<PAGE>
As filed with the Securities and Exchange Commission on December 23, 1998
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
VITESSE SEMICONDUCTOR CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
-----------------
DELAWARE 77-0138960
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
741 CALLE PLANO
CAMARILLO, CALIFORNIA 93012
(805) 388-3700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
-----------------
1991 STOCK OPTION PLAN
VERMONT SCIENTIFIC TECHNOLOGIES, INC. 1998 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
-----------------
EUGENE F. HOVANEC
CHIEF FINANCIAL OFFICER
VITESSE SEMICONDUCTOR CORPORATION
741 CALLE PLANO
CAMARILLO, CALIFORNIA 93012
(805) 388-3700
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
-----------------
COPIES TO:
FRANCIS S. CURRIE, ESQ.
MARTIN A. WELLINGTON, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(650) 493-9300
-----------------
================================================================================
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE PRICE FEE
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1991 Stock Option Plan 2,582,584 $48.59(1) $34,886.00
Common Stock, $0.01 par value $125,487,756.50(1)
- ---------------------------------------------------------------------------------------------------
Vermont Scientific Technologies,
Inc. 1998 Stock Option Plan
Common Stock, $0.01 par value 27,913 $0.36 (2) $10,048.68 (2) $3.00
- ---------------------------------------------------------------------------------------------------
TOTAL 2,610,497 $34,889.00
- ---------------------------------------------------------------------------------------------------
===================================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the registration fee.
The computation is based upon the average of the high and low price as
reported on the NASDAQ National Market on December 21, 1998. The
indicated number of shares to be registered represents additional shares
issuable under the 1998 Stock Option Plan that are not covered by prior
registration statements.
(2) All options under the 1998 Vermont Scientific Technologies, Inc. Stock
Option Plan (the "VTEK Options") are exercisable for shares of the
Company's Common Stock at the exercise price of $0.36 per share. The VTEK
Options were assumed by the Registrant pursuant to the Registrant's
acquisition of Vermont Scientific Technologies, Inc., effective November
25, 1998.
===============================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
(a) The Registrant's annual report on Form 10-K for the fiscal year
ended September 30, 1998, filed pursuant to Section 13 of the Securities
Exchange Act of 1934 (the "Exchange Act").
(b) The description of the Registrant's Common Stock to be offered
hereby is contained in the Registrant's Registration Statement on Form S-3 filed
with the Securities and Exchange Commission on October 23, 1996 (File No. 333-
14695), including any amendment or report filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to this registrations
statement, but prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be part hereof from the date of filing such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
The Registrant has adopted provisions in its Amended and Restated
Certificate of Incorporation which (i) eliminate the personal liability of its
directors to the Registrant and its shareholders for monetary damages arising
from a breach of their fiduciary duties in certain circumstances; and (ii)
authorize the Registrant to indemnify its directors and officers to the fullest
extent permitted by law. The limitation of liability does not affect the
availability of equitable remedies, such as injunctive relief or rescission. In
addition, the Registrant's bylaws provide that the Registrant shall indemnify
its directors and officers to the fullest extent permitted by applicable law.
The Registrant has entered into separate indemnification agreements
with each of its officers and directors that contain provisions which are in
some respects broader than the specific indemnification provisions contained in
the Delaware General Corporation Law. The indemnification agreements may require
the Registrant, among other things, to indemnify such officers and directors
against certain liabilities that may arise by reason of their status or service
as directors or officers (other than liabilities arising from willful misconduct
of a culpable nature), to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified, and to obtain
director's and officer's insurance, if available on reasonable terms.
II-1
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
ITEM 8. EXHIBITS.
--------
Exhibit
Number
------
4.1 1991 Stock Option Plan incorporated herein by reference
to the Registrant's Registration Statement on Form S-8 (File
No. 333-53463) filed with the Commission on May 22, 1998.
4.2 Vermont Scientific Technologies, Inc. 1998 Stock Option Plan
filed herewith.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (Counsel to the Registrant), as to the legality
of securities being registered filed herewith.
23.1 Consent of KPMG Peat Marwick L.L.P. filed herewith
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1)
24.1 Power of Attorney (see Page II-4)
ITEM 9. UNDERTAKINGS.
------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to
II-2
<PAGE>
Section 15(d) of the Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Camarillo, State of California on December 23, 1998.
VITESSE SEMICONDUCTOR
CORPORATION
By: /s/ Eugene F. Hovanec
_________________________________
Eugene F. Hovanec
Vice President, Finance and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Louis R. Tomasetta and Eugene F. Hovanec, jointly
and severally, his attorneys-in-fact, each with the power of substitution, for
him in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
/s/ Louis R. Tomasetta President, Chief Executive December 23, 1998
- ----------------------------------------------- Officer, and Director (principal
Louis R. Tomasetta executive officer)
/s/ Eugene F. Hovanec Vice President, Finance and Chief December 23, 1998
- ----------------------------------------------- Financial Officer (principal
Eugene F. Hovanec financial and accounting officer
/s/ James A. Cole Director December 23, 1998
- ----------------------------------------------
James A. Cole
/s/ Pierre R. Lamond Chairman of the Board of Directors December 23, 1998
- -----------------------------------------------
Pierre R. Lamond
/s/ John C. Lewis Director December 23, 1998
- -----------------------------------------------
John C. Lewis
/s/ Alex Daly Director December 23, 1998
- -----------------------------------------------
Alex Daly
</TABLE>
II-4
<PAGE>
VITESSE SEMICONDUCTOR CORPORATION
REGISTRATION STATEMENT ON FORM S-8
----------------------------------
INDEX TO EXHIBITS
Exhibit
Number Description
------- ----------------------------------------------
4.1 1991 Stock Option Plan incorporated herein by reference to
the Registrant's Registration Statement on Form S-8 (File
No. 333-53463) filed with the Commission on May 22, 1998.
4.2 Vermont Scientific Technologies, Inc. 1998 Stock Option
Plan, filed herewith.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (Counsel to the Registrant), as to the legality
of securities being registered filed herewith.
23.1 Consent KPMG Peat Marwick L.L.P. filed herewith.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1).
24.1 Power of Attorney (see Page II-4).
<PAGE>
EXHIBIT 4.2
VERMONT SCIENTIFIC TECHNOLOGIES, INC.
1998 STOCK OPTION PLAN
1. PURPOSE
-------
The purpose of this 1998 Stock Option Plan (the "Plan") is to advance the
interests of Vermont Scientific Technologies, Inc. (the "Company") by enhancing
the ability of the Company and its subsidiaries to attract and retain directors,
employees, consultants or advisers who are in a position to make significant
contributions to the success of the Company, to reward them for their
contributions and to encourage them to take into account the long-term interests
of the Company.
The Plan provides for the award of options to purchase shares of the
Company's common stock ("Stock") and for the award of stock appreciation rights
("SARs") based on section 422 of the Internal Revenue Code of 1986 (as from time
to time amended, the "Code") (any option that is intended to qualify as an
incentive stock option being referred to herein as an "incentive option"), or
options that are not incentive options, or both. Options granted pursuant to
the Plan shall be presumed to be non-incentive options unless expressly
designated as incentive options.
2. ELIGIBILITY FOR AWARDS
----------------------
Persons eligible to receive awards under the Plan shall be all directors,
including directors who are not employees of the Company and all executive
officers of the Company and its subsidiaries and other employees, consultants
and advisers who, in the opinion of the Board, are in a position to make a
significant contribution to the success of the Company and its subsidiaries.
Incentive options shall be granted only to "employees" as defined in the
provisions of the Code or regulations thereunder applicable to incentive stock
options. A subsidiary for purposes of the Plan shall be a corporation in which
the Company owns, directly or indirectly, stock possessing 50% or more of the
total combined voting power of all classes of stock. Persons selected for
awards under the Plan are referred to herein as "participants."
3. ADMINISTRATION
--------------
The Plan shall be administered by the Board of Directors (the "Board") of
the Company. The Board shall have authority, not inconsistent with the express
provisions of the Plan, (a) to grant awards consisting of options or SARs, or
both, to such participants as the Board may select; (b) to determine the time or
times when awards shall be granted and the number of shares of Stock subject to
each award; (c) to determine which options are, and which options are not,
incentive options; (d) to determine the terms and conditions of each award; (e)
to prescribe the form or forms of any instruments evidencing awards and any
other instruments required under the Plan and to change such forms from time to
time; (f) to adopt, amend and rescind rules and regulations for the
administration of the Plan; and (g) to interpret the Plan and to decide any
questions and settle all controversies and disputes that may arise in connection
with the Plan. Such determinations of the Board shall be conclusive and shall
bind all parties. Subject to Section 8 the Board shall also have the authority,
both generally and in particular instances, to waive compliance by a participant
with any obligation to be performed by the participant under an award, to waive
any condition or provision of an award, and to amend or cancel any award (and if
an award is canceled, to grant a new award on such terms as the Board shall
specify) except that the Board may not take any action with respect to an
outstanding award that would adversely affect the rights of the participant
under such award without such participant's consent. Nothing in the preceding
sentence shall be construed as limiting the power of the Board to make
adjustments required by Section 5(c) and Section 6(j).
The Board may, in its discretion, delegate some or al of its powers with
respect to the Plan to a committee (the "Committee"), in which event all
references in this Plan (as appropriate) to the Board shall be deemed to refer
to the Committee. The Committee, if one is appointed, shall consist of at least
two directors. A majority of the members of the Committee shall constitute a
quorum, and all determinations of the Committee shall be made by a majority of
its
<PAGE>
members. Any determination of the Committee under the Plan may be made without
notice or meeting of the Committee by a writing signed by a majority of the
Committee members.
4. EFFECTIVE DATE AND TERM OF PLAN
-------------------------------
The Plan shall become effective on the date on which it is approved by the
shareholders of the Company. Grants of awards under the Plan may be made prior
to that date (but contemporaneous with or after Board adoption of the Plan), are
subject to approval of the Plan by such shareholders.
No awards shall be granted under the Plan after the completion of ten years
from the date on which the Plan was adopted by the Board, but awards previously
granted may extend beyond that date.
5. SHARES SUBJECT TO THE PLAN
--------------------------
(1) Number of Shares. Subject to adjustment as provided in Section 5(c),
----------------
the aggregate number of shares of Stock that may be delivered upon the exercise
of awards granted under the Plan shall be 1,000,000. If any award granted under
the Plan terminated without having been exercised in full, or upon exercise is
satisfied other than by delivery of Stock, the number of shares of Stock as to
which such award was not exercised shall be available for future grants within
the limits set forth in this Section 5(a).
The maximum number of shares for which options may be granted to any
individual over the life of the Plan shall be 500,000. The maximum number of
shares subject to SARs granted to any individual over the life of the Plan shall
likewise be 500,000. The per-individual limitations described in this paragraph
shall be construed and applied consistent with the rules and regulations under
Section 162(m) of the Code.
(2) Shares to Be Delivered. Shares delivered under the Plan shall be
----------------------
authorized but unissued Stock or, if the Board so decided in its sole
discretion, previously issued Stock acquired by the Company and held in its
treasury. No fractional shares of Stock shall be delivered under the Plan.
(3) Changes in Stock. In event of a stock dividend, stock split or
----------------
combination of shares, recapitalization or other change in the Company's capital
stock, the number and kind of shares of Stock subject to awards then outstanding
or subsequently granted under the Plan, the exercise price of such awards, the
maximum number of shares of Stock that may be delivered under the Plan, and
other relevant provisions shall be appropriately adjusted by the Board, whose
determination shall be binding on all persons.
The Board may also adjust the number of shares subject to outstanding
awards and the exercise price and terms of outstanding awards to take into
consideration material changes in accounting practices or principles,
extraordinary dividends, consolidations or mergers (except those described in
Section 6(j)), acquisitions or dispositions of stock or property or any other
even if it is determined by the Board that such adjustment is appropriate to
avoid distortion in the operation of the Plan, provided that no such adjustment
shall be made in the case of an incentive option, without the consent of the
participant, if it would constitute a modification, extension or renewal of the
option within the meaning of Section 424(h) of the Code.
6. TERMS AND CONDITIONS OF OPTIONS AND SARs
----------------------------------------
(1) Exercise Price of Options and SARs. The exercise price of each option
----------------------------------
or SAR shall be determined by the Board but in the case of an incentive option
shall not be less than 100% (110%, in the case of an incentive option granted to
a ten-percent shareholder) of the fair market value of the Stock at the time the
option is granted; nor shall the exercise price be less, in the case of an
original issue of authorized stock, than par value. For this purpose, "fair
market value" in the case of incentive options shall have the same meaning as it
does in the provisions of the Code and the regulations thereunder applicable to
incentive options; and "ten-percent shareholder" shall mean any participant who
at the time of grant owns directly, or by reason of the attribution rules set
forth in section 424(d) of the Code, is deemed to own sock possessing more than
10% of the total combined voting power of all classes of stock of the Company or
of any of its parent or subsidiary corporations.
(2) Duration of Options and SARs. Options and SARs shall be exercisable
----------------------------
during such period or periods as the Board may specify. The latest date on
which an option or SAR may be exercised (the "Final Exercise Date") shall
-2-
<PAGE>
be the date that is ten years (five years, in the case of an incentive option
granted to a "ten-percent shareholder" as defined in (a) above) from the date
the option or SAR was granted or such earlier date as the Board may specify at
the time the option or SAR is granted.
(3) Exercise of Options and SARs.
----------------------------
(1) Options and SARs shall become exercisable at such time or times and
upon such conditions as the Board shall specify. In the case of an
option or an SAR not immediately exercisable in full, the Board may at
any time accelerate the time at which all or any part of the option or
SAR may be exercised.
(2) Options and SARs may be exercised in writing. Written notice of
exercise must be signed by the proper person and furnished to the
Company, together with (i) such documents as the Board may require and
(ii) in the case of options, payment in full as specified below in
Section 6(d) for the number of shares for which the option is
exercised.
(3) The delivery of Stock upon the exercise of an option or an SAR shall
be subject to compliance with (i) applicable federal and state laws
and regulations, (ii) if the outstanding Stock is at the time listed
on any stock exchange, the listing requirements of such exchange, and
(iii) Company counsel's approval of all other legal matters in
connection with the issuance and delivery of such Stock. If the sale
of Stock has not been registered under the Securities Act of 1933, as
amended, the Company may require, as a condition to exercise the
option or SAR, such representations or agreements as counsel for the
Company may consider appropriate to avoid violation of such Act and
may require that the certificates evidencing such Stock bear an
appropriate legend restricting transfer.
(4) In the case of an option that is not an incentive option or an SAR,
the Board shall have the right to require that the participant
exercising the option remit to the Company and amount sufficient to
satisfy any federal, state, or local withholding tax requirements (or
make other arrangements satisfactory to the Company with regard to
such taxes) prior to the delivery of any Stock pursuant to the
exercise of the option. If permitted by the Board, either at the time
of the grant of the option or SAR or the time of exercise, the
participant may elect, at such time and in such manner as the Board
may prescribe, to satisfy such withholding obligation by (i)
delivering to the Company Stock (which in the case of Stock acquired
from the Company shall have been owned by the participant for at least
six months prior to the delivery date) having a fair market value
equal to such withholding obligation, or (ii) requesting that the
Company withhold from the shares of Stock to be delivered upon the
exercise a number of shares of Stock having a fair market value equal
to such withholding obligation.
In the case of an incentive option, if at the time the option is
exercised the Board determines that under applicable law and
regulations the Company could be liable for the withholding of any
federal or state tax with respect to a disposition of the Stock
received upon exercise, the Board may require as a condition of
exercise that the participant exercising the option agree (i) to
inform the Company promptly of any disposition (within the meaning of
Section 424(c) of the Code and the regulations thereunder) of Stock
received upon exercise, and (ii) to give such security as the Board
deems adequate to meet the potential liability of the Company for the
withholding tax, and to augment such security from time to time in any
amount reasonably deemed necessary by the Board to preserve the
adequacy of such security.
(5) If an option or an SAR is exercised by the executor or administrator
of a deceased participant, or by the person or persons to whom the
option has been transferred by the participant's will or the
applicable laws of descent and distribution, the Company shall be
under no obligation to deliver Stock pursuant to such exercise until
the Company is satisfied as to the authority of the person or persons
exercising the option or SAR.
-3-
<PAGE>
(4) Payment for and Delivery of Stock. Stock purchased upon exercise of an
---------------------------------
option under the Plan shall be paid for as follows:
(1) in cash or by personal check, certified check, bank draft or money
order payable under to the order of the Company; or
(2) if so permitted by the Board (which, in the case of an incentive
option, shall specify the method of payment at the time of grant), (A)
through the delivery of shares of Stock (which, in the case of Stock
acquired from the Company, shall have been held for at least six
months prior to delivery) having a fair market value on the last
business day preceding the date of exercise equal to the purchase
price or (B) by delivery of a promissory note of the participant to
the Company, such note to be payable on such terms as are specified by
the Board or (C) by delivery of an unconditional and irrevocable
undertaking by a broker to deliver promptly to the Company sufficient
funds to pay the exercise price or (D) by any combination of the
permissible forms of payment; provided, that if the Stock delivered
upon exercise of the option is an original issue of authorized Stock,
at least so much of the exercise price as represents the par value of
such Stock shall be paid other than by a personal check or promissory
note of the person exercising the option
(5) Stock Appreciation Rights. The Board in its discretion may grant
-------------------------
SARs either in tandem with or independent of options awarded under the Plan.
Except as hereinafter provided, each SAR shall entitle the participant to
receive upon exercise, with respect to each share of Stock to which the SAR
relates, the excess of (i) the share's value on the date of exercise over (ii)
the share's fair market value on the date the SAR was granted. For purposes of
clause (i), "value" shall mean fair market value; provided, that the Board may
--------
adjust such value to take into account dividends on the Stock and may also grant
SARs that provide, in such limited circumstances following a change in control
of the Company (as determined by the Board) as the Board may specify, that
"value" for purposes of clause (i) is to be determined by reference to an
average value for the Stock during a period immediately preceding the change in
control, all as determined by the Board. The amount payable to a participant
upon exercise of an SAR shall be exercisable during such period or periods and
on such terms as the Board may specify. In no event, however, shall an SAR be
exercisable after the date that is ten years from the date of grant.
(6) Rights as Shareholder. A participant shall not have the rights of
---------------------
a shareholder with regard to awards under the Plan except as to Stock actually
received by the participant under the Plan.
(7) Nontransferability of Awards. Except as the Board may otherwise
----------------------------
determine, no award may be transferred other than by will or by the laws of
descent and distribution, and during a participant's lifetime an award may be
exercised only by the participant.
(8) Death. If a participant dies, each option and SAR held by the
-----
participant immediately prior to death may be exercised, to the extent it was
exercisable immediately prior to death, by the participant's executor or
administrator or by the person or persons to whom the option or SAR is
transferred by will or the applicable laws of descent and distribution, at any
time within the one-year period (or such longer or shorter period as the Board
may determine) beginning with the date of the participant's death but in no
event beyond the Final Exercise Date. All options and SARs held by a
participant immediately prior to death that are not then exercisable shall
terminate on the date of death.
(9) Termination of Service Other Than By Death. If an employee's
-------------------------------------------
employment with the Company and its subsidiaries terminates for any reason other
than by death, all options and SARs held by the employee that are not then
exercisable shall terminate. Options and SARs that are exercisable on the date
employment terminates shall continue to be exercisable for a period of three
months (or such longer period as the Board may determine, but in no event beyond
the Final Exercise Date) unless the employee was discharged for cause that in
the opinion of the Board casts such discredit on the employee as to justify
termination of the employee's options and SARs. After completion of the post-
termination exercise period, such options and SARs shall terminate to the extent
not previously exercised,
-4-
<PAGE>
expired or terminated. For the purposes of this Section 6(i), employment shall
not be considered terminated (i) in the case of sick leave or other bona fide
leave of absence approved for the purposes of the Plan by the Board so long as
the employee's right to reemployment is guaranteed either by statute or by
contract, or (ii) in the case of a transfer of employment between the Company
and a subsidiary or between subsidiaries, or to the employment of a corporation
(or a parent or subsidiary corporation of such corporation) issuing or assuming
an option or SAR in a transaction to which section 424(a) of the Code applies.
In the case of a participant who is not an employee, provisions
relating to the exercisability of options and SARs following termination of
service shall be specified in the award. If not so specified, all options and
SARs held by such participant that are not then exercisable shall terminate upon
termination of service. Options and SARs that are exercisable on the date the
participant's service as a director, consultant or adviser terminates shall
continue to be exercisable for a period of three months (or such longer period
as the Board may determine, but in no event beyond the Final Exercise Date)
unless the director, consultant or adviser was terminated for cause that in the
opinion of the Board casts such discredit on him or her as to justify
termination of his or her options and SARs. After completion of the
post-termination exercise period, such options and SARs shall terminate to the
extent not previously exercised, expired or terminated.
(10) Mergers, etc. In the event of a consolidation or merger in which
------------
the Company is not the surviving corporation or which results in the acquisition
of substantially all the Company's outstanding Stock by a single person or
entity or by a group of persons and/or entities acting in concert, or in the
event of the sale or transfer of substantially all the Company's assets, all
outstanding awards shall thereupon terminate, provided that all outstanding
awards shall be come exercisable immediately prior to consummation of such
merger, consolidation or sale of assets unless, if there is a surviving or
acquiring corporation, the Board has arranged, subject to consummation of the
merger, consolidation or sale of assets, for the assumption of the awards or the
grant to participants of replacement awards by that corporation or an affiliate
of that corporation, which awards in the case of incentive options shall satisfy
the requirements of Section 424(a) of the Code.
The Board may grant awards under the Plan in substitution for awards
held by directors, employees, consultants, or advisers of another corporation
who concurrently become directors, employees, consultants, or advisers of the
Company or a subsidiary of the Company as the result of a merger or
consolidation of that corporation with the Company or a subsidiary of the
Company, or as the result of the acquisition by the Company or a subsidiary of
the Company of property or stock of that corporation. The Company may direct
that substitute awards be granted on such terms and conditions as the Board
considers appropriate in the circumstances.
7. EMPLOYMENT RIGHTS
-----------------
Neither adoption of the Plan nor the grant of awards shall confer upon
any participant any right to continue as an employee or director of, or
consultant or adviser to, the Company or any parent or subsidiary of affect in
any way the right of the Company or parent or subsidiary to terminate them at
any time. Except as specifically provided by the Board in any particular case,
the loss of existing or potential profit in awards granted under this Plan shall
not constitute an element of damages in the event of termination of the
relationship of a participant even if the termination is in violation of an
obligation of the Company to the participant by contract or by otherwise.
8. EFFECT, DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION
---------------------------------------------------------------
Neither adoption of the Plan nor the grant of awards to a participant
shall affect the Company's right to make awards to such participant that are not
subject to the Plan, to issue to such participant Stock as a bonus or otherwise,
or to adopt other plans or arrangements under which Stock may be issued.
The Board may at any time discontinue granting awards under the Plan.
With the consent of the participant, the Board may at any time cancel an
existing award in whole or in part and grant another award for such number of
shares as the Board specifies. The Board may at any time or times amend the
Plan or any outstanding award for the purpose of satisfying the requirements of
section 422 of the Code or of any changes in applicable laws or regulations or
for any other purpose that may at the time be permitted by law, or may at any
time terminate the Plan as to further grants of awards, but no such amendment
shall adversely affect the rights of any participant (without the participant's
consent) under any award previously granted.
-5-
<PAGE>
EXHIBIT 5.1
December 22, 1998
Vitesse Semiconductor Corporation
741 Calle Plano
Camarillo, California 93012
RE: REGISTRATION STATEMENT ON FORM S-8
----------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about the date hereof (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 2,610,497 shares of your
Common Stock (the "Option Shares") under the 1991 Stock Option Plan (the "1991
Plan") and the Vermont Scientific Technologies, Inc. 1998 Stock Option Plan (the
"VTEK Plan" or, with the 1991 Plan, the "Plans"). As legal counsel to Vitesse
Semiconductor Corporation (the "Company"), we have examined the proceedings
taken and proposed to be taken in connection with the issuance, sale and payment
of consideration for the Option Shares under the Plans. In addition, for the
purposes of this opinion, we have assumed that the consideration received by the
Company in connection with each issuance of the Option Shares will include an
amount in the form of cash, services rendered or property that exceeds the
greater of (i) the aggregate par value of such shares or (ii) the portion of
such consideration determined by the Company's Board of Directors to be
"capital" for purposes of the Delaware General Corporation Law.
It is our opinion that the Option Shares, when issued and sold in the
manner described in the 1991 Plan and the VTEK Plan and pursuant to the
agreement that accompanies each grant under the 1991 Plan and the VTEK Plan will
be legally and validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including any prospectus constituting a part thereof,
and any amendments thereto. This opinion may be incorporated by reference in
any abbreviated registration statement filed pursuant to General Instruction E
of Form S-8 under the Securities Act with respect to the Registration Statement.
Sincerely,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE>
EXHIBIT 23.1
Consent of Independent Accountants
----------------------------------
The Board of Directors
Vitesse Semiconductor Corporation
We consent to incorporation by reference in the registration statement on Form
S-8 of Vitesse Semiconductor Corporation relating to the 1991 Stock Option Plan
and the Vermont Scientific Technologies, Inc. 1998 Stock Option Plan of Vitesse
Semiconductor Corporation of our report dated October 14, 1998, relating to the
consolidated balance sheets of Vitesse Semiconductor Corporation and
subsidiaries as of September 30, 1998 and 1997, and the related consolidated
statements of operations, shareholders' equity and cash flows for each of the
years in the three year period ended September 30, 1998, and related schedule,
which report appears in the September 30, 1998 annual report on Form 10-K of
Vitesse Semiconductor Corporation.
Los Angeles, California
December 21, 1998
/s/ KPMG Peat Marwick LLP
- ---------------------------------
KPMG Peat Marwick LLP
