FORM OF
VITESSE SEMICONDUCTOR CORPORATION
OPTION AGREEMENT
This Option Agreement is entered into as of this ____ day of July, 1999,
between Vitesse Semiconductor Corporation, a Delaware Corporation (the
"Company") and ___________ (the "Optionee").
1. Option Grant. The Company hereby grants to Optionee an Option (the
"Option") to purchase ______ shares of common stock of the Company ("Shares")
at an exercise price of ____ per share. The Option shall be subject to the
terms and conditions of this Option Agreement and related documents.
2. Option Exercise
(a) Right to Exercise. This Option shall be exercisable cumulatively
during its term according to the vesting schedule below. In the event of
termination of Optionee's service as an employee of the Company, the
exercisability of the Option shall be governed by Sections 7 through 9, as
applicable, of this Option Agreement. This Option may not be exercised for a
fraction of a Share.
(b) Vesting. 25% of the Shares subject to the Option shall vest on each
anniversary of the Vesting Commencement Date, subject to Optionee's continuing
service to the Company or any of the Company's subsidiaries.
(c) Method of Exercise.
(i) This Option shall be exercisable by written notice (in the form
attached hereto as Exhibit A), which shall state the election to exercise the
Option, the number of Shares with respect to which the Option is being
exercised, and such other representations and agreements with respect to such
Shares as may be required by the Company. Such written notice shall be signed
by the Optionee and shall be delivered in person or by certified mail to the
Secretary of the Company. The written notice shall be accompanied by payment of
the exercise price. This Option shall be deemed to be exercised upon receipt by
the Company of such documents and payment.
(ii) No Shares shall be issued pursuant to the exercise of an Option
unless both the issuance and exercise comply with all relevant provisions of
law and the requirements of any stock exchange upon which the Shares may then
be listed. Assuming such compliance, for income tax purposes the Shares shall
be considered transferred to the Optionee on the date on which the Option is
exercised with respect to such Shares.
3. Optionee's Representations. In the event the Shares purchasable
pursuant to the exercise of this Option have not been registered under the
Securities Act of 1933, as amended, at the time this Option is exercised,
Optionee shall, if required by the Company, concurrently with the exercise of
all or any portion of this Option, deliver to the Company his Investment
Representation Statement in the form attached hereto as Exhibit B.
4. Definition of Fair Market Value. "Fair Market Value" means, as of any
date, the value of the common stock of the Company as determined in good faith
by the Board of Directors, provided, however, that if on such date the common
stock of the Company is traded on a national stock exchange or quotation
system, then the fair market value of the common stock of the Company shall be
the closing price on such date.
5. Method of Payment. Payment of the exercise price shall be by any of the
following, or a combination thereof, at the election of the Optionee:
(a) cash;
(b) check;
(c) surrender of other shares of common stock of the Company which (A) in
the case of Shares acquired pursuant to the exercise of a Company option, have
been owned by the Optionee for more than six (6) months on the date of
surrender, and (B) have a Fair Market Value on the date of surrender equal to
the exercise price of the Shares as to which the Option is being exercised.
6. Restrictions on Exercise. This Option may not be exercised if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law or regulation, including any rule
under Part 207 of Title 12 of the Code of Federal Regulations ("Regulation G")
as promulgated by the Federal Reserve Board. As a condition to the exercise of
this Option, the Company may require Optionee to make any representation and
warranty to the Company as may be required by any applicable law or regulation.
7. Termination; Term of Option. In the event of termination of Optionee's
service as an employee of the Company, other than upon Optionee's death or
total and permanent disability (as defined by Section 22(e)(3) of the Code
("Disability")), Optionee may, but only within three (3) months from the date
of such termination, exercise the Option to the extent otherwise so entitled on
the date of such termination. To the extent that Optionee was not entitled to
exercise the Option on the date of such termination, or if Optionee does not
exercise the Option to the extent so entitled within the time specified herein,
the Option shall terminate. The Term of the Option shall be ten (10) years from
the date of its grant, unless otherwise terminated as provided in this Section
7 or Sections 8 and 9.
8. Disability of Optionee. Notwithstanding the provisions of Section 7
above, in the event of termination of Optionee's service as an employee of the
Company as a result of his Disability, Optionee may, but only within twelve
(12) months from the date of such termination,
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exercise the Option to the extent otherwise so entitled on the on the date of
such termination. To the extent that Optionee was not entitled to exercise the
Option on the date of such termination, or if Optionee does not exercise the
Option to the extent so entitled within the time specified herein, the Option
shall terminate.
9. Death of Optionee. Notwithstanding the provisions of Section 7 above,
in the event of termination of Optionee's service as an employee of the Company
as a result of the death of Optionee, the Option may be exercised at any time
within twelve (12) months following the date of death, by Optionee's estate or
by a person who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent the Optionee could have exercised the
Option at the date of death.
10. Adjustments Upon Changes in Capitalization or Merger.
(a) Changes in Capitalization. The number of Shares of common stock
covered by the Option, as well as the price per share of common stock covered
by the Option, 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 issued 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 of directors of the Company, whose
determination in that respect shall be final, binding and conclusive. 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 of common stock subject to the Option.
(b) Dissolution or Liquidation. In the event of the proposed dissolution
or liquidation of the Company, Optionee shall have the right to exercise the
Option until fifteen (15) days prior to such transaction as to all of the
Shares covered thereby. To the extent it has not been previously exercised, the
Option will terminate immediately prior to the consummation of such proposed
action.
(c) Merger or Asset Sale. In the event of a merger of the Company with or
into another corporation other than a merger in which the shareholders of the
Company immediately prior to the merger own a majority of the voting power in
the surviving corporation following the merger, or a sale of substantially all
of the assets of the Company, this Option may be assumed or an equivalent
option may be substituted by such successor corporation or a parent or
subsidiary of such successor corporation. If, in such event, this Option is not
assumed or substituted, this Option shall become fully vested and exercisable
as to all of the Shares, including Shares as to which it would not otherwise be
vested or exercisable. If, in the event of a merger or asset sale, this Option
becomes fully vested and exercisable in lieu of assumption or substitution, the
Company shall notify the Optionee in writing or electronically that the Option
shall be fully vested and exercisable for a period of fifteen (15) days from
the date of such notice and the Option shall terminate at the expiration of
such period. For the purposes of this paragraph, this Option shall be
considered assumed if, following the merger, the option confers the right to
purchase, for each Share subject to this Option immediately prior to the
merger, the consideration (whether stock, cash, or other securities or
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property) received in the merger 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 was not solely common stock of the successor corporation
or its parent, the Company may, with the consent of the successor corporation,
provide for the consideration to be received upon the exercise of this Option
for each Share subject to this 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.
11. Non-Transferability of Option. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by Optionee. The terms of
this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
12. Tax Consequences. The Option is a nonstatutory stock option. Optionee
understands that he may incur federal and state income tax liability upon the
exercise of the Option and upon the subsequent disposition of the Shares.
Optionee represents that he has consulted with a tax advisor in connection with
the purchase or disposition of the shares and that he is not relying on the
Company for tax advice.
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Optionee hereby accepts this Option subject to all of the terms and
provisions thereof. Optionee has reviewed this Option in its entirety, has had
an opportunity to obtain the advice of counsel prior to executing this Option
and fully understands all provisions of the Option. Optionee hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the
board of directors of the Company upon any questions arising under this Option.
Optionee further agrees to notify the Company upon any change in the residence
address indicated below.
VITESSE SEMICONDUCTOR CORPORATION OPTIONEE
a Delaware Corporation
__________________________________
[Name of Optionee]
By:____________________________________ Residence Address:
Print Name: ___________________________ __________________________________
Print Title: __________________________ __________________________________
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EXHIBIT A
EXERCISE NOTICE
Vitesse Semiconductor Corporation
000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Secretary
1. Exercise of Option. Effective as of today, ___________, _____, the
undersigned ("Optionee") hereby elects to exercise Optionee's option (the
"Option") to purchase _________ shares of the common stock (the "Shares") of
Vitesse Semiconductor Corporation (the "Company") under and pursuant to the
Option Agreement dated July ___, 1999 (the "Option Agreement"). The purchase
price per Share shall be _____, as required by the Option Agreement.
2. Delivery of Payment. Optionee herewith delivers to the Company the full
exercise price for the Shares.
3. Representations of Optionee. Optionee acknowledges that Optionee has
received, read and understood the Option Agreement and agrees to abide by and
be bound by its terms and conditions.
4. Rights as Shareholder. Until the stock certificate evidencing such
Shares is issued (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company), no right to
vote or receive dividends or any other rights as a shareholder shall exist with
respect to the Optioned Stock, notwithstanding the exercise of the Option. The
Company shall issue (or cause to be issued) such stock certificate promptly
after the Option is exercised. 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 10 of the Option
Agreement.
Optionee shall enjoy rights as a shareholder until such time as Optionee
disposes of the Shares or the Company and/or its assignee(s) exercises the
Right of First Refusal hereunder. Upon such exercise, Optionee shall have no
further rights as a holder of the Shares so purchased except the right to
receive payment for the Shares so purchased in accordance with the provisions
of this exercise notice and Optionee shall forthwith cause the certificate(s)
evidencing the Shares so purchased to be surrendered to the Company for
transfer or cancellation.
5. Tax Consultation. Optionee understands that Optionee may suffer adverse
tax consequences as a result of Optionee's purchase or disposition of the
Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
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6. Restrictive Legends and Stop-Transfer Orders.
(a) Legends. In the event that this Option is exercised and the issuance
of the Shares have not been registered with the Securities and Exchange
Commission, optionee understands and agrees that the Company shall cause the
legend set forth below or legends substantially equivalent thereto, to be
placed upon any certificate(s) evidencing ownership of the Shares together with
any other legends that may be required by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED
UNDER THE ACT OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Stop-Transfer Notices. Optionee agrees that, in order to ensure
compliance with the restrictions referred to herein, the Company may issue
appropriate "stop transfer" instructions to its transfer agent, if any, and
that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(c) Lock-up Agreement. Optionee hereby agrees that if so requested by the
Company or any representative of the underwriters in connection with any
registration of the offering of any securities of the Company under the
Securities Act, Optionee shall not sell or otherwise transfer any Shares or
other securities of the Company during the 180-day period following the
effective date of any registration statement of the Company filed under the
Securities Act. The Company may impose stop-transfer instructions with respect
to securities subject to the foregoing restrictions until the end of such
180-day period.
(d) Refusal to Transfer. The Company shall not be required (i) to transfer
on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner
of such Shares or to accord the right to vote or pay dividends to any purchaser
or other transferee to whom such Shares shall have been so transferred.
7. Successors and Assigns. The Company may assign any of its rights under
this Agreement to single or multiple assignees, and this Agreement shall inure
to the benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer herein set forth, this Agreement shall be binding upon
Optionee and his executors, administrators, successors and assigns.
8. Interpretation. Any dispute regarding the interpretation of this
Agreement shall be submitted by Optionee or by the Company forthwith to the
Company's board of directors, which shall review such dispute at its next
regular meeting. The resolution of such a dispute by the board shall be final
and binding on the Company and on Optionee.
9. Notices. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with postage and fees
prepaid, addressed to the other party at its address as shown
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below beneath its signature, or to such other address as such party may
designate in writing from time to time to the other party.
10. Further Instruments. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
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11. Entire Agreement; Severability. The Option Agreement is incorporated
herein by reference. This Agreement, the Option Agreement and the Investment
Representation Statement constitute the entire agreement of the parties and
supersede in their entirety all prior undertakings
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and agreements of the Company and Optionee with respect to the subject matter
hereof, and are governed by applicable California law except for that body of
law pertaining to conflict of laws. Should any provision of the Option
Agreement, or the Exercise Notice be determined by a court of law to be illegal
or unenforceable, the other provisions shall nevertheless remain effective and
shall remain enforceable.
Submitted by: Accepted by:
OPTIONEE VITESSE SEMICONDUCTOR
CORPORATION
___________________________________
[Name of Optionee] By:_____________________________________
Its:____________________________________
Address: Address:
000 Xxxxx Xxxxx
___________________________________ Xxxxxxxxx, XX 00000
___________________________________
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EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE : [________________]
COMPANY : VITESSE SEMICONDUCTOR CORPORATION
SECURITY : COMMON STOCK
AMOUNT :
DATE :
In connection with the purchase of the above-listed Securities, the
undersigned Optionee represents to the Company the following:
(a) Optionee is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities. Optionee is
acquiring these Securities for investment for Optionee's own account only and
not with a view to, or for resale in connection with, any "distribution"
thereof within the meaning of the Securities Act of 1933, as amended (the
"Securities Act").
(b) Optionee acknowledges and understands that the Securities constitute
"restricted securities" under the Securities Act and have not been registered
under the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of Optionee's
investment intent as expressed herein. In this connection, Optionee understands
that, in the view of the Securities and Exchange Commission, the statutory
basis for such exemption may be unavailable if Optionee's representation was
predicated solely upon a present intention to hold these Securities for the
minimum capital gains period specified under tax statutes, for a deferred sale,
for or until an increase or decrease in the market price of the Securities, or
for a period of one year or any other fixed period in the future. Optionee
further understands that the Securities must be held indefinitely unless they
are subsequently registered under the Securities Act or an exemption from such
registration is available. Optionee further acknowledges and understands that
the Company is under no obligation to register the Securities. Optionee
understands that the certificate evidencing the Securities will be imprinted
with a legend which prohibits the transfer of the Securities unless they are
registered or such registration is not required in the opinion of counsel
satisfactory to the Company, and any other legend required under applicable
state securities laws.
(c) Optionee is familiar with the provisions of Rule 701 and Rule 144,
each promulgated under the Securities Act, which, in substance, permit limited
public resale of "restricted securities" acquired, directly or indirectly from
the issuer thereof, in a non-public offering subject to the satisfaction of
certain conditions. Rule 701 provides that if the issuer qualifies under Rule
701 at the time of the grant of the Option to the Optionee, the exercise will
be exempt from registration under the Securities Act. In the event the Company
is subject to the reporting requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, ninety (90) days thereafter (or such longer
period as
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any market stand-off agreement may require) the Securities exempt under Rule
701 may be resold, subject to the satisfaction of certain of the conditions
specified by Rule 144, including: (1) the resale being made through a broker in
an unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Exchange Act of 1934); and,
in the case of an affiliate, (2) the availability of certain public information
about the Company, (3) the amount of Securities being sold during any three
month period not exceeding the limitations specified in Rule 144(e), and (4)
the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the time
of grant of the Option, then the Securities may be resold in certain limited
circumstances subject to the provisions of Rule 144, which requires the resale
to occur not less than one year after the later of the date the Securities were
sold by the Company or the date the Securities were sold by an affiliate of the
Company, within the meaning of Rule 144; and, in the case of acquisition of the
Securities by an affiliate, or by a non-affiliate who subsequently holds the
Securities less than two years, the satisfaction of the conditions set forth in
sections (1), (2), (3) and (4) of the paragraph immediately above.
(d) Optionee further understands that in the event all of the applicable
requirements of Rule 701 or 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rules 144
and 701 are not exclusive, the Staff of the Securities and Exchange Commission
has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rules 144 or 701 will have a substantial burden of proof in establishing that
an exemption from registration is available for such offers or sales, and that
such persons and their respective brokers who participate in such transactions
do so at their own risk. Optionee understands that no assurances can be given
that any such other registration exemption will be available in such event.
Signature of Optionee:
________________________________________
Date:__________________________, _______
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