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EXHIBIT 4.4
WARRANT PURCHASE AGREEMENT
Xxxxxxxx Xx (the "Purchaser") hereby purchases from Avanex Corporation, a
California corporation (the "Seller"), and the Seller hereby sells to the
Purchaser, a warrant in the form attached hereto as Exhibit A (the "Warrant")
for the purchase price of $10.00.
The Purchaser represents and warrants that it is acquiring the Warrant for
investment purposes only and not with a view to the distribution of the
Warrant, as such term is defined under the Securities Act of 1933, as amended
(the "1933 Act"). The Purchaser understands and acknowledges that the Warrant
constitutes a "restricted security" as such term is defined under the 1933 Act
and may not be sold or otherwise transferred unless registered under the 1933
Act or unless an appropriate exemption from registration shall then exist.
The Purchaser acknowledges receipt of the Warrant, and the Seller
acknowledges receipt from Purchaser of cash or a check in the amount of $10.00.
This Warrant Purchase Agreement is executed effective as of this 31st day
of Dec., 1998.
PURCHASER
/s/ XXXXXXXX XX
--------------------------
Name (print): Xxxxxxxx Xx
SELLER:
AVANEX CORPORATION
a California corporation
By: /s/ XXXXX XXX
-----------------------
Name: Xxxxx Xxx
Title: Sr. VP
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT
IN EFFECT WITH RESPECT TO SUCH SECURITIES, OR DELIVERY OF AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES THAT SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH THE ACT.
Warrant to Purchase
75,000 Shares
of Common Stock
Dated 12/31, 1998
WARRANT TO PURCHASE COMMON STOCK
OF
AVANEX CORPORATION
Void after 12/31, 2003
This certifies that, for value received, XXXXXXXX XX or his or her
registered assigns ("Holder") is entitled, subject to the terms set forth
below, to purchase from AVANEX CORPORATION (the "Company"), a California
corporation, Seventy-Five Thousand (75,000) shares of the Common Stock of the
Company, as constituted on the date hereof (the "Warrant Issue Date"), upon
surrender hereof, at the principal office of the Company referred to below, with
the subscription form attached hereto duly executed, and simultaneous payment
therefor in lawful money of the United States or otherwise as hereinafter
provided, at the Exercise Price as set forth in Section 2 below. The number,
character and Exercise Price of such shares of Common Stock are subject to
adjustment as provided below.
1. Term of Warrant. Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable, in whole or in part, during the term
commencing on the Warrant Issue Date and ending at 5:00 p.m., Pacific Standard
Time, on 12/31, 2003 (the "Term"), and shall be void thereafter.
2. Exercise Price. The Exercise Price at which this Warrant may be
exercised shall be $6.00 per share of Common Stock as adjusted from time to time
pursuant to Section 10 hereof (the "Exercise Price").
3. Exercise of Warrant.
(a) Manner of Exercise. This Warrant is exercisable by the Holder in
whole or in part, but not for less than twenty thousand (20,000) shares at a
time (or if the maximum number of shares purchasable upon exercise of this
Warrant is less than 20,000, this Warrant shall be exercisable for such lesser
number of shares which may then constitute the maximum number purchasable), at
any time, or from time to time, during the term hereof as described in Section
1 above, by the surrender of this
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Warrant and the Notice of Exercise annexed hereto duly completed and executed
on behalf of the Holder, at the office of the Company (or such other office or
agency of the Company as it may designated by notice in writing to the Holder
at the address of the Holder appearing on the books of the Company). Unless
Holder is exercising the conversion right set forth in Section 3(c), Holder
shall also deliver to the Company a check for the aggregate Exercise Price for
the shares of Common Stock being purchased.
(b) This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the shares of Common Stock
issuable upon such exercise shall be treated for all purposes as the holder of
record of such shares as of the close of business on such date. As promptly as
practicable on or after such date and in any event within twenty (20) days
thereafter, the Company at its expense shall issue and deliver to the person or
persons entitled to receive the same a certificate or certificates for the
number of shares issuable upon such exercise. In the event that this Warrant is
exercised in part, the Company at its expense will execute and deliver a new
Warrant of like tenor exercisable for the remaining number of shares for which
this Warrant may then be exercised.
(c) Net Exercise Conversion Right. In lieu of exercising this
Warrant as specified in Section 3(a), Holder may from time to time convert this
Warrant, in whole or in part, into a number of Shares determined by dividing
(y) the aggregate fair market value of the shares of Common Stock or other
securities otherwise issuable upon exercise of this Warrant minus the aggregate
Warrant Price of such shares of Common Stock by (z) the fair market value of
one shares of Common Stock. The fair market value of the shares of Common Stock
shall be determined pursuant to Section 3(d).
(d) Fair Market Value. The Board of Directors of the Company shall
determine fair market value of the Company's Common Stock in its reasonable
good faith judgment. The foregoing notwithstanding, if Holder advises the Board
of Directors in writing that Holder disagrees with such determination, then the
Company and Holder shall promptly agree upon a reputable investment banking
firm to undertake such valuation. If the valuation of such investment banking
firm is greater than that determined by the Board of Directors, then all fees
and expenses of such investment banking firm shall be paid by the Company. In
all other circumstances, such fees and expenses shall be paid by Holder.
4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional share shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction.
5. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation of
this Warrant and, in the case of loss, theft, or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the
Company or, in the case of mutilation, on surrender and cancellation of this
Warrant, the Company at its expense shall execute and deliver, in lieu of this
Warrant, a new warrant of like tenor and amount.
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6. Rights of Stockholders. Subject to Sections 8 and 10 of this Warrant,
the Holder shall not be entitled to vote or receive dividends or be deemed the
holder of Common Stock or any other securities of the Company that may at any
time be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the Holder, as such, any of the
rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value, or change of stock to no par value, consolidation, merger, conveyance or
otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until the Warrant shall have been exercised and
the shares of Common Stock purchasable upon the exercise hereof (the "Warrant
Shares") shall have been issued, as provided herein.
7. Compliance with Securities Laws. This Warrant may not be transferred
or assigned in whole or in part without compliance with all applicable federal
and state securities laws by the transferor and the transferee (including the
delivery of investment representation letters and legal opinions reasonably
satisfactory to the Company, if such are requested by the Company).
(a) The Holder of this Warrant, by acceptance thereof, acknowledges
that this Warrant and the shares of Common Stock to be issued upon exercise
hereof are being acquired solely for the Holder's own account and not as a
nominee for any other party, and for investment, and that the Holder will not
offer, sell or otherwise dispose of this Warrant or any shares of Common Stock
to be issued upon exercise hereof except under circumstances that will not
result in a violation of any federal securities laws, including without
limitation the Securities Act of 1933, as amended (the "Act"), any state
securities laws or any applicable securities law of foreign jurisdictions, or
any rules or regulations promulgated thereunder. Upon exercise of this Warrant,
the Holder shall, if requested by the Company, confirm in writing in a form
satisfactory to the Company, that the shares of Common Stock so purchased are
being acquired solely for the Holder's own account and not as a nominee for any
other party, for investment, and not with a view toward distribution or resale.
(b) Without in any way limiting the representations set forth in (a)
above, the Holder further agrees not to make any disposition of all or any
portion of this Warrant or any Warrant Shares unless and until the transferee
has agreed in writing for the benefit of the Company to be bound by this
Section 7, and the satisfaction of the following conditions: (i) the Holder
shall have notified the Company of the proposed disposition and shall have
furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, and (ii) if reasonably requested by the
Company, the Holder shall have furnished the Company with an opinion of
counsel, reasonably satisfactory to the Company, that such disposition will not
require registration of such securities under the Act.
(c) This Warrant and all shares issuable hereunder shall bear the
following legends:
(i) "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
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IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH
SECURITIES, OR DELIVERY OF AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER OF THESE SECURITIES THAT SUCH OFFER, SALE OR
TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH THE ACT."
(ii) Any legend required by applicable state law.
8. Reservation of Stock. The Company covenants that during the Term this
Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant and, from time to time, will
take all steps necessary to provide sufficient reserves of shares of the Common
Stock issuable upon the exercise of the Warrant. The Company further covenants
that all shares that may be issued upon the exercise of rights represented by
this Warrant and payment of the Exercise Price, all as set forth herein, will be
free from all taxes, liens, and charges in respect to the issue thereof (other
than taxes in respect to any transfer occurring contemporaneously or otherwise
specified herein). The Company agrees that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates for
shares of Common Stock upon the exercise of this Warrant.
9. Amendments and Waivers. Any term of this Warrant may be amended and
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively) only with the
written consent of the Company and the Holder. No waivers of or exceptions to
any term, condition or provision of this Warrant, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of any
such term, condition or provision.
10. Adjustments. The Exercise Price and the number of shares purchasable
hereunder are subject to adjustment from time to time as follows:
(a) Reclassification, etc. If the Company at any time while this
Warrant, or any portion thereof, remains outstanding and unexpired shall, by
reclassification of securities or otherwise, change any of the securities as to
which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under the Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 10.
(b) Split, Subdivision or Combination of Shares. If the Company at
any time while this Warrant, or any portion hereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased and the number of securities issuable upon exercise proportionately
increased in the case of a split or subdivision.
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or the Exercise Price of such securities shall be proportionately increased and
the number of securities issuable upon exercise proportionately decreased in the
case of a combination.
(c) Adjustments for Dividends in Stock or Other Securities or
Property. If, while this Warrant, or any portion hereof, remains outstanding and
unexpired the holders of the securities as to which purchase rights under this
Warrant exist at the time shall have received, or, on or after the record date
fixed for the determination of eligible Stockholders, shall have become entitled
to receive, without payment therefor, other or additional stock or other
securities or property (other than cash) of the Company by way of dividend, then
and in each case, this Warrant shall represent the right to acquire, in addition
to the number of shares of the security receivable upon the exercise of this
Warrant, and without payment of any additional consideration thereof, the amount
of such other or additional stock or other securities or property (other than
cash) of the Company which such holder would hold on the date of such exercise
had it been the holder of record of the security receivable upon exercise of
this Warrant on the date hereof and had thereafter, during the period from the
date hereof to and including the date of such exercise, retained such shares
and/or all other additional stock available by it as aforesaid during such
period, giving effect to all adjustments called for during such period by the
provisions of this Section 10.
(d) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 10, the Company shall, upon
the written request of any holder of this Warrant, furnish or cause to be
furnished to such holder a certificate setting forth: (i) such adjustments and
readjustments; (ii) the Exercise Price at the time in effect; and (iii) the
number of shares and the amount, if any, of other property which at the time
would be received upon the exercise of the Warrant.
(e) No Impairment. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all of the provisions of this Section 10 and
in the taking of all such action as may be necessary or appropriate in order to
protect the rights of the holders of this Warrant against impairment.
11. Expiration of Warrant Upon Occurrence of Certain Events.
(a) Upon the closing of any Acquisition or Initial Public Offering,
this Warrant shall expire.
(b) Definitions. For the purpose of this Section 11 the following
definitions shall apply:
(i) "Acquisition" means any sale, license, or other disposition
of all or substantially all of the assets (including intellectual property) of
the Company, or any reorganization, consolidation, or merger of the Company
where the holders of the Company's securities before the transaction
beneficially own less than 50% of the outstanding voting securities of the
surviving entity after the transaction.
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(ii) "Initial Public Offering" means the Company's initial firm
commitment underwritten public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended, covering the offer and
sale of Common Stock for the account of the Company to the public.
12. Successors and Assigns. The terms and provisions of this Warrant shall
inure to the benefit of and be binding upon the Company and Holder and their
respective permitted successors and assigns.
13. Attorneys' Fees. If any action of law or equity is necessary to
enforce or interpret the terms of this Warrant, the prevailing party shall be
entitled to its reasonable attorneys' fees, costs and disbursements in addition
to any other relief to which it may be entitled.
14. Governing Law. This Warrant shall be governed by the laws of the State
of California.
15. Notices. All notices required under this Warrant and shall be deemed
to have been given or made for all purposes (i) upon personal delivery, (ii)
upon confirmation receipt that the communication was successfully sent to the
applicable number if sent by facsimile; (iii) one day after being sent, when
sent by professional overnight courier service, or (iv) five days after posting
when sent by registered or certified mail to either party hereto at the address
set forth below or at such other address as either party may designate by notice
pursuant to this Section 15.
If to the Company: Avanex Corporation
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: President
with a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx X'Xxxxx
If to the Holder: Xxxxxxxx Xx
000 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
16. Captions. The Section and subsection headings of this Warrant are
inserted for convenience only and shall not constitute a part of this Warrant in
construing or interpreting any provision hereof.
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IN WITNESS HEREOF, AVANEX CORPORATION has caused this Warrant to be executed by
its officers thereunto duly authorized.
Dated: 12/31, 1998
AVANEX CORPORATION
By: /s/ XXXXX XXX
-------------------------------
Xxxxx Xxx
2/9/99
*WARRANT*
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NOTICE OF EXERCISE
To: AVANEX CORPORATION
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase ___________ shares of the
Common Stock of Avanex Corporation pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full.
1. The undersigned hereby elects to convert the attached Warrant into
shares in the manner specified in Section 3(c) of the Warrant. This conversion
is exercised with respect to __________ of the Shares covered by the Warrant.
[STRIKE VERSION OF PARAGRAPH 1 THAT DOES NOT APPLY.]
2. Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name as is specified below:
----------------------------------
(Name)
----------------------------------
----------------------------------
(Address)
3. In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of Common Stock are being acquired solely for the
account of the undersigned and not as a nominee for any other party, and for
investment, and that the undersigned will not offer, sell, or otherwise dispose
of any such shares of Common Stock except under circumstances that will not
result in a violation of any federal securities laws, including without
limitation the Securities Act of 1933, as amended, any state securities laws or
any applicable securities laws of foreign jurisdictions or any rules or
regulations promulgated thereunder.
----------------------------------
(Signature)
----------------------------
(Date)
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WARRANT PURCHASE AGREEMENT
Xxxxx Xxx (the "Purchaser") hereby purchases from Avanex Corporation, a
California corporation (the "Seller"), and the Seller hereby sells to the
Purchaser, a warrant in the form attached hereto as Exhibit A (the "Warrant")
for the purchase price of $10.00.
The Purchaser represents and warrants that it is acquiring the Warrant for
investment purposes only and not with a view to distribution of the Warrant, as
such term is defined under the Securities Act of 1933, as amended (the "1933
Act"). The Purchaser understands and acknowledges that the Warrant constitutes
a "restricted security" as such term is defined under the 1933 Act and may not
be sold or otherwise transferred unless registered under the 1933 Act or unless
an appropriate exemption from registration shall then exist.
The Purchaser acknowledges receipt of the Warrant, and the Seller
acknowledges receipt from Purchaser of cash or a check in the amount of $10.00.
This Warrant Purchase Agreement is executed effective as of this 31st day
of December, 1998.
PURCHASER:
/s/ XXXXX XXX
----------------------------------------
Name (print): Xxxxx Xxx
SELLER:
AVANEX CORPORATION
A California corporation
By: /s/ XXXXX XXX
------------------------------------
Name: Xxxxx Xxx
Title: Sr. VP
Date: 3-3-99
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT
IN EFFECT WITH RESPECT TO SUCH SECURITIES, OR DELIVERY OF AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES THAT SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH THE
ACT.
Warrant to Purchase
75,000 Shares
of Common Stock
Dated ______, 0000
XXXXXXX TO PURCHASE COMMON STOCK
OF
AVANEX CORPORATION
Void after Dec. 31st, 2003
This certifies that, for value received, XXXXX XXX or his or her
registered assigns ("Holder") is entitled, subject to the terms set forth
below, to purchase from AVANEX CORPORATION (the "Company"), a California
corporation, Seventy-Five Thousand (75,000) shares of the Common Stock of the
Company, as constituted on the date hereof (the "Warrant Issue Date"), upon
surrender hereof, at the principal office of the Company referred to below, with
the subscription form attached hereto duly executed, and simultaneous payment
therefor in lawful money of the United States or otherwise as hereinafter
provided, at the Exercise Price as set forth in Section 2 below. The number,
character and Exercise Price of such shares of Common Stock are subject to
adjustment as provided below.
1. Term of Warrant. Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable, in whole or in part, during the term
commencing on the Warrant Issue Date and ending at 5:00 p.m., Pacific Standard
Time, on Dec. 31st, 2003 (the "Term"), and shall be void thereafter.
2. Exercise Price. The Exercise Price at which this Warrant may be
exercised shall be $6.00 per share of Common Stock as adjusted from time to time
pursuant to Section 10 hereof (the "Exercise Price").
3. Exercise of Warrant.
(a) Manner of Exercise. This Warrant is exercisable by the Holder in
whole or in part, but not for less than twenty thousand (20,000) shares at a
time (or if the maximum number of shares purchasable upon exercise of this
Warrant is less than 20,000, this Warrant shall be exercisable for such lesser
number of shares which may then constitute the maximum number purchasable), at
anytime, or from time to time, during the term hereof as described in Section
1 above, by the surrender of this
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Warrant and the Notice of Exercise annexed hereto duly completed and executed on
behalf of the Holder, at the office of the Company (or such other office or
agency of the Company as it may designate by notice in writing to the Holder at
the address of the Holder appearing on the books of the Company). Unless Holder
is exercising the conversion right set forth in Section 3(c), Holder shall also
deliver to the Company a check for the aggregate Exercise Price for the shares
of Common Stock being purchased.
(b) This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the share of Common Stock
issuable upon such exercise shall be treated for all purposes as the holder of
record of such shares as of the close of business on such date. As promptly as
practicable on or after such date and in any event within twenty (20) days
thereafter, the Company at its expense shall issue and deliver to the person or
persons entitled to receive the same a certificate or certificates for the
number of shares issuable upon such exercise. In the event this Warrant is
exercised in part, the Company at its expense will execute and deliver a new
Warrant of like tenor exercisable for the remaining number of shares for which
this Warrant may then be exercised.
(c) Net Exercise Conversion Right. In lieu of exercising this Warrant
as specified in Section 3(a), Holder may from time to time convert this Warrant,
in whole or in part, into a number of Shares determined by dividing (y) the
aggregate fair market value of the shares of Common Stock or other securities
otherwise issuable upon exercise of this Warrant minus the aggregate Warrant
Price of such shares of Common Stock by (z) the fair market value of one shares
of Common Stock. The fair market value of the shares of Common Stock shall be
determined pursuant to Section 3(d).
(d) Fair Market value. The Board of Directors of the Company shall
determine fair market value of the Company's Common Stock in its reasonable good
faith judgment. The foregoing notwithstanding, if Holder advises the Board of
Directors in writing that Holder disagrees with such determination, then the
Company and Holder shall promptly agree upon a reputable investment banking firm
to undertake such valuation. If the valuation of such investment banking firm is
greater than that determined by the Board of Directors, then all fees and
expenses of such investment banking firm shall be paid by the Company. In all
other circumstances, such fees and expenses shall be paid by Holder.
4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional share shall be issued upon the exercise of this Warrant.
In lieu of any fractional share to which the Holder would otherwise be entitled,
the Company shall make a cash payment equal to the Exercise Price multiplied by
such fraction.
5. Replacement of Warrant. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction, or mutilation of this Warrant
and, in the case of loss, theft, or destruction, on delivery of an indemnity
agreement reasonably satisfactory in form and substance to the Company or, in
the case of mutilation, on surrender and cancellation of this Warrant, the
Company at its expense shall execute and deliver, in lieu of this Warrant, a new
warrant of like tenor and amount.
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6. Rights of Stockholders. Subject to Sections 8 and 10 of this Warrant,
the Holder shall not be entitled to vote or receive dividends or be deemed the
holder of Common Stock or any other securities of the Company that may at any
time be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the Holder, as such, any of the
rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value, or change of stock to no par value, consolidation, merger, conveyance,
or otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until the Warrant shall have been exercised
and the shares of Common Stock purchasable upon the exercise hereof (the
"Warrant Shares") shall have been issued, as provided herein.
7. Compliance with Securities Laws. This Warrant may not be transferred
or assigned in whole or in part without compliance with all applicable federal
and state securities laws by the transferor and the transferee (including the
delivery of investment representation letters and legal opinions reasonably
satisfactory to the Company, if such are requested by the Company).
(a) The Holder of this Warrant, by acceptance thereof, acknowledges
that this Warrant and the shares of Common Stock to be issued upon exercise
hereof are being acquired solely for the Holder's own account and not as a
nominee for any other party, and for investment, and that the Holder will not
offer, sell or otherwise dispose of this Warrant or any shares of Common Stock
to be issued upon exercise hereof except under circumstances that will not
result in a violation of any federal securities laws, including without
limitation the Securities Act of 1933, as amended (the "Act"), any state
securities laws or any applicable securities law of foreign jurisdictions, or
any rules or regulations promulgated thereunder. Upon exercise of this Warrant,
the Holder shall, if requested by the Company, confirm in writing in a form
satisfactory to the Company, that the shares of Common Stock so purchased are
being acquired solely for the Holder's own account and not as a nominee for any
other party, for investment, and not with a view toward distribution or resale.
(b) Without in any way limiting the representations set forth in (a)
above, the Holder further agrees not to make any disposition of all or any
portion of this Warrant or any Warrant Shares unless and until the transferee
has agreed in writing for the benefit of the Company to be bound by this
Section 7, and the satisfaction of the following conditions: (i) the Holder
shall have notified the Company of the proposed disposition and shall have
furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, and (ii) if reasonably requested by the
Company, the Holder shall have furnished the Company with an opinion of
counsel, reasonably satisfactory to the Company, that such disposition will not
require registration of such securities under the Act.
(c) This Warrant and all shares issuable hereunder shall bear the
following legends:
(i) "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
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IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH
SECURITIES, OR DELIVERY OF AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER OF THESE SECURITIES THAT SUCH OFFER, SALE OR
TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH THE ACT."
(ii) Any legend required by applicable state law.
8. Reservation of Stock. The Company covenants that during the Term this
Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant and, from time to time, will
take all steps necessary to provide sufficient reserves of shares of the Common
Stock issuable upon the exercise of the Warrant. The Company further covenants
that all shares that may be issued upon the exercise of rights represented by
this Warrant and payment of the Exercise Price, all as set forth herein, will
be free from all taxes, liens, and charges in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously or
otherwise specified herein). The Company agrees that its issuance of this
Warrant shall constitute full authority to its officers who are charged with
the duty of executing stock certificates to execute and issue the necessary
certificates for shares of Common Stock upon the exercise of this Warrant.
9. Amendments and Waivers. Any term of this Warrant may be amended and the
observance of any term of this Warrant may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and the Holder. No waivers of or exceptions to
any term, condition or provision of this Warrant, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of any
such term, condition or provision.
10. Adjustments. The Exercise Price and the number of shares purchasable
hereunder are subject to adjustment from time to time as follows:
(a) Reclassification, etc. If the Company at any time while this
Warrant, or any portion thereof, remains outstanding and unexpired shall, by
reclassification of securities or otherwise, change any of the securities as to
which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 10.
(b) Split Subdivision or Combination of Shares. If the Company at any
time while this Warrant, or any portion hereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased and the number of securities issuable upon exercise proportionately
increased in the case of a split or subdivision
-4-
15
or the Exercise Price of such securities shall be proportionately increased and
the number of securities issuable upon exercise proportionately decreased in
the case of a combination.
(c) Adjustments for Dividends in Stock or Other Securities or
Property. If, while this Warrant, or any portion hereof, remains outstanding
and unexpired the holders of the securities as to which purchase rights under
this Warrant exist at the time shall have received, or, on or after the record
date fixed for the determination of eligible Stockholders, shall have become
entitled to receive, without payment therefor, other or additional stock or
other securities or property (other than cash) of the Company by way of
dividend, then and in each case, this Warrant shall represent the right to
acquire, in addition to the number of shares of the security receivable upon
the exercise of this Warrant, and without payment of any additional
consideration thereof, the amount of such other or additional stock or other
securities or property (other than cash) of the Company which such holder would
hold on the date of such exercise had it been the holder of record of the
security receivable upon exercise of this Warrant on the date hereof and had
thereafter, during the period from the date hereof to and including the date of
such exercise, retained such shares and/or all other additional stock available
by it as aforesaid during such period, giving effect to all adjustments called
for during such period by the provisions of this Section 10.
(d) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 10, the Company shall, upon
the written request of any holder of this Warrant, furnish or cause to be
furnished to such holder a certificate setting forth: (i) such adjustments and
readjustments; (ii) the Exercise Price at the time in effect; and (iii) the
number of shares and the amount, if any, of other property which at the time
would be received upon the exercise of the Warrant.
(e) No Impairment. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all of the provisions of this Section 10
and in the taking of all such action as may be necessary or appropriate in
order to protect the rights of the holders of this Warrant against impairment.
11. Expiration of Warrant Upon Occurrence of Certain Events.
(a) Upon the closing of any Acquisition or Initial Public Offering,
this Warrant shall expire.
(b) Definitions. For the purpose of this Section 11 the following
definitions shall apply:
(i) "Acquisition" means any sale, license, or other disposition
of all or substantially all of the assets (including intellectual property) of
the Company, or any reorganization, consolidation, or merger of the Company
where the holders of the Company's securities before the transaction
beneficially own less than 50% of the outstanding voting securities of the
surviving entity after the transaction.
-5-
16
(ii) "Initial Public Offering" means the Company's initial firm
commitment underwritten public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended, covering the offer and
sale of Common Stock for the account of the Company to the public.
12. Successors and Assigns. The terms and provisions of this Warrant
shall inure to the benefit of and be binding upon the Company and Holder and
their respective permitted successors and assigns.
13. Attorneys' Fees. If any action of law or equity is necessary to
enforce or interpret the terms of this Warrant, the prevailing party shall be
entitled to its reasonable attorneys' fees, costs and disbursements in addition
to any other relief to which it may be entitled.
14. Governing Law. This Warrant shall be governed by the laws of the
State of California.
15. Notices. All notices required under this Warrant and shall be deemed
to have been given or made for all purposes (i) upon personal delivery, (ii)
upon confirmation receipt that the communication was successfully sent to the
applicable number if sent by facsimile; (iii) one day after being sent, when
sent by professional overnight courier service, or (iv) five days after posting
when sent by registered or certified mail to either party hereto at the address
set forth below or at such other address as either party may designate by
notice pursuant to this Section 15.
If to the Company: Avanex Corporation
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: President
with a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx X'Xxxxx
If to the Holder: Xxxxx Xxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
16. Captions. The section and subsection headings of this Warrant are
inserted for convenience only and shall not constitute a part of this Warrant
in construing or interpreting any provision hereof.
-6-
17
IN WITNESS HEREOF, AVANEX CORPORATION has caused this Warrant to be executed by
its officers thereunto duly authorized.
Dated: Dec. 31st, 1998
AVANEX CORPORATION
By: /s/ XXXXX XXX
------------------------------
Xxxxx Xxx
3-3-99
*WARRANT*
-7-
18
WARRANT PURCHASE AGREEMENT
Xxx Xxxx (the "Purchaser") hereby purchases from Avanex Corporation, a
California corporation (the "Seller"), and the Seller hereby sells to the
Purchaser, a warrant in the form attached hereto as Exhibit A (the "Warrant")
for the purchase price of $10.00.
The Purchaser represents and warrants that it is acquiring the Warrant for
investment purposes only and not with a view to the distribution of the Warrant,
as such term is defined under the Securities Act of 1933, as amended (the "1933
Act"). The Purchaser understands and acknowledges that the Warrant constitutes a
"restricted security" as such term is defined under the 1933 Act and may not be
sold or otherwise transferred unless registered under the 1933 Act or unless an
appropriate exemption from registration shall then exist.
The Purchaser acknowledges receipt of the Warrant, and the Seller
acknowledges receipt from Purchaser of cash or a check in the amount of $10.00.
This Warrant Purchaser Agreement is executed effective as of this 31st day
of December 1998.
PURCHASER:
Xxx Xxxx
-----------------------------------
Name (print)
/s/ XXX XXXX
-----------------------------------
SELLER:
AVANEX CORPORATION
a California corporation
By: /s/ XXXXX XXX
--------------------------------
Name: Xxxxx Xxx
Title: Sr. VP
19
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT
IN EFFECT WITH RESPECT TO SUCH SECURITIES, OR DELIVERY OF AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES THAT SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH THE ACT.
Warrant to Purchase
75,000 Shares
of Common Stock
Dated 12/31, 1998
WARRANT TO PURCHASE COMMON STOCK
OF
AVANEX CORPORATION
Void after 12/31, 2003
This certifies that, for value received, XXX XXXX or his or her registered
assigns ("Holder") is entitled, subject to the terms set forth below, to
purchase from AVANEX CORPORATION (the "Company"), a California corporation,
Seventy-Five Thousand (75,000) shares of the Common Stock of the Company, as
constituted on the date hereof (the "Warrant Issue Date"), upon surrender
hereof, at the principal office of the Company referred to below, with the
subscription form attached hereto duly executed, and simultaneous payment
therefor in lawful money of the United States or otherwise as hereinafter
provided, at the Exercise Price as set forth in Section 2 below. The number,
character and Exercise Price of such shares of Common Stock are subject to
adjustment as provided below.
1. Term of Warrant. Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable, in whole or in part, during the term
commencing on the Warrant Issue Date and ending at 5:00 p.m., Pacific Standard
Time, on 12/31, 2003 (the "Term"), and shall be void thereafter.
2. Exercise Price. The Exercise Price at which this Warrant may be
exercised shall be $6.00 per share of Common Stock as adjusted from time to time
pursuant to Section 10 hereof (the "Exercise Price").
3. Exercise of Warrant.
(a) Manner of Exercise. This Warrant is exercisable by the Holder in
whole or in part, but not for less than twenty thousand (20,000) shares at a
time (or if the maximum number of shares purchasable upon exercise of this
Warrant is less than 20,000, this Warrant shall be exercisable for such lesser
number of shares which may then constitute the maximum number purchasable), at
any time, or from time to time, during the term hereof as described in Section
1 above, by the surrender of this
20
Warrant and the Notice of Exercise annexed hereto duly completed and executed on
behalf of the Holder, at the office of the Company (or such other office or
agency of the Company as it may designate by notice in writing to the Holder at
the address of the Holder appearing on the books of the Company). Unless Holder
is exercising the conversion right set forth in Section 3(c), Holder shall also
deliver to the Company a check for the aggregate Exercise Price for the shares
of Common Stock being purchased.
(b) This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the shares of Common Stock
issuable upon such exercise shall be treated for all purposes as the holder of
record of such shares as of the close of business on such date. As promptly as
practicable on or after such date and in any event within twenty (20) days
thereafter, the Company at its expense shall issue and deliver to the person or
persons entitled to receive the same a certificate or certificates for the
number of shares issuable upon such exercise. In the event that this Warrant is
exercised in part, the Company at its expense will execute and deliver a new
Warrant of like tenor exercisable for the remaining number of shares for which
this Warrant may then be exercised.
(c) Net Exercise Conversion Right. In lieu of exercising this Warrant
as specified in Section 3(a), Holder may from time to time convert this Warrant,
in whole or in part, into a number of Shares determined by dividing (y) the
aggregate fair market value of the shares of Common Stock or other securities
otherwise issuable upon exercise of this Warrant minus the aggregate Warrant
Price of such shares of Common Stock by (z) the fair market value of one shares
of Common Stock. The fair market value of the shares of Common Stock shall be
determined pursuant to Section 3(d).
(d) Fair Market Value. The Board of Directors of the Company shall
determine fair market value of the Company's Common Stock in its reasonable good
faith judgment. The foregoing notwithstanding, if Holder advises the Board of
Directors in writing that Holder disagrees with such determination, then the
Company and Holder shall promptly agree upon a reputable investment banking firm
to undertake such valuation. If the valuation of such investment banking firm is
greater than that determined by the Board of Directors, then all fees and
expenses of such investment banking firm shall be paid by the Company. In all
other circumstances, such fees and expenses shall be paid by Holder.
4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional share shall be issued upon the exercise of this Warrant.
In lieu of any fractional share to which the Holder would otherwise be entitled,
the Company shall make a cash payment equal to the Exercise Price multiplied by
such fraction.
5. Replacement of Warrant. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction, or mutilation of this Warrant
and, in the case of loss, theft, or destruction, on delivery of an indemnity
agreement reasonably satisfactory in form and substance to the Company or, in
the case of mutilation, on surrender and cancellation of this Warrant, the
Company at its expense shall execute and deliver, in lieu of this Warrant, a new
warrant of like tenor and amount.
-2-
21
6. Rights of Stockholders. Subject to Sections 8 and 10 of this Warrant,
the Holder shall not be entitled to vote or receive dividends or be deemed the
holder of Common Stock of any other securities of the Company that may at any
time be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the Holder, as such, any of the
rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value, or change of stock to no par value, consolidation, merger, conveyance,
or otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until the Warrant shall have been exercised
and the shares of Common Stock purchasable upon the exercise hereof (the
"Warrant Shares") shall have been issued, as provided herein.
7. Compliance with Securities Laws. This Warrant may not be transferred
or assigned in whole or in part without compliance with all applicable federal
and state securities laws by the transferor and the transferee (including the
delivery of investment representation letters and legal opinions reasonably
satisfactory to the Company, if such are requested by the Company).
(a) The Holder of this Warrant, by acceptance thereof, acknowledges
that this Warrant and the shares of Common Stock to be issued upon exercise
hereof are being acquired solely for the Holder's own account and not as a
nominee for any other party, and for investment, and that the Holder will not
offer, sell or otherwise dispose of this Warrant or any shares of Common Stock
to be issued upon exercise hereof except under circumstances that will not
result in a violation of any federal securities laws, including without
limitation the Securities Act of 1933, as amended (the "Act"), any state
securities laws or any applicable securities law of foreign jurisdictions, or
any rules or regulations promulgated thereunder. Upon exercise of this Warrant,
the Holder shall, if requested by the Company, confirm in writing in a form
satisfactory to the Company, that the shares of Common Stock so purchased are
being acquired solely for the Holder's own account and not as a nominee for any
other party, for investment, and not with a view toward distribution or resale.
(b) Without in any way limiting the representations set forth in (a)
above, the Holder further agrees not to make any disposition of all or any
portion of this Warrant or any Warrant Shares unless and until the transferee
has agreed in writing for the benefit of the Company to be bound by this
Section 7, and the satisfaction of the following conditions: (i) the Holder
shall have notified the Company of the proposed disposition and shall have
furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, and (ii) if reasonably requested by the
Company, the Holder shall have furnished the Company with an opinion of
counsel, reasonably satisfactory to the Company, that such disposition shall
not require registration of such securities under the Act.
(c) This Warrant and all shares issuable hereunder shall bear the
following legends:
(i) "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
-3-
22
IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH
SECURITIES, OR DELIVERY OF AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER OF THESE SECURITIES THAT SUCH OFFER, SALE OR
TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH THE ACT."
(ii) Any legend required by applicable state law.
8. Reservation of Stock. The Company covenants that during the Term this
Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant and, from time to time, will
take all steps necessary to provide sufficient reserves of shares of the Common
Stock issuable upon the exercise of the Warrant. The Company further covenants
that all shares that may be issued upon the exercise of rights represented by
this Warrant and payment of the Exercise Price, all as set forth herein, will
be free from all taxes, liens, and charges in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously or
otherwise specified herein). The Company agrees that its issuance of this
Warrant shall constitute full authority to its officers who are charged with
the duty of executing stock certificates to execute and issue the necessary
certificates for shares of Common Stock upon the exercise of this Warrant.
9. Amendments and Waivers. Any term of this Warrant may be amended and
the observance of any term of this Warrant may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with
the written consent of the Company and the Holder. No waivers of or exceptions
to any term, condition or provision of this Warrant, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
10. Adjustments. The Exercise Price and the number of shares purchasable
hereunder are subject to adjustment from time to time as follows:
(a) Reclassification, etc. If the Company at any time while this
Warrant, or any portion thereof, remains outstanding and unexpired shall, by
reclassification of securities or otherwise, change any of the securities as to
which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 10.
(b) Split, Subdivision or Combination of Shares. If the Company at
any time while this Warrant, or any portion hereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased and the number of securities issuable upon exercise proportionately
increased in the case of a split or subdivision
-4-
23
or the Exercise Price of such securities shall be proportionately increased and
the number of securities issuable upon exercise proportionately decreased in the
case of a combination.
(c) Adjustments for Dividends in Stock or Other Securities or
Property. If, while this Warrant, or any portion hereof, remains outstanding and
unexpired the holders of the securities as to which purchase rights under this
Warrant exist at the time shall have received, or, on or after the record date
fixed for the determination of eligible Stockholders, shall have become entitled
to receive, without payment therefor, other or additional stock or other
securities or property (other than cash) of the Company by way of dividend, then
and in each case, this Warrant shall represent the right to acquire, in addition
to the number of shares of the security receivable upon the exercise of this
Warrant, and without payment of any additional consideration thereof, the amount
of such other or additional stock or other securities or property (other than
cash) of the Company which such holder would hold on the date of such exercise
had it been the holder of record of the security receivable upon exercise of
this Warrant on the date hereof and had thereafter, during the period from the
date hereof to and including the date of such exercise, retained such shares
and/or all other additional stock available by it as aforesaid during such
period, giving effect to all adjustments called for during such period by the
provisions of this Section 10.
(d) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 10, the Company shall, upon
the written request of any holder of this Warrant, furnish or cause to be
furnished to such holder a certificate setting forth: (i) such adjustments and
readjustments; (ii) the Exercise Price at the time in effect; and (iii) the
number of shares and the amount, if any, of other property which at the time
would be received upon the exercise of the Warrant.
(e) No Impairment. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all of the provisions of this Section 10 and
in the taking of all such action as may be necessary or appropriate in order to
protect the rights of the holders of this Warrant against impairment.
11. Expiration of Warrant Upon Occurrence of Certain Events.
(a) Upon the closing of any Acquisition or Initial Public Offering,
this Warrant shall expire.
(b) Definitions. For the purpose of this Section 11 the following
definitions shall apply:
(i) "Acquisition" means any sale, license, or other disposition
of all or substantially all of the assets (including intellectual property) of
the Company, or any reorganization, consolidation, or merger of the Company
where the holders of the Company's securities before the transaction
beneficially own less than 50% of the outstanding voting securities of the
surviving entity after the transaction.
-5-
24
(ii) "Initial Public Offering" means the Company's initial firm
commitment underwritten public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended, covering the offer and
sale of Common Stock for the account of the Company to the public.
12. Successors and Assigns. The terms and provisions of this Warrant
shall inure to the benefit of and be binding upon the Company and Holder and
their respective permitted successors and assigns.
13. Attorneys' Fees. If any action of law or equity is necessary to
enforce or interpret the terms of this Warrant, the prevailing party shall be
entitled to its reasonable attorney's fees, costs and disbursements in addition
to any other relief to which it may be entitled.
14. Governing Law. This Warrant shall be governed by the laws of the
State of California.
15. Notices. All notices required under this Warrant shall be deemed to
have been given or made for all purposes (i) upon personal delivery, (ii) upon
confirmation receipt that the communication was successfully sent to the
applicable number if sent by facsimile; (iii) one day after being sent, when
sent by professional overnight courier service, or (iv) five days after posting
when sent by registered or certified mail to either party hereto at the address
set forth below or at such other address as either party may designate by
notice pursuant to this Section 15.
If to the Company: Avanex Corporation
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: President
with a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx X'Xxxxx
If to the Holder: Xxx Xxxx
0000 Xxxxx Xxxx., #X
Xxxxx Xxxxx, XX 00000
16. Captions. The Section and subsection headings of this Warrant are
inserted for convenience only and shall not constitute a part of this Warrant
in construing or interpreting any provision hereof.
-6-
25
IN WITNESS HEREOF, AVANEX CORPORATION has caused this Warrant to be executed by
its officers thereunto duly authorized.
Dated: 12/31/, 1998
AVANEX CORPORATION
By: /s/ XXXXX XXX
------------------------------------
Xxxxx Xxx 2-9-99
*WARRANT*
-7-
