<PAGE>
As filed with the Securities and Exchange Commission on August 11, 1999
Registration Statement No. 333___
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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)
Delaware 59-2291597
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
34551 Ardenwood Boulevard
Fremont, California 94555
(Address of principal executive offices)
1998 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
COLLEEN GRAY
Vice President and Chief Financial Officer
MYLEX CORPORATION
34551 Ardenwood Boulevard
Fremont, California 94555
(510) 796-6100
(Name, address and telephone number of agent for service)
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of
be Registered Registered(1) Offering Price Per Aggregate Offering Registration Fee
Share (2) Price (2)
<S> <C> <C> <C> <C>
Common Stock 2,000,000 $11.29 $22,570,217 $6,274.52
</TABLE>
(1) The registration also includes an undetermined additional number of shares
of common stock that may be issued from time to time as a result of andilution
provisions of the Plan.
(2) Estimated in accordance with Rule 457(h)(l) and (c) solely for the
purpose of computing the amount of the registration fee. The maximum offering
price is based on (i) the 926,650 options currently outstanding under the
Plan with an exercise price of $ 11.00, with an aggregate exercise price of
$10,193,150; and (ii) the 1,073,350 shares available for grant under the
Plan, multiplied by the average of the high and low prices of the Company's
Common Stock as reported on the NASDAQ National Market System on August 9,
1999, with an aggregate prospective purchase price of $12,377,067.
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<PAGE>
INTRODUCTION
Mylex Corporation, a Delaware corporation (the "Company"), is filing this
Registration Statement on Form S-8 in relation to shares of its common stock
(the "Common Stock") issuable to eligible employees, officers, directors and
consultants of the Company or any subsidiary of the Company under the Company's
1998 Stock Option and Incentive Plan.
PART 1
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION. *
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
PART 2
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
This Registration Statement incorporates by reference the following
documents and information previously filed with the Securities and Exchange
Commission (the "Commission"), each of which constitutes part of this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 26, 1998;
(b) All other reports filed under Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") since the end of the fiscal
year covered by the report described in (a) above;
(c) The description of the Company's Common Stock contained in the
Company's Proxy Statement for its 1996 Annual Meeting of Stockholders under the
caption "Proposal for Reincorporation" and its Form 8-A with respect to its
Rights Agreement, filed with the Commission in June 1997, as amended.
This Registration Statement also will incorporate by reference all
reports and other documents that the Company files under Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Registration Statement
and before the filing of a post-effective amendment to this Registration
Statement that indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold. Each such report and document
shall be deemed
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* In accordance with Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"), and the Note to Part 1 of Form S-8, this
Registration Statement omits information required by Part 1 of Form S-8 to be
contained in the Section 10(a) prospectus.
<PAGE>
to be incorporated by reference in, and to be a part of, this Registration
Statement from the date on which the Company files it with the Commission.
For purposes of this Registration Statement, any statement contained in a
document incorporated or deemed to be incorporated by reference shall be deemed
to be modified or superseded to the extent that a statement contained in this
Registration Statement, or in any other subsequently filed document which also
is or is deemed to be incorporated in this Registration Statement, modifies or
supersedes such statement. Except as so modified or superseded, any such
statement shall not be deemed to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
This Registration Statement incorporates by reference the description of
the Indemnification of Directors and Officers required by Item 702 of Regulation
S-K contained in Item 6 (Indemnification of Directors and Officers) of Part 2 of
Post-Effective Amendment No. 3 to the Company's Registration Statement on Form
S-8, filed with the Commission on February 3, 1998 (Registration Statement No.
333-08974).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
4.1 1998 Stock Option and Incentive Plan.
4.2 Form of Incentive 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 signature page)
</TABLE>
ITEM 9. UNDERTAKING.
(a) 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:
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<PAGE>
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment) which, individually or in the aggregate,
represents a fundamental change in the information set forth in the Registration
Statement; and
(iii) 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference 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.
(b) The undersigned Registrant hereby undertakes 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 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.
(c) 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 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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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 San Jose, State of California, on
the 11th day of August, 1999.
MYLEX CORPORATION
By /s/ Colleen Gray
--------------------------
Colleen Gray
Vice President and
Chief Financial Officer
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<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Al
Montross and Colleen Gray, and each or either of them, as his true and lawful
attorney-in-fact and agent, each with full power of substitution and
resubstitution, for him and her in any and all capacities, to sign any and all
amendments, whether pre-effective or post-effective, to this Registration
Statement and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that either of said attorneys-in-fact and agents, or his or
her substitute or substitutes, may lawfully 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 by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Al Montross President, Chief Executive Officer, August 2, 1999
- -------------------------------------- and Director (Principal Executive
Al Montross Officer)
/s/ Colleen Gray Vice President and Chief Officer August 2, 1999
- -------------------------------------- Financial (Principal Financial
Colleen Gray Officer and Principal Accounting
Officer)
/s/ Ismael Dudhia Director August 2, 1999
- --------------------------------------
Ismael Dudhia
/s/ Stephen McKenzie Director August 2, 1999
- --------------------------------------
Stephen McKenzie
/s/ Dr. M. Yaqub Mirza Director August 2, 1999
- --------------------------------------
Dr. M. Yaqub Mirza
/s/ Dr. Inder M. Singh Director August 2, 1999
- --------------------------------------
Dr. Inder M. Singh
/s/ Walter Wilson Director August 2, 1999
- --------------------------------------
Walter Wilson
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 1998 Stock Option and Incentive Plan
4.2 Form of Incentive Stock Option Agreement
5.1 Opinion of Legal Counsel as to legality of securities being registered
23.1 Consent of Independent Auditors
23.2 Consent of Legal Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (see signature page)
</TABLE>
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<PAGE>
EXHIBIT 4.1
MYLEX CORPORATION
1998 STOCK OPTION AND INCENTIVE PLAN
Section 1. PURPOSE OF PLAN
The purpose of this 1998 Stock Option and Incentive Plan ("Plan") of
Mylex Corporation, a Delaware corporation (the "Company"), is to enable the
Company to attract, retain and motivate its employees and consultants and its
non-employee directors, and further align their interests with those of the
stockholders of the Company, by providing for or increasing the proprietary
interests of such persons in the Company.
Section 2. PERSONS ELIGIBLE UNDER PLAN
Any person who is an employee, director or consultant of the Company or
any of its subsidiaries (a "Participant") shall be eligible to be considered for
the grant of Awards (as hereinafter defined) hereunder. Any director of the
Company who is not an employee of the Company or any of its subsidiaries (a
"Non-employee Director") shall automatically receive Non-employee Director
Options (as hereinafter defined) pursuant to Section 4 hereof.
Section 3. AWARDS
(a) The Committee (as hereinafter defined), on behalf of the Company,
is authorized under this Plan to enter into any type of arrangement with a
Participant that is not inconsistent with the provisions of this Plan and that,
by its terms, involves or might involve the issuance of (i) shares of common
stock of the Company ("Common Shares"), or (ii) a right or interest with an
exercise or conversion privilege at a price related to the Common Shares or with
a value derived from the value of the Common Shares, which right or interest
may, but need not, constitute a Derivative Security (as such term is defined in
Rule 16a-1 promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as such rule may be amended from time to time). The
entering into of any such arrangement is referred to herein as the "grant" of an
"Award."
(b) Awards are not restricted to any specified form or structure and
may include, without limitation, sales or bonuses of stock, restricted stock,
stock options, reload stock options, stock purchase warrants, other rights to
acquire stock, securities convertible into or redeemable for stock, stock
appreciation rights, limited stock appreciation rights, phantom stock, dividend
equivalents, performance units or performance shares, and an Award may consist
of one such security or benefits or two or more of them in tandem or in the
alternative. The terms upon which an Award is granted shall be evidenced by a
written agreement executed by the Company and the Participant to whom such Award
is granted.
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<PAGE>
(c) Awards may be issued, and Common Shares may be issued pursuant to
an Award, for any lawful consideration as determined by the Committee,
including, without limitation, services rendered by the recipient of such Award.
(d) Subject to the provisions of this Plan, the Committee, in its sole
and absolute discretion, shall determine all of the terms and conditions of each
Award granted under this Plan, which terms and conditions may include, among
other things:
(i) provisions permitting the Committee to allow the recipient
of such Award, including any recipient who is a director or officer of
the Company, to pay the purchase price of the Common Shares or other
property issuable pursuant to such Award, or such recipient's tax
withholding obligation with respect to such issuance, in whole or in
part, by any one or more of the following:
(A) the delivery of cash;
(B) the delivery of other property deemed acceptable by
the Committee;
(C) the delivery of previously owned shares of capital
stock of the Company valued at Fair Market Value, as defined
below, including "pyramiding";
(D) a reduction in the amount of Common Shares or other
property otherwise issuable pursuant to such Award; or
(E) the delivery of a promissory note, the terms and
conditions of which shall be determined by the Committee;
(ii) provisions conditioning or accelerating the receipt of
benefits pursuant to such Award, either automatically or in the
discretion of the Committee, upon the occurrence of specified events,
including, without limitation, a change of control of the Company, an
acquisition of a specified percentage of the voting power of the Company,
the dissolution or liquidation of the Company, a sale of substantially
all of the property and assets of the Company or an event of the type
described in Section 8 hereof;
(iii) provisions specifying the exercise or settlement price for
any option, stock appreciation right or similar Award, or specifying the
method by which such price is determined, provided that the exercise or
settlement price of any option, stock appreciation right or similar Award
that is intended to qualify as "performance based compensation" for
purposes of Section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"), shall be not less than the Fair Market Value (as
hereinafter defined) of the underlying Common Shares on the date such
Award is granted;
(iv) provisions relating to the exercisability and/or vesting of
Awards, lapse and non-lapse restrictions upon the Common Shares obtained
or obtainable under
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<PAGE>
Awards or under the Plan and the termination, expiration and/or
forfeiture of Awards; or
(v) provisions required in order for such Award to qualify as
an incentive stock option under Section 422 of the Code (an "Incentive
Stock Option").
(e) For purposes of this Plan, the "Fair Market Value" of a Common
Share or other security on any date (the "Determination Date") shall be equal to
the closing price per Common Share or unit of such other security on the
business day immediately preceding the Determination Date, as reported in The
Wall Street Journal, Western Edition, or, if no closing price was so reported
for such immediately preceding business day, the closing price for the next
preceding business day for which a closing price was so reported, or, if no
closing price was so reported for any of the 30 business days immediately
preceding the Determination Date, the average of the high bid and low asked
prices per Common Share or unit of such other security on the business day
immediately preceding the Determination Date on a national securities exchange
or on the National Association of Securities Dealers, Inc. Automated Quotation
System ("NASDAQ"), or, if the Common Shares are not traded on a national
securities exchange or quoted on NASDAQ or such other system then in use on such
immediately preceding business day, the average of the closing bid and asked
prices on such day as.furnished by a professional market maker making a market
in the Common Shares or such other security selected by the Board.
(f) Notwithstanding Section 3(d), in the event any Award is made while
this Plan is subject to Rule 16b-3 promulgated under the Exchange Act ("Rule
16b-3"), as in effect from time to time:
(i) and Common Shares are issued or issuable under such Award
for any type of consideration other then as a bonus without the payment
of any consideration, the amount of such consideration shall be equal to
the greater of (i) the amount (such as par value) required to be received
by the Company in order to assure compliance with applicable state law,
or (ii) an amount equal to or greater than 50% of the Fair Market Value
of such shares on the date of grant of such Award; and
(ii) except as otherwise provided by the Committee in the
applicable Award agreement and subject to such rules as the Committee may
adopt from time to time, any Award granted under this Plan shall by its
terms be nontransferable by the holder thereof, other than by will or the
laws of descent and distribution, and is exercisable during the
Participant's lifetime only by the Participant or by the Participant's
guardian or legal representative; provided that, with respect to any
transferable Award created by the Committee, the exercise of the Award
and related sale of the underlying securities must be covered by an
effective registration statement of the Company on a Form S-8 or any
successor form, under the Securities Act of 1933, as amended (a
"Registered Security").
(g) All Common Shares issued or issuable under Awards shall be subject
to the terms and restrictions contained in the Certificate of Incorporation of
the Company.
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<PAGE>
Section 4. NON-EMPLOYEE DIRECTOR OPTIONS
(a) Each Non-employee Director (i) upon first being elected as a
director of the Company or appointed by the Board of Directors of the Company
(the "Board") to fill a vacancy on the Board, or (ii) upon all of his or her
options to purchase Common Shares, automatically granted under this Plan or any
other stock option plan of the Company, having all fully vested, after the
effective date of this Plan shall automatically be granted an option (a
"Non-employee Director Option") to purchase 30,000 Common Shares as of the date
on which he or she is so elected or appointed or his or her such options have
fully vested, as the case may be.
(b) Each year, on the first business day following the anniversary of
the date of grant of the initial option, pursuant to Section 4(a) above, to a
Non-employee Director, such Non-employee Director shall automatically be granted
a Non-employee Director Option to purchase an additional 12,000 Common Shares.
(c) If, on any date upon which Non-employee Director Options are to be
automatically granted pursuant to this Section 4, the number of Common Shares
remaining available for options under this Plan is insufficient for the grant to
each Non-employee Director of a Non-employee Director Option to purchase the
entire number of Common Shares specified in this Section 4, then a Non-employee
Director Option to purchase a proportionate amount of such available number of
Common Shares (rounded to the nearest whole share) shall be granted to each
Non-employee Director on such date.
(d) One sixteenth (rounded to the nearest whole share) of the Common
Shares subject to each Non-employee Director Option granted under this Plan
shall become exercisable, cumulatively, on each of the quarterly anniversaries
of the date of grant of such Non-employee Director Option; provided, however,
that such Non-employee Director Option shall become fully exercisable on the
date upon which the optionee thereunder shall cease to be a Non-employee
Director as a result of death or total disability (as defined in Section
22(e)(3) of the Code).
(e) Each Non-employee Director Option granted under this Plan shall
expire upon the first to occur of the following
(i) The first anniversary of the date upon which the optionee
shall cease to be a Non-employee Director as a result of his or her death
or total disability (as defined in Section 22(e)(3) of the Code);
(ii) The 90th day after the date upon which the optionee shall
cease to be a Non-employee Director for any reason other than his or her
death or total disability (as defined in Section 22(e)(3) of the Code);
or
(iii) The tenth anniversary of the date of grant of such
Non-employee Director Option.
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<PAGE>
(f) Each Non-employee Director Option shall have an exercise price
equal to the aggregate Fair Market Value, on the date of grant of such option,
of the Common Shares subject thereto.
(g) Payment of the exercise price of any Non-employee Director Option
granted under this Plan shall be made in full in cash concurrently with the
exercise of such Non-employee Director Option; provided, however, that, in the
discretion of the Board, the payment of such exercise price may instead be made,
in whole or in part;
(i) with Common Shares delivered concurrently with such
exercise (such shares to be valued on the basis of the Fair Market Value
of such shares on the date of such exercise), provided that the Company
is not then prohibited from purchasing or acquiring Common Shares; and/or
(ii) by the delivery, concurrently with such exercise and in
accordance with Section 220.3(e)(4) of Regulation T promulgated under the
Exchange Act, of a properly executed exercise notice for such
Non-employee Director Option and irrevocable instructions to a broker
promptly to deliver to the Company a specified dollar amount of the
proceeds of a sale of, or a loan secured by, the Common Shares issuable
upon exercise of such Non-employee Director Option.
(iii) by delivery of a promissory note, the terms and conditions
of which shall be determined by the Board.
(h) All outstanding Non-employee Director Options theretofore granted
under this Plan shall become fully exercisable upon the first to occur of the
following (if it occurs at least two years after the date this Plan is approved
by the Board):
(i) immediately prior to the consummation of a reorganization,
merger or consolidation of the Company as a result of which the
outstanding securities of the class then subject to this Plan are
exchanged for or converted into cash, property and/or securities not
issued by the Company:
(ii) the dissolution or liquidation of the Company;
(iii) the sale of all or substantially all of the property and
assets of the Company; or
(iv) the date of dissemination to the stockholders of the
Company of a proxy statement or an information statement disclosing a
change of control of the Company.
(i) Each Non-employee Director Option, except to the extent each of
such option and the underlying Common Shares is a Registered Security, shall be
nontransferable by the optionee other than by will or the laws of descent and
distribution, and shall be exercisable during the optionee's lifetime only by
the optionee or the optionee's guardian or legal representative.
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<PAGE>
(j) Non-employee Director Options are not intended to qualify as
Incentive Stock Options.
(k) The provisions of this Section 4, designating persons eligible to
receive Non-employee Director Options and specifying the amount, exercise price
and timing of grants to Non-employee Directors, shall not be amended more than
once every six months, other than to comport with changes in the Code or the
Employment Retirement Income Security Act of 1974, as amended ("ERISA"), or the
rules thereunder, all as further amended from time to time.
Section 5. STOCK SUBJECT TO PLAN
(a) Subject to adjustment as provided in Section 8(b) hereof, the
aggregate number of Common Shares issued and issuable pursuant to all Awards
(including all Incentive Stock Options) granted under this Plan shall not exceed
2,000,000 at any time. Such maximum number does not include the number of Common
Shares subject to the unexercised portion of any Award granted under this Plan
that expires or is terminated.
(b) The aggregate number of Common Shares subject to Awards granted
during any calendar year to any one Participant (including the number of shares
involved in any Award that has a value derived from the value of Common Shares,
or that expires, is canceled or is repriced) shall not exceed 200,000; provided,
however, that the limitation set forth in this Section 5(b) shall not apply if
such provision is not required in order for Awards to qualify as "performance
based compensation" under Section 162(m) of the Code. Further, such aggregate
number of shares shall be subject to adjustment under Section 8 only to the
extent permitted by Section 162(m) of the Code.
(c) The aggregate number of Common Shares subject to Awards granted
during any calendar year to any Non-employee Director, other than a Non-Employee
Director Option, shall not exceed 20,000.
(d) Subject to adjustment as provided in Section 8(a) hereof, the
aggregate number of Common Shares issued and issuable pursuant to all Incentive
Stock Options granted under this Plan shall not exceed 1,500,000. Such maximum
number does not include the number of Common Shares subject to the unexercised
portion of any Incentive Stock Option Award granted under this Plan that expires
or is terminated.
(e) For purposes of Section 5(a) hereof, the aggregate number of
Common Shares issued and issuable pursuant to Awards granted under this Plan
shall at any time be deemed to be equal to the sum of the following:
(i) the number of Common Shares that were issued prior to such
time pursuant to Awards granted under this Plan, other than Common Shares
that were subsequently reacquired by the Company pursuant to the terms
and conditions of such Awards and with respect to which the holder
thereof received no benefits of ownership such as dividends; plus
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<PAGE>
(ii) the number of Common Shares that were otherwise issuable
prior to such time pursuant to Awards granted under this Plan, but that
were withheld by the Company as payment of the purchase price of the
Common Shares issued pursuant to such Awards or as payment of the
recipient's tax withholding obligation with respect to, such issuance:
plus
(iii) the maximum number of Common Shares that are or may be
issuable at or after such time pursuant to Awards granted under this Plan
prior to such time.
Section 6. DURATION OF PLAN
No Awards shall be made under this Plan after June 30, 2008. Although
Common Shares may be issued after such date pursuant to Awards made prior to
such date, no Common Shares shall be issued under this Plan after June 30, 2018.
Section 7. ADMINISTRATION OF PLAN
(a) This Plan shall be administered by a committee of the Board (the
"Committee"), consisting of two or more directors, each of whom is an "outside
director" (as such term is defined under Section 162(m) of the Code, as amended
from time to time).
(b) Subject to the provisions of this Plan, the Committee shall be
authorized and empowered to do all things necessary or desirable in connection
with the administration of this Plan, including, without limitation, the
following:
(i) adopt, amend and rescind rules and regulations relating to
this Plan;
(ii) determine the persons to whom Awards shall be granted
hereunder;
(iii) grant Awards to Participants and determine the terms and
conditions thereof, including the number of Common Shares issuable
pursuant thereto;
(iv) determine the terms and conditions of the Non-employee
Director Options that are automatically granted hereunder, other than the
terms and conditions specified in Section 4 hereof;
(v) determine whether, and the extent to which, adjustments are
required pursuant to Section 8 hereof;
(vi) grant or amend Awards that provide for acceleration of
vesting upon a reorganization, merger, sale of all or substantially all
of the Company's assets or a change in control of the Company, whether or
not such acceleration is in the discretion of the Committee or the Board;
and
(vii) interpret and construe this Plan and the terms and
conditions of any Award granted hereunder.
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<PAGE>
(c) All decisions, determinations, and interpretations of the
Committee shall be final and conclusive upon any Participant to whom an Award
has been granted and to any other person holding an Award.
(d) The Committee may, in the terms of an Award or otherwise,
temporarily suspend the issuance of Common Shares or Derivative Securities under
an Award if the Committee determines that securities law considerations so
warrant.
Section 8. ADJUSTMENTS
(a) If the outstanding securities of the class then subject to this
Plan are increased, decreased or exchanged for or converted into a different
number or kind of shares or securities as a result of a reorganization, merger,
consolidation, recapitalization, reclassification, stock dividend, stock split,
reverse stock split, spin-off or the like, then, unless the terms of such
transaction shall provide otherwise, the Committee shall make appropriate and
proportionate adjustments in (i) the number and type of shares or other
securities that may be acquired pursuant to Awards, and the exercise purchase
price thereof, theretofore granted under this Plan, and (ii) the maximum number
and type of shares or other securities that may be issued pursuant to Awards
thereafter granted under this Plan.
(b) If the outstanding securities of the class then subject to this
Plan are increased, decreased or exchanged for or converted into cash, property
or a different number or kind of shares or securities, or if cash, property or
shares or securities are distributed in respect of such outstanding securities,
in either case as a result of a reorganization, merger, consolidation,
recapitalization, restructuring, reclassification, dividend (other than a
regular cash dividend) or other distribution, stock split, reverse stock split,
spin-off or the like, or if all or substantially all of the property and assets
of the Company are sold, then, unless the terms of such transaction shall
provide otherwise, the Committee shall make appropriate and proportionate
adjustments in (i) the number and type of shares or other securities or cash or
other property that may be acquired pursuant to Awards, other than Incentive
Stock Options, theretofore granted under this Plan and the exercise or
settlement price of such Awards, (ii) the maximum number and type of shares or
other securities that may be issued pursuant to such Awards thereafter granted
under this Plan, (iii) the aggregate number of Common Shares subject to Awards
granted during any calendar year to any one Participant, and (iv) the limitation
on the number of, and the number of, Common Shares subject to Awards specified
in Section 4 and in Section 5(c), respectively.
Section 9. AMENDMENT AND TERMINATION OF PLAN
The Board may amend or terminate this Plan at any time and in any manner,
provided, however, that no such amendment or termination shall deprive the
recipient, without the consent of such recipient, of any Award theretofore
granted under this Plan, or of any of his or her rights thereunder or with
respect thereto; provided. further, that if an amendment to the Plan would (a)
increase the maximum number of Common Shares that may be issued pursuant to (i)
all Awards granted under this Plan, (ii) all Incentive Stock Options granted
under this Plan, or (iii) Awards of any type granted under this Plan during any
calendar year to any one Participant or Non-employee Director, (b) change the
class of persons eligible to receive
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Awards under the Plan, (c) otherwise materially increase the benefits
hereunder accruing to Participants who are subject to Section 16 of the
Exchange Act in a manner not specifically contemplated herein, or (d) affect
the Plan's compliance with Rule 16b-3 or applicable provisions of the Code,
as amended from time to time, the amendment shall be approved by the
Company's stockholders to the extent required to comply with Rule 16b-3,
Sections 422 and 162(m) of the Code, and other applicable provisions of or
rules under the Code, as amended from time to time. Notwithstanding the
foregoing, the provisions of this Plan designating persons eligible to
receive Non-employee Director Options and specifying the amount, exercise
price and timing of Awards to Non-employee Directors shall not be amended
more than once every six months, other than to comply with changes in the
Code or ERISA, or the rules thereunder, as amended from time to time.
Section 10. EFFECTIVE DATE OF PLAN
This Plan shall be effective as of July 1, 1998, the date upon which it
was approved by the Board; provided, however, that no Common Shares may be
issued under this Plan until it has been approved, directly or indirectly, by
the affirmative votes of the holders of a majority of the Common Shares of the
Company present, or represented, and entitled to vote at a meeting of such
stockholders duly held in accordance with the laws of the State of Delaware.
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EXHIBIT 4.2
STOCK OPTION AGREEMENT
UNDER THE MYLEX CORPORATION
1998 STOCK OPTION AND INCENTIVE PLAN
This Stock Option Agreement (the "Agreement"), is made as of
______________ by and between Mylex Corporation, a Delaware corporation (the
"Company"), and _______________ ("Optionee").
1. GRANT OF OPTION. The Company grants to Optionee an option (the
"Option") to purchase any or all of the number of shares set forth on Exhibit A
(the "Option Shares") of the presently authorized but unissued shares of common
stock of the Company (the "Stock") at the exercise price per share set forth on
Exhibit A (the "Option Price"), subject to the terms and conditions of this
Agreement and the Company's 1998 Stock Option and Incentive Plan (the "Plan"),
which Plan this Agreement incorporates by reference. The number of Option Shares
subject to the Option and the Option Price are subject to adjustment under
certain circumstances, as provided in the Plan.
2. TERM AND EXERCISE OF OPTION. At any time before the termination
date of the Option set forth on Exhibit A (the "Termination Date"), or such
earlier date on which the Option may terminate in accordance with Section 3,
Optionee may exercise any portion of the Option that has become exercisable in
accordance with the vesting schedule set forth on Exhibit A but that has not yet
been exercised. In no event, however, shall the Company be required to issue
fractional shares.
3. EXPIRATION OF OPTION. The Option will expire on the Termination
Date or on an earlier date, in accordance with Section 3(a), (b) or (c).
(a) If Optionee ceases to be a director or bona fide employee
or consultant of the Company or any of its subsidiaries (each, a "Subsidiary")
before the Termination Date, other than by permanent and total disability or
death, Optionee may exercise the Option until the earlier of the ninetieth
(90th) day after cessation of such status or the Termination Date, but only to
the extent that the Option was exercisable under Section 2 at the time of
cessation of such status. If Optionee is unable to act in Optionee's capacity as
a director, employee or consultant of the Company or a Subsidiary because of a
temporary disability, or if Optionee is on a leave of absence for such purpose
or reason as the Board of Directors of the Company (the "Board") or the
Committee (as defined in the Plan) may approve, Optionee shall not be deemed
during the period of any such inability or absence, by virtue of such inability
or absence alone, to have terminated such capacity with the Company or a
Subsidiary, except as the Board or the Committee may otherwise expressly
provide.
(b) If Optionee ceases to be a director or bona fide employee
or consultant of the Company or a Subsidiary by reason of permanent and total
disability before the Termination Date, Optionee may exercise the Option until
the earlier of the one hundred eightieth (180th) day after cessation of such
status or the Termination Date, but only to the extent that the Option was
exercisable under Section 2 at the time of cessation of such status.
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(c) If Optionee dies while serving as a director, employee or
consultant of the Company or a Subsidiary, or within the exercise periods or
periods of absence described in Section 3(a) or (b), the Option may be
exercised, until the earlier of twelve (12) months after Optionee's death or the
Termination Date, by Optionee or Optionee's legal representative, or by the
person(s) to whom Optionee's rights under the Option shall pass by will or by
the applicable laws of descent and distribution, but only to the extent that the
Option was exercisable under Section 2 at the time of Optionee's death.
4. MANNER OF EXERCISE. Optionee may exercise the Option with respect
to all or any part of the Option Shares then subject to such exercise by giving
the Company written notice of such exercise (which shall include, if required by
the Company, such representations and agreements by Optionee as may be required
by any rules that the Board or the Committee may adopt under the Plan). Such
notice shall (a) be signed by Optionee and, if Optionee is married, by
Optionee's spouse, (b) specify the number of Option Shares as to which the
Option is so exercised, and (c) be accompanied by payment of the aggregate
Option Price of such Option Shares in immediately available funds, or, with the
written consent of the Company, (i) previously owned shares of Stock of the
Company, (ii) other property deemed acceptable by the Company, (iii)
documentation acceptable to Company authorizing a reduction in the amount of
Option Shares issuable pursuant to an Award, (iv) in accordance with Section
220.3(e)(4) of Regulation T promulgated under the Securities Exchange Act of
1934, as amended, a properly executed exercise notice for such Option Shares and
irrevocable instructions to a broker promptly to deliver to the Company a
specified dollar amount of the proceeds of a sale or of a loan secured by the
Option Shares issuable upon exercise of the Option, or (v) a promissory note in
such form and bearing such rate of interest and term as the Board or the
Committee shall, in its discretion, establish. Notwithstanding the foregoing,
the Company need not deliver any shares pursuant to Optionee's exercise of the
Option if, in the opinion of counsel for the Company, doing so would violate any
federal or state law or regulation or any applicable requirements of any
national securities exchange or the National Association of Securities Dealers,
Inc. Automated Quotation System. In no event shall the Company be required to
take any affirmative action to comply with any of such laws, regulations or
requirements.
5. OPTIONEE'S OBLIGATIONS. So long as Optionee is a director,
employee or consultant of the Company or a Subsidiary, Optionee shall faithfully
and to the best of his or her ability devote such time (subject to bona fide
absences), energy and skill to the service of the Company or such Subsidiary and
to the promotion of its interests as may be necessary to fulfill Optionee's
obligations to the Company or such Subsidiary, in accordance with the regular
policies and practices of, or any written agreement between Optionee and, the
Company or such Subsidiary. Nothing herein shall limit the right of Optionee or
the Company to terminate Optionee's employment with Company at any time.
6. FINALITY OF DECISIONS. All decisions of the Board or the Committee
relating to any question arising under the Plan or under this Agreement shall be
final and shall bind all parties.
7. TRANSFERABILITY; BINDING EFFECT. The Option may not be transferred
by Optionee in any manner other than by will or the laws of descent and
distribution and may be exercised during Optionee's lifetime only by Optionee or
Optionee's guardian or legal representative. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of any successors or assigns of
the Company or Optionee.
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8. NOTICE. Any notice or other written communication required or
permitted to be given to Company shall be addressed to the Company in care of
its Secretary at the principal executive offices of the Company, and any such
communication to be given to Optionee shall be addressed to Optionee at the
address set forth on the signature page of this Agreement or such other address
as Optionee may designate by notice to Company in accordance with this Section
8. Such notices or other communications shall be hand delivered or sent by
overnight courier service or registered or certified United States mail and
shall be effective upon dispatch.
9. AGREEMENT SUBJECT TO PLAN AND PLAN APPROVAL. This Agreement is
entered into pursuant to and is subject to the provisions of the Plan,
including, without limitation, Section 8 of the Plan dealing with adjustments,
and it is intended to and shall be interpreted in a manner that will comply with
the Plan. In the event of any conflict between any provisions of this Agreement
and the Plan, the provisions of the Plan shall control. This Agreement shall be
effective as of the date of its making as set forth above, subject to approval
of the Plan by shareholders of the Company holding a majority of its voting
power within twelve months before or after the effective date of the Plan. In no
event may the Option be exercised in whole or in part before such approval.
10. TAX TREATMENT. Unless Exhibit A otherwise specifies, the Option is
intended to be eligible for such treatment as an "incentive stock option" under
Section 422 of the Internal Revenue Code of 1986. Whether this Option will
receive such tax treatment will depend, in part, on actions by Optionee after
exercise of this Option. For example, if Optionee disposes of any of the Option
Shares within two years after the date of grant of the Option or within one year
after the date of exercise of the Option with respect to such shares
(collectively, a "Disqualifying Disposition"), Optionee may lose the benefits of
Section 422 with respect to such shares. Other factors not discussed in this
Agreement also may affect the tax consequences of transactions related to the
Option or the Option Shares. Accordingly, the Company makes no representations,
by way of the Plan, this Agreement or otherwise, with respect to the actual tax
effect of the grant or exercise of this Option or the subsequent disposition of
any of the Option Shares. If Optionee makes a Disqualifying Disposition with
respect to any of the Option Shares, Optionee shall provide immediate written
notice to the Company of such disposition, which notice shall specify the
number, exercise price and exercise date of the shares subject to the
Disqualifying Disposition, and the date of disposition.
11. WITHHOLDING TAXES. Optionee agrees, on Optionee's behalf and on
behalf of any of Optionee's permitted transferees, that whenever shares of Stock
are to be issued by reason of the exercise of the Option, Optionee or such other
person who is to receive such shares will remit to the Company, before the
delivery of any certificate or certificates for such shares, any amount
determined by the Company in its discretion to be sufficient to satisfy federal,
state and local withholding tax requirements that the Company determines may be
payable with respect to such exercise.
12. NO RIGHTS AS A SHAREHOLDER. Neither Optionee nor any person
entitled to exercise Optionee's rights in the event of his or her death shall
have any of the rights of a shareholder with respect to the Option Shares except
to the extent the certificates for the Option Shares, or a portion thereof,
shall have issued upon the exercise of this Option.
13. MISCELLANEOUS.
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(a) WAIVER. No waiver of any right or obligation of either
party under this Agreement shall be effective unless such waiver is in writing
and duly executed by the party against which such waiver is being enforced. A
waiver by either party of any of its rights under this Agreement on any occasion
shall not prevent the exercise of the same right on any subsequent occasion or
of any other right at any time.
(b) AMENDMENT OR MODIFICATION. This Agreement may be amended,
altered or modified only by a written instrument duly executed by both parties.
(c) GOVERNING LAW; JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of
California. Any action with respect to this Agreement filed by one party against
the other may only be brought in the Federal District Court for the Northern
District of California or the Superior Court of the State of California located
in Alameda County.
(d) ENTIRE AGREEMENT. This Agreement, along with the Plan,
constitutes the entire understanding of the parties, and supersedes all prior or
contemporaneous agreements of the parties, whether written or oral, with respect
to its subject matter.
OPTIONEE MYLEX CORPORATION
By
- ------------------------------ -----------------------------
Signature
Its
- ------------------------------ ----------------------------
Printed Name
Address for notices:
- ------------------------------
- ------------------------------
- ------------------------------
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EXHIBIT A
Number of Option Shares:
-----------------------
Option Price per share:
-----------------------
Termination Date of Option:
-----------------------
Vesting Schedule:
Notwithstanding the foregoing, this Option shall become fully exercisable
upon the first to occur of the following (if it occurs at least two years after
the date the Board of Directors of the Company approve the Plan):
(i) immediately prior to the consummation of a reorganization,
merger or consolidation of the Company as a result of which the
outstanding securities of the class then subject to the Plan are
exchanged for or converted into cash, property and/or securities not
issued by the Company;
(ii) the dissolution or liquidation of the Company;
(iii) the sale of all or substantially all of the property and
assets of the Company; or
(iv) the date of dissemination to the stockholders of the
Company of a proxy statement or an information statement disclosing a
change of control of the Company.
Incentive Stock Option [ ] or Nonqualified Option [ ]
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Exhibit 5.1
August 10, 1999
Mylex Corporation
34551 Ardenwood Boulevard
Fremont, California 94555
Re: Registration Statement on Form S-8 for
2,000,000 Shares of Common Stock Pursuant to
the 1998 Stock Option and Incentive Plan
Ladies and Gentlemen:
I have examined the Registration Statement on Form S-8 (the "Registration
Statement") to be filed by Mylex Corporation, a Delaware corporation (the
"Company"), with the Securities and Exchange Commission in connection with the
registration under the Securities Act of 1993, as amended, of 2,000,000 shares
of the Company's Common Stock (the "Common Stock"), issued or reserved for
issuance under the Company's 1998 Stock Option and Incentive Plan (the "Plan").
As your counsel, I have examined the Company's Certificate 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 Common Stock under the Plan.
Based upon the foregoing, and in reliance thereon, I am of the opinion
that the shares of Common Stock being offered under the Plan, when issued in
accordance with the provisions of the Plan and the stock option agreements to
which such shares are subject, will be validly issued, fully paid, and
nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Douglas Clark Neilsson
Douglas Clark Neilsson
General Counsel
Mylex Corporation
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Shareholders
Mylex Corporation:
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of our report dated January 26, 1999, relating to the consolidated
balance sheets of Mylex Corporation and Subsidiaries as of December 26, 1998 and
December 27, 1997, and the related consolidated statements of operations,
stockholders' equity and cash flows for each of the years in the three-year
period ended December 26, 1998, which report appears in the 1998 Mylex
Corporation Annual Report to Shareholders and is incorporated by reference in
the December 26, 1998 annual report on Form 10-K of Mylex Corporation, and our
report dated January 26, 1999, on the related financial schedule which appears
in the 1998 annual report on Form 10-K.
/s/ KPMG LLP
Mountain View, California
August 6, 1999
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