sc13da207738020_11202012.htm

0000921895-12-002229.txt : 20121121 0000921895-12-002229.hdr.sgml : 20121121 20121121163026 ACCESSION NUMBER: 0000921895-12-002229 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20121121 DATE AS OF CHANGE: 20121121 SUBJECT COMPANY: 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: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-42031 FILM NUMBER: 121221514 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 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Raging Capital Management, LLC CENTRAL INDEX KEY: 0001444376 IRS NUMBER: 204306350 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: TEN PRINCETON AVENUE CITY: ROCKY HILL STATE: NJ ZIP: 08553 BUSINESS PHONE: 6099100954 MAIL ADDRESS: STREET 1: TEN PRINCETON AVENUE CITY: ROCKY HILL STATE: NJ ZIP: 08553 SC 13D/A 1 sc13da207738020_11202012.htm AMENDMENT NO. 2 sc13da207738020_11202012.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO

§ 240.13d-2(a)

(Amendment No. 2)1

Vitesse Semiconductor Corporation

(Name of Issuer)

Common Stock, par value $0.01 per share

(Title of Class of Securities)

928497304

(CUSIP Number)

STEVE WOLOSKY, ESQ.

OLSHAN FROME WOLOSKY LLP

Park Avenue Tower

65 East 55th Street

New York, New York 10022

(212) 451-2300

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

November 20, 2012

(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box x.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

_______________

1 The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP NO. 928497304

1	NAME OF REPORTING PERSON Raging Capital Fund, LP
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 1,171,623*
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 1,171,623*
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,171,623*
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.5%*
14	TYPE OF REPORTING PERSON PN

* Does not include shares of Common Stock underlying 8.00% Convertible Second Lien Debentures due 2014. See Item 5.

CUSIP NO. 928497304

1	NAME OF REPORTING PERSON Raging Capital Fund (QP), LP
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 2,319,504*
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 2,319,504*
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,319,504*
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.0%*
14	TYPE OF REPORTING PERSON PN

* Does not include shares of Common Stock underlying 8.00% Convertible Second Lien Debentures due 2014. See Item 5.

CUSIP NO. 928497304

1	NAME OF REPORTING PERSON Raging Capital Management, LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 3,491,127*
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 3,491,127*
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,491,127*
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13.5%*
14	TYPE OF REPORTING PERSON OO

* Does not include shares of Common Stock underlying 8.00% Convertible Second Lien Debentures due 2014. See Item 5.

CUSIP NO. 928497304

1	NAME OF REPORTING PERSON William C. Martin
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 3,491,127*
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 3,491,127*
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,491,127*
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13.5%*
14	TYPE OF REPORTING PERSON IN

* Does not include shares of Common Stock underlying 8.00% Convertible Second Lien Debentures due 2014. See Item 5.

CUSIP NO. 928497304

1	NAME OF REPORTING PERSON Paul K. McWilliams
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER - 0 -
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON - 0 -
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0%
14	TYPE OF REPORTING PERSON IN

CUSIP NO. 928497304

1	NAME OF REPORTING PERSON Kenneth H. Traub
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER - 0 -
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON - 0 -
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0%
14	TYPE OF REPORTING PERSON IN

CUSIP NO. 928497304

The following constitutes Amendment No. 2 to the Schedule 13D filed by the undersigned (“Amendment No. 2”). This Amendment No. 2 amends the Schedule 13D as specifically set forth.

Item 2.

Identity and Background.

Item 2 is hereby amended and restated to read as follows:

(a) This statement is filed by:

(i)

Raging Capital Fund, LP, a Delaware limited partnership (“Raging Capital Fund”);

(ii)

Raging Capital Fund (QP), LP, a Delaware limited partnership (“Raging Capital Fund QP” and together with Raging Capital Fund, the “Raging Funds”);

(iii)

Raging Capital Management, LLC, a Delaware limited liability company (“Raging Capital”), who serves as the general partner of each of the Raging Funds;

(iv)

William C. Martin, who serves as the managing member of Raging Capital;

(v)

Paul K. McWilliams, a nominee for election to the Board of Directors of the Issuer (the “Board”); and

(vi)

Kenneth H. Traub, a nominee for election to the Board.

Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.” Each of the Reporting Persons is party to that certain Joint Filing and Solicitation Agreement, as further described in Item 6. Accordingly, the Reporting Persons are hereby filing a joint Schedule 13D.

(b) The address of the principal office of each of the Reporting Persons, other than Messrs. McWilliams and Traub, is Ten Princeton Avenue, Rocky Hill, NJ 08553. Paul K. McWilliams’ principal business address is P.O. Box 25712, Overland Park, KS 66225. Kenneth H. Traub’s principal business address is 116 Village Boulevard, Suite 200, Princeton, NJ 08540.

(c) The principal business of each of the Raging Funds is investing in securities. The principal business of Raging Capital is serving as the general partner of each of the Raging Funds. The principal occupation of William C. Martin is serving as the managing member of Raging Capital. The principal occupation of Paul K. McWilliams is serving as Editor of Next Inning Technology Research, a financial newsletter designed to help subscribers understand and leverage the opportunities available in the rapidly changing technology market. The principal occupation of Kenneth H. Traub is serving as President and Chief Executive Officer of Ethos Management LLC, which specializes in investing in and advising undervalued companies to execute strategies to build and unlock stockholder value.

(d) No Reporting Person has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e) No Reporting Person has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

CUSIP NO. 928497304

(f) The Raging Funds and Raging Capital are organized under the laws of the State of Delaware. Messrs. Martin, McWilliams and Traub are each citizens of the United States of America.

Item 3.

Source and Amount of Funds or Other Consideration.

Item 3 is hereby amended and restated to read as follows:

The aggregate purchase price of the 3,491,127 Shares owned directly by the Raging Funds is approximately $8,711,818, including brokerage commissions. The Shares owned directly by the Raging Funds were acquired with the working capital of the Raging Funds. The aggregate purchase price of the $6,492,000 principal amount of the Debentures owned directly by the Raging Funds is approximately $5,382,130, including brokerage commissions. The Debentures owned directly by the Raging Funds were acquired with the working capital of the Raging Funds.

The Raging Funds effect purchases of securities primarily through margin accounts maintained for them with prime brokers, which may extend margin credit to them as and when required to open or carry positions in the margin accounts, subject to applicable federal margin regulations, stock exchange rules and the prime brokers’ credit policies. In such instances, the positions held in the margin accounts are pledged as collateral security for the repayment of debit balances in the accounts.

Item 4.

Purpose of Transaction.

Item 4 is hereby amended to add the following:

On November 20, 2012, Raging Capital Fund, on behalf of itself and its affiliates, delivered a letter to the Issuer (the “Notice”) nominating Paul K. McWilliams and Kenneth H. Traub (together, the “Nominees”), as set forth therein, for election to the Board at the Issuer’s 2013 annual meeting of stockholders (including any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof, the “Annual Meeting”).

Item 5.

Interest in Securities of the Issuer.

Items 5(a) and (c) are hereby amended and restated to read as follows:

(a) The aggregate percentage of Shares reported owned by each person named herein is based upon 25,803,508 Shares outstanding as of August 3, 2012, which is the total number of Shares outstanding as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 7, 2012.

As of the date hereof, Raging Capital Fund directly owned 1,171,623 Shares, constituting approximately 4.5% of the Shares outstanding. By virtue of their relationships with Raging Capital Fund discussed in further detail in Item 2, each of Raging Capital and Mr. Martin may be deemed to beneficially own the Shares owned by Raging Capital Fund.

As of the date hereof, Raging Capital Fund QP directly owned 2,319,504 Shares, constituting approximately 9.0% of the Shares outstanding. By virtue of their relationships with Raging Capital Fund QP discussed in further detail in Item 2, each of Raging Capital and Mr. Martin may be deemed to beneficially own the Shares owned by Raging Capital Fund QP.

CUSIP NO. 928497304

As of the date hereof, the Raging Funds directly owned an aggregate of $6,492,000 principal amount of the Debentures ($1,871,062 principal amount is directly owned by Raging Capital Fund and $4,620,938 principal amount is directly owned by Raging Capital Fund QP). Such Debentures are convertible into an aggregate of 1,442,666 Shares, provided, however, that a holder of Debentures will only be entitled to exercise its conversion rights to the extent (and only to the extent) that the receipt of Shares upon exercise of the conversion right would not cause such holder (including its affiliates) to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder) of more than 9.99% of the Shares outstanding at such time. The Raging Funds currently directly own in excess of 9.99% of the Shares outstanding.

As of the date hereof, neither Paul K. McWilliams nor Kenneth H. Traub directly owns any Shares.

Each of the Reporting Persons, as a member of a “group” with the other Reporting Persons for purposes of Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), may be deemed to beneficially own the securities of the Issuer owned by the other Reporting Persons. The filing of this Schedule 13D shall not be deemed an admission that the Reporting Persons are, for purposes of Section 13(d) of the Exchange Act, the beneficial owners of any securities of the Issuer he or it does not directly own. Each of the Reporting Persons specifically disclaims beneficial ownership of the securities of the Issuer reported herein that he or it does not directly own.

(c) On November 12, 2012, Paul K. McWilliams sold 250 Shares at a price per share of $2.22 in an open market transaction. There were no transactions in the securities of the Issuer by the other Reporting Persons during the past 60 days.

Item 6.

Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

Item 6 is hereby amended to add the following:

On November 20, 2012, the Reporting Persons entered into a Joint Filing and Solicitation Agreement pursuant to which, among other things, they agreed (i) to the joint filing on behalf of each of them of statements on Schedule 13D, and any amendments thereto, with respect to the securities of the Issuer, (ii) to solicit proxies or written consents for the election of the Nominees to the Board at the Annual Meeting (the “Solicitation”), and (iii) that all expenses incurred in connection with the Solicitation shall be paid by Raging Capital or its affiliates. A copy of the Joint Filing and Solicitation Agreement is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

On November 20, 2012, Raging Capital entered into indemnification letter agreements with each of the Nominees pursuant to which it agreed to indemnify each of the Nominees from and against claims arising from the Solicitation and any related matters. A copy of Paul K. McWilliams’ indemnification letter agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference. A copy of Kenneth H. Traub’s indemnification letter agreement is attached hereto as Exhibit 99.3 and is incorporated herein by reference.

On November 20, 2012, Raging Capital entered into compensation letter agreements with each of the Nominees pursuant to which it agreed to pay each of the Nominees $15,000 in cash upon the submission of the Notice. Pursuant to the compensation letter agreements, each of the Nominees has agreed to use such compensation to acquire securities of the Issuer (the “Nominee Shares”) as set forth therein. If elected or appointed to serve as a director of the Issuer, each of the Nominees has agreed not to sell, transfer or otherwise dispose of any Nominee Shares within two (2) years of his election or appointment as a director; provided, however, in the event that the Issuer enters into any merger, consolidation, business combination, sale of substantially all its assets or similar transaction with or involving a third party (a “Liquidity Event”), each of the Nominees may sell, transfer or exchange the Nominee Shares in accordance with the terms of such Liquidity Event. In addition, if Mr. Traub is elected or appointed to serve as a director of the Issuer, he will be entitled to receive an amount equal to a specified percentage of the Net Profits (as defined in his agreement), realized or unrealized, as applicable, by the Raging Funds with respect to their investment in the securities of the Issuer through 2015 as set forth in his agreement. A copy of Paul K. McWilliams’ compensation letter agreement is attached hereto as Exhibit 99.4 and is incorporated herein by reference. A copy of Kenneth H. Traub’s compensation letter agreement is attached hereto as Exhibit 99.5 and is incorporated herein by reference.

CUSIP NO. 928497304

The foregoing descriptions of all agreements are qualified in their entirety by reference to the full text of such agreements, which are attached as exhibits hereto.

Item 7.

Material to be Filed as Exhibits.

Item 7 is hereby amended to add the following exhibits:

99.1

Joint Filing and Solicitation Agreement by and among Raging Capital Fund, LP, Raging Capital Fund (QP), LP, Raging Capital Management, LLC, William C. Martin, Paul K. McWilliams and Kenneth H. Traub, dated November 20, 2012.

99.2

Indemnification Agreement by and between Raging Capital Management, LLC and Paul K. McWilliams, dated November 20, 2012.

99.3

Indemnification Agreement by and between Raging Capital Management, LLC and Kenneth H. Traub, dated November 20, 2012.

99.4

Compensation Agreement by and between Raging Capital Management, LLC and Paul K. McWilliams, dated November 20, 2012.

99.5

Compensation Agreement by and between Raging Capital Management, LLC and Kenneth H. Traub, dated November 20, 2012.

CUSIP NO. 928497304

SIGNATURES

After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: November 21, 2012

Raging Capital Fund, LP

By:	Raging Capital Management, LLC General Partner

By:	/s/ Frederick C. Wasch
	Name:	Frederick C. Wasch
	Title:	Attorney-in-fact for William C. Martin, Managing Member

Raging Capital Fund (QP), LP

By:	Raging Capital Management, LLC General Partner

By:	/s/ Frederick C. Wasch
	Name:	Frederick C. Wasch
	Title:	Attorney-in-fact for William C. Martin, Managing Member

Raging Capital Management, LLC

By:	/s/ Frederick C. Wasch
	Name:	Frederick C. Wasch
	Title:	Attorney-in-fact for William C. Martin, Managing Member

	/s/ Frederick C. Wasch
	Frederick C. Wasch as Attorney-in-fact for William C. Martin

	/s/ Paul K. McWilliams
	Paul K. McWilliams

	/s/ Kenneth H. Traub
	Kenneth H. Traub

EX-99.1 2 ex991to13da207738020_112012.htm JOINT FILING AND SOLICITATION AGREEMENT ex991to13da207738020_112012.htm

Exbibit 99.1

JOINT FILING AND SOLICITATION AGREEMENT

WHEREAS, certain of the undersigned are stockholders, direct or beneficial, of Vitesse Semiconductor Corporation, a Delaware corporation (the “Company”);

WHEREAS, Raging Capital Fund, LP, a Delaware limited partnership (“Raging Capital Fund”), Raging Capital Fund (QP), LP, a Delaware limited partnership (“Raging Capital Fund QP”), Raging Capital Management, LLC, a Delaware limited liability company (“Raging Capital”), William C. Martin, Paul K. McWilliams and Kenneth H. Traub wish to form a group for the purpose of seeking representation on the Board of Directors of the Company (the “Board”) at the 2013 annual meeting of stockholders of the Company (including any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof, the “Annual Meeting”) and for the purpose of taking all other action necessary to achieve the foregoing.

NOW, IT IS AGREED, this 20th day of November 2012 by the parties hereto:

1. In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), each of the undersigned (collectively, the “Group”) agrees to the joint filing on behalf of each of them of statements on Schedule 13D, and any amendments thereto, with respect to the securities of the Company to the extent required by law. Each member of the Group shall be responsible for the accuracy and completeness of his/its own disclosure therein, and is not responsible for the accuracy and completeness of the information concerning the other members, unless such member knows or has reason to know that such information is inaccurate.

2. So long as this Agreement is in effect, each of the undersigned shall provide written notice to Olshan Frome Wolosky LLP (“Olshan”) of (i) any of their purchases or sales of securities of the Company, or (ii) any securities of the Company over which they acquire or dispose of beneficial ownership. Notice shall be given no later than 24 hours after each such transaction.

3. Each of the undersigned agrees to form the Group for the purpose of (i) soliciting proxies or written consents for the election of the persons nominated by Raging Capital Fund, on behalf of itself and its affiliates, to the Board at the Annual Meeting, (ii) taking such other actions as the parties deem advisable, and (iii) taking all other action necessary or advisable to achieve the foregoing.

4. Each of the undersigned agrees that all expenses incurred in connection with the Group’s activities set forth in Section 3 must be pre-approved in writing by Raging Capital. All such pre-approved expenses shall be paid by Raging Capital or its affiliates.

5. Each of the undersigned agrees that any SEC filing, press release or stockholder communication proposed to be made or issued by the Group or any member of the Group in connection with the Group’s activities set forth in Section 3 shall be first approved by Raging Capital or its representatives.

6. The relationship of the parties hereto shall be limited to carrying on the business of the Group in accordance with the terms of this Agreement. Such relationship shall be construed and deemed to be for the sole and limited purpose of carrying on such business as described herein. Nothing herein shall be construed to authorize any party to act as an agent for any other party, or to create a joint venture or partnership, or to constitute an indemnification. Nothing herein shall restrict any party’s right to purchase or sell securities of the Company, as he/it deems appropriate, in his/its sole discretion, provided that all such purchases and sales are made in compliance with all applicable securities laws.

7. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute but one and the same instrument, which may be sufficiently evidenced by one counterpart.

8. Any legal action or proceeding arising out of the provisions of this Agreement or the parties’ investment in the Company shall be brought and determined in the United States District Court for the Southern District of New York located in the Borough of Manhattan or the courts of the State of New York located in the County of New York.

9. Any party hereto may terminate his/its obligations under this Agreement on 24 hours’ prior written notice to all other parties, with a copy by fax to Steve Wolosky at Olshan, Fax No. (212) 451-2222.

10. Each party acknowledges that Olshan shall act as counsel for both the Group and Raging Capital and its affiliates relating to their investment in the Company.

11. Each party hereby agrees that this Agreement shall be filed as an exhibit to a Schedule 13D required to be filed under applicable law pursuant to Rule 13d-1(k)(1)(iii) under the Exchange Act.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.

Raging Capital Fund, LP

By:	Raging Capital Management, LLC General Partner

By:		/s/ William C. Martin
		Name:	William C. Martin
		Title:	Managing Member

Raging Capital Fund (QP), LP

By:	Raging Capital Management, LLC General Partner

By:		/s/ William C. Martin
		Name:	William C. Martin
		Title:	Managing Member

Raging Capital Management, LLC

By:	/s/ William C. Martin
	Name:	William C. Martin
	Title:	Managing Member

	/s/ William C. Martin
	William C. Martin

	/s/ Paul K. McWilliams
	Paul K. McWilliams

	/s/ Kenneth H. Traub
	Kenneth H. Traub

EX-99.2 3 ex992to13da207738020_112012.htm MCWILLIAMS INDEMNIFICATION AGREEMENT ex992to13da207738020_112012.htm

Exhibit 99.2

RAGING CAPITAL MANAGEMENT, LLC

Ten Princeton Avenue

Rocky Hill, NJ 08553

November 20, 2012

Paul K. McWilliams

P.O. Box 25712

Overland Park, KS 66225

Re: Vitesse Semiconductor Corporation

Dear Paul:

Thank you for agreeing to serve as a nominee for election to the Board of Directors of Vitesse Semiconductor Corporation (the “Company”) in connection with the proxy solicitation that Raging Capital Fund, LP, an affiliate of Raging Capital Management, LLC (“Raging Capital”), is considering undertaking on behalf of itself and its affiliates to nominate and elect directors at the Company’s 2013 annual meeting of stockholders, or any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof (the “Solicitation”). Your outstanding qualifications, we believe, will prove a valuable asset to the Company and all of its stockholders. This letter will set forth the terms of our agreement.

Raging Capital agrees to indemnify and hold you harmless against any and all claims of any nature arising from the Solicitation and any related transactions, irrespective of the outcome; provided, however, that you will not be entitled to indemnification for claims arising from your gross negligence, willful misconduct, intentional and material violations of law, criminal actions, provision to Raging Capital of false or misleading information (including false or misleading information on any questionnaire you are requested to complete by Raging Capital), or material breach of the terms of this letter agreement; provided further, that upon your becoming a director of the Company, this indemnification shall not apply to any claims made against you in your capacity as a director of the Company. This indemnification will include any and all losses, liabilities, damages, demands, claims, suits, actions, judgments, or causes of action, assessments, costs and expenses, including, without limitation, interest, penalties, reasonable attorneys’ fees, and any and all reasonable costs and expenses incurred in investigating, preparing for or defending against any litigation, commenced or threatened, any civil, criminal, administrative or arbitration action, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation asserted against, resulting, imposed upon, or incurred or suffered by you, directly or indirectly, as a result of or arising from the Solicitation and any related transactions (each, a “Loss”).

In the event of a claim against you pursuant to the prior paragraph or the occurrence of a Loss, you shall give Raging Capital prompt written notice of such claim or Loss (provided that failure to promptly notify Raging Capital shall not relieve it from any liability which it may have on account of this letter agreement, except to the extent Raging Capital shall have been materially prejudiced by such failure). Upon receipt of such written notice, Raging Capital will provide you with counsel to represent you. Such counsel shall be reasonably acceptable to you. In addition, you will be reimbursed promptly for all Losses suffered by you and as incurred as provided herein. Raging Capital may not enter into any settlement of Loss or claim without your consent unless such settlement includes a release of you from any and all liability in respect of such Loss or claim. Notwithstanding anything to the contrary set forth in this letter agreement, Raging Capital shall not be responsible for any fees, costs or expenses of separate legal counsel retained by you without Raging Capital’s prior written approval. In addition, you agree not to enter into any settlement of Loss or claim without the written consent of Raging Capital, which consent will not be unreasonably withheld.

You hereby agree to keep confidential and not disclose to any party, without the consent of Raging Capital, any confidential, proprietary or non-public information (collectively, “Information”) that you have heretofore obtained or may obtain in connection with the Solicitation or your service as a nominee hereunder. Notwithstanding the foregoing, Information shall not include any information that is publicly disclosed by Raging Capital or its affiliates or any information that you can demonstrate is now, or hereafter becomes, through no act or failure to act on your part, otherwise generally known to the public. Without limiting the generality of the foregoing, you may not publish or cause others to publish any commentary regarding the Company in any newsletter, publication, website or other forum without the prior written consent of Raging Capital.

Notwithstanding the foregoing, if you are required by applicable law, rule, regulation or legal process to disclose any Information you may do so provided that you first promptly notify Raging Capital so that Raging Capital or any of its representatives may seek a protective order or other appropriate remedy or, in Raging Capital’s sole discretion, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained or Raging Capital does not waive compliance with the terms of this letter agreement, you may consult with counsel at the cost of Raging Capital and you may furnish only that portion of the Information which you are advised by counsel is legally required to be so disclosed and you will request that the party(ies) receiving such Information maintain it as confidential.

All Information, all copies thereof, and any studies, notes, records, analysis, compilations or other documents prepared by you containing such Information, shall be and remain the property of Raging Capital and, upon the request of a representative of Raging Capital, all such information shall be returned or, at Raging Capital’s option, destroyed by you, with such destruction confirmed by you to Raging Capital in writing.

This letter agreement shall be governed by the laws of the State of New York, without regard to the principles of the conflicts of laws thereof.

This letter agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument.

	Very truly yours,

	RAGING CAPITAL MANAGEMENT, LLC

	By:	/s/ William C. Martin
		William C. Martin
		Managing Member

ACCEPTED AND AGREED:


/s/ Paul K. McWilliams
PAUL K. MCWILLIAMS

EX-99.3 4 ex993to13da207738020_112012.htm TRAUB INDEMNIFICATION AGREEMENT ex993to13da207738020_112012.htm

Exhibit 99.3

RAGING CAPITAL MANAGEMENT, LLC

Ten Princeton Avenue

Rocky Hill, NJ 08553

November 20, 2012

Kenneth H. Traub

116 Village Boulevard, Suite 200

Princeton, NJ 08540

Re: Vitesse Semiconductor Corporation

Dear Ken:

This letter agreement shall be governed by the laws of the State of New York, without regard to the principles of the conflicts of laws thereof.

This letter agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument.

	Very truly yours,

	RAGING CAPITAL MANAGEMENT, LLC

	By:	/s/ William C. Martin
		William C. Martin
		Managing Member

ACCEPTED AND AGREED:



/s/ Kenneth H. Traub
KENNETH H. TRAUB

EX-99.4 5 ex994to13da207738020_112012.htm MCWILLIAMS COMPENSATION AGREEMENT ex994to13da207738020_112012.htm

Exhibit 99.4

Raging Capital Management, LLC

Ten Princeton Avenue

Rocky Hill, NJ 08553

November 20, 2012

Paul K. McWilliams

P.O. Box 25712

Overland Park, KS 66225

Re: Vitesse Semiconductor Corporation

Dear Paul:

This letter sets forth our mutual agreement with respect to compensation to be paid to you for your agreement to be named and serve as a nominee of Raging Capital Fund, LP on behalf of itself and its affiliates for election as a director of Vitesse Semiconductor Corporation (the “Company”) at the Company’s 2013 annual meeting of stockholders, or any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof (the “Annual Meeting”).

In consideration of your agreement to be named and serve as a nominee for election as a director of the Company at the Annual Meeting, Raging Capital Management, LLC (“Raging Capital”) hereby agrees to pay you $15,000 in cash upon Raging Capital Fund, LP submitting a letter to the Company nominating you for election as a director of the Company (with such payment to be made as soon as reasonably practicable after you have been nominated). You hereby agree to use such compensation to acquire securities of the Company (the “Nominee Shares”) at such time that you shall determine, after consulting with Raging Capital, but in any event no later than 90 days after receipt of such compensation; provided, however, in the event you are unable to transact in the securities of the Company due to possession of material non-public information or any other limitation or restriction, you shall have 90 days from the first date that you can transact in the securities of the Company to acquire the Nominee Shares. If you are elected or appointed to serve as a director of the Company at the Annual Meeting or in connection with any settlement or similar understanding between Raging Capital and the Company with respect to the Annual Meeting, you agree not to sell, transfer or otherwise dispose of any Nominee Shares within two (2) years of your election or appointment as a director; provided, however, that in the event the Company enters into any merger, consolidation, business combination, sale of substantially all its assets or similar transaction with or involving a third party (a “Liquidity Event”), you may sell, transfer or exchange the Nominee Shares in accordance with the terms of such Liquidity Event.

You acknowledge and agree that notwithstanding the existence of this letter agreement or any payments to you by Raging Capital hereunder, you shall conduct your activities and make decisions in your capacity as a director of the Company completely independently of Raging Capital and its affiliates and nothing herein shall limit your ability to independently exercise your fiduciary duties as a director.

This letter agreement shall be governed by the laws of the State of New York, without regard to the principles of the conflicts of laws thereof.

This letter agreement shall bind and inure to the benefit of the parties’ heirs, successors and assigns.

This letter agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument.

Very truly yours,

RAGING CAPITAL MANAGEMENT, LLC

By:	/s/ William C. Martin
Name:	William C. Martin
Title:	Managing Member

ACCEPTED AND AGREED:



/s/ Paul K. McWilliams
PAUL K. MCWILLIAMS

EX-99.5 6 ex995to13da207738020_112012.htm TRAUB COMPENSATION AGREEMENT ex995to13da207738020_112012.htm

Exhibit 99.5

Raging Capital Management, LLC

Ten Princeton Avenue

Rocky Hill, NJ 08553

November 20, 2012

Kenneth H. Traub

c/o Ethos Management LLC

116 Village Boulevard, Suite 200

Princeton, NJ 08540

Re: Vitesse Semiconductor Corporation

Dear Ken:

In addition, if you are elected or appointed to serve as a director of the Company at the Annual Meeting or in connection with any settlement or similar understanding between Raging Capital and the Company with respect to the Annual Meeting, you will be entitled to receive within 30 days after the end of calendar 2013, 2014 and 2015 an amount equal to 7.5% of any actual Net Profits realized by Raging Capital Fund, LP and Raging Capital Fund (QP), LP (collectively, together with any successor entities, the “Raging Funds”) with respect to their investment in the securities (including the debentures) of the Company (collectively, the “Securities”) for the applicable calendar year as long as you are still a director of the Company as of the end of the applicable calendar year; provided, however, that in the event the Raging Funds realize actual Net Profits with respect to their entire investment in the Securities as a result of a Liquidity Event effected during any such year, you will be entitled to receive such compensation within 30 days after the effective date of the Liquidity Event as long as you were a director of the Company immediately prior to the effective date of the Liquidity Event.

In the event the Raging Funds continue to own Securities as of the end of calendar 2015, you will also be entitled to receive within 30 days after the end of such year an amount equal to 7.5% of the unrealized Net Profits of the Raging Funds with respect to their investment in such Securities as of the end of such year as long as you are still a director of the Company as of the end of such year.

For purposes of this letter agreement, “Net Profits” shall mean all realized or unrealized gains, as applicable, with respect to the Raging Funds’ investment in the Securities for the applicable period, including dividends and other distributions for value actually received with respect to such Securities, less (i) all realized or unrealized losses, as applicable, with respect to such Securities for the applicable period, (ii) any and all out of pocket fees and expenses incurred of any kind and nature related to the Raging Funds’ investment in the Securities, including, but not limited to, any legal, solicitation and/or public relations fees, and (iii) any positive or negative hedge allocation with respect to the Securities for the applicable period as calculated by Raging Capital in its reasonable business judgment for determining hedging income or loss and market exposure. Notwithstanding the foregoing, any interest paid or accrued on the debentures of the Company owned by the Raging Funds will not be included in the calculation of Net Profits. The calculation of Net Profits will be made by Raging Capital in good faith in accordance with the foregoing and its regular accounting procedures and shall be final and binding.

Nothing contained in this letter agreement shall impede or limit Raging Capital from exercising complete authority over the voting and disposition of any Securities beneficially owned by it.

This letter agreement shall be governed by the laws of the State of New York, without regard to the principles of the conflicts of laws thereof. All disputes between the parties relating to or arising under this letter agreement shall be resolved by binding arbitration in New York County, New York, before a single arbitrator agreed upon by the parties in accordance with the rules of the American Arbitration Association (“AAA”). The decision of the arbitrator shall be rendered in writing, shall be final and binding on both parties, shall not be appealable, and shall be enforceable in any court of competent jurisdiction.

This letter agreement shall bind and inure to the benefit of the parties’ heirs, successors and assigns.

This letter agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument.

Very truly yours,

RAGING CAPITAL MANAGEMENT, LLC

By:	/s/ William C. Martin
Name:	William C. Martin
Title:	Managing Member

ACCEPTED AND AGREED:



/s/ Kenneth H. Traub
KENNETH H. TRAUB