<PAGE>
As filed with the Securities and Exchange Commission on May 22, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
----------------------
VITESSE SEMICONDUCTOR CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
---------------------
<TABLE>
<S> <C> <C>
DELAWARE 3674 77-0138960
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
741 CALLE PLANO
CAMARILLO, CA 93012
(805) 388-3700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1991 STOCK OPTION PLAN
1991 DIRECTORS' STOCK OPTION PLAN
1991 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLANS)
---------------------
EUGENE F. HOVANEC
CHIEF FINANCIAL OFFICER
VITESSE SEMICONDUCTOR CORPORATION
741 CALLE PLANO
CAMARILLO, CA 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.
CHRISTOPHER G. NICHOLSON, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
-----------------------
================================================================================
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================
PROPOSED
AMOUNT MAXIMUM PROPOSED
TO BE OFFERING MAXIMUM
TITLE OF EACH CLASS OF REGISTERED PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED (SHARES) PER SHARE OFFERING PRICE REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1991 Stock Option Plan
Common Stock, $0.01 par value
(issuable upon exercise of
options granted and outstanding)
(1)................................. 4,561,986 $19.6100 $ 89,460,545.46 $26,390.86
- -----------------------------------------------------------------------------------------------------------
1991 Stock Option Plan
Common Stock, $0.01 par value
(issuable upon exercise of
options reserved for future grant)(2) 64,559 $50.8800 $ 3,284,761.92 $ 969.00
- -----------------------------------------------------------------------------------------------------------
1991 Directors' Stock Option Plan
Common Stock, $0.01 par value
(issuable upon exercise of
options granted and outstanding)
(1)................................. 153,900 $19.6100 $ 3,017,979.00 $ 890.30
- -----------------------------------------------------------------------------------------------------------
1991 Directors' Stock Option Plan
Common Stock, $0.01 par value
(issuable upon exercise of
options reserved for future grant)(2) 146,100 $50.8800 $ 7,433,568.00 $ 2,192.90
- -----------------------------------------------------------------------------------------------------------
1991 Employee Stock Purchase Plan
Common Stock, $0.01 par value (3)... 375,000 $43.2500 $ 16,218,750.00 $ 4,784.53
- -----------------------------------------------------------------------------------------------------------
TOTALS 5,301,545 $119,415,604.30 $35,228.00
===========================================================================================================
------------------------
===========================================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457 under the Securities Act of 1933
solely for the purpose of calculating the total registration fee.
Computation based on the weighted average exercise price of the granted and
outstanding options covering the indicated shares.
(2) 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 closing price of the Company's shares as
reported on the Nasdaq National Market on May 18, 1998. The indicated number
of shares to be registered represents additional shares issuable under the
listed plans that are not covered by prior registration statements.
(3) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee. The computation is based upon
85% (see explanation in following sentence) of the closing price of the
Common Stock as reported on the Nasdaq National Market on May 18, 1998.
Pursuant to the 1991 Employee Stock Purchase Plan, Common Stock issued
thereunder will be sold at a per share price equal to 85% of the Fair Market
Value of a share of Common Stock on the Enrollment Date or the Exercise
Date, whichever is lower (as such terms are defined in such plan).
<PAGE>
STATEMENT UNDER GENERAL INSTRUCTION E - REGISTRATION OF ADDITIONAL SECURITIES.
The Registrant previously filed a Registration Statement on Form S-8 with the
Securities and Exchange Commission (SEC File No. 33-47016) (the "Previous Form
S-8"). The Previous Form S-8 was filed in connection with the 1987 Stock Option
Plan, 1989 Stock Option Plan, 1991 Stock Option Plan, 1991 Directors' Stock
Option Plan and 1991 Employee Stock Purchase Plan. This Registration Statement
registers additional shares of the Registrant's Common Stock to be issued
pursuant to the 1991 Stock Option Plan, 1991 Directors' Stock Option Plan and
1991 Employee Stock Purchase Plan (collectively, the "1991 Plans"). The
contents of the Previous Form S-8, including periodic reports that the
Registrant filed after the Previous Form S-8 to maintain current information
about the Registrant, are incorporated by reference into this Registration
Statement pursuant to General Instruction E of Form S-8.
The Registrant expects to effect a 2-for-1 forward stock split of its Common
Stock (by way of a stock dividend) on or about May 26, 1998. Pursuant to Rule
416 under the Securities Act of 1933, as amended, the Registrant intends this
Registration Statement to also register the additional shares issuable under the
1991 Plans as a result of such stock split.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS.
4.9 1991 Employee Stock Purchase Plan, as amended on June 18, 1992.
5.1 Opinion of counsel as to legality of Securities being registered.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-2).
II-1
<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 May 22, 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 and Chief Executive May 22, 1998
Louis R. Tomasetta Officer (principal executive
officer)
/s/ EUGENE F. HOVANEC
- ------------------------------------------- Vice President, Finance and May 22, 1998
Eugene F. Hovanec Chief Financial Officer
(principal financial and
accounting officer)
- ------------------------------------------- Director
James A. Cole
/s/ PIERRE R. LAMOND
- ------------------------------------------- Chairman of the Board of May 22, 1998
Pierre R. Lamond Directors
/s/ JOHN C. LEWIS
- ------------------------------------------- Director May 22, 1998
John C. Lewis
/s/ ALEX DALY
- ------------------------------------------- Director May 22, 1998
Alex Daly
</TABLE>
II-2
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Exhibit Document
- ----------------------- --------------------------------------------------------------
<S> <C>
4.9 1991 Employee Stock Purchase Plan, as amended on June 18, 1992
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, as to the legality of securities being registered
(Counsel to the Registrant)
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1 hereto)
24.1 Power of Attorney (see page II-2)
</TABLE>
<PAGE>
EXHIBIT 4.9
VITESSE SEMICONDUCTOR CORPORATION
1991 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 1991 Employee Stock Purchase
Plan of Vitesse Semiconductor Corporation.
1. Purpose The purpose of the Plan is to provide employees of the Company
-------
and its Designated Subsidiaries with an opportunity to purchase Common Stock of
the Company through accumulated payroll deductions. It is the intention of the
Company to have the Plan qualify as an "Employee Stock Purchase Plan" under
Section 423 of the Internal Revenue Code of 1986, as amended. The provisions of
the Plan shall, accordingly, be construed so as to extend and limit
participation in a manner consistent with the requirements of that section of
the Code.
2. Definitions
-----------
(a) "Board" shall mean the Board of Directors of the Company.
-----
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
----
(c) "Common Stock" shall mean the Common Stock of the Company.
------------
(d) "Company" shall mean Vitesse Semiconductor Corporation, a Delaware
-------
corporation.
(e) "Compensation" shall mean all base straight time gross earnings
------------
including payments for shift premium and commissions and excluding overtime,
incentive compensation, incentive payments, bonuses and other compensation.
(f) "Designated Subsidiaries" shall mean the Subsidiaries which have been
-----------------------
designated by the Board from time to time in its sole discretion as eligible to
participate in the Plan.
(g) "Employee" shall mean any individual who is an employee of the
--------
Company for purposes of tax withholding under the Code whose customary
employment with the Company or any Designated Subsidiary is at least twenty (20)
hours per week and more than five (5) months in any calendar year. For purposes
of the Plan, the employment relationship shall be treated as continuing intact
while the individual is on sick leave or other leave of absence approved by the
Company. Where the period of leave exceeds 90 days and the individual's right
to reemployment is not guaranteed either by statute or by contract, the
employment relationship will be deemed to have terminated on the 91st day of
such leave.
(h) "Enrollment Date" shall mean the first day of each Offering Period.
---------------
(i) "Exercise Date" shall mean the last day of each Offering Period.
-------------
1
<PAGE>
(j) "Fair Market Value" shall mean, as of any date, the value of Common
-----------------
Stock determined as follows:
(1) If the Common Stock is listed on any established stock exchange or
a national market system, including without limitation the National Market
System of the National Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") System, the Fair Market Value of a Share of Common Stock
shall be the closing sales price for such stock (or the closing bid, if no sales
were reported), as quoted on such system or exchange (or the exchange with the
greatest volume of trading in Common Stock on the last market trading day prior
to the day of such determination) as reported in the Wall Street Journal or such
other source as the Board deems reliable;
(2) If the Common Stock is quoted on the NASDAQ system (but not on the
National Market System thereof) or is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market Value of
a Share of Common Stock shall be the mean between the high and low asked prices
for the Common Stock on the last market trading day prior to the date of such
determination, as reported in the Wall Street Journal or such other source as
the Board deems reliable, or;
(3) In the absence of an established market for the Common Stock, the
Fair Market Value thereof shall be determined in good faith by the Board.
(k) "Offering Period" shall mean a period of approximately six (6)
---------------
months. The first Offering Period under the Plan shall commence on January 13,
1992 and shall terminate on July 10, 1992. Thereafter, Offering Periods under
the Plan shall commence on the first Trading Day of the first full payroll
period which begins August and February of each year and shall terminate on the
last Trading Day before the next Offering Period commences. Pursuant to Section
4 of the Plan, the Board shall have the power to change the duration and timing
of Offering Periods with respect to future offerings.
(l) "Plan" shall mean this Employee Stock Purchase Plan.
----
(m) "Purchase Price" shall mean an amount equal to 85% of the Fair Market
--------------
Value of a share of Common Stock on the Enrollment Date or on the Exercise Date,
whichever is lower.
(n) "Reserves" shall mean the number of shares of Common Stock covered by
--------
each option under the Plan which have not yet been exercised and the number of
shares of Common Stock which have been authorized for issuance under the Plan
but not yet placed under option.
(o) "Subsidiary" shall mean a corporation, domestic or foreign, of which
----------
not less than 50% of the voting shares are held by the Company or a Subsidiary,
whether or not such corporation now exists or is hereafter organized or acquired
by the Company or a Subsidiary.
2
<PAGE>
(p) "Trading Day" shall mean a day on which national stock exchanges and
-----------
the National Association of Securities Dealers Automated Quotation (NASDAQ)
System are open for trading.
3. Eligibility
-----------
(a) Any Employee as defined in paragraph 2 who has been continuously
employed by the Company for at least six (6) consecutive months and who shall be
employed by the Company on a given Enrollment Date shall be eligible to
participate in the Plan.
(b) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (i) if, immediately after the
grant, such Employee (or any other person whose stock would be attributed to
such Employee pursuant to Section 424(d) of the Code) would own stock and/or
hold outstanding options to purchase stock possessing five percent (5%) or more
of the total combined voting power or value of all classes of stock of the
Company or of any subsidiary of the Company, or (ii) which permits his or her
rights to purchase stock under all employee stock purchase plans of the Company
and its subsidiaries to accrue at a rate which exceeds Twenty-Five Thousand
Dollars ($25,000) worth of stock (determined at the fair market vale of the
shares at the time such option is granted) for each calendar year in which such
option is outstanding at any time.
4. Offering Periods The first Offering Period under the Plan shall commence
----------------
on January 13, 1992 and terminate on July 10, 1992. Thereafter, new Offering
Periods under the Plan shall commence on the first Trading Day of the first full
payroll period which begins in August and February of each year and shall
terminate on the last Trading Day before the next Offering Period commences,
until the Plan terminates in accordance with paragraph 19 hereof. The Board
shall have the power to change the duration and timing of Offering Periods with
respect to future offerings without stockholder approval if such change is
announced at least fifteen (15) days prior to the scheduled beginning of the
first Offering Period to be affected.
5. Participation
-------------
(a) An eligible Employee may become a participant in the Plan by
completing a subscription agreement authorizing payroll deductions in the form
of Exhibit A to this Plan and filing it with the Company's payroll office at
least ten (10) business days prior to the applicable Enrollment Date, unless a
later time for filing the subscription agreement is set by the Board for all
eligible Employees with respect to a given Offering Period.
(b) Payroll deductions for a participant shall commence on the first
payroll following the Enrollment Date and shall end on the last payroll in the
Offering Period to which such authori-zation is applicable, unless sooner
terminated by the participant as provided in paragraph 10.
3
<PAGE>
6. Payroll Deductions
------------------
(a) At the time a participant files his or her subscription agreement, he
or she shall elect to have payroll deductions made on each pay day during the
Offering Period in an amount not exceeding twenty percent (20%) of the
Compensation which he or she receives on each pay day during the Offering
Period, and the aggregate of such payroll deductions during the Offering Period
shall not exceed twenty percent (20%) of the participant's Compensation during
said Offering Period.
(b) All payroll deductions made for a participant shall be credited to
his or her account under the Plan and will be withheld in whole percentages
only. A participant may not make any additional payments into such account.
(c) A participant may discontinue his or her participation in the Plan as
provided in paragraph 10. A participant's subscription agreement shall remain
in effect for successive Offering Periods unless terminated as provided in
paragraph 10.
(d) Notwithstanding the foregoing, to the extent necessary to comply with
Section 423(b)(8) of the Code and paragraph 3(b) herein, a participant's payroll
deductions may be decreased to 0% at such time during any Offering Period which
is scheduled to end during the current calendar year (the "Current Offering
Period") that the aggregate of all payroll deductions which were previously used
to purchase stock under the Plan in a prior Offering Period which ended during
that calendar year plus all payroll deductions accumulated with respect to the
Current Offering Period equal $21,250. Payroll deductions shall recommence at
the rate provided in such participant's subscription agreement at the beginning
of the first Offering Period which is scheduled to end in the following calendar
year, unless terminated by the participant as provided in paragraph 10.
(e) At the time the option is exercised, in whole or in part, or at the
time some or all of the Company's Common Stock issued under the Plan is disposed
of, the participant must make adequate provision for the Company's federal,
state, or other tax withholding obligations, if any, which arise upon the
exercise of the Option or the disposition of the Common Stock. At any time, the
Company may, but will not be obligated to, withhold from the participant's
compensation the amount necessary for the Company to meet applicable withholding
obligations, including any withholding required to make available to the Company
any tax deductions or benefit attributable to sale or early disposition of
Common Stock by the Employee.
7. Grant of Option On the Enrollment Date of each Offering Period, such
---------------
eligible Employee participating in such Offering Period shall be granted an
option to purchase on each Exercise Date during such Offering Period (at the
applicable Purchase Price) up to a number of shares of the Company's Common
Stock determined by dividing such Employee's payroll deductions accumulated
prior to such Exercise Date and retained in the Participant's account as of the
Exercise Date by the applicable Purchase Price; provided that in no event shall
an Employee be permitted to purchase during each Offering Period more than a
number of shares determined by dividing $12,500 by the fair market value of a
share of the Company's Common
4
<PAGE>
Stock on the Enrollment Date, and provided further that such purchase shall be
subject to the limitations set forth in Section 3(b) and 12 hereof. Exercise of
the option shall occur as provided in Section 8, unless the participant has
withdrawn pursuant to Section 10, and shall expire on the last day of the
Offering Period.
8. Exercise of Option Unless a participant withdraws from the Plan as
------------------
provided in paragraph 10 below, his or her option for the purchase of shares
will be exercised automatically on the Exercise Date, and the maximum number of
full shares subject to option shall be purchased for such participant at the
applicable Purchase Price with the accumulated payroll deductions in his or her
account. No fractional shares will be purchased; any payroll deductions
accumulated in a participant's account which are not sufficient to purchase a
full share shall be retained in the participant's account for the subsequent
Offering Period, subject to earlier withdrawal by the participant as provided in
paragraph 10. Any other monies left over in a participant's account after the
Exercise Date shall be returned to the participant. During a participant's
lifetime, a participant's option to purchase shares hereunder is exercisable
only by him or her.
9. Delivery As promptly as practicable after each Exercise Date on which
--------
a purchase of shares occurs, the Company shall arrange the delivery to each
participant, as appropriate, of a certificate representing the shares purchased
upon exercise of his or her option.
10. Withdrawal; Termination of Employment
-------------------------------------
(a) A participant may withdraw all but not less than all the payroll
deductions credited to his or her account and not yet used to exercise his or
her option under the Plan at any time by giving written notice to the Company in
the form of Exhibit B to this Plan. All of the participant's payroll deductions
credited to his or her account will be paid to such participant promptly after
receipt of notice of withdrawal and such participant's option for the Offering
Period will be automatically terminated, and no further payroll deductions for
the purchase of shares will be made during the Offering Period. If a
participant withdraws from an Offering Period, payroll deductions will not
resume at the beginning of the succeeding Offering Period unless the participant
delivers to the Company a new subscription agreement.
(b) Upon a participant's ceasing to be an Employee for any reason or upon
termination of a participant's employment relationship (as described in Section
2(g)), the payroll deductions credited to such participant's account during the
Offering Period but not yet used to exercise the option will be returned to such
participant or, in the case of his or her death, to the person or persons
entitled thereto under paragraph 14, and such participant's option will be
automatically terminated.
(c) In the event an Employee fails to remain an Employee of the Company
for at least twenty (20) hours per week during an Offering Period in which the
Employee is a participant, he or she will be deemed to have elected to withdraw
from the Plan and the payroll deductions credited to his or her account will be
returned to such participant and such participant's option terminated.
5
<PAGE>
(d) A participant's withdrawal from an Offering Period will not have any
effect upon his or her eligibility to participate in any similar plan which may
hereafter be adopted by the Company or in succeeding Offering Periods which
commence after the termination of the Offering Period from which the participant
withdraws.
11. Interest No interest shall accrue on the payroll deductions of a
--------
participant in the Plan.
12. Stock
-----
(a) The maximum number of shares of the Company's Common Stock which
shall be made available for sale under the Plan shall be 1,000,000 shares,
subject to adjustment upon changes in capitalization of the Company as provided
in paragraph 18. If on a given Exercise Date the number of shares with respect
to which options are to be exercised exceeds the number of shares then available
under the Plan, the Company shall make a pro rata allocation of the shares
remaining available for purchase in as uniform a manner as shall be practicable
and as it shall determine to be equitable.
(b) The participant will have no interest or voting right in shares
covered by his option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan will be
registered in the name of the participant or in the name of the participant and
his or her spouse.
13. Administration The Plan shall be administered by the Board of the
--------------
Company or a committee of members of the Board appointed by the Board. The
Board or its committee shall have full and exclusive discretionary authority to
construe, interpret and apply the terms of the Plan, to determine eligibility
and to adjudicate all disputed claims filed under the Plan. Every finding,
decision and determination made by the Board or its committee shall, to the full
extent permitted by law, be final and binding upon all parties. Members of the
Board who are eligible Employees are permitted to participate in the Plan,
provided that:
(a) Members of the Board who are eligible to participate in the Plan may
not vote on any matter affecting the administration of the Plan or the grant of
any option pursuant to the Plan.
(b) If a Committee is established to administer the Plan, no member of
the Board who is eligible to participate in the Plan may be a member of the
Committee.
14. Designation of Beneficiary
--------------------------
(a) A participant may file a written designation of a beneficiary who is
to receive any shares and cash, if any, from the participant's account under the
Plan in the event of such partici-pant's death subsequent to an Exercise Date on
which the option is exercised but prior to
6
<PAGE>
delivery to such participant of such shares and cash. In addition, a
participant may file a written designation of a beneficiary who is to receive
any cash from the participant's account under the Plan in the event of such
participant's death prior to exercise of the option.
(b) Such designation of beneficiary may be changed by the participant at
any time by written notice. In the event of the death of a participant and in
the absence of a beneficiary validly designated under the Plan who is living at
the time of such participant's death, the Company shall deliver such shares
and/or cash to the executor or administrator of the estate of the participant,
or if no such executor or administrator has been appointed (to the knowledge of
the Company), the Company, in its discretion, may deliver such shares and/or
cash to the spouse or to any one or more dependents or relatives of the
participant, or if no spouse, dependent or relative known to the Company, then
to such other person as the Company may designate.
15. Transferability Neither payroll deductions credited to a participant's
---------------
account nor any rights with regard to the exercise of an option or to receive
shares under the Plan may be assigned, transferred, pledged or otherwise
disposed of in any way (other than by will, the laws of descent and distribution
or as provided in paragraph 14 hereof) by the participant. Any such attempt at
assignment, transfer, pledge or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw funds from
an Offering Period in accordance with paragraph 10.
16. Use of Funds All payroll deductions received or held by the Company
------------
under the Plan may be used by the Company for any corporate purpose, and the
Company shall not be obligated to segregate such payroll deductions.
17. Reports Individual accounts will be maintained for each participant in
-------
the Plan. Statements of account will be given to participating Employees at
least annually, which statements will set forth the amounts of payroll
deductions, the Purchase Price, the number of shares purchased and the remaining
cash balance, if any.
18. Adjustments Upon Changes in Capitalization, Dissolution, Merger, Asset
----------------------------------------------------------------------
Sale or Change of Control
- -------------------------
(a) Changes in Capitalization Subject to any required action by the
-------------------------
stockholders of the Company, the Reserves as well as the price per share of
Common Stock covered by each option under the Plan which has not yet been
exercised, shall be proportionately adjusted for any increase or decrease in the
number of issued shares of Common Stock resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification of the Common
Stock, or any other increase or decrease in the number of shares of Common Stock
effected without receipt of consideration by the Company; provided, however,
that conversion of any convertible securities of the Company shall not be deemed
to have been "effected without receipt of consideration." Such adjustment shall
be made by the Board, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issue by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock subject
to an option.
7
<PAGE>
(b) Dissolution or Liquidation In the event of the proposed dissolution
--------------------------
or liquidation of the Company, the Offering Period will terminate immediately
prior to the consumma-tion of such proposed action, unless otherwise provided by
the Board.
(c) Merger or Asset Sale In the event of a proposed sale of all or
--------------------
substantially all of the assets of the Company, or the merger of the Company
with or into another corporation, each option under the Plan shall be assumed or
an equivalent option shall be substituted by such successor corporation or a
parent or subsidiary of such successor corporation, unless the Board determines,
in the exercise of its sole discretion and in lieu of such progress by setting a
new Exercise Date (the "New Exercise Date"). If the Board shortens the Offering
Period then in progress in lieu of assumption or substitution in the event of a
merger or sale of assets, the Board shall notify each participant in writing, at
least ten (10) days prior to the New Exercise Date, that the Exercise Date for
his option has been changed to the New Exercise Date and that his option will be
exercised automatically on the New Exercise Date, unless prior to such date he
has withdrawn from the Offering Period as provided in paragraph 10. For
purposes of this paragraph, an option granted under the Plan shall be deemed to
be assumed if, following the sale of assets or merger, the option confers the
right to purchase, for each share of option stock subject to the option
immediately prior to the sale of assets or merger, the consideration (whether
stock, cash or other securities or property) received in the sale of assets or
merger by holders of Common Stock for each share of Common Stock held on the
effective date of the transaction (and if such holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding shares of Common Stock); provided, however, that if such
consideration received in the sale of assets or merger was not solely common
stock of the successor corporation or its parent (as defined in Section 424(e)
of the Code), the Board may, with the consent of the successor corporation and
the participant, provide for the consideration to be received upon exercise of
the option to be solely common stock of the successor corporation or its parent
equal in fair market value to the per share consideration received by holders of
Common Stock and the sale of assets or merger.
19. Amendment or Termination
------------------------
(a) The Board of Directors of the Company may at any time and for any
reason terminate or amend the Plan. Except as provided in paragraph 18, no such
termination can affect options previously granted, provided that an Offering
Period may be terminated by the Board of Directors on any Exercise Date if the
Board determines that the termination of the Plan is in the best interests of
the Company and its stockholders. Except as provided in paragraph 18, no
amendment may make any change in any option theretofore granted which adversely
affects the rights of any participant. To the extent necessary to comply with
Rule 16b-3 under the Securities Exchange Act of 1934, as amended, or under
Section 423 of the Code (or any successor rule or provision or any other
applicable law or regulation), the Company shall obtain stockholder approval in
such a manner and to such a degree as required.
(b) Without stockholder consent and without regard to whether any
participant rights may be considered to have been "adversely affected," the
Board (or its committee) shall be entitled to change the Offering Periods, limit
the frequency and/or number of changes in the amount withheld during an Offering
Period, establish the exchange ratio applicable to amounts
8
<PAGE>
withheld in a currency other than U.S. dollars, permit payroll withholding in
excess of the amount designated by a participant in order to adjust for delays
or mistakes in the Company's processing of properly completed withholding
elections, establish reasonable waiting and adjustment periods and/or accounting
and crediting procedures to ensure that amounts applied toward the purchase of
Common Stock for each participant properly correspond with amounts withheld from
the participant's Compensation, and establish such other limitations or
procedures as the Board (or its committee) determines in its sole discretion
advisable which are consistent with the Plan.
20. Notices All notices or other communications by a participant to the
-------
Company under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
21. Conditions Upon Issuance of Shares Shares shall not be issued with
----------------------------------
respect to an option unless the exercise of such option and the issuance and
delivery of such shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, the rules and regulation promulgated thereunder, and the requirements
of any stock exchange upon which the shares may then be listed, and shall be
further subject to the approval of counsel for the Company with respect to such
compliance.
As a condition to the exercise of an option, the Company may require the
person exercising such option to represent and warrant at the time of any such
exercise that the shares are being purchased only for investment and without any
present intention to sell or distribute such shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned applicable provisions of law.
22. Term of Plan The Plan shall become effective upon the earlier to occur
------------
of its adoption by the Board of Directors or its approval by the stockholders of
the Company. It shall continue in effect for a term of twenty (20) years unless
sooner terminated under paragraph 19.
Revised 6/18/92
9
<PAGE>
EXHIBIT 5.1
-----------
[LETTERHEAD OF WILSON SONSINI GOODRICH & ROSATI]
May 22, 1998
Vitesse Semiconductor Corporation
741 Calle Plano
Camarillo, CA 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 May 22, 1998 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of the 1991 Stock Option Plan (as to
4,626,545 shares), the 1991 Directors' Stock Option Plan (as to 300,000 shares),
1991 Employee Stock Purchase Plan (as to 375,000 shares), (collectively, the
"Plans" and the "Shares" as appropriate). As legal counsel for Vitesse
Semiconductor Corporation (the "Company"), we have examined the proceedings
taken and are familiar with the proceedings proposed to be taken by you in
connection with the issuance and sale of the Shares pursuant to the Plans. In
addition, for purposes of this opinion we have assumed that the consideration
received by the Company in connection with each issuance of the 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 Shares, when issued and sold in the manner
described in the Plans and pursuant to the agreement that accompanies each grant
under the Plans, 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 and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Vitesse Semiconductor Corporation
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG PEAT MARWICK LLP
Los Angeles, California
May 21, 1998
