-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, M4hWgZJMa+4tYrAbMa5QaJjhSZOu40kNj34lT2XYVT4kkZ1ISQ04conMQjulf84R 0ie+qJ/JhXKkqbAjIVg/EQ== 0000950148-02-000219.txt : 20020414 0000950148-02-000219.hdr.sgml : 20020414 ACCESSION NUMBER: 0000950148-02-000219 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20020201 EFFECTIVENESS DATE: 20020201 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MRV COMMUNICATIONS INC CENTRAL INDEX KEY: 0000887969 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 061340090 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-81950 FILM NUMBER: 02525200 BUSINESS ADDRESS: STREET 1: 20415 NORDHOFF ST CITY: CHATSWORTH STATE: CA ZIP: 91311 BUSINESS PHONE: 8187730900 MAIL ADDRESS: STREET 1: 20415 NORDHOFF ST CITY: CHATSWORTH STATE: CA ZIP: 91311 S-8 1 v78738s-8.txt MRV COMMUNICATIONS, INC. As filed with the Securities and Exchange Commission on February 1, 2002 Registration No. 333- _________ SECURITIES AND EXCHANGE COMMISSION Form S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 MRV COMMUNICATIONS, INC. (Exact Name of Registrant as Specified in Its Charter) Delaware 3577/3674 06-1340090 (State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer Incorporation or Organization) Classification Code Number) Identification No.)
20415 Nordhoff Street Chatsworth, California 91311 (818) 773-0900 (818) 773-0906 (Fax) (Address of Principal Executive Offices) Luminent Inc. Amended and Restated 2000 Stock Option Plan and Eric Blachno Stock Option Agreement (Full Title of the Plan) Noam Lotan President and Chief Executive Officer 20415 Nordhoff Street Chatsworth, California 91311 (818) 773-0900 (818) 773-0906 (Fax) (Name, Address, and Telephone Number, Including Area Code, of Agent for Service) Copies to: Mark A. Klein, Esq. Kirkpatrick & Lockhart LLP 10100 Santa Monica Blvd., Seventh Floor Los Angeles, CA 90068 Telephone: (310) 552-5000 Facsimile: (310) 552-5001 If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. [x] CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------- Proposed Proposed Maximum Maximum Offering Aggregate Amount of Amount to be Price per Offering Registration Title of Securities to be Registered Registered Share(1) Price(1) Fee - --------------------------------------------------------------------------------------------- Common Stock, $.0017 par value 3,268,581 $16.71 $54,617,988 $5,024.85 - ---------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(h)(1). PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The documents containing information specified in this Part I are being separately provided to the Registrant's employees, officers, directors and consultants as specified by Rule 428(b)(1). PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The documents listed in paragraphs (a) through (d) below are hereby incorporated by reference in this Registration Statement. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), prior to the filing of a post-effective amendment which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereto from the date of filing of such documents. (a) Registrant's Annual Report on Form 10-K for the year ended December 31, 2000 filed with the SEC on April 17, 2001 and as amended by Registrant's Form 10-K/A as filed with the SEC on December 27, 2001; (b) Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001 filed with the SEC on May 15, 2001; Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 2001 filed with the SEC on August 16, 2001 and as amended by its Form 10-Q/A as filed with the SEC on December 27, 2001; Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 2001 filed with the SEC on November 14, 2001; (c) Registrant's Current Reports on Form 8-K filed with the SEC on May 25, 2001, July 11, 2001 July 31, 2001, September 17, 2001, October 1, 2001, October 9, 2001 and January 8, 2002; (d) Registrant's Definitive Proxy Statement filed with the SEC on November 14, 2001; and (e) The description of the Common Stock contained in Registrant's Registration Statement on Form 8-A filed with the Commission on June 8, 1992, as amended by its Form 8-A/A filed with the Commission on February 24, 1994, including any amendment or report filed for the purpose of updating such description. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law allows for the indemnification of officers, directors, and other corporate agents in terms sufficiently broad to indemnify such persons under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the "Act"). Article 8 of the Registrant's Certificate of Incorporation and Article IX of the Registrant's Bylaws provide for indemnification of the Registrant's directors, officers, employees, and other agents to the extent and under the circumstances permitted by the Delaware General Corporation Law. The Registrant has also entered into agreements with its directors and executive officers that will require the Registrant, among other things, to indemnify them against certain liabilities that may arise by reason of their status or service as directors to the fullest extent not prohibited by law. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS.
Exhibit Numbers - ------- 4.1 Luminent Inc. Amended and Restated 2000 Stock Option Plan. 4.2 Erik Blachno Stock Option Agreement. 4.3 Form of Stock Option Agreement for the Luminent Inc. Amended and Restated 2000 Stock Option Plan. 5 Opinion of Kirkpatrick & Lockhart LLP as to the validity of the securities being registered. 23.1 Consent of Arthur Andersen LLP, Los Angeles. 23.2 Consent of Kirkpatrick & Lockhart LLP (contained in Exhibit 5).
ITEM 9. UNDERTAKINGS. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification by the Registrant for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions referenced in Item 6 of this Registration Statement or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chatsworth, State of California, on this 31st day of January, 2002. MRV COMMUNICATIONS, INC. By: /S/ NOAM LOTAN ------------------------------------ Noam Lotan, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes an appoints Noam Lotan and Shlomo Margalit, and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution for him in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Names Title Date - ----- ----- ---- /S/ NOAM LOTAN President, Chief Executive Officer January 31, 2002 - -------------------------------- (Principal Executive Officer), Noam Lotan and a Director /S/ SHLOMO MARGALIT Chairman of the Board, Chief Technical January 31, 2002 - -------------------------------- Officer, Secretary, and a Director Shlomo Margalit /S/ SHAY GONEN Interim Chief Financial Officer (Principal January 31, 2002 - -------------------------------- Financial and Accounting Officer) Shay Gonen /S/ IGAL SHIDLOVSKY Director January 31, 2002 - -------------------------------- Igal Shidlovsky /S/ GUENTER JAENSCH Director January 31, 2002 - -------------------------------- Guenter Jaensch /S/ DANIEL TSUI Director January 31, 2002 - -------------------------------- Daniel Tsui /S/ BARUCH FISCHER Director January 31, 2002 - -------------------------------- Baruch Fischer
EX-4.1 3 v78738ex4-1.txt EXHIBIT 4.1 Exhibit 4.1 LUMINENT, INC. AMENDED AND RESTATED 2000 STOCK OPTION PLAN ADOPTED AS OF SEPTEMBER 7, 2000 1. Purpose. (a) This Plan document is intended to implement and govern two separate Stock Option Plans of Luminent, Inc., a Delaware corporation ("Company"), and its Parent or Subsidiary Corporation(s), if any: (i) the Luminent, Inc. 2000 Incentive Stock Option Plan ("Plan A"); and (ii) the Luminent, Inc., 2000 Nonstatutory Stock Option Plan ("Plan B"). Plan A provides for the granting of options that are intended to qualify as incentive stock options ("Incentive Stock Options") within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). Plan B provides for the granting of options that are not intended to so qualify. Unless specified otherwise, all provisions of this Plan relate equally to both Plan A and Plan B (collectively, the "Plans"), which Plans are condensed into one plan document solely for purposes of administrative convenience and are not intended to constitute tandem plans. (b) The purpose of these Plans is to retain the best available persons for positions of substantial responsibility and to provide additional incentives for the accomplishment of key Company objectives. The Plans are intended to accomplish this purpose by allowing the Company to grant options ("Options") to purchase shares of the Company's voting Common Stock, $0.001 par value per share ("Common Stock"). (For purposes of these Plans, "Parent Corporation" and "Subsidiary Corporation" shall mean corporations as defined in Code Sections 425(e) and 425(f), respectively. Additionally, "Company" shall include any Parent Corporation or Subsidiary Corporation that may exist). 2. Administration. Subject to Section 10, the Plans shall be administered as follows: (a) The Plans shall be administered by the Company's Board of Directors (the "Board") or a committee ("Committee") appointed by the Board, which Committee shall be constituted to comply with applicable laws. If the Committee is administering the Plans, then the functions of the Board specified herein shall be administered by the Committee as authorized by the Board and to the extent permitted pursuant to applicable law. (b) The Board shall have sole authority in its absolute discretion (i) to determine which employees, consultants and non-employee directors of the Company shall receive Options ("Optionees"), and (ii) subject to the express provisions of these Plans, to determine the time when Options shall be granted, the terms and conditions of Options other than those terms and conditions fixed under these Plans, and the number of shares which may be issued upon exercise of the Options. The Board shall adopt by resolution such rules and regulations as may be required to carry out the purposes of the Plans and shall have authority to do everything necessary or appropriate to administer the Plans. All decisions, determinations and interpretations of the Board shall be final and binding on all Optionees. Administration of the Plans with respect to members of the Committee shall not be delegated, but shall at all times remain vested in the Board. The Board may from time to time remove members from, or add members to, the Committee, and vacancies on the Committee shall be filled by the Board. Furthermore, the Board at any time by resolution may abolish the Committee and revest in the Board the administration of the Plans. (c) With respect to Options granted to a member of the Board, the Board shall take action by a vote sufficient without counting the vote of such member of the Board, although such member of the Board may be counted in determining the presence of a quorum at a meeting of the Board which authorizes the granting of Options to such member of the Board. (d) The Committee, if appointed pursuant to this Section 2, shall report to the Board the name of the person granted Options, the number of shares covered by each Option, and the terms and conditions of each such Option. 3. Eligibility. (a) Persons who shall be eligible to receive Options under these Plans shall be as follows: (i) in the case of Plan A, employees of the Company who render those types of services which tend to contribute materially to the success of the Company; and (ii) in the case of Plan B, employees described in subsection 3(a)(i) above, consultants and advisors, and any non-employee directors of the Company who render those types of services which tend to contribute materially to the success of the Company. (b) Consultants and advisors who receive options under Plan B must be natural persons who provide bona fide services to the Company that are not connected to the offer or sale of securities in a capital-raising transaction, and do not directly or indirectly provide or maintain a market for the Company's securities. (c) The determination as to whether an employee, consultant or non-employee director is eligible to receive Options hereunder shall be made by the Board in its sole discretion, and the decision of the Board shall be binding and final. Options may be granted to one or more such persons without being granted to other eligible persons, as the Board may deem fit. 4. Number of Shares. The maximum aggregate number of shares which may be optioned and sold under these Plans is 10,400,000 shares of authorized but unissued Common Stock of the Company. Shares of Common Stock that (a) are repurchased by the Company after the issuance hereunder pursuant to the exercise of an Option, or (b) are not purchased by the 2 Optionee prior to the expiration or termination of the applicable Option, shall again become available to be covered by Options to be issued hereunder and shall not, as of the effective date of such repurchase or expiration, be counted as covered by an outstanding Option for purposes of the above-described maximum number of shares which may be optioned hereunder. 5. Option Price. (a) The Option Price for shares of Common Stock to be issued under Plan A shall be equal to or greater than the fair market value of such shares on the date on which the Option covering such shares is granted as determined by the Board of Directors in its sole discretion, exercised in good faith. The Option Price for shares of Common Stock to be issued under Plan B shall be equal to or greater than 85% of the fair market value of such shares on the date on which the Option covering such shares is granted as determined by the Board of Directors in its sole discretion, exercised in good faith. If on the date on which such Option is granted the Optionee is a Restricted Stockholder, then such Option Price shall be equal to or greater than one hundred ten percent (110%) of the fair market value of the shares on the date such Option is granted. For the purposes of the Plans, a "Restricted Stockholder" is an individual who, at the time an Option is granted under the Plans, owns stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company, with stock ownership to be determined in light of the attribution rules set forth in Section 424(d) of the Code. The fair market value of shares of Common Stock for all purposes of the Plans is to be determined by the Board in its sole discretion, exercised in good faith. (b) Notwithstanding the foregoing, the Option Price for a nonstatutory option granted to an Optionee, other than a Restricted Stockholder, shall be equal to or greater than 85% of the fair market value of such shares on the date on which the Option covering such shares is granted. 6. Term of the Plans. The Plans shall be effective on July 15, 2000, and continue in effect until July 15, 2010, unless terminated earlier by action of the Board; no option may be granted hereunder after July 15, 2010. 7. Exercise of Options. Subject to the limitations set forth herein and/or in any applicable Stock Option Agreement entered into hereunder, Options granted under these Plans shall be exercisable in accordance with the following rules: (a) General. Subject to the other provisions of this Section 7, Options shall vest and become exercisable at such times and in such installments as the Board shall provide in each individual Stock Option Agreement; provided, however, that, except in the case of Options granted to officers, directors or consultants, Options must vest at a rate of at least 20% per year for over a five-year period from the date the Option is granted; and provided, further, that by a resolution adopted after an Option is granted the Board may, on such terms and conditions as it may determine to be appropriate and subject to the specific provisions of this Section 7, accelerate the time at which such Option or installment thereof may be exercised. For purposes 3 of these Plans, any vested installment of an Option granted hereunder shall be referred to as an "Accrued Installment." (b) Exercise of Options. An Option may be exercised in accordance with this Section 7 as to all or any portion of the shares covered by an Accrued Installment of the Option from time to time during the applicable option period, except that an Option shall not be exercisable with respect to fractions of a share. (c) Payment. The Option Price shall be paid at the time the Option is exercised; in cash or its cash equivalent, as determined by the Board. The Board may, in its sole discretion, accept payment on behalf of the Company (i) in the form of shares of Common Stock, which in the case of shares acquired upon exercise of an option, have been owned by the Optionee for more than six months on the date of surrender, and have a fair market value on the date of surrender equal to the aggregate exercise price of the shares as to which said Option shall be exercised, subject to all restrictions and limitations of applicable law, (ii) by cancellation of any indebtedness owed by the Company to the optionee, (iii) by a full recourse promissory note executed by the optionee (the terms of any promissory note may be changed by the Committee from time to time to comply with all applicable laws, regulations and rules of the Board of Governors of the Federal Reserve System, Internal Revenue Service or Securities and Exchange Commission regulations and any other governmental agency having jurisdiction), (iv) by requesting that the Company withhold whole shares of Common Stock then issuable upon exercise of the Stock Option (based on the fair market value of the Common Stock on the date of exercise), (v) by arrangement with a broker which is acceptable to the Board where payment of the exercise price is made pursuant to an irrevocable direction to the broker to deliver all or part of the proceeds from the sale of the shares underlying the Option to the Company, or (vi) by any combination of the foregoing. In the case of an Incentive Stock Option, the right to make payment in the form of already owned shares may be authorized only at the time of grant. Any payment in the form of stock already owned by the optionee may be effected by use of an attestation form approved by the Board; and such stock may be returned to the Company. If returned, such shares shall again be available for issuance in connection with future stock options and awards under the Plans. An Optionee's right to use shares of Common Stock to exercise an Option is expressly conditioned upon his or her making representations and warranties satisfactory to the Company regarding his or her title to the shares used to exercise such Option and that he or she has full power to deliver such shares without obtaining the consent or approval of any person or governmental authority other than those which have already given consent or approval in a form satisfactory to the Company. The equivalent dollar value of the shares used to effect the purchase shall be the fair market value of the shares as determined by the Board. (d) The aggregate fair market value (determined as of the date of the grant of the Option) of the shares of Common Stock to which Options granted under Plan A are exercisable for the first time by any employee of the Company during any calendar year under all incentive stock option plans of the Company shall not exceed $100,000. The limitation imposed by this Section 7(d) shall not apply with respect to Options granted under Plan B. 4 (e) The Board may require the voluntary surrender of all or a portion of any Option granted under the Plans as a condition precedent to a grant of a new Option. Subject to the provisions of the Plans, such new Option shall be exercisable at the price, during such period and on such other terms and conditions as are specified by the Board at the time the new Option is granted; provided, however, that should the Board so require, the number of shares subject to such new Option shall not be greater than the number of shares subject to the surrendered Option. Upon their surrender, the Options shall be canceled and the shares previously subject to such canceled Options shall again be available for grants of Options hereunder. 8. Termination of Options. Subject to the provisions of this Section 8, all installments of an Option shall expire and terminate on such date(s) as the Board shall determine at the time of a grant ("Option Termination Date"), but in no event later than ten (10) years from the date such Option was granted. Unless provided otherwise in this Section 8 or in the Stock Option Agreement pursuant to which an Option is granted, an Option may be exercised when Accrued Installments accrue as provided in such Stock Option Agreement and at any time thereafter until, and including, the day before the Option Termination Date. In no event shall any Option be exercised on or after the expiration of said maximum applicable period, regardless of the circumstances then existing (including but not limited to the death or termination of employment of the Optionee). (a) Restricted Stockholders. An Option granted under Plan A to a Restricted Stockholder shall by its terms not be exercisable after the expiration of five (5) years from the date such Option was granted. (b) Sale or Reorganization of Company. Upon the consummation of a transaction: (i) that by its terms offers to all or substantially all of the stockholders of the Company an opportunity to receive cash or securities (whether debt, equity or other and whether issued by the Company or a third party) in exchange for all or a portion of their shares of common stock of the Company, however, a sale of the Company shall not be considered to have occurred as a result of the pro rata distribution by MRV Communications, Inc., to its stockholders of capital stock of the Company; (ii) in which the stockholders of the Company approve a plan of complete dissolution or liquidation of the Company; or (iii) that involves the sale of all or substantially all of the Company's property or a sale of more than eighty percent (80%) of the then outstanding stock of the Company to another corporation (each transaction a "Sale"), the Board may, without limitation and in its sole and absolute discretion, do any, or any combination, of the following: a. declare that the time period relating to the exercise of any Stock Option shall accelerate and become exercisable; b. declare that any indebtedness incurred pursuant to Section 7(c) above shall be forgiven and the collateral pledged in connection with any such loan shall be released in full or in part; 5 c. declare that the value of all or some of the outstanding Options shall, to the extent determined by the Board at or after grant, be cashed out by a payment of cash or other property, as the Board may determine, on the basis of the "Sale Price" (as defined in below) as of the date the Sale occurs or such other date as the Board may determine prior to the Sale; d. permit a successor corporation, if applicable, pursuant to a written agreement signed by the parties, to substitute equivalent Options or provide substantially similar consideration to Optionees as was or will be provided to stockholders of the Company after making any appropriate adjustment as such parties deem necessary or appropriate for restrictions attaching to such Options, including, but not limited to, vesting and exercise price; provided, however, that the terms and conditions of the substitute Options shall comply with the provisions of Section 425 of the Code, such that the excess of the aggregate fair market value of the shares subject to such substitute Option immediately after the substitution or assumption over the aggregate option price of such shares is not more than the excess of the aggregate fair market value of all shares subject to the substitute Option or the assumption of the old option does not give the holder thereof additional benefits which he or she did not have under such old option; or e. declare that any unexercised Options issued hereunder (or any unexercised portion thereof) shall terminate and cease to be effective. For purposes of this Section 8(b), "Sale Price" means the higher of (i) the highest price per share paid in any transaction related to a Sale of the Company or (ii) the highest price per share paid in any transaction reported on the exchange or national market system on which the Common Stock is listed, at any time during the preceding sixty (60) day period as determined by the Board, except that, in the case of Incentive Stock Options, such price shall be based only on transactions reported for the date on which the Board decides to cash out such Options. An Optionee's individual Stock Option Agreement may, but is not required to, provide what occurs upon a Sale. To the extent an Optionee's individual Stock Option Agreement determines what occurs upon a Sale, the terms of such Stock Option Agreement shall be dispositive in the event of a Sale; provided that if the terms of such Optionee's individual Stock Option Agreement, together with the terms of any other Stock Option Agreement granted hereunder, pertaining to what occurs upon a Sale would materially impair an acquiror's ability to use the "pooling of interests" accounting method to account for the acquisition, as described in the immediately preceding paragraph, then the Board shall have, in its sole and absolute discretion, the right to modify (to the least extent possible and still permit the acquiror to use "pooling of interests") the terms of the Stock Option Agreement, solely with respect to those terms pertaining to what occurs upon a Sale. Notwithstanding the foregoing, in the event that any such agreement shall be terminated without consummating the disposition of said stock or assets: 6 (i) any unexercised non-vested installments that had become exercisable solely by reason of the provision of Section 8(b) shall again become non-vested and unexercisable as of said termination of such agreement, and (ii) the exercise of any option that had become exercisable solely by reason of this Section 8(b) shall be deemed ineffective and such installments shall again become non-vested and unexercisable as of said agreement of such agreement. (c) Termination of Employment Other Than By Death or Disability. If the employment of an Optionee with the Company is terminated for any reason other than death or permanent and total disability, any installments under the Option which have not accrued as of the employment termination date shall expire and become unexercisable as of the employment termination date. All Accrued Installments as of the employment termination date shall remain exercisable for a period not to exceed the earlier of (i) three (3) months following the employment termination date or (ii) the Option Termination Date, determined without regard to this Section 8(c). (d) Death or Disability of Optionee While Employed. If the employment of an Optionee with the Company is terminated by reason of death or permanent and total disability, any unexercised, to the extent then exercisable, Accrued Installments of Options granted hereunder to such Optionee shall expire and become unexercisable as of the earlier of the applicable Option Termination Date, or within six months after the date of termination of employment of such Optionee by reason of his death or permanent and total disability. Any such Accrued Installments of a deceased Optionee may be exercised prior to their expiration only by the person or persons to whom the Optionee's Option rights pass by will or by laws of descent and distribution. Any installments under such a deceased or disabled Optionee's Option that have not accrued as of the date of his termination of employment due to death or permanent and total disability shall expire and become unexercisable as of said termination date. For purposes of these Plans, the term "permanent and total disability" shall be defined under Code Section 22(e)(3). (e) Extensions. Notwithstanding the provisions covering the exercisability of Options following termination of employment, as described in Sections 8(c) and (d), respectively, the Board may, in its sole discretion, with the consent of the Optionee or the Optionee's estate (in the case of the death of Optionee), extend the period of time during which Accrued Installments shall remain exercisable, provided that in no event shall such extension go beyond the Option Termination Date. In the case of Incentive Stock Options, extensions under this Section 8(e) may result in loss of the favorable treatment accorded incentive stock options under the Code. 9. Authorization to Issue Options and Stockholder Approval. Options granted under the Plans, and the exercise of such options, shall be conditioned upon the Company having obtained all required regulatory approvals, free of any conditions not acceptable to the Board, authorizing the Company to issue such Options or shares. The grant of Options under the Plans 7 also is conditioned on approval of the Plans by the stockholders of the Company within twelve (12) months after the date hereof. 10. Stock Option Agreement. The terms and conditions of Options granted under the Plans shall be evidenced by a Stock Option Agreement executed by the Company and the person to whom the Option is granted. Each Stock Option Agreement shall incorporate these Plans by reference and shall include such provisions as are determined to be necessary or appropriate by the Board. 11. Stock Restriction Agreement. As a condition to the granting of any Option hereunder and the subsequent exercise of any such Option, the Board may require the Optionee to enter into a Stock Restriction Agreement with the Company for the purpose of limiting the sale or other transfer of ownership of Common Stock acquired by the Optionee. 12. Amendment or Termination of the Plans. (a) The Board may amend, suspend and/or terminate the Plans at any time, provided, however, that except as provided in Section 17 below, the Board shall not amend the Plans in the following respects without stockholder approval: (i) To increase the maximum number of shares subject to the Plans; (ii) To change the designation or class of persons eligible to receive Options under the Plans; or (iii) To extend the term of the Plans or the maximum Option exercise period. (b) Furthermore, the Plans may not, without the approval of the stockholders, be amended in any manner that would cause Incentive Stock Options issued hereunder to fail to qualify as Incentive Stock Options as defined in Code Section 422. Notwithstanding the foregoing, no amendment, suspension or termination of the Plans shall adversely affect Options granted on or prior to the date thereof, as evidenced by the execution of a Stock Option Agreement by both the Company and the Optionee, without the consent of such Optionee. 13. Options Not Transferable. Options granted under these Plans may not be sold, pledged, hypothecated, assigned, encumbered, gifted or otherwise transferred or alienated in any manner, either voluntarily or involuntarily by operation of law, other than by will or the laws of descent or distribution, and may be exercised during the lifetime of an Optionee only by such Optionee. 14. Restrictions on Issuance of Shares. The Company, during the term of these Plans, will use its best efforts to seek to obtain from the appropriate regulatory agencies any requisite authorization in order to issue and sell such number of shares of its Common Stock as shall be 8 sufficient to satisfy the requirements of the Plans. The inability of the Company to obtain from any such regulatory agency having jurisdiction thereof the authorization deemed by the Company's counsel to be necessary to the lawful issuance and sale of any shares of its stock hereunder shall relieve the Company of any liability in respect of the nonissuance or sale of such stock as to which such requisite authorization shall not have been obtained. 15. Adjustments Upon Changes in Capitalization. If the outstanding shares of Common Stock of the Company are increased, decreased, changed into or exchanged for a different number or kind of shares of the Company through reorganization, recapitalization, reclassification, stock dividend, stock split or reverse stock split, upon proper authorization of the Board an appropriate and proportionate adjustment shall be made in the number or kind of shares, and the per-share option price thereof, which may be issued in the aggregate and to individual Optionees under these Plans upon exercise of Options granted under the Plans; provided, however, that no such adjustment need be made if, upon the advice of counsel, the Board determines that such adjustment may result in the receipt of federally taxable income to holders of Options granted hereunder or the holders of Common Stock or other classes of the Company's securities. If any Option granted under the Plans shall terminate for any reason or expire before such Option is exercised in full, the securities which might otherwise have been issued upon exercise of such Option shall again become available for purposes of these Plans. 16. Representations and Warranties. As a condition to the granting and the exercise of any portion of an Option, the Company may require the person receiving or exercising such Option to make any representation and/or warranty to the Company as may, in the judgment of counsel to the Company, be required under any applicable law or regulation, or any ruling of any governmental agency with respect to the Company, including but not limited to a representation and warranty that the Option and/or shares are being acquired only for investment and without any present intention to sell or distribute such shares if, in the opinion of counsel for the Company, such a representation is required under the Securities Act of 1933, as amended ("1933 Act"), or any other applicable law, regulation or rule of any governmental agency. 17. No Enlargement of Employee Rights. These Plans are purely voluntary on the part of the Company, and while the Company hopes to continue them indefinitely, the continuance of the Plans shall not be deemed to constitute a contract between the Company and any employee, or to be consideration for or a condition of the employment of any employee. Nothing contained in the Plans shall be deemed to give any employee the right to be retained in the employ of the Company or to interfere with the right of the Company to discharge or retire any employee thereof at any time. No employee shall have any right to or interest in Options authorized hereunder prior to the grant of such an Option to such employee, and upon such grant he or she shall have only such rights and interests as are expressly provided herein, subject, however, to all applicable provisions of the Company's Articles of Incorporation, as the same may be amended from time to time. 18. Special Section 368 (c) Limitation. Notwithstanding any other provision of this Plan to the contrary, no award shall be converted into shares of Common Stock (including, but 9 not limited to, upon exercise of an Option) if the effect of such conversion would cause MRV Communications, Inc. to not be in control of the Company for purposes of Section 368 (c) of the Code or prevent MRV Communications, Inc. from filing a consolidated federal income tax return with the Company. Any purported conversion (including, but not limited to, an attempt to exercise an Option) shall be void and without force or effect. Any award purported to be converted into shares of Common Stock shall remain outstanding without any change in rights or obligations or the Optionee or the Company. No cash or other form of consideration shall be paid or delivered in connection with any conversion prevented by this limitation. If MRV Communications, Inc. disposes of all or substantially all of its interest in the Company, this Section 18 shall be without further force or effect. 19. Legends: Options and Stock Certificates. Unless an appropriate registration statement is filed pursuant to the 1933 Act with respect to the shares of Common Stock issuable under these Plans, each certificate representing such Common Stock shall be endorsed with the following legend or its equivalent: "Neither the Option pursuant to which the shares represented by this certificate are issued nor said shares have been registered under the Federal Securities Act of 1933, as amended ("Act"). Transfer or sale of such securities or any interest therein is unlawful except after registration, or pursuant to an exemption from the registration requirements, as provided in the Act and the regulations thereunder." In addition to the foregoing legend, each Stock Option Agreement and each certificate representing shares of Common Stock acquired upon exercise of an Option shall be endorsed with all legends, if any, required by applicable state securities laws to be placed on the Stock Option Agreement and/or the certificate. 20. Financial Information. The Company shall deliver annually financial statements to each employee granted an Option hereunder until such Option expires or is otherwise canceled. 21. Withholding of Taxes. The grant of Options hereunder and the issuance of Common Stock pursuant to the exercise of such Options is conditioned upon the Company's reservation of the right to withhold, in accordance with any applicable law, from any compensation payable to the Optionee any taxes required to be withheld by federal, state or local law as a result of the grant of exercise of any such Option. 22. Applicable Law. These Plans shall be governed by and construed in accordance with the laws of the State of California. 23. Invalid Provision. In the event that any provision of the Plans is found to be invalid or otherwise unenforceable under any applicable law, such invalidity or unenforceability 10 shall not be construed as rendering any other provisions contained herein invalid or unenforceable, and all such other provisions shall be given full force and effect to the same extent as though the invalid unenforceable provision was not contained herein. 24. Limitation on Amount of Securities Offered. Until such time as the Company becomes subject to the reporting requirements of Sections 13 or 15(d) of the Exchange Act, the aggregate sales price of Common Stock sold in reliance on Rule 701 of the Securities Act within the preceding twelve (12) months under the Plans and any other agreement granting options or awards under Rule 701, or number of shares of Common Stock, as the case may be, shall not exceed the greatest of: (i) $1,000,000, (ii) 15% of the total assets of the Company, measured as of the end of its most recent balance sheet date (if no older that its last fiscal year end), or (iii) 15% of the outstanding Common Stock, including securities (other than securities issued pursuant to the Plans) convertible or exchangeable for Common Stock. For purposes of this Section 24, the aggregate sales price of Common Stock sold in reliance on Rule 701 shall be measured on the date the Option is granted, based on the exercise price of the Option. 25. Disclosure Requirements. A copy of this Plan shall be delivered to all Optionees. Until such time as the Company becomes subject to the reporting requirements of Sections 13 or 15(d) of the Exchange Act, the Company shall deliver the following disclosure documents to the Optionee within a reasonable period of time before the applicable date of exercise, conversion or sale if the aggregate offering price of securities subject to outstanding offers plus the offering price of securities sold in the preceding twelve (12) months, as a result of Options issued under the Plans, exceeds $5,000,000: (a) A summary of the material terms of the Plans; (b) Information about the risks associated with purchasing the shares of stock in the Company; and (c) Financial statements as of a date no more than 180 days before the sale of securities pursuant to this Section 25. 26. Successors and Assigns. The Plans shall be binding on and inure to the benefit of the Company and the employees to whom an Option is granted hereunder, and such employees' heirs, executors, administrators, legatees, personal representatives, assignees and transferees. [signature page follows] 11 IN WITNESS WHEREOF, pursuant to the due authorization and adoption of these Plans, as amended, by the Board on September 7, 2000, the Company has caused these Plans to be duly executed by its duly authorized officers. LUMINENT, INC. By: /S/ WILLIAM R. SPIVEY ------------------------- William R. Spivey 12 EX-4.2 4 v78738ex4-2.txt EXHIBIT 4.2 Exhibit 4.2 LUMINENT, INC. STOCK OPTION AGREEMENT This Stock Option Agreement ("Agreement") is made effective as of the 11th day of July, 2000 by and between Luminent, Inc. (the "Company") and Eric I. Blachno (the "Optionee"). RECITALS WHEREAS, the Company has retained Optionee as its Chief Financial Officer; WHEREAS, the Company believes it to be in its best interest to, and has agreed to grant Optionee an option to purchase shares of Common Stock of the Company; WHEREAS, Optionee, in consideration of, among other things, the grant of this option, has accepted the Company's offer of employment on the terms set forth in that certain Letter Agreement dated July 11, 2000 from the Company and MRV Communications, Inc. to Optionee (the "Letter Agreement"). AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants set forth herein and other good and valuable consideration, the parties hereto agree as follows: 1. The Option(s). The Optionee may, at his option, purchase all or any part of an aggregate of 800,000 shares of Common Stock (the "Optioned Shares"), at the price of $6.25 per share (the "Option Price"), on the terms and conditions set forth herein. 2. Exercise Dates and Exercise. The Option(s) shall be exercisable as to all or any portion of the specified number of Optioned Shares at any time or from time to time on and after the "First" dates set forth below (when such Option(s) shall respectively accrue and become vested), and on or before the "Last" dates (the Option Expiration Date) set forth below: [25% of Number of Shares] September 7, 2000 to July 10, 2010 [25% of Number of Shares] July 11, 2001 to July 10, 2010 [25% of Number of Shares] July 11, 2002 to July 10, 2010 [25% of Number of Shares] July 11, 2003 to July 9, 2010 Optionee acknowledges that he understands he has no right whatsoever to exercise the Option(s) granted hereunder with respect to any Optioned Shares covered by any installment until such installment accrues and vests as provided above and that all unaccrued installments shall cease to accrue on the date of termination of Optionee's employment with the Company, except as may otherwise be provided in the Letter Agreement. Optionee further understands that the Option(s) granted hereunder shall expire and become unexercisable as provided in Section 3 below. This Option shall be deemed exercised as to the shares to be purchased when written notice of such exercise has been given to the Company at its principal business office by the Optionee with respect to the Common Stock to be purchased. Such notice shall be accompanied or preceded by full payment in cash or cash equivalents of the Option Price or by a notification in customary form of the use by Optionee of a broker-assisted cashless exercise procedure. 3. Early Exercise and/or Termination. Notwithstanding the provisions of Section 2, this Option shall be exercisable after a Change of Control or Sale of the Company (as such terms are defined in the Letter Agreement) or a termination of Optionee's employment with the Company only at the times, to the extent, and on the terms and conditions set forth in the Letter Agreement. 4. Representations and Warranties; Registration of Shares Underlying Options. Optionee represents and warrants to the Company as follows: (a) He understands that neither the Option evidenced by this Agreement nor the Optioned Shares have been registered under the Securities Act of 1933, as amended (the "Act"), and are not freely tradable. The securities must be held indefinitely unless either a registration statement with respect to the securities is filed and declared effective under the Act or an exemption from the registration requirement of the Act is available. (b) He understands that the Company has no obligation to register any or all the Optioned Shares under the Act for distribution, except as otherwise provided in the Letter Agreement. (c) He acknowledges that as a condition to the exercise of any portion of this Option, the Company may require the Optionee to make any representation and/or warranty to the Company as may, in the reasonable judgment of counsel to the Company, be required under any applicable law or regulation, including but not limited to a representation and warranty that the Optioned Shares are being acquired only for investment and without any present intention to sell or distribute such shares if, in the opinion of counsel for the Company, such a representation is required under the Act or any other applicable law, regulation or rule of any governmental agency; provided, however, that in accordance with the provisions of the Letter Agreement, the Company shall use its best efforts (including without limitation the timely filing of a registration statement under the Act and any registration or qualification required by applicable state securities laws) to achieve compliance with the Act or such other law, regulation or rule, as applicable, without requiring any such representation or warranty by Optionee. The Option and the Optioned Shares are being acquired for investment for Optionee's own account and not with a view to sale or resale, distribution (as that term is defined in the Act), or transfer, or to offers in connection therewith. (d) He is an "accredited investor" as such term is defined in Rule 501(a) of Regulation D under the Act, and has such knowledge and experience in financial and -2- business matters as to be able to evaluate the merits and risks of the acquisition of the securities, and, having had access to, or having been furnished with, all such information as he considers necessary, has concluded that he is able to bear those risks. (e) He acknowledges that the Company will, to the extent determined by the Company's legal counsel to be required by applicable law, affix a legend in substantially the following form to the certificates evidencing the Optioned Shares: The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, and may not be sold, pledged, hypothecated, donated, or otherwise transferred, whether or not for consideration, unless either the securities have been registered under said Act or an exemption from such registration requirement is available. If the Shares are to be sold or transferred pursuant to an exemption from the registration requirement, the Company may require a written opinion of counsel, reasonably satisfactory to counsel for Company, to the effect that registration is not required. The Company shall without charge offer to substitute an unlegended certificate for any legended certificate promptly after the Optioned Shares represented by such legended certificate first become eligible for sale by Optionee pursuant to Rule 144(k) (or any successor provision) under the Act. (f) Prior to any proposed sale, pledge, hypothecation, gift, or other transfer, for value or otherwise, of any or all of the Option evidenced by this Agreement or the Optioned Shares or of any interest therein other than a sale in compliance with the requirements of Rule 144 under the Act (hereinafter, a "Transfer"), Optionee shall give written notice to the Company describing the Transfer. Optionee shall not effect any Transfer unless and until (a) the Company receives an opinion of Optionee's counsel, in form and substance reasonably acceptable to counsel for the Company, that the Transfer may be effected without registration under the Act and without registration or qualification under applicable state securities laws, (provided, however, that no such opinion shall be required in connection with any bona fide gift of the Optioned Shares to a member of Optionee's immediate family or a charitable or educational institution), and (b) satisfaction of such other conditions as may be reasonably required by counsel to the Company in order to assure compliance with the Act and with applicable state securities laws. 5. No Enlargement of Rights. Nothing in this Agreement shall be construed to confer upon the Optionee any right to continued engagement by the Company or to restrict in any way the right of the Company to terminate its arrangement with Optionee subject to the terms of the Letter Agreement or any other applicable agreement between them. 6. Withholding of Taxes. Optionee authorizes the Company to withhold, in accordance with any applicable law, from any amounts payable to Optionee any taxes required to be withheld by federal, state or local law as a result of the grant of the Option(s) or the issuance of stock pursuant to the exercise of such Option(s). -3- 7. Laws Applicable to Construction; Choice of Jurisdiction and Forum. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to the conflict of laws provisions of any jurisdiction. The parties hereby submit to the exclusive jurisdiction of and venue in the state courts of the State of California or the federal courts located within or the Central District of California with respect to any disputes concerning the subject matter of this agreement. 8. Agreement Binding on Successors. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors, transferees and assignees of the Optionee. The terms of this Agreement shall be binding upon the successors of the Company. 9. Necessary Acts. The Optionee agrees to perform all acts and execute and deliver any documents that may be reasonably necessary to carry out the provisions of this Agreement, including but not limited to all acts and documents related to compliance with federal and/or state securities laws; provided, however, that the Company shall use its best efforts to achieve compliance with such securities laws without any action by Optionee. 10. Counterparts. For convenience this Agreement may be executed in any number of identical counterparts, each of which shall be deemed a complete original in itself and may be introduced in evidence or used for any other purpose without the production of any other counterparts. 11. Invalid Provisions. In the event that any provision of this Agreement is found to be invalid or otherwise unenforceable under any applicable law, such invalidity or unenforceability shall not be construed as rendering any other provisions contained herein invalid or unenforceable, and all such other provisions shall be given full force and effect to the same extent as though the invalid and unenforceable provision was not contained herein. 12. Adjustments upon Changes in Capitalization. If the outstanding shares of Common Stock of the Company are increased, decreased, changed into or exchanged for a different number or kind of shares of the Company through reorganization, recapitalization, reclassification, stock dividend, stock split or reverse stock split or other similar event, then an equitable and proportionate adjustment shall be made in the number or kind of shares which may be issued upon exercise of the Options granted under this Agreement. 13. Options Not Transferable. This Option may be exercised during the lifetime of the Optionee only by the Optionee. The Optionee's rights and interests under this Agreement and in and to the Option may not be sold, pledged, hypothecated, assigned, encumbered, gifted or otherwise transferred in any manner, either voluntarily or involuntarily by operation of law, except by will or the laws of descent or distribution. -4- IN WITNESS WHEREOF, the Company and the Optionee have executed this Agreement effective as of the date first written hereinabove. The Company LUMINENT, INC By /s/ Noam Lotan ---------------------------- Name: Noam Lotan ------------------------- Its: Chairman -------------------------- Luminent, Inc. 20550 Nordhoff Street Chatsworth, California 91311 Optionee /s/ Eric Blachno - ------------------------------- Eric I. Blachno Eric I. Blachno 11542 North Poema Place, #203 Chatsworth, CA 91311 Social Security No. ###-##-#### -5- EX-4.3 5 v78738ex4-3.txt EXHIBIT 4.3 Exhibit 4.3 MRV COMMUNICATIONS, INC. STOCK OPTION AGREEMENT This Stock Option Agreement ("AGREEMENT") is made effective as of January__, 2002, by and between MRV Communications, Inc., a Delaware corporation ("COMPANY"), and [NAME] ("OPTIONEE"). RECITALS In connection with a merger wherein Luminent, Inc. merged with and into a wholly-owned subsidiary of the Company (the "MERGER"), the Company assumed all of the options issued and outstanding under the Luminent, Inc. Amended and Restated 2000 Stock Option Plan (the "PLAN"). The Plan consists of: (i) the Luminent, Inc. 2000 Incentive Stock Option Plan ("PLAN A"); and (ii) the Luminent, Inc. 2000 Nonstatutory Stock Option Plan ("PLAN B"). Pursuant to the terms of the Merger, each issued and outstanding option to purchase shares of common stock of Luminent, Inc. ("LUMINENT") was converted into an option to purchase .43 shares of common stock of the Company. On [insert date] (the "ORIGINAL GRANT DATE") the board of directors of Luminent granted Optionee the right to purchase shares of voting common stock of Luminent ("LUMINENT OPTIONS") based on the terms set forth in the option agreement entered into by and between Luminent and the Optionee on [insert date]. Pursuant to the terms of the Merger, each Luminent Option was converted into an option to purchase .43 shares of the Company's common stock based on the terms set forth herein. In consideration of the foregoing and of the mutual covenants set forth herein and other good and valuable consideration, the parties hereto agree as set forth below. Unless otherwise defined herein, capitalized terms shall have the same meaning as defined in the Plan. 1. Grant of Options. On the Original Grant Date, Luminent granted the Optionee an option to purchase a total of _______ shares of common stock $.001 par value per share, of Luminent at $____ per share; [________] options were granted under Plan A and [___________] options were granted under Plan B. Pursuant to the terms of the Merger, the above mentioned grant of common stock of Luminent was converted into options to purchase shares of common stock (the "OPTIONS") of the Company. The Company hereby grants the Optionee an option to purchase a total of ________ shares of common stock at $.0017 par value per share, of the Company at $____ per share (the "EXERCISE PRICE"); _________ options are granted under Plan A and _________ options are granted under Plan B. 2. Option Price and Exercise Dates. The Options shall be exercisable as to the number of shares specified above ("OPTIONED SHARES") on and after the "Start" dates and on or before the "Termination" dates as set forth on Exhibit A. Optionee acknowledges that Optionee has no right whatsoever to exercise the Options granted hereunder with respect to any Optioned Shares covered by any installment until such installment vests as provided herein. Optionee further understands that the Options granted hereunder shall expire and become unexercisable as provided in the Plan. 3. Governing Plan. A copy of the document evidencing the Plan has been delivered to Optionee on or before the date of execution of this Agreement, and receipt of such copy is hereby expressly acknowledged by Optionee. This Agreement hereby incorporates by reference said Plan document and all of the terms and conditions of the Plan as the same may be amended from time to time hereafter in accordance with the terms thereof. The terms of this Agreement shall in no manner limit or modify the controlling provisions of the Plan. In the case of any conflict between the provisions of the Plan and this Agreement, the provisions of the Plan shall be controlling and binding upon the parties hereto. 4. Certain Representations and Warranties. Optionee expressly acknowledges, represents and agrees that: (i) Optionee has read and understands the terms and provisions of the Plan, and hereby accepts this Agreement subject to all the terms and provisions of the Plan. (ii) Optionee shall accept as binding and final all decisions or interpretations of the Board or of the Committee upon any questions arising under the Plan. (iii) Optionee understands that the existence of the Plan and the execution of this Agreement are not sufficient by themselves to cause any exercise of any Incentive Stock Options granted under Plan A and this Agreement to qualify for favorable tax treatment through the application of I.R.C. Section 422(a); and Optionee must, in order to so qualify, individually meet by Optionee's own action all applicable requirements of Section 422, including without limitation, that no disposition of Optioned Shares may be made by Optionee within two (2) years from the date of the granting of the options relating to such Optioned Shares nor within one (1) year after the transfer of such Optioned Shares to the Optionee. (iv) If shares of Common Stock are used to pay the exercise price of the Options pursuant to the Plan, Optionee has been advised to consult with a tax advisor regarding the applicable tax consequences prior to utilizing such shares to exercise an Option. 5. Securities Law. Optionee represents and warrants that Optionee is acquiring these Options for Optionee's own account and not with a view to or for sale in connection with any distribution of these Options or the shares of Common Stock which may be acquired upon exercise of these Options. As a condition to the exercise of any portion of these Options, the Company may require the person exercising such Options to make any representation and/or warranty to the Company as may, in the judgment of counsel to the Company, be required under any applicable law or regulation, including but not limited to a representation and warranty that the shares are being acquired only for investment and without any present intention to sell or distribute such shares if, in the opinion of counsel for the Company, such a representation is required under the Securities Act of 1933, as amended, or any other applicable law, regulation or rule of any governmental agency. 6. Exercise. (a) In order to exercise an Option, Optionee shall deliver a written notice of exercise to the Company at its principal business office, which notice shall specify the number of shares to be purchased and shall be accompanied by payment in cash or check made payable to the order of the Company in the full amount of the Option Price of the shares to be purchased. (b) In lieu of paying the total purchase price by cash or check, Optionee shall have the right, as determined by the Board or Committee, in its sole discretion, to accept payment on behalf of the Company (i) in the form of shares of Common Stock, which in the case of shares acquired upon exercise of an option, have been owned by the Optionee for more than six months on the date of surrender, and have a fair market value on the date of surrender equal to the aggregate exercise price of the shares as to which said Option shall be exercised, subject to all restrictions and limitations of applicable law, (ii) by cancellation of any indebtedness owed by the Company to the optionee; (iii) by a full recourse promissory note executed by the optionee (the terms of any promissory note may be changed by the Committee from time to time to comply with all applicable laws, regulations and rules of the Board of Governors of the Federal Reserve System, Internal Revenue Service or Securities and Exchange Commission regulations and any other governmental agency having jurisdiction), (iv) by requesting that the Company withhold whole shares of Common Stock then issuable upon exercise of the Stock Option (based on the fair market value of the Common Stock on the date of exercise), (v) by arrangement with a broker which is acceptable to the Board where payment of the exercise price is made pursuant to an irrevocable direction to the broker to deliver all or part of the proceeds from the sale of the shares underlying the Option to the Company, or (vi) by any combination of the foregoing. In the case of an Incentive Stock Option, the right to make payment in the form of already owned shares may be authorized only at the time of grant. Any payment in the form of stock already owned by the optionee may be effected by use of an attestation form approved by the Board. An Optionee's right to use shares of Common Stock to exercise an Option is expressly conditioned upon his or her making representations and warranties satisfactory to the Company regarding his or her title to the shares used to exercise such Option and that he or she has full power to deliver such shares without obtaining the consent or approval of any person or governmental authority other than those which have already given consent or approval in a form satisfactory to the Company. The equivalent dollar value of the shares used to effect the purchase shall be the fair market value of the shares as determined by the Board. 7. No Employment Rights. (a) Nothing in the Plan or in this Agreement shall be construed to create or imply any contract of employment between Optionee and the Company, any Subsidiary Corporation or any Parent Corporation (each a "PARTICIPATING COMPANY"), or confer upon Optionee any right to continue in the employ of any Participating Company, or confer upon any Participating any right to require the continued employment of Optionee by such Participating Company. Each Participating Company shall have the right to deal with Optionee in the same manner as if the Plan and this Agreement did not exist, including, without limitation, with respect to all matters related to the hiring, discharge, compensation and conditions of employment of Optionee. Unless otherwise expressly set forth in a separate employment agreement between a Participating Company and Optionee, the employment of optionee by such Participating Company is at-will, and Optionee or such Participating Company may terminate Optionee's employment with such Participating Company at any time for any reason, with or without cause. (b) Any disputes as to whether and when there has been a termination of Optionee's employment, the reason (if any) for such termination, and/or the consequences thereof under the terms of the Plan shall be determined by the Board or the Committee in its sole discretion, and the determination thereof shall be final and binding. 8. Withholding of Taxes. Optionee authorizes the Company to withhold, in accordance with any applicable law, from any compensation payable to him any taxes required to be withheld by federal, state, or foreign law as a result of the grant of the Options or the issuance of stock pursuant to the exercise of the Options. 9. Limitation on Value of Incentive Stock Option Shares. Optionee acknowledges that the Plan provides that the aggregate fair market value (determined as of the date hereof) of the shares of Stock to which Options granted under Plan A are exercisable for the first time by Optionee during any calendar year under all incentive stock option plans of the Company shall not exceed $100,000. It is understood and agreed that should it be determined that an Option if granted as an Incentive Stock Option hereunder would exceed such maximum, such Option shall be considered granted as a Non-Qualified Stock Option to the extent, but only to the extent of such excess. This limitation shall not apply to any option granted as a Non-Qualified Stock Option. 10. Governing Law. This Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the internal laws, and not the laws pertaining to conflicts or choice of laws, of the State of California applicable to agreements made and to be performed wholly within the State of California. In the event a judicial proceeding is necessary, the sole forum for resolving disputes arising under or relating to this Agreement shall be the Municipal and Superior Courts for the County of San Francisco, California, or the federal district court encompassing said county and all related appellate courts and the parties hereby consent to the jurisdiction of such courts, and that venue shall be in San Francisco County, California. 11. Agreement Binding on Successors. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors, transferees and assignees of Optionee. 12. Costs of Litigation. In any action at law or in equity to enforce any of the provisions or rights under this Agreement or the Plan, the unsuccessful party to such litigation, as determined by the court in a final judgment or decree, shall pay the successful party or parties all costs, expenses and attorneys' fees reasonably incurred by the successful party or parties (including without limitation costs, expenses and fees on any appeals), and if the successful party recovers judgment in any such action or proceeding such costs, expenses and attorneys' fees shall be included as part of the judgment. 13. Necessary Acts. Optionee agrees to perform all acts and execute and deliver any documents that may be reasonably necessary to carry out the provisions of this Agreement, including but not limited to all acts and documents related to compliance with federal, state, or foreign securities and/or tax laws. 14. Counterparts. For convenience, this Agreement may be executed in any number of identical counterparts, each of which shall be deemed a complete original in itself, and may be introduced in evidence or used for any other purpose without the production of any other counterparts. 15. Invalid Provisions. In the event that any provision of this Agreement is found to be invalid or otherwise unenforceable under any applicable law, such invalidity or unenforceability shall not be construed as rendering any other provisions contained herein invalid or unenforceable, and all such other provisions shall be given full force and effect to the same extent as though the invalid and unenforceable provision was not contained herein. 16. Exhibits. Each Exhibit referred to herein and attached hereto is an integral part of this Agreement and is incorporated herein by reference. 17. Consent of Spouse. Optionee shall obtain the consent of his or her spouse to the terms of this Agreement by execution of the Consent of Spouse form attached as Exhibit B. IN WITNESS WHEREOF, the Company and Optionee have executed this Agreement effective as of the date first written above. MRV COMMUNICATIONS, INC. OPTIONEE By: - ------------------------- ----------------------------- Signature - ------------------------- ----------------------------- Printed Name Printed Name - ------------------------- ----------------------------- Title Street Address ----------------------------- City and State ----------------------------- Social Security No. EXHIBIT A TO STOCK OPTION AGREEMENT The Options granted herein shall vest in accordance with the following schedule:
PLAN A OR B NUMBER OF EXERCISE DATES TERMINATION OPTIONS VESTING START - ---------------------------------------------------------------------------------------- ______OPTIONS SHALL VEST ON THE ___ OF EACH MONTH OVER A THREE YEAR PERIOD WITH ____ OPTIONS VESTING ON THE ___ OF EACH MONTH IN THE THIRD YEAR - ----------------------------------------------------------------------------------------
EXHIBIT B TO STOCK OPTION AGREEMENT CONSENT OF SPOUSE By his or her signature below, the spouse of Optionee, if such Optionee be legally married as of the date of execution of this Agreement, acknowledges that he or she has read this Agreement and the Plan and is familiar with the terms and provisions thereof, and agrees to be bound by all the terms and conditions of this Agreement and the Plan. ----------------------------- Spouse's Signature ----------------------------- Printed Name ----------------------------- Date By his or her signature below, Optionee represents that he or she is not legally married as of the date of execution of this Agreement. ----------------------------- Optionee's Signature ----------------------------- Date EX-5 6 v78738ex5.txt EXHIBIT 5 Exhibit 5 [LETTERHEAD OF KIRKPATRICK & LOCKHART LLP] January 31, 2002 MRV Communications, Inc. 21415 Nordhoff St. Chatsworth, CA 91311 Re: MRV Communications, Inc. Registration Statement on Form S-8 registering 3,268,581 shares of common stock issuable upon exercise of stock options Dear Sirs: We are counsel to MRV Communications, Inc. a Delaware corporation (the "Company"). We have assisted the Company in its preparation of a Registration Statement (the "Registration Statement") on Form S-8 under the Securities Act of 1933, as amended (the "Securities Act"), registering 3,268,581 shares of common stock (the "Common Stock") which will be issued upon exercise of stock options assumed by the Company in connection with the merger of Luminent, Inc. with and into a wholly-owned subsidiary of the Company (the "Assumed Options"). The Assumed Options were originally granted to employees, consultants and directors of Luminent, Inc. under both the Luminent, Inc. Amended and Restated 2000 Stock Option Plan and under the Eric Blachno Stock Option Agreement. In rendering this opinion, we have considered such questions of law and examined such statutes and regulations, corporate records, certificates and other documents and have made such other examinations, searches and investigations as we have considered necessary. In such examination we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified or as photocopies or telecopies. We have not made an independent examination of the laws of any jurisdiction other than California and Delaware and the Federal Law of the United States and we do not express or imply any opinions in respect to the laws of any other jurisdiction. The opinions expressed herein are based on legislation and regulations in effect on the date hereof. Based on and subject to the foregoing we are of the opinion that the Common Stock, when issued pursuant to the exercise of Assumed Options and the purchase price therefore has been paid, will be duly and validly issued, fully paid and nonassessable shares of Common Stock. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement. This consent is not to be construed as an admission that we are a person whose consent is required to be filed with the Registration Statement under the provisions of the Securities Act. Sincerely, /s/ Kirkpatrick & Lockhart LLP EX-23.1 7 v78738ex23-1.txt EXHIBIT 23.1 EXHIBIT 23.1 [ARTHUR ANDERSEN LETTERHEAD] CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement on Form S-8 our reports dated February 19, 2001 (except for matters discussed in Note 18 as to which the date is October 4, 2001), included in MRV Communication's Amendment No. 1 to its Form 10-K for the year ended December 31, 2000, and to all references to our Firm included in this registration statement. /s/ ARTHUR ANDERSEN LLP Arthur Andersen LLP Los Angeles, California January 31, 2002 -----END PRIVACY-ENHANCED MESSAGE-----