Replacement Warrant To
Purchase Common Stock
Warrant No.: CS
2009 No.
Number of Shares of Common Stock:
Date of Issuance: April ___, 2009 (“ Issuance Date
”)
Oclaro, Inc.
(formerly Bookham, Inc.), a Delaware corporation (the “
Company ”), hereby certifies that, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, ___ , the registered holder hereof or
its permitted assigns (the “ Holder ”), is
entitled, subject to the terms set forth below, to purchase from
the Company, at the Exercise Price (as defined below) then in
effect, upon surrender of this Replacement Warrant to Purchase
Common Stock (including any warrants to purchase Common Stock
issued in exchange, transfer or replacement hereof, the “
Warrant ”), at any time or times on or after the
Issuance Date, but not after 11:59 p.m., New York Time, on the
Expiration Date (as defined below), ___ (___) fully paid
nonassessable shares of Common Stock (as defined below) (the
“ Warrant Shares ”). Except as otherwise defined
herein, capitalized terms in this Warrant shall have the meanings
set forth in Section 16. This Warrant is being issued to the
Holder as a replacement of that certain warrant to purchase common
stock, originally issued as of March 9, 2006 by Avanex
Corporation, a Delaware corporation (“ Avanex
”), to the Holder (the “ Original Warrant
”), which such Original Warrant was converted into and became
a warrant to purchase Common Stock pursuant to the terms of the
Original Warrant and the Merger Agreement. The Original Warrant was
one of a series of warrants originally issued by Avanex pursuant to
that certain Securities Purchase Agreement (the " Securities
Purchase Agreement ”) dated as of March 6, 2006 (the
“ Original Subscription Date ”), by and among
Avanex and the investors referred to therein (such
originally-issued warrants, collectively, the “ Original
SPA Warrants ”).
(a)
Mechanics of Exercise . Subject to the terms and conditions
hereof (including, without limitation, the limitations set forth in
Section 1(f)), this Warrant may be exercised by the Holder on
any day on or after the Issuance Date in whole or in part, by
(i) delivery of a written notice, in the form attached hereto
as Exhibit A (the “ Exercise Notice
”), of the Holder’s election to exercise this Warrant
and (ii) (A) payment to the Company of an amount equal to the
applicable Exercise Price multiplied by the number of Warrant
Shares as to which this Warrant is being exercised (the “
Aggregate Exercise Price ”) in cash or wire transfer
of immediately available funds or (B) by notifying the Company
that this Warrant is being exercised pursuant to a Cashless
Exercise (as defined in Section 1(d)). The Holder shall not be
required to deliver the original Warrant in order to effect an
exercise hereunder. Execution and delivery of the Exercise Notice
with respect to less than all of the Warrant Shares shall have the
same effect as cancellation of the original Warrant and issuance of
a new Warrant evidencing the right to purchase the remaining number
of Warrant Shares. On or before the second Business Day following
the date on which the Company has received each of the Exercise
Notice and the Aggregate Exercise Price (or notice of a Cashless
Exercise) (the “ Exercise Delivery Documents ”),
the Company shall transmit by facsimile an acknowledgment of
confirmation of receipt of the Exercise Delivery Documents to the
Holder and the Company’s transfer agent (the “
Transfer Agent ”). On or before the third Business Day
following the date on which the
Company has
received all of the Exercise Delivery Documents (the “
Share Delivery Date ”), the Company shall
(X) provided that the Transfer Agent is participating in The
Depository Trust Company (“ DTC ”) Fast
Automated Securities Transfer Program, upon the request of the
Holder, credit such aggregate number of shares of Common Stock to
which the Holder is entitled pursuant to such exercise to the
Holder’s or its designee’s balance account with DTC
through its Deposit Withdrawal Agent Commission system which
balance account shall be specified in the Exercise Notice, or
(Y) if the Transfer Agent is not participating in the DTC Fast
Automated Securities Transfer Program, issue and dispatch by
overnight courier to the address as specified in the Exercise
Notice, a certificate, registered in the Company’s share
register in the name of the Holder or its designee, for the number
of shares of Common Stock to which the Holder is entitled pursuant
to such exercise. Upon delivery of the Exercise Notice and
Aggregate Exercise Price referred to in clause (ii)(A) above or
notification to the Company of a Cashless Exercise referred to in
Section 1(d), the Holder shall be deemed for all corporate
purposes to have become the holder of record of the Warrant Shares
with respect to which this Warrant has been exercised, irrespective
of the date of delivery of the certificates evidencing such Warrant
Shares. If this Warrant is submitted in connection with any
exercise pursuant to this Section 1(a) and the number of Warrant
Shares represented by this Warrant submitted for exercise is
greater than the number of Warrant Shares being acquired upon an
exercise, then the Company shall as soon as practicable and in no
event later than five Business Days after any exercise and at its
own expense, issue a new Warrant (in accordance with
Section 7(d)) representing the right to purchase the number of
Warrant Shares purchasable immediately prior to such exercise under
this Warrant, less the number of Warrant Shares with respect to
which this Warrant is exercised. No fractional shares of Common
Stock are to be issued upon the exercise of this Warrant, but
rather the number of shares of Common Stock to be issued shall be
rounded up to the nearest whole number. The Company shall pay any
and all taxes which may be payable with respect to the issuance and
delivery of Warrant Shares upon exercise of this Warrant;
provided that the Company shall not be required to pay any
tax that may be payable in respect of any transfer involved in the
issue and delivery of shares of Common Stock in any name other than
that of the Holder, in either case with respect to any income tax
due by the Holder with respect to such shares of Common Stock
issued upon exercise of this Warrant.
(b)
Exercise Price . For purposes of this Warrant, “
Exercise Price ” means $7.43, subject to adjustment as
provided herein.
(c)
Company’s Failure to Timely Deliver Securities . If
within three (3) trading days after the Company’s
receipt of the facsimile copy of a Exercise Notice the Company
shall fail to issue and deliver a certificate to the Holder and
register such shares of Common Stock on the Company’s share
register or credit the Holder’s balance account with DTC for
the number of shares of Common Stock to which the Holder is
entitled upon such holder’s exercise hereunder, and if on or
after such trading day the Holder purchases (in an open market
transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Holder of shares of Common Stock
issuable upon such exercise that the Holder anticipated receiving
from the Company (a “ Buy-In ”), then the
Company shall, within three Business Days after the Holder’s
request and in the Holder’s discretion, either (i) pay
cash to the Holder in an amount equal to the Holder’s total
purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased (the “ Buy-In
Price ”), at which point the Company’s obligation
to deliver such certificate (and to issue such shares of Common
Stock) shall terminate, or (ii) promptly honor its obligation
to deliver to the Holder a certificate or certificates representing
such shares of Common Stock and pay cash to the Holder in an amount
equal to the
excess (if any)
of the Buy-In Price over the product of (A) such number of
shares of Common Stock, times (B) the Closing Bid Price on the
date of exercise.
(d)
Cashless Exercise . Notwithstanding anything contained
herein to the contrary, if the Warrant Shares cannot be sold other
than pursuant to a registration statement and no such registration
statement is available, the Holder may, in its sole discretion,
exercise this Warrant in whole or in part and, in lieu of making
the cash payment otherwise contemplated to be made to the Company
upon such exercise in payment of the Aggregate Exercise Price,
elect instead to receive upon such exercise the “Net
Number” of shares of Common Stock determined according to the
following formula (a “ Cashless Exercise
”):
Net
Number = (A x B) - (A x C)
B
For
purposes of the foregoing formula:
A= the total
number of shares with respect to which this Warrant is then being
exercised.
B= the Closing
Sale Price of the shares of Common Stock (as reported by Bloomberg)
on the date immediately preceding the date of the Exercise
Notice.
C= the Exercise
Price then in effect for the applicable Warrant Shares at the time
of such exercise.
(e)
Disputes . In the case of a dispute as to the determination
of the Exercise Price or the arithmetic calculation of the Warrant
Shares, the Company shall promptly issue to the Holder the number
of Warrant Shares that are not disputed and resolve such dispute in
accordance with Section 12.
(f)
Limitations on Exercises: Beneficial Ownership . The Company
shall not effect the exercise of this Warrant, and the Holder shall
not have the right to exercise this Warrant, to the extent that
after giving effect to such exercise, such Person (together with
such Person’s affiliates) would beneficially own in excess of
9.9% (the “ Maximum Percentage ”) of the shares
of Common Stock outstanding immediately after giving effect to such
exercise. For purposes of the foregoing sentence, the aggregate
number of shares of Common Stock beneficially owned by such Person
and its affiliates shall include the number of shares of Common
Stock issuable upon exercise of this Warrant with respect to which
the determination of such sentence is being made, but shall exclude
shares of Common Stock which would be issuable upon
(i) exercise of the remaining, unexercised portion of this
Warrant beneficially owned by such Person and its affiliates and
(ii) exercise or conversion of the unexercised or unconverted
portion of any other securities of the Company beneficially owned
by such Person and its affiliates (including, without limitation,
any convertible notes or convertible preferred stock or warrants)
subject to a limitation on conversion or exercise analogous to the
limitation contained herein. Except as set forth in the preceding
sentence, for purposes of this paragraph, beneficial ownership
shall be calculated in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended. For purposes of this
Warrant, in determining the number of outstanding shares of Common
Stock, the Holder may rely on the number of outstanding shares of
Common Stock as reflected in (1) the Company’s most
recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other
public filing with the Securities and Exchange Commission, as
the
case may be,
(2) a more recent public announcement by the Company or
(3) any other recent notice by the Company or the Transfer
Agent setting forth the number of shares of Common Stock
outstanding. In any case, the number of outstanding shares of
Common Stock shall be determined after giving effect to the
exercise of securities of the Company, including any SPA Warrants,
by the Holder and its affiliates since the date as of which such
number of outstanding shares of Common Stock was reported. By
written notice to the Company, the Holder may increase or decrease
the Maximum Percentage to any percentage not in excess of 9.9%
specified in such notice; provided that (i) any such increase
will not be effective until the sixty-first (61
st ) day after such notice is delivered to the
Company, and (ii) any such increase or decrease will apply
only to the Holder and not to any other holder of SPA
Warrants.
Notwithstanding
anything in this Warrant to the contrary, the Company shall be
entitled to treat the registered holder of this Warrant as such
appears in its records, as the owner of this Warrant for all
purposes; provided that such records are kept current using
reasonably satisfactory and customary methods for such
purposes.
2.
ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES .
The Exercise Price and the number of Warrant Shares shall be
adjusted from time to time as follows:
(a)
Adjustment upon Issuance of shares of Common Stock . If and
whenever on or after the Issuance Date the Company issues or sells,
or in accordance with this Section 2 is deemed to have issued
or sold, any shares of Common Stock (including the issuance or sale
of shares of Common Stock owned or held by or for the account of
the Company, but excluding any Excluded Securities and any shares
of Common Stock deemed to have been issued by the Company in
connection with any Excluded Securities) for a consideration per
share less than a price (the “ Applicable Price
”) equal to the Exercise Price in effect immediately prior to
such issue or sale or deemed issuance or sale (the foregoing a
“Dilutive Issuance” ), then immediately after
such Dilutive Issuance, the Exercise Price then in effect shall be
reduced to an amount equal to the product of (A) the Exercise
Price in effect immediately prior to such Dilutive Issuance and
(B) the quotient determined by dividing (1) the sum of
(I) the product derived by multiplying the Exercise Price in
effect immediately prior to such Dilutive Issuance and the number
of Common Stock Deemed Outstanding immediately prior to such
Dilutive Issuance plus (II) the consideration, if any,
received by the Company upon such Dilutive Issuance, by
(2) the product derived by multiplying (I) the Exercise
Price in effect immediately prior to such Dilutive Issuance by
(II) the number of Common Stock Deemed Outstanding immediately
after such Dilutive Issuance. Upon each such adjustment of the
Exercise Price hereunder, the number of Warrant Shares shall be
adjusted to the number of shares of Common Stock determined by
multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Shares acquirable upon exercise
of this Warrant immediately prior to such adjustment and dividing
the product thereof by the Exercise Price resulting from such
adjustment. For purposes of determining the adjusted Exercise Price
under this Section 2(a), the following shall be
applicable:
(i) Issuance of
Options . If the Company grants any Options and the lowest
price per share for which one share of Common Stock is issuable
upon the exercise of any such Option or upon conversion, exercise
or exchange of any Convertible Securities issuable upon exercise of
any such Option is less than the Applicable Price, then such share
of Common Stock shall be deemed to be outstanding and to have been
issued
and sold by the
Company at the time of the granting or sale of such Option for such
price per share. For purposes of this Section 2(a)(i), the
“lowest price per share for which one share of Common Stock
is issuable upon exercise of such Options or upon conversion,
exercise or exchange of such Convertible Securities” shall be
equal to the sum of the lowest amounts of consideration (if any)
received or receivable by the Company with respect to any one share
of Common Stock upon the granting or sale of the Option, upon
exercise of the Option and upon conversion, exercise or exchange of
any Convertible Security issuable upon exercise of such Option. No
further adjustment of the Exercise Price or number of Warrant
Shares shall be made upon the actual issuance of such shares of
Common Stock or of such Convertible Securities upon the exercise of
such Options or upon the actual issuance of such shares of Common
Stock upon conversion, exercise or exchange of such Convertible
Securities.
(ii) Issuance
of Convertible Securities . If the Company in any manner issues
or sells any Convertible Securities and the lowest price per share
for which one share of Common Stock is issuable upon the
conversion, exercise or exchange thereof is less than the
Applicable Price, then such share of Common Stock shall be deemed
to be outstanding and to have been issued and sold by the Company
at the time of the issuance or sale of such Convertible Securities
for such price per share. For the purposes of this
Section 2(a)(ii), the “lowest price per share for which
one share of Common Stock is issuable upon the conversion, exercise
or exchange” shall be equal to the sum of the lowest amounts
of consideration (if any) received or receivable by the Company
with respect to one share of Common Stock upon the issuance or sale
of the Convertible Security and upon conversion, exercise or
exchange of such Convertible Security. No further adjustment of the
Exercise Price or number of Warrant Shares shall be made upon the
actual issuance of such shares of Common Stock upon conversion,
exercise or exchange of such Convertible Securities, and if any
such issue or sale of such Convertible Securities is made upon
exercise of any Options for which adjustment of this Warrant has
been or is to be made pursuant to other provisions of this
Section 2(a), no further adjustment of the Exercise Price or
number of Warrant Shares shall be made by reason of such issue or
sale.
(iii) Change in
Option Price or Rate of Conversion. If the purchase price
provided for in any Options, the additional consideration, if any,
payable upon the issue, conversion, exercise or exchange of any
Convertible Securities, or the rate at which any Convertible
Securities are convertible into or exercisable or exchangeable for
shares of Common Stock increases or decreases at any time, the
Exercise Price and the number of Warrant Shares in effect at the
time of such increase or decrease shall be adjusted to the Exercise
Price and the number of Warrant Shares which would have been in
effect at such time had such Options or Convertible Securities
provided for such increased or decreased purchase price, additional
consideration or increased or decreased conversion rate, as the
case may be, at the time initially granted, issued or sold.
For
purposes of
this Section 2(a)(iii), if the terms of any Option or
Convertible Security that was outstanding as of the Issuance Date
are increased or decreased in the manner described in the
immediately preceding sentence, then such Option or Convertible
Security and the shares of Common Stock deemed issuable upon
exercise, conversion or exchange thereof shall be deemed to have
been issued as of the date of such increase or decrease. No
adjustment pursuant to this Section 2(a) shall be made if such
adjustment would result in an increase of the Exercise Price then
in effect or a decrease in the number of Warrant Shares.
(iv)
Calculation of Consideration Received . In case any Option
is issued in connection with the issue or sale of other securities
of the Company, together comprising one integrated transaction in
which no specific consideration is allocated to such Options by the
parties thereto, the Options will be deemed to have been issued for
a consideration of $0.01. If any shares of Common Stock, Options or
Convertible Securities are issued or sold or deemed to have been
issued or sold for cash, the consideration received therefor will
be deemed to be the net amount received by the Company therefor. If
any shares of Common Stock, Options or Convertible Securities are
issued or sold for a consideration other than cash, the amount of
such consideration received by the Company will be the fair value
of such consideration, except where such consideration consists of
securities, in which case the amount of consideration received by
the Company will be the Closing Sale Price of such security on the
date of receipt. If any shares of Common Stock, Options or
Convertible Securities are issued to the owners of the
non-surviving entity in connection with any merger in which the
Company is the surviving entity, the amount of consideration
therefor will be deemed to be the fair value of such portion of the
net assets and business of the non-surviving entity as is
attributable to such shares of Common Stock, Options or Convertible
Securities, as the case may be. The fair value of any consideration
other than cash or securities will be determined in good faith by
the Board of Directors of the Company within five (5) days
after the occurrence of an event requiring valuation. If the
Required Holders disagree with the determination of the Board of
Directors and give written notice of such disagreement to the
Company within ten (10) days after the occurrence of an event
requiring valuation (the “ Valuation Event ”),
the fair value of such consideration will be determined within five
(5) Business Days after the tenth day following the Valuation
Event by an independent, reputable appraiser jointly selected by
the Company and the Required Holders. The determination of such
appraiser shall be final and binding upon all parties absent
manifest error and the fees and expenses of such appraiser shall be
borne by the Company.
(v) Record
Date . If the Company takes a record of the holders of shares
of Common Stock for the purpose of entitling them (A) to
receive a dividend or other distribution payable in shares of
Common Stock, Options or in Convertible Securities or (B) to
subscribe for or purchase shares of Common Stock, Options or
Convertible Securities,
then such
record date will be deemed to be the date of the issue or sale of
the shares of Common Stock deemed to have been issued or sold upon
the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of
subscription or purchase, as the case may be.
(b)
Adjustment upon Subdivision or Combination of shares of Common
Stock . If the Company at any time on or after the Issuance
Date subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its
outstanding shares of Common Stock into a greater number of shares,
the Exercise Price in effect immediately prior to such subdivision
will be proportionately reduced and the number of Warrant Shares
will be propo
|
