Exhibit 4.3
VITESSE SEMICONDUCTOR
CORPORATION
Fiscal Year 2008 Executive Bonus Plan
1.
PURPOSE OF PLAN
The purpose of this Vitesse
Semiconductor Corporation Fiscal Year 2008 Executive Bonus Plan
(this “ Plan ”) is to provide members of the
executive staff of Vitesse Semiconductor Corporation, a Delaware
corporation, (the “ Corporation ”) with the
opportunity to earn incentive bonuses based on (a) the
Corporation’s attainment of specific financial performance
objectives for the 2008 Fiscal Year (as defined below) and
(b) the executive’s achievement of designated personal
goals during the 2008 Fiscal Year.
2.
DEFINITIONS
2.1
“Adjusted
EBITDA” means net
income before interest, expenses for taxes, depreciation,
amortization, deferred stock compensation and non-recurring
professional fees. The Administrator may, from time to time,
make other exceptions to the definition as it deems appropriate
with respect to unusual or non-recurring events such as balance
sheet adjustments, mergers, acquisitions, and
divestitures.
2.2
“Administrator”
means the Compensation Committee of
the Board of Directors of the Corporation.
2.3
“Base
Salary” means a
Participant’s Base Salary paid (or deferred) in the 2008
Fiscal Year. Base Salary does not include bonuses or any form
of compensation other than salary.
2.4
“Bonus”
means the sum of a
Participant’s EBITDA Bonus, if any, and his or her Goals
Bonus, if any.
2.5
“EBITDA Bonus
” means the portion of a
Participant’s Bonus, if any, that is based on the
Corporation’s level of Adjusted EBITDA for the 2008 Fiscal
Year.
2.6
“EBITDA
Factor” means the
percentage determined pursuant to Section 5.2.1 of this Plan,
based on the level of the Corporation’s Adjusted
EBITDA.
2.7
“Eligible
Person” is
(a) any “officer” as that term is defined in
Rule 16a-1(f) under the Securities Exchange Act of 1934
(except the President/Chief Executive Officer) or (b) any
vice-president or director level employee who is a member of the
Corporation’s executive staff.
2.8
“Goals”
means the individual personal
performance goals established by the Corporation’s Chief
Executive Officer for each Participant for the 2008 Fiscal
Year.
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2.9
“Goals
Bonus” means the
portion of a Participant’s Bonus, if any, that is based on
both the Participant’s achievement of his or her Personal
Goals and the Corporation’s level of Adjusted EBITDA for the
2008 Fiscal Year.
2.10
“Participant”
means an Eligible Person who has
been designated by the Administrator as eligible to earn a Bonus
for the 2008 Fiscal Year.
2.11
“2008 Fiscal
Year” means the
fiscal year of the Corporation that began on October 1, 2007
and will end on September 30, 2008.
2.12
“2009 Fiscal
Year means the fiscal
year of the Corporation that will begin on October 1, 2008 and
will end on September 30, 2009.
3.
PLAN
ADMINISTRATION
3.1
Administration
. This Plan shall be
administered by and all awards under this Plan shall be authorized
by the Administrator.
3.2
Powers of the
Administrator .
Subject to the express provisions of this Plan, the Administrator
is authorized and empowered to do all things necessary or desirable
in connection with the authorization of awards and the
administration of this Plan, including, without limitation, the
authority to:
(a)
determine the Eligible Persons and,
from among the Eligible Persons, designate those who are
Participants;
(b)
approve the Goals established by the
Corporation’s Chief Executive Officer for each
Participant;
(c)
determine and approve the amount of
the actual Bonus for each Participant; and
(d)
construe and interpret this Plan and
any agreements defining the rights and obligations of the
Corporation and Participants under this Plan, further define the
terms used in this Plan, and prescribe, amend and rescind
rules and regulations relating to the administration of this
Plan or the Bonus payments under this Plan.
3.3
Binding Determinations
. Any action taken by, or
inaction of, the Corporation, the Corporation’s Chief
Executive Officer, or the Administrator relating or pursuant to
this Plan and within its or his authority hereunder or under
applicable law shall be within the absolute discretion of that
entity, person or body and shall be conclusive and binding upon all
persons. Neither the Corporation’s Chief Executive
Officer, the Administrator, nor any person acting at the direction
thereof, shall be liable for any act, omission, interpretation,
construction or determination made in good faith in connection with
this Plan (or any award made under this Plan), and all such persons
shall be entitled to indemnification and reimbursement by the
Corporation in respect of any claim, loss, damage or
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expense (including, without
limitation, attorneys’ fees) arising or resulting therefrom
to the fullest extent permitted by law and/or under any directors
and officers liability insurance coverage that may be in effect
from time to time.
3.4
Reliance on Experts
. In making any determination
or in taking or not taking any action under this Plan, the
Administrator may obtain and may rely upon the advice of experts,
including employees and professional advisors to the
Corporation. No director, officer or agent of the Corporation
shall be liable for any such action or determination taken or made
or omitted in good faith.
3.5
Delegation
. The Administrator may
delegate ministerial, non-discretionary functions to individuals
who are officers or employees of the Corporation or to third
parties.
4.
ELIGIBILITY
The Administrator may grant Bonus
opportunities under this Plan only to those persons that the
Administrator determines to be Eligible Persons. The
Administrator shall notify each Participant of his or her
eligibility to earn a Bonus under this Plan by the later of
February 15, 2008 or the 45 th day following the date that the
Participant becomes an Eligible Person. Such notice shall be
in writing and shall include a description of the
Participant’s Goals.
5.
BONUS CALCULATIONS
5.1
Goals
5.1.1
Establishment
. The Corporation’s
Chief Executive Officer shall establish Goals for each Participant
by the later of February 15, 2008 or the 45
th day following the date the Participant
becomes an Eligible Person.
5.1.2
Adjustment
. To preserve the intended
incentives and benefits of a Goal Bonus opportunity, the Chief
Executive Officer may (i) adjust the Goals to reflect any
material change in corporate capitalization, any material corporate
transaction (such as a reorganization, combination, separation,
merger, acquisition or any combination of the foregoing), or any
complete or partial liquidation of the Corporation or
(ii) make other appropriate adjustments to the
Goals.
5.1.3
Determination of Achievement of
Goals . The
Corporation’s Chief Executive Officer shall, in his or her
sole discretion, determine the extent to which each Participant has
attained the Goals established for such Participant for the 2008
Fiscal Year, which shall be expressed as a whole percentage from 0%
to 100%. The Chief Executive Officer shall make that
determination within 90 days following the end of
