Common use of Assumption of Stock Options Clause in Contracts

Assumption of Stock Options. At the Effective Time, each then --------------------------- outstanding Oplink Option, whether or not exercisable at the Effective Time and regardless of the respective exercise prices thereof, will be assumed by Avanex. Each Oplink Option so assumed by Avanex under this Agreement will continue to have, and be subject to, the same terms and conditions set forth in the applicable Oplink Stock Option Plan (and any applicable stock option agreement for such Oplink Option) immediately prior to the Effective Time (including any repurchase rights or vesting provisions), except that (i) each Oplink Option will be exercisable (or will become exercisable in accordance with its terms) for that number of whole shares of Avanex Common Stock equal to the product of the number of shares of Oplink Common Stock that were issuable upon exercise of such Oplink Option immediately prior to the Effective Time multiplied by the Exchange Ratio, rounded down to the nearest whole number of shares of Avanex Common Stock and (ii) the per share exercise price for the shares of Avanex Common Stock issuable upon exercise of such assumed Oplink Option will be equal to the quotient determined by dividing the exercise price per share of Oplink Common Stock at which such Oplink Option was exercisable immediately prior to the Effective Time by the Exchange Ratio, rounded up to the nearest whole cent. Each assumed Oplink Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested as to immediately prior to the Effective Time. As soon as reasonably practicable following the Closing Date, Avanex will issue to each person who holds an assumed Oplink Option a document evidencing the foregoing assumption of such Oplink Option by Avanex.

Assumption of Stock Options. At the Effective TimeDate, each then certain Employee --------------------------- Options outstanding Oplink Optionunder the Vendor's Share Option Plan - 1994 (the "Option ------ Plan"), whether or not exercisable at the Effective Time and regardless of the respective exercise prices thereofotherwise, will shall be assumed by AvanexPurchaser as follows: ---- (i) At the Effective Date, certain Employee Options listed on Schedule A ---------- attached hereto, whether vested or unvested, shall be, in connection with the Transaction, assumed by Purchaser. Each Oplink Employee Option so assumed by Avanex Purchaser under this Agreement will shall continue to have, and be subject to, the same terms and conditions set forth in the applicable Oplink Stock Option Plan (and any applicable stock option agreement for such Oplink Option) immediately prior to the Effective Time (including any repurchase rights or vesting provisions)Plan, except that that: (iA) each Oplink Employee Option will shall be exercisable (or will become exercisable in accordance with its terms) for that number of whole shares of Avanex Common Stock of Purchaser equal to the product of the number of shares of Oplink Common Stock of Vendor that were issuable upon exercise of such Oplink Employee Option immediately prior to the Effective Time Date multiplied by the Exchange Conversion Ratio, as defined in subparagraph (ii) below, rounded down to the nearest whole number of shares of Avanex Common Stock of Purchaser and (iiB) the per share exercise price for the shares of Avanex Common Stock of Purchaser issuable upon exercise of such assumed Oplink Employee Option will shall be equal to the quotient determined by dividing the exercise price per share of Oplink Common Stock of Vendor at which such Oplink Employee Option was exercisable immediately prior to the Effective Time Date by the Exchange Conversion Ratio, rounded up to the nearest whole cent. Each assumed Oplink Option ; and (ii) For the purposes of this Section 2.3, the Conversion Ratio shall be vested immediately equal to the quotient of the fair market value of a share of Common Stock of Vendor (converted to U.S. dollars), $2.61659, divided by the current fair market value of a share of Common Stock of Purchaser, $6.00, which quotient is equal to .436098. It is the intention of the parties that the Employee Options assumed by Purchaser qualify following the Effective Time Date as incentive stock options as defined in Section 422 of the Code to the same percentage of extent that the total number of shares subject thereto Employee Options qualified as it was vested as to incentive stock options immediately prior to the Effective TimeDate. As soon as reasonably practicable Promptly following the Closing Effective Date, Avanex Purchaser will issue to each person who holds holder of an assumed Oplink outstanding Employee Option a document evidencing the foregoing assumption of such Oplink Employee Option by AvanexPurchaser.

Assumption of Stock Options. (a) At the Effective Time, each then --------------------------- unexpired and unexercised option to purchase shares of Inmark Common Stock (an "Inmark Option") granted under the stock option plans and agreements of Inmark outstanding Oplink Option, whether or not exercisable at immediately prior to the Effective Time and regardless of the respective exercise prices thereof, will shall be assumed by AvanexRogue Wave (an "Assumed Option"). Schedule 2.2(a) of the Inmark Disclosure Statement sets forth a true and complete list as of the date hereof of all holders of Inmark Options exercisable to purchase shares of Inmark Common Stock, including the number of shares of Inmark Common Stock subject to such options, a breakdown as between vested and unvested options, the exercise price per share and the term of such options. Each Oplink Inmark Option so assumed by Avanex under this Agreement Rogue Wave will continue to have, and be subject to, substantially the same terms and conditions set forth in the applicable Oplink Stock documents governing such Inmark Option Plan (and any applicable stock option agreement for such Oplink Option) immediately prior to the Effective Time (including any repurchase rights or vesting provisions)Time, except that (iA) each Oplink such Assumed Option will be exercisable (or will become exercisable in accordance with its terms) for that number of whole shares of Avanex Rogue Wave Common Stock equal to the product of the number of shares of Oplink Inmark Common Stock that were issuable upon exercise of purchasable under such Oplink Assumed Option immediately prior to the Effective Time of the Merger multiplied by the Exchange Ratio, rounded down to the nearest whole number of shares of Avanex Rogue Wave Common Stock Stock, and (iiB) the per share exercise price for the shares of Avanex Rogue Wave's Common Stock issuable upon exercise of such assumed Oplink Assumed Option will be equal to the quotient determined obtained by dividing the exercise price per share of Oplink Inmark Common Stock at which such Oplink Inmark Option was exercisable immediately prior to the Effective Time by the Exchange Ratio, rounded rounding up to the nearest whole cent. Each assumed Oplink Option shall be vested immediately following Consistent with the Effective Time as to the same percentage terms of the total number Inmark Options and the documents governing such Inmark Options, the Merger will not terminate or accelerate any Assumed Option (other than an Assumed Option for one holder of an Inmark Option) or any right of exercise, vesting or repurchase relating thereto with respect to shares subject thereto as it was vested as to immediately prior to the Effective Time. As soon as reasonably practicable following the Closing Date, Avanex will issue to each person who holds an assumed Oplink Option a document evidencing the foregoing assumption of Rogue Wave Common Stock acquired upon exercise of such Oplink Option by AvanexInmark Option.

Assumption of Stock Options. At the Effective TimeDate, each then --------------------------- certain Employee Options outstanding Oplink Optionunder the Vendor's Share Option Plan - 1994 (the "Option Plan"), whether or not exercisable at the Effective Time and regardless of the respective exercise prices thereofotherwise, will shall be assumed by AvanexPurchaser as follows: (i) At the Effective Date, certain Employee Options listed on Schedule A attached hereto, whether vested or unvested, shall be, in connection with the Transaction, assumed by Purchaser. Each Oplink Employee Option so assumed by Avanex Purchaser under this Agreement will shall continue to have, and be subject to, the same terms and conditions set forth in the applicable Oplink Stock Option Plan (and any applicable stock option agreement for such Oplink Option) immediately prior to the Effective Time (including any repurchase rights or vesting provisions)Plan, except that that: (iA) each Oplink Employee Option will shall be exercisable (or will become exercisable in accordance with its terms) for that number of whole shares of Avanex Common Stock of Purchaser equal to the product of the number of shares of Oplink Common Stock of Vendor that were issuable upon exercise of such Oplink Employee Option immediately prior to the Effective Time Date multiplied by the Exchange Conversion Ratio, as defined in subparagraph (ii) below, rounded down to the nearest whole number of shares of Avanex Common Stock of Purchaser and (iiB) the per share exercise price for the shares of Avanex Common Stock of Purchaser issuable upon exercise of such assumed Oplink Employee Option will shall be equal to the quotient determined by dividing the exercise price per share of Oplink Common Stock of Vendor at which such Oplink Employee Option was exercisable immediately prior to the Effective Time Date by the Exchange Conversion Ratio, rounded up to the nearest whole cent. Each assumed Oplink Option ; and (ii) For the purposes of this Section 2.3, the Conversion Ratio shall be vested immediately equal to the quotient of the fair market value of a share of Common Stock of Vendor (converted to U.S. dollars), $2.61659, divided by the current fair market value of a share of Common Stock of Purchaser, $6.00, which quotient is equal to .436098. It is the intention of the parties that the Employee Options assumed by Purchaser qualify following the Effective Time Date as incentive stock options as defined in Section 422 of the Code to the same percentage of extent that the total number of shares subject thereto Employee Options qualified as it was vested as to incentive stock options immediately prior to the Effective TimeDate. As soon as reasonably practicable Promptly following the Closing Effective Date, Avanex Purchaser will issue to each person who holds holder of an assumed Oplink outstanding Employee Option a document evidencing the foregoing assumption of such Oplink Employee Option by AvanexPurchaser.

Assumption of Stock Options. At The parties hereto shall take all requisite action so that, at the Effective Time, each then --------------------------- outstanding Oplink Proxim Option, whether or not exercisable at the Effective Time and regardless of the respective exercise prices thereof, will be assumed by AvanexWestern Multiplex. Each Oplink Proxim Option so assumed by Avanex Western Multiplex under this Agreement will continue to have, and be subject to, the same terms and conditions set forth in the applicable Oplink Proxim Stock Option Plan (and any applicable stock option agreement for such Oplink Proxim Option) immediately prior to the Effective Time (including any repurchase rights or vesting provisions), except that (i) each Oplink Proxim Option will be exercisable (or will become exercisable in accordance with its terms) for that number of whole shares of Avanex Western Multiplex Common Stock equal to the product of the number of shares of Oplink Proxim Common Stock that were issuable upon exercise of such Oplink Proxim Option immediately prior to the Effective Time multiplied by the Exchange Ratio, rounded down to the nearest whole number of shares of Avanex Western Multiplex Common Stock and (ii) the per share exercise price for the shares of Avanex Western Multiplex Common Stock issuable upon exercise of such assumed Oplink Proxim Option will be equal to the quotient determined by dividing the exercise price per share of Oplink Proxim Common Stock at which such Oplink Proxim Option was exercisable immediately prior to the Effective Time by the Exchange Ratio, rounded up to the nearest whole cent. Each assumed Oplink Proxim Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested as to immediately prior to the Effective Time. As soon as reasonably practicable following the Closing Date, Avanex Western Multiplex will issue to each person who holds an assumed Oplink Proxim Option a document evidencing the foregoing assumption of such Oplink Proxim Option by AvanexWestern Multiplex.

Assumption of Stock Options. At the Effective TimeTime of Merger I, each then --------------------------- outstanding Oplink Company Option, whether or not exercisable at the Effective Time of Merger I and regardless of the respective exercise prices thereof, will be assumed by AvanexParent. Each Oplink Company Option so assumed by Avanex Parent under this Agreement will continue to have, and be subject to, the same terms and conditions set forth in the applicable Oplink Company Stock Option Plan (and any applicable stock option agreement for such Oplink Company Option) immediately prior to the Effective Time of Merger I (including any repurchase rights or vesting provisions), except that that (i) subject to paragraph (3) below, each Oplink Company Option will be exercisable (or will become exercisable in accordance with its terms) for for: (1) that number of whole shares of Avanex Parent Common Stock equal to the product of the number of shares of Oplink Company Common Stock that were issuable upon exercise of such Oplink Company Option immediately prior to the Effective Time of Merger I multiplied by the Exchange Ratio, rounded down to the nearest whole number of shares of Avanex Parent Common Stock, and (2) either (A) if the Company Option is exercised prior to the earlier of the Maturity Date or an Automatic Extinguishment (both as defined in the Contingent Value Rights Agreement), that number of whole Contingent Value Rights equal to the product of the number of shares of Company Common Stock that were issuable upon exercise of such Company Option immediately prior to the Effective Time of Merger I multiplied by the Exchange Ratio, rounded down to the nearest whole number of Contingent Value Rights; (B) if the Company Option is exercised on or subsequent to the Maturity Date, that cash payment, if any, equal to the product of the number of shares of Company Common Stock that were issuable upon exercise of such Company Option immediately prior to the Effective Time of Merger I, multiplied by the Exchange Ratio, rounded down to the nearest whole number of Contingent Value Rights, further multiplied by the cash payment, if any, that a holder of one Contingent Value Right had the right to receive upon the passage of such Maturity Date, rounded down to the nearest whole cent; or (C) if the Company Option is exercised on or subsequent to an Automatic Extinguishment, no additional consideration shall be payable under this Subsection 5.8(a)(i)(2). (3) For purposes of calculating the whole number of Contingent Value Rights to which an individual option holder is entitled pursuant to paragraphs (1) and (2) above, all Company Options held by such individual shall be aggregated. (ii) the per share exercise price for the shares of Avanex Parent Common Stock issuable upon exercise of such assumed Oplink Company Option will be equal to the quotient determined by dividing the exercise price per share of Oplink Company Common Stock at which such Oplink Company Option was exercisable immediately prior to the Effective Time of Merger I by the Exchange Ratio, rounded up to the nearest whole cent. Each assumed Oplink Company Option shall be vested immediately following the Effective Time of Merger I as to the same percentage of the total number of shares subject thereto as it was vested as to immediately prior to the Effective Time. Time of Merger I. As soon as reasonably practicable following the Closing Date, Avanex Parent will issue to each person who holds an assumed Oplink Company Option a document evidencing the foregoing assumption of such Oplink Company Option by Avanex.Parent and providing information with respect to the terms and conditions of such option assumption, including the terms and conditions of any Parent Common Stock or Contingent Value Right to be received upon exercise. Table of Contents

Assumption of Stock Options. (i) At the Effective Time, each then --------------------------- outstanding Oplink option to purchase UCC Common Stock (a “Stock Option, whether or not exercisable at ”) granted under UCC’s 2003 Amended and Restated Stock Option Plan (the “UCC Stock Option Plan”) that is outstanding as of the Effective Time and regardless shall by virtue of the respective exercise prices thereof, will Merger be assumed by Avanex. Each Oplink Option so assumed by Avanex under this Agreement will continue Purchaser (the “Assumed Option”) and shall constitute an option to haveacquire, and be subject to, on the same terms and conditions set forth in the as were applicable Oplink under such Stock Option Plan (and any applicable stock option agreement for such Oplink Option) immediately prior to the Effective Time (including any repurchase rights or vesting provisions)Time, except that (i) each Oplink Option will be exercisable (or will become exercisable in accordance with its terms) for that number of whole shares of Avanex Common Stock equal to the product of the number of shares of Oplink Purchaser Common Stock that were issuable upon exercise of such Oplink Option immediately prior to the Effective Time multiplied by the Exchange Ratio, rounded down to the nearest whole number of shares of Avanex Common Stock and (ii) the per share exercise price for the shares of Avanex Common Stock issuable upon exercise of such assumed Oplink Option will be equal to the quotient determined by dividing (x) the exercise price per share number of Oplink shares of UCC Common Stock at for which such Oplink Stock Option was exercisable immediately prior to the Effective Time by the Exchange Ratio, rounded up and the per share exercise price for shares of Purchaser Common Stock issuable upon exercise of each Stock Option will be equal to the nearest whole cent. Each assumed Oplink exercise price per share at which such Stock Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested as to exercisable immediately prior to the Effective Time. As soon as reasonably practicable following Time multiplied by the Closing DateExchange Ratio; provided that no more than 106,236 shares of Purchaser Common Stock, Avanex will issue to each person who holds an assumed Oplink Option a document evidencing in the foregoing assumption aggregate, shall be issuable upon the exercise of such Oplink options (as adjusted for stock splits and stock dividends). The Stock Option Allocation Schedule attached as Schedule IV to this Agreement sets forth the Purchaser options issuable at Closing in respect of each assumed Stock Option. No Stock Option as so converted shall be exercisable for a fractional share of Purchaser Common Stock and the number of shares of Purchaser Common Stock for which the assumed Stock Options shall be exercisable shall be rounded down to the nearest whole share of Purchaser Common Stock; provided, however, that (i) the vesting schedule of the assumed options shall continue to be determined by Avanexreference to the applicable agreement evidencing such Stock Option or the UCC Stock Option Plan. In the case of any assumed Stock Options, the exercise price, the number of shares of Purchaser Common Stock purchasable pursuant to such Stock Options and the terms and conditions of exercise of such Stock Options shall be determined in order to comply with Section 424(a) of the Code and Section 409A of the Code.

Assumption of Stock Options. At the Effective TimeTime of Merger I, each then --------------------------- outstanding Oplink Company Option, whether or not exercisable at the Effective Time of Merger I and regardless of the respective exercise prices thereof, will be assumed by AvanexParent. Each Oplink Company Option so assumed by Avanex Parent under this Agreement will continue to have, and be subject to, the same terms and conditions set forth in the applicable Oplink Company Stock Option Plan (and any applicable stock option agreement for such Oplink Company Option) immediately prior to the Effective Time of Merger I (including any repurchase rights or vesting provisions), except that that (i) subject to paragraph (3) below, each Oplink Company Option will be exercisable (or will become exercisable in accordance with its terms) for for: (1) that number of whole shares of Avanex Parent Common Stock equal to the product of the number of shares of Oplink Company Common Stock that were issuable upon exercise of such Oplink Company Option immediately prior to the Effective Time of Merger I multiplied by the Exchange Ratio, rounded down to the nearest whole number of shares of Avanex Parent Common Stock, and (2) either (A) if the Company Option is exercised prior to the earlier of the Maturity Date or an Automatic Extinguishment (both as defined in the Contingent Value Rights Agreement), that number of whole Contingent Value Rights equal to the product of the number of shares of Company Common Stock that were issuable upon exercise of such Company Option immediately prior to the Effective Time of Merger I multiplied by the Exchange Ratio, rounded down to the nearest whole number of Contingent Value Rights; (B) if the Company Option is exercised on or subsequent to the Maturity Date, that cash payment, if any, equal to the product of the number of shares of Company Common Stock that were issuable upon exercise of such Company Option immediately prior to the Effective Time of Merger I, multiplied by the Exchange Ratio, rounded down to the nearest whole number of Contingent Value Rights, further multiplied by the cash payment, if any, that a holder of one Contingent Value Right had the right to receive upon the passage of such Maturity Date, rounded down to the nearest whole cent; or (C) if the Company Option is exercised on or subsequent to an Automatic Extinguishment, no additional consideration shall be payable under this Subsection 5.8(a)(i)(2). (3) For purposes of calculating the whole number of Contingent Value Rights to which an individual option holder is entitled pursuant to paragraphs (1) and (2) above, all Company Options held by such individual shall be aggregated. (ii) the per share exercise price for the shares of Avanex Parent Common Stock issuable upon exercise of such assumed Oplink Company Option will be equal to the quotient determined by dividing the exercise price per share of Oplink Company Common Stock at which such Oplink Company Option was exercisable immediately prior to the Effective Time of Merger I by the Exchange Ratio, rounded up to the nearest whole cent. Each assumed Oplink Company Option shall be vested immediately following the Effective Time of Merger I as to the same percentage of the total number of shares subject thereto as it was vested as to immediately prior to the Effective Time. Time of Merger I. As soon as reasonably practicable following the Closing Date, Avanex Parent will issue to each person who holds an assumed Oplink Company Option a document evidencing the foregoing assumption of such Oplink Company Option by AvanexParent and providing information with respect to the terms and conditions of such option assumption, including the terms and conditions of any Parent Common Stock or Contingent Value Right to be received upon exercise.

Assumption of Stock Options. At the Effective Time, each then --------------------------- outstanding Oplink OptionCompaq Option (including each Compaq SAR), whether or not exercisable at the Effective Time and regardless of the respective exercise (or base) prices thereof, will be assumed by AvanexHP. Each Oplink Compaq Option so assumed by Avanex HP under this Agreement will continue to have, and be subject to, the same terms and conditions set forth in the applicable Oplink Stock Compaq Option Plan (and including any applicable stock option agreement for or other document evidencing such Oplink Compaq Option) immediately prior to the Effective Time (including any repurchase rights or vesting provisions), except that (i) each Oplink Compaq Option will be exercisable (or will become exercisable in accordance with its terms) for (or will relate to, in the case of a Compaq SAR)) that number of whole shares of Avanex HP Common Stock equal to the product of the number of shares of Oplink Compaq Common Stock that were issuable upon exercise of such Oplink Compaq Option (or, in the case of Compaq SARs, the number of shares of Compaq Common Stock subject to such Compaq SAR) immediately prior to the Effective Time multiplied by the Exchange Ratio, rounded down to the nearest whole number of shares of Avanex HP Common Stock and (ii) the per share exercise price for the shares of Avanex HP Common Stock issuable upon exercise of such assumed Oplink Compaq Option (or the base price to which the assumed Compaq SAR relates) will be equal to the quotient determined by dividing the exercise price per share of Oplink Compaq Common Stock at which such Oplink Compaq Option was exercisable (or the base price subject to the Compaq SAR) immediately prior to the Effective Time by the Exchange Ratio, rounded up to the nearest whole cent. Each assumed Oplink Compaq Option (including each Compaq SAR) shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested as to immediately prior to the Effective Time, except to the extent such Compaq Option (or Compaq SAR) by its terms in effect prior to the date hereof provides for acceleration of vesting. As soon as reasonably practicable following the Closing Datepracticable, Avanex HP will issue to each person Person who holds an assumed Oplink Compaq Option (including each Compaq SAR) a document evidencing the foregoing assumption of such Oplink Compaq Option (including each Compaq SAR) by AvanexHP.

Assumption of Stock Options. At the Effective Time, each then --------------------------- outstanding Oplink OptionMaxim Option granted under the 1993 Plan, whether or not exercisable at the Effective Time and regardless of the respective exercise prices thereof, will be assumed by AvanexEpiCept. At the Effective time, each then outstanding Maxim Option granted under the other Maxim Stock Option Plans, which Maxim Option has an exercise price of $20.00 per share or less, whether or not exercisable at the Effective Time, will be assumed by EpiCept. Each Oplink Maxim Option so assumed by Avanex EpiCept under this Agreement will continue to have, and be subject to, the same terms and conditions set forth in the applicable Oplink Maxim Stock Option Plan (and any applicable stock option agreement for such Oplink Maxim Option) immediately prior to the Effective Time (including any repurchase rights or vesting provisions), except that (i) each Oplink Maxim Option will be exercisable (or will become exercisable in accordance with its terms) for that number of whole shares of Avanex EpiCept Common Stock equal to the product of the number of shares of Oplink Maxim Common Stock that were issuable upon exercise of such Oplink Maxim Option immediately prior to the Effective Time multiplied by the Exchange Ratio, rounded down to the nearest whole number of shares of Avanex EpiCept Common Stock and (ii) the per share exercise price for the shares of Avanex EpiCept Common Stock issuable upon exercise of such assumed Oplink Maxim Option will be equal to the quotient determined by dividing the exercise price per share of Oplink Maxim Common Stock at which such Oplink Maxim Option was exercisable immediately prior to the Effective Time by the Exchange Ratio, rounded up to the nearest whole cent. Each assumed Oplink Maxim Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested as to immediately prior to the Effective Time. As soon as reasonably practicable following the Closing Date, Avanex EpiCept will issue to each person who holds an assumed Oplink Maxim Option a document evidencing the foregoing assumption of such Oplink Maxim Option by AvanexEpiCept. Maxim shall use commercially reasonable efforts to obtain the agreement of each holder of options granted under the 1993 Plan that have an exercise price above $20.00 per share to the termination of such options immediately prior to the Effective Time and shall take action under the other Maxim Stock Option Plans such that each outstanding Maxim Option granted under the other Maxim Stock Option Plans that has an exercise price above $20.00 per share shall terminate on or prior to the Effective time.