FORM OF STOCK OPTION AGREEMENT
BETWEEN AVANEX AND CERTAIN OF ITS EMPLOYEES
Unless otherwise
defined herein, the terms defined in the Plan shall have the same
defined meanings in this Option Agreement.
I. NOTICE
OF STOCK OPTION GRANT
You have been
granted an option to purchase Common Stock of the Company, subject
to the terms and conditions of the Plan and this Option Agreement,
as follows:
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Vesting
Commencement Date
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US
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Total Number of
Shares Granted
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Nonstatutory
Stock Option
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Subject to
accelerated vesting as set forth below, this Option may be
exercised, in whole or in part, in accordance with the following
schedule:
25% of the
Shares subject to the Option shall vest twelve months after the
Vesting Commencement Date, and 1/48 of the Shares subject to the
Option shall vest each month thereafter, subject to the Optionee
continuing to be a Service Provider on such dates.
This Option may
be exercised for three months after Optionee ceases to be a Service
Provider. Upon the death or Disability of the Optionee, this Option
may be exercised for twelve months after Optionee ceases to be a
Service Provider. In no event shall this Option be exercised later
than the Term/Expiration Date as provided above.
The Plan
Administrator of the Company hereby grants to the Optionee named in
the Notice of Grant attached as Part I of this Agreement (the
“Optionee”) an option (the “Option”) to
purchase the number of Shares, as set forth in the Notice of Grant,
at the exercise price per share set forth in the Notice of Grant
(the “Exercise Price”), subject to the terms and
conditions of the Plan, which is incorporated herein by reference.
Subject to Section 15(c) of the Plan, in the event of a conflict
between the terms and conditions of the Plan and the terms and
conditions of this Option Agreement, the terms and conditions of
the Plan shall prevail.
If designated
in the Notice of Grant as an Incentive Stock Option
(“ISO”), this Option is intended to qualify as an
Incentive Stock Option under Section 422 of the Code. However,
if this Option is intended to be an Incentive Stock Option, to the
extent that it exceeds the $100,000 rule of Code Section 422(d) it
shall be treated as a Nonstatutory Stock Option
(“NSO”).
(a) Right to
Exercise . This Option is exercisable during its term in
accordance with the Vesting Schedule set out in the Notice of Grant
and the applicable provisions of the Plan and this Option
Agreement.
(b) Method
of Exercise . This Option is exercisable by the terms and
conditions set forth by Company policy. The exercise may be
facilitated by one of the Company’s captive brokers. In such
case the broker will facilitate the exercise by providing
notification of exercise of the option, the number of Shares in
respect of which the Option is being exercised (the
“Exercised Shares”), and such other representations and
agreements as may be required by the Company pursuant to the
provisions of the Plan. The exercise must be accompanied by payment
of the aggregate Exercise Price as to all Exercised Shares. This
Option shall be deemed to be exercised upon receipt by the Company
of notification of exercise by one of the Company’s
pre-selected captive brokers and accompanied by such aggregate
Exercise Price.
No Shares shall
be issued pursuant to the exercise of this Option unless such
issuance and exercise complies with Applicable Laws. Assuming such
compliance, for income tax purposes the Exercised Shares shall be
considered transferred to the Optionee on the date the Option is
exercised with respect to such Exercised Shares.
Payment of the
aggregate Exercise Price shall be by any of the following, or a
combination thereof, at the election of the Optionee:
3.
consideration received by the Company under a cashless exercise
program implemented by the Company in connection with the Plan;
or
4. surrender of
other Shares which (i) in the case of Shares acquired upon
exercise of an option, have been owned by the Optionee for more
than six (6) months on the date of surrender, and
(ii) have a Fair Market Value on the date of surrender equal
to the aggregate Exercise Price of the Exercised Shares.
D.
Non-Transferability of Option .
