-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, D9CU8KaHRC77rSx2hFOxgn0cpGajjrdIXz/SEMpAQotUecnZ5xaEm6MujZ9L53/N hiqNqR1VdhYK5W04bDHJWg== 0000898430-99-000601.txt : 19990222 0000898430-99-000601.hdr.sgml : 19990222 ACCESSION NUMBER: 0000898430-99-000601 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990219 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VITESSE SEMICONDUCTOR CORP CENTRAL INDEX KEY: 0000880446 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 770138960 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-72659 FILM NUMBER: 99546034 BUSINESS ADDRESS: STREET 1: 741 CALLE PLANO CITY: CAMARILLO STATE: CA ZIP: 93012 BUSINESS PHONE: 8053883700 MAIL ADDRESS: STREET 1: 741 CALLE PLANO CITY: CAMARILLO STATE: CA ZIP: 93012 S-3 1 FORM S-3 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on February 19, 1999 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-3 REGISTRATION STATEMENT Under The Securities Act of 1933 VITESSE SEMICONDUCTOR CORPORATION (Exact name of Registrant as specified in its charter) Delaware 770138960 -------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 741 Calle Plano Camarillo, California 93012 (805) 388-3700 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) ----------------------- Louis R. Tomasetta President Vitesse Semiconductor Corporation 741 Calle Plano Camarillo, California 93012 (805) 388-3700 (Name, address, including zip code, and telephone number, including area code, of agent for service) ----------------------- Copies to: Francis S. Currie, Esq. Martin A. Wellington, Esq. Kelly S. Boyd, Esq. Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, CA 94304 (650) 493-9300 ----------------------- Approximate date of commencement of proposed sale to the public: From time to time after the Effective Date of this Registration Statement. [ ] If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, check the following box. [X] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [ ] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. _____________ [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. _____________ [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. -----------------------
CALCULATION OF REGISTRATION FEE ================================================================================================================= Proposed Proposed Maximum Maximum Title of Each Class Amount Offering Aggregate Amount of of Securities to to be Price Offering Registration be Registered Registered Per Share (1) Price (1) Fee - ----------------------------------------------------------------------------------------------------------------- Common Stock..................................... 327,628 shares $44.03 $14,425,461 $4,011.00 =================================================================================================================
(1) Estimated solely for the purpose of calculating the amount of the registration fee, pursuant to Rule 457(c) under the Securities Act, based on the average of the high and low prices of the Common Stock on the Nasdaq National Market on February 18, 1999. ----------------------- The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. ================================================================================ Subject to Completion, dated February 19, 1999 327,628 Shares LOGO Common Stock ----------------------- All of the shares of common stock offered by this Prospectus (the "Shares") are being sold by the selling stockholders named under "Selling Stockholders" (the "Selling Stockholders"). Vitesse Semiconductor Corporation will not receive any of the proceeds from the sale of these shares. Our shares are listed for trading on The Nasdaq Stock Market's National Market under the symbol "VTSS". On February 18, 1999, the last reported sales price of our common stock on the Nasdaq National Market was $45.00. Investing in our common stock involves risks. See "Risk Factors" starting on page 4. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this Prospectus is truthful or complete. Any representation to the contrary is a criminal offense. We originally issued all of the Shares in connection with our acquisition of Serano Systems Corporation, a Colorado corporation ("Serano"). We are registering the Shares pursuant to an agreement between us and the former shareholders of Serano. The date of this Prospectus is April __, 1999. -2- ----------------------- TABLE OF CONTENTS
Page ---- The Company.................................... 4 Risk Factors................................... 4 Use of Proceeds................................ 9 Selling Stockholders........................... 9 Plan of Distribution........................... 11 Legal Matters.................................. 12 Experts........................................ 12 Available Information.......................... 13 Incorporation of Certain Documents by Reference................................. 13
----------------------- -3- THE COMPANY Vitesse is a leader in the design, development, manufacturing and marketing of digital gallium arsenide integrated circuits which are high-performance integrated circuits. Integrated circuits are necessary components to all electronic systems. Our principal executive officers are located at 741 Calle Plano, Camarillo, CA 93012 and our telephone number is (805) 388-3700. References to Vitesse, the Company, "we", "us" and "our" in this Prospectus refer to Vitesse Semiconductor Corporation and its subsidiaries unless the context requires otherwise. RISK FACTORS You should carefully consider the risks described below before making an investment decision. The risks and uncertainties described below are not the only ones facing our company. Our business, financial condition or results of operations could be materially adversely affected by any of the following risks. This Prospectus also contains forward-looking statement that involve risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of different factors, including the risks faced by us described below and elsewhere in this prospectus. We Are Dependent on a Small Number of Customers in a Few Industries We intend to continue focusing our sales effort on a small number of customers in the communications and test equipment markets that require high-performance integrated circuits. Some of these customers are also our competitors. In fiscal 1998, our two largest customers accounted for 23% and 15% of our total revenues and no other customers accounted for more than 10% of our total revenues. If any of our major customers delays orders of our products or stops buying our products, our business and financial condition would be severely affected. Our Operating Results May Fluctuate Our quarterly revenues and expenses may fluctuate in the future. These variations may be due to a number of factors, many of which are outside our control. Factors that could affect our future operating results include the following: . The loss of major customers . Variations, delays or cancellations of orders and shipments of our products . Reduction in the selling prices of our products . Significant changes in the type and mix of products being sold . Delays in introducing new products . Design changes made by our customers . Our failure to manufacture and ship products on time . Changes in manufacturing capacity, the utilization of this capacity and manufacturing yields -4- . Variations in product and process development costs; and . Changes in inventory levels In the past, we have recorded significant new product and process development costs because our policy is to expense these costs at the time that they are incurred. We may incur these types of expenses in the future. The occurrence of any of the above factors could have a material adverse effect on our business and on our financial results. We Have Limited Manufacturing Capacity and We Depend on a New Production Facility During 1998, we started producing high-performance integrated circuits at our new six-inch wafer fabrication factory in Colorado Springs, Colorado. This facility includes a 10,000 square-foot Class I clean room with capacity for future expansion to 15,000 square feet. We are faced with several risks in the successful operation of this facility as well as in our overall production operations. We have only produced finished four-inch wafers in the past and we have limited experience with the equipment and processes involved in producing finished six-inch wafers. We do not have excess production capacity at our Camarillo plant to offset failure of the new Colorado facility to meet production goals. Consequently, our failure to successfully operate the new facility could severely damage financial results. We also must now effectively coordinate and manage two facilities. We have limited experience in managing production facilities located at two different sites, and our failure to successfully do so could have a material adverse effect on our business and operating results. Our Industry is Highly Competitive The high-performance semiconductor market is extremely competitive and is characterized by rapid technological change, price-erosion and increased international competition. The communications and test equipment industries, which are our primary target markets, are also becoming intensely competitive because of deregulation and international competition. We compete directly or indirectly with the following categories of companies: . Gallium Arsenide fabrication operations of systems companies such as Rockwell and Fujitsu . Silicon high-performance integrated circuit manufacturers who use Emitter Coupled Logic ("ECL") or Bipolar Complementary Metal-Oxide-Semiconductor BiCMOS technologies such as Hewlett Packard, Fujitsu, Motorola, National Semiconductor, Texas Instruments and Applied Micro Circuits Corporation Additionally, in lower frequency applications we face increased competition with Complementary Metal-Oxide-Semiconductor ("CMOS")-based products, particularly as the performance of these products continues to improve. Our current and prospective competitors include many large companies that have substantially greater marketing, financial, technical and manufacturing resources than we have. -5- Competition in the markets that we serve is primarily based on price/performance, product quality and the ability to deliver products in a timely fashion. Some prospective customers may be reluctant to adopt our products because of perceived risks relating to H-GaAs ("High-integration Gallium Arsenide") technology. Additionally, product qualification is typically a lengthy process and some prospective customers may be unwilling to invest the time or expense necessary to qualify suppliers such as Vitesse. Prospective customers may also have concerns about the relative advantages of our products compared to more familiar silicon-based semiconductors. Further, customers may also be concerned about relying on a relatively small company for a critical sole-sourced component. To the extent we fail to overcome these challenges, there could be material and adverse effects on our business and financial results. Asian Economic Issues Our international business is subject to risks customarily encountered overseas such as the recent financial turmoil in Asia. Although we have not been materially impacted by the recent downturn in the Asian economy, similar problems in the future could affect us adversely. We Must Keep Pace With Product and Process Development and Technological Change The market for our products is characterized by rapid changes in both product and process technologies. We believe that our success to a large extent depends on our ability to continue to improve our product and process technologies and to develop new products and technologies in order to maintain our competitive position. Further, we must adapt our products and processes to technological changes and adopt emerging industry standards. Our failure to accomplish any of the above could have a negative impact on our business and financial results. We Are Dependent on Key Suppliers We manufacture our products using a variety of components procured from third- party suppliers. Most of our high-performance integrated circuits are packaged in plastic by third parties since we have no internal plastic packaging capability. We currently package the balance of our high-performance integrated circuits at the Camarillo facility using customized ceramic packaging, which is sole-sourced. Other components and materials used in our manufacturing process are available from only a limited number of sources. Any difficulty in obtaining sole- or limited-sourced parts or services from third parties could affect our ability to meet scheduled product deliveries to customers. This in turn could have a material adverse effect on our customer relationships, business and financial results. Our Manufacturing Yields Are Subject to Fluctuation Semiconductor fabrication is a highly complex and precise process. Defects in masks, impurities in the materials used, contamination of the manufacturing environment and equipment failures can cause a large percentage of wafers or die to be rejected. Manufacturing yields vary among products, depending on a particular high-performance integrated circuit's complexity and on our -6- experience in manufacturing it. In the past, we have experienced difficulties in achieving acceptable yields on some high-performance integrated circuits, which has led to shipment delays. Our overall yields are lower than yields obtained in a mature silicon process because we manufacture a large number of different products in limited volume and because our process technology is less developed. We anticipate that many of our current and future products may never be produced in volume. Since a majority of our manufacturing costs are relatively fixed, maintaining the number of shippable die per wafer is critical to our operating results. Yield decreases can result in higher unit costs and may lead to reduced gross profit and net income. We use estimated yields for valuing work-in-process inventory. If actual yields are materially different than these estimates, we may need to revalue work-in-process inventory. Consequently, if any of our current or future products experience yield problems, our financial results may be adversely affected. Our Business is Subject to Environmental Regulations We are subject to various governmental regulations related to toxic, volatile and other hazardous chemicals used in our manufacturing process. Our failure to comply with these regulations could result in the imposition of fines or in the suspension or cessation of our operations. Additionally, we may be restricted in our ability to expand operations at our present locations or we may be required to incur significant expenses to comply with these regulations. Our Failure to Manage Growth May Adversely Affect Us The management of our growth requires qualified personnel, systems and other resources. In particular, the continued operation of the new facility in Colorado Springs and its integration with the Camarillo facility will require significant management, technical and administrative resources. Additionally, we have recently established several product design centers worldwide. Finally, we acquired Vermont Scientific Technologies, Inc. in November 1998 and Serano Systems Corporation in January 1999, and we have only limited experience in integrating the operations of acquired businesses. Failure to manage our growth or to successfully integrate new and future facilities or newly acquired businesses could have a material adverse effect on our business and financial results. We Are Dependent on Key Personnel Due to the specialized nature of our business, our success depends in part upon attracting and retaining the services of qualified managerial and technical personnel. The competition for qualified personnel is intense. The loss of any our key employees or the failure to hire additional skilled technical personnel could have a material adverse effect on our business and financial results. Our Business Could Be Impacted by Year 2000 Issues -7- The "Year 2000 Problem" is the result of computer programs being written using two digits rather than four to define the applicable year. Computer programs that contain date-sensitive software may recognize a date using "00" as the year 1900 rather than the year 2000. This can affect both information technology (IT) and non-IT systems such as manufacturing equipment, as the latter may contain date-sensitive embedded devices such as microcontrollers. We have formed an internal task force to evaluate Year 2000 issues associated with both our IT and non-IT systems. Many of these systems are already compliant. We intend to replace or upgrade other systems that have been identified as non-compliant. We have not completely evaluated all the manufacturing equipment for Year 2000 compliance. We expect to substantially complete our remediation and testing procedures by July 1999. None of our products are date-sensitive and will operate according to specifications through the Year 2000 and thereafter. To date, we have not incurred incremental material costs associated with our efforts to become Year 2000 compliant, as the majority of the costs have occurred as a result of normal upgrade procedures. Furthermore, we believe that future costs associated with these compliance efforts will not be material. We may also be affected by Year 2000 compliance by our suppliers and customers. We have contacted several critical suppliers to determine whether the products and services they provide are Year 2000 compliant or to monitor their progress towards being fully compliant. Our business and results of operations could experience material adverse effects if our key suppliers were to experience Year 2000 issue that caused them to delay shipment of critical components to us. Based on our efforts to date, we do not believe that the Year 2000 Problem will have a material impact on our business or financial results. The most reasonably likely worst case would be minor delays in production and shipments. We have not developed a contingency plan detailing actions that will be taken in the event that our compliance efforts fail to fully remediate any risk to our operations. We are in the process of developing a contingency plan and expect that it will be completed by July 1999. The information in this risk factor is "Year 2000 Readiness Disclosure" within the meaning of the Year 2000 Information and Readiness Disclosure Act. -8- USE OF PROCEEDS The Company will not receive any of the proceeds from the sale of the Shares. All proceeds from the sale of the Shares will be for the account of the Selling Stockholders, as described below. See "Selling Stockholders" and "Plan of Distribution" described below. SELLING STOCKHOLDERS The Selling Stockholders acquired the Shares in connection with the Company's acquisition of Serano on January 21, 1999. The following is a list of officers of Serano prior to the acquisition who are Selling Stockholders: Robert J. Edens, Jr. - President and Chief Executive Officer A. Ashutosh - Vice President, Software Development and Assistant Secretary John J. Ives - Vice President, Marketing and Business Development, Treasurer and Secretary Mark J. Jander - Vice President, Hardware Development The following table sets forth, as of the date of this Prospectus, the name of each of the Selling Stockholders, the number of Shares that each such Selling Stockholder owns as of such date, the number of Shares owned by each Selling Stockholder that may be offered for sale from time to time by this Prospectus, and the number of Shares to be held by each such Selling Stockholder assuming the sale of all of the Shares offered hereby. Except as indicated, none of the Selling Stockholders has held any position or office or had a material relationship with the Company or any of its affiliates within the past three years other than as a result of the ownership of the Company's Common Stock. The Company may amend or supplement this Prospectus from time to time to update the disclosure set forth herein. -9-
Shares Shares Owned Shares Beneficially Owned Being After Prior to Offering Percent Offered Offering Name Number (1) (1) (2) (2) - ------------------------------ ------------------------- -------- -------- ------------- Michael B. Anderson 76 * 76 A. Ashutosh 49,848 * 49,848 Hugh N. Chapman 4,793 * 4,793 Robert J. Edens, Jr. 49,959 * 49,959 Robert L. Etzkom, Jr. 958 * 958 Manoj Gupta and Sapna Gupta JTWROS 2,396 * 2,396 Samer A. Abuel-Haija 718 * 718 Timothy D. Hornback 3,594 * 3,594 Jerome C. Ives and Nancy Peek Ives, JT 4,793 * 4,793 John J. Ives 47,931 * 47,931 Mark J. Jander 47,931 * 47,931 Jeffrey D. Kasyon 1,437 * 1,437 Ann M. Koontz (Hepler) 1,437 * 1,437 Glen P. Kozivk 2,396 * 2,396 LSI Logic Corporation 57,517 * 57,517 Robert M. Lester and Norissa F. Lester, JT 5,308 * 5,308 Joseph R. Mathis 287 * 287 L. Martin Nussbaum 575 * 575 Pamela J. Perkins TOD, Steven J. Perkins 4,793 * 4,793 Brian Purvis 1,509 * 1,509 Prakash Ramanan and Bharathl Ramanan, JTWROS 2,396 * 2,396 John C. Ridges 9,586 * 9,586 Kurt W. Shetler 359 * 359 Reuben K. Sparks, Jr. 1,917 * 1,917 Reuben K. Sparks, III. 1,342 * 1,342 Gregory A. Tabor 3,642 * 3,642 Philip J. Tubb 4,793 * 4,793 Robert M. Wilson 958 * 958 Stace S. Wilson 9,586 * 9,586
-10- _________________ *Represents less than 1% of the outstanding shares of Common Stock (1) The number and percentage of shares beneficially owned is determined in accordance with Rule 13d-3 of the Exchange Act, and the information is not necessarily indicative of beneficial ownership for any other purpose. Under such rule, beneficial ownership includes any shares as to which the individual has sole or shared voting power or investment power and also any shares which the individual has the right to acquire within 60 days of the date of this Prospectus through the exercise of any stock option or other right. (2) Assumes the sale of all Shares offered hereby. Each Selling Stockholder above is having all of the shares of the Company's Common Stock owned by them registered hereon. The Company is unaware of whether such Selling Stockholders intend to sell any, some or all of such shares. None, some or all of such shares may be sold. PLAN OF DISTRIBUTION In connection with the Company's acquisition of Serano, the Company entered into a Registration Rights Agreement with the Selling Stockholders (the "Agreement"), a copy of which is attached as an Exhibit to the registration statement of which this Prospectus is a part (the "Registration Statement"). The Registration Statement has been filed pursuant to the Agreement. To the Company's knowledge, the Selling Stockholder has not entered into any agreement, arrangement or understanding with any particular broker or market maker with respect to the Shares, nor does the Company know the identity of the brokers or market makers which will participate in the offering. The Shares covered hereby may be offered and sold from time to time by the Selling Stockholders. Subject to agreements between the Selling Stockholders and the Company, the Selling Stockholders will act independently of the Company in making decisions with respect to the timing, manner and size of each sale. The Selling Stockholders plan to sell the Shares offered hereby only in brokers' transactions, as defined in Rule 144 promulgated under the Securities Act. In general, brokers' transactions are ones in which the broker merely executes the sell order, receives no more than the customary commission and does not solicit orders to buy the Shares. No assurances can be given that the Selling Stockholders will sell any of the Shares subject to this Prospectus or that the Selling Stockholders will not sell such Shares in a private transaction or other transaction that is exempt from the registration requirements of the Securities Act. The Company has been advised by the Selling Stockholders that they have not, as of the date hereof, entered into any arrangement with a broker-dealer for the sale of Shares. In effecting sales, broker-dealers engaged by the Selling Stockholders may arrange for other broker-dealers to participate. Broker-dealers will receive commissions or discounts from the Selling Stockholders in amounts to be negotiated immediately prior to the sale. The Selling Stockholders may also loan or pledge the Shares registered hereunder to a broker-dealer and the broker-dealer may sell the Shares so loaned or upon a default the broker-dealer may effect sales of the pledged Shares pursuant to this Prospectus. -11- In offering the Shares, the Selling Stockholders and any broker-dealers who execute sales for the Selling Stockholders may be deemed to be "underwriters" within the meaning of the Securities Act in connection with such sales, and any profits realized by the Selling Stockholders and the compensation of each broker-dealer may be deemed to be underwriting discounts and commissions. Rule 102 of Regulation M prohibits a Selling Stockholder in a distribution from bidding for or purchasing, directly or indirectly, any of the securities which are the subject to the distribution. Rule 104 under Regulation M governs bids and purchases made to stabilize the price of a security in connection with a distribution of the security. The Selling Stockholders have agreed not to sell any of the Shares offered hereby without first submitting a written notice to the Company (the "Notice of Resale"). The Company has in turn agreed to notify the Selling Stockholders as soon as practicable, but in no event more than ten business days after receipt of the Notice of Resale, whether it believes this Prospectus is current (with the Company using the ten business day period to supplement this Prospectus or make an appropriate filing under the Exchange Act) or should be amended prior to use in connection with such sale (with the Company amending the Registration Statement as soon as practicable). Once the Company has notified the Selling Stockholders that this Prospectus is available to use, the Selling Stockholders will have up to 60 days within which to sell Shares of Common Stock subject to compliance with the Company's policies applicable to executive officers of the Company, including trading windows. This offering will terminate as to the Selling Stockholders on the earlier of January 21, 2000, or the date on which all Shares offered hereby have been sold by the Selling Stockholders. There can be no assurance that the Selling Stockholders will sell any or all of the Shares offered hereby. LEGAL MATTERS The validity of the Shares offered hereby will be passed upon by Wilson Sonsini Goodrich & Rosati, Professional Corporation, Palo Alto, California, counsel to the Company. EXPERTS The consolidated financial statements and the related financial statement schedule of Vitesse Semiconductor Corporation as of September 30, 1998, and for each of the years in the three-year period ended September 30, 1998, have been incorporated by reference herein and in the Registration Statement in reliance upon the report of KPMG LLP, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. -12- WHERE YOU CAN FIND MORE INFORMATION The Company is subject to the informational reporting requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Commission. Such reports, proxy statements and other information filed by the Company can be inspected without charge and copied at the public reference facilities of the Commission located at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's regional offices at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, IL 60661 and Seven World Trade Center, 13th Floor, New York, NY 10048. Copies of such material also can be obtained from the Public Reference Section of the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. Information regarding the operation of the Public Reference Room may be obtained by calling the Commission at 1-800-SEC- 0330. The Commission maintains a World Wide Web site that contains reports, proxy and information statements and other information regarding registrants that is filed electronically with the Commission. The address of that site is http://www.sec.gov. The Company's common stock is traded on the Nasdaq National Market. The foregoing materials should also be available for inspection at the National Association of Securities Dealers, Inc., 9513 Key West Avenue, Rockville, MD 20850. This Prospectus contains information concerning Vitesse Semiconductor Corporation and the sale of its common stock by the Selling Shareholders, but does not contain all the information set forth in the Registration Statement, which the Company has filed with the Commission under the Securities Act. The Registration Statement, including various exhibits, may be inspected at the Commission's office in Washington, D.C. The following documents filed with the Commission are incorporated herein by reference: (a) The Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 1998, filed pursuant to Section 13(a) or 15(d) of the Exchange Act. (b) The Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1998, filed pursuant to Section 13(a) or 15(d) of the Exchange Act. (c) The description of the Company's common stock which is contained in the Company's Registration Statement on Form 8-A filed with the Commission on November 8, 1991, pursuant to Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating any such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post- effective amendment which indicates -13- that all securities registered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. The Company will provide without charge to each person, including any beneficial owner, to whom this Prospectus is delivered, upon written or oral request of such person, a copy of any and all of the information that has been or may be incorporated by reference in this Prospectus, other than exhibits to such documents. Requests for such copies should be directed in writing to Vitesse Semiconductor Corporation, 741 Calle Plano, Camarillo, CA 93012, Attention: Vice President and Controller, by calling (805) 388-7559, or by e- mailing invest@vitesse.com. No person is authorized in connection with any offering made by this Prospectus to give any information or to make any representations not contained in this Prospectus, and, if given or made, such information or representations must not be relied upon as having been authorized by the Company, any Selling Stockholder or by any other person. This Prospectus does not constitute an offer to sell or a solicitation of an offer to buy any security other than the Shares offered hereby, nor does it constitute an offer to sell or a solicitation of an offer to buy any of the Shares offered hereby to any person in any jurisdiction in which it is unlawful to make such an offer or solicitation. Neither the delivery of this Prospectus nor any sale of or offer to sell the Shares made hereunder shall under any circumstances create any implication that there has been no change in the affairs of the Company since the date hereof or that the information contained herein is correct as of any time subsequent to the date hereof. ----------------------- -14- PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The Company will pay all expenses incident to the offering and sale to the public of the shares being registered other than any commissions and discounts of underwriters, dealers or agents and any transfer taxes. Such expenses are set forth in the following table. All of the amounts shown are estimates except the Securities and Exchange Commission ("SEC") registration fee. SEC registration fee........................................... $ 4,011 --------- Legal fees and expenses........................................ 15,000 --------- Accounting fees and expenses................................... 30,000 --------- Miscellaneous expenses......................................... $ 989 --------- Total....................................................... $ 50,000 =========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation's Board of Directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act. Paragraph 9 of the Registrant's Amended Certificate of Incorporation and Article 6 of the Registrant's Bylaws provide for indemnification of the Registrant's directors and officers to the maximum extent permitted by the Delaware General Corporation Law. The Registrant also maintains, and intends to continue to maintain, insurance for the benefit of its directors and officers to insure such persons against certain liabilities, including liabilities under the Securities laws. Reference is also made to Section 8 of the Registration Rights Agreement (Exhibit 4.1 hereof) indemnifying officers and directors of the Registration against certain liabilities. ITEM 16. EXHIBITS 3.1 Amended and Restated Certificate of Incorporation. 4.1 Registration Rights Agreement by and among Vitesse Semiconductor Corporation, the Selling Stockholders and Serano. 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation. 23.1 Consent of KPMG LLP, Independent Accountants. 23.2 Consent of Counsel (included in Exhibit 5.1). -15- 24.1 Power of Attorney (included on page II-4). ITEM 17. UNDERTAKINGS A. UNDERTAKING PURSUANT TO RULE 415 The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of this offering. B. UNDERTAKING REGARDING FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. UNDERTAKING IN RESPECT OF INDEMNIFICATION Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of -16- 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. -17- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Camarillo, State of California, on this 18th day of February, 1999. VITESSE SEMICONDUCTOR CORPORATION By: /s/ Louis R. Tomasetta ------------------------------------- Louis R. Tomasetta PRESIDENT AND CHIEF EXECUTIVE OFFICER POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Louis R. Tomasetta and Eugene F. Hovanec and each of them, as attorneys-in-fact, each with the power of substitution, for him or her in any and all capacities, to sign any amendment to this Registration Statement and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. -18- Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons on the 18th day of February 1999 in the capacities indicated.
Signature Title --------- ----- /s/ Louis R. Tomasetta President, Chief Executive Officer, and Director - ---------------------- (principal executive officer) Louis R. Tomasetta /s/ Eugene F. Hovanec Vice President, Finance and Chief Financial - --------------------- Officer (principal financial and accounting Eugene F. Hovanec officer) /s/ James A. Cole Director - ----------------- James A. Cole /s/ Pierre R. Lamond Chairman of the Board of Directors - -------------------- Pierre R. Lamond /s/ John C. Lewis Director - ----------------- John C. Lewis /s/ Alex Daly Director - ------------- Alex Daly
-19- INDEX TO EXHIBITS
Exhibit Number Description ------- ----------- 3.1 Amended and Restated Certificate of Incorporation. 4.1 Registration Rights Agreement by and among Vitesse Semiconductor Corporation, the Selling Stockholders and Serano. 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation. 23.1 Consent of KPMG LLP, Independent Accountants. 23.2 Consent of Counsel (included in Exhibit 5.1). 24.1 Power of Attorney (included on page II-4).
-20- EX-3.1 2 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION Exhibit 3.1 ----------- Amended and Restated Certificate of Incorporation AMENDED AND RESTATED CERTIFICATE OF INCORPORATION ------------------------------------------------- OF -- VITESSE SEMICONDUCTOR CORPORATION --------------------------------- The undersigned Eugene F. Hovanec does hereby verify that: 1. He is the duly elected Vice President, Finance, Chief Financial Officer and Secretary of Vitesse Semiconductor Corporation, a Delaware corporation. 2. The Certificate of Incorporation of this corporation is amended and restated to read in its entirety as follows: 1. The name of the corporation is Vitesse Semiconductor Corporation (the "Corporation"). 2. The address of the Corporation's registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, zip code 19801. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which Corporations may be organized under the General Corporation Law of Delaware. 4. This Corporation is authorized to issue two classes of shares to be designated respectively Preferred Stock ("Preferred") and Common Stock ("Common"). The total number of shares of Preferred this Corporation shall have authority to issue shall be 10,000,000, $.01 par value, and the total number of Common this Corporation shall have authority to issue shall be 100,000,000, $.01 par value. The Preferred Stock may be issued from time to time in one or more series pursuant to a resolution or resolutions providing for such issue duly adopted by the Board of Directors (authority to do so being hereby expressly vested in the Board). The Board of Directors is further authorized to determine or alter the rights, preferences, privileges and restrictions granted to or imposed upon any wholly unissued series of Preferred Stock and, to fix the number of shares of any series of Preferred Stock and the designation of any such series of Preferred Stock. The Board of Directors, within the limits and restrictions stated in any resolution or resolutions of the Board of Directors originally fixing the number of shares constituting any series, may increase or decrease (but not below the number of shares in any such series then outstanding) the number of shares of any series subsequent to the issue of shares of that series. 5. The Corporation is to have perpetual existence. 6. Elections of directors need not be by written ballot unless a stockholder demands election by written ballot at the meeting and before voting begins or unless the Bylaws of the Corporation shall so provide. 7. The number of directors which constitute the whole Board of Directors of the Corporation shall be designated in the Bylaws of the Corporation. 8. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter, amend or repeal the Bylaws of the Corporation. 9. (a) To the fullest extent permitted by the Delaware General Corporation Law as the same exists or as may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. (b) The Corporation shall indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or any predecessor of the Corporation or serves or served at any other enterprise as a director, officer or employee at the request of the Corporation or any predecessor to the Corporation. (c) Neither any amendment nor repeal of this Article 9, nor the adoption of any provision of this Corporation's Certificate of Incorporation inconsistent with this Article 9, shall eliminate or reduce the effect of this Article 9 in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Article 9, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision. 10. Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws may provide. The books of the Corporation may be kept (subject to any provision contained in the statutes) outside of the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation. 11. Following the effectiveness of the registration of any class of securities of the Corporation pursuant to the requirements of the Securities Exchange Act of 1934, as amended, no action shall be taken by the stockholders of the Corporation except at an annual or special meeting of the stockholders call in accordance with the Bylaws and no action shall be taken by the stockholders by written consent. 3. The foregoing amendment and restatement of the Certificate of Incorporation has been duly approved by the Board of Directors. 4. The foregoing amendment and restatement of the Certificate of Incorporation has been duly approved by the required vote of stockholders in accordance with Section 242 of the General Corporation Law of the State of Delaware. The total number of outstanding shares of Common Stock of the Corporation is 74,798,956 and there are no shares of Preferred Stock outstanding. The number of shares voting in favor of the Amended and Restated Certificate of Incorporation equalled or exceeded the vote required. The percentage vote required was more than 50% of the Common voting as a class. Notice has been given to any non-consenting stockholders in accordance with the provisions of Section 228(c) of the General Corporation Law of the State of Delaware. The undersigned declares under penalty of perjury under the laws of the State of Delaware that the matters set forth in this certificate are true, correct and of his own knowledge. Executed at Camarillo, California on February 11, 1998. ______________________________ Eugene F. Hovanec Vice President, Finance & Chief Financial Officer and Secretary EX-4.1 3 REGISTRATION RIGHTS AGREEMENT Exhibit 4.1 ----------- Registration Rights Agreement VITESSE SEMICONDUCTOR CORPORATION REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (the "Agreement") is made effective as of January ___, 1999 (the "Effective Date"), by and among Vitesse Semiconductor Corporation, a Delaware corporation (the "Parent"), Serano Systems Corporation, a Colorado corporation (the "Company") and all shareholders of the Company (the "Shareholders"). RECITALS -------- A. The Company, Parent, Pepper Acquisition Corp., a Delaware corporation ("Sub") and certain others, are parties to the Agreement and Plan of Reorganization dated January ___, 1999 (together with the exhibits and schedules thereto, the "Merger Agreement"), pursuant to which Sub shall be merged with and into the Company, the separate corporate existence of Sub shall cease and the Company shall continue as the surviving corporation and as a wholly-owned subsidiary of Parent. B. Pursuant to the Merger Agreement, among other things, all of the issued and outstanding shares of capital stock of the Company shall be converted into the right to receive shares of common stock of Parent (the "Shares"). AGREEMENT --------- NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth, all parties hereto agree as follows: 1. Certain Definitions. As used in this Agreement, the following terms ------------------- shall have the following respective meanings: "Black-Out Period" means any period during which executive officers and ---------------- directors of Parent are generally prohibited from engaging in trades in Parent's securities pursuant to Parent's Insider Trading Policy. "Commission" means the Securities and Exchange Commission or any other ---------- Federal agency at the time administering the Securities Act. "Exchange Act" means the Securities Exchange Act of 1934, as amended, or ------------ any similar Federal rule or statute and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. "Holder" means any of LSI and the Shareholders, for so long as such person ------ holds any Registrable Securities, or any person holding Registrable Securities to whom the rights under this Agreement have been transferred in accordance with Section 11 hereof. "Insider Trading Policy" means the policy adopted by Parent's Board of ---------------------- Directors, as such may be amended from time to time, relating to transactions in Parent's securities by Parent's executive officers and directors. "Permitted Window" means the period during which a Holder entitled to sell ---------------- Registrable Securities pursuant to a registration statement under Section 5(a) of this Agreement shall be permitted to sell Registrable Securities pursuant to such a registration. Except as otherwise set forth in this Agreement, a Permitted Window shall (i) commence upon the tenth business day following receipt by Parent of a written notice from a Holder to Parent that such Holder intends to sell Shares pursuant to such registration statement, or such earlier date as Parent may agree to, and shall (ii) terminate upon the commencement of a Black-Out Period. "Registrable Securities" means the Shares and any Common Stock of Parent ---------------------- issued or issuable in respect thereof upon any conversion, stock split, stock dividend, recapitalization, merger or other reorganization; provided, however, -------- ------- that securities shall only be treated as Registrable Securities if and so long as they have not been registered or sold to or through a broker or dealer or underwriter in a public distribution or a public securities transaction. "Register," "registered" and "registration" refer to a registration -------- ---------- ------------ effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement. "Registration Expenses" means all expenses, except Selling Expenses, --------------------- incurred by Parent in complying with Section 5 hereof, including without limitation, all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for Parent, blue sky fees and expenses, the expense of any special audits incident to or required by any such registration (but excluding the compensation of regular employees of Parent which shall be paid in any event by Parent). "Restricted Securities" means the securities of Parent required to bear a --------------------- legend as described in Section 3 hereof. "Securities Act" means the Securities Act of 1933, as amended, or any -------------- similar Federal rule or statute and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. "Selling Expenses" means all underwriting discounts, selling commissions ---------------- and stock transfer taxes applicable to the securities registered by the Holders and all fees and disbursements of counsel for any Holder. 2. Restrictions on Transferability. The Restricted Securities and any ------------------------------- other securities issued in respect of such securities upon any stock split, stock dividend, recapitalization, merger or other reorganization, shall not be sold, assigned, transferred or pledged except upon the conditions -2- specified in this Agreement, which conditions are intended to ensure compliance with the provisions of the Securities Act. Each Holder or transferee will cause any proposed purchaser, assignee, transferee, or pledgee of any such securities held by the Holder or transferee to agree to take and hold such securities subject to the restrictions and upon the conditions specified in this Agreement, including without limitation the restrictions set forth in Section 4. 3. Restrictive Legend. Each certificate representing the Shares or any ------------------ other securities issued in respect of such securities upon any stock split, stock dividend, recapitalization, merger or other reorganization shall be stamped or otherwise imprinted with the following legends: THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER SAID ACT IS IN EFFECT AS TO SUCH TRANSFER OR, IN THE OPINION OF COUNSEL SATISFACTORY TO THE ISSUER, SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER SAID ACT Each Holder consents to Parent making a notation on its records and giving instructions to any transfer agent of its capital stock in order to implement the restrictions on transfer established in this Agreement and the Purchase Agreement. 4. Notice of Proposed Transfers. The holder of each certificate ---------------------------- representing Restricted Securities by acceptance thereof agrees to comply in all respects with the provisions of this Section 4. Without in any way limiting the immediately preceding sentence or the provisions of Section 2, no sale, assignment, transfer or pledge (other than (i) a sale made pursuant to a registration statement filed under the Securities Act and declared effective by the Commission or (ii) a sale made in accordance with the applicable provisions of Rule 144) of Restricted Securities shall be made by any holder thereof to any person unless such person shall first agree in writing to be bound by the restrictions of this Agreement, including without limitation this Section 4. Prior to any proposed sale, assignment, transfer or pledge of any Restricted Securities, unless there is in effect a registration statement under the Securities Act covering the proposed transfer, the holder thereof shall give written notice to Parent of such holder's intention to effect such transfer, sale, assignment or pledge. Each such notice shall describe the manner and circumstances of the proposed transfer, sale, assignment or pledge in sufficient detail, and, if requested by Parent, the holder shall also provide, at such holder's expense, a written opinion of legal counsel (who shall be, and whose legal opinion shall be, reasonably satisfactory to Parent) addressed to Parent, to the effect that the proposed transfer of the Restricted Securities may be effected without registration under the Securities Act and under applicable state securities laws and regulations. Upon delivery to Parent of such notice and, if required, such opinion, the holder of such Restricted Securities shall be entitled to transfer such Restricted Securities in accordance with the terms of such notice. Parent agrees that it shall not request such an opinion of counsel with respect to (i) a transfer not involving a change in beneficial ownership, (ii) a transaction involving the transfer without consideration of Restricted Securities by an individual holder during such holder's lifetime by way of gift or on death by will or intestacy. Each certificate evidencing the Restricted Securities transferred as above provided shall -3- bear, except if such transfer is made pursuant to Rule 144, the appropriate restrictive legend set forth in Section 3 above, except that such certificate shall not bear such restrictive legend if, in the opinion of counsel for such holder and counsel for Parent, such legend is not required in order to establish or ensure compliance with any provision of the Securities Act. 5. Registration on Form S-3. ------------------------ (a) Registration. Parent shall use its commercial best efforts to ------------ cause a registration statement on Form S-3 (or any successor form, collectively, a "Form S-3") covering all Registrable Securities to be filed and declared effective no later than the second day after the day that Parent publicly announces financial results covering at least thirty (30) days of combined operations of Parent and Company. Parent shall use its commercially reasonable efforts to keep such registration statement effective until the first anniversary of the date of this Agreement, or such earlier date upon which no Holder holds any Registrable Securities. Upon receipt of a notice from any Holder that such Holder intends to sell Registrable Securities during a Permitted Window, Parent shall, prior to the commencement of the Permitted Window, inform the other Holders of the commencement of the Permitted Window. Parent shall notify each of the Holders of the termination of a Permitted Window no later than the time Parent notifies its executive officers and directors of the corresponding Black-Out Period; provided, however, that Parent need not -------- ------- notify the Holders of regularly scheduled Black-Out Periods relating to the closing of Parent's fiscal quarters, which periods commence on the fifteenth day prior to the end of the last month of each fiscal quarter and terminate twenty- four hours after Parent publicly announces its results for such quarters. (b) Limitations on Registration and Sale of Registrable Securities. -------------------------------------------------------------- Notwithstanding anything in this Agreement to the contrary, Parent's obligations and the Holders' rights under this Section 5 are subject to the limitations and qualifications set forth below, which may be waived in writing by Parent. (i) Parent shall have no obligation to keep effective a registration statement hereunder following such time as each Holder is eligible to sell all of its Registrable Securities in a three month period under the applicable provisions of Rule 144. (ii) The Holders will sell Registrable Securities pursuant to a registration effected hereunder only during a Permitted Window. (iii) If Parent furnishes to the Holders a certificate signed by the President Chief Financial Officer of Parent stating that, in the good faith judgment of the Board of Directors of Parent, it would be seriously detrimental to Parent for a Form S-3 registration to be effected, or a Permitted Window to be in effect, due to (A) the existence of a material development or potential material development involving Parent which Parent would be obligated to disclose in the prospectus contained in the Form S-3 registration statement, which disclosure would in the good faith judgment of the Board of Directors be premature or otherwise inadvisable, (B) the existence of other facts or circumstances as a result of which the prospectus contained or to be contained in the Form S-3 registration statement includes or would include an untrue statement of a material fact or omits or would omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made or then -4- existing or (C) Parent's bona fide intention to effect the filing of a registration statement with the Commission within sixty (60) days of the receipt of a notice from a Holder that it intends to sell Registrable Securities during a Permitted Window, Parent may defer the filing of the Form S-3 registration statement or delay the commencement of a Permitted Window or may effect an early termination of a Permitted Window that has commenced, as the case may be. Parent may elect to so defer, delay or terminate under clause (A) above only to the extent that the event described in clause (A) also gives rise to a Black-Out Period applicable to all of Parent's executive officers and directors under Parent's Insider Trading Policy. If Parent elects to so defer, delay or terminate under clause (B) above, Parent shall use its commercially reasonable efforts to amend the registration statement or take such other action as may be necessary to eliminate the situation described in clause (B) as soon as practicable. Any Holder receiving any notice from Parent with respect to the matters covered by this Section 5(b)(iii) shall keep the fact and content of such notice, and the event or circumstances giving rise to such notice, confidential. (iv) The obligations of Parent hereunder are conditioned upon its being eligible to register its securities on Form S-3 or at the time any such registration is otherwise required hereunder; (v) At any time that Parent is obligated under this Agreement to permit the Holders to sell Registrable Securities pursuant to a registration statement on Form S-3, Parent may, instead of maintaining an effective registration statement on Form S-3 for the benefit of the Holders, include such Registrable Securities in a registration effected for the benefit of Parent and/or other selling stockholders. In the event that such registration is in connection with an underwritten offering, the Holders participating in such registration shall enter into an underwriting agreement in customary form with the managing underwriter selected by Parent, notwithstanding the provisions of Section 5(c). (vi) Notwithstanding anything to the contrary in this Agreement, Parent shall have no obligation to effect a registration hereunder, and no Permitted Window will exist, with respect to Registrable Securities that are subject to the escrow provisions of the Merger Agreement (including any agreement which is an exhibit thereto) during the time that such Registrable Securities are subject to such provisions and no Holder shall sell any such Registrable Securities pursuant to a registration hereunder, or pursuant to Rule 144, during any such period. (c) Underwriting. At the election of the Holders representing a majority ------------ of the Registrable Securities that are proposed to be sold during a Permitted Window (the "Deciding Holders"), all sales of Registrable Securities under this Section 5 during such Permitted Window shall be made through an underwriting managed by an underwriter selected by Parent and acceptable to Deciding Holders (the "Managing Underwriter"). Parent shall, together with all Holders proposing to distribute their Registrable Securities though such underwriting, enter into an underwriting agreement in customary form with the Managing Underwriter. If any Holder of Registrable Securities disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to Parent. Any Holder so withdrawing shall not sell any Registrable Securities pursuant to a registration effected under this Agreement until after the completion of such underwritten distribution. Nothing in this section shall require the holders to select and sell any of the Shares through a Managing Underwriter. -5- (d) Registration Procedures. In connection with any registration required ----------------------- under this Agreement, Parent shall take the actions set forth below. (i) Prior to filing any registration statement, prospectus, amendment or supplement with the Commission in connection with any registration hereunder, Parent shall furnish to one counsel selected by the Holders of a majority of the Registrable Securities copies of such documents. (ii) Parent shall notify each Holder of any stop order issued or threatened by the Commission and will take all reasonable actions required to prevent the entry of such stop order or to remove it if entered. (iii) Parent shall comply with the provisions of the Securities Act with respect to the disposition of all securities covered by a registration statement filed pursuant to this Agreement with respect to the disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the Holders as set forth in such registration statement. (iv) Parent shall furnish to each Holder and each underwriter, if any, of Registrable Securities covered by a registration statement filed pursuant to this Agreement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto), and the prospectus included in such registration statement (including each preliminary prospectus), in conformity with the requirements of the Securities Act, and such other documents as a selling Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder. (v) Parent shall use its best efforts to register or qualify the Registrable Securities under the securities or "blue sky" laws of each State of the United States of America as any of the Holders or underwriters, if any, of the Registrable Securities covered by a registration statement filed hereunder reasonably requests, and shall do any and all other acts and things which may be reasonably necessary or advisable to enable each selling Holder and each underwriter, if any, to consummate the disposition in such States of the Registrable Securities owned by such selling Holders; provided that Parent shall -------- not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction. (vi) Parent shall immediately notify each Holder entitled to sell Registrable Securities during a Permitted Window of the happening of any event which comes to Parent's attention if, as a result of such event, the prospectus included in the registration statement filed under this Agreement contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent shall promptly prepare and furnish to each Holder and file with the Commission a supplement or amendment to such prospectus so that such prospectus will no longer contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. -6- (vii) Parent shall take all such other reasonable and customary actions as each Holder or the underwriters, if any, may reasonably request in order to expedite or facilitate the disposition of the Registrable Securities in accordance with the terms of this Agreement. (viii) Parent shall make available for inspection by the Holders, any underwriter participating in any disposition pursuant to a registration statement filed under this Agreement, and any attorney, accountant or other agent retained by such Holders or underwriters, all financial and other records, pertinent corporate documents and properties of Parent and its subsidiaries, as such person may reasonably request for the purpose of confirming that such registration statement does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, provided that Parent obtains reasonably satisfactory assurances that such information will be used solely for such purpose and will be held in confidence (except to the extent that it is included in the registration statement). Parent shall cause the officers, directors and employees of Parent and each of its subsidiaries to supply such information and respond to such inquiries as any Holder or underwriter may reasonably request or make for the purpose of confirming that such registration statement does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, provided that Parent obtains reasonably satisfactory assurances that such information will be used solely for such purpose and will be held in confidence (except to the extent that it is included in the registration statement). 6. Other Registration Rights. The Holders acknowledge that certain other ------------------------- stockholders of Parent may now or hereafter have registration rights, and that such other stockholders may be entitled to sell their securities at the same time, or pursuant to the same registration and underwriting, as the Holders hereunder. 7. Expenses of Registration. All Registration Expenses incurred in ------------------------ connection with Parent's obligations hereunder shall be borne by Parent. All Selling Expenses relating to securities proposed to be registered hereunder and all other registration expenses shall be borne by the Holders of such securities pro rata on the basis of the number of shares proposed to be sold by each of them during the applicable Permitted Window. 8. Indemnification. --------------- (a) Parent will indemnify each Holder, each of its officers and directors and partners, and each person controlling such Holder within the meaning of Section 15 of the Securities Act, with respect to which registration has been effected pursuant to this Agreement, against all expenses, claims, losses, damages or liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading and Parent will reimburse each such Holder, each of its officers, directors and partners, and each person controlling such Holder, for any legal -7- and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, provided that Parent will not be liable in any such case to the extent that any - -------- such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to Parent by an instrument duly executed by such Holder or controlling person, and stated to be specifically for use therein; and provided, further, that the foregoing -------- ------- indemnity Agreement is subject to the condition that, insofar as it relates to any such untrue statement, alleged untrue statement, omission or alleged omission made in a preliminary prospectus, such indemnity agreement shall not inure to the benefit of any person, if a copy of the final prospectus or an amended or supplemented prospectus, as applicable, was not furnished to the person asserting the loss, liability, claim or damage at or prior to the time such action is required by the Securities Act, and if the final prospectus or the amended or supplemented prospectus, as applicable, would have cured the defect giving rise to the loss, liability, claim or damage. In no event, however, shall Parent have any indemnification obligation to the extent that the expenses, claims, losses, damages or liabilities as to which indemnification is sought are in connection with an offer or sale made by a person other than Parent in violation of the terms of this Agreement (a "Violation"). (b) Each Holder will, if Registrable Securities held by such Holder are included in the securities as to which a registration hereunder is effected, indemnify Parent, each of its directors and officers, each person who controls Parent within the meaning of Section 15 of the Securities Act, and each other such Holder, each of its officers and directors and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on (i) a Violation by such Holder or (ii) any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse Parent, such Holders, such directors, officers or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, but, in the case of clause (ii) above, only to the extent that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with information furnished to Parent by such Holder. Notwithstanding the foregoing, the liability of each Holder under this subsection 8.7(b) shall be limited in an amount equal to the initial public offering price of the shares sold by such Holder, unless such liability arises out of or is based on a Violation or willful misconduct by such Holder. (c) Each party entitled to indemnification under this Section 8 (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this -8- Agreement unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action and provided further, that the Indemnifying Party shall not assume the defense for matters as to which there is a conflict of interest or there are separate and different defenses. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party (whose consent shall not be unreasonably withheld), consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. 9. Information by Holder. The Holder or Holders of Registrable Securities --------------------- included in any registration hereunder shall furnish to Parent such information regarding such Holder or Holders, the Registrable Securities held by them and the distribution proposed by such Holder or Holders as Parent may request in writing and as shall be required in connection with any registration referred to in this Agreement. 10. Rule 144 Reporting. With a view to making available the benefits of ------------------ certain rules and regulations of the Commission which may permit the sale of the Restricted Securities to the public without registration Parent agrees to use all reasonable efforts, at any time after the first anniversary of the Effective Date, to: (a) Make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act; and (b) File with the Commission in a timely manner all reports and other documents required of Parent under the Securities Act and the Exchange Act. 11. Transfer of Registration Rights. The rights to cause Parent to ------------------------------- register securities granted to Holders under Section 5 may be assigned to a transferee or assignee reasonably acceptable to Parent in connection with any transfer or assignment of Registrable Securities by the Holder, provided that (i) such transfer is otherwise effected in accordance with applicable securities laws and the terms of this Agreement, (ii) such assignee or transferee acquires at least 50,000 shares of Registrable Securities (as adjusted for stock splits, stock dividends, stock combinations and the like), (iii) written notice is promptly given to Parent and (iv) such transferee agrees in writing to be bound by the provisions of this Agreement. Notwithstanding the foregoing, the rights to cause Parent to register securities may be assigned without compliance with item (ii) above to a family member or trust for the benefit of a Holder who is an individual, or a trust for the benefit of a family member of such a Holder. 12. Amendment. Except as otherwise provided above, any provision of this --------- Agreement may be amended or the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of Parent and Holders of a majority of the Registrable Securities remaining at the time such amendment or waiver is made. 13. Governing Law. This Agreement shall be governed in all respects by ------------- the laws of the State of Colorado, without regard to conflict of laws provisions. -9- 14. Entire Agreement. This Agreement constitutes the full and entire ---------------- understanding and Agreement among the parties regarding the matters set forth herein. Except as otherwise expressly provided herein, all other agreements regarding the registration rights of the Company's shareholders shall hereby expire. The provisions hereof shall inure to the benefit of, and be binding upon the successors, assigns, heirs, executors and administrators of the parties hereto. 15. Notices, etc. All notices and other communications required or ------------- permitted hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid, or otherwise delivered by facsimile transmission, by hand or by messenger, addressed: (a) if to a Holder, at such Holder's address as set forth below such Holder's signature on this Agreement, or at such other address as such Holder shall have furnished to Parent. (b) if to Parent, to: Vitesse Semiconductor Corporation 741 Calle Plano Camarillo, California 93012 Fax: (805) 388-7565 Attn: Yatin Mody or at such other address as Parent shall have furnished to the Holders, with a copy to: Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road Palo Alto, CA 94304-1050 Attn: Francis S. Currie, Esq. Fax: (415) 493-6811 Each such notice or other communication shall for all purposes of this Agreement be treated as effective or having been given when delivered if delivered personally or by facsimile transmission, or, if sent by mail, at the earlier of its receipt or 72 hours after the same has been deposited in a regularly maintained receptacle for the deposit of the United States mail, addressed and mailed as aforesaid. 16. Counterparts. This Agreement may be executed in any number of ------------ counterparts, each of which shall be an original, but all of which together shall constitute one instrument. -10- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. "PARENT" Vitesse Semiconductor Corporation a Delaware corporation By: --------------------------------------- Title: ------------------------------------ "THE HOLDERS" - ------------------------------------------ By: --------------------------------------- Its: -------------------------------------- [SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT] EX-5.1 4 OPINION OF WILSON SONSINI GOODRICH & ROSATI Exhibit 5.1 ----------- Opinion of Wilson Sonsini Goodrich & Rosati February 17, 1999 Vitesse Semiconductor Corporation 741 Calle Plano Camarillo, California 93012 RE: REGISTRATION STATEMENT ON FORM S-3 Gentlemen: We have examined the Registration Statement on Form S-3 to be filed by you with the Securities and Exchange Commission on or about the date hereof (the "Registration Statement"), in connection with the registration under the Securities Act of 1933, as amended, of 327,628 shares of your Common Stock (the "Shares"), all of which will be sold by certain selling stockholders. The Shares are to be resold to the public as described in the Registration Statement. As your counsel, we have examined the proceedings taken by you in connection with the issuance of the Shares. It is our opinion that the Shares are validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement, including the Prospectus constituting a part thereof, and any amendments thereto. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation EX-23.1 5 CONSENT OF KPMG LLP, INDEPENDENT ACCOUNTANTS Exhibit 23.1 ------------ Accountant's Consent The Board of Directors Vitesse Semiconductor Corporation We consent to incorporation by reference in the registration statement on Form S-3 of our report dated October 14, 1998, relating to the consolidated balance sheets of Vitesse Semiconductor Corporation and subsidiaries as of September 30, 1998 and 1997, and the related consolidated statements of operations, shareholders' equity and cash flows for each of the years in the three year period ended September 30, 1998, and related schedule, which report appears in the September 30, 1998 annual report on Form 10-K of Vitesse Semiconductor Corporation, and to reference to our firm under the heading "Experts" in the registration statement. Los Angeles, California February 17, 1999 -----END PRIVACY-ENHANCED MESSAGE-----