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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8/A
Post-Effective Amendment No. 3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MYLEX CORPORATION
(Exact name of issuer as specified in its charter)
DELAWARE 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 Nielsson, 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 1,900,000 $10.50 $19,950,000 $6,183.19
______________________________________________________________________________
(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 January 29, 1998.
=====================================================================
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in Part I, Items 1 and
2, will be delivered in accordance with Rule 428(b)(1) of the Securities Act of
1933, as amended ("Securities Act"). Such documents are not required to be,
and are not, filed with the Securities and Exchange Commission ("Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents, and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of this Form S-8/A, taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other
documents required to be delivered to eligible employees pursuant to Rule
428(b) or additional information about the 1993 Stock Option Plan of Mylex
Corporation are available without charge by contacting:
Colleen Gray
Mylex Corporation
34551 Ardenwood Boulevard
Fremont, California 94555
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, 1996, file 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 September 27, 1997.
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(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 with the Commission 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 deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any transaction from which the director
derives an improper personal benefit, (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) for improper payment of dividends or redemptions of shares, or (iv) for
any breach of a director's duty of loyalty to the company or its stockholders.
Article Ninth of the Company's Certificate of Incorporation (the "Certificate")
includes such a provision.
The Company's Certificate provides that all persons whom it shall have the
power to indemnify under the provisions of Section 145 of the DGCL (an
"indemnitee") shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the DGCL, as the same exists or may hereafter be
amended or supplemented , against all expense, liability and loss (including
attorneys' fees, judgment, fines, excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith. The indemnification provided for in the Company's Certificate shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his or her official capacity and
as to action in another capacity while holding such office, and shall continue
as to a person who has ceased to be a director, officer, employee, or agent and
shall inure to the benefit of the heirs, executors, and administrators of such
a person.
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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 8).
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 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
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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 the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that, in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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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 29th day of
January, 1998.
MYLEX CORPORATION
By /s/ Al 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 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 From 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 1/29/98
- - -----------------
Ismael Dudhia
/s/ Albert Montross Director, Chief Executive Officer 1/29/98
- - ------------------- and President
Albert E. Montross
/s/ M. Yaqub Mirza Director 1/29/98
- - ------------------
M. Yaqub Mirza
/s/ Inder M. Singh Director 1/29/98
- - ------------------
Inder M. Singh
/s/ Richard Love Director 1/29/98
- - ------------------
Richard Love
/s/ Stephen Mc Kenzie Director 1/29/98
- - ---------------------
Stephen McKenzie
/s/ Walter Wilson Director 1/29/98
- - ---------------------
Walter Wilson
/s/ Colleen Gray Vice President Finance and 1/29/98
- - --------------------- Chief Financial Officer
Colleen Gray
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Exhibit Index
Exhibit Sequentially
Number Numbered Page
- - ------- -------------
4.1 1993 Stock Option Plan, as amended, 10 - 26
5.1 Opinion of counsel as to legality of 27 - 28
securities being registered.
23.1 Consent of Independent Auditors. 29
23.2 Consent of Counsel (contained in Exhibit 5.1) 27 - 28
25.1 Power of Attorney 8
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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 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
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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;
(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.
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(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.
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 4,825,000 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
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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 16b-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 Rule 16b-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.
(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
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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;
(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 Incentive Stock Options may only be granted to
Employees. Each Option shall be designated in the written option agreement as
either an Incentive Stock Option or a Nonstatutory Stock Option. 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. Nothing in this Plan shall be construed to prevent an
Outside Director from declining to receive an Option under this Plan.
(i) 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, 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"). The terms of the First
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;
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(C) the exercise price per share of the Option shall
be 100% of the Fair Market Value on the date of grant of the
Option; and
(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.
(ii) Three years following the initial appointment or election of an
Outside Director, 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 "Second Option"). 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 the Option shall
be 100% of the Fair Market Value on the date of grant of the
Option; and
(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.
(iii) Eight years following the initial appointment or election
of an Outside Director, 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 "Third Option"). The terms of the Third
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 the Option shall
be 100% of the Fair Market Value on the date of grant of the
Option; and
(D) the Option shall become exercisable in installments
cumulatively with respect to one forty-eighth (1/48th) of the
Optioned Stock on the last day of each month following the date
of grant.
6. LIMITATIONS.
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(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.
(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 herein, no person may
he 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
(vi) 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:
(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
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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 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.
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(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.
(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 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. Fur 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.
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<PAGE>
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.
(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
20
<PAGE>
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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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 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.
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<PAGE>
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.
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
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<PAGE>
(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, 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 least 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 least 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
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<PAGE>
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 exercised 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.
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
entirety 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
Signature By:
Its:
Print Name
Address: Address:
- - -------- --------
34551 Ardenwood Blvd.
Fremont, CA 94555
<PAGE>
EXHIBIT 5.1
January 29, 1998
Mylex Corporation
34551 Ardenwood Boulevard
Fremont, CA 94555
REGISTRATION STATEMENT ON FORM S-8/A
MYLEX CORPORATION
Ladies and Gentlemen:
We are acting as special counsel to Mylex Corporation, a Delaware corporation
(the "Company"), in connection with the proposed registration by the Company
of 1,900,000 shares (the "shares") of its Common Stock, par value $.01 per
share (the "Common Stock"), pursuant to a Registration Statement on Form S-8/A,
Post-Effective Amendment No. 3, filed with the Securities and Exchange
Commission (the "Commission") on the date hereof under the Securities Act of
1933, as amended (the "Act") (such Registration Statement, as amended or
supplemented, is hereinafter referred to as the "Registration Statement"). The
Shares represent additional shares reserved for issuance by the Company under
the Company's 1993 Stock Option Plan as amended (the "Stock Plan").
In that connection we have examined such corporate proceedings,
documents, records and matters of law as we have deemed necessary to enable us
to render this opinion, and we have relied upon the opinions of Wilson,
Sonsini, Goodrich & Rosati with respect to shares of Common Stock issued and to
be issued pursuant to the Company's stock option plans and subject to the
Company's Registration Statement on Form S-8 with respect to those plans, as
amended from time to time.
For purposes of this opinion, we have assumed the authenticity of all documents
submitted to us as originals, the conformity to the originals of all documents
submitted to us as copies and the authenticity of the originals of all
documents submitted to us as copies. We have also assumed the legal capacity
of all natural persons, the genuineness of the signatures of persons signing
all documents in connection with which this opinion is rendered, the authority
of such persons signing on behalf of the parties thereto, other than the
Company, and the due authorization, execution and delivery of all documents by
the parties thereto other than the Company. AS to any facts material to the
opinions expressed herein, we have relied upon the statements and
representations of officers and other representations of the Company and
others.
Our opinion expressed below is subject to the qualifications that we express no
opinion as to the applicability of 7 compliance with, or effect of (i) any
bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or other similar law affecting the
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<PAGE>
enforcement of creditors' rights generally; (ii) general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law); (iii) public policy considerations which may limit the
rights of parties to obtain certain remedies; and (iv) any laws except the
internal laws of the State of California and the federal law of the United
States of America.
We hereby consent to the filing of this opinion with the Commission as Exhibit
5.1 to the Registration Statement. In giving this consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission,
We do not find it necessary for the purposes of this opinion, and accordingly
we do not purport to cover herein, the application of the securities or "Blue
Sky" laws of the various states to the issuance and sale of the Shares.
This opinion is limited to the specific issues addressed herein, and no opinion
may be inferred or implied beyond that expressly stated herein. We assume no
obligation to revise or supplement this opinion should the present laws of the
States of California or the federal law of the United States be changed by
legislative action, judicial decision or otherwise.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Very truly yours,
/s/ BROWN & BAIN, P.A.
----------------------
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EXHIBIT 23.1
The Board of Directors Mylex Corporation:
We consent to incorporation by reference in the registration statement on Form
S-8 of Mylex Corporation and subsidiaries of our reports dated January 29,
1997, except as to Note 13 which is as of February 10, 1997, relating to the
consolidated balance sheets of Mylex Corporation and subsidiaries as of
December 31, 1996 and 1995, 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, 1996, and all related schedules, which
reports appear in the December 31, 1996, annual report on Form 10-K of Mylex
Corporation.
/s/ KPMG Peat Marwick LLP
- - -------------------------
January 29, 1998
