UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
Amendment No. 2
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 | 77-0138960 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |
741 Calle Plano Camarillo, California | 93012 | |
| (Address of principal executive offices) | (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 January 26, 2009 there were 230,905,580 shares of the registrant's $0.01 par value common stock outstanding.
The purpose of this Amendment No. 2 on Form 10-K/A (this "Amendment") of Vitesse Semiconductor Corporation ("we," "our," "us," or the "Company") is to amend and restate Part III, Items 10 through 14 of the previously filed Annual Report on Form 10-K for the year ended September 30, 2008, filed with the Securities and Exchange Commission on December 31, 2008 (the "Original Form 10-K"), to include information previously omitted in reliance on General Instruction G to Form 10-K, which provides that registrants may incorporate by reference certain information from a definitive proxy statement prepared in connection with the election of directors. The Company has determined to include such Part III information by amendment of the Original Form 10-K rather than by incorporation by reference to the proxy statement. Accordingly, Part III and Part IV of the Original Form 10-K is hereby amended and restated as set forth below.
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. Accordingly, this Amendment should be read in conjunction with our filings with the Securities and Exchange Commission subsequent to the filing of the Original Filing.
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ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Directors
The authorized number of directors under our bylaws is a minimum of five and a maximum of nine. The Board of Directors has set the number of directors at seven. Currently, the Board of Directors is comprised of seven members: Guy W. Adams, Vincent Chan, Ph.D, Christopher R. Gardner, Steven P. Hanson, Robert A. Lundy, Edward Rogas, Jr., and Willow B. Shire. There are no family relationships among any of our directors or executive officers. Additional information regarding each of our directors is set forth below.
Guy W. Adams, age 57, has been a director since October 25, 2007. Mr. Adams is the managing member of GWA Investments, LLC and GWA Capital Partners, LLC, where he has served since 2002. GWA Investments is an investment fund investing in publicly-traded securities managed by GWA Capital Partners, LLC, a registered investment advisor. Prior to 2002, Mr. Adams was the President of GWA Capital, which he founded in 1996 to invest his own capital in public and private equity transactions. Mr. Adams is currently a member of the Board of Trustees of Mercer International Inc., where he has served since August 2003. Mr. Adams earned an MBA from Harvard Business School and a BS in Petroleum Engineering from Louisiana State University. Mr. Adams was previously an independent director of Exar Corporation (resigned August 2007) and Lone Star Steakhouse (resigned May 2002).
Vincent Chan, Ph.D, age 59, has been a director since April 18, 2000. Dr. Chan is serving on the Massachusetts Institute of Technology's faculty as the Joan and Irwin Jacobs Professor of Electrical Engineering and Computer Science and as a member of the Claude E. Shannon Communication and Network Group, Research Laboratory of Electronics. From 1995 to 1998, he was the Head of the Communications and Information Technology Division of MIT Lincoln Laboratory. He is a member of The Corporation of The Charles Stark Draper Laboratory, Inc. and a Fellow of IEEE and the Optical Society of America. Dr. Chan has over 35 years experience leading the development of advanced communication systems and networks. Dr. Chan is a Member of the Corporation of Draper Laboratory, a private company, since 2000.
Christopher R. Gardner, age 48, has been a director since October 26, 2006. Mr. Gardner has been our Chief Executive Officer since May 15, 2006, and was Acting Chief Executive Officer from April 18, 2006 to May 15, 2006. Mr. Gardner joined our company in 1986. He served as Vice President and Chief Operating Officer from November 2000 to June 2002. From June 2002 until he was appointed Acting Chief Executive Officer on April 18, 2006, he served as Vice President and General Manager of the Network Products Division. Mr. Gardner also served as a member of the Technical Staff at Bell Laboratories from 1982 to 1986. Mr. Gardner received his BSEE from Cornell University and his MSEE from the University of California at Berkeley.
Steven P. Hanson, age 60, has been a director since August 16, 2007. Mr. Hanson has been a senior partner at Southwest Value Acquisitions, a private equity firm, since 2004. He also serves as the Chairman of InPlay Technologies Inc., a high-technology firm delivering leadership human input device technologies and products. From 1999 to 2003, Mr. Hanson was President and Chief Executive Officer of ON Semiconductor. He has served for more than 32 years in senior executive roles at technology companies, including 28 years at Motorola in various engineering management and leadership positions. Mr. Hanson has served Arizona State University as a member of the Dean's Advisory Council, W.P. Carey School of Business and the Dean's Advisory Council for the Ira A. Fulton School of Engineering. Mr. Hanson holds a BSEE from the College of Engineering at Arizona State University.
Robert A. Lundy, age 60, has been a director since May 2, 2008. Mr. Lundy currently serves as President and CEO of Glimmerglass, a high-technology company that develops and markets Intelligent
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Optical Systems for the telecommunications industry, data centers, and defense. Mr. Lundy has been a member of the Board of Glimmerglass since 2002. Mr. Lundy has been a founder and CEO of several early stage ventures, including Wavetrace, Xtera, and Opthos. From 1985 to 1994, he held executive positions at ROLM, IBM, and HP. Mr. Lundy holds a BS from the U.S. Military Academy at West Point, a MSEE from Stanford University and an MBA from the Stanford Graduate School of Business. He is also a graduate of the U.S. Army Command and General Staff College.
Edward Rogas, Jr., age 68, has been a director since January 24, 2006 and the Chairman of the Board of Directors since December 2006. Mr. Rogas currently is retired and served as a Senior Vice President at Teradyne, Inc., an automated test equipment manufacturer, from 2000 to December 31, 2005. From 1976 to 2000, he held various management positions in the semiconductor ATE portion of Teradyne's business, including Vice President from 1984 to 2000. Prior to that, from 1973 to 1976, he served as a Vice President at American Research and Development. Mr. Rogas is currently on the Board of Vignani Technologies Pvt Ltd. (a private Indian company). Mr. Rogas holds an MBA (with distinction) from Harvard Business School and a BS from the United States Naval Academy.
Willow B. Shire, age 60, has been a director since June 26, 2007. Ms. Shire has been an executive consultant with Orchard Consulting Group since 1994, specializing in leadership development and strategic problem-solving. Previously, she was Chairperson for the Computer Systems Public Policy Project within the National Academy of Science. She also held various positions at Digital Equipment Corporation, a computer hardware manufacturer, for 18 years, including Vice President and Officer, Health Industries Business Unit. Ms. Shire is currently on the Board of The TJX Companies, Inc. (a NYSE listed-company). Ms. Shire holds a BS from Boston University's School of Education and a MAT from Harvard University School of Education.
All of our directors, with the exception of Mr. Gardner who is our President and CEO, meet the NASDAQ Marketplace Rules criteria for independence.
Executive Officers
Set forth below is information regarding our executive officers, other than Christopher R. Gardner, our President and Chief Executive Officer, which information is set forth above under "Directors."
Richard C. Yonker, age 61, was appointed our Chief Financial Officer on December 14, 2006. Mr. Yonker was the Chief Financial Officer of Capella Photonics, a telecommunications company, from October 2005 to November 2006. He also served as Chief Financial Officer of Avanex Corporation, an optical telecommunications company, from April 2005 to September 2005, Actelis Networks, a telecommunications company, from May 2004 to April 2005, Bermai, a WiFi semiconductor company, from November 2003 to April 2004, Gluon Networks, a telecommunications switch company, from February 2003 to October 2003 and Agility Communications, a telecommunications company, from November 2000 to January 2003. He currently is a director of Logic Vision, a semiconductor company providing built-in-self-test and diagnostic solutions. Mr. Yonker holds a BS in industrial engineering from the General Motors Institute and an MS in finance management from the Massachusetts Institute of Technology.
Michael B. Green, age 63, was appointed our Vice President, General Counsel and Secretary on January 25, 2007. Mr. Green was an independent consultant in 2006 and from 1999 through 2005 was the Vice President, General Counsel and Secretary of Worldwide Restaurant Concepts, Inc., an international restaurant company. Prior to that, he was a counsel and senior attorney for Atlantic Richfield Company and Montgomery Ward & Co., Inc., respectively. Mr. Green has also worked in private practice and as a trial attorney for the Antitrust Division of the United States Department of Justice in Washington D.C. Mr. Green holds a BS from Brooklyn College of the City University of New York and a JD from New York University School of Law.
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Dr. Martin Nuss, age 51, was appointed our Vice President of Technology and Strategy on November 16, 2007. Dr. Nuss was most recently Chief Technology Officer of Ciena's Optical Ethernet group. Prior to Ciena's acquisition of the company, he was founder and Chief Technology Officer of Internet Photonics. He also served 15 years at Bell Labs in various technical and management roles including Director of the Optical Data Networks Research Department. He is a Fellow of the Optical Society of America and a member of IEEE. Dr. Nuss holds a doctorate in applied physics from the Technical University in Munich, Germany.
Section 16(a) Beneficial Ownership Reporting Requirements
Section 16(a) of the Exchange Act requires our executive officers, directors, and persons who own beneficially more than 10% of a registered class of our equity securities to file reports of ownership and changes in ownership within specified periods with the SEC. To our knowledge, based solely on our review of the copies of Section 16(a) forms required to be furnished to us with respect to fiscal year 2008 and any written representations that no other reports were required, the Section 16(a) reporting requirements for reports required to be filed during fiscal year 2008 were met.
Codes of Business Conduct and Ethics
We have adopted a Code of Business Conduct and Ethics for members of the Board of Directors, a Code of Business Conduct and Ethics for all officers and employees of the Company and its consolidated subsidiaries, and a Code of Ethics for the Chief Executive Officer and Senior Financial Officers that applies to our Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer/Controller and persons performing similar functions. Copies of these Codes are posted on our website,http://www.vitesse.com, under "Investors—Corporate Governance." We intend to disclose any amendment to, or waiver from, the provisions of these Codes on our website under "Investors—Corporate Governance."
Procedure for Nominating Directors
Our Board of Directors launched a process to reconstitute its membership. As part of this process, our Board initiated searches for new, highly-qualified directors who are independent of management. To date, this process has resulted in the appointments of Guy W. Adams, Steven P. Hanson, Robert A. Lundy, and Willow B. Shire as directors.
As part of this process, the Nominating and Corporate Governance Committee continues to solicit recommendations from shareholders to identify highly-qualified, independent candidates for new directors. The Committee has engaged the recruiting firm of Russell Reynolds Associates to assist with the process of identifying and selecting candidates.
In connection with the settlement of the outstanding derivative actions against us as described under "Legal Proceedings," we have agreed to establish a procedure, in consultation with The Corporate Library, corporate governance experts selected by the lead counsel in the derivative action, to identify and nominate a person to become a director. That procedure provides that each individual or entity known to us or The Corporate Library to have continuously held at least 1% of our common stock for at least one year will be contacted for the purpose of requesting that such shareholder provide the name or names of candidates for our Board. An appropriate review of any candidates submitted will be conducted jointly by the Nominating and Corporate Governance Committee and The Corporate Library. If a qualified candidate is identified, he or she will be recommended to the Board for appointment or for nomination for election by the shareholders.
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Audit Committee
Our Board of Directors has an Audit Committee, the members of which are Chairman Edward Rogas, Jr., Guy W. Adams and Steven P. Hanson. All of the members of the Audit Committee meet the independence, financial literacy, and other applicable requirements of the Exchange Act, the rules and regulations of the SEC and the requirements of the NASDAQ Marketplace Rules. Mr. Hanson has been designated our "audit committee financial expert," as defined in Item 407 of Regulation S-K promulgated by the SEC.
The Audit Committee assists our Board of Directors in its oversight of the integrity of our financial statements, the qualifications and independence of our independent audits, the performance of our internal audit function, compliance with legal and regulatory requirements, our disclosure controls, and system of internal controls.
ITEM 11. EXECUTIVE COMPENSATION
Compensation Discussion and Analysis
Overview
The Compensation Committee determines the overall executive compensation practices for our named executive officers. Executive compensation for our named executive officers consists of three components:
Compensation Philosophy and Objectives
The basic philosophy of the Compensation Committee is to pay a reasonable and competitive base salary and reward named executive officers for achievements during the previous fiscal year and incentivize performance in future years. Its overall goal is to establish and administer an executive compensation program that effectively attracts and retains highly skilled executive officers, enhances shareholder value, motivates technological innovation, and rewards executive officers who contribute to the Company's long-term success.
Compensation Practices
Each year, the Compensation Committee determines the amounts of each named executive officer's base salary, annual cash bonus, and stock option grants. The Compensation Committee reviews industry data to gain an understanding of compensation levels within the industry for each named executive officer.
The Compensation Committee previously reviewed the Radford Executive Survey to obtain industry data. Starting in fiscal year 2008, the Compensation Committee commenced reviewing additional industry surveys and consulting with other independent compensation consultants to assess its competitors' executive compensation levels for base salary, annual cash bonus, and to a limited extent, stock option grants.
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The Compensation Committee considers industry compensation data because it wishes to provide compensation packages that are neither at the low or high ends of the range of comparable companies but, instead, are targeted toward the mid-point of the range of comparable companies. However, the Compensation Committee's determinations regarding individual compensation elements are based on several factors beyond industry data, including, but not limited to, the criticality of the position, individual performance and company performance. After reviewing industry data and assessing the role and performance of each named executive officer, the Compensation Committee uses its discretion to set compensation levels for each of the three components for the named executive officers.
Consideration of Competitors' Compensation
Historically, the Compensation Committee selected the Radford Executive Survey as the source for its peer group compensation data because it is a reliable and neutral vendor of pay data regarding semiconductor companies, including the majority of our competitors. In 2008, the Radford Executive Survey contained data from the following 26 semiconductor companies, which were selected because their annual revenues were within the same range as ours ($100.0 million to $499.9 million):
| Actel | Omnivision Technologies | |
| AMCC | PMC-Sierra | |
| Anadigics | Rambus | |
| Asyst Technologies | Semtech | |
| Atheros Communications | Sigmatel | |
| Cirrus Logic | Silicon Image | |
| CREE | Silicon Laboratories | |
| Emulex | Silicon Storage Technologies | |
| Genesis Microchip | SIRF Technology | |
| Lattice Semiconductor | SMSC | |
| Micrel Semiconductor | Triquint Semiconductor | |
| Microsemi | Ultraclean Technology | |
| Mindspeed Technologies | Zoran |
In fiscal year 2008, the Compensation Committee sought to re-evaluate the companies included in its peer group and decided to also evaluate other compensation consultants, including DolmatConnell and F.W. Cook, who could provide additional services including a broader comparative group, an evaluation of long-term incentives, a review of internal pay equity, and various structures for aligning compensation with company performance.
The Role of Management in Setting Executive Compensation
Compensation for our named executive officers, other than our CEO, Christopher R. Gardner, is established by the Compensation Committee upon the recommendation of Mr. Gardner. With regard to our named executive officers other than the CEO, Mr. Gardner recommends individual goals and conducts formal performance evaluations that he presents to the Compensation Committee in executive sessions. After consideration of Mr. Gardner's presentation, the ultimate decision as to compensation to be paid to those named executive officers is made by the Compensation Committee.
The Compensation Committee solely is responsible for setting compensation for the CEO, including establishing and conducting performance evaluations relating to individual goals. Mr. Gardner does not participate in any Compensation Committee decisions regarding his own compensation.
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Fiscal Year 2008 Compensation Practices
In fiscal year 2008, the Compensation Committee implemented changes to the Company's executive compensation practices. The Compensation Committee adopted the Fiscal Year 2008 Executive Bonus Plan to provide an opportunity for eligible participants, including the named executive officers, to earn cash incentive bonuses based upon the Company's attainment of specified financial performance objectives and the executive's achievement of designated personal goals that are aligned with corporate performance. This change was implemented to encourage individual and team performance.
Under the Executive Bonus Plan, eligible participants were able to earn a maximum bonus of 60% of base salary, subject to at least partial attainment of the Company's financial performance objectives and personal goals and objectives for each participant as set by the CEO. This means that even if all personal goals were 100% satisfied, the executive would be unable to earn any bonus if the Company did not at least substantially meet or exceed the established financial performance objectives. The Company's financial performance objectives were set by the Compensation Committee in consultation with management and were linked to earnings before interest, taxes, depreciation and amortization. The designated personal goals for the named executive officers, other than the CEO, were recommended by the CEO and approved by the Compensation Committee.
Bonus payments, if any, are to be made in two equal installments on or before the end of the second fiscal quarter of 2009 and on or after the end of the fourth fiscal quarter of 2009. All bonus payments to the named executive officers under the Plan, other than the CEO, are to be made upon the recommendation of the CEO, with approval by the Compensation Committee.
The bonus paid to the CEO for fiscal year 2008 was made at the discretion of the Compensation Committee after reviewing Mr. Gardner's attainment of his personal goals and objectives, assessing the Company's financial performance and considering the progress made during the year to resolve accounting problems relating to historical option grant practices, satisfying SEC-reporting obligations, and regaining eligibility to relist on the NASDAQ National Market.
At the end of fiscal year 2008, formal performance evaluations were prepared by the CEO for the other named executive officers and by the Compensation Committee for the CEO, based on goal achievement and feedback from subordinates, peers, and managers through the Company's annual 360 degree assessment.
For fiscal year 2008, the Compensation Committee determined:
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Other Compensation
The named executive officers enjoy the same benefits as all other employees of the Company, including medical, dental, vision, accidental death and dismemberment, group term life insurance in the amount of two times annual compensation (up to $280,000), business travel insurance, and a 401(k) plan in which the Company matches $0.50 for each dollar of an employee's contribution up to 6% of the employee's base salary. Paid leave benefits include vacation, sick leave, holidays and a sabbatical after 10 years of employment. The Company offers education assistance and a health/fitness benefit of $100 per year for health club membership or health/fitness classes. The Company also offers monetary rewards for patent ideas, application notes for Company products, and published engineering articles and technical papers.
Fiscal Year 2009 Compensation Actions
On January 26, 2009, the Company reduced the base salaries of its named executive officers, effective February 1, 2009, as follows: (i) Mr. Gardner—20% reduction; (ii) Mr. Yonker—10% reduction; (iii) Mr. Green—10% reduction; and (iv) Mr. Nuss—10% reduction. Also effective February 1, 2009, the Company suspended all matching contributions for its named executive officers in connection with the Company's 401(k) plan. These actions shall remain effective through the end of the Company's 2009 fiscal year.
Summary Compensation Table
The following table sets forth the compensation earned by our executive officers for services rendered in all capacities during the fiscal years ended September 30, 2008, 2007 and 2006:
Name and Principal Position | Year(1) | Salary | Bonus | Option Awards(2) | Non-Equity Incentive Plan | Total(3) | ||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Christopher R. Gardner | 2008 | $ | 350,000 | $ | $262,500 | $ | 316,679 | — | $ | 929,179 | ||||||||||
Chief Executive Officer(5) | 2007 | 328,462 | 175,000 | 320,540 | — | 824,002 | ||||||||||||||
| 2006 | 253,019 | — | 301,323 | — | 554,342 | |||||||||||||||
Richard C. Yonker | 2008 | 275,000 | — | 41,098 | 74,250 | (4) | 390,348 | |||||||||||||
Chief Financial Officer(6) | 2007 | 223,438 | 25,000 | 30,939 | 80,000 | 359,377 | ||||||||||||||
Michael B. Green | 2008 | 205,000 | — | — | 53,300 | (4) | 258,300 | |||||||||||||
Vice President, General Counsel and Secretary(7) | 2007 | 153,750 | 20,000 | — | 41,000 | 214,750 | ||||||||||||||
Martin C. Nuss | 2008 | 193,991 | — | 23,672 | 66,000 | (4) | 283,663 | |||||||||||||
Vice President, Technology and Strategy(8) | ||||||||||||||||||||
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Christopher R. Gardner Employment Agreement
Mr. Gardner's compensation was established by his employment agreement, initially dated June 26, 2006. Under that agreement, Mr. Gardner had a base salary of $310,000 per year and was entitled to participate in the employee benefit plans offered to senior executives from time-to-time. The term of the agreement was two years. If Mr. Gardner's employment was terminated for Good Reason (as defined below) or other than For Cause (as defined below), Death, Disability (as defined below), Mr. Gardner would be entitled to twelve months of his base salary as severance and he would be engaged as a consultant to the Company at $3,000 per month until the earlier of (i) three years after the termination of his employment and (ii) the date the Company has an effective registration statement under the Securities Act with respect to the shares to be issued upon exercise of options granted to him.
On July 27, 2007, the employment agreement with Mr. Gardner was amended. Under the amended agreement, his base salary was increased to $350,000 per year, effective April 1, 2007, which remained in effect through the fiscal year ended September 30, 2008. Further, if Mr. Gardner's employment is terminated for Good Reason, or other than For Cause, death, or Disability, Mr. Gardner would be entitled to receive two years of his base salary plus two times the average of the maximum target bonus for the two most recent fiscal years prior to his termination, and he would be engaged as a consultant until the earlier of: (i) three years after the termination of his employment and (ii) one year after the date the Company has an effective registration statement under the Securities Act with respect to the shares to be issued upon exercise of options granted to him. In addition, Mr. Gardner's stock options outstanding on the date of his termination would continue to vest normally during his service as a consultant and those options would be exercisable until the earlier of: (i) 90 days following his termination as a consultant and (ii) the normal expiration dates of those options.
"For Cause" is defined as termination by reason of: (i) the executive's conviction of a felony or plea of guilty or nolo contendere to a felony; (ii) the executive's intentional failure or refusal to perform his employment duties and responsibilities; (iii) the executive's intentional misconduct that injures the Company's business; (iv) the executive's intentional violation of any other material provision of his employment agreement or the Company's Code of Business Conduct and Ethics; or (v) as otherwise provided for in Section 8 of the employment agreement. Section 8 of Mr. Gardner's employment agreement is titled"Compliance with Vitesse Policies and Procedures" and states:
"As a member of Vitesse management, Executive will be expected to comply with all provisions of the Vitesse Policies, Procedures Manual and Employee Handbook, as amended from time-to-time. Executive acknowledges, by signature on this Agreement, that failure to comply with and ensure enforcement of Vitesse's policies, procedures and all federal/state laws relating to business operations may result in immediate termination of employment For Cause."
"Disability" is defined as a physical or mental impairment of the executive as certified in a written statement from a licensed physician selected or approved by our Board of Directors that renders the executive unable to perform his duties under his employment agreement (after reasonable accommodation, if necessary, by the Company that does not impose an undue hardship on the Company) for 150 consecutive days or for at least 210 days (regardless of whether such days are consecutive) during any period of 365 days.
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"Good Reason" is defined as the occurrence, without the executive's written consent, of any of the following actions unless the action is fully corrected (if possible) within 15 days after the Company receives written notice of the action from the executive: (i) a reduction in the executive's base salary; (ii) the Company's failure to pay the executive any amount that is expressly required to be paid under his employment agreement; (iii) the Company's material and adverse reduction of the nature of the executive's duties and responsibilities, disregarding mere changes in title; (iv) the Company's requirement that the executive perform his principal employment duties at an office that is more than 20 miles from Camarillo, California; or (v) a Change of Control of the Company. For this purpose, "Change of Control" means each occurrence of any of the following:
Mr. Gardner also received a stock option grant of 400,000 shares upon his appointment as Acting CEO and prior to his Employment Agreement.
Richard C. Yonker Employment Agreement
Mr. Yonker's compensation was established by his employment agreement, dated November 16, 2006, and was amended on June 26, 2007. Under his agreement, Mr. Yonker received a base salary of $275,000, which remained in effect through the fiscal year ended September 30, 2008.
If Mr. Yonker's employment is terminated for Good Reason (defined in a manner substantially the same as in Mr. Gardner's employment agreement) or other than For Cause (defined in a manner substantially the same as in Mr. Gardner's employment agreement), Death, or Disability (defined in a manner substantially the same as in Mr. Gardner's employment agreement), he will receive severance pay equal to 12 months of his then base salary. In the event of a Change of Control (defined in a manner substantially the same as in Mr. Gardner's employment agreement) of the Company (or its successor) and any involuntary termination other than For Cause or Constructive Termination of Mr. Yonker's employment within one year of such a Change of Control, then the shares underlying all of Mr. Yonker's outstanding options would be accelerated and immediately become vested as though all options were vesting over four years in 48 equal monthly amounts, and as though Mr. Yonker had completed an additional two years of service with the Company, and those options would be exercisable for an additional 90 days.
Michael B. Green Employment Arrangement
Mr. Green received an employment letter, dated January 2, 2007, from the Company pursuant to which the Company agreed, among other things, that Mr. Green will receive an annual base salary of $205,000, which remained in effect through the fiscal year ended September 30, 2008. Upon a Change
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of Control (defined in a manner substantially the same as in Mr. Gardner's employment agreement), severance in the amount equal to six months salary is payable in one lump sum on the date of his termination. If Mr. Green voluntarily terminates his employment prior to completing two full years of service ending on January 4, 2009, he will reimburse the Company for the signing bonus. The Company also agreed to recommend to the Board of Directors that Mr. Green receive an option to acquire 50,000 shares of the Company's common stock at the time it begins offering options to its employees generally. On October 13, 2008, the Company granted 80,000 options to Mr. Green.
Martin Nuss Employment Arrangement
On November 16, 2007, the Board of Directors appointed Dr. Martin Nuss as Vice President Technology and Strategy. Dr. Nuss received an employment letter from the Company pursuant to which the Company agreed that he is entitled to receive $220,000 as an annual base salary and is eligible to participate in the Executive Bonus Plan, under which the Company has guaranteed a bonus to Dr. Nuss for fiscal year 2008 equal to at least 30% of his annual base salary. Dr. Nuss is also entitled to employee benefits provided to other senior executives. In the event that his employment is terminated within nine months after a Change-in-Control (defined in a manner substantially the same as in Mr. Gardner's employment agreement) or during that time period there is a material change in his position, responsibilities, or compensation, Dr. Nuss will be entitled to a lump sum payment equal to 12 months of his then base salary. Dr. Nuss was also granted an option to purchase 200,000 shares of the Company's common stock at an exercise price of $0.99 per share.
Grants of Plan-Based Awards
The following table sets forth information relating to plan-based awards granted to our named executive officers in fiscal years 2008, 2007 and 2006:
Name | Grant Date | All Other Option Awards: Number of Securities Underlying Options | Exercise Price of Options (Per Share) | Grant Date Fair Value of Stock and Option Awards(1) | |||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Christopher R. Gardner | 6/21/2006 | 400,000 | $ | 1.53 | $ | 424,821 | |||||||
| 12/2/2005 | 110,000 | 2.40 | 214,672 | ||||||||||
Richard C. Yonker | 1/25/2007 | 300,000 | 0.86 | 160,834 | |||||||||
Martin Nuss | 11/16/2007 | 200,000 | 0.99 | 112,000 | |||||||||
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Outstanding Equity Awards at Fiscal Year-End
The following table provides information regarding the holdings of stock options by our named executive officers at September 30, 2008:
Name | Number of Securities Underlying Unexercised Options Exercisable | Number of Securities Underlying Unexercised Options Unexercisable | Option Exercise Price | Option Expiration Date | |||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Christopher R. Gardner | 80,000 | — | 9.03 | 10/5/2008 | |||||||||
| 120,000 | — | 35.91 | 10/19/2009 | ||||||||||
| 200,000 | — | 17.44 | 4/6/2011 | ||||||||||
| 442,885 | — | 7.27 | 10/2/2011 | ||||||||||
| 225,000 | — | 0.83 | 10/17/2012 | ||||||||||
| 100,000 | — | 6.97 | 10/20/2013 | ||||||||||
| 187,500 | 112,500 | 2.58 | 10/27/2014 | ||||||||||
| 55,000 | 55,000 | 2.40 | 12/2/2015 | ||||||||||
| 200,000 | 200,000 | 1.53 | 6/21/2016 | ||||||||||
Richard C. Yonker | 75,000 | 225,000 | 0.86 | 12/11/2016 | |||||||||
Martin Nuss | — | 200,000 | 0.99 | 11/16/2017 | |||||||||
On December 29, 2006, Christopher R. Gardner, agreed to amend all of his respective existing unexercised stock option awards that vested after December 31, 2004, or will vest after December 31, 2004, and that are subject to an exercise price that is less than the Fair Market Value of a share of the our common stock at the time of grant, to have an exercise price equal to the Fair Market Value of a share of our common stock on the actual date of grant.
Stock Option Exercises
There were no stock options exercised by our named executive officers during fiscal year 2008.
Pension Benefits
We do not have plans that provide pension benefits to our named executive officers, nor do we have any plans that provide for deferred compensation to our named executive officers.
Potential Payments Upon Termination or Change-in-Control
If Mr. Gardner's employment were to have been terminated on September 30, 2008, for Good Reason or for reasons other than For Cause, Death or Disability, he would have received a lump sum severance payment of $1,050,000 and he would be engaged as a consultant at $3,000 per month until the earlier of: (i) three years after the termination of his employment; and (ii) one year after the date we have an effective registration statement under the Securities Act with respect to the shares to be issued upon exercise of options granted to him. In addition, Mr. Gardner's stock options outstanding on the date of his termination would continue to vest normally during his service as a consultant and those options would be exercisable until the earlier of 90 days following his termination as a consultant and the normal expiration dates of those options.
If Mr. Yonker's employment were to have been terminated on September 30, 2008, for Good Reason or for reasons other than For Cause, Death or Disability, he would have received a lump sum payment of $275,000. In addition, the shares underlying all of Mr. Yonker's outstanding stock options would be accelerated and immediately become vested as though all options were vesting over four years
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in 48 equal monthly amounts, and as though Mr. Yonker had completed an additional two years of service with the Company, and those options would be exercisable for an additional 90 days.
If Mr. Green's employment were to have been terminated on September 30, 2008, as a result of a Change of Control, he would have received a lump sum payment of $102,500.
If Dr. Nuss' employment were to have been terminated on September 30, 2008, as a result of a Change of Control or during that time period there was a material change in his position, responsibilities, or compensation, he would have received a lump sum payment of $220,000.
Compensation of Directors
Effective July 27, 2007, after consultation with compensation consultants, the Board of Directors adopted the following compensation package for directors:
Director Compensation Table for Fiscal 2008
The following table presents information regarding the compensation paid during fiscal year 2008 to members of our Board of Directors who are not also our employees (referred to as "Non-Employee Directors"). The compensation paid to Mr. Gardner, who is also employed by us, is presented above on page 8 in the Summary Compensation Table and the related explanatory tables. Directors who are also
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officers or employees of the Company or its subsidiaries receive no additional compensation for their services as directors.
Name | Fees Earned in Cash | Option Awards(1) | Total | |||||||
|---|---|---|---|---|---|---|---|---|---|---|
| Guy W. Adams(2) | $ | 44,416 | $ | 10,428 | $ | 54,844 | ||||
Vincent Chan Ph.D(3) | 40,000 | 52,324 | 92,324 | |||||||
Alex Daly(4) | — | 3,238 | 3,238 | |||||||
Steven P. Hanson(5) | 48,500 | 11,933 | 60,433 | |||||||
Robert Lundy(6) | 15,417 | 3,253 | 18,670 | |||||||
Edward Rogas, Jr.(7) | 74,500 | 18,243 | 92,743 | |||||||
Willow B. Shire(8) | 64,000 | 11,901 | 75,901 | |||||||
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Compensation Committee Interlocks and Insider Participation
No director who served on the Compensation Committee of our Board during fiscal year 2008 currently is, or during fiscal 2008 was, an officer or employee of the Company or had any relationship requiring disclosure by us under Item 404 of Regulation S-K. In addition, no member of our Compensation Committee is, or during fiscal year 2008 was, employed by a company whose Board of Directors includes or included any members of our management.
Compensation Committee Report
The following Compensation Committee Report does not constitute soliciting materials and shall not be deemed filed or incorporated by reference into any other filings by us under the Securities Act of 1933 or the Exchange Act, except to the extent we specifically incorporate this Compensation Committee Report by reference therein.
The Board's Compensation Committee has submitted the following report for inclusion in this Report:
We have reviewed and discussed the Compensation Discussion and Analysis contained in this Report with management. Based on our review of and the discussions with management with respect to the Compensation Discussion and Analysis, the Compensation Committee recommended to the Board of Directors that the Compensation Discussion and Analysis be included in this Annual Report.
The foregoing report is provided by the following directors, who constitute the Compensation Committee:
Willow B. Shire, Chairperson
Guy W. Adams, Member
Vincent Chan, Ph.D, Member
Robert A. Lundy, Member
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ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
Equity Compensation Plan Information
| | A | B | C | ||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|
Plan Category | Number of Securities to be Issued upon Exercise of Outstanding Options | Weighted Average Exercise Price of Outstanding Options | Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans (Excluding Securities Reflected in Column A) | ||||||||
| Equity Compensation Plans approved by Shareholders(1) | 15,462,647 | (2) | $ | 7.22 | 63,086,051 | (3) | |||||
| Equity Compensation Plans not approved by Shareholders(4) | 2,752,614 | $ | 6.52 | 504,344 | |||||||
| Total(5) | 18,215,261 | $ | 7.11 | 63,590,395 | |||||||
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Security Ownership of Certain Beneficial Owners and Management
The following table sets forth certain information regarding the beneficial ownership of shares of our common stock as of January 21, 2009 by: (i) each of our current directors; (ii) each of our executive officers named in the Summary Compensation Table; (iii) all of our current executive officers and directors as a group; and (iv) all those known by us to be beneficial owners of more than five percent of the outstanding shares of our common stock. Five percent or greater shareholder information is based on information contained in Schedule 13D/13G filings. Unless otherwise indicated, the address of each of the beneficial owners listed in this table is: c/o Vitesse Semiconductor Corporation, 741 Calle Plano, Camarillo, California 93012.
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Name of Individuals or Identity of Group | Shares Beneficially Owned | Shares Exercisable Within 60 Days of January 21, 2009 | Total Shares Beneficailly Owned Plus Exercisable Within 60 Days of January 21, 2009 | Percent of Total Shares Outstanding | ||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Ronald Gutfleish, c/o Elm Ridge Capital Mgmt | 17,086,571 | (1) | — | 17,086,571 | 7.4 | % | ||||||||
3 West Main Street, 3rd Floor | ||||||||||||||
Irvington, NY 10533 | ||||||||||||||
Whitebox Advisors, LLC | 14,100,551 | (2) | — | 14,100,551 | 6.1 | % | ||||||||
3033 Excelsior Boulevard, Suite 300 | ||||||||||||||
Minneapolis, MN 55416 | ||||||||||||||
Kopp Investment Advisors, LLC | 14,092,050 | (3) | — | 14,092,050 | 6.1 | % | ||||||||
7701 France Avenue South, Suite 500 | ||||||||||||||
Edina, MN 55435 | ||||||||||||||
Steelhead Navigator Master, L.P. | 12,614,800 | (4) | — | 12,614,800 | 5.5 | % | ||||||||
1301 First Avenue, Suite 201 | ||||||||||||||
Seattle, WA 98101 | ||||||||||||||
Christopher R. Gardner | 393,734 | (5) | 1,632,885 | 2,026,619 | * | |||||||||
Guy W. Adams | 300,000 | (6) | 25,500 | 325,500 | * | |||||||||
Vincent Chan, Ph. D | 30,000 | 290,592 | 320,592 | * | ||||||||||
Richard C. Yonker | 100,000 | (7) | 150,000 | 250,000 | * | |||||||||
Edward Rogas, Jr. | — | 30,400 | 30,400 | * | ||||||||||
Willow B. Shire | — | 30,800 | 30,800 | * | ||||||||||
Steven P. Hanson | — | 28,500 | 28,500 | * | ||||||||||
Robert A. Lundy | — | 15,000 | 15,000 | * | ||||||||||
Michael B. Green | 50,000 | (8) | — | 50,000 | * | |||||||||
Martin C. Nuss | 50,000 | (9) | 50,000 | 100,000 | * | |||||||||
All executive officers and Directors as a group (10 persons) | 923,734 | 2,253,677 | 3,177,411 | 1.4 | % | |||||||||
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ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
Certain Transactions with Related Persons
We are not currently a party to any related person transactions. However, in the event such a transaction is proposed or exists, the Audit Committee of our Board of Directors is responsible for reviewing such transactions initially and on an ongoing basis and approving (if appropriate) all such transactions before their commencement or continuation. The Audit Committee may, in its discretion, approve or deny any related person transactions and may require the cessation of such a transaction at any time. Approval of related person transactions may be conditioned upon the related person and us following certain procedures set out by the Audit Committee. The Audit Committee will analyze certain factors in determining whether to approve a related person transaction, which factors may include, but not be limited to the following:
whether the terms of the transaction are fair to us;
benefits us;
the availability of other sources for comparable products or services;
the impact, if any, on a director's independence;
whether the transaction is material to us; and
the terms available to unrelated third-parties or to employees generally.
Directors' Independence
Except for Christopher R. Gardner, our President, Chief Executive Officer and a director, all of our directors meet the independence requirements set forth in the NASDAQ Marketplace Rules and the members of our Audit Committee also meet the additional independence requirements set forth in the NASDAQ Marketplace Rules and the SEC for Audit Committee members.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
Fees Paid to Principal Accountants
The following table shows the approximate fees billed to us by BDO Seidman, LLP, our independent registered public accounting firm:
| | 2008 | 2007 | |||||
|---|---|---|---|---|---|---|---|
| Audit Fees | $ | 2,376,850 | $ | 5,718,794 | |||
| Audit-Related Fees | — | — | |||||
| Tax Fees | 120,450 | 170,000 | |||||
| All Other Fees | — | — | |||||
| Total | $ | 2,497,300 | $ | 5,888,794 | |||
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Audit Fees
This category includes the audit of our annual financial statements, review of financial statements included in our Form 10-Q quarterly reports, and services that are normally provided in connection with statutory and regulatory filings or engagements for those fiscal years. This category also includes advice on accounting matters that arose during, or as a result of, the audit or the review of interim financial statements, statutory audits required by non-U.S. jurisdictions and the preparation of an annual "management letter" on internal control matters.
Tax Fees
This category consists of professional services rendered, primarily in connection with computation of our tax provision as well as tax compliance activities, including the preparation of tax returns in certain overseas jurisdictions and technical tax advice related to the preparation of tax returns.
Pre-Approval Policies and Procedures
The Audit Committee, in its sole discretion, pre-approved and reviewed audit and non-audit services performed by our independent registered public accounting firm, as well as the fees charged for such services. Requests for approval are considered at each regularly scheduled Audit Committee meeting or, if necessary, are approved by the unanimous consent of all members of the Audit Committee. In its pre-approval and review of non-audit service fees, the Audit Committee considers, among other factors, the possible affect of the performance of such services on the auditors' independence. The Audit Committee considered and pre-approved all services rendered during fiscal years 2008 and 2007.
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ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
See the financial statements and financial statement schedules listed in Item 8. Financial Statements and Supplementary Data.
| 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.) | ||
| 4.3*** | Vitesse Semiconductor Corporation Fiscal Year 2008 Executive Bonus Plan, dated as of January 24, 2008 (portions of this exhibit have been omitted pursuant to a request for confidential treatment). | ||
| 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 | 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). | ||
| 10.6 | 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). | ||
| 10.7 | 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). | ||
| 10.8 | 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). | ||
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| No. | Description | ||
|---|---|---|---|
| 10.9 | 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). | ||
| 10.10 | 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) | ||
| 10.11 | 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). | ||
| 10.12 | 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). | ||
| 10.13 | 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). | ||
| 10.14 | 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). | ||
| 10.15 | 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). | ||
| 10.16 | 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). | ||
| 10.17 | 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). | ||
| 10.18 | 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). | ||
| 10.19 | 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. | ||
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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 28, 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 28, 2009 | By: | /s/ CHRISTOPHER R. GARDNER Director and Chief Executive Officer | ||
Dated: January 28, 2009 | By: | /s/ RICHARD C. YONKER Chief Financial Officer (Principal Financial and Accounting Officer) | ||
Dated: January 28, 2009 | By: | /s/ GUY W. ADAMS Director | ||
Dated: January 28, 2009 | By: | /s/ VINCENT CHAN, PH.D Director | ||
Dated: January 28, 2009 | By: | /s/ STEVEN P. HANSON Director | ||
Dated: January 28, 2009 | By: | /s/ ROBERT A. LUNDY Director | ||
Dated: January 28, 2009 | By: | /s/ EDWARD ROGAS, JR. Director | ||
Dated: January 28, 2009 | By: | /s/ WILLOW B. SHIRE Director |
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