Issue Date: January 13, 2006 Warrant No. C-___
Exhibit 99.2
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAW,
AND MAY NOT BE OFFERED FOR SALE, SOLD OR TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER SUCH ACT
AND APPLICABLE STATE SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT THERETO, OR THE CORPORATION
HAS BEEN FURNISHED WITH AN OPINION OF LEGAL COUNSEL, REASONABLY SATISFACTORY TO THE CORPORATION, TO
THE EFFECT THAT AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS IS AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER. SUBJECT TO COMPLIANCE
WITH THE REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, THIS WARRANT AND
THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT (I) MAY BE PLEDGED OR HYPOTHECATED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY THIS WARRANT OR ANY OF THE
SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT AND (II) MAY BE TRANSFERRED OR ASSIGNED TO AN
AFFILIATE OF THE HOLDER HEREOF.
WARRANT
TO PURCHASE COMMON STOCK
OF
| Issue Date: January 13, 2006 | Warrant No. C-___ |
THIS CERTIFIES that [ ] and its permitted assigns (the “Holder”), has the
right to purchase from BOOKHAM, INC., a Delaware corporation (the “Company”), upon the
terms and subject to the limitations on exercise and the conditions hereinafter set forth, up to [
] fully paid and nonassessable shares of the Company’s common stock, par value $0.01 per
share (the “Common Stock”), subject to adjustment as provided herein, at a price per share
equal to the Exercise Price (as defined below), at any time and from time to time beginning on July
13, 2006 and ending at 6:00 p.m., eastern time, on January 13, 2011 (the “Expiration
Date”). This Warrant is issued pursuant to an Exchange Agreement, dated as of January 13, 2006
(the “Exchange Agreement”).
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(a) In the event that the Company fails for any reason to deliver to the Holder the number of
Warrant Shares specified in the applicable Exercise Notice on or before the Delivery Date therefor
(an “Exercise Default”), the Company shall pay to the Holder payments (“Exercise
Default Payments”) in the amount of (i) (N/365) multiplied by (ii) the aggregate
Exercise Price of the Warrant Shares which are the subject of such Exercise Default multiplied
by (iii) the lower of twelve percent (12%) per annum and the maximum rate permitted by
applicable law (the “Default Interest Rate”), where “N” equals the number of days elapsed
between the original Delivery Date of such Warrant Shares and the date on which all of such Warrant
Shares are issued and delivered to the Holder. Cash amounts payable hereunder shall be paid on or
before the fifth (5th) business day of each calendar month following the calendar month in which
such amount has accrued.
(b) In the event of an Exercise Default, the Holder may, upon written notice to the Company
(an “Exercise Default Notice”), regain on the date of such notice the rights of the Holder
under the portion of this Warrant that is the subject of such Exercise Default. In the event of
such Exercise Default and delivery of an Exercise Default Notice, the Holder shall retain all of
the Holder’s rights and remedies with respect to the Company’s failure to deliver such Warrant
Shares (including without limitation the right to receive the cash payments specified in Section
3(a) above); provided, however, that such cash payments shall cease to accrue
effective as of the date of such Exercise Default Notice.
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(c) The Holder’s rights and remedies hereunder are cumulative, and no right or remedy is
exclusive of any other. In addition to the amounts specified herein, the Holder shall have the
right to pursue all other remedies available to it at law or in equity (including, without
limitation, a decree of specific performance and/or injunctive relief). Nothing herein shall limit
the Holder’s right to pursue actual damages for the Company’s failure to issue and deliver Warrant
Shares on the applicable Delivery Date (including, without limitation, damages relating to any
purchase of Common Stock by the Holder to make delivery on a sale effected in anticipation of
receiving Warrant Shares upon exercise, such damages to be in an amount equal to (A) the aggregate
amount paid by the Holder for the Common Stock so purchased minus (B) the aggregate amount
of net proceeds, if any, received by the Holder from the sale of the Warrant Shares issued by the
Company pursuant to such exercise).
(a) In no event shall a Holder be permitted to exercise this Warrant, or part hereof, if, upon
such exercise, the number of shares of Common Stock beneficially owned by the Holder (other than
shares which would otherwise be deemed beneficially owned except for being subject to a limitation
on conversion or exercise analogous to the limitation contained in this Section 4), would exceed
4.99% of the number of shares of Common Stock then issued and outstanding. As used herein,
beneficial ownership shall be determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended, and the rules thereunder. To the extent that the limitation
contained in this Section 4 applies, the submission of an Exercise Notice by the Holder shall be
deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms
hereof and the Company shall be entitled to rely on such representation without making any further
inquiry as to whether this Section 4 applies. Nothing contained herein shall be deemed to restrict
the right of a Holder to exercise this Warrant, or part thereof, at such time as such exercise will
not violate the provisions of this Section 4. This Section 4 may not be amended unless such
amendment is approved by the holders of a majority of the Common Stock then outstanding; provided,
however, that the limitations contained in this Section 4 shall cease to apply (x) upon sixty one
(61) days’ prior written notice from the Holder to the Company, or (y) immediately upon written
notice from the Holder to the Company at any time after the public announcement or other disclosure
of a Major Transaction (as defined in Section 6 below) or a Change of Control (as defined below).
(b) When used herein, the following terms shall have the respective meanings indicated:
(i) “Change of Control” means the existence or occurrence of any of the following: (a) the
sale, conveyance or disposition of all or substantially all of the assets of the Company; (b) the
effectuation of a transaction or series of transactions in which more than fifty percent (50%) of
the voting power of the Company is disposed of; (c) the consolidation, merger or other business
combination of the Company with or into any other entity, immediately following which the prior
stockholders of the Company fail to own, directly or indirectly, at least fifty percent (50%) of
the surviving entity; (d) a transaction or series of transactions in which any Person (as defined
below) or group acquires more than fifty percent (50%) of the voting equity of the Company; and (e)
the Continuing Directors (as defined below) do not at any time constitute at least a majority of
the Board of Directors of the Company.
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(ii) “Continuing Director” means at any date a member of the Company’s Board of Directors (i)
who was a member of such board on the date of the Exchange Agreement or (ii) who was nominated or
elected by at least a majority of the directors who were Continuing Directors at the time of such
nomination or election or whose election to the Company’s Board of Directors was recommended or
endorsed by at least a majority of the directors who were Continuing Directors at the time of such
nomination or election or such lesser number comprising a majority of a nominating committee if
authority for such nominations or elections has been delegated to a nominating committee whose
authority and composition have been approved by at least a majority of the directors who were
Continuing Directors at the time such committee was formed.
(iii) “Person” means means any individual, corporation, trust, association, company,
partnership, joint venture, limited liability company, joint stock company, governmental authority
(which shall include any nation or government, any state, provincial or political subdivision
thereof and any entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government and any stock exchange, securities market or
self-regulatory organization) or other entity.
(a) through a cash exercise (a “Cash Exercise”) by delivering immediately available
funds, or
(b) if an effective Registration Statement is not available for the resale of all of the
Warrant Shares issuable hereunder at the time an Exercise Notice is delivered to the Company,
through a cashless exercise (a “Cashless Exercise”), as hereinafter provided. The Holder
may effect a Cashless Exercise by surrendering this Warrant to the Company and noting on the
Exercise Notice that the Holder wishes to effect a Cashless Exercise, upon which the Company shall
issue to the Holder the number of Warrant Shares determined as follows:
| X = Y x (A-B)/A | ||
where:
|
X = the number of Warrant Shares to be issued to the Holder; | |
| Y = the number of Warrant Shares with respect to which this Warrant is being exercised; | ||
| A = the Market Price (as defined below) as of the Exercise Date; and | ||
| B = the Exercise Price. |
For purposes of Rule 144, it is intended and acknowledged that the Warrant Shares issued in a
Cashless Exercise transaction shall be deemed to have been acquired by the Holder, and the holding
period for the Warrant Shares required by Rule 144 shall be deemed to have been
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commenced on November 8, 2002 (the date of the original issuance of the Series B-1 Senior Secured
Note due 2006 for which this Warrant was exchanged).
(c) When used herein, the following terms shall have the respective meanings indicated:
(i) “Market Price” means, as of a particular date, the average of the daily VWAP on each of
the five (5) consecutive Trading Days occurring immediately prior to (but not including) such date.
(ii) “VWAP” on a Trading Day means the volume weighted average price of the Common Stock for
such Trading Day on the Principal Market as reported by Bloomberg Financial Markets or, if
Bloomberg Financial Markets is not then reporting such prices, by a comparable reporting service of
national reputation selected by the Investors and reasonably satisfactory to the Company. If the
VWAP cannot be calculated for the Common Stock on such Trading Day on any of the foregoing bases,
then the Company shall submit such calculation to an independent investment banking firm of
national reputation reasonably acceptable to the holders (the “Warrant Holders”) of all of warrants
issued pursuant to the Exchange Agreement, and shall cause such investment banking firm to perform
such determination and notify the Company and the Warrant Holders of the results of determination
no later than two (2) business days from the time such calculation was submitted to it by the
Company. All such determinations shall be appropriately adjusted for any stock dividend, stock
split or other similar transaction during such period.
(iii) “Principal Market” means the principal exchange or market on which the Common Stock is
listed or traded.
(iv) “Trading Day” means any day on which the Common Stock is purchased and sold on the
Principal Market.
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at least ten (10) Trading Days written notice prior to the earlier of (x) the closing or
effectiveness of such Major Transaction and (y) the record date for the receipt of such shares of
stock or securities or other assets. In the event of a Major Transaction, the Holder shall be
permitted (but not required) to exercise this Warrant in whole or in part at any time prior to the
record date for the receipt of such consideration and shall be entitled to receive, for each share
of Common Stock issuable to Holder upon such exercise, the same per share consideration payable to
the other holders of Common Stock in connection with such Major Transaction. If and to the extent
that the Holder retains any portion of this Warrant following such record date, the Company will
cause the surviving or, in the event of a sale of assets, purchasing entity, as a condition
precedent to such Major Transaction, to assume the obligations of the Company under this Warrant,
with such adjustments to the Exercise Price and the securities covered hereby as may be reasonably
necessary in order to preserve the economic benefits of this Warrant to the Holder.
No fractional shares or scrip representing fractional shares shall be issuable upon the
exercise of this Warrant, but on exercise of this Warrant, the Holder hereof may purchase only a
whole number of shares of Common Stock. If, on exercise of this Warrant, the Holder hereof would
be entitled to a fractional share of Common Stock or a right to acquire a fractional share of
Common Stock, the Company shall, in lieu of issuing any such fractional share, pay to the Holder an
amount in cash equal to the product resulting from multiplying such fraction by the Market Price as
of the Exercise Date.
The Holder may sell, transfer, assign, pledge or otherwise dispose of this Warrant, in whole
or in part, as long as such sale or other disposition is made pursuant to an effective registration
statement or an exemption from the registration requirements of the Securities Act of 1933, as
amended, and is otherwise made in accordance with the applicable provisions of the Exchange
Agreement. Upon such transfer or other disposition (other than a pledge), the Holder shall deliver
this Warrant to the Company together with a written notice to the Company, substantially in the
form of the Transfer Notice attached hereto as Exhibit B (the “Transfer Notice”),
indicating the person or persons to whom this Warrant shall be transferred and, if less than all of
this Warrant is transferred, the number of Warrant Shares to be covered by the part of this Warrant
to be transferred to each such person. Within three (3) business days of receiving a Transfer
Notice and the original of this Warrant, the Company shall deliver to the each transferee
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designated by the Holder a Warrant or Warrants of like tenor and terms for the appropriate number
of Warrant Shares and, if less than all this Warrant is transferred, shall deliver to the Holder a
Warrant for the remaining number of Warrant Shares.
This Warrant shall be for the sole and exclusive benefit of the Holder of this Warrant and
nothing in this Warrant shall be construed to confer upon any person other than the Holder of this
Warrant any legal or equitable right, remedy or claim hereunder.
Upon receipt by the Company of evidence of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or destruction) of indemnity reasonably satisfactory to
the Company, and upon surrender of this Warrant, if mutilated, the Company shall execute and
deliver a new Warrant of like tenor and date.
Any notice, demand or request required or permitted to be given by the Company or the Holder
pursuant to the terms of this Warrant shall be in writing and shall be deemed delivered (i) when
delivered personally or by verifiable facsimile transmission, unless such delivery is made on a day
that is not a business day, in which case such delivery will be deemed to be made on the next
succeeding business day, (ii) on the next business day after timely delivery to an overnight
courier and (iii) on the business day actually received if deposited in the U.S. mail (certified or
registered mail, return receipt requested, postage prepaid), addressed as follows:
If to the Company:
Bookham, Inc.
0000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Tel: 000-000-0000
Fax: 000-000-0000
0000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
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and if to the Holder, at such address as the Holder shall have furnished the Company in writing.
This Warrant is issued under and shall for all purposes be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made and to be performed
entirely within the State of New York.
No amendment, modification or other change to, or waiver of any provision of, this Warrant may
be made unless such amendment, modification or change is (A) set forth in writing and is signed by
the Company and (B) agreed to in writing by the Warrant Holders holding warrants issued by the
Company pursuant to the Exchange Agreement which are exercisable for at least two-thirds (2/3) of
the number of shares into which the all of the then outstanding warrants issued by the Company
pursuant to the Exchange Agreement are exercisable (without regard to any limitation contained
herein on such exercise), it being understood that upon the satisfaction of the conditions
described in (A) and (B) above, each such warrant (including any warrant held by any of the Warrant
Holders who did not execute the agreement specified in (B) above) shall be deemed to incorporate
any amendment, modification, change or waiver effected thereby as of the effective date thereof.
Notwithstanding the foregoing, this Warrant may be amended, modified and the observance of any term
hereunder may be waived without the written consent of the Holder only if such amendment,
modification and waiver applies to the warrants issued to Warrant Holders pursuant to the Exchange
Agreement all in the same fashion.
This Warrant, the Exchange Agreement and the other documents (the “Transaction Documents”)
related to the transactions contemplated by the Exchange Agreement constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and thereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein and therein. This Warrant, the Exchange Agreement and the Transaction Documents supersede
all prior agreements and understandings among the parties hereto with respect to the subject matter
hereof and thereof.
The headings in this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
[Signature Page to Follow]
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| BOOKHAM, INC. | ||||||
| By: | ||||||
| Title: | ||||||
EXHIBIT A to WARRANT
EXERCISE NOTICE
The undersigned Holder hereby irrevocably exercises the right to purchase
of the shares of Common Stock (“Warrant Shares”) of
evidenced by the attached Warrant (the “Warrant”). Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Warrant.
a Cash Exercise with respect to Warrant Shares; and/or
a Cashless Exercise with respect to Warrant Shares, as
permitted by Section 5(b) of the attached Warrant.
Date:
| Name of Registered Holder | ||||
By: |
||||
| Title: | ||||
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EXHIBIT B to WARRANT
TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned Holder of the attached Warrant hereby sells, assigns and
transfers unto the person or persons named below the right to purchase shares of
the Common Stock of evidenced by the attached Warrant.
Date:
| Name of Registered Holder | ||||
By: |
||||
| Title: | ||||
| Transferee Name and Address: | ||||
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