Exhibit 10.2
[FORM OF AMENDED AND RESTATED NOTE]
NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION
OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED
UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID
ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED TO AN
"ACCREDITED INVESTOR" (AS SUCH TERM IS DEFINED IN THE RULES AND REGULATIONS
PROMULGATED UNDER THE SECURITIES ACT OF 1933) IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
ANY TRANSFEREE OF THIS NOTE SHOULD CAREFULLY REVIEW THE TERMS OF THIS NOTE,
INCLUDING SECTIONS 3(c)(iii) AND 20(a) HEREOF. THE PRINCIPAL AMOUNT REPRESENTED
BY THIS NOTE AND, ACCORDINGLY, THE SECURITIES ISSUABLE UPON CONVERSION HEREOF
MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION
3(c)(iii) OF THIS NOTE.
AVANEX CORPORATION
AMENDED AND RESTATED SENIOR SECURED CONVERTIBLE NOTE
Issuance Date: November 8, 2005
Principal Amount: U.S. $
FOR VALUE RECEIVED, Avanex Corporation, a Delaware corporation (the "Company"),
hereby promises to pay to the order of [STEELHEAD INVESTMENTS LTD.] [KINGS ROAD
INVESTMENTS LTD.] [GRYPHON MASTER FUND, L.P.] [GSSF MASTER FUND LP] [CASTLERIGG
MASTER INVESTMENTS LTD.] or registered assigns ("Holder") the amount set out
above as the Principal Amount (as reduced pursuant to the terms hereof pursuant
to redemption, conversion or otherwise, the "Principal") when due, whether upon
the Maturity Date (as defined below), acceleration, redemption or otherwise (in
each case in accordance with the terms hereof) and to pay interest ("Interest")
on any outstanding Principal at a rate per annum equal to the Interest Rate (as
defined below), from the Original Issuance Date (as defined below) until the
same becomes due and payable, whether upon an Interest Date (as defined below),
the Maturity Date, acceleration, conversion, redemption or otherwise (in each
case in accordance with the terms hereof). This Amended and
Restated Senior Secured Convertible Note (including all Senior Secured
Convertible Notes issued in exchange, transfer or replacement hereof, this
"Note") amends, supplements, modifies and completely restates the Senior Secured
Convertible Note, dated as of May 19, 2005 (the "Existing Note"), issued by the
Company to the order of the Holder in the principal amount of $[
]
but shall not, except as specifically amended hereby, constitute a release,
satisfaction or novation of any of the obligations under the Existing Note or
any other Transaction Document (as defined in the Securities Purchase
Agreement). This Note is one of the Senior Secured Convertible Notes issued
pursuant to the Securities Purchase Agreement, as amended in accordance with the
Amendment Agreement