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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MYLEX CORPORATION
(Exact name of issuer as specified in its charter)
FLORIDA 59-2291597
___________________________ ______________________
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
34551 Ardenwood Boulevard
Fremont, California 94555
(Address of principal executive offices)
___________________________
1993 STOCK OPTION PLAN
(Full title of the plan)
____________________________
ALBERT E. MONTROSS
Chief Executive Officer and
President
MYLEX CORPORATION
34551 Ardenwood Boulevard
Fremont, California 94555
(510) 796-6100
(Name, address and telephone number of agent for service)
________________________________
Copy to: Mr. Douglas Clark Neilsson, Esq.
Brown & Bain
1755 Embarcadero Road, Suite 200
Palo Alto, CA 94303
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=====================================================================
CALCULATION OF REGISTRATION FEE
=====================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount
to be to be Price Per Offering of Registration
Registered Registered Share (1) Price (1) Fee
______________________________________________________________________________
Common Stock 850,000 $15.00 $12,750,000 $4,396.55
______________________________________________________________________________
(1) Estimated in accordance with Rule 457 (h) solely for the purpose of
computing the amount of the registration fee based on the average of the high
and low prices of the Company's Common Stock as reported on the NASDAQ
National Market System on September 5, 1996.
=====================================================================
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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 previously filed with the
Securities and Exchange Commission:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995, filed pursuant to Section 13 of the Securities
Exchange Act of 1934 (the "Exchange Act").
(b) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1996.
(c) The description of the Company's Common Stock to be offered
hereby contained in the Company's Registration Statement on Form 8-A dated
April 12, 1985, filed pursuant to Section 12(g) of the Exchange Act.
All documents filed by the company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which reregisters 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. Interest of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The Bylaws of the Company provide that any officer, director,
employee or agent who was or is made a party, or is threatened to be made a
party, in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, whether the basis of such proceeding is an
alleged action in an official capacity as a director, officer, employee or
agent, or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the Company to
the fullest extent authorized by the Florida 1989 Business Corporation Act
(the "Florida Act") against all expenses, liability and loss (including all
expenses, judgments, fines, settlements) reasonably incurred or suffered by
such person in connection therewith. Section 607.0850 of the Florida Act
authorized a court to award, or a
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corporation's Board of Directors to grant, indemnity to directors and
officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Florida Act. Further, the Company has entered
into an indemnification agreement with its officers and directors, providing
such individuals indemnification to the maximum extent permitted by the
Florida Act.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the Florida Act, the foregoing Bylaw
provision or any Indemnification Agreement, the Company has been informed
that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act
of 1933 (the "Securities Act") and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number
4.1 1993 Stock Option Plan, as amended, together with form
of Stock Option Agreement.
5.1 Opinion of counsel as to legality of securities being
registered.
23.1 Consent of Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-5).
Item 9. Undertakings.
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, each such post-effective amendment shall be deemed to be a
new registration statement relating to the
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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.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) 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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of registrant pursuant to the Florida Act, the Bylaws of registrant,
Indemnification Agreements entered into between registrant and its officers
and directors, or otherwise, 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 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
thereunder, registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court to 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.
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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 Fremont, State of California, on
this 6th day of September, 1996.
MYLEX CORPORATION
By /s/ Albert E. Montross
----------------------
Albert E. Montross
Chief Executive Officer and President
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Colleen Gray, as his ad-hoc
attorney-in-fact, 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 said attorney-in-fact, or her substitute,
may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
---------- ----- ----
/s/ Ismael Dudhia Chairman of the Board 9/6/96
- ------------------------
Ismael Dudhia
/s/ Albert E. Montross Director, Chief Executive Officer 9/6/96
- ------------------------ and President
Albert E. Montross
/s/ M. Yaqup Mirza Director 9/6/96
- ------------------------
M. Yaqub Mirza
/s/ Inder M. Singh Director 9/6/96
- ------------------------
Inder M. Singh
/s/ Richard Love Director 9/6/96
- ------------------------
Richard Love
/s/ Stephen McKenzie Director 9/6/96
- ------------------------
Stephen McKenzie
/s/ Colleen Gray Vice President Finance and 9/6/96
- ------------------------ Chief Financial Officer
Colleen Gray
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Exhibit Index
Exhibit Sequentially
Number Numbered Page
- ------- -------------
4.1 1993 Stock Option Plan, as amended 9 - 28
5.1 Opinion of counsel as to legality of 29
securities being registered.
23.1 Consent of Independent Auditors. 30
23.2 Consent of Counsel (contained in Exhibit 5.1) 29
25.1 Power of Attorney (see page 7 of -
Registration Statement)
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EXHIBIT 4.1
MYLEX CORPORATION
1993 STOCK OPTION PLAN
1. PURPOSES OF THE PLAN. The purposes of this Stock Option Plan are:
- to attract and retain the best available personnel for
positions of substantial responsibility,
- to provide additional incentive to employees, consultants
and outside directors, and
- to promote the success of the company's business.
Options granted under the plan may be Incentive Stock Options or Nonstatutory
Stock Options, as determined by the Administrator at the time of grant. The
Plan also provides for automatic grants of Nonstatutory Stock Options to
Outside Directors.
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 legal requirements relating to the
administration of stock option plans under state corporate and securities
laws and the code.
(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 appointed by the Board in
accordance with Section 4 of the plan.
(f) "COMMON STOCK" means the Common Stock of the Company.
(g) "COMPANY" means Mylex Corporation, a Florida corporation.
(h) "CONSULTANT" means any person, including an advisor, engaged
by the company or a Parent or Subsidiary to render services and who is
compensated for such services, provided that the term "Consultant" shall not
include Directors who are paid
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only a director's fee by the Company or who are not compensated by the
Company for their services as Directors.
(i) "CONTINUOUS STATUS AS AN EMPLOYEE, CONSULTANT OR DIRECTOR"
means that the employment, consulting or Outside Director relationship is not
interrupted or terminated by the Company, any Parent or Subsidiary.
Continuous status as an Employee, Consultant or Director shall not be
considered interrupted in the case of: (i) any leave of absence approved by
the Administrator, including sick leave, military leave, or any other
personal leave; provided, however, that for purposes of Incentive Stock
Options, any such leave may not exceed ninety (90) days, unless reemployment
upon the expiration of such leave is guaranteed by contract (including
certain Company policies) or statute; or (ii) transfers between location of
the Company or between the Company, its Parent, its Subsidiaries or its
successor.
(j) "DIRECTOR" means a member of the Board.
(k) "DISABILITY" means total and permanent disability as defined in
Section 22(e) (3) of the Code.
(l) "EMPLOYEE" means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company. Neither
service as a Director nor payment of a Director's fee by the Company shall be
sufficient to constitute "employment" by the Company.
(m) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(n) "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 system or exchange
(or the exchange with the greatest volume of trading in Common Stock) on the
last market trading day prior to the day of determination, as reported in the
Wall Street Journal or such other source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the NASDAQ System
(but not on the National Market System thereof) or is regularly quoted by a
recognized securities dealer but selling prices are not reported, the Fair
Market Value of a share of Common Stock shall be the mean between the high
bid and low 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;
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(iii) In the absence of an established market for the
Common Stock, the Fair Market Value shall be determined in good faith by the
Administrator.
(o) "INCENTIVE STOCK OPTION" means an Option intended to qualify
as an incentive stock option within the meaning of Section 422 of the Code
and the regulations promulgated thereunder.
(p) "NONSTATUTORY STOCK OPTION" means an Option not intended to
quality as Incentive Stock Option.
(q) "NOTICE OF GRANT" means a written notice evidencing certain
terms and conditions of an individual Option grant. The Notice of Grant is
part of the Option Agreement.
(r) "OFFICER" means a person who is an Officer of the Company
within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(s) "OPTION" means a stock option granted pursuant to the Plan.
(t) "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.
(u) "OPTIONED STOCK" means the Common Stock subject to an Option.
(v) "OPTIONEE" means an Employee or Consultant holds an
outstanding option.
(w) "OUTSIDE DIRECTOR" shall mean a member of the Board of
Directors of the Company who is not an Employee or a Consultant.
(x) "PARENT" means a "parent corporation", whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(y) "PLAN" means this Mylex Corporation 1993 Stock Option Plan.
(z) "RULE 16b-3" means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3, as in effect when discretion is being exercised with
respect to the Plan.
(aa) "SHARE" means a share of the Common Stock, as adjusted in
accordance with Section 12 of the Plan.
(bb) "SUBSIDIARY" means a "subsidiary corporation", whether now or
hereafter existing, as defined in Section 424(f) of the Code.
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3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 12
of the Plan, the maximum aggregate number of shares which may be optioned and
sold under the Plan is 2,925,000 shares of Common Stock. The Shares may be
authorized, but unissued, or reacquired Common Stock. 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.
If an Option expires or becomes unexercisable without having been
exercised in full, the unpurchased shares which were subject thereto shall
become available for future grant under the Plan (unless the Plan has
terminated).
4. ADMINISTRATION OF THE PLAN.
(a) PROCEDURE.
(i) MULTIPLE ADMINISTRATIVE BODIES. If permitted by Rule
16b-3, the Plan may be administered by different bodies with respect to
Directors, Officers who are not Directors, and Employees who are neither
Directors nor Officers.
(ii) ADMINISTRATION WITH RESPECT TO DIRECTORS AND OFFICERS
SUBJECT TO SECTION 16(b). With respect to Option grants made to Employees
who are also Officers or Directors subject to Section 16(b) of the Exchange
Act, the Plan shall be administered by (A) the Board, if the Board may
administer the Plan in compliance with the rules governing a plan intended to
qualify as a discretionary plan under Rule 16b-3, or (B) a committee
designated by the Board to administer the plan, which committee shall be
constituted to comply with the rules governing a plan intended to qualify as
a discretionary plan under Rule 16-b-3. Once appointed, such Committee shall
continue to serve in its designated capacity until otherwise directed by the
Board. From time to time the Board may increase the size of the Committee
and appoint additional members, remove members (with or without cause) and
substitute new members, fill vacancies (however caused), and remove all
members of the Committee and thereafter directly administer the Plan, all to
the extent permitted by the rules governing a plan intended to quality as a
discretionary plan under Rule16b-3.
(iii) ADMINISTRATION WITH RESPECT TO OTHER PERSONS. With
respect to Option grants made to Employees or Consultants who are neither
Directors not Officers of the Company, the plan shall be administered by (A)
the Board or (B) a committee designated by the Board, which committee shall
be constituted to satisfy Applicable Laws. Once appointed, such Committee
shall serve in its designated capacity until otherwise directed by the Board.
The Board may increase the size of the Committee and appoint additional
members, remove members (with or without cause) and substitute new members,
fill vacancies (however caused), and remove all members of the Committee and
thereafter directly administer the Plan, all to the extent permitted by
Applicable Laws.
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(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, 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(n) of the Plan;
(ii) to select the Consultants and Employees to whom
Options may be granted hereunder;
(iii) to determine whether and to what extent Options are
granted hereunder;
(iv) to determine the number of shares of Common Stock to be
covered by each 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 award granted hereunder. Such terms and
conditions may include, but are not limited to, the exercise price, the time
or times when Options may be exercised (which may be based on performance
criteria), any vesting acceleration or waiver of forfeiture restrictions, and
any restrictions or limitation regarding any Option or the shares of Common
Stock relating thereto, based in each case on such factors as the
Administrator, in its sole discretion, shall determine;
(vii) to determine whether, to what extent and under what
circumstances common stock and other amounts payable with respect to an award
under this plan shall be deferred either automatically or at the election of
the participant (including providing for and determining the amount (if any)
of any deemed earnings on any deferred amount during any deferral period);
(viii) 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;
(ix) to construe and interpret the terms of the Plan;
(x) to prescribe, amend and rescind rules and regulations
relating to the Plan;
(xi) to modify or amend each Option (subject to Section
14(c) of the Plan;
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(xii) to authorize any person to execute on behalf of the
Company any instrument required to effect the grant of an Option previously
granted by the Administrator;
(xiii) to determine the terms and restrictions applicable to
Options; and
(xiv) to make all other determinations deemed necessary or
advisable for administering the Plan.
(c) EFFECT OF ADMINISTRATOR'S DECISION. The Administrator's
decisions, determinations and interpretations shall be final and binding on
all Optionees and any other holders of Options.
5. ELIGIBILITY.
(a) Options may be granted to Employees, Consultants and Outside
Directors provided that (i) Incentive Stock Options may only be granted to
Employees and (ii) Options may only be granted to Outside Directors in
accordance with the provisions of Section 5(b) hereof. Each Option shall be
designated in the written option agreement as either an Incentive Stock
Option or a Nonstatutory Stock Option. Subject to Section 5(b) with respect
to Outside Directors, an Employee, Consultant or Outside Director who has
been granted an Option may, if such Employee, Consultant or Outside Director
is otherwise eligible, be granted additional Option(s).
(b) The provisions set forth in this Section 5(b) shall not be
amended more than once every six months, other than to comport with changes
in the Code, the Employee Retirement Income Security Act of 1974, as amended,
or the rules thereunder. All grants of Options to Outside Directors under
this Plan shall be automatic and Non-Discretionary and shall be made strictly
in accordance with the following provisions:
(i) No person shall have any discretion to select which
Outside Directors shall be granted Options or to determine the number of
shares to be covered by Options granted to Outside Directors; provided,
however, that nothing in this Plan shall be construed to prevent an Outside
Director from declining to receive an Option under this Plan.
(ii) On the date, subsequent to May 9, 1993, that any
Outside Director is first elected to the Board of Directors or is first
appointed by the Board to fill a vacancy, each such Outside Director shall
automatically receive an Option to purchase fifty thousand (50,000) shares,
decreased or increased as provided in Section 12 hereof (the "First Option").
(iii) The terms of the First Option shall be as follows:
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(A) the term of the Option shall be five (5) years;
(B) except as provided in Section 10 of this Plan,
the Option shall be exercisable only while the Outside Director
remains a Director;
(C) the exercise price per share of Common Stock
shall be 100% of the Fair Market Value on the date of grant of the
Option;
(D) the Option shall become exercisable in
installments cumulatively with respect to one thirty-sixth (1/36th)
of the Optioned Stock on the last day of each month following the date
of grant; provided, however, that in no event shall any Option be
exercisable prior to obtaining shareholder approval of the plan.
(iv) Three years following the initial appointment or
election of an Outside Director, each Outside Director shall automatically
receive an Option to purchase fifty thousand (50,000) Shares, decreased or
increased as provided in Section 12 hereof (the "Second Option").
(v) The terms of the Second Option shall be as follows:
(A) the term of the Option shall be five (5) years;
(B) except as provided in Section 10 of this Plan,
the Option shall be exercisable only while the
Outside Director remains a director;
(C) the exercise price per share of Common Stock
shall be 100% of the Far Market Value on the date
of grant of the Option;
(D) the Option shall become exercisable in
installments cumulatively with respect to one
sixtieth (1/60th) of the Optioned Stock on the last
day of each month following the date of grant;
provided, however, that in no event shall any Option
be exercisable prior to obtaining shareholder
approval of the Plan.
6. LIMITATIONS.
(a) Each Option shall be designated in the Notice of Grant
as either an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair
Market Value of Shares subject to an Optionee's incentive stock options
granted by the Company, any Parent or Subsidiary which become exercisable for
the first time during any calendar year (under all plans of the Company or
any Parent or Subsidiary) exceeds $100,000 such excess Options shall be
treated as Nonstatutory Stock Options. For purposes of this Section 6(a),
Incentive Stock Options shall be taken into account in the order in which
they were granted, and the Fair Market Value of shares shall be determined as
of the time of grant.
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(b) Neither the plan nor any Option shall confer upon an
Optionee any right with respect to continuing the Optionee's employment or
consulting relationship with the Company, nor shall they interfere in any way
with the Optionee's right or the Company's right to terminate such employment
or consulting relationship at any time, with or without cause.
(c) Notwithstanding any implication to the contrary herin,
no person may be granted one or more Options during any fiscal year of the
Company with respect to in excess of an aggregate of 130,000 shares of Common
Stock (as adjusted pursuant to Section 12 of the Plan).
7. TERM OF PLAN. Subject to Section 18 of the Plan, the Plan shall become
effective as of May 11, 1993. It shall continue in effect for a term of ten
(10) years unless terminated earlier under Section 14 of the Plan.
8. TERM OF OPTION. The term of each Option shall be stated in the Notice of
Grant; provided, however, that in the case of any Incentive Stock Option; the
term shall be ten (10) years from the date of grant or such shorter term as
may be provided in the Notice of Grant. However, in the case of an Incentive
Stock Option granted to an Optionee who, at the time the Incentive Stock
Option is granted, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or
Subsidiary, the term of the Incentive Stock Option shall be five (5) years
from the date of grant or such shorter term as may be provided in the Notice
of Grant.
9. OPTION EXERCISE PRICE AND CONSIDERATION.
(a) EXERCISE PRICE. The per share exercise price for the
Shares to be issued pursuant to exercise of an Option shall be determined by
the Administrator, subject to the following:
(i) In the cast of the Incentive Stock Option
(A) granted to an employee who, at the time
the Incentive Stock Option is granted, owns
stock representing more than ten percent
(10%) of the voting power of all classes of
stock of the Company or any Parent or
Subsidiary, the per share exercise price
shall be no less than 110% of the Fair Market
Value per share on the date of grant.
(B) granted to any Employee, the per share
exercise price shall be no less than 100% of
the Fair Market Value per share on the date of
grant.
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(ii) In the case of a Nonstatutory Stock Option, the
per share exercise price shall be determined by the Administrator.
(b) WAITING PERIOD AND EXERCISE DATES. At the time an
Option is granted, the Administrator shall fix the period within which the
Option may be exercised and shall determine any conditions which must be
satisfied before the Option may be exercised. In so doing, the Administrator
may specify that an Option may not be exercised until the completion of a
service period.
(c) FORM OF CONSIDERATION. The Administrator shall
determine the acceptance form of consideration for exercising an Option,
including the method payment. In the case of any Incentive Stock Option, the
Administrator shall determine the acceptable form of consideration at the
time of grant. Such consideration may consist of:
(i) cash;
(ii) check;
(iii) promissory note;
(iv) other shares which (A) in the case of shares
acquired upon exercise of an option, have been owned by the Optionee for more
than six months on Optionee for more than six months on the date of surrender
equal to the aggregate exercise price of the Shares as to which said Option
shall be exercised;
(v) 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;
(vi) any combination of the foregoing methods of
payment; or
(vii) such other consideration and method of
payment for the issuance of Shares to the extent permitted by Applicable Laws.
10. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any
Option granted hereunder shall be exercisable according to the terms of the
Plan and at such times and under such conditions as determined by the
Administrator and set forth in the Option Agreement.
An Option may not be exercised for a fraction of a
share.
An Option shall be deemed exercised when the Company
receives:
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(i) written notice of exercise (in accordance with the Option Agreement) 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 authorized by the
Administrator and permitted by the Option Agreement and the Plan. Shares
issued upon exercise of an Option shall be issued in the name of the Optionee
or, if requested by the Optionee, in the name of the Optionee and his or her
spouse.
Exercising an Option in any manner shall decrease
the number of Shares thereafter 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.
(b) TERMINATION OF EMPLOYMENT OR CONSULTING RELATIONSHIP.
In the event that an Optionee's continuous Status as an Employee, Consultant
or Outside Director terminates (other than upon the Optionee's death or
Disability), the Optionee may exercise his or her Option, but only within six
(6) months or such shorter period of time as is determined by the
Administrator, and only to the extent that the Optionee was entitled to
exercise it at the date of termination (but in no event later than the
expiration of the term of such Option as set forth in the Notice of Grant).
In the case of an Incentive Stock Option, the Administrator shall determine
such period of time (in no event to exceed three (3) months from the date of
termination) when the Option is granted. 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 revert to the Plan.
If, after termination, the Optionee does not exercise his or her Option
within the time specified by the Administrator, the Option shall terminate,
and the Shares covered by such Option shall revert to the Plan.
(c) DISABILITY OF OPTIONEE. In the event that an
Optionee's Continuous Status as an Employee, Consultant or Outside Director
terminates as a result of the Optionee's Disability, the Optionee may
exercise his or her Option at any time within twelve (12) months from the
date of such termination, but 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
Notice of Grant). 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 revert to the Plan. If, after
termination, the Optionee does not exercise his or her Option within the time
specified herein, the Option shall terminate, and the Shares covered by such
Option shall revert to the Plan.
(d) DEATH OF OPTIONEE. In the event of the death of an
Optionee, the Option may be exercised at any time within twelve (12) months
following the date of death (but in no event later than the expiration of the
term of such Option as set forth in the Notice of Grant), by the Optionee's
estate or by a person who acquired the right to exercise the Option by
bequest or inheritance, but only to the extent that the Optionee was entitled
to exercise the Option at the date of death. If, at the time of death, the
Optionee
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<PAGE>
was not entitled to exercise his or her entire Option, the Shares covered by
the unexercisable portion of the option shall revert to the Plan. If, after
death, the Optionee's estate or a person who acquired the right to exercise
the Option within the time specified herein, the Option shall terminate, and
the Shares covered by such Option shall immediately revert to the Plan.
11. NON-TRANSFERABILITY OF OPTIONS. An Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than
by will or by the laws of decent or distribution and may be exercised, during
the lifetime of the Optionee, only by the Optionee.
12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER, ASSET
SALE OR CHANGE OF CONTROL.
(a) CHANGES IN CAPITALIZATION. Subject to any required
action by the shareholders of the Company, the number of shares of Common
Stock covered by each outstanding Option, and the number of shares of Common
Stock 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 any Option, as well as the price per share of
Common Stock covered by each such outstanding 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
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, 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, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares of
Common Stock subject to an Option.
(b) DISSOLUTION OR LIQUIDATION. In the event of the
proposed dissolution or liquidation of the company, to the extent that an
Option has not been previously exercised, it will terminate immediately prior
to the consummation of such proposed action. 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 or her Option as to all or any part of the Optioned Stock,
including Shares as to which the Option would not otherwise be exercisable.
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<PAGE>
(c) MERGER OR ASSET SALE. In the event of a merger of the
Company with or into another corporation, or the sale of substantially all of
the assets of the Company, each outstanding Option shall be assumed or an
equivalent option shall be substituted by the successor corporation or a
Parent or Subsidiary of the successor corporation. In the event that the
successor corporation does not agree to assume the Option or to substitute an
equivalent Option or right, the Administrator 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 it would not otherwise be exercisable. If the Administrator makes an
Option fully exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Administrator shall notify the Optionee
that the Option or 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
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 Administrator 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.
13. DATE OF GRANT. The date of grant of an Option shall be, for all
purposes, 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 provided to each
Optionee within a reasonable time after the date of such grant.
14. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may at any time
amend, alter, suspend or terminate the Plan.
(b) SHAREHOLDER APPROVAL. The Company shall obtain
shareholder approval of any Plan amendment to the extent necessary and
desirable to comply with Rule 16b-3 or with Section 422 of the code (or any
successor rule or statute or other applicable law, rule or regulation,
including the requirements of any exchange or quotation system on which the
Common Stock is listed or quoted). Such shareholder approval, if required,
shall be obtained in such a manner and to such a degree as is required by the
applicable law, rule or regulation.
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<PAGE>
(c) EFFECT OF AMENDMENT OR TERMINATION. No amendment,
alteration, suspension or termination of the Plan shall impair the rights of
any Optionee, unless mutually agreed otherwise between the Optionee and the
Administrator, which agreement must be in writing and signed by the Optionee
and the Company.
15. CONDITIONS UPON ISSUANCE OF SHARES.
(a) LEGAL COMPLIANCE. Shares shall not be issued pursuant
to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such shares shall comply with all relevant
provisions of law, including, without limitation, the Securities Act of 1933,
as amended, the Exchange Act, the rules and regulation promulgated
thereunder, Applicable Laws, and the requirements of any stock exchange or
quotation system upon which the Shares may then be listed or quoted, and
shall be further subject to the approval of counsel for the Company with
respect to such compliance.
(b) INVESTMENT REPRESENTATIONS. As a condition to the
exercise of an Option, the Company may require the person exercising such
Option to represent and warrant at the time of any such exercise that the
Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is required.
16. LIABILITY OF COMPANY.
(a) INABILITY TO OBTAIN AUTHORITY. The 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 failure to issue or sell such shares as to
which such requisite authority shall not have been obtained.
(b) GRANTS EXCEEDING ALLOTTED SHARES. If the Optioned
Stock covered by an Option exceeds, as of the date of grant, the number of
Shares which may be issued under the Plan without additional shareholder
approval, such Option shall be void with respect to such excess Optioned
Stock, unless shareholder approval of an amendment sufficiently increasing
the number of shares subject to the Plan is timely obtained in accordance
with Section 14(b) of the Plan.
17. 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.
18. SHAREHOLDER APPROVAL. Continuance of the Plan shall be subject to
approval by the shareholders of the Company within twelve (12) months before
or after the date the Plan is adopted. Such shareholder approval shall be
obtained in the manner and to the degree required under applicable federal
and state law.
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<PAGE>
MYLEX CORPORATION
1993 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan shall have the
same defined meanings in this Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
Optionee's Name and Address __________________________________________
__________________________________________
__________________________________________
You have been granted an option to purchase stock of the Company, subject to
the terms and conditions of the Plan and this Stock Option Agreements, as
follows:
Grant Number ___________________________
Date of Grant ___________________________
Vesting Commencement Date ___________________________
Exercise Price per Share $__________________________
Total Number of Shares Granted ___________________________
Total Exercise Price $__________________________
Type of Option ____ Incentive Stock Option
____ Nonstatutory Stock Option
Term/Expiration Date: ____________________________
VESTING SCHEDULE:
TERMINATION PERIOD:
This option may be exercised for [three months maximum for ISOs] ______
months after termination of employment or consulting relationship, or such
longer period as may
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<PAGE>
be applicable upon death or Disability of Optionee as provided in the Plan,
but in no event later than the Term/Expiration Date as provided above.
II AGREEMENT
1. GRANT OF OPTION. The Plan Administrator of the Company hereby
grants to the Optionee named in the Notice of Grant attached as Part I of
this Agreement (the "Optionee"), an option (the "Option") to purchase a
number of Shares, as set forth in the Notice of Grant, at the exercise price
per share set forth in the Notice of Grant (the "Exercise Price"), subject to
the terms and conditions of the Plan, which is incorporated herein by
reference. Subject to Section 14(c) of the Plan, in the event of a conflict
between the terms and conditions of the Plan and the terms and conditions of
this Option Agreement, the terms and conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock Option,
this Option is intended to qualify as an Incentive Stock Option under Section
422 of the Code.
2. EXERCISE OF OPTION.
(a) RIGHT TO EXERCISE. This Option is exercisable during
its term in accordance with the Vesting Schedule set out in the Notice of
Grant and the applicable provisions of the Plan and this Option Agreement.
In the event of Optionee's death, Disability or other termination of
Optionee's employment or consulting relationship, the exercisability of the
Option is governed by the applicable provisions of the Plan and this Option
Agreement.
(b) METHOD OF EXERCISE. This Option is exercisable by
delivery of an exercise notice, in the form attached as Exhibit A (the
"Exercise Notice"), which shall state the election to exercise the option,
the number of Shares in respect of which the Option is being exercised (the
"Exercised Shares"), and such other representations and agreements as may be
required by the Company pursuant to the provisions of the Plan. The Exercise
Notice shall be signed by the Optionee and, if the Optionee is married, by
the Optionee's spouse, and shall be delivered in person or by certified mail
to the Secretary of the Company. The Exercise Notice shall be accompanied by
payment of the aggregate Exercise Price as to all Exercised Shares. This
Option shall be deemed to be exercised upon receipt by the Company of such
fully executed Exercise Notice accompanied by such aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this
option unless such issuance and exercise complies with all relevant
provisions of law and the requirements of any stock exchange upon which the
Shares are then listed. Assuming such compliance, for income tax purposes
the Exercised Shares shall be considered transferred to the Optionee on the
date the Option is exercised with respect to such Exercised Shares.
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<PAGE>
3. METHOD OF PAYMENT. Payment of the aggregate Exercise
Price shall be by any of the following, or a combination thereof, at the
election of the Optionee:
(a) cash; or
(b) check; or
(c) surrender of other Shares which (i) in the case of
Shares acquired upon exercise of an option, have been owned by the optionee
for more than six (6) months on the date of surrender, and (ii) have a Fair
Market Value on the date of surrender equal to the aggregate Exercise Price
of the Exercised Shares; or
(d) delivery of a properly executed exercise notice
together with irrevocable instruction to a broker to promptly deliver to the
Company the amount of sale or loan proceeds required to pay the exercise
price.
4. 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 the
Optionee. The terms of the Plan and this Option Agreement shall be binding
upon the executors, administrators, heirs, successors and assigns of the
Optionee.
5. TERM OF OPTION. This Option may be exercised only within the
term set out in the Notice of Grant, and may be exercised during such term
only in accordance with the Plan and the terms of this Option Agreement.
6. TAX CONSEQUENCES. Some of the federal tax consequences relating
to this Option, as of the date of this Option, are set forth below. THIS
SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS ARE REGULATIONS ARE
SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE
EXERCISING THIS OPTION OR DISPOSING OR THE SHARES.
(a) EXERCISING THE OPTION.
(i) NONQUALIFIED STOCK OPTION ("NSO"). If this
Option does not qualify as an ISO, the Optionee may incur regular federal
income tax liability upon exercise. The Optionee will be treated as having
received compensation income (taxable at ordinary income tax rates) equal to
the excess, if any, of the fair market value of the Exercised Shares on the
date of exercise over their aggregate Exercise Price. If the Optionee is an
employee, the Company will be required to withhold from his or her
compensation or collect from Optionee and pay to the applicable taxing
authorities an amount equal to a percentage of this compensation income at
the time of exercise.
(ii) INCENTIVE STOCK OPTION ("ISO). If this Option
qualifies as an ISO, the Optionee will have no regular federal income tax
liability upon its exercise,
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<PAGE>
although the excess, if any, of the fair market value of the Exercised Shares
on the date of exercise over their aggregate Exercise Price will be treated
as an adjustment to the alternative minimum tax for federal tax purposes and
may subject the Optionee to alternative minimum tax in the year of exercise.
(b) DISPOSITION OF SHARES.
(i) NSO. If the Optionee holds NSO Shares for at
lease one year, any gain realized on disposition of the Shares will be
treated as long-term capital gain for federal income tax purposes.
(ii) ISO. If the Optionee holds ISO shares for at
lease one year after exercise and two years after the grant date, any gain
realized on disposition of the Shares will be treated as long-term capital
gain for federal income tax purposes. If the Optionee disposes of ISO Shares
within one year after exercise or two years after the grant date, any gain
realized on such disposition will be treated as compensation income (taxable
at ordinary income rates) to the extent of the excess, if any, of the lesser
of (A) the difference between the fair market value of the Shares acquired on
the date exercise and the aggregate Exercise Price, or (B) the difference
between the sale price of such Shares and the aggregate Exercise Price.
(c) NOTICE OF DISQUALIFYING DISPOSITION OF ISO SHARES. If
the Optionee sells or otherwise disposes of any of the Shares acquired
pursuant to an ISO on or before the later of (i) two years after the grant
date, or (ii) one year after the exercise date, the Optionee shall
immediately notify the Company in writing of such disposition. The Optionee
agrees that he or she may be subject to income tax withholding by the Company
on the compensation income recognized from such early disposition.
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<PAGE>
By your signature and the signature of the Company's representative below,
you and the Company agree that this Option is granted under and governed by
the terms and conditions of the Plan and this Option Agreement. Optionee has
reviewed the Plan and this Option Agreement in their entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Option
Agreement and fully understands all provisions of the Plan and Option
Agreement. Optionee hereby agrees to accept as binding, conclusive and final
all decisions or interpretations of the Administrator upon any questions
relating to the Plan and Option Agreement.
OPTIONEE MYLEX CORPORATION
____________________________ By:________________________________
Signature
____________________________ Title: ____________________________
Print Name
CONSENT OF SPOUSE
The undersigned spouse of Optionee has read and hereby approves the
terms and conditions of the Plan and this Option Agreement. In consideration
of the Company's granting his or her spouse the right to purchase Shares as
set forth in the Plan and this Option Agreement, the undersigned hereby
agrees to be irrevocably bound by the terms and conditions of the Plan and
this Option Agreement and further agrees that any community property interest
shall be similarly bound. The undersigned hereby appoints the undersigned's
spouse as attorney-in-fact for the undersigned with respect to any amendment
or exercise of rights under the Plan of this Option Agreement.
______________________________
Spouse of Optionee
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<PAGE>
EXHIBIT A
MYLEX CORPORATION
1993 STOCK OPTION PLAN
EXERCISE NOTICE
Mylex Corporation
34551 Ardenwood Blvd.
Fremont, CA 94555
Attention: Stock Option Administrator
1. EXERCISE OF OPTION. Effective as of today, , 19 ,
the undersigned ("Purchaser") hereby elects to purchase shares (the
"Shares") of the Common Stock of Mylex Corporation (the "Company") under and
pursuant to the Mylex Corporation 1993 Stock Option Plan (the "Plan") and the
Stock Option Agreement dated (the "Option Agreement").
The purchase price for the Shares shall be $ , as required by the
Option Agreement.
2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the
Company the full purchase price for the Shares.
3. REPRESENTATIONS OF OPTIONEE. Optionee acknowledges that
Optionee has received, read and understood the Plan and the Option Agreement
and agrees to abide by and be bound by their terms and conditions.
4. RIGHTS AS SHAREHOLDER. Subject to the terms and conditions
of this Agreement, Optionee shall have all of the rights of a shareholder of
the Company with respect to the Shares from and after the date that Optionee
delivers full payment of the Exercise Price until such time as Optionee
disposes of the Shares.
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.
6. ENTIRE AGREEMENT; GOVERNING LAW. The Plan and Option
Agreement are incorporated herein by reference. This Agreement, the Plan and
the Option Agreement constitute the entire agreement of the parties and
supersede in their entirely all prior undertakings and agreements of the
Company and Optionee with respect to the subject matter hereof, and such
agreement is governed by California law except for that body of law
pertaining to conflict of laws.
Submitted by: Accepted by:
- ------------ ------------
OPTIONEE MYLEX CORPORATION
By: ___________________________
Signature
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<PAGE>
Its:
Print Name
Address: Address:
- -------- --------
34551 Ardenwood Blvd.
Fremont, CA 94555
page 28
<PAGE>
September 5, 1996
Mylex Corporation
34551 Ardenwood Boulevard
Fremont, California 94555
Re: Registration Statement on Form S-8 for Additional 850,000 Shares
of Common Stock Pursuant to 1993 Stock Option Plan
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Mylex Corporation, a Florida
corporation (the "Company"), with the Securities and Exchange Commission in
connection with the registration under the Securities Act of 1933, as
amended, of an additional 850,000 shares (the "Shares") of the Company's
Common Stock reserved for issuance under the Company's 1993 Stock Option Plan.
As your counsel, we have examined the Company's Articles of
Incorporation and Bylaws and the records of certain corporate proceedings and
actions taken and proposed to be taken by the Company in connection with the
sale and issuance of the Shares under the Plan.
Based upon the foregoing, and in reliance thereon, we are of the
opinion that the Shares, when issued in accordance with the provisions of the
Plan, will be validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ BROWN & BAIN
BROWN & BAIN
B&B:md
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Mylex Corporation:
We consent to incorporation by reference in the registration statement on
Form S-8 of Mylex Corporation of our report dated January 30, 1996, except as
to Note 13, which is as of February 9, 1996, relating to the consolidated
balance sheets of Mylex Corporation and subsidiary as of December 31, 1995
and 1994, and the related consolidated statements of operations,
stockholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1995, which report appears in the December 31, 1995,
annual report on Form 10-K of Mylex Corporation.
/s/ KPMG Peat Marwick LLP
San Jose, California
September 4, 1996
