<PAGE>
As filed with the Securities and Exchange Commission on April 3, 2000
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)
--------------------------------
Vitesse International, Inc. 1999
International Stock Option Plan
and
Vitesse Semiconductor Corporation
1991 Stock Option 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.
Davis Polk & Wardwell
1600 El Camino Real
Menlo Park, California 94025
(650) 752-2000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Each Class Amount to be Proposed Maximum Proposed Maximum Amount of
of Securities to be Registered Registered Offering Price Aggregate Registration Fee
Per Unit Offering Price
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Vitesse International, Inc. 1999
International Stock Option Plan(1)
Common Stock, $0.01 par value 750,000 $93.00(3) $ 69,750,000(3) $ 18,414
- --------------------------------------------------------------------------------------------------------------------
Vitesse Semiconductor Corporation 1991
Stock Option Plan (2)
Common Stock, $0.01 par value 5,446,182 $93.00(3) $506,494,926(3) $133,714.66
- --------------------------------------------------------------------------------------------------------------------
Total 6,196,182 $576,244,926 $152,128.66
====================================================================================================================
</TABLE>
(1) All options outstanding under the Vitesse International, Inc. International
Stock Option Plan (the "International Options") are exercisable for the
Registrant's Common Stock.
(2) All options outstanding under the Vitesse Semiconductor Corporation 1991
Stock Option Plan (the "Plan") are exercisable for the Registrant's Common
Stock. Represents additional shares available for award under the Plan as
of October 1, 1999.
(3) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the total registration
fee. Computed based on the closing price of the Company's common stock on
March 30, 2000.
<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, 1999, filed pursuant to Section 13 of the Securities Exchange Act
of 1934 (the "Exchange Act").
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1999, filed pursuant to Section 13 of the Exchange Act.
(c) The Registrant's Current Reports on Form 8-K dated March 6, 2000,
March 13, 2000 and March 27, 2000, filed pursuant to Section 13 of the Exchange
Act.
(d) 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 Registration 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.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
II-1
<PAGE>
Item 8. Exhibits.
--------
Exhibit
Number
-------
4.1 Vitesse International, Inc. 1999 International Stock Option
Plan filed herewith.
4.2 Vitesse Semiconductor Corporation 1991 Stock Option Plan
incorporated herein by reference to the Registrant's
Registration Statement on Form S-1 (File No. 33-43548) filed
with the Commission on October 25, 1991.
5.1 Opinion of Davis Polk & Wardwell (Counsel to the Registrant)
as to the legality of securities being registered filed
herewith.
23.1 Consent of KPMG LLP filed herewith.
23.2 Consent of Davis Polk & Wardwell(contained in Exhibit 5.1).
24.1 Power of Attorney (see Page II-3).
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 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-2
<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 April 3, 2000.
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 DATE TITLE
<S> <C> <C>
/s/ Louis R. Tomasetta
- --------------------------- March 28, 2000 President, Chief Executive Officer,
Louis R. Tomasetta and Director (principal executive
officer)
/s/ Eugene F. Hovanec
- --------------------------- March 28, 2000 Vice President, Finance and Chief
Eugene F. Hovanec Financial Officer (principal
financial and accounting officer)
/s/ James A. Cole
- --------------------------- March 28, 2000 Director
James A. Cole
/s/ Pierre R. Lamond
- --------------------------- March 28, 2000 Chairman of the Board of Directors
Pierre R. Lamond
/s/ John C. Lewis
- --------------------------- March 28, 2000 Director
John C. Lewis
/s/ Alex Daly
- --------------------------- March 28, 2000 Director
Alex Daly
</TABLE>
II-3
<PAGE>
VITESSE SEMICONDUCTOR CORPORATION
REGISTRATION STATEMENT ON FORM S-8
----------------------------------
INDEX TO EXHIBITS
Exhibit
Number Description
- ------- ----------------------------------------------------------------------
4.1 Vitesse International, Inc. 1999 International Stock Option Plan filed
herewith.
4.2 Vitesse Semiconductor Corporation 1991 Stock Option Plan incorporated
herein by reference to the Registrant's Registration Statement on Form
S-1 (File No. 33-43548) filed with the Commission on October 25, 1991.
5.1 Opinion of Davis Polk & Wardwell (Counsel to the Registrant) as to the
legality of securities being registered filed herewith.
23.1 Consent of KPMG LLP filed herewith.
23.2 Consent of Davis Polk & Wardwell(contained in Exhibit 5.1).
24.1 Power of Attorney (see Page II-3).
II-4
<PAGE>
EXHIBIT 4.1
VITESSE INTERNATIONAL, INC. 1999 INTERNATIONAL STOCK OPTION PLAN
1. Purposes of Plan. The purposes of this Plan are to attract and retain the
best available personnel for positions of substantial responsibility, to provide
additional incentive to Employees and Consultants of the Company and Parent and
its Subsidiaries and to promote the success of the Company's and its Parent's
business.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Administrator" means the Board or any of its Committees as shall be
administering the Plan, in accordance with Section 4 of the Plan.
(b) "Applicable Laws" means the requirements relating to the
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws of
any foreign country or jurisdiction where Options are granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means a Committee, if any, appointed by the Board in
accordance with paragraph (a) of Section 4 of the Plan.
(f) "Common Stock" means the Common Stock of the Parent.
(g) "Company" means Vitesse International, Inc., a Barbados corporation.
(h) "Consultant" means any person, including an advisor, who is engaged by
the Company or any Parent or Subsidiary to render services to such entity.
(i) "Continuous Status as an Employee or Consultant" means the absence
of any interruption or termination of service as an Employee or Consultant.
Continuous Status as an Employee or Consultant shall not be considered
interrupted in the case of (i) any leave of absence approved by the
Administrator or (ii) transfers between locations of the Company or between the
Company, its Parent, its Subsidiaries, or its successor.
(j) "Director" shall mean a member of the Board.
(k) "Disability" means total and permanent disability, as defined in
Section 22(c)(3) of the Code.
(l) "Employee" means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary. Neither service as a
Director, nor the payment of Directors' fees by the Company shall be sufficient
to constitute "employment" by the Company.
(m) "Fair Market Value" means, as of any date the value of Common Stock
determined as follows:
(i) 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 exchange (or, if listed on more than one
exchange, the exchange with the greatest volume of trading in Common Stock) or
system on the last market trading day prior to the day of determination, as
reported in the Wall Street Journal or such other source as the Administrator
deems reliable;
<PAGE>
(ii) If the Common Stock is quoted on the NASDAQ System (but
not on the National Market System thereof) or 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 bid and asked prices for
the Common Stock on the last market trading day prior to the day of
determination, as reported in the Wall Street Journal or such other source as
the Administrator deems reliable;
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith by the
Administrator.
(n) "Option" means a stock option covering Common Stock granted pursuant
to the Plan.
(o) "Option Agreement" means a written agreement between the Company and
an Optionee evidencing the terms and conditions of an individual Option grant.
The Option Agreement is subject to the terms and conditions of the Plan.
(p) "Optioned Stock" means the Common Stock subject to an Option.
(q) "Optionee" means an Employee or Consultant who holds an Option.
(r) "Parent" means Vitesse Semiconductor Corporation.
(s) "Plan" means this 1999 International Stock Option Plan.
(t) "Share" means a share of the Common Stock, as adjusted in accordance
with Section 9 of the Plan.
(u) "Subsidiary" corporation shall have the meaning defined in Section
424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 9 of the
Plan, the total number of Shares reserved and available for purchase upon
exercise of Options under the Plan shall be 750,000 shares of Common Stock, par
value $0.01 per share. The Shares may be authorized, but unissued, or reacquired
stock. If an Option should expire or become unexercisable for any reason without
having been exercised in full, the unpurchased Shares which were subject thereto
shall, unless the Plan shall have been terminated, become available for other
Options under the Plan. However, should the Company reacquire Shares which were
issued pursuant to the exercise of an Option, such Shares shall not become
available for future grant under the Plan.
4. Administration of the Plan.
(a) Procedure. The Plan shall be administered by the Board or a Committee
appointed by the Board, which Committee shall be constituted to comply with
Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of the Plan,
and, in the case of a Committee, subject to the specific duties delegated by the
Board to such Committee, and subject to the approval of any relevant
authorities, the Administrator shall have the authority, in its discretion:
(i) to determine the fair Market Value of the Common Stock, in
accordance with Section 2(m) of the Plan;
(ii) to select the Employees and Consultants to whom Options may
from time to time be granted hereunder;
(iii) to determine whether and to what extent Options are granted
hereunder;
<PAGE>
(iv) to determine the number of shares of Common Stock to be covered
by each such Option granted hereunder;
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions, not inconsistent with
the terms of the Plan, of any Option granted hereunder. Such terms and
conditions include, but are not limited to the exercise price and any
restriction or limitation, or any vesting acceleration or waiver of forfeiture
restrictions regarding any Option or other award and/or the shares of Common
Stock relating thereto, based in each case on such factors as the Administrator
shall determine, in its sole discretion;
(vii) to reduce the exercise price of any Option to the then current
Fair Market Value if the Fair Market Value of the Common Stock covered by such
Option shall have declined since the date the Option was granted;
(viii) to interpret the Plan;
(ix) to prescribe, amend and rescind rules and regulations relating
to the Plan including rules and regulations relating to sub-plans established
for the purpose of qualifying for preferred tax treatment under foreign tax
laws;
(x) with the consent of the holder thereof, to modify or amend each
Option; and
(xi) to make all other determinations deemed necessary or advisable
for the administration of the Plan.
(c) Effect of Administrator's Decision. All decisions, determinations and
interpretations of the Administrator shall be final and binding on all
Optionees.
5. Eligibility.
(a) Persons Eligible. Options may be granted only to Employees and
Consultants.
(b) No Employment Agreement. Neither the Plan nor any Option agreement
shall confer upon any Optionee any right with respect to continuation of
employment by or service as a Consultant to the Company or any Parent or
Subsidiary, nor shall it interfere in any way with the Optionee's right or the
Company's right to terminate the Optionee's employment or consulting
relationship at any time.
6. Term of Plan. The Plan shall become effective upon its adoption by the
Board. It shall continue in effect for a term of ten (10) years unless sooner
terminated under Section 11 of the Plan.
7. Options.
(a) Grants. Each Option shall be evidenced by a written Option Agreement
in such form and contain such provisions as the Administrator shall from time to
time deem appropriate. Without limiting the foregoing, the Administrator may, at
any time, or from time to time, authorize the Company, with the consent of the
respective recipients, to issue Options in exchange for the surrender and
cancellation of any or all outstanding Options. Option Agreements shall contain
the following terms and conditions:
(i) Exercise Price; Number of Shares. The per Share exercise price
for the Shares issuable upon exercise of an Option shall be determined by the
Administrator. The Option agreement shall specify the number of Shares to which
it pertains.
<PAGE>
(ii) Waiting Period; Exercisability; Term. At the time an Option is
granted, the Administrator will determine the terms and conditions to be
satisfied before Shares may be purchased, including the dates on which Shares
subject to the Option may first be purchased or the conditions which must be
satisfied prior to the purchase. The Administrator may specify that an Option
may not be exercised until the completion of the service period specified at the
time of grant. (Any such period is referred to herein as the "waiting period.")
At the time an Option is granted, the Administrator shall fix the period within
which the Option may be exercised, which shall not be less than the waiting
period, if any, nor more than ten (10) years from the date of grant.
(iii) Form of Payment. The consideration to be paid for the Shares to
be issued upon exercise of an Option, including the method of payment, shall be
determined by the Administrator and may consist entirely of (1) cash, (2) check,
(3) promissory note, (4) other Shares which (x) in the case of Shares acquired
upon exercise of an Option, have been owned by the Optionee for more than six
months on the date of surrender and (y) have a Fair Market Value on the date of
surrender equal to the aggregate exercise price of the Shares as to which said
Option shall be exercised, (5) delivery of a properly executed exercise notice
together with irrevocable instructions to a broker to promptly deliver to the
Company the amount of sale or loan proceeds required to pay the exercise price,
(6) any combination of the foregoing methods of payment, or (7) such other
consideration and method of payment for the issuance of Shares to the extent
permitted under Applicable Laws.
(iv) Other Provisions. Each Option granted under the Plan may
contain such other provisions, and conditions not inconsistent with the Plan as
may be determined by the Administrator.
(b) Method of Exercise.
(i) Exercisability. Any Option granted hereunder shall be
exercisable at such times and under such conditions as determined by the
Administrator and as shall be permissible under the terms of the Plan.
(ii) No Fractional Shares. An Option may not be exercised for a
fraction of a Share.
(iii) Procedure for Exercise; Rights as a Stockholder. An Option
shall be deemed to be exercised when the Company receives: (1) written notice of
such exercise in accordance with the terms of the Option from the person
entitled to exercise the Option and (ii) full payment for the Shares with
respect to which the Option is exercised. Full payment may consist of any
consideration and method of payment allowable under subsection 7(a)(iii) of the
Plan, as authorized by the Administrator and permitted by the Option Agreement.
Shares issued upon exercise of an Option shall be issued in the name of the
Optionee. Until the issuance (as evidenced by the appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company) of the
stock certificate evidencing such Shares, no right to vote or receive dividends
or any other rights as a stockholder shall exist with respect to the Optioned
Stock, notwithstanding the exercise of the Option. No adjustment will be made
for a dividend or other right for which the record date is prior to the date the
stock certificate is issued, except as provided in Section 9 of the Plan.
(iv) Effect of Exercise. Exercise of an Option in any manner shall
result in a decrease in the number of Shares which thereafter shall be
available, both for purposes of the Plan and for sale under the Option, by the
number of Shares as to which the Option is exercised.
(c) Effect of Termination of Employee or Consultant Status.
(i) Termination of Employment or Consulting Relationship. In the
event an Optionee's Continuous Status as an Employee or Consultant terminates
(other than upon the Optionee's death or disability), the Optionee may exercise
his or her Option, but only within such period of time not to exceed six months
as is determined by the Administrator and only to the extent that the Optionee
was entitled to exercise it at the date of such termination (but in no event
later than the expiration of the term of such Option as set forth in the Option
Agreement). If, at the date of termination, the Optionee is not entitled to
exercise his or her entire Option, the Shares covered by the unexercisable
portion of the Option shall be returned to the Plan as of the termination date.
If, after termination, the Optionee does not exercise his or her Option within
the time specified herein, the Option shall terminate, and all remaining Shares
covered by such Option shall be returned to the Plan at the end of such period.
<PAGE>
(ii) Disability of Optionee. In the event an Optionee's Continuous
Status as an Employee or Consultant terminates as a result of the Optionee's
Disability, the Optionee may exercise his or her Option, but only within six
months from the date of such termination, and only to the extent that the
Optionee was entitled to exercise it at the date of such termination (but in no
event later than the expiration of the term of such Option as set forth in the
Option Agreement). If, at the date of termination due to Disability, the
Optionee is not entitled to exercise his or her entire Option, the Shares
covered by the unexercisable portion of the Option shall be returned to the Plan
as of the date of Disability. If, after such termination, the Optionee does not
exercise his or her Option within the time specified herein, the Option shall
terminate, and all remaining Shares covered by such Option shall be returned to
the Plan at the end of such period.
(iii) Death of Optionee. In the event of an Optionee's death, the
Optionee's estate or a person who acquired the right to exercise the deceased
Optionee's Option by bequest or inheritance may exercise the Option, but only
within six months following the date of death, and only to the extent that the
Optionee was entitled to exercise it at the date of death (but in no event later
than the expiration of the term of such Option as set forth in the Option
Agreement). If, at the time of death, the Optionee was not entitled to exercise
his or her entire Option, the Shares covered by the unexercisable portion of the
Option shall be returned to the Plan as of the date of death. If, after death,
the Optionee's estate or a person who acquired the right to exercise the Option
by bequest or inheritance does not exercise the Option within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall
be returned to the Plan at the end of such period.
(d) Buyout Provisions. The Administrator may at any time offer to buy out
for a payment in cash or Shares, an Option previously granted, based on such
terms and conditions as the Administrator shall establish and communicate to the
Optionee at the time that such offer is made.
8. Non-Transferability of Options. Options may not be sold, pledged, assigned,
hypothecated, transferred or disposed of in any manner other than by will or by
the laws of descent and distribution and may be exercised during the lifetime of
the Optionee only be the Optionee.
9. Adjustments Upon Changes in Capitalization or Merger.
(a) Stock Splits and Similar Events. Subject to any required action by the
stockholders of the Company or Parent, the number of Shares covered by each
outstanding Option, and the number of Shares which have been authorized for
issuance under the Plan but as to which no Options have yet been granted or
which have been returned to the Plan upon cancellation or expiration of an
Option, as well as the price per Share covered by each outstanding Option, shall
be proportionately adjusted for any increase or decrease in the number of issued
Shares 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 aggregate number of issued Shares effected without receipt of
consideration by the Parent; provided, however, that conversion of any
convertible securities of the Parent shall not be deemed for this purpose 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.
(b) Dissolution or Liquidation. In the event of the proposed dissolution
or liquidation of the Parent, all outstanding Options will terminate immediately
prior to the consummation of such proposed action, unless otherwise provided by
the Board. The Board may, in the exercise of its sole discretion in such
instances, declare that any Option shall terminate as of a date fixed by the
Board and give each Optionee the right to exercise his Option as to all or any
part of the Optioned Stock, including Shares as to which the Option would not
otherwise be exercisable.
(c) Sale of Assets or Merger. In the event of a merger of the Parent with
or into another corporation, the Option shall be assumed or an equivalent option
shall be substituted by the successor corporation or a parent or subsidiary of
such successor corporation. In the event that such successor corporation does
not agree to assume the Option or to substitute an equivalent option, the Board
shall, in lieu of such assumption or substitution, provide for the Optionee to
have the right to exercise the Option as to all of the Optioned Stock, including
Shares as to which the Option would not otherwise be exercisable. If the Board
makes an Option fully exercisable in lieu of assumption or substitution in the
event of a merger, the Board shall notify the Optionee that the Option shall be
fully exercisable for a period of fifteen (15) days from the date of such
notice, and the Option will terminate upon the expiration of such period. For
the purposes of this paragraph, the Option shall be considered assumed if,
following the merger or sale of assets, the assumed option confers the right to
purchase, for each Share of Optioned Stock subject to the Option immediately
prior to the merger or sale of assets, the consideration (whether stock, cash,
or other securities or property) received in the merger or sale of assets by
holders of Common Stock for each Share held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding Shares)
provided, however, that if such consideration, received in the merger or sale of
assets was not solely common stock of the successor corporation or its Parent,
the Board may, with the consent of the successor corporation and the
participant, provide for the consideration to be received upon the exercise of
the Option, for each Share of Optioned Stock subject to 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 in the
merger or sale of assets.
<PAGE>
(d) No Other Adjustments. Except as expressly provided herein, no issuance
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 subject to an
Option.
10. Time of Granting Options. The date of grant of an Option shall, for all
purposes, be the date on which the Administrator makes the determination
granting such Option, or such other later date as is determined by the
Administrator. Notice of the determination shall be given to each Employee or
Consultant to whom an Option is so granted within a reasonable time after the
date of such grant.
11. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time amend, alter,
suspend, or terminate the Plan.
(b) Effect of Amendment or Termination. No amendment, alteration,
suspension or termination of the Plan shall impair the rights of any Optionee
with respect to Options already granted unless mutually agreed otherwise between
the Optionee and the Administrator, which agreement must be in writing signed by
the Optionee and the Company.
12. Conditions Upon Issuance of Shares.
(a) Compliance with Laws. Shares shall not be issued upon exercise of an
Option unless such exercise and the issuance and delivery of such Shares
pursuant thereto shall comply with all Applicable Laws.
(b) Investment Intent. As a condition to the exercise of an option or the
issuance of Shares upon 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.
(c) No Company Liability. Inability of the Company to obtain authority
from any regulatory body having jurisdiction, which authority is deemed by the
Company's counsel to be necessary to the lawful issuance and sale of any Shares
hereunder, shall relieve the Company of any liability in respect of the non-
issuance or sale of such Shares as to which such requisite authority shall not
have been obtained.
13. Reservation of Shares. The Company, during the term of this Plan, will at
all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
<PAGE>
EXHIBIT 5.1
[Letterhead]
March 28, 2000
Vitesse Semiconductor Corporation
741 Calle Plano
Camarillo, California 93012
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We are acting as counsel for Vitesse Semiconductor Corporation (the
"Company") in connection with the filing of a Registration Statement (the
"Registration Statement") on Form S-8 under the Securities Act of 1933, as
amended, relating to (i) 750,000 shares of the Company's common stock, par value
$0.01 per share (the "Common Stock"), deliverable in accordance with the Vitesse
International, Inc. 1999 International Stock Plan as referred to in such Form S-
8 and (ii) 5,446,182 shares of the Company's Common Stock deliverable in
accordance with the Vitesse Semiconductor Corporation 1991 Stock Option plan,
(together, "the Plans").
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments relating to the adoption of the Plans as we have
deemed necessary or advisable for the purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that the Common
Stock deliverable pursuant to the Plans, when delivered in accordance with the
Plans upon receipt by the Company of adequate consideration therefor, will be
duly authorized, validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement.
Very truly yours,
/s/ Davis Polk & Wardwell
Davis Polk & Wardwell
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors
Vitesse Semiconductor Corporation
We consent to the use of our report incorporated herein by reference.
KPMG LLP
Los Angeles, CA
March 28, 2000
