MRV Communications (MRVC) Inactive 10-K2008 FY Annual report

Filed: 8 Oct 09, 12:00am

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Exhibit 10.29

MRV COMMUNICATIONS, INC.

STOCK OPTION AGREEMENT

This AGREEMENT is made effective as of the 29th day of October, 2002 (the “Option Grant Date”), by and between MRV Communications, Inc. (the “Company”) and NOAM LOTAN (“Optionee”).

RECITALS

WHEREAS, the Board of Directors of the Company has established the 1997 Incentive Stock Option Plan and the 1997 Non-Statutory Stock Option Plan (either such Plan the “Plan” unless otherwise specified) effective as of November 11, 1997 and amended on August 3, 1998, October 25, 1999, October 31, 2000, and February 1, 2002 and NOAM LOTAN.

WHEREAS, pursuant to the provisions of said Plan, the Board of Directors of the Company, by action duly taken on OCTOBER 29, 2002, granted to the Optionee an option or options (the “Option(s)”) to purchase shares of the Common Stock of the Company on the terms and conditions set forth herein.

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 100,000 shares of Common Stock (the “Optioned Shares”), at the price of $0.99 per share (the “Option Price”), on the terms and conditions set forth herein.

2. Plan Type; Exercise Dates and Exercise. Options intended to qualify as Incentive Stock Options under Plan A are designated by an “A” under the category “Plan.” Options intended as separate Non-Statutory options under Plan B are designated by a “B” under the category “Plan.” Subject to the conditions set forth in this Agreement, the right to exercise the Optioned Shares shall accrue in accordance with Schedule 1 attached hereto and hereby made a part hereof.

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 as provided in Schedule 1 and that all unaccrued installments shall cease to accrue on the date of termination of Optionee’s employment, directorship, consulting or other arrangement with the Company. Optionee further understands that the Option(s) granted hereunder shall expire and become non-exercisable as provided in Section 3(c) 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 by (i) full payment in cash or cash equivalents, (ii) with shares of Common Stock pursuant to Section 14 of the Plan, or (iii) by any combination of (i) and (ii) as may be determined by the Board (or Committee if so authorized) with respect to the shares to be purchased.

3. Governing Plan. This Agreement hereby incorporates by reference the Plan and all of the terms and conditions of the Plan as heretofore amended and as the same may be amended from time to time hereafter in accordance with the terms thereof, but no such subsequent amendment shall adversely affect the Optionee’s rights under this Agreement and the Plan except as may be required by applicable law. The Optionee expressly acknowledges and agrees that the provisions of this Agreement are subject to the Plan; the terms of this Agreement shall in no manner limit or modify the controlling provisions of the Plan, and in 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. The Optionee also hereby expressly acknowledges, represents and agrees as follows:

(a) Acknowledges receipt of a copy of the Plan, a copy of which is attached hereto and by reference incorporated herein, and represents that he is familiar with the terms and provisions of said Plan, and hereby accepts this Agreement subject to all the terms and provisions of said Plan.

(b) Agrees to accept as binding, conclusive and final all decisions or interpretations of the Board of Directors (or the Committee, if so authorized) upon any questions arising under the Plan.

(c) Acknowledges that he is familiar with Sections of the Plan regarding the exercise of the Option(s) and represents that he understands that said Option(s) must be exercised on or before the earliest of the following dates, whichever is applicable: (i) the day prior to the tenth anniversary of the Option(s) Grant Date with respect to Options granted under Plan A and B, in each as provided in Subsection 7(c) of the Plan; (ii) the effective date of a sale or other disposition of all or substantially all of the stock or assets of the Company, as provided in Subsection 8(a) of the Plan; (iii) the date which is 30 days following the Optionee’s termination of employment, directorship or consulting or other arrangement (unless extended) for any reason other than death or disability as provided under Section 10 of the Plan; or (iv) the date that is one year following the Optionee’s termination of employment, directorship or consulting or other arrangement by reason of his death, or the date that is one year following his termination of employment, directorship or consulting or other arrangement by reason of disability, whichever is applicable, as provided in Subsection 10(b) of the Plan.

(d) Acknowledges, understands and agrees that the existence of the Plan and the execution of this Agreement are not sufficient by themselves to cause any exercise of any Option(s) granted under Plan A to qualify for favorable tax treatment through the application of Section 422(A) of the Internal Revenue Code; that Optionee must, in order to so qualify, individually meet by his own action all applicable requirements of Section 422A, including without limitation the following holding period and employment requirements:

(1) Holding period requirement: no disposition of an Optioned Share may be made by Optionee within two (2) years from the date of the granting of the Option(s) nor within one (1) year after the transfer of such Optioned Share to him, and

(2) Employment requirement: at all times during the period beginning on the date of the granting of the Option(s) and ending on the three (3) months before the date of exercise, the Optionee must have been an employee of the Company, its parent, or a subsidiary of the Company, or a corporation or a parent or subsidiary of such corporation issuing or assuming the Option(s) in a transaction to which

Section 425(a) of the Internal Revenue Code applies, except where the termination of employment is by means of the

employee’s disability, in which case said 3 month period may be extended to 1 year, as provided under Internal Revenue Code Section 422A.

4. Representations and Warranties. As a condition to the exercise of any portion of an Option, the Company may require the person 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, 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 or any other applicable law, regulation or rule of any governmental agency. Optionee hereby represents to the Company that each of the Option evidenced hereby and the shares purchasable upon exercise thereof is being acquired only for investment and without any present intention to sell or distribute such securities.

5. Options Not Transferable. The Option(s) 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(s) 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.

6. No Enlargement of Employee Rights. Nothing in this Agreement shall be construed to confer upon the Optionee (if an employee) any right to continued employment with the Company (or an Affiliated Company), or to restrict in any way the right of the Company (or an Affiliated Company if he is an employee thereof) to terminate his employment. Optionee acknowledges that in the absence of an express written employment agreement to the contrary, Optionee’s employment with the Company may be terminated by the Company at any time, with or without cause.

7. 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 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).

8. Laws Applicable to Construction. This Agreement shall be construed and enforced in accordance with the laws of the State of California.

9. Agreement Binding on Successors. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors, transferees and assignees of the Optionee.

10. 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 reasonable attorneys’ fees incurred by the successful party or parties (including without limitation costs, expenses end 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.

11. 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.

12. 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.

13. 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.

14. Limitation on Value of Optioned Shares. Optionee acknowledged that the Plan provides that the aggregate fair market value (determined as of the date hereof) of the shares of Common 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 and its Affiliated Companies shall not exceed $100,000. It is understood and agreed that should it be determined that an Option if granted pursuant to Plan A hereunder would exceed such maximum, such Option shall be not be considered granted under Plan A to the extent, but only to the extent of such excess. This limitation shall not apply to any option granted under Plan B.

IN WITNESS WHEREOF, the Company and the Optionee have executed this Agreement effective as of the date first written herein above.

MRV COMMUNICATIONS, INC.			OPTIONEE

By	/s/ Noam Lotan		By	/s/ Noam Lotan
	NOAM LOTAN			NOAM LOTAN

Title:		PRESIDENT & CEO	[Redacted]
			SOCIAL SECURITY NUMBER

By his or her signature below, the spouse of the Optionee, of such Optionee be legally married as of the date of his 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 said Agreement and said Plan document.

	Spouse	S.W. Lotan

	Dated:	12/5/02

By his or her signature below the Optionee represents that he or she is not legally married as of the date of execution of this Agreement.

	Optionee
	Dated:

MRV COMMUNICATIONS, INC.

STOCK OPTION AGREEMENT

SCHEDULE 1

RIGHT TO EXERCISE

Subject to the conditions set forth in this agreement, the right to exercise the Optioned Shares shall accrue as follows:

Plan	Number of Shares	Date

B	100,000	October 29, 2012