<PAGE>
EXHIBIT 4.9
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
WARRANT TO PURCHASE
20,000 SHARES OF SERIES F PREFERRED STOCK
OF WAVESPLITTER TECHNOLOGIES, INC.
(Void after June 30, 2005)
This certifies that Fremont Ventures LLC, a California limited liability
corporation, or its assigns (the "Holder"), for value received, is entitled to
purchase from WaveSplitter Technologies, Inc., a California corporation (the
"Company"), 20,000 fully paid and nonassessable shares of the Company's Series F
Preferred Stock ("Preferred Stock") for cash at that price per share (the "Stock
Purchase Price") at which the Company shall sell its Series F Preferred Stock in
a Series F Preferred Stock financing, at any time or from time to time up to and
including 5:00 p.m. (Pacific time) on June 30, 2005 (the "Expiration Date"),
upon surrender to the Company at its principal office at Fremont, California,
(or at such other location as the Company may advise Holder in writing) of this
Warrant properly endorsed with the Form of Subscription attached hereto duly
filled in and signed and upon payment in cash or by check of the aggregate Stock
Purchase Price for the number of shares for which this Warrant is being
exercised determined in accordance with the provisions hereof. As of the date
hereof, the rights, preferences, and terms of the Company's Series F Preferred
Stock have not been determined and such determination will be made by investors
other than the Holder. Such rights, preferences and terms may not be as
favorable to holders of the Company's Series F Preferred Stock as the Holder
desires. Notwithstanding the foregoing, if the Company shall not sell and issue
shares of Series F Preferred Stock in a Series F Preferred Stock financing on or
prior to December 31, 2000, then the Holder (i) shall cease to be entitled to
purchase shares of the Company's Series F Preferred Stock and (ii) shall be
entitled to purchase 20,000 fully paid and nonassessable shares of the Company's
Series E Preferred Stock (alternatively, "Preferred Stock") at a price of $5.00
per share (alternatively, the "Stock Purchase Price") under the conditions set
forth above. The Stock Purchase Price and the number of shares purchasable
hereunder are subject to adjustment as provided in Section 4 of this Warrant.
This Warrant is subject to the following terms and conditions:
1. Exercise: Issuance of Certificates; Payment for Shares.
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(a) Unless an election is made pursuant to clause (b) of this
Section 1, this Warrant shall be exercisable at the option of the Holder, at any
time or from time to time, on or before the Expiration Date for all or any
portion of the shares of
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Preferred Stock (but not for a fraction of a share) which may be purchased
hereunder for the Stock Purchase Price multiplied by the number of shares to be
purchased. In the event, however, that pursuant to the Company's Articles of
Incorporation, as amended, an event causing automatic conversion of the
Company's Preferred Stock shall have occurred prior to the exercise of this
Warrant, in whole or in part, then this Warrant shall be exercisable for the
number of shares of Common Stock of the Company into which the Preferred Stock
not purchased upon any prior exercise of the Warrant would have been so
converted (and, where the context requires, reference to "Preferred Stock" shall
be deemed to include such Common Stock). The Company agrees that the shares of
Preferred Stock purchased under this Warrant shall be and are deemed to be
issued to the holder hereof as the record owner of such shares as of the close
of business on the date on which the form of subscription shall have been
delivered and payment made for such shares. Subject to the provisions of Section
2, certificates for the shares of Preferred Stock so purchased, together with
any other securities or property to which the Holder hereof is entitled upon
such exercise, shall be delivered to the Holder hereof by the Company at the
Company's expense within a reasonable time after the rights represented by this
Warrant have been so exercised. Except as provided in clause (b) of this Section
1, in case of a purchase of less than all the shares which may be purchased
under this Warrant, the Company shall cancel this Warrant and execute and
deliver a new Warrant or Warrants of like tenor for the balance of the shares
purchasable under the Warrant surrendered upon such purchase to the Holder
hereof within a reasonable time. Each stock certificate so delivered shall be in
such denominations of Preferred Stock as may be reasonably requested by the
Holder hereof and shall be registered in the name of such Holder or such other
name as shall be designated by such Holder, subject to the limitations contained
in Section 2.
(b) The Holder, in lieu of exercising this Warrant by the
payment of the Stock Purchase Price pursuant to clause (a) of this Section 1,
may elect, at any time on or before the Expiration Date, to receive that number
of shares of Preferred Stock equal to the quotient of: (i) the difference
between (A) the Per Share Price (as hereinafter defined) of the Preferred Stock,
less (B) the Stock Purchase Price then in effect, multiplied by the number of
shares of Preferred Stock the Holder would otherwise have been entitled to
purchase hereunder pursuant to clause (a) of this Section 1 (or such lesser
number of shares as the Holder may designate in the case of a partial exercise
of this Warrant); over (ii) the Per Share Price. Election to exercise under this
section (b) may be made by delivering a signed form of subscription to the
Company via facsimile, to be followed promptly by delivery of the warrant.
(c) For purposes of clause (b) of this Section 1, "Per Share
Price" means the product of: (i) the greater of (A) the closing price of the
Company's Common Stock as quoted by NASDAQ or listed on any exchange, whichever
is applicable, as published in the Western Edition of The Wall Street Journal
for the trading day immediately prior to the date of the Holder's election
hereunder or, (B) if applicable at the time of or in connection with the
exercise under clause (b) of this Section 1, the gross sales price of one share
of the Company's Common Stock pursuant to a registered public offering or that
amount which shareholders of the Company will receive for each share of Common
Stock pursuant to a merger, reorganization or sale of assets; and (ii) that
number of shares of Common Stock into which each share of Preferred Stock is
convertible. If the
2
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Company's Common Stock is not quoted by NASDAQ or listed on an exchange, the Per
Share Price of the Preferred Stock (or the equivalent number of shares of Common
Stock into which such Preferred Stock is convertible) shall be the price per
share which the Company would obtain from a willing buyer for shares sold by the
Company from authorized but unissued shares as such price shall be reasonably
agreed upon by the Holder and the Company or, if agreement cannot be reached
within ten (10) business days of the Holder's election hereunder, as such price
shall be determined by a panel of three (3) appraisers, one (1) to be chosen by
the Company, one (1) to be chosen by the Holder and the third to be chosen by
the first two (2) appraisers. If the appraisers cannot reach agreement within 30
days of the Holder's election hereunder, then each appraiser shall deliver its
appraisal and the appraisal which is neither the highest nor the lowest shall
constitute the Per Share Price. In the event either party fails to choose an
appraiser within 30 days of the Holder's election hereunder, then the appraisal
of the sole appraiser shall constitute the Per Share Price. Each party shall
bear the cost of the appraiser selected by such party and the cost of the third
appraiser shall be borne one-half by each party. In the event either party fails
to choose an appraiser, the cost of the sole appraiser shall be borne one-half
by each party.
2. Limitation on Transfer.
----------------------
(a) The Warrant and the Preferred Stock shall not be
transferable except upon the conditions specified in this Section 2, which
conditions are intended to insure compliance with the provisions of the
Securities Act. The Warrant and the Preferred Stock and the Common Stock
issuable upon conversion thereof may be transferred only to accredited
investors, as such term is defined in Rule 501 of Regulation D under the
Securities Act of 1933. Each holder of this Warrant or the Preferred Stock or
Common Stock issuable hereunder will cause any proposed transferee of the
Warrant or Preferred Stock or Common Stock issuable upon conversion thereof to
agree to take and hold such securities subject to the provisions and upon the
conditions specified in this Section 2. Not more than three (3) transfers shall
be permitted.
(b) Each certificate representing (i) this Warrant, (ii) the
Preferred Stock, (iii) shares of the Company's Common Stock issued upon
conversion of the Preferred Stock and (iv) any other securities issued in
respect to the Preferred Stock or Common Stock issued upon conversion of the
Preferred Stock upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event, shall (unless otherwise permitted by the
provisions of this Section 2 or unless such securities have been registered
under the Securities Act or sold under Rule 144) be stamped or otherwise
imprinted with a legend substantially in the following form (in addition to any
legend required under applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
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(c) The Holder of this Warrant and each person to whom this
Warrant or the Preferred Stock or Common Stock issuable hereunder is
subsequently transferred represents and warrants to the Company (by acceptance
of such transfer) that he, she, or it is an accredited investor and that it will
not transfer the Warrant (or securities issuable upon exercise hereof unless a
registration statement under the Securities Act was in effect with respect to
such securities at the time of issuance thereof) unless and until the Company
has been provided notice of proposed disposition including its material terms
and except pursuant to (i) an effective registration statement under the
Securities Act, (ii) Rule 144 under the Securities Act (or any other rule under
the Securities Act relating to the disposition of securities), or (iii) an
opinion of counsel, reasonably satisfactory to counsel for the Company, that an
exemption from such registration is available.
3. Shares to be Fully Paid; Reservation of Shares. The Company covenants
----------------------------------------------
and agrees that all shares of Preferred Stock which may be issued upon the
exercise of the rights represented by this Warrant will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable and free from all
preemptive rights of any shareholder and free of all taxes, liens and charges
with respect to the issue thereof. The Company further covenants and agrees that
during the period within which the rights represented by this Warrant may be
exercised, the Company will at all times have authorized and reserved, for the
purpose of issue or transfer upon exercise of the subscription rights evidenced
by this Warrant, a sufficient number of shares of authorized but unissued
Preferred Stock, or other securities and property, when and as required to
provide for the exercise of the rights represented by this Warrant. The Company
will take commercially reasonable action to assure that such shares of Preferred
Stock may be issued as provided herein without violation of any applicable law
or regulation, or of any requirements of any domestic securities exchange upon
which the Preferred Stock may be listed. The Company will not take any action
which would result in any adjustment of the Stock Purchase Price (as defined in
Section 4 hereof) (i) if the total number of shares of Preferred Stock issuable
after such action upon exercise of all outstanding warrants, together with all
shares of Preferred Stock then outstanding and all shares of Preferred Stock
then issuable upon exercise of all options and upon the conversion of all
convertible securities men outstanding, would exceed the total number of shares
of Preferred Stock then authorized by the Company's Articles of Incorporation,
or (ii) if the total number of shares of Common Stock issuable after such action
upon the conversion of all such shares of Preferred Stock together with all
shares of Common Stock then outstanding and then issuable upon exercise of all
options and upon the conversion of all convertible securities then outstanding
would exceed the total number of shares of Common Stock then authorized by the
Company's Articles of Incorporation.
4. Adjustment of Stock Purchase Price Number of Shares. The Stock
---------------------------------------------------
Purchase Price and the number of shares purchasable upon the exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence of
certain events described in this Section 4. Upon each adjustment of the Stock
Purchase Price, the Holder of this Warrant shall thereafter be entitled to
purchase, at the Stock Purchase Price resulting from such adjustment, the number
of shares obtained by multiplying the Stock Purchase Price in effect immediately
prior to such adjustment by the number of shares
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<PAGE>
purchasable pursuant hereto immediately prior to such adjustment, and dividing
the product thereof by the Stock Purchase Price resulting from such adjustment.
4.1 Subdivision or Combination of Stock. In case the Company shall at
-----------------------------------
any time subdivide its outstanding shares of Preferred Stock into a greater
number of shares, the Stock Purchase Price in effect immediately prior to such
subdivision shall be proportionately reduced, and conversely, in case the
outstanding shares of Preferred Stock of the Company shall be combined into a
smaller number of shares, the Stock Purchase Price in effect immediately prior
to such combination shall be proportionately increased.
4.2 Dividends in Preferred Stock, Other Stock, Property
---------------------------------------------------
Reclassification. If at any time or from time to time the holders of Preferred
----------------
Stock (or any shares of stock or other securities at the time receivable upon
the exercise of this Warrant) shall have received or become entitled to receive,
without payment therefor,
(a) Preferred Stock, or any shares of stock or other securities
whether or not such securities are at any time directly or indirectly
convertible into or exchangeable for Preferred Stock, or any rights or options
to subscribe for, purchase or otherwise acquire any of the foregoing by way of
dividend or other distribution, or
(b) any cash paid or payable otherwise than as a cash dividend,
or
(c) Preferred Stock or other or additional stock or other
securities or property (including cash) by way of spinoff, split-up,
reclassification, combination of shares or similar corporate rearrangement,
(other than shares of Preferred Stock issued as a stock split, adjustments in
respect of which shall be covered by the terms of Section 4.1 above). Then and
in each such case, the Holder hereof shall, upon the exercise of this Warrant,
be entitled to receive, in addition to the number of shares of Preferred Stock
receivable thereupon, and without payment of any additional consideration
therefore, the amount of stock and other securities and property (including cash
in the cases referred to in clauses (b) and (c) above) which such Holder would
hold on the date of such exercise had he been the holder of record of such
Preferred Stock as of the date on which holders of Preferred Stock received or
became entitled to receive such shares and/or all other additional stock and
other securities and property.
4.3 Reorganization, Reclassification, Consolidation, Merger or Sale.
---------------------------------------------------------------
If any capital reorganization of the capital stock of the Company, or any
consolidation or merger of the Company with another corporation, or the sale of
all or substantially all of its assets to another corporation shall be effected
in such a way that holders of Preferred Stock shall be entitled to receive
stock, securities or assets with respect to or in exchange for Preferred Stock,
then, as a condition of such reorganization, reclassification, consolidation,
merger or sale, lawful and adequate provisions shall be made whereby the holder
hereof shall thereafter have the right to purchase and receive (in lieu of the
shares of the Preferred Stock of the Company immediately theretofore purchasable
and receivable upon the exercise of the rights represented hereby) such shares
of stock, securities or assets as may be issued or payable with respect to or in
exchange for a number of outstanding shares of such Preferred Stock equal to the
number of shares of such stock immediately theretofore purchasable and
receivable upon the exercise of the
5
<PAGE>
rights represented hereby. In any such case, appropriate provision shall be made
with respect to the rights and interests of the holder of this Warrant to the
end that the provisions hereof (including, without limitation, provisions for
adjustments of the Stock Purchase Price and of the number of shares purchasable
and receivable upon the exercise of this Warrant) shall thereafter be
applicable, as nearly as may be possible, in relation to any shares of stock,
securities or assets thereafter deliverable upon the exercise hereof.
4.4 Anti-Dilution Provisions. The Holder hereof shall be entitled,
------------------------
with respect to the shares of Series B Preferred Stock issued upon exercise
hereof, to the anti-dilution protection provided to such class of stock as
described in the Company's Amended and Restated Articles of Incorporation. This
protection shall apply to Holder prior to the exercise of this Warrant.
4.5 Notice of Adjustment. Upon any adjustment of the Stock Purchase
--------------------
Price, and/or any increase or decrease in the number of shares purchasable upon
the exercise of this Warrant the Company shall give written notice thereof, by
first class mail, postage prepaid, addressed to the registered holder of this
Warrant at the address of such holder as shown on the books of the Company. The
notice, which may be substantially in me form of Exhibit "A" attached hereto,
shall be signed by the Company's chief financial officer and shall state the
Stock Purchase Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price upon the
exercise of this Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
4.6 Other Notices. If at any time:
-------------
(a) the Company shall declare any cash dividend upon its
Preferred Stock;
(b) the Company shall declare any dividend upon its Preferred
Stock payable in stock or make any special dividend or other distribution to the
holders of its Preferred Stock;
(c) there shall be any capital reorganization or
reclassification of the capital stock of the Company, or consolidation or merger
of the Company with, or sale of all or substantially all of its assets to,
another corporation;
(d) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company; or
(e) the Company shall take or propose to take any other action,
notice of which is actually provided to holders of the Preferred Stock (except
the voting of Preferred Stock on matters other than items (a) though (e));
then, in any one or more of said cases, the Company shall give, by first class
mail, postage prepaid, addressed to the holder of this Warrant at the address of
such holder as shown on the books of the Company, (i) at least 20 day's prior
written notice of the date on which the books of the Company shall close or a
record shall be taken for such
6
<PAGE>
dividend or distribution rights or for determining rights to vote in respect of
any such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding-up, or other action and (ii) in the case of
any such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding-up, or other action, at least 20 day's
written notice of the date when the same shall take place. Any notice given in
accordance with the foregoing clause (i) shall also specify, in the case of any
such dividend or distribution the date on which the holders of Preferred Stock
shall be entitled thereto. Any notice given in accordance with the foregoing
clause (ii) shall also specify the date on which the holders of Preferred Stock
shall be entitled to exchange their Preferred Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding-up, or other action as the
case may be.
4.7 Certain Events. If any change in the outstanding Preferred Stock
--------------
of the Company or any other event occurs as to which the other provisions of
this Section 4 are not strictly applicable or if strictly applicable would not
fairly protect the purchase rights of the Holder of the Warrant in accordance
with the essential intent and principles of such provisions, then the Board of
Directors of the Company shall make an adjustment in the number and class of
shares available under the Warrant, the Stock Purchase Price and/or the
application of such provisions, in accordance with such essential intent and
principles, so as to protect such purchase rights as aforesaid. The adjustment
shall be such as will give the Holder of the Warrant upon exercise for the same
aggregate Stock Purchase Price the total number, class and kind of shares as he
would have owned had the Warrant been exercised prior to the event and had he
continued to hold such shares until after the event requiring adjustment.
5. Issue Tax. The issuance of certificates for shares of Preferred Stock
---------
upon the exercise of the Warrant shall be made without charge to the Holder of
the Warrant for any issue tax in respect thereof; provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any certificate in a name
other than that of the then Holder of the Warrant being exercised.
6. Closing of Books. The Company will at no time close its transfer books
----------------
against the transfer of any Warrant or of any shares of Preferred Stock issued
or issuable upon the exercise of any warrant in any manner which interferes with
the timely exercise of this Warrant.
7. No Voting or Dividend Rights; Limitation of Liability. Nothing
-----------------------------------------------------
contained in this Warrant shall be construed as conferring upon the Holder
hereof the right to vote or to consent as a shareholder in respect of meetings
of shareholders for the election of directors of the Company or any other
matters or any rights whatsoever as a shareholder of the Company. No dividends
or interest shall be payable or accrued in respect of this Warrant or the
interest represented hereby or the shares purchasable hereunder until, and only
to the extent that, this Warrant shall have been exercised. No provisions
hereof, in the absence of affirmative action by the holder to purchase shares of
Preferred Stock, and no mere enumeration herein of the rights or privileges of
the Holder hereof, shall give rise
7
<PAGE>
to any liability of such Holder for the Stock Purchase Price or as a shareholder
of the Company, whether such liability is asserted by the Company or by its
creditors.
8. Right of Participation in Series F Preferred Stock Financing. In
------------------------------------------------------------
addition to the grant of the right to purchase shares of Preferred Stock
hereunder, the Company hereby grants the Holder the right to participate in a
Series F Preferred Stock financing of the Company and purchase up to 20,000
shares of the Company's Series F Preferred Stock under the terms of such
financing. Notwithstanding the foregoing, if the Company shall not sell and
issue shares of Series F Preferred Stock in a Series F Preferred Stock financing
on or prior to December 31, 2000, then the Holder shall instead be entitled to
purchase up to 20,000 shares of the Company's Series E Preferred Stock at a
purchase price per share of $5.00.
9. Registration Rights. The Holder hereof shall be entitled, upon
-------------------
execution of an amendment to the Fourth Amended and Restated Rights Agreement
dated March 23, 2000 (the "Rights Agreement") with respect to the shares of
Preferred Stock issued upon exercise hereof or the shares of Common Stock or
other securities issued upon conversion of such Preferred Stock as the case may
be, to all of the registration rights set forth in the Rights Agreement to the
same extent and on the same terms and conditions as possessed by the Investors
thereunder.
10. Rights and Obligations Survive Exercise of Warrant. The rights and
--------------------------------------------------
obligations of the Company, of the Holder of this Warrant and of the holder of
shares of Preferred Stock issued upon exercise of this Warrant, contained in
Sections 6 and 9 shall survive the exercise of this Warrant.
11. Modification and Waiver. This Warrant and any provision hereof may be
-----------------------
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
12. Notices. Any notice, request or other document required or permitted
-------
to be given or delivered to the holder hereof or the Company shall be deemed to
have been given (i) upon receipt if delivered personally or by courier (ii) upon
confirmation of receipt if by telecopy or (iii) three business days after
deposit in the US mail, with postage prepaid and certified or registered, to
each such holder at its address as shown on the books of the Company or to the
Company at the address indicated therefor in the first paragraph of this
Warrant.
13. Binding Effect on Successors. This Warrant shall be binding upon any
----------------------------
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets unless otherwise agreed by the
Holder. All of the obligations of the Company relating to the Preferred Stock
issuable upon the exercise of this Warrant shall survive the exercise and
termination of this Warrant. All of the covenants and agreements of the Company
shall inure to the benefit of the successors and assigns of the holder hereof.
The Company will, at the time of the exercise of this Warrant, in whole or in
part, upon request of the Holder hereof but at the Company's expense,
acknowledge in writing its continuing obligation to the Holder hereof in respect
of any rights (including, without limitation, any right to registration of the
shares of
8
<PAGE>
Common Stock) to which the holder hereof shall continue to be entitled after
such exercise in accordance with this Warrant; provided, that the failure of the
holder hereof to make any such request shall not affect the continuing
obligation of the Company to the Holder hereof in respect of such rights.
14. Descriptive Headings and Governing Law. The descriptive headings of
--------------------------------------
the several sections and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant. This Warrant shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the laws of the State of California, as applied to agreements
made and performed in California by residents thereof without regard to the
conflicts of laws principles of such state.
15. Lost Warrants or Stock Certificates. The Company represents and
-----------------------------------
warrants to the Holder hereof that upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation of
any Warrant or stock certificate and, in the case of any such loss, theft or
destruction, upon receipt of an indemnity reasonably satisfactory to the
Company, or in the case of any such mutilation upon surrender and cancellation
of such Warrant or stock certificate, the Company at its expense will make and
deliver a new Warrant or stock certificate, of like tenor, in lieu of the lost,
stolen, destroyed or mutilated Warrant or stock certificate.
16. Fractional Shares. No fractional shares shall be issued upon exercise
-----------------
of this Warrant. The Company shall, in lieu of issuing any fractional share, pay
the holder entitled to such fraction a sum in cash equal to such fraction
multiplied by the then effective Stock Purchase Price.
17. Representations of Holder. With respect to this Warrant, Holder
-------------------------
represents and warrants to the Company as follows:
17.1 Experience. It is experienced in evaluating and investing in
----------
companies engaged in businesses similar to that of the Company; it understands
that investment in the Warrant involves substantial risks; it has made detailed
inquiries concerning the Company, its business and services, its officers and
its personnel; the officers of the Company have made available to Holder any and
all written information it has requested; the officers of the Company have
answered to Holder's satisfaction all inquiries made by it; in making this
investment it has relied upon information made available to it by the Company;
and it has such knowledge and experience in financial and business matters that
it is capable of evaluating the merits and risks of investment in the Company
and it is able to bear the economic risk of that investment.
17.2 Investment. It is acquiring the Warrant for investment for its
----------
own account and not with a view to, or for resale in connection with, any
distribution thereof. It understands that the Warrant, the shares of Preferred
Stock issuable upon exercise thereof and the shares of Common Stock issuable
upon conversion of the Preferred Stock, have not been registered under the
Securities Act of 1933, as amended, nor qualified under applicable state
securities laws.
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17.3 Rule 144. It acknowledges that the Warrant, the Preferred Stock
--------
and the Common Stock must be held indefinitely unless they are subsequently
registered under the Securities Act or an exemption from such registration is
available. It has been advised or is aware of the provisions of Rule 144
promulgated under the Securities Act.
17.4 Access to Data. It has had an opportunity to discuss the
--------------
Company's business, management and financial affairs with the Company's
management and has had the opportunity to inspect the Company's facilities.
17.5 Accredited Investor. It is an accredited investor as such term is
-------------------
defined in Rule 501 of Regulation D of the Securities Act of 1933.
18. Additional Representations and Covenants of the Company. The Company
hereby represents, warrants and agrees as follows:
18.1 Corporate Power. The Company has all requisite corporate power
---------------
and corporate authority to issue this Warrant and to carry out and perform its
obligations hereunder.
18.2 Authorization. All corporate action on the part of the Company,
-------------
its directors and shareholders necessary for the authorization, execution,
delivery and performance by the Company of this has been taken. This Warrant is
a valid and binding obligation of the Company, enforceable in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency and
similar laws affecting the enforcement of creditors' rights in general and
subject to general principals of equity.
18.3 Offering. Subject in part to the truth and accuracy of Holder's
--------
representations set forth in Section 17 hereof, the offer, issuance and sale of
the Warrant is, and the issuance of Preferred Stock upon exercise of the Warrant
and the issuance of Common Stock upon conversion of the Preferred Stock will,
under current law and assuming no transfer, be exempt from the registration
requirements of the Securities Act, and are exempt from the qualification
requirements of any applicable state securities laws; and neither the Company
nor anyone acting on its behalf will take any action hereafter that would cause
the loss of such exemptions.
18.4 Stock Issuance. Upon exercise of the Warrant, the Company will
--------------
use its best efforts to cause stock certificates representing the shares of
Preferred Stock purchased pursuant to the exercise to be issued in the
individual names of Holder, its nominees or assignees, as appropriate at the
time of such exercise. Upon conversion of the shares of Preferred Stock to
shares of Common Stock, the Company will issue the Common Stock in the
individual names of Holder, its nominees or assignees, as appropriate.
18.5 Articles and By-Laws. The Company has provided Holder with, or
--------------------
made available to Holder, true and complete copies of the Company's Articles or
Certificate of Incorporation, By-Laws, and each Certificate of Determination or
other charter document setting, forth any rights, preferences and privileges of
Company's capital stock, each as amended and in effect on the date of issuance
of this Warrant.
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18.6 Conversion of Preferred Stock. As of the date hereof, each share
-----------------------------
of the Preferred Stock is convertible into one share of the Common Stock.
IN WITNESS WHEREOF, the Company has caused this. Warrant to be duly executed by
its officers, thereunto duly authorized this 30th day of June, 2000.
WAVESPLITTER TECHNOLOGIES, INC.
By: /s/ Bruce Pollock
-----------------
Title: VP and Chief Financial Officer
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Name of Assignee Address Number of Shares
-------------------- ----------- --------------------
Dated: ____________________
Holder: ____________________
By: _______________________
Its: ______________________
(Signature must conform to name of
Holder exactly as specified on the face
of the Warrant or as specified in an
Assignment)
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