Exhibit 10.3
[FORM OF AMENDED AND RESTATED WARRANT]
NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISEABLE 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, AS AMENDED) IN CONNECTION WITH A
BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE
SECURITIES.
AVANEX CORPORATION
AMENDED AND RESTATED WARRANT TO PURCHASE COMMON STOCK
Warrant No.: CS (2005) No.
(Amended and Restated)
Number of Shares of Common Stock:
Date of Issuance: November 8, 2005 ("Issuance Date")
Avanex Corporation, a Delaware corporation (the "Company"), hereby certifies
that, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, [STEELHEADS INVESTMENT LTD.] [KINGS ROAD INVESTMENTS
LTD.] [GRYPHON MASTER FUND, L.P.] [GSSF MASTER FUND LP] [CASTLERIGG MASTER
INVESTMENTS LTD.], 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 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 date hereof, 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 15. This Warrant is one of the Warrants to
purchase Common Stock (the "SPA Warrants") amended and restated pursuant to that
certain Amendment Agreement, dated as of November 8, 2005, between the Company
and the initial holder of this Warrant (the "Amendment Agreement") and amended,
pursuant to Section 4(2) of the Securities Act, the warrants initially issued
pursuant to Section 1 of that certain Securities Purchase Agreement, dated as of
May 16, 2005 (the "Subscription Date"), by and among the Company and the
investors (the "Buyers") referred to therein (the "Securities Purchase
Agreement").
1. EXERCISE OF WARRANT.
(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 date hereof in
whole or in part, by (i) delivery of a written