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
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Signature
Its
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Printed Name
Address for notices:
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EXHIBIT A
Number of Option Shares:
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Option Price per share:
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Termination Date of Option:
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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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