, including liabilities under the Securities Act. To the extent any
indemnification by an indemnifying party is prohibited or limited by law, the
Company has agreed to make the maximum contribution with respect to any amounts
for which it would otherwise be liable under such indemnification provision to
the fullest extent permitted by law.
-14-
<PAGE>
In order to comply with certain states' securities laws, if applicable, the
Shares may be sold in such jurisdictions only through registered or licensed
brokers or dealers. In certain states, the Shares may not be sold unless the
Shares have been registered or qualified for sale in such state or an exemption
from registration or qualification is available and is complied with.
LEGAL MATTERS
Certain legal matters with respect to the validity of the securities
offered hereby will be passed upon for the Company by Testa, Hurwitz &
Thibeault, LLP, Boston, Massachusetts.
EXPERTS
The consolidated financial statements and schedule of the Company and
consolidated subsidiaries included in the Company's Annual Report on Form 10-K
as of December 31, 1996 and 1995, and for each of the years in the three-year
period ended December 31, 1996, have been incorporated by reference herein and
elsewhere in the Registration Statement, in reliance upon the report set forth
therein of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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.
-15-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth an estimate of the expenses expected to be
incurred in connection with the issuance and distribution of the securities
being registered, other than underwriting compensation:
<TABLE>
<CAPTION>
<S> <C>
Registration Fee -- Securities and Exchange Commission.. $ 4,970
Nasdaq SmallCap Market additional listing fee........... 2,000
Blue Sky Fees and Expenses.............................. 1,000
Accounting Fees and Expenses............................ 5,000
Legal Fees and Expenses................................. 10,000
Transfer Agent Fees and Expenses........................ 1,000
Miscellaneous........................................... 1,030
TOTAL.............................................. $25,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(A) THE COMPANY IS A DELAWARE CORPORATION. SECTION 145 OF THE
DELAWARE GENERAL CORPORATION LAW, AS AMENDED, PROVIDES IN REGARD TO
INDEMNIFICATION OF DIRECTORS AND OFFICERS AS FOLLOWS:
"(a) A corporation shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which the person reasonably believed to be in
or not opposed to the
II-1
<PAGE>
best interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that the person's conduct was
unlawful.
(b) A corporation shall have the power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made, with
respect to a person who is a Director or Officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
(e) Expenses (included attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
the corporation as authorized in this section. Such expenses (including
attorneys' fees) incurred by former directors
II-2
<PAGE>
and officers or other employees and agents may be so paid upon such terms and
conditions, if any, as the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under this section.
(h) For purposes of this section, references to "the corporation''
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents so that any person who was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under this section with respect to the resulting or
surviving corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises''
shall include employee benefit plans; references to "fines'' shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation'' shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation'' as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
II-3
<PAGE>
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).
(B) ARTICLE 10 OF THE REGISTRANT'S AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION CONTAINS THE FOLLOWING PROVISIONS RELATING TO THE INDEMNIFICATION
OF DIRECTORS AND OFFICERS:
1. Actions, Suits and Proceedings Other than by or in the Right of
---------------------------------------------------------------
the Corporation. The Corporation shall indemnify each person who was or is a
- ---------------
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that he is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan) (all such persons being
referred to hereafter as an "Indemnitee"), or by reason of any action alleged to
have been taken or omitted in such capacity, against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such action, suit
or proceeding and any appeal therefrom, if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
---- ----------
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful. Notwithstanding
anything to the contrary in this Article, except as set forth in Section 6
below, the Corporation shall not indemnify an Indemnitee seeking indemnification
in connection with a proceeding (or part thereof) initiated by the Indemnitee
unless the initiation thereof was approved by the Board of Directors of the
Corporation.
2. Actions or Suits by or in the Right of the Corporation. The
------------------------------------------------------
Corporation shall indemnify any Indemnitee who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan), or by reason of any
action alleged to have been taken or omitted in such capacity, against all
expenses
II-4
<PAGE>
(including attorneys' fees) and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such action, suit
or proceeding and any appeal therefrom, if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the Corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses (including attorneys' fees)
which the Court of Chancery of Delaware or such other court shall deem proper.
3. Indemnification for Expenses of Successful Party. Notwithstanding
------------------------------------------------
the other provisions of this Article, to the extent that an Indemnitee has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Sections 1 and 2 of this Article, or in defense of any
claim, issue or matter therein, or on appeal from any such action, suit or
proceeding, he shall be indemnified against all expenses (including attorneys'
fees) actually and reasonably incurred by him or on his behalf in connection
therewith. Without limiting the foregoing, if any action, suit or proceeding is
disposed of, on the merits or otherwise (including a disposition without
prejudice), without (i) the disposition being adverse to the Indemnitee, (ii) an
adjudication that the Indemnitee was liable to the Corporation, (iii) a plea of
guilty or nolo contendere by the Indemnitee, (iv) an adjudication that the
---- ----------
Indemnitee did not act in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and (v) with
respect to any criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to believe his conduct was unlawful, the Indemnitee shall be
considered for the purpose hereof to have been wholly successful with respect
thereto.
4. Notification and Defense of Claim. As a condition precedent to
---------------------------------
his right to be indemnified, the Indemnitee must notify the Corporation in
writing as soon as practicable of any action, suit, proceeding or investigation
involving him for which indemnity will or could be sought. With respect to any
action, suit, proceeding or investigation of which the Corporation is so
notified, the Corporation will be entitled to participate therein at its own
expense and/or to assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to the Indemnitee. After notice from the
Corporation to the Indemnitee of its election so to assume such defense, the
Corporation shall not be liable to the Indemnitee for any legal or other
expenses subsequently incurred by the Indemnitee in connection with such claim,
other than as provided below in this Section 4. The Indemnitee shall have the
right to employ his own counsel in connection with such claim, but the fees and
expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expenses of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by
the Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded
that there may be a conflict of interest or position on any significant issue
between the Corporation and the Indemnitee in the conduct of the defense of such
action or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such action, in each of which case the fees and
II-5
<PAGE>
expenses of counsel for the Indemnitee shall be at the expense of the
Corporation, except as otherwise expressly provided by this Article. The
Corporation shall not be entitled, without the consent of the Indemnitee, to
assume the defense of any claim brought by or in the right of the Corporation or
as to which counsel for the Indemnitee shall have reasonably made the conclusion
provided for in clause (ii) above.
5. Advance of Expenses. Subject to the provisions of Section 6
-------------------
below, in the event that the Corporation does not assume the defense pursuant to
Section 4 of this Article of any action, suit, proceeding or investigation of
which the Corporation receives notice under this Article, any expenses
(including attorneys' fees) incurred by an Indemnitee in defending a civil or
criminal action, suit, proceeding or investigation or any appeal therefrom shall
be paid by the Corporation in advance of the final disposition of such matter,
provided, however, that the payment of such expenses incurred by an Indemnitee
- -------- -------
in advance of the final disposition of such matter shall be made only upon
receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts
so advanced in the event that it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified by the Corporation as authorized in
this Article. Such undertaking may be accepted without reference to the
financial ability of such person to make such repayment.
6. Procedure for Indemnification. In order to obtain indemnification
-----------------------------
or advancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article, the
Indemnitee shall submit to the Corporation a written request, including in such
request such documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and o what extent
the Indemnitee is entitled to indemnification or advancement of expenses. Any
such indemnification or advancement of expenses shall be made promptly, and in
any event within 60 days after receipt by the Corporation of the written request
of the Indemnitee, unless with respect to requests under Section 1, 2 or 5 the
Corporation determines, by clear and convincing evidence, within such 60-day
period that the Indemnitee did not meet the applicable standard of conduct set
forth in Section 1 or 2, as the case may be. Such determination shall be made
in each instance by (a) a majority vote of the directors of the Corporation who
are not at that time parties to the action, suit or proceeding in question
("disinterested directors"), even though less than a quorum, (b) if there are no
such disinterested directors, or if such disinterested directors so direct, by
independent legal counsel (who may be regular legal counsel to the corporation)
in a written opinion, (c) a majority vote of a quorum of the outstanding shares
of stock of all classes entitled to vote for directors, voting as a single
class, which quorum shall consist of stockholders who are not at that time
parties to the action, suit or proceeding in question, or (d) a court of
competent jurisdiction.
7. Remedies. The right to indemnification or advances as granted by
--------
this Article shall be enforceable by the Indemnitee in any court of competent
jurisdiction if the Corporation denies such request, in whole or in part, or if
no disposition thereof is made within the 60-day period referred to above in
Section 6. Unless otherwise provided by law, the burden of proving that the
Indemnitee is not entitled to indemnification or advancement of expenses under
this
II-6
<PAGE>
Article shall be on the Corporation. Neither the failure of the Corporation to
have made a determination prior to the commencement of such action that
indemnification is proper in the circumstances because the Indemnitee has met
the applicable standard of conduct, nor an actual determination by the
Corporation pursuant to Section 6 that the Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the Indemnitee has not met the applicable standard of conduct.
The Indemnitee's expenses (including attorneys' fees) incurred in connection
with successfully establishing his right to indemnification, in whole or in
part, in any such proceeding shall also be indemnified by the Corporation.
8. Subsequent Amendment. No amendment, termination or repeal of this
--------------------
Article or of the relevant provisions of the General Corporation Law of the
State of Delaware or any other applicable laws shall affect or diminish in any
way the rights of any Indemnitee to indemnification under the provisions hereof
with respect to any action, suit, proceeding or investigation arising out of or
relating to any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or repeal.
9. Other Rights. The indemnification and advancement of expenses
------------
provided by this Article shall not be deemed exclusive of any other rights to
which an Indemnitee seeking indemnification or advancement of expenses may be
entitled under any law (common or statutory), agreement or vote of stockholders
or disinterested directors or otherwise, both as to action in his official
capacity and as to an Indemnitee who has ceased to be a director or officer, and
shall incur to the benefit of the estate, heirs, executors and administrators of
the Indemnitee. Nothing contained in this Article shall be deemed to prohibit,
and the Corporation is specifically authorized to enter into, agreements with
officers and directors providing indemnification rights and procedures different
from those set forth in this Article. In addition, the Corporation may, to the
extent authorized from time to time by its Board of Directors, grant
indemnification rights to other employees or agents of the Corporation or other
persons serving the Corporation and such rights may be equivalent to, or greater
or less than, those set forth in this Article.
10. Partial Indemnification. If an Indemnitee is entitled under any
-----------------------
provision of this Article to indemnification by the Corporation for some or a
portion of the expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement actually and reasonably incurred by him or on his behalf in
connection with any action, suit, proceeding or investigation and any appeal
therefrom but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement to
which the Indemnitee is entitled.
11. Insurance. The Corporation may purchase and maintain insurance,
---------
at its expense, to protect itself and any director, officers, employee or agent
of the Corporation or another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan) against any expense,
liability or loss incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to indemnify
II-7
<PAGE>
such person against such expense, liability or loss under the General
Corporation Law of the State of Delaware.
12. Merger or Consolidation. If the Corporation is merged into or
-----------------------
consolidated with another corporation and the Corporation is not the surviving
corporation, the surviving corporation shall assume the obligations of the
Corporation under this Article with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the date of such merger or consolidation.
13. Savings Clause. If this Article or any portion hereof shall be
--------------
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
Corporation to the fullest extent permitted by an applicable portion of this
Article that shall not have been invalidated and to the fullest extent permitted
by applicable law.
14. Definitions. Terms used herein and defined in Section 145(h) and
-----------
Section 145(i) of the General Corporation Law of the State of Delaware shall
have the respective meanings assigned to such terms in such Section 145(h) and
Section 145(i).
15. Subsequent Legislation. If the General Corporation Law of the
----------------------
State of Delaware is amended after adoption of this Article to expand further
the indemnification permitted to Indemnitees, then the Corporation shall
indemnify such persons to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as so amended.
(C) THE AMENDED AND RESTATED BY-LAWS CONTAIN NO PROVISIONS RELATING TO
INDEMNIFICATION OF OFFICERS AND DIRECTOR.
ITEM 16. EXHIBITS.
The following exhibits, required by Item 601 of Regulation S-K, are
filed as a part of this Registration Statement. Exhibit numbers, where
applicable, in the left column correspond to those of Item 601 of Regulation S-
K.
<TABLE>
<CAPTION>
Exhibit No. Item and Reference
- ----------- ------------------
<S> <C>
4a - Specimen Common Stock Certificate (filed as Exhibit 4.1 to the
Company's Registration Statement on Form S-1, No. 33-91694 and
incorporated by reference).
4b - Certificate of Designations, Preferences and Rights of Series A
Convertible Preferred Stock of the Company (previously filed).
4c - Form of Stock Purchase Agreement dated October 10, 1997 among the
Company and the purchasers of Series A Convertible Preferred
Stock (previously filed).
5 - Legal Opinion of Testa, Hurwitz & Thibeault, LLP (previously
filed).
10a - Form of Severance Agreement (filed herewith).
10b - Form of Executive Agreement (filed herewith).
23 - Consent of KPMG Peat Marwick LLP (filed herewith).
24 - Power of Attorney empowering Dr. Santanu Das and Michael F.
Stauff and each of them to execute this Registration Statement
(previously filed).
</TABLE>
II-8
<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(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 of 1933, 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
the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to section
15(d) of the Securities Exchange Act of 1934) 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.
(b) 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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
II-9
<PAGE>
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(c) The undersigned registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A, and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h), under the Securities Act
shall be deemed to be part of this registration statement as of the time it was
declared effective.
(d) The undersigned registrant hereby undertakes that for the purpose of
determining any liability under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus 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.
II-10
<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 Amendment
No. 1 to Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Shelton, State of
Connecticut on January 12, 1998
TranSwitch Corporation
By: /s/ Michael F. Stauff
-----------------------------------
Michael F. Stauff
Senior Vice President, Chief
Financial Officer & Treasurer
II-11
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to Registration Statement on Form S-3 has been signed below by
the following persons on behalf of the Registrant and in the capacities and on
the dates indicated.
<TABLE>
<CAPTION>
Name Capacity Date
<S> <C> <C>
/s/ * President, Chief Executive January 12, 1998
- --------------------------- Officer and Director
Dr. Santanu Das
/s/ Michael F. Stauff Senior Vice President, Chief January 12, 1998
- --------------------------- Financial Officer and Treasurer
Michael F. Stauff
/s/ * Director January 12, 1998
- ---------------------------
Dr. Steward S. Flaschen
/s/ * Director January 12, 1998
- ---------------------------
Dr. Charles Lee
/s/ * Director January 12, 1998
- ---------------------------
Dr. Ljubomir Micic
/s/ * Director January 12, 1998
- ---------------------------
Dr. Albert E. Paladino
/s/ * Director January 12, 1998
- ---------------------------
Erik van der Kaay
</TABLE>
By: /s/ Michael F. Stauff
-----------------------
Michael F. Stauff
Attorney In Fact
II-12
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------ ----------------------
<S> <C>
4a Specimen Common Stock Certificate (filed as Exhibit 4.1 to the
Company's Registration Statement on Form S-1, No. 33-91694 and
incorporated by reference).
4b Certificate of Designations, Preferences and Rights of Series A
Preferred Stock of the Company (previously filed).
4c Form of Stock Purchase Agreement dated October 10, 1997 among the
Company and the purchasers of Series A Convertible Preferred Stock
(previously filed).
5 Legal Opinion of Testa, Hurwitz & Thibeault, LLP (previously filed).
10a Form of Severance Agreement (filed herewith).
10b Form of Executive Agreement (filed herewith).
23 Consent of KPMG Peat Marwick LLP (filed herewith).
24 Power of Attorney empowering Dr. Santanu Das and Michael F. Stauff and
each of them to execute this Registration Statement (previously
filed).
</TABLE>
<PAGE>
Exhibit 10a
-----------
AGREEMENT FOR SEVERANCE
AGREEMENT made as of this __ day of ________, 1997 by and between
TranSwitch Corporation, a Delaware corporation (the "Company"), and __________
(the "Employee").
WHEREAS, the Company desires to continue to employ the Employee, and the
Employee desires to be employed by the Company on the terms and conditions
contained herein;
NOW, THEREFORE, in consideration of the mutual covenants and obligations
herein contained, it is mutually agreed between the parties hereto as follows:
1. EMPLOYMENT AND TERM. The Company hereby agrees to continue to employ
-------------------
the Employee and the Employee hereby agrees to serve as _______________
____________________ of the Company. The initial term of this agreement shall
be through the date that is one year from the date set forth above and, unless
terminated earlier, the term shall continue automatically thereafter until
terminated by either party pursuant to paragraph 3 hereof. Both the Employee
and the Company shall have the right to terminate the Employee's employment at
any time upon notice to the other party provided in paragraph 3 hereof subject
to the Company's obligation to pay termination benefits under certain
circumstances as provided in paragraph 3.D.
2. COMPENSATION.
------------
A. SALARY. In consideration of all of the services to be rendered
------
by the Employee to the Company, the Company will pay to the Employee a salary of
$_______ per annum, or such greater amount as the Company may, from time to
time, determine. Such salary shall be payable in conformity with the Company's
prevailing compensation practice, as such practice shall be established or
modified from time to time.
B. BENEFITS. The Employee will be entitled to continue to
--------
participate on the same basis with all other employees of the Company in the
Company's standard benefit package generally available to all other employees of
the Company, including the Company's group health, disability and life insurance
programs.
3. TERMINATION. The Employee's term of employment under this Agreement
-----------
may be terminated as follows:
A. AT THE EMPLOYEE'S OPTION. (1) Subject to the Company's right to
------------------------
terminate the Employee pursuant to paragraphs 3.B and 3.C below, the Employee
may terminate his employment hereunder for any reason at any time upon at least
thirty (30) days' prior written notice. If the Employee dies during his
employment hereunder, the Company shall have no further obligation to pay
unaccrued compensation. If the Employee becomes disabled for such period of
time and under circumstances which
<PAGE>
-2-
entitle him to receive disability benefits under the terms of any disability
policy now maintained or to be purchased for the Employee by the Company, then
the Board of Directors of the Company, in its discretion, may elect to terminate
the Employee's employment by reason of such disability. The Employee's right to
receive further unaccrued compensation shall terminate effective upon such
termination.
(2) Subject to the Company's right to terminate the Employee pursuant to
Sections 3.B and 3.C below, the Employee may terminate his employment hereunder
upon the occurrence of "Changed Circumstances," as hereinafter defined, upon
written notice to the Company. For the purposes of this Section 3.A, "Changed
Circumstances" shall mean (i) a significant reduction in the nature or scope of
the Employee's responsibilities, authority, powers, functions or duties of
________________________ of the Company or (ii) an adverse change in the
Employee's work environment such that Employee is unable to perform his or her
duties hereunder. In the event that Employee terminates his or her employment
pursuant to this Section 3.A(2), the Employee shall be entitled to severance
payments from the Company as determined in accordance with Section 3.D. below.
B. AT THE ELECTION OF THE COMPANY FOR JUST CAUSE. Notwithstanding
---------------------------------------------
paragraph 3.A, the Company may, immediately and unilaterally terminate the
Employee's employment hereunder for just cause at any time during the term of
this Agreement by notice to the Employee. Termination of the Employee's
employment by the Company shall constitute a termination "for just cause" if
such termination is for one or more of the following reasons: (i) the continuing
gross and willful failure or refusal of the Employee to perform a substantial
portion of his obligations under this Agreement after ten (10) days' written
notice of such gross and willful failure or refusal from the Board of Directors
of the Company, such notice to set forth in reasonable detail the nature of such
failure or refusal; (ii) the commission by the Employee of an act or fraud or
embezzlement or the commission by the Employee of any other action of extreme
dishonesty which, in the reasonable opinion of the Board of the Directors of the
Company, may materially injure the Company; or (iii) the Employee having been
convicted of a felony. In the event that the Company exercises its right to
terminate the Employee's employment under this paragraph 3.B, the Employee shall
not be entitled to receive any severance or other termination benefits.
C. AT THE ELECTION OF THE COMPANY FOR REASONS OTHER THAN JUST CAUSE.
----------------------------------------------------------------
Notwithstanding paragraph 3.A, the Company may, immediately and unilaterally,
terminate the Employee's employment hereunder at any time without cause by
giving written notice to the Employee of the Company's election so to terminate.
In the event that the Company exercises its right to terminate under this
paragraph 3.C, the Employee shall be entitled to receive severance payments from
the Company as determined in accordance with paragraph 3.D below.
D. SEVERANCE PAYMENTS; BENEFITS. In the event that the Employee's
----------------------------
employment with the Company is terminated (i) at the Employee's option pursuant
to
<PAGE>
-3-
paragraph 3.A(2), or (ii) at the Company's option pursuant to paragraph 3.C, the
Employee shall be entitled to receive severance payments from the Company equal
to the sum of ________ ( ) months salary, plus an amount equal to _________% of
the highest annual bonus paid to the Employee over the previous five years.
Severance payments shall be calculated on the basis of the Employee's monthly
salary at the time of termination. Severance payments shall be payable in a
single lump sum within fifteen (15) days after the date of termination. In
addition, in the event that Employee's employment is terminated pursuant to
paragraphs 3.A(2) or 3.C, the Company shall pay the Employee's normal post-
termination benefits in accordance with the Company's retirement, insurance and
other benefit plans and arrangements; provided, however, that the Company shall
-------- -------
continue to provide the Employee coverage under its health benefit plans or
arrangements until the __________ anniversary of such termination.
4. REDUCTION OF PAYMENTS BY THE COMPANY. (a) If, in connection with a
------------------------------------
change (i) in the ownership or effective control of the Company or (ii) in the
ownership of a substantial portion of the Company's assets (each as defined in
Section 280G(b)(2)(A) of the Internal Revenue Code of 1986, as amended (the
"Code")), the payment to be made pursuant to Section 3.D, and/or any payment or
benefit received or to be received by the Employee pursuant to any other plan,
arrangement or agreement (all such payments or benefits, the "Total Payments")
would constitute (in whole or in part) an "excess parachute payment" within the
meaning of Section 280G(b) of the Code, then the amount of the Total Payments
shall be reduced to the minimum extent necessary to insure that no portion of
the Total Payments constitutes an "excess parachute payment" within the meaning
of Section 280G(b) of the Code. All calculations pursuant to this Section 4
shall be made by tax counsel selected by the Company or by the Company's
independent auditors.
(b) In the event that the Company shall have made payments to the Employee
pursuant to either (i) this Agreement or (ii) that certain Executive Agreement
between the Company and the Employee and dated of even date herewith (the
"Executive Agreement"), then the Employee agrees that such payments shall reduce
or eliminate the obligation of the Company to make payments under the other such
agreement, so that the effect of this provision shall be that the maximum amount
payable under both this Agreement and the Executive Agreement shall not exceed
the greater of the maximum amount payable under either this Agreement or the
Executive Agreement.
5. WAIVERS AND MODIFICATIONS. This Agreement may be modified, and the
-------------------------
rights and remedies of any provision hereof may be waived, only in writing,
signed by both the Company and the Employee. This Agreement sets forth all of
the terms of the understandings between the parties with reference to the
subject matter set forth herein.
6. GOVERNING LAW. This Agreement shall be construed in accordance with
-------------
the laws of the State of Connecticut.
<PAGE>
-4-
IN WITNESS WHEREOF, each of the parties hereto has executed this Employment
Agreement under seal as of the date and year first written above.
TRANSWITCH CORPORATION EMPLOYEE
By:_________________________ ______________________________
Title:______________________
<PAGE>
Exhibit 10b
-----------
EXECUTIVE AGREEMENT
THIS AGREEMENT dated as of _______________ __, 1997 by and between
TranSwitch Corporation, a Delaware corporation (the "Corporation") and
__________ (the "Executive").
WITNESSETH:
A. The Corporation considers it essential to the best interests of the
Corporation and its stockholders that its management be encouraged to remain
with the Corporation and to continue to devote full attention to the
Corporation's business in the event that there is a likelihood of a change of
control of the Corporation. In this connection, the Corporation recognizes that
the possibility of a change in control and the uncertainty and questions which
it may raise among management may result in the departure or distraction of
management personnel to the detriment of the Corporation and its stockholders.
Accordingly, the Corporation's Board of Directors (the "Board") has determined
that appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of members of the Corporation's management to their
assigned duties without distraction in the face of the potentially disturbing
circumstances arising from the possibility of a change in control of the
Corporation.
B. The Executive is a key executive of the Corporation, and the
Corporation believes that the Executive has made valuable contributions to the
productivity and profitability of the Corporation.
C. In the event that the Corporation enters into a written letter of
intent or other written agreement (each, a "Business Combination Agreement")
with a third party (including such party's affiliates, an "Acquiring Party")
concerning a possible business combination by such Acquiring Party with, or
acquisition by such Acquiring Party of equity securities of, the Corporation,
the Board believes it imperative that the Corporation and the Board be able to
rely upon the Executive to continue in his position and that the Corporation be
able to receive and rely upon his advice, if so requested, as to the best
interests of the Corporation and its stockholders without concern that he might
be distracted by the personal uncertainties and risks created by the Corporation
entering into a Business Combination Agreement.
D. Should the Corporation enter into a Business Combination Agreement, in
addition to the Executive's regular duties, he may be called upon to assist in
the assessment of such Business Combination Agreement, advise management and the
Board as to whether such Business Combination Agreement is in the best interests
of the Corporation and its stockholders, and to take such other actions as the
Board might determine to be appropriate.
NOW, THEREFORE, to assure the Corporation that it will have the continued
undivided attention and services of the Executive and the availability of his
advice and counsel notwithstanding the possibility or threat of a change of
control of the Corporation, and to induce
<PAGE>
-2-
the Executive to remain in the employ of the Corporation, and for other good and
valuable consideration, the Corporation and the Executive agree as follows:
1. Operation of Agreement. This Agreement shall commence on the date
----------------------
hereof (the "Effective Date") and shall continue in effect through for twelve
(12) months from the Effective Date; provided, however, that (i) commencing on
-------- -------
the date that is twelve (12) months and one day from the Effective Date and on
each twelve-month anniversary of such date thereafter (each an "Extension
Date"), the term of this Agreement shall automatically be extended for one
additional year, without further action on the part of the parties hereto,
unless either party gives written notice of termination to the other party not
later than three months prior to an Extension Date, and (ii) if a "Change in
Control" (as defined in Section 4) of the Corporation occurs during the original
or extended term of this Agreement, this Agreement shall continue in effect for
a period of twelve (12) months beyond the month in which such Change in Control
occurs, provided, however, that so long as the Executive continues to be
-------- -------
employed by the Corporation, this Agreement shall be automatically extended from
year to year, without further action on the part of the parties hereto.
2. Employment. Subject to Section 3 hereof, the Corporation and the
----------
Executive agree that so long as the Executive is employed by the Corporation,
the Executive shall perform such executive duties and responsibilities as were
being performed by the Executive immediately prior to the Effective Date or
appropriate comparable duties and responsibilities, as may be determined by the
Board in response to changing business requirements. The Executive agrees that
so long as he is employed by the Corporation he shall devote substantially all
of his business time and efforts to his executive duties and responsibilities.
In the event that the Corporation enters into a Business Combination Agreement
which, if effected, will result in a Change of Control (as defined in Section
4), the Executive agrees that he will not voluntarily leave the employ of the
Corporation, and will render the services contemplated in the recitals to this
Agreement, and the Corporation agrees that it will not terminate the employment
of the Executive for any reason other than for Cause (as such term is defined in
Section 6) until the earlier of (i) in the opinion of the Board (which shall be
binding and conclusive on the Executive), the Business Combination Agreement has
been abandoned or terminated, or (ii) until after such a Change of Control has
been effected, or (iii) 120 calendar days from the date of the execution of a
Business Combination Agreement.
3. Termination of Employment. Except with respect to the specific
-------------------------
undertakings herein upon a Qualified Termination, the Executive shall be an at-
will employee of the Corporation. Subject to the last sentence of Section 2,
either party shall have the right to terminate Executive's employment upon
notice to the other party, and, in the case of termination by the Corporation,
such termination shall be in accordance with the Corporation's normal and
customary termination practices for executive employees. If the Executive shall
terminate his employment under circumstances constituting a Qualifying
Termination (as defined in Section 6) the obligations and rights of the
Corporation as set forth in Sections 6, 7 and the following Sections shall
apply. In the event of any termination, the Corporation's benefit obligations
under Section 5 hereof, and applicable laws, shall apply.
<PAGE>
-3-
4. Change of Control. For purposes of this Agreement, a "Change in
-----------------
Control" means the occurrence of any of the following events:
(a) The Corporation is merged or consolidated or reorganized into or
with another corporation or other legal person, and as a result of such
merger, consolidation or reorganization less than a majority of the
combined voting power of the then-outstanding securities of such surviving,
resulting or reorganized corporation or person immediately after such
transaction is held in the aggregate by the holders of the then-outstanding
securities entitled to vote generally in the election of directors of the
Corporation ("Voting Stock") immediately prior to such transaction;
(b) The Corporation sells or otherwise transfers all or substantially
all of its assets to any other corporation or other legal person, and as a
result of such sale or transfer less than a majority of the combined voting
power of the then-outstanding securities of such corporation or person
immediately after such sale or transfer is held in the aggregate by the
holders of Voting Stock of the Corporation immediately prior to such sale
or transfer;
(c) There is a report filed on Schedule 13D or Schedule 14D-1 (or any
successor schedule, form or report), each as promulgated pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
disclosing that any "person" (as such term is used in Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act) has become the "beneficial owner" (as
such term is used in Rule 13d-3 under the Exchange Act) of securities
representing 35% or more of the Voting Stock of the Corporation;
(d) The Corporation files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange Act disclosing
in response to Form 8-K or Schedule 14A (or any successor schedule, form or
report or item therein) that a change in control of the Corporation has
occurred; or
(e) If during any period of two consecutive years, individuals who at
the beginning of any such period constitute the Board cease for any reason
to constitute at least a majority thereof, unless the election, or the
nomination for election by the Corporation's stockholders, of each director
of the Corporation first elected during such period was approved by a vote
of at least a majority of the directors then still in office who were
directors of the Corporation at the beginning of any such period;
provided, however, that a "Change in Control" shall not be deemed to have
- -------- -------
occurred for purposes of this Agreement solely because (i) the Corporation, (ii)
an entity in which the Corporation directly or indirectly beneficially owns 50%
or more of the voting securities, or (iii) any Corporation-sponsored employee
stock ownership plan or any other employee benefit plan of the Corporation,
either files or becomes obligated to file a report or a proxy statement under or
in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any
successor schedule, form or report) under the Exchange Act, disclosing
beneficial ownership by it of shares of Voting Stock or because the Corporation
reports that a change in control of the Corporation has occurred by reason of
such beneficial ownership.
<PAGE>
-4-
5. Compensation, Compensation Plans, Perquisites. So long as the
---------------------------------------------
Executive is employed by the Corporation, the Executive shall be compensated as
follows:
(a) He shall receive an annual base salary at a rate which is not less
than his rate of annual base salary immediately prior to the Effective
Date, with the opportunity for increases from time to time thereafter which
are in accordance with the Corporation's regular practices.
(b) He shall be eligible to participate on a reasonable basis in any
incentive compensation plans, the nature and terms of such plan(s) shall be
determined in the sole discretion of the Board and the Compensation
Committee.
(c) He shall be entitled to receive employee benefits and perquisites
provided by the Corporation equivalent to the benefits and perquisites to
which he was entitled immediately prior to the Effective Date. Such
benefits and perquisites shall include, but not be limited to, the benefits
and perquisites provided under the Corporation's Section 401(k) profit
sharing plan; its life, accident, health and dental insurance and medical
reimbursement plans; and various fringe benefits.
6. Termination. The term "Qualifying Termination" shall mean termination
-----------
by the Corporation of the employment of the Executive with the Corporation
within the twelve (12) months immediately following a Change of Control or
deemed to be following a Change of Control as set forth in Section 18 for any
reason other than for Cause, as hereinafter defined.
For purposes of this Agreement, "Cause" means: (a) any intentional act of
theft, fraud or embezzlement by the Executive in connection with his work with
the Corporation; or (b) the Executive's continuing, repeated and willful failure
or refusal to perform his duties and services under this Agreement (other than
due to his incapacity due to illness or injury), provided that such failure or
refusal continues uncorrected for a period of thirty (30) calendar days after
the Executive shall have received written notice from the Board stating with
specificity the nature of such failure or refusal. Notwithstanding the
foregoing, Executive shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to him a copy of a resolution
duly adopted by the affirmative vote of not less than a majority of the entire
Board at a meeting of the Board called and held for (but not necessarily
exclusively for) that purpose (after reasonable notice to Executive and an
opportunity for Executive, together with counsel of his choice, to be heard by
the Board) finding that Executive has, in the good faith opinion of the Board,
engaged in conduct constituting Cause and specifying the particulars thereof in
reasonable detail.
7. Termination Payment. In the event of a Qualifying Termination, and
-------------------
subject to reduction as provided in Section 8 of this Agreement, the Corporation
shall pay to the Executive (or in the event of the Executive's death after a
Qualifying Termination, to his beneficiaries, heirs or estate) a lump sum amount
equal to the sum of (i) _________ (__) the Executive's annual base salary as in
effect immediately prior to the Change in Control and (ii) __________ (__) the
highest annual bonus paid to the Executive by the Corporation during the five
most recently completed fiscal years of the Corporation ending immediately prior
to the Change in Control
<PAGE>
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(collectively, the "Termination Payment"). Such Termination Payment shall be
paid to the Executive within ten (10) calendar days after the date of a
Qualifying Termination.
8. Reduction of Payments by the Corporation. If, in connection with a
----------------------------------------
change (a) in the ownership or effective control of the Corporation, or (b) in
the ownership of a substantial portion of the Corporation's assets (each as
defined in Section 280G(b)(2)(A) of the Internal Revenue Code of 1986, as
amended (the "Code")), the Termination Payment, and/or any payment or benefit
received or to be received by the Executive pursuant to any other plan,
arrangement or agreement (such payments or benefits, together with the
Termination Payment, the "Total Payments") would constitute (in whole or in
part) an "excess parachute payment" within the meaning of Section 280G(b) of the
Code, then the amount of the Total Payments shall be reduced to the minimum
extent necessary to insure that no portion of the Total Payments constitutes an
"excess parachute payment" within the meaning of Section 280G(b) of the Code.
All calculations pursuant to this Section 8 shall be made by tax counsel
selected by the Corporation or by the Corporation's independent auditors.
9. No Mitigation Obligation. The parties hereto expressly agree that the
-------------------------
payment of the Termination Payments by the Corporation to the Executive in
accordance with the terms of this Agreement will be liquidated damages, and that
the Executive shall not be required to mitigate the amount of any payment
provided for in this Agreement by seeking other employment or otherwise, nor
shall any profits, income, earnings or other benefits from any source whatsoever
create any mitigation, offset, reduction or any other obligation on the part of
the Executive.
10. Confidentiality. The Executive agrees that during and after his
---------------
employment with the Corporation, the Executive shall continue to comply with the
provisions of the Agreement for Assignment and Covenant Against Disclosure
between the Executive and the Corporation.
11. Legal Fees and Expenses. It is the intent of the Corporation that the
------------------------
Executive not be required to incur the expenses associated with the enforcement
of his rights under this Agreement by litigation or other legal action because
the cost and expense thereof would substantially detract from the benefits
intended to be extended to the Executive hereunder. Accordingly, if it should
appear to the Executive that the Corporation has failed to comply with any of
its obligations under this Agreement or in the event that the Corporation or any
other person takes any action to declare this Agreement void or unenforceable,
or institutes any litigation designed to deny, or to recover from, the Executive
the benefits intended to be provided to the Executive hereunder, the Corporation
irrevocably authorizes the Executive from time to time to retain counsel of his
choice, at the expense of the Corporation as hereinafter provided, to represent
the Executive in connection with the initiation or defense of any litigation or
other legal action, whether by or against the Corporation or any director,
officer, stockholder or other person affiliated with the Corporation, in any
jurisdiction. The Corporation shall pay or cause to be paid and shall be solely
responsible for any and all attorneys' and related fees and expenses incurred by
the Executive as a result of the Corporation's failure to perform this Agreement
or any provision hereof or as a result of the Corporation or any person
contesting the validity or enforceability of this Agreement or any provision
hereof as aforesaid.
<PAGE>
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12. Notices. Any notices, requests, demands and other communications
-------
provided for by this Agreement shall be sufficient if in writing and if sent by
personal delivery or by facsimile, such facsimile to be followed by a copy sent
by regular mail, in the case of Executive to the last address he has filed in
writing with the Corporation or, in the case of the Corporation, to the Board of
Directors with a copy to the Secretary of the Corporation at its principal
executive offices.
13. Non-Alienation. The Executive shall not have any right to pledge,
--------------
hypothecate, anticipate or in any way create a lien or security interest upon
any amounts provided under this Agreement; and no benefits payable hereunder
shall be assignable in anticipation of payment either by voluntary or
involuntary acts, or by operation of law, except by will or the laws of descent
and distribution.
14. No Set-off. In the event of a Qualifying Termination of the
----------
Executive's employment hereunder, the Corporation may not set-off or withhold
against any termination payments due to the Executive the amount of any claims
it may have against the Executive except any amounts for borrowed money or
advances owing to the Corporation by the Executive as of the date of such
Qualifying Termination.
15. Amendment. This Agreement may be amended or canceled by mutual
---------
agreement of the parties in writing without the consent of any other person and,
so long as the Executive lives, no person, other than the parties hereto, shall
have any rights under or interest in this Agreement or the subject matter
hereof.
16. Successor to the Corporation. Except as otherwise provided herein,
----------------------------
this Agreement shall be binding upon and inure to the benefit of the Corporation
and any successor of the Corporation; provided, however, that the Corporation
-------- -------
shall obtain the written agreement of any successor of the Corporation to be
bound by the provisions of this Agreement as if the successor were the
Corporation and for purposes of this Agreement, any successor of the Corporation
shall be deemed to be the "Corporation" for all purposes. In the event of the
death of the Executive after a Qualifying Termination, the beneficiaries, heirs
or estate of the Executive, as appropriate, shall be entitled to enforce the
provisions of Section 7 hereof.
17. Severability. In the event that any provision or portion of this
------------
Agreement shall be determined to be invalid or unenforceable for any reason in
any jurisdiction, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect and any such invalid or
unenforceable provision shall not be considered invalid or unenforceable in any
other jurisdiction.
18. Employment Rights. Nothing expressed or implied in this Agreement
-----------------
shall create any right or duty on the part of the Corporation or the Executive
to have the Executive remain in the employment of the Corporation prior to the
Corporation entering into a Business Combination Agreement; provided, however,
-------- -------
that if there is any termination of the Executive's employment which would
constitute a Qualifying Termination if it occurred after a Change of Control and
such termination follows the commencement of a substantive discussion with a
third
<PAGE>
-7-
person that ultimately results in a Change in Control, such termination shall be
deemed to be following a Change in Control for purposes of this Agreement.
19. Termination of Agreement. This Agreement shall terminate if the
------------------------
Executive's employment by the Corporation is terminated in any manner other than
a Qualifying Termination.
20. Miscellaneous. As used throughout this Agreement, the masculine
-------------
pronoun has been used for convenience only. It is intended to refer equally to
men and women. Moreover the use of the singular term throughout with respect to
individuals or persons is intended to include the plural form. This Agreement
shall be construed by the laws of the United States of America and the State of
Connecticut.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
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IN WITNESS WHEREOF, the Executive has hereunto set his hand and, pursuant
to the authorization from its Board of Directors, the Corporation has caused
these presents to be executed in its name on its behalf, and its corporate seal
to be hereunto affixed and attested by its Secretary, or Assistant Secretary,
all as of the day and year first above written.
(SEAL)
TRANSWITCH CORPORATION
ATTEST:
By:__________________________ By:___________________________
Title: Name:
Title:
WITNESS: EXECUTIVE:
_____________________________ ______________________________
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
TranSwitch Corporation:
We consent to the use of our reports incorporated herein by reference and to the
reference to our Firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Stamford, Connecticut
January 12, 1998
