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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
Amendment No. 1
ANNUAL REPORT
| (Mark One) | ||
ý | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
For the fiscal year ended September 30, 2008 | ||
OR | ||
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
For the transition period from to | ||
Commission file number 0-19654
VITESSE SEMICONDUCTOR CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware (State or other jurisdiction of incorporation or organization) | 77-0138960 (I.R.S. Employer Identification No.) | |
741 Calle Plano Camarillo, California (Address of principal executive offices) | 93012 (Zip Code) |
Registrant's telephone number, including area code:(805) 388-3700
Securities registered pursuant to Section 12(b) of the Act:
NONE
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, Par Value $0.01
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. YES o NO ý
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. YES o NO ý
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YES ý NO o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of "accelerated filer and large accelerated filer" in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer o | Accelerated filer ý | Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). YES o NO ý
As of March 31, 2008, the aggregate market value of the voting and non-voting common equity held by non-affiliates was $110,615,635, based on the closing price on that date. As of December 26, 2008 there were 226,205,580 shares of the registrant's $0.01 par value common stock outstanding.
This Amendment No. 1 to Form 10-K amends the Annual Report on Form 10-K for the fiscal year ended September 30, 2008, originally filed on December 30, 2008, (the "Original Filing"), of Vitesse Semiconductor Corporation, a Delaware corporation ("Vitesse" or the "Company"). We are filing this amendment solely to include the consent of BDO Seidman, LLP ("BDO Seidman") to the incorporation by reference in the Company's Registration Statements on Form S-8 (Nos. 333-55466, 333-53463, 333-69631, 333-40822, 333-105156, 333-84660, 333-33918, 333-108230, 333-61576 and 333-40822) of BDO Seidman's audit and attestation reports dated December 30, 2008, relating to the consolidated financial statements and schedule, and the effectiveness of Company's internal control over financial reporting. Although BDO Seidman provided its consent to the Company as of December 30, 2008, such consent was inadvertently not included in the Original Filing.
Except as described above, no other changes have been made to the Original Filing. The Original Filing continues to speak as of the date of the Original Filing, and we have not updated the disclosures contained therein to reflect any events which occurred at a date subsequent to the filing of the Original Filing.
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
- (a)
- (1) and (2)
See the financial statements and financial statement schedules listed in Item 8. Financial Statements and Supplementary Data.
- (b)
- Exhibits
1
VITESSE SEMICONDUCTOR CORPORATION
SCHEDULE II—Valuation and Qualifying Accounts
Years ended September 30, 2008, 2007 and 2006
(in thousands)
| | Balance at Beginning of Year | Charged to Other Accounts | Deductions/ Write-offs | Balance at End of Year | |||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Year ended September 30, 2008 | |||||||||||||||
Deducted from accounts receivable: | |||||||||||||||
Allowance for doubtful accounts | $ | 253 | $ | — | $ | (253 | ) | $ | — | ||||||
Allowance for sales reserve | 142 | (89 | ) | — | 54 | ||||||||||
Deducted from deferred tax asset | |||||||||||||||
Valuation allowance | 470,422 | (15,224 | ) | (13,664 | ) | 441,534 | |||||||||
Year ended September 30, 2007 | |||||||||||||||
Deducted from accounts receivable: | |||||||||||||||
Allowance for doubtful accounts | 46 | 249 | (42 | ) | 253 | ||||||||||
Allowance for sales reserve | 170 | (28 | ) | — | 142 | ||||||||||
Deducted from deferred tax asset | |||||||||||||||
Valuation allowance | 484,263 | (13,841 | ) | — | 470,422 | ||||||||||
Year ended September 30, 2006 | |||||||||||||||
Deducted from accounts receivable: | |||||||||||||||
Allowance for doubtful accounts | 5 | 42 | (1 | ) | 46 | ||||||||||
Allowance for sales reserve | 235 | (65 | ) | — | 170 | ||||||||||
Deducted from deferred tax asset | |||||||||||||||
Valuation allowance | 454,021 | 30,242 | — | 484,263 | |||||||||||
2
| No. | Description | ||
|---|---|---|---|
3.1 | Amended and Restated Certificate of Incorporation. (Incorporated by reference to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q for the period ended March 31, 2000 filed May 5, 2000). | ||
3.2 | Bylaws. (Incorporated by reference to Exhibit 3.2 to the Company's current report on Form 8-K filed on December 2, 2004). | ||
4.1 | Specimen of Registrant's Common Stock Certificate. (Incorporated by reference to the Company's Registration Statement on Form S-1 (File no. 33-43548), effective December 10, 1991 filed October 25, 1991). | ||
4.2 | Rights Agreement dated as of March 3, 2003 between Vitesse Semiconductor Corporation and EquiServe Trust Company, N.A., as Rights Agent. (Incorporated by reference to Exhibit 1 to the Form 8-A12(g) filed March 5, 2003.) | ||
10.1 | Second Amended and Restated Loan and Security Agreement between the Company and Silicon Valley Bank, as amended March 2, 2006 (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K filed May 18, 2006). | ||
10.2 | Third Amended and Restated Loan and Security Agreement between the Company and Special Value Expansion Fund & Obsidian, as amended June 7, 2006 (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K filed June 12, 2006). | ||
10.3 | Security Agreement between the Company and Obsidian, dated as of June 7, 2006. (Incorporated by reference to Exhibit 10.2 to the Company's Form 8-K filed June 12, 2006). | ||
10.4 | Fourth Amended and Restated Loan Security Agreement between the Company and Special Value Expansion Fund & Obsidian, as amended June 20, 2006. (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K filed June 26, 2006). | ||
10.5 | Employment Agreement between the Company and Chris Gardner dated as of June 26, 2006. (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K filed July 7, 2006). | ||
10.6 | First Supplemental Indenture, dated November 3, 2006 between the Company and U.S. Bank National Assoc. as Trustee. (Incorporated by reference to Exhibit 99 to the Company's Form 8-K filed November 9, 2006). | ||
10.7 | Employment Agreement between the Company and Richard Yonker dated as of November 16, 2006. (Incorporated by reference to Exhibit 99.A4 to the Company's Form 8-K filed December 20, 2006). | ||
10.8 | Employment Agreement between the Company and Michael Green dated January 2, 2007. (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K filed January 31, 2007). | ||
10.9 | Warrant Registration Rights Agreement, dated January 25, 2007. (Incorporated by reference to Exhibit 10.2 to the Company's Form 8-K filed January 31, 2007). | ||
10.10 | Amended and Restated Employment Agreement between the Company and Richard Yonker dated June 26, 2007. (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K filed June 29, 2007). | ||
10.11 | Amended and Restated Employment Agreement between the Company and Christopher Gardner dated July 27, 2007. (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K filed August 2, 2007). | ||
3
| No. | Description | ||
|---|---|---|---|
10.12 | 2001 Stock Incentive Plan, Amended and Restated as of July 27, 2007. (Incorporated by reference to Exhibit 10.2 to the Company's Form 8-K filed August 2, 2007) | ||
10.13 | Form of Indemnity Agreement between the directors and the Company. (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K filed August 22, 2007). | ||
10.14 | Purchase and Sale Letter Agreement, dated August 22, 2007 between the Company and Maxim Integrated Products, Inc. (Incorporated by reference to Exhibit 10.2 to the Company's Form 8-K filed August 29, 2007). | ||
10.15 | Loan Agreement, dated August 23, 2007 between the Company and Whitebox VSC, Ltd. (Incorporated by reference to Exhibit 10.3 to the Company's Form 8-K filed August 29, 2007). | ||
10.16 | Senior Unsecured Convertible Note Purchase Agreement, dated August 23, 2007 between the Company and Whitebox VSC, Ltd. (Incorporated by reference to Exhibit 10.4 to the Company's Form 8-K filed August 29, 2007). | ||
10.17 | Second Supplemental Indenture, dated September 24, 2007 between the Company and U.S. Bank National Association. (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K filed September 27, 2007). | ||
10.18 | Term Note, dated October 29, 2007 between the Company and Whitebox VSC, Ltd. for $30 million. (Incorporated by reference to Exhibit 4.1 to the Company's Form 8-K filed October 31, 2007). | ||
10.19 | Intellectual Property, Assignment and License Agreement, dated October 29, 2007 between the Company and Maxim Integrated Products, Inc. (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K filed October 31, 2007). | ||
10.20 | Letter Agreement, dated October 26, 2007 between the Company and Dr. Martin C. Nuss (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K filed November 20, 2007). | ||
10.21 | Indenture between Vitesse Semiconductor Corporation and U.S. Bank National Association, as Trustee (including form of 1.50% Convertible Subordinated Debentures due 2024), dated as of September 22, 2004. (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K filed September 23, 2004). | ||
21.1 | Subsidiaries of Vitesse Semiconductor, Inc. | ||
23.1* | Consent of BDO Seidman, LLP | ||
31.1* | Rule13a-14(a) / 302 SOX Certification of Chief Executive Officer. | ||
31.2* | Rule13a-14(a) / 302 SOX Certification of Chief Financial Officer. | ||
32.1* | Section 1350 Certifications of Chief Executive Officer and Chief Financial Officer. | ||
- *
- Filed herewith.
4
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| VITESSE SEMICONDUCTOR CORPORATION (Registrant) | ||||
Dated: January 5, 2009 | By: | /s/ CHRISTOPHER R. GARDNER Chief Executive Officer | ||
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the date indicated.
| Dated: January 5, 2009 | By: | /s/ CHRISTOPHER R. GARDNER Director and Chief Executive Officer | ||
Dated: January 5, 2009 | By: | /s/ RICHARD C. YONKER Chief Financial Officer (Principal Financial and Accounting Officer) | ||
Dated: January 5, 2009 | By: | /s/ GUY W. ADAMS Director | ||
Dated: January 5, 2009 | By: | /s/ VINCENT CHAN Director | ||
Dated: January 5, 2009 | By: | /s/ STEVEN P. HANSON Director | ||
Dated: January 5, 2009 | By: | /s/ ROBERT A. LUNDY Director | ||
Dated: January 5, 2009 | By: | /s/ EDWARD ROGAS, JR. Director | ||
Dated: January 5, 2009 | By: | /s/ WILLOW B. SHIRE Director |
5
EXPLANATORY NOTE
PART IV
VITESSE SEMICONDUCTOR CORPORATION SCHEDULE II—Valuation and Qualifying Accounts Years ended September 30, 2008, 2007 and 2006 (in thousands)
SIGNATURES