OCLARO, INC. AGREEMENT TO TERMS OF ELECTION
Exhibit (a)(1)(F)
By participating in Oclaro’s offer to exchange certain stock options for replacement stock
options (the “Exchange Offer”), I acknowledge and agree to all of the following terms:
1. I surrender to Oclaro for exchange those eligible stock option grants marked with a check
xxxx in the “Exchange” box in the table on the Election Form Page and understand that, upon
acceptance by Oclaro at the closing of the Exchange Offer, this election will constitute a binding
agreement between Oclaro and me.
2. I understand that if I validly surrender eligible options for exchange, and such eligible
options are accepted and cancelled, I will lose my rights to purchase any shares under such
eligible options and I will receive in exchange a lesser amount of replacement options with a new
exercise price.
3. I understand that all replacement options granted to me in the Exchange Offer will have a
new vesting schedule of two or three years, depending on the existing vesting schedule of the
option grants that are surrendered for cancellation in the exchange at the time the replacement
options are granted. Under the new vesting schedule, none of my replacement options will be vested
at the time of the exchange. Rather, each replacement option grant will vest with respect to 25%
of the shares on the first anniversary of the grant date, with the remaining options vesting in
equal monthly installments over the remaining vesting term of one or two years, in each case so
long as I continue to remain employed by Oclaro during such periods.
4. I understand that the exercise price for the replacement options will be equal to the
closing price per share of our common stock on the NASDAQ Global Market on the date the replacement
options are granted.
5. I understand that (i) the future value of Oclaro’s common stock is unknown and cannot be
predicted with certainty; (ii) if the price per share of our common stock does not increase in
value, the replacement options will have no value; and (iii) if I exercise the replacement options
and acquire shares of Oclaro’s common stock, the value of such shares may increase or decrease in
value, even below the exercise price of the exercised replacement options.
6. I understand that the replacement options will be non-qualified stock options for U.S.
federal income tax purposes, regardless of whether my surrendered stock option grants were
incentive stock options or non-qualified stock options.
7. I understand that the replacement options will be subject to the terms and conditions of
new award agreements, including any country-specific exhibits thereto, and Oclaro’s Amended and
Restated 2004 Stock Incentive Plan (the “2004 Plan”) and/or the Avanex Corporation 1998 Stock Plan
(the “1998 Plan”), depending on the plan governing the terms of the surrendered stock option
grants. By participating in the Exchange Offer, I agree to execute and deliver a new award
agreement for each of my replacement stock option grants, including any country-specific exhibits
thereto.
8. I acknowledge that Oclaro has encouraged me to consult with my own tax, financial and legal
advisors as to the consequences of participating or not participating in the Exchange Offer.
9. To remain eligible to surrender eligible stock options for exchange in the Exchange Offer,
I understand that I must be actively employed by Oclaro on the date the Exchange Offer commences
and must remain actively employed by Oclaro through the date that replacement options are granted.
10. I understand that nothing in the Exchange Offer or related documents should be construed
to confer upon me the right to remain an employee of Oclaro. The terms of my employment with
Oclaro remain unchanged. I understand that Oclaro cannot guarantee or provide me with any
assurance that I will not be subject to involuntary termination or that I will otherwise remain
employed until the replacement option grant date, until the replacement options are fully vested or
thereafter.
11. I understand that in accordance with Section 11 of the section titled “The Exchange Offer”
of the Offer to Exchange, Oclaro may extend, terminate, and/or amend the Exchange Offer. In any
such event, I understand that any eligible stock options surrendered for exchange but not accepted
by Oclaro will remain in effect with their current terms and conditions until the ultimate closing,
if any, of the Exchange Offer.
12. I understand that my election to participate in the Exchange Offer is entirely voluntary,
and I am aware that I may withdraw my decision to surrender my eligible stock options at any time
until the Exchange Offer expires. Subject to the foregoing, I understand that my election to
surrender my eligible stock options will be irrevocable at the expiration of the Exchange Offer,
scheduled to be 5:00 p.m. Pacific Time on Wednesday, December 2, 2009, unless the offering period
is extended by Oclaro.
13. I understand that decisions with respect to future grants of options under the 2004 Plan
and the 1998 Plan (the “Plans”), if any, will be at the sole discretion of Oclaro.
14. I understand that the Exchange Offer is a one-time offer that does not create any
contractual or other right to receive future offers, options or benefits in lieu of options.
15. I understand that: (i) the value of any Oclaro shares obtained upon exercise of the
replacement options made pursuant to the Exchange Offer is an extraordinary item which is outside
the scope of my employment contract, if any; and (ii) the replacement options and the shares
acquired upon exercise are not part of normal or expected compensation for any purpose, including
but not limited to the purposes of calculating any severance pay, resignation payments, dismissal
payments, redundancy payments, end of service payments, bonuses, long-service awards, pension or
retirement benefits or similar payments.
16. I understand that no claim or entitlement to compensation or damages shall arise from the
forfeiture of the right to participate in the Exchange Offer or the Plans resulting from
termination of my employment with Oclaro (for any reason whatsoever) and I irrevocably release
Oclaro from any such claim that may arise; if, notwithstanding the foregoing, any such claim is
found by a court of competent jurisdiction to have arisen, I shall be deemed irrevocably to have
waived my entitlement to pursue such claim.
17. Regardless of any action that Oclaro or my employer (if a subsidiary of Oclaro) takes with
respect to any or all income tax, social insurance, payroll tax or other tax-related withholding
related to the Exchange Offer or the replacement options (“Tax-Related Items”), I understand that
the ultimate liability for all Tax-Related Items is and remains my sole responsibility and may
exceed the amount actually withheld by Oclaro, if any. I further acknowledge that Oclaro (i) makes
no representations or undertakings regarding the treatment of any Tax-Related Items in connection
with any aspect of the Exchange Offer and the replacement options, including, but not limited to,
the exchange of eligible options, the grant, vesting or exercise of the replacement options, the
issuance of shares upon exercise and the subsequent sale of shares acquired pursuant to such
exercise; and (ii) does not commit to and is under no obligation to structure the terms of the
Exchange Offer or replacement options to reduce or eliminate my liability for Tax-Related Items or
to achieve any particular tax result. Further, if I have become subject to tax in more than one
jurisdiction between the date of the grant of the replacement options and the date of any relevant
taxable or tax withholding event, as applicable, I acknowledge that Oclaro may be required to
withhold or account for Tax-Related Items in more than one jurisdiction. In that regard, I
authorize Oclaro to withhold all Tax-Related Items legally payable by me pursuant to the terms of
my new award agreement, including any country-specific exhibits thereto, and Plans, depending on
the plan governing the terms of the surrendered stock option grants.
18. I hereby explicitly and unambiguously consent to the collection, use and transfer, in
electronic or other form, of my personal data as described in this Exchange Offer and my applicable
option award agreement by and among, as applicable, my employer (if a subsidiary of Oclaro) and
Oclaro, for the exclusive purpose of implementing, administering and managing my participation in
the Exchange Offer and the Plans. I understand that Oclaro and my employer (if a subsidiary of
Oclaro) may hold certain personal information about me, including, but not limited to, my name,
home address and telephone number, date of birth, social insurance or other identification number,
salary, nationality, job title, any shares of or directorships held in Oclaro, details of all
options or any other entitlement to shares of Oclaro that have been awarded, canceled, exercised,
vested, unvested or outstanding in my favor, for the exclusive purpose of implementing,
administering and managing the Plans (collectively, “Data”). I understand that Data will be
transferred to
Transcentive and to any other third party assisting in the implementation, administration and
management of the Plans. I understand that the recipients of the Data may be located in my country
or elsewhere, and that the recipient’s country may have different data privacy laws and protections
than my country. I understand that I may request a list with the names and addresses of any
potential recipients of Data by contacting my local human resources representative. I authorize
Oclaro, my employer (if a subsidiary of Oclaro), Transcentive and any other recipients of Data
which may assist Oclaro (presently or in the future) with implementing, administering and managing
the Exchange Offer and the Plans to receive, possess, use, retain and transfer Data, in electronic
or other form, for the purpose of implementing, administering and managing my participation in the
Exchange Offer and the Plans, including any requisite transfer of Data as may be required to a
broker or other third party with whom I may elect to deposit any shares purchased upon exercise of
the replacement options. I understand that Data will be held only as long as is necessary to
implement, administer and manage my participation in the Exchange Offer and the Plans. I
understand that I may, at any time, view Data, request additional information about the storage and
processing of Data, require any necessary amendments to Data or refuse or withdraw the consent
herein, in any case with cost, by contacting in writing my local human resources representative. I
understand that refusal or withdrawal of consent may affect my ability to participate in the
Exchange Offer or the Plans. I understand that I may contact my local human resources
representative for more information on the consequences of my refusal to consent or withdrawal of
consent.
19. I hereby relinquish to Oclaro all of my right, title and interest in and to all of the
eligible option grants that I am electing to exchange as specified in the table above.
20. I hereby represent and warrant that I have full power and authority to elect to surrender
the eligible stock option grants marked with a check xxxx in the “Exchange” box in the table on the
Election Form Page and that, when and to the extent such eligible stock option grants are accepted
by Oclaro, such eligible stock option grants will be free and clear of all security interests,
liens, restrictions, charges, encumbrances, conditional sales agreements or other obligations
relating to the sale or transfer thereof, and such eligible stock option grants will not be subject
to any adverse claims. Without limiting the foregoing, I hereby represent and warrant that either
I am not married and do not have a registered domestic partner, my spouse or registered domestic
partner has no community or other marital property rights in the eligible stock option grants or
replacement stock option grants, or my spouse or registered domestic partner has consented to and
agreed to be bound by this election form. Upon request, I will execute and deliver any additional
documents deemed by Oclaro to be necessary or desirable to complete the exchange of the eligible
stock option grants that I am electing to exchange.
21. I understand that the trading price of Oclaro shares will vary from time to time during
the Exchange Offer and after the Exchange Offer expires, such that the trading price of Oclaro
shares could increase at some time during the Exchange Offer or after the date my tendered eligible
options are canceled pursuant to the Exchange Offer resulting in my financial position being less
advantageous than if I had not accepted the offer. By tendering the eligible options, I agree to
hold Oclaro harmless for any actual or perceived loss suffered by me as a result of the changes in
the trading price of Oclaro shares during the Exchange Offer and after expiration of the Exchange
Offer.
22. I hereby agree to all of the terms and conditions of the Exchange Offer, as set forth in
this Agreement to Terms of Election, the Offer to Exchange Certain Stock Options for Replacement
Stock Options, dated as of November 2, 2009, and the other documents relating to the Exchange Offer
and referred to therein or in the Schedule TO that Oclaro has filed with the Securities and
Exchange Commission.
