<PAGE>
As filed with the Securities and Exchange Commission on June 3, 1999
Registration Statement No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------
MYLEX CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 59-2291597
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
34551 ARDENWOOD BOULEVARD
FREMONT, CALIFORNIA 94655
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
1998 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
COLLEEN GRAY
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
34551 ARDENWOOD BOULEVARD
FREMONT, CALIFORNIA 94655
(510) 796-6100
(NAME, ADDRESS AND TELEPHONE
NUMBER OF AGENT FOR SERVICE)
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed Proposed
Maximum maximum
Title of securities to Amount to be offering price aggregate offering Amount of
be registered registered (1) per share (2) price (2) registration fee
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------
Common Stock 500,000 Shares $ 4.34 $ 2,170,000 $ 603.26
- ---------------------------------------------------------------------------------------------------
</TABLE>
(1) There is also being registered hereunder such additional undetermined
number of shares of Common Stock as may be issued from time to time as a
result of the antidilution provisions of the Plan.
(2) Estimated solely for purposes of calculation of the registration fee
pursuant to Rule 457(h)(1) and (c). The maximum aggregate offering price
is based on 85% of $5.11, the average of the high and low prices of
the Common Stock of Mylex Corporation as reported for May 28, 1998,
on the National Market System of the National Association of Securities
Dealers, Inc. Automated Quotation System.
- --------------------------------------------------------------------------------
<PAGE>
INTRODUCTION
This Registration Statement on Form S-8 is filed by Mylex Corporation, a
Delaware corporation (the "Company"), relating to shares of its common stock
(the "Common Stock") issuable to eligible employees of the Company or any
subsidiary of the Company pursuant to the Company's 1998 Employee Stock
Purchase Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION.*
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I of Form S-8 to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"),
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which previously have been filed by the Company
with the Securities and Exchange Commission (the "Commission"), are incorporated
herein by reference and made a part hereof:
(i) The Company's annual report an Form 10-K for the year ended
December 26, 1998;
(ii) All other reports filed pursuant to 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 referred to in (i) above; and
(iii) 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.
All reports and other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Registration Statement end prior to the filing of a post-effective amendment
hereto, which indicates that all securities offered hereunder have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
For purposes of this Registration Statement. any statement contained in a
document incorporated or deemed to be incorporated herein by reference shall be
deemed to be modified or superseded to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed to
be incorporated herein by reference modifies or supersedes such statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
2
<PAGE>
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The description of the Indemnification of directors end officers required
by Item 702 of Regulation S-K contained in Item 6 (Indemnification of Directors
and Officers) of Part II of Post-Effective Amendment No. 3 to the Company's
Registration Statement on Form S-8 (Registration Statement No. 333-08974) is
incorporated herein by reference and made a part hereof.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
3.1(1) Articles of Incorporation of the Company, as amended to date.
3.2(2) By-Laws of the Company.
4.1 1998 Employee Stock Purchase Plan.
5.1 Opinion of Legal Counsel (relating to legality of securities
being registered).
23.1 Consent of Independent Auditors.
23.2 Consent of Legal Counsel (included in Exhibit 5.1 hereto).
24.1 Power of Attorney (contained on signature page hereto).
- -------------------------
(1) Filed as an exhibit to Registrant's Annual Report on Form 10-K, for
period ended December 31, 1996, and incorporated herein by reference.
(2) Filed as an exhibit to Registrant's Annual Report on Form 10-K, for
period ended December 31, 1997, and incorporated herein by reference.
3
<PAGE>
Item 9. UNDERTAKINGS.
(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:
(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 thereof) which, individually or in the
aggregate, represent 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.
4
<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 1st day of
June, 1999.
MYLEX CORPORATION
By: /s/ Colleen Gray
--------------------------
Colleen Gray
Vice President and
Chief Financial Officer
Each person whose signature appears below constitutes and appoints Al
Montross and Colleen Gray, and each or either of them, his true and lawful
attorney-in-fact and agent, each with full power of substitution and
resubstitution, for him 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.
Signature Title Date
--------- ----- ----
/s/ Al Montross President, Chief Executive June 1, 1999
- ---------------------- Officer, and Director (Principal
Al Montross Executive Officer)
/s/ Colleen Gray Vice President and Chief Officer June 1, 1999
- ---------------------- Financial (Principal Financial Officer
Colleen Gray and Principal Accounting Officer)
/s/ Ishmael Dudhia
- ---------------------- Director June 1, 1999
Ishmael Dudhia
/s/ Stephen McKenzie
- ---------------------- Director June 1, 1999
Stephen McKenzie
- ---------------------- Director June 1, 1999
Dr. M. Yaqub Mirza
/s/ Dr. Inder M. Singh
- ---------------------- Director June 1, 1999
Dr. Inder M. Singh
/s/ Walter Wilson
- ---------------------- Director June 1, 1999
Walter Wilson
5
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description
- ----------- -----------
3.1(1) Articles of Incorporation of the Company,
as amended to date
3.2(2) By-Laws of the Company.
4.1 1998 Employee Stock Purchase Plan
5.1 Opinion of Legal Counsel (relating to
legality of securities being registered).
23.1 Consent of Independent Auditors.
23.2 Consent of Legal Counsel (included in
Exhibit 5.1 hereto).
24.1 Power of Attorney (contained on signature
page hereto).
- -------------------------
(1) Filed as an exhibit to Registrant's Annual Report on Form 10-K, for
period ended December 31, 1996, and incorporated herein by reference.
(2) Filed as an exhibit to Registrant's Annual Report on Form 10-K, for
period ended December 31, 1997, and incorporated herein by reference.
6
<PAGE>
Exhibit 4.1
MYLEX CORPORATION
1998 EMPLOYEE STOCK PURCHASE PLAN
The Mylex Corporation 1998 Employee Stock Purchase Plan (the "Plan")
shall be established and operated in accordance with the following terms and
conditions.
1. DEFINITIONS:
As used in the Plan the following terms shall have the meanings set forth
below:
(a) "BOARD" means the Board of Directors of the Company.
(b) "CODE" means the Internal Revenue Code of 1986, as amended.
(c) "COMMITTEE" means the committee appointed by the Board to
administer the Plan, as described in Section 4 below.
(d) "COMMON STOCK" means the Common Stock of the Company.
(e) "COMPANY" means Mylex Corporation, a Delaware corporation.
(f) "CONTINUOUS EMPLOYMENT" means the absence of any interruption or
termination of service as an Employee with the Company and/or its
Participating Subsidiaries. Continuous Employment shall not be considered
interrupted in the case of a leave of absence agreed to in writing by the
Company, provided that such leave is for a period of not more than sixty (60)
days or reemployment upon the expiration of such leave is guaranteed by
contract or statute.
(g) "ELIGIBLE COMPENSATION" means, with respect to each Participant
for each pay period, the full salary and wages paid to such Participant by
the Company or a Participating Subsidiary, including commissions, bonuses and
overtime pay. Except as otherwise determined by the Committee, "Eligible
Compensation" does not include:
(i) any amounts contributed by the Company or a
Participating Subsidiary to any pension plan or plan of deferred
compensation;
(ii) any automobile or relocation allowance (or reimbursement
for any such expenses);
(iii) any amounts paid as a starting bonus or finder's fee;
(iv) any amounts realized from the exercise of qualified or
non-qualified stock options;
(v) any amounts paid by the Company or a Participating
Subsidiary for other fringe benefits, such as health care,
hospitalization and group life insurance benefits, or perquisites, or
paid in lieu of such benefits or perquisites, such as cash-out of credit
generated under a plan qualified under Code Section 125;
<PAGE>
(vi) other similar forms of extraordinary compensation; or
(vii) any Participant's commissions, bonus or overtime pay to
the extent such Participant has elected to exclude, in a writing
acceptable to the Committee, such compensation from his or her Eligible
Compensation.
(h) "ELIGIBLE EMPLOYEE" means an Employee who is eligible to
participate in the Plan, as described in Section 5 below.
(i) "EMPLOYEE" means any person, including an officer, who is
customarily employed for at least twenty (20) hours per week and more than
five (5) months in a calendar year by the Company or one of its Participating
Subsidiaries.
(j) "ENROLLMENT DATE" means December 16, 1998, for the first
Offering Period under the Plan and, thereafter, the first day of each
Offering Period.
(k) "EXERCISE DATE" means the last Trading Day of each Offering
Period.
(l) "EXERCISE PRICE" means the price per share of shares offered in
a given Offering Period determined as provided in Section 10 below.
(m) "FAIR MARKET VALUE" means, with respect to a share of Common
Stock as of any date, the last sale price of such Common Stock on the
NASDAQ-NMS on such date, as reported in the Wall Street Journal. In the
event that such price is not available for an Enrollment Date or an Exercise
Date, the Fair Market Value of a share of Common Stock on such date shall be
the last sale price of a share of the Common Stock on the NASDAQ-NMS on the
last business day prior to such date or such other amount as may be
determined by the Committee by any fair and reasonable means.
(n) "NASDAQ-NMS" means the National Association of Securities
Dealers, Inc. Automated Quotation National Market System.
(o) "OFFERING PERIOD" means the period during which an option
granted pursuant to the Plan may be exercised. Except as modified in
accordance with the provisions of Section 6 below, each offering period shall
be approximately six (6) months in duration. A new Offering Period shall
begin on the first Trading Day on or after each June 1 and December 1
(December 16, 1998, for the first Offering Period) and ending on the last
Trading Day in the period on or before November 30 or May 31.
(p) "PARTICIPANT" means an Eligible Employee who has elected to
participate in the Plan by filing an enrollment agreement with the Company,
as provided in Section 7 below.
(q) "PARTICIPATING SUBSIDIARY" means any Subsidiary other than a
Subsidiary excluded from participating in the Plan by the Committee, in its
sole discretion.
(r) "PLAN" means this Mylex Corporation 1998 Employee Stock Purchase
Plan.
(s) "SUBSIDIARY" means any corporation, domestic or foreign, of
which the Company owns, directly or indirectly, not less than 50% of the
total combined voting power of all classes
2
<PAGE>
of stock or other equity interests and that otherwise qualifies as a
"subsidiary corporation" within the meaning of Section 424(f) of the Code or
any successor thereto.
(t) "Trading Day" shall mean a day on which national stock exchanges
and the NASDAQ System are open for trading.
(u) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
2. PURPOSE OF THE PLAN
The purpose of the Plan is to provide present and future employees of
the Company and its Participating Subsidiaries an incentive in the
performance of their services by giving them an opportunity to acquire a
proprietary interest (or increase an existing proprietary interest) in the
Company through the purchase of Common Stock and to profit from increases in
the value of the Common Stock. It is the intention of the Company that the
Plan qualify as an "employee stock purchase plan" under Section 423 of the
Code. Accordingly, the provisions of the Plan shall be administered,
interpreted and construed in a manner consistent with the requirements of
that section of the Code.
3. SHARES RESERVED FOR THE PLAN
There shall be reserved for issuance and purchase by Employees under the
Plan an aggregate of 500,000 shares of Common Stock, subject to adjustment as
provided in Section 15 below. Shares of Common Stock, subject to the Plan may
be newly issued shares or shares reacquired in private transactions or open
market purchases. If and to the extent that any right to purchase reserved
shares shall not be exercised by any Employee for any reason or if such right
to purchase shall terminate as provided herein, shares that have not been so
purchased hereunder shall again become available for the purposes of the Plan
unless the Plan shall have been terminated, but all shares sold under the
Plan, regardless of source, shall be counted against the limitation set forth
above.
4. ADMINISTRATION OF THE PLAN
(a) The Plan shall be administered by a Committee appointed by, and
which shall serve at the pleasure of, the Board. However, the Board may
elect to function as the Committee. The Committee shall consist of not less
than two members of the Board who are not officers or employees of the
Company or of any of its Subsidiaries. The Committee shall have authority to
interpret the Plan, to prescribe, amend and rescind rules and regulations
relating to the Plan, and to make all determinations necessary or advisable
for the administration of the Plan, all of which actions and determinations
shall be final, conclusive and binding on all persons.
(b) The Committee may request advice or assistance or employ such other
persons as it in its absolute discretion deems necessary or appropriate for
the proper administration of the Plan, including, without limitation,
employing a brokerage firm, bank or other financial institution to assist in
the purchase of shares hereunder, delivery of reports or other administrative
aspects of the Plan.
3
<PAGE>
5. ELIGIBILITY TO PARTICIPATE IN THE PLAN
Subject to the provisions of the Plan and any limitations imposed by any
future amendments to Section 423(b) of the Code (or successor provisions),
any person who, as of an Enrollment Date, is an Employee of the Company or a
Participating Subsidiary (after it becomes a Participating Subsidiary) shall
be eligible to participate in the Plan for the Offering Period beginning on
that Enrollment Date.
6. OFFERING PERIODS
Shares shall be available for purchase under the Plan during consecutive
Offering Periods, with the first Offering Period commencing on December 16,
1998, and, thereafter, with a new Offering Period commencing on each June 1
and December 1 during the term of the Plan, or as otherwise determined by the
Committee. The Committee shall have the power to change the duration of the
Offering Periods, after the first Offering Period, from time to time, without
shareholder approval if such change is announced to all Eligible Employees at
least fifteen (15) days prior to the scheduled beginning of the first
Offering Period to be so affected.
7. ELECTION TO PARTICIPATE IN THE PLAN
(a) Each Eligible Employee may elect to participate in the Plan with
respect to an Offering Period by completing an enrollment agreement in the
form provided by the Company and filing such enrollment agreement with the
Company prior to the applicable Enrollment Date, unless another time for
filing the enrollment form with respect to a given Offering Period is set by
the Committee.
(b) All Participant purchases pursuant to the Plan shall be made
only by the proceeds of payroll deductions. Payroll deductions for a
Participant shall commence on the first payroll date following his or her
Enrollment Date and shall end on the last payroll date in the applicable
Offering Period, unless sooner terminated by the Participant as provided in
Section 12 below.
(c) Unless an Eligible Employee elects otherwise prior to the
Enrollment Date for any Offering Period by submitting to the Company a form
provided by the Company for such purpose, such Eligible Employee, if he or
she is participating in the immediately preceding Offering Period (the "Prior
Offering Period") as of such Enrollment Date, shall be deemed to have (i)
elected to participate in such Offering Period, and (ii) authorized the same
payroll deduction for such Offering Period as was in effect for such Eligible
Employee, as of such Enrollment Date, for the Prior Offering Period.
(d) The Committee, in its discretion, may terminate the
participation of all Participants in any Offering Period as of the last day
of any Offering Period (a "Termination Date") and, upon the occurrence of
such a termination, such Participant shall be automatically enrolled, as
described below, in the new Offering Period commencing immediately following
such Termination Date if the Exercise Price determined as of the Enrollment
Date for such new Offering Period is lower than the Exercise Price determined
as of the Enrollment Date of the Offering Period for which the Participants'
participation is being terminated. In such event, each of such Participants
shall be deemed for purposes of this Plan to have (i) elected to participate
in such new Offering Period, and (ii) authorized the same payroll deduction
for
4
<PAGE>
such new Offering Period as was in effect for such Participant immediately
prior to the Termination Date.
8. PAYROLL DEDUCTIONS
(a) At the time a Participant files the enrollment agreement with
respect to an Offering Period, the Participant shall authorize payroll
deductions to be made on each payroll date during the Offering Period in an
amount of from 1% to 10% of the Eligible Compensation which the Participant
receives on such payroll date. The amount of such payroll deductions shall
be a whole percentage (i.e., 1%, 2%, 3%, etc.) of the Participant's Eligible
Compensation.
(b) All payroll deductions made for a Participant shall be deposited
in the Company's general corporate account and shall be credited to the
Participant's account under the Plan. No interest shall accrue or be
credited with respect to the payroll deductions of a Participant under the
Plan. A Participant may not make any additional payments into such account.
All payroll deductions received or held by the Company under the Plan may be
used by the Company for any corporate purpose, and the Company shall not be
obligated to segregate such payroll deductions.
(c) A Participant may discontinue participation in the Plan as
provided in Section 12 below. A Participant may at any time, but no more
than once, during an Offering Period reduce or increase (subject to the
limitations of Section 8(a) above) the rate of his or her payroll deductions
by completing and filing with the Company a change notice in the form
provided by the Company. A Participant may suspend his or her payroll
deductions in any Offering Period and may recommence payroll deductions,
effective the first date of any subsequent Offering Period, by completing and
filing with the Company such change notice. Any such increase or reduction
in the rate of a Participant's payroll deductions and any such suspension
shall be effective as of first pay period ending at least ten (10) days after
the Participant files the change notice with the Company.
9. GRANT OF OPTIONS
(a) On the Enrollment Date of each Offering Period, subject to the
limitations set forth in Sections 3 and 9(b) hereof, each Eligible Employee
shall be granted an option to purchase on the Exercise Date of each Offering
Period (at the Exercise Price as of such Exercise Date determined as provided
in Section 10 below) up to a number of shares of the Common Stock determined
by dividing such Employee's payroll deductions accumulated during the
Offering Period ending on such Exercise Date by the Exercise Price (as
determined in accordance with Section 10 below); provided that the number of
shares subject to the option for each Offering Period shall not exceed 1,250
(subject to the adjustment as provided in Section 15 below).
(b) Notwithstanding any provision of the Plan to the contrary, no
Employee shall be granted an option under the Plan (i) if, immediately after
the grant, such Employee (or any other person whose stock would be attributed
to such Employee pursuant to Section 424(d) of the Code) would own stock
and/or hold outstanding options to purchase stock possessing 5% or more of
the total combined voting power or value of all classes of stock of the
Company or of any Subsidiary of the Company, or (ii) which permits such
Employee's rights to purchase Common Stock under all employee stock purchase
plans of the Company and its Subsidiaries,
5
<PAGE>
including, without limitation, this Plan, to accrue at a rate which exceeds
$25,000 of the Fair Market Value of such stock (determined at the time such
option is granted) for each calendar year in which such option is outstanding
at any time.
10. EXERCISE PRICE
The Exercise Price of each of the shares in each Offering Period shall
be the lower of (a) 85% of the Fair Market Value of a share of the Common
Stock on the applicable Enrollment Date, or (b) 85% of the Fair Market Value
of a share of the Common Stock on the applicable Exercise Date.
11. EXERCISE OF OPTIONS
Unless a Participant withdraws from the Plan as provided in Section 12
below, the Participant's option for the purchase of shares of Common Stock
will be exercised automatically on the Exercise Date of each Offering Period,
and the maximum number of full shares of Common Stock subject to such option
will be purchased for the Participant, at the applicable Exercise Price, with
the accumulated payroll deductions in the Participant's account. Any amount
remaining in the Participant's account after an Exercise Date shall be
returned to the Participant within fifteen (15) days after such Exercise Date.
12. WITHDRAWAL AND TERMINATION OF EMPLOYMENT
(a) A Participant may withdraw all, but not less than all, of the
payroll deductions credited to the Participant's account under the Plan at
any time by giving written notice to the Company on a form provided by the
Company for such purpose. Upon the receipt of such notice of withdrawal from
a Participant, all of such Participant's payroll deductions credited to such
Participant's account will be paid to him or her within fifteen (15) days
after receipt of such notice of withdrawal, such Participant's participation
in the Plan will be automatically terminated, and no further payroll
deductions for the purchase of shares by such Participant will be made.
Payroll deductions will not resume on behalf of a Participant who has
withdrawn from the Plan unless a new enrollment agreement is delivered to the
Company in accordance with Section 7(a) above and, in any event, may not
resume during the Offering Period in which such withdrawal occurs.
(b) Upon termination of a Participant's employment with the Company
and/or its Participating Subsidiaries for any reason, including, without
limitation, retirement or death, prior to the Exercise Date of an Offering
Period, the payroll deductions credited to such Participant's account will be
returned to such Participant or, in the case of death, to such Participant's
estate, within fifteen (15) days after the date of such termination, and such
Participant's options to purchase shares under the Plan will be automatically
terminated as of such date.
(c) In the event an Employee fails to maintain Continuous Employment
for at least twenty (20) hours per week during an Offering Period in which
such Employee is a Participant, such Employee will be deemed to have elected
to withdraw from the Plan, the payroll deductions credited to such Employee's
account will be returned to the Employee within thirty (30) days after the
last day of the week in which such Employee failed to work at least twenty
6
<PAGE>
(20) hours, and the Employee's options to purchase shares under the Plan will
be terminated as of such date.
(d) A Participant's withdrawal from an Offering Period will not have
any effect upon such Participant's eligibility to participate in any
succeeding Offering Period or in any other stock purchase or other benefit
plan adopted by the Company.
13. TRANSFERABILITY
Options to purchase Common Stock granted under the Plan are not
transferable by a Participant other than by will or the laws of descent and
distribution and are exercisable during a Participant's lifetime only by the
Participant.
14. REPORTS
Individual accounts will be maintained for each Participant in the Plan.
Statements of account, as of each Exercise Date, will be given to
participating Employees semi-annually within thirty (30) days after such
Exercise Date. Each statement will set forth the amounts of payroll
deductions, the per share purchase price, the number of shares purchased and
the remaining cash balance, if any, as of the applicable Exercise Date.
15. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
(a) If the outstanding shares of Common Stock are increased or
decreased, or are changed into or are exchanged for a different number or
kind of shares, as a result of one or more reorganizations, restructurings,
recapitalizations, reclassifications, stock splits, reverse stock splits,
stock dividends or the like, upon authorization of the Committee, appropriate
adjustments shall be made in the number and/or kind of shares, and the
per-share option price thereof, which may be issued to any Participant upon
exercise of options granted under the Plan. No fractional share of stock
shall be issued under the Plan pursuant to any adjustment authorized under
the provisions of this Section 15.
(b) In the event of the sale, merger, dissolution or liquidation of
the Company or a sale of all or substantially all of the Company's assets,
any then current Offering Period will terminate immediately prior to the date
on which such proposed action is to be consummated, unless otherwise
determined by the Committee. Upon any such termination, unless otherwise
determined by the Committee, all options to purchase shares will be exercised
automatically, on such date (which shall thus be deemed to constitute an
Exercise Date), to purchase the maximum number of full shares that may be
purchased at the applicable Exercise Price with each Participant's
accumulated payroll deductions.
16. AMENDMENT OF THE PLAN
(a) The Board may at any time, or from time to time, amend the Plan
in any respect; provided, however, that the Plan may not be amended in any
way that will cause rights issued under the Plan to fail to meet the
requirements for employee stock purchase plans provided in Section 423 of the
Code or any successor thereto, including, without limitation, as result of
the failure to obtain shareholder approval of such amendment, if required.
To the extent necessary to comply with Section 423 of the Code (or any other
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applicable law, regulation or stock exchange rule), the Company shall obtain
shareholder approval in such a manner and to such a degree as required.
(b) Without shareholder consent and without regard to whether any
Participant rights may be considered to have been "adversely affected," the
Board (or its Committee) shall be entitled to change the Offering Periods,
limit the frequency and/or number of changes in the amount withheld during an
Offering Period, establish the exchange ratio applicable to amounts withheld
in a currency other than U.S. dollars, permit payroll withholding in excess
of the amount designated by a Participant in order to adjust for delays or
mistakes in the Company's processing of properly completed withholding
elections, establish reasonable waiting and adjustment periods and/or
accounting and crediting procedures to ensure that amounts applied toward the
purchase of Common Stock for each Participant properly correspond with
amounts withheld from the Participant's compensation, and establish such
other limitations or procedures as the Board (or its Committee) determines in
its sole discretion to be advisable and which are consistent with the Plan.
(c) In the event the Board determines that the ongoing operation of
the Plan may result in an unfavorable financial accounting consequence, the
Board may, in its discretion and, to the extent necessary or desirable,
modify or amend the Plan to reduce or eliminate such accounting consequence,
including, but not limited to:
(1) altering the Purchase Price for any Offering Period,
including, without limitation, an Offering Period underway at the time of the
change in Purchase Price;
(2) shortening any Offering Period so that Offering Period
ends on a new Exercise Date, including an Offering Period underway at the
time of such action; and
(3) allocating less than all of the shares of Common Stock
purchased during an Offering Period among the Participants in such Offering
Period.
Such modifications or amendments shall not require shareholder
approval or the consent of any Plan participants.
17. TERMINATION OF THE PLAN
The Plan and all rights of Participants hereunder shall terminate on the
earlier of:
(a) the Exercise Date that Participants become entitled to purchase
a number of shares greater than the number of reserved shares remaining
available for purchase under the Plan; or
(b) November 30, 2008, unless sooner terminated by the Board at any
time in its discretion.
In the event that the Plan terminates under circumstances described in
Section 17(a) above, reserved shares remaining as of the termination date
shall be sold to Participants pro rata, based on the number of shares that
each of the Participants is entitled to purchase as of such termination.
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18. NOTICES
All notices or other communications by a Participant to the Company
under or in connection with the Plan shall be deemed to have been duly given
when received in the form specified by the Company at the location, and by
the person, designated by the Company for the receipt thereof. All notices or
other communications by the Company to a Participant under or in connection
with the Plan shall be deemed to have been duly given when delivered
personally to such Participant or two (2) business days after deposit in the
U.S. mail, addressed to such Participant at the last address for such
Participant provided in writing to the Company.
19. SHAREHOLDER APPROVAL
Continuance of the Plan shall be subject to approval by the Company
within twelve (12) months before or after the date the Plan is adopted by the
Board. If such shareholder approval is obtained at a duly held shareholders'
meeting, it may be obtained by the affirmative vote of the holders of a
majority of the outstanding shares of the Company present, or represented by
proxy, at such meeting and entitled to vote thereon.
20. CONDITIONS UPON ISSUANCE OF SHARES
(a) The Plan, the grant and exercise of options to purchase shares
of Common Stock under the Plan, and the Company's obligation to sell and
deliver shares upon the exercise of options to purchase shares shall be
subject to all applicable federal, state and foreign laws, rules and
regulations, and to such approvals by any regulatory or governmental agency
as may, in the opinion of counsel for the Company, be required. In addition,
no option may be exercised unless (i) a registration statement under the
Securities Act of 1933, as amended, shall at the time of exercise of the
option be in effect with respect to the shares issuable under exercise of the
option, or (ii) in the opinion of counsel to the Company, the shares issuable
upon exercise of the option may be issued in accordance with the terms of an
applicable exemption from the registration requirements of such act. As a
condition to the exercise of an option, the Company may require the
Participant to satisfy any qualifications that may be necessary or
appropriate, to evidence compliance with any applicable law or regulation,
and to make any representations and warranties with respect thereto as may be
requested by the Company.
(b) The Company may make such provisions as it deems appropriate for
withholding by the Company pursuant to federal or state income tax laws of
such amounts as the Company determines it is required to withhold in
connection with the purchase or sale by a Participant of any Common Stock
acquired pursuant to the Plan. The Company may require a Participant to
satisfy any relevant tax requirements before authorizing any issuance of
Common Stock to such Participant.
21. EXPENSES OF THE PLAN
All costs and expenses incurred in administering the Plan shall be paid
by the Company, except that any stamp duties or transfer taxes applicable to
participation in the Plan may be charged to the account of such Participant
by the Company. Any brokerage fees for the purchase or sale of shares by a
Participant shall be borne by the Participant.
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22. NO EMPLOYMENT RIGHTS
The Plan does not, directly or indirectly, create any right for the
benefit of any employee or class of employees to purchase any shares under
the Plan except pursuant to the terms of the Plan, or create in any employee
or class of employees any right with respect to continuation of employment by
the Company. The Plan shall not be deemed to interfere in any way with the
Company's right to terminate, or otherwise modify, an employee's employment
at any time.
23. EFFECT OF THE PLAN
The provisions of the Plan shall, in accordance with its terms, be
binding upon, and inure to the benefit of, all successors of each
Participant, including, without limitation, such Participant's estate and the
executors, administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of such
employee.
24. APPLICABLE LAW
The laws of the State of California shall govern all matters relating to
this Plan except to the extent (if any) superseded by the laws of the United
States.
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Exhibit 5.1
[MYLEX CORPORATION LETTERHEAD]
June 2, 1999
Mylex Corporation
34551 Ardenwood Boulevard
Fremont, California 94655
Re: Registration Statement on Form S-8 for
500,000 Shares of Common Stock pursuant
to the 1998 Employee Stock Purchase Plan
Dear 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 1933, as amended, of 500,000 shares of
the Company's Common Stock (the "Common Stock"), reserved for issuance under the
Company's 1998 Employee Stock Purchase 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 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, will be validly issued, fully paid,
and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Douglas Clark Neilsson
General Counsel
<PAGE>
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 Mylex Corporation 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
June 2, 1999
