OCLARO, INC. Nonstatutory Stock Option Agreement (under the Offer to Exchange Program)
Exhibit (d)(8)
Nonstatutory Stock Option Agreement
(under the Offer to Exchange Program)
(under the Offer to Exchange Program)
1. Grant of Option.
This agreement evidences the grant by Oclaro, Inc., a Delaware corporation (the “Company”), as
of the date of grant (the “Grant Date”) to the individual listed on the attached Notice of Grant
(the “Participant”), of an option to purchase, in whole or in part, on the terms provided herein
and in the Company’s Amended and Restated 2004 Stock Incentive Plan and the Avanex Corporation 1998
Stock Plan, as applicable under the Offer to Exchange (the “Plan”), the number of shares (the
“Shares”) of common stock, $0.01 par value per share, of the Company (“Common Stock”) at the price
per share set forth in the Notice of Grant. Unless earlier terminated, this option shall expire at
5:00 p.m., Pacific time, on the seventh anniversary of the Grant Date (the “Final Exercise Date”).
It is intended that the option evidenced by this agreement shall not be a U.S. incentive stock
option as defined in Section 422 of the U.S. Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder (the “Code”). Except as otherwise indicated by the context, the
term “Participant”, as used in this option, shall be deemed to include any person who acquires the
right to exercise this option validly under its terms.
2. Vesting Schedule.
This option will become exercisable (“vest”) as described in the Offer to Exchange.
The right of exercise shall be cumulative so that to the extent the option is not exercised in
any period to the maximum extent permissible it shall continue to be exercisable, in whole or in
part, with respect to all Shares for which it is vested until the earlier of the Final Exercise
Date or the termination of this option under Section 3 hereof or the Plan.
3. Exercise of Option.
(a) Form of Exercise. Each election to exercise this option shall be in writing,
signed by the Participant, and received by the Company at its principal office, accompanied by this
agreement, and payment in full in the manner provided in the Plan. The Participant may purchase
less than the number of shares covered hereby, provided that no partial exercise of this option may
be for any fractional share or for fewer than ten whole shares.
(b) Continuous Relationship with the Company Required. Except as otherwise provided
in this Section 3, this option may not be exercised unless the Participant, at the time he or she
exercises this option, is, and has been at all times since the Grant Date, an employee or officer,
consultant, the Company or any parent or subsidiary of the Company (an “Eligible Participant”).
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(c) Termination of Relationship with the Company.
(1) If the Participant ceases to be an Eligible Participant for any reason, then, except as
provided in paragraphs (d) and (e) below, the right to exercise this option shall terminate three
months after such cessation (but in no event after the Final Exercise Date), provided
that this option shall be exercisable only to the extent that the Participant was entitled
to exercise this option on the date of such cessation. Notwithstanding the foregoing, if the
Participant, prior to the Final Exercise Date, violates the non-competition or confidentiality
provisions of any employment contract, confidentiality and nondisclosure agreement or other
agreement between the Participant and the Company, the right to exercise this option shall
terminate immediately upon written notice to the Participant from the Company describing such
violation.
(2) The Plan and this option shall not form any part of any contract for services or contract
of employment between the Company or any past or present subsidiary and neither the Plan nor this
agreement shall confer any legal or equitable rights (other than those constituting this option) on
the Participant against the Company or any past or present subsidiary, directly or indirectly, or
give rise to any cause of action in law or in equity against the Company or any past or present
subsidiary.
(3) In no circumstance shall the Participant on ceasing to hold the consultancy, office or
employment by virtue of which he or she is or may be eligible to participate in the Plan be
entitled to any compensation for any loss of any right or benefit or prospective right or benefit
under the Plan or this option which he or she might otherwise have enjoyed (including, without
limitation, the lapse of this option or part thereof by reason of his ceasing to hold a consultancy
position, office or ceasing to be employed by the Company or any past or present subsidiary)
whether such compensation is claimed by way of damages for wrongful dismissal or other lawful or
unlawful breach of contract or by way of compensation for loss of office or otherwise.
(d) Exercise Period Upon Death or Disability. If the Participant dies or becomes
disabled (within the meaning of Section 22(e)(3) of the Code) prior to the Final Exercise Date
while he or she is an Eligible Participant and the Company has not terminated such relationship for
“cause” as specified in paragraph (e) below, this option shall be exercisable, within the period of
one year following the date of death or disability of the Participant, by the Participant (or in
the case of death by an authorized transferee), provided that this option shall be
exercisable only to the extent that this option was exercisable by the Participant on the date of
his or her death or disability, and further provided that this option shall not be exercisable
after the Final Exercise Date.
(e) Discharge for Cause. If the Participant, prior to the Final Exercise Date, is
discharged by the Company for “cause” (as defined below), the right to exercise this option shall
terminate immediately upon the effective date of such discharge. “Cause” shall mean willful
misconduct by the Participant or willful failure by the Participant to perform his or her
responsibilities to the Company (including, without limitation, breach by the Participant of any
provision of any employment, consulting, advisory, nondisclosure, non-competition or other similar
agreement between the Participant and the Company), as determined by the Company,
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which determination shall be conclusive. The Participant shall be considered to have been
discharged for “Cause” if the Company determines, within 30 days after the Participant’s
resignation, that discharge for cause was warranted.
4. Nontransferability of Option.
This option may not be sold, assigned, transferred, pledged or otherwise encumbered by the
Participant, either voluntarily or by operation of law, except by will or the laws of descent and
distribution, and, during the lifetime of the Participant, this option shall be exercisable only by
the Participant.
5. Provisions of the Plan.
This option is subject to the provisions of the Plan, a copy of which is furnished to the
Participant with this option.
6. Tax Obligations.
Regardless of any action the Company or Participant’s Employer (the “Employer”) takes with
respect to any or all income tax, social insurance, payroll tax, or other Tax-Related withholding
(“Tax-Related Items”), Participant acknowledges that the ultimate liability for all Tax-Related
items legally due by Participant is and remains Participant’s responsibility and that the Company
and/or the Employer (1) make no representations or undertakings regarding the treatment of any
Tax-Related Items in connection with any aspect of the option grant, including the grant, vesting
or exercise of the option, the subsequent sale of Shares of shares acquired pursuant to such
exercise and the receipt of any dividends; and (2) do not commit to structure the terms of the
grant or any aspect of the option to reduce or eliminate Participant’s liability for Tax-Related
Items or to achieve any particular tax result. Further, if Participant becomes subject to tax in
more than one jurisdiction between the date of grant of the replacement option and the date of any
relevant taxable or tax withholding event, as applicable, and Participant acknowledges that the
Company and/or Employer may be required to withhold or account for Tax-Related Items in more than
one jurisdiction.
Prior to exercise of the option, Participant will pay or make adequate arrangements
satisfactory to the Company and/or the Employer to satisfy all withholding obligations of the
Company and/or the Employer, if any. In this regard, Participant authorizes the Company and/or the
Employer to withhold all applicable Tax-Related Items legally payable by Participant from
Participant’s compensation paid to Participant by the Company and/or Employer or from proceeds of
the sale of shares of Shares. Alternatively, or in addition, if permissible under local law, the
Company may (1) sell or arrange for the sale of Shares that Participant acquires to meet the
withholding obligation for Tax-Related Items and/or (2) withhold in Shares, provided that the
Company only withholds the amount of Shares necessary to satisfy the minimum withholding amount.
Finally, Participant will pay to the Company or the Employer any amount of Tax-Related Items that
the Company or the Employer may be required to withhold as a result of Participant’s participation
in the Plan or Participant’s purchase of Shares that cannot be satisfied by the means previously
described. The Company may refuse to honor the exercise and refuse to
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deliver the Shares if Participant fails to comply with Participant’s obligations in connection
with the Tax-Related Items as described in this section.
7. Nature of Grant.
In accepting the grant, Participant acknowledges that:
(a) the Plan is established voluntarily by the Company, it is discretionary in nature and it
may be modified, amended, suspended or terminated by the Company at any time, unless otherwise
provided in the Plan and this Agreement;
(b) the grant of the option is voluntary and occasional and does not create any contractual or
other right to receive future grants of options, or benefits in lieu of options, even if options
have been granted repeatedly in the past;
(c) all decisions with respect to future option grants, if any, will be at the sole discretion
of the Company;
(d) Participant’s participation in the Plan shall not create a right to further employment
with the employer and shall not interfere with the ability of the Employer to terminate
Participant’s employment relationship at any time with or without cause;
(e) Participant is voluntarily participating in the Plan;
(f) the option is an extraordinary item that does not constitute compensation of any kind for
services of any kind rendered to the Company or the Employer, and which is outside the scope of
Participant’s employment contract, if any;
(g) the option is not part of normal or expected compensation or salary for any purpose,
including, but not limited to, calculating any severance, resignation, termination, redundancy, end
of service payments, bonuses, long service awards, pension or retirement benefits or similar
payments and in no event should be considered as compensation for, or relating in any way to, past
services for the Company or the Employer;
(h) in the event that Participant is not an employee of the Employee, the option grant will
not be interpreted to form an employment contract or relationship with the Company; and
furthermore, the option grant will not be interpreted to form an employment contract with the
Employer or any subsidiary or affiliate of the Company;
(i) the future value of the underlying Shares is unknown and cannot be predicted with
certainty;
(j) if the underlying Shares do not increase in value, the option will have no value;
(k) if Participant exercises Participant’s option and obtains Shares, the value of those
Shares acquired upon exercise may increase or decrease in value, even below the exercise price;
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(l) in consideration of the grant of the option, no claim or entitlement to compensation or
damages shall arise from termination of the option or diminution in value of the option or Shares
purchased through exercise of the option resulting from termination of Participant’s employment the
Company or the Employer (for any reason whatsoever) and Participant irrevocably releases the
Company and the Employer from any such claim that may arise; if, not withstanding the foregoing,
any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this
Agreement, Participant shall be deemed irrevocably to have waived Participant’s entitlement to
pursue such claim; and
(m) in the event of termination of Participant’s employment, Participant’s right to receive
the option and vest in the option under the Plan, if any, will terminate effective as of the date
that Participant is no longer actively employed and will not be extended by any notice period
mandated under the local law (e.g., active employment would not include a period of “garden leave”
or similar period pursuant to local law); furthermore, in the event of termination of employment,
Participant’s right to exercise the option after termination of employment, if any, will be
measured by the date of termination of Participant’s active employment and will not be extended by
any notice period mandated under local law; the Company shall have the exclusive discretion to
determine when Participant are no longer actively employed for purposes of Participant’s option
grant.
8. Data Privacy.
Participant hereby explicitly and unambiguously consents to the collection, use and transfer,
in electronic or other form, of Participant’s personal data as described in this document by and
among, as applicable, the Employer, the Company and its subsidiaries and affiliates for the
exclusive purpose of implementing, administering and managing Participant’s participation in the
Plan.
Participant understands that the Company and the Employer may hold certain personal
information about Participant, including, but not limited to, Participant’s name, home address and
telephone number, date of birth, social insurance number or other identification number, salary,
nationality, job title, any shares of stock or directorships held in the Company, details of all
options or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested
or outstanding in Participant’s favor, for the exclusive purpose of implementing, administering and
managing the Plan (“Data”).
Participant understands that the recipients of the Data may be located in the United States or
elsewhere, and that the recipients’ country (e.g., the United States) may have different data
privacy laws and protections than Participant’s country. Participant understands that Participant
may request a list with the names and addresses of any potential recipients of the Data by
contacting Participant’s local human resources representative. Participant authorizes the Company
and any other possible recipients which may assist the Company (presently or in the future) with
implementing, administering and managing the Plan to receive, possess, use, retain and transfer the
Data, in electronic or other form, for the sole purpose of implementing, administering and managing
Participant’s participation in the Plan. Participant understands that Data will be held only as
long as is necessary to implement, administer and manage Participant’s
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participation in the Plan. Participant understands that Participant may, at any time, view
the Data, request additional information about the storage processing of the Data, require any
necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost,
by contacting in writing Participant’s local human resources representative. Participant
understands, however, that refusing or withdrawing Participant’s consent may affect Participant’s
ability to participate in the Plan. For more information on the consequences of Participant’s
refusal to consent or withdrawal of consent, Participant understands that Participant may contact
Participant’s local human resources representative.
9. Electronic Delivery.
The Company may, in its sole discretion, decide to deliver any documents related to the option
and participation in the Plan or future options that may be granted under the Plan by electronic
means or to request Participant’s consent to participate in the Plan by electronic means.
Participant hereby consents to receive such documents by electronic delivery and, if requested, to
agree to participate in the Plan through an on-line or electronic system established and maintained
by the Company or another third party designated by the Company.
10. Severability.
The provisions of this Agreement are severable and if any one or more provisions are
determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions
shall nevertheless be binding and enforceable.
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