exv10w47







Exhibit 10.47




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:




	 	 	 
	Date of Grant

	 	[___]
	Vesting Commencement Date

	 	[___]
	Exercise Price per Share

	 	US $[___]
	Total Number of Shares Granted

	 	[___]
	Total Exercise Price

	 	US $[___]
	Type of Option:

	 	Nonstatutory Stock Option
	Term/Expiration Date:

	 	[___]





Vesting Schedule:



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.



Termination Period:



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.




II. AGREEMENT



A. Grant of Option.



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”).



B. Exercise of Option.





(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.



 









 




C. Method of Payment.



Payment of the aggregate Exercise Price shall be by any of the following, or a combination thereof,
at the election of the Optionee:





1. cash; or




2. check; or




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.



This Option may not be transferred in any manner otherwise than by will or by the laws of descent
or distribution and may be exercised during the lifetime of Optionee only by the Optionee. The
terms of the Plan and this Option Agreement shall be binding upon the executors, administrators,
heirs, successors and assigns of the Optionee.



E. Term of Option.



This Option may be exercised only within the term set out in the Notice of Grant, and may be
exercised during such term only in accordance with the Plan and the terms of this Option Agreement.



F. Tax Consequences.



Some of the federal tax consequences relating to this Option, as of the date of this Option, are
set forth below. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE
SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR
DISPOSING OF THE SHARES.



G. Exercising the Option.





	 	1)	 	Nonstatutory Stock Option. The Optionee may incur regular federal income tax liability
upon exercise of a NSO. The Optionee will be treated as having received compensation
income (taxable at ordinary income tax rates) equal to the excess, if any, of the Fair
Market Value of the Exercised Shares on the date of exercise over their aggregate Exercise
Price. If the Optionee is an Employee or a former Employee, the Company will be required
to withhold from his or her compensation or collect from Optionee and pay to the applicable
taxing authorities an amount in cash equal to a percentage of this compensation income at
the time of exercise, and may refuse to honor the exercise and refuse to deliver Shares if
such withholding amounts are not delivered at the time of exercise.
	 
	 	2)	 	Incentive Stock Option. If this Option qualifies as an ISO, the Optionee will
have no regular federal income tax liability upon its exercise, although the excess, if
any, of the Fair Market Value of the Exercised Shares on the date of exercise over their
aggregate Exercise Price will be treated as an adjustment to alternative minimum taxable
income for federal tax purposes and may subject the Optionee to alternative minimum tax in
the year of exercise. In the event that the Optionee ceases to be an Employee but remains
a Service Provider, any Incentive Stock Option of the Optionee that remains unexercised
shall cease to qualify as an Incentive Stock Option and will be treated for tax purposes as
a Nonstatutory Stock Option on the date three (3) months and one (1) day following such
change of status.
	 
	 	3)	 	Disposition of Shares.






	 	a)	 	NSO. If the Optionee holds NSO Shares for at least one year, any gain
realized on disposition of the Shares will be treated as long-term capital gain for
federal income tax purposes.
	 
	 	b)	 	ISO. If the Optionee holds ISO Shares for at least one year after
exercise and two years after the grant date, any gain realized on disposition of the
Shares will be treated as long-term capital gain for federal income tax purposes. If
the Optionee disposes of ISO Shares within one year after exercise or two years after
the grant date, any gain realized on such disposition will be treated as compensation
income (taxable at ordinary income rates) to the extent of the excess, if any, of the
lesser of (A) the difference between the Fair Market Value of the Shares acquired on the
date of exercise and the aggregate Exercise Price, or (B) the difference between the
sale price of such Shares and the aggregate Exercise Price. Any additional gain will be
taxed as capital gain, short-term or long-term depending on the period that the ISO
Shares were held.
	 
	 	c)	 	Notice of Disqualifying Disposition of ISO Shares. If the Optionee sells
or otherwise disposes of any of the Shares acquired pursuant to an ISO on or before the
later of (i) two years after the grant date, or (ii) one year after the exercise date,
the Optionee shall immediately notify the Company in writing of such disposition. The
Optionee agrees that he or
she may be subject to income tax withholding by the Company on the compensation income
recognized from such early disposition of ISO Shares by payment in cash or out of the
current earnings paid to the Optionee.




 









 










H. Entire Agreement; Governing Law.



The Plan is incorporated herein by reference. The Plan and this Option Agreement constitute the
entire agreement of the parties with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and Optionee with respect to the
subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means
of a writing signed by the Company and Optionee. This agreement is governed by the internal
substantive laws, but not the choice of law rules, of California.



I. NO GUARANTEE OF CONTINUED SERVICE.



OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF
IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (AND NOT THROUGH THE
ACT OF BEING HIRED, BEING GRANTED AN OPTION OR PURCHASING SHARES HEREUNDER). OPTIONEE FURTHER
ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE
VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED
ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT
INTERFERE WITH OPTIONEE’S RIGHT OR THE COMPANY’S RIGHT TO TERMINATE OPTIONEE’S RELATIONSHIP AS A
SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.



By your signature and the signature of the Company’s representative below, you and the Company
agree that this Option is granted under and governed by the terms and conditions of the Plan and
this Option Agreement. Optionee has reviewed the Plan and this Option Agreement in their entirety,
has had an opportunity to obtain the advice of counsel prior to executing this Option Agreement and
fully understands all provisions of the Plan and Option Agreement. Optionee hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the Administrator upon
any questions relating to the Plan and Option Agreement. Optionee further agrees to notify the
Company upon any change in the residence address indicated below.




	 	 	 	 	 	 	 
	OPTIONEE:	 	AVANEX CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

Signature