Exhibit 10.1


 


AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


This Amended and Restated Employment
Agreement (this “Agreement”)
is entered into as of February 4, 2009 (the “Effective  Date”), by and between Vitesse
Semiconductor Corporation, a Delaware corporation (“Vitesse”) and Christopher Gardner (the “Executive”) and amends and restates the
Amended and Restated Employment Agreement dated as of July 27, 2007.


 


RECITALS


 


A.                                  Executive
serves as Vitesse’s Chief Executive Officer as of the date of this Agreement.


 


B.                                    Vitesse
and Executive desire to set forth in this Agreement the terms and conditions
upon which the Executive shall continue to serve as Vitesse’s Chief Executive
Officer.


 


NOW, THEREFORE, in
consideration of the foregoing and other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, Vitesse and Executive
hereby agree as follows:


 


1.                                      POSITION
AND COMPENSATION


 


It is hereby agreed that Executive shall continue to be employed by
Vitesse in the position of Chief Executive Officer at a base salary of $350,000
per year.  Vitesse and Executive further
agree that Executive’s base salary shall be reviewed not less than once per
year from the Effective Date of this Agreement. 
Changes in Executive’s compensation shall be recorded in a Compensation
Adjustment form signed and dated by Vitesse and Executive.  In addition to salary, Executive shall also
be eligible to participate in Vitesse’s bonus plan for senior executives as
from time to time in effect.


 


2.                                      EMPLOYEE
STOCK INCENTIVE PLAN


 


Executive shall be eligible to receive equity compensation grants
under  the Vitesse Semiconductor
Corporation 2001 Stock Incentive Plan (“SIP”) as
determined by the Board of Directors of Vitesse or any duly authorized
committee thereof (the “Board”)
and consistent with his position as Chief Executive Officer.


 


3.                                      BENEFITS


 


Employment benefits shall be provided to Executive in accordance with
the programs of Vitesse then available to its senior executives, as amended
from time to time.


 


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4.                                      VACATION


 


Executive shall be entitled to five weeks of paid vacation per
year.  Unused vacation time may be
carried forward only to the extent consistent with Vitesse’s then current
policy with respect to vacation time.


 


5.                                      TERMINATION
OF EMPLOYMENT


 


Vitesse and Executive understand and agree that Executive’s employment
may be terminated under the circumstances and in accordance with the terms set
forth below:


 


A.                                  By
mutual agreement at any time with or without notice; provided that such
agreement must be stated in writing and signed and dated by Executive and an
authorized agent of Vitesse.


 


B.                                    By
either Vitesse or Executive at any time and for any reason, with or without
prior notice.


 


C.                                    By
Vitesse For Cause.  A termination of
employment “For  Cause” is defined as termination by
reason of (i) Executive’s conviction of a felony or plea of guilty or nolo contendere to a felony; (ii) Executive’s
intentional failure or refusal to perform his employment duties and
responsibilities; (iii) Executive’s intentional misconduct that injures
Vitesse’s business; (iv) Executive’s intentional violation of any other
material provision of this Agreement or Vitesse’s code of business conduct and
ethics; or (v) as provided in Section 8 of this Agreement.  Executive’s inability to perform his duties
because of death or Disability shall not constitute a basis for Vitesse’s
termination of Executive’s employment For Cause.  Notwithstanding the foregoing, Executive’s
employment shall not be subject to termination For Cause without Vitesse’s
delivery to Executive of a written notice of intention to terminate.  Such notice must describe the reasons for the
proposed employment termination For Cause, and must be delivered to Executive
at least fifteen (15) days prior to the proposed termination date (the “Notice Period”).  Executive shall be provided an opportunity
within the Notice Period to cure any such breach (if curable) giving rise to
the proposed termination, and shall be provided an opportunity to be heard
before the Board.  Thereafter, the Board
shall deliver to Executive a written notice of termination after the expiration
of the Notice Period stating that a majority of the members of the Board have
found that Executive engaged in the conduct described in this Paragraph 5.C.


 


D.                                   Vitesse
may terminate Executive’s employment immediately upon his death or upon Vitesse’s
provision to Executive of not less than fifteen (15) days written notice to
Executive that Vitesse has determined that Executive is unable to continue to
perform his job duties due to Disability. 
“Disability” means a
physical or mental impairment of Executive as certified in a written statement
from a licensed physician selected or approved by the Board that renders Executive
unable to perform his duties under this Agreement (after reasonable
accommodation, if necessary, by Vitesse that does not impose an undue hardship 


 


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on Vitesse) for one hundred and fifty (150)
consecutive days or for at least two hundred and ten (210) days (regardless of
whether such days are consecutive) during any period of three hundred
sixty-five (365) consecutive days.  In
conjunction with determining the existence of a Disability, Executive consents
to any reasonable medical examinations (at Vitesse’s expense) that the Board
determines are relevant to a determination of Executive’s Disability, and
agrees that Vitesse is entitled to receive the written results of such
examinations.  Executive agrees to waive
any applicable physician-patient privilege which may arise with respect to such
examinations.


 


6.                                      SEVERANCE
PAY AND CHANGE IN STATUS


 


If Executive’s employment is terminated (i) by mutual agreement, (ii) by
Vitesse For Cause (iii) by Executive for other than Good Reason (as
defined below) or (iv) because of Executive’s Disability or death,
Executive (or Executive’s estate in the case of Executive’s death) shall
receive Executive’s base salary and any vested bonus prorated through Executive’s
final day of employment, but shall not be eligible to receive any Severance Pay
(as defined below), Change in Status (as defined below) or any other
compensation, unless agreed upon by both parties.  Executive’s right to receive any of the
benefits under this Section 6 shall be conditioned upon Executive’s
execution of Vitesse’s then standard form of waiver and release of claims.


 


If Executive’s employment is terminated by Vitesse other than For Cause
or by Executive for Good Reason, Executive shall receive his base salary and
any vested bonus prorated through Executive’s final day of employment,
Severance Pay and a Change in Status.


 


“Good Reason”
means, without Executive’s written consent, the occurrence of any of the
following actions unless the action is fully corrected (if possible) within
fifteen (15) days after the Board receives written notice from Executive of
such action (which notice shall have been provided by Executive within thirty
(30) days of the occurrence of such action), and provided that Executive
actually terminates employment within thirty (30) days following the end of
such fifteen (15) day period:  (a) Vitesse’s
material reduction in Executive’s base salary; (b) Vitesse’s failure to
pay Executive any material amount that is expressly required to be paid under
this Agreement; (c) Vitesse’s material and adverse reduction of the nature
of Executive’s duties and responsibilities, disregarding mere changes in title;
(d)  Vitesse’s requirement that Executive perform his principal employment
duties at an office that is more than thirty-five (35) miles from Camarillo,
California; or (e) a Change of Control Event (as defined below).


 


“Change of Control Event”
shall have the same meaning as in Vitesse’s SIP.


 


“Severance Pay”
means twenty four (24) months of Executive’s base salary plus two times the
average of the maximum target bonus (whether earned or not) for the two most
recent  fiscal years prior to the
termination payable in a lump sum on the date of termination of employment.


 


“Change In Status”
means Executive shall continue to perform services as a Consultant for Vitesse
and receive compensation at a guaranteed rate of not less than Three Thousand
Dollars ($3,000) per month for a period not to exceed three (3) years
following the termination


 


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of Executive’s employment. 
Vitesse agrees that Executive shall not be required to perform more than
ten (10) hours of services per month as a Consultant, and shall receive
additional compensation at the rate of Three Hundred Dollars ($300) per hour
for all services performed in excess of ten (10) hours per month.  Executive’s guaranteed monthly compensation
for consulting shall expire on the earlier of either three (3) years after
the date of termination of his employment or one year after Vitesse has an
effective registration statement under the Securities Act of 1933 with respect
to the shares to be issued upon exercise of options granted to Executive under
Vitesse’s SIP.  Executive will continue
to vest normally in all existing options during his services as a Consultant.
All existing options will be exercisable until the earlier of 90 days following
termination of Executive’s services as a Consultant and the normal expiration
date of such options.


 


7.                                      EMPLOYMENT DUTIES


 


Executive will report to Vitesse’s Board and shall perform all duties
assigned to him by the Board.  Executive’s
duties may be conveyed to him through a job description, or through other
written or verbal instructions from Vitesse’s Board.  Executive’s duties are expected to involve
travel from time to time to various locations and events, and are expected to
involve significant unpaid overtime.


 


8.                                      COMPLIANCE
WITH VITESSE POLICIES AND PROCEDURES


 


As a member of Vitesse management, Executive will be expected to comply
with all provisions of the Vitesse Policies and Procedures Manual and Employee
Handbook, as amended from time to time. 
Executive acknowledges, by signature on this Agreement, that failure to
comply with and ensure enforcement of Vitesse’s policies, procedures and all
federal/state laws relating to business operations may result in immediate
termination of employment For Cause.


 


9.                                      CONFLICT
OF INTEREST


 


Executive acknowledges that his position is a full-time position and
agrees to devote his entire productive time, ability and attention to Vitesse’s
business.  Executive further agrees that
while employed by Vitesse, he will not directly or indirectly engage in outside
employment, consulting or other business activities unless he has obtained
written consent from the Vitesse Board.


 


10.                               NO
SOLICITATION OF CUSTOMERS


 


Executive promises and agrees that during the
term of this Agreement and for a period of two (2) years thereafter,
Executive will not, directly or indirectly, individually or as a consultant to,
or as an employee, officer, stockholder, director or other owner or participant
in any business, influence or attempt to influence customers, vendors,
suppliers, joint venturers, associates, consultants, agents, or partners of Vitesse,
either directly or indirectly, to divert their business away from Vitesse, to
any individual, partnership, firm, corporation or other entity then in
competition with the business of Vitesse, and he will not otherwise materially
interfere with any business relationship of Vitesse.


 


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11.                               SOLICITATION
OF EMPLOYEES


 


Executive promises and agrees that during the
term of this Agreement and for a period of two (2) years thereafter,
Executive will not, directly or indirectly, individually or as a consultant to,
or as an employee, officer, stockholder, director or other owner of or
participant in any business, solicit (or assist in soliciting) any person who
is then, or at any time within six (6) months prior thereto was, an
employee of Vitesse who earned annually $25,000 or more as an employee of
Vitesse during the last six (6) months of his or her own employment to
work for (as an employee, consultant or otherwise) any business, individual,
partnership, firm, corporation, or other entity whether or not engaged in
competitive business with Vitesse.


 


12.                               OBLIGATION
TO RETURN BONUS PAYMENTS


 


Executive agrees to disgorge to the Company
certain bonus payments and profits if the Company is required to prepare an accounting
restatement to correct an accounting error on an interim or annual financial
statement included in a report on Form 10-Q or Form 10-K, due to
material noncompliance with any financial reporting requirement under the
federal securities laws, and the Board determines that misconduct by the
Executive has occurred and caused such restatement.  ‘Misconduct’ shall
refer to any definition included in the applicable statute(s) or
applicable judicial precedents The amounts that shall be disgorged shall be (i) any
bonus or other incentive-based or equity-based compensation received by
Executive from the Company during the 12-month period following the first
public issuance or filing with the SEC (whichever first occurs) of the
financial document embodying such error; and (ii)any net profits realized by
Executive from the sale of the Company’s stock during that 12-month
period.  In any dispute between the Company and Executive regarding such
misconduct, Executive will continue to be entitled to any indemnification or
reimbursement for legal representation available to Executive pursuant to any
statute, charter provision, By-law, contract or other arrangement that insures
or indemnifies Executive.


 


13.                               LIMITATION
ON PAYMENTS


 


                                                In
the event that the severance and other benefits provided for in this Agreement
or otherwise payable to Executive (i) constitute “parachute payments”
within the meaning of Section 280G of the Internal Revenue Code of 1986,
as amended (the “Code”), and
(ii) would be subject to the excise tax imposed by Section 4999 of
the Code (the “Excise Tax”),
then Executive’s benefits under this Agreement shall be either (a) delivered
in full, or (b) delivered as to such lesser extent which would result in
no portion of such benefits being subject to the Excise Tax, whichever of the
foregoing amounts, taking into account the applicable federal, state and local
income taxes and the Excise Tax, results in the receipt by Executive on an
after-tax basis, of the greatest amount of benefits, notwithstanding that all
or some portion of such benefits may be taxable under Section 4999 of the
Code.  The payments or benefits subject
to any such reduction shall be reduced by Vitesse in its reasonable discretion
in the following order: (i) reduction of any payments and benefits
otherwise payable to Executive that are exempt from Section 409A of the
Code, and (ii) reduction of any other payments and benefits otherwise
payable to Executive on a pro-rata basis or such other manner that complies
with Section 409A of the Code, as determined by Vitesse.


 


Unless Vitesse and Executive otherwise agree
in writing, any determination required under this section shall be made in
writing by Vitesse’s independent public accountants


 


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(the “Accountants”), whose determination
shall be conclusive and binding upon Executive and Vitesse for all
purposes.  For purposes of making the
calculations required by this section, the Accountants may make reasonable
assumptions and approximations concerning applicable taxes and may rely on
reasonable, good faith interpretations concerning the application of Section 280G
and 4999 of the Code.  Vitesse and
Executive shall furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make a determination under
this section.  Vitesse shall bear all
costs the Accountants may reasonably incur in connection with any calculations
contemplated by this section.


 


14.                               SECTION 409A


 


Vitesse makes no representations or warranties
to Executive with respect to any tax, economic or legal consequences of this
letter or any payments or other benefits provided hereunder, including without
limitation under Section 409A of the Code. 
However, the parties intend that this Agreement and the payments and
other benefits provided hereunder be exempt from the requirements of Section 409A
of the Code to the maximum extent possible, whether pursuant to the short-term
deferral exception described in Treasury Regulation Section 1.409A-1(b)(4),
the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii),
or otherwise.  To the extent Section 409A
of the Code is applicable to this Agreement (and such payments and benefits),
the parties intend that this Agreement (and such payments and benefits) comply
with the deferral, payout and other limitations and restrictions imposed under Section 409A
of the Code.  Notwithstanding any other
provision of this Agreement to the contrary, this Agreement shall be interpreted,
operated and administered in a manner consistent with such intentions.  Without limiting the generality of the
foregoing, and notwithstanding any other provision of this Agreement to the
contrary, with respect to any payments and benefits under this letter to which Section 409A
of the Code applies, all references in this letter to the termination of
Executive’s employment are intended to mean Executive’s “separation from
service,” within the meaning of Section 409A(a)(2)(A)(i) of the
Code.  In addition, if Executive is a “specified
employee,” within the meaning of Section 409A(a)(2)(B)(i) of the
Code, then to the extent necessary to avoid subjecting Executive to the
imposition of any additional tax under Section 409A of the Code, amounts
that would otherwise be payable under this Agreement during the six-month
period immediately following Executive’s “separation from service,” within the
meaning of Section 409A(a)(2)(A)(i) of the Code, will not be paid to
Executive during such period, but will instead be accumulated and paid to
Executive (or, in the event of Executive’s death, Executive’s estate) in a lump
sum on the first business day following the earlier of (a) the date that
is six months after Executive’s separation from service or (b) Executive’s
death.  It is intended that each
installment, if any, of any severance payments (including any payments due to
Change in Status) shall be treated as a separate “payment” for purposes of Section 409A.


 


15.                               ARBITRATION


 


Any controversy arising out of or relating to
Executive’s employment, any termination of Executive’s employment, this
Agreement or because of an alleged breach, default, or misrepresentation in
connection with any of the provisions of this Agreement, including (without
limitation) any state or federal statutory claims, shall be submitted to final
and binding arbitration, to be held in Ventura County, California before a sole
neutral arbitrator.  The 


 


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arbitration
shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and
Procedures.  Judgment on the award may be entered in any court having
jurisdiction.  The parties acknowledge
and agree that they are hereby waiving any rights to trial by jury in any
action, proceeding or counterclaim brought by either of the parties against the
other in connection with any matter whatsoever arising out of or in any way
connected with any of the matters referenced in this Section 15.  The parties agree that in any proceeding with
respect to such matters, each party shall bear its own attorney’s fees and
costs.


 


16.                               TERM


 


Subject to the provisions of Section 5 of this Agreement, the term
of this Agreement shall end on July 27, 2009.


 


17.                               PARTIAL
INVALIDITY


 


It is the desire and intent of Vitesse and Executive that the
provisions of this Agreement be enforced to the fullest extent permissible
under applicable federal, state and municipal laws.  Accordingly, if any specific provision or
portion of this Agreement are determined to be invalid or unenforceable within
the particular jurisdiction in which enforcement is sought, that portion of the
Agreement will be considered as deleted for the purposes of adjudication.  All other portions of this Agreement will be
considered valid and enforceable within that jurisdiction.


 


18.                               ENTIRE
AGREEMENT


 


Vitesse and Executive understand and agree that this Agreement
constitutes the full and complete understanding and agreement between them
regarding the terms of Executive’s employment and supersedes all prior
understandings, representations, and agreements with respect to the
employment.  Vitesse and Executive
understand that the Vitesse SIP and the Compensation Adjustment forms (if any)
referred to in this Agreement shall be fully incorporated into this Agreement
by reference.  The parties rights and
obligations hereunder may not be assigned without the consent of each party
hereto, except that Vitesse may assign its rights and obligations hereunder to
any successor entity.  Executive agrees
that following a Change in Control Event, “Vitesse” shall refer to any
successor entity.


 


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of Page Intentional Left Blank]


 


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19.                               EXECUTIVE
ACKNOWLEDGEMENT


 


Executive acknowledges that he has read and understands this Employment
Agreement and agrees to the terms and conditions contained herein.  Executive agrees that he has had the
opportunity to confer with legal counsel of his choosing regarding this
Agreement.  Executive further
acknowledges that this Agreement has not been executed by Executive in reliance
upon any representation or promise except those contained herein, and that
Vitesse has made no guarantee regarding Executive’s employment other than those
specified in this Agreement.


 


 


	
   

  	
   

  	
  “Executive”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated

  	
  2-25-09

  	
   

  	
  /s/ Christopher Gardner

  
	
   

  	
   

  	
  Christopher Gardner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  VITESSE SEMICONDUCTOR CORPORATION,

  
	
   

  	
   

  	
  a Delaware Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated

  	
  2-26-09

  	
   

  	
  By

  	
  /s/ Willow B. Shire

  
	
   

  	
   

  	
   

  	
  Willow B. Shire

  
	
   

  	
   

  	
   

  	
  Chairperson of the Compensation Committee

  



 


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