UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ___)*
Avanex Corporation
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(Name of Issuer)
Common Stock, par value $.001 per share
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(Title of Class of Securities)
05348W109
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(CUSIP Number)
Denise A. Hauselt, Esq.
Deborah McLean Quinn, Esq. Secretary and Assistant General Counsel
Nixon Peabody LLP Corning Incorporated
Clinton Square Suite 1300 One Riverfront Plaza
Rochester, New York 14604 Corning, New York 14830-0001
Telephone: 716-263-1307 Telephone: 607-974-9000
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
May 12, 2003
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d01(f) or 240.13d-1(g), check the
following box |_|.
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
--------------------
CUSIP No. 05348W109
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NAME OF REPORTING PERSONS
Corning Incorporated
1 I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
16-0393470
--------- ----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) X
--------- ----------------------------------------------------------------------
3 SEC USE ONLY
--------- ----------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
--------- ----------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
--------- ----------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
--------- ----------------------------------------------------------------------
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7 SOLE VOTING POWER
NUMBER OF 0
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 5,466,564
OWNED BY 9 SOLE DISPOSITIVE POWER
EACH 0
REPORTING 10 SHARED DISPOSITIVE POWER
PERSON WITH 0
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,466,564
--------- ----------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------- ----------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
--------- ----------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
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*Includes 652,947 shares subject to immediately exercisable stock options
or stock options which become exercisable within the next 60 days.
Page 1
SCHEDULE 13D
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CUSIP No. 05348W109
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NAME OF REPORTING PERSONS
William D. Eggers **
1 I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
(Intentionally Omitted)
--------- ----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) X
--------- ----------------------------------------------------------------------
3 SEC USE ONLY
--------- ----------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
--------- ----------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
--------- ----------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
--------- ----------------------------------------------------------------------
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 5,466,564
OWNED BY 9 SOLE DISPOSITIVE POWER
EACH 0
REPORTING 10 SHARED DISPOSITIVE POWER
PERSON WITH 0
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,466,564
--------- ----------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------- ----------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
--------- ----------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
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*Includes 652,947 shares subject to immediately exercisable stock options
or stock options which become exercisable within the next 60 days.
** Reporting person is an officer of Corning and holds the proxy to vote
the shares of Avanex Common Stock described herein on behalf of Corning.
Reporting person disclaims beneficial ownership of the shares of Avanex Common
Stock covered by this Schedule 13D.
Page 2
SCHEDULE 13D
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CUSIP No. 05348W109
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NAME OF REPORTING PERSONS
Denise A. Hauselt **
1 I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
(Intentionally Omitted)
--------- ----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) X
--------- ----------------------------------------------------------------------
3 SEC USE ONLY
--------- ----------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
--------- ----------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
--------- ----------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
--------- ----------------------------------------------------------------------
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 5,466,564
OWNED BY 9 SOLE DISPOSITIVE POWER
EACH 0
REPORTING 10 SHARED DISPOSITIVE POWER
PERSON WITH 0
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,466,564
--------- ----------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------- ----------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
--------- ----------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
*Includes 652,947 shares subject to immediately exercisable stock options
or stock options which become exercisable within the next 60 days.
** Reporting person is an officer of Corning and holds the proxy to vote
the shares of Avanex Common Stock described herein on behalf of Corning.
Reporting person disclaims beneficial ownership of the shares of Avanex Common
Stock covered by this Schedule 13D.
Page 3
SCHEDULE 13D
This Schedule 13D is filed by Corning Incorporated ("Corning"), a New York
corporation, and two of its officers William D. Eggers, Senior Vice President
and General Counsel and Denise A. Hauselt, Secretary, acting as proxies on
behalf of Corning (together, the "Corning Officers") in connection with (i) a
Share Acquisition and Asset Purchase Agreement (the "Purchase Agreement"), dated
as of May 12, 2003, between Avanex Corporation ("Avanex" or "Issuer"), a
Delaware corporation with offices at 40919 Encyclopedia Circle, Fremont,
California 94538, Corning and Alcatel ("Alcatel"), a corporation formed under
the laws of France, with offices at 54, rue La Boetie, 75008 Paris, France, (ii)
the Voting Agreements, each dated as of May 12, 2003, between Alcatel, Corning
and each of the following stockholders (collectively, the "Voting Agreement
Stockholders"): Walter Alessandrini, Giovanni Barbarossa, Vinton G. Cerf, Todd
Brooks, Joel A. Smith and Susan Wang, and (iii) the Proxies, each dated May 12,
2003, signed by each Voting Agreement Stockholder naming the Corning Officers as
proxy to vote the shares of Avanex Common Stock held by such Voting Agreement
Stockholder in favor of the issuance of shares of Avanex Common Stock equal to
17% of the outstanding shares pursuant to the terms of the Purchase Agreement
and against any action or agreement that would reasonably be expected to result
in the failure to satisfy the conditions to the Corning Share Issuance (as
defined in the Purchase Agreement). Upon the closing of the transactions
contemplated by the Purchase Agreement, Corning and Alcatel will enter into a
Stockholders' Agreement ("Stockholders' Agreement") with Avanex.
Item 1. Security and Issuer.
This Schedule 13D relates to shares of the Common Stock, par value $.001
per share ("Common Stock") of Avanex Corporation (the "Issuer" or "Avanex"). The
Issuer's principal executive office is located at 40919 Encyclopedia Circle,
Fremont, California 94538. Avanex has informed the undersigned that 69,255,523
shares of Avanex Common Stock were issued and outstanding as of the close of
business on May 9, 2003
Item 2. Identity and Background.
Corning is organized as a corporation under the laws of the State of New
York, and its business address is One Riverfront Plaza, Corning, New York 14831.
Corning manufactures optical fiber, cable, hardware and connector products in
its Telecommunications segment. Corning's Technologies segment manufactures
high-performance display glass, and products for the environmental, life
sciences, and semiconductor markets.
The names, business addresses, principal occupations and citizenship of the
directors and executive officers of Corning, including the Corning Officers, are
set forth in Annex A hereto and are incorporated herein by reference.
None of Corning or its directors or executive officers, including the
Corning Officers, has, during the last five years, been (i) convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors), or
(ii) been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which he, she or it is or was subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
Page 4
Item 3. Source and Amount of Funds or Other Consideration
In consideration of and as a condition to Corning entering into the
Purchase Agreement, the Voting Agreement Stockholders have entered into the
Voting Agreements with Corning and Alcatel and the Corning Officers have each
been appointed, to act on behalf of Corning, as proxy and attorney-in-fact to
vote the shares of Avanex Common Stock beneficially owned by the Voting
Agreement Stockholders as of May 12, 2003 and which may thereafter be acquired
pursuant to options or otherwise.
At the closing of the transactions contemplated by the Purchase Agreement,
Corning will deliver to Avanex certain assets and cash and Corning will acquire
17% of the outstanding shares of Avanex Common Stock (the precise number of
shares of Avanex Common Stock will be determined as follows: 0.17 multiplied by
the quotient of (a) the number of shares of Avanex Common Stock outstanding
immediately prior to the closing of the transactions contemplated by the
Purchase Agreement, divided by 0.55). Corning will not pay any consideration to
Voting Agreement Stockholders.
Item 4. Purpose of the Transaction
Purchase Agreement
------------------
Pursuant to the terms of the Purchase Agreement, at closing Corning will
transfer and assign to Avanex certain specified tangible and intangible assets,
including intellectual property, relating to Corning's optical amplifier
facility in Erwin, N.Y. and its optical components plant in Milan, Italy, along
with certain liabilities related to the operations of those facilities. Avanex
will also assume Corning's warranty and repair obligations with respect to OCM
products. Corning expects Avanex to hire approximately 400 employees from
Corning and its Italian subsidiary in this transaction. Corning will also pay
Avanex $20 million in cash at closing plus an amount equal to its warranty
expenses for certain other warranty repairs. At closing, Avanex will issue to
Corning a number of its shares of Common Stock equal to 17% of the outstanding
shares of Common Stock (the "Corning Share Issuance").
Simultaneously with the Corning Share Issuance and pursuant to the terms of
the Purchase Agreement, Alcatel will transfer the stock of its French subsidiary
Optronics France to Avanex, together with certain specified additional
intellectual property and cash in the amount of U.S.$40 million, 15 million
euros and certain additional amounts relating to restructuring costs. Avanex
will assume the liabilities of the Optronics France subsidiary other than
certain enumerated real property and other obligations which will be assigned to
Alcatel or one of its remaining subsidiaries at the closing. At the closing
under the Purchase Agreement, Avanex will deliver to Alcatel the number of
shares of Avanex Common Stock equal to 28% of the outstanding shares of Common
Stock (the "Alcatel Share Issuance").
This description is only a summary of the terms of the Purchase Agreement
which is Exhibit 99.1 to this Schedule 13D and is incorporated herein by
reference.
Page 5
Voting Agreements and Proxies
-----------------------------
As a condition to Corning entering into the Purchase Agreement, Corning,
Alcatel and each of the Avanex Voting Agreement Stockholders entered into a
Voting Agreement and the Voting Agreement Stockholders have each granted an
Irrevocable Proxy to the Corning Officers (the "Proxy"). Pursuant to the terms
of the Voting Agreements, each of the Voting Agreement Stockholders has agreed
that at any meeting of stockholders of Avanex, or any action by written consent
of the stockholders of Avanex in lieu of a meeting, the Voting Agreement
Stockholders will vote all of their shares of Avanex Common Stock: (i) in favor
of approval of the Purchase Agreement and the transactions contemplated; (ii)
against any action or agreement that would be reasonably likely to result in the
failure to satisfy an conditions to the Corning Share Issuance or the Alcatel
Share Issuance, and to cause their shares of Common Stock to be present for the
purposes of establishing a quorum at any such meeting. In addition, each Avanex
Voting Agreement Stockholder has agreed not to engage in any solicitation (as
defined in Regulation 14A promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended, the "Exchange Act")
opposed to the Corning Share Issuance or the Alcatel Share Issuance or any
solicitation against any action or agreement which would reasonably be expected
to result in the failure to satisfy any conditions to the Corning Share Issuance
or the Alcatel Share Issuance. Each Proxy empowers the Corning Officers to vote
the Common Stock of the Voting Agreement Stockholders solely in that manner and
with respect to those matters in the place of the Voting Agreement Stockholders.
.. The names of the Voting Agreement Stockholders and the respective amounts of
the shares of Common Stock beneficially owned by them are set forth on Annex B
hereto. This description is only a summary of the terms of the Voting Agreement
and Proxy, the forms of which are filed herewith as Exhibit 99.2 and
incorporated herein by reference.
Form of Stockholders' Agreement
-------------------------------
At the closing of the transactions contemplated by the Purchase Agreement,
Corning and Alcatel will enter into a Stockholders' Agreement with Avanex. With
respect to Corning, the Stockholders' Agreement will provide that for a period
of three years after the closing under the Purchase Agreement with respect to
the Corning Share issuance Corning will not, and will cause its affiliates not
to, directly or indirectly, alone or in concert with any other person: (a)
acquire record or beneficial ownership of any Avanex securities other than those
acquired in the Corning Share Issuance, by way of stock split, dividend or other
recapitalization, or any incidental indirect investment made by employee-benefit
plan related trusts; (b) propose or seek a merger, consolidation,
recapitalization, reorganization, restructuring, sale, lease, exchange or other
disposition of substantially all of the assets of, or other business combination
involving, or tender or exchange offer for securities of Avanex or any other
transaction which would result in the stockholders of Avanex immediately prior
to the transaction holding less that 50% of the equity securities of the
surviving or resulting corporation or parent entity after the transaction; (c)
publicly seek to exercise control or influence of the management of Avanex,
provided that any Corning nominee who is a director of Avanex may take any
action necessary to fulfill his fiduciary obligations to the stockholders of
Avanex; (d) solicit or participate in the solicitation of any proxies in
opposition to a recommendation of the Board of Directors of Avanex (as such
terms are defined under the Exchange Act); or (e) form or join a group or act in
concert with any person or take any similar action to acquire, hold, vote or
dispose of any Avanex securities, other than an acquisition of up to 5% of the
Avanex securities through an acquisition, business combination or merger with
any entity owning such securities.
Page 6
In addition, the Stockholders' Agreement will provide that so long as
Corning owns 5% or more of the outstanding voting securities of Avanex, Corning
will vote, and cause any affiliate holding the shares of Common Stock to vote,
the securities beneficially owned by Corning in the manner recommended by a
majority of the Board of Directors of Avanex and will cause such securities to
be present in person or by proxy at all meetings of Avanex stockholders for the
purposes of establishing a quorum. For a period of one year and two business
days following the date of the Stockholders' Agreement, Corning will agree not
to sell or otherwise transfer record, beneficial or economic ownership of the
shares of Common Stock it receives in the Corning Share Issuance. Thereafter,
Corning will agree to dispose of no more than 10% of the shares issued upon the
Corning Share Issuance during each calendar quarter thereafter, together with
any portion of the previous quarters' permitted dispositions not disposed of in
the prior quarters. Avanex will agree to register the shares of Common Stock
held by Corning in increments corresponding to the rights of disposition after
the initial lock-up period. Corning will also have certain demand registration
rights and piggy back rights and will agree to suspend any offering from time to
time if requested by Avanex upon the occurrence of certain conditions when
Avanex has material information which it would be detrimental to Avanex to
disclose at such time, the prospectus is or becomes misleading, or the continued
offering would materially interfere with a material corporate transaction or
event involving Avanex. Corning will also agree to withhold its Common Stock
from the market for 90 days upon the request of Avanex or its underwriters if
Avanex is publicly offering its securities.
For a period of five years after the closing of the transactions under the
Purchase Agreement and so long as it holds at least 5% of the outstanding Common
Stock, Corning will have the contractual right under the Stockholders' Agreement
to purchase new securities offered by Avanex for cash or, if the Avanex offering
is for other than cash, the cash equivalent as determined by the Board of
Directors of Avanex, that number of new securities of Avanex which will permit
Corning to maintain its proportionate interest in Avanex. The terms and
conditions of the sale to Corning upon the exercise of any such right would be
on the same terms and conditions as other purchasers in the issuance, subject to
Corning obtaining any required governmental approvals. Certain securities
issuances by Avanex would not be subject to the right of purchase by Corning,
including: issuances to officers, employees, directors and others pursuant to
stock incentive or benefit plans or programs approved by the stockholders of
Avanex, securities issued upon exercise of securities outstanding as of the
closing of the transactions contemplated by the Purchase Agreement, securities
issued by Avanex in the acquisition of another corporation or assets by Avanex,
securities issued to financial institutions pursuant to commercial leasing or
debt financing transactions approved by the Board of Directors, securities
issued in connection with sponsored research, collaboration, technology license,
development, OEM, marketing or similar agreements or strategic partnerships
approved by the Board of Directors of Avanex, securities excluded from the right
by unanimous vote of the Board of Directors, and any right, option or warrant to
acquire any such securities.
Pursuant to the Stockholders' Agreement, Corning will, after the Corning
Share Issuance and so long as it owns 5% or more of the outstanding shares of
Avanex Common Stock, have the right to designate one individual reasonably
acceptable to Avanex to be elected to the Board of Directors of Avanex and the
Board will recommend to the Avanex stockholders the election of such designee
for a term of not more than three years. Upon the request of Avanex made at a
time when Corning holds less than 5% of the outstanding Common Stock, the
Corning designee will resign from the Board of Directors within five days of
such request.
This description is only a summary of the terms of the Stockholders'
Agreement to be entered into at the closing of the transactions contemplated by
the Purchase Agreement, the form of which is filed herewith as Exhibit 99.3 and
incorporated herein by reference.
Page 7
Other Plans or Proposals
------------------------
Except as provided in the Purchase Agreement, the Voting Agreements and
Proxies and the form of Stockholders' Agreement, there are no other plans or
proposals of the Reporting Persons with respect to any of the actions described
in paragraphs (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer
The only interests of Corning and Corning Officers in the Avanex Common
Stock reported on this Schedule 13D are the rights of Corning under the Voting
Agreements and the power of the Corning Officers, acting on behalf of Corning,
as proxies and attorneys-in-fact to vote the shares of Avanex Common Stock held
by the Avanex Voting Agreement Stockholders as described above, totaling
beneficial ownership in 5,466,564 shares of Common Stock, of which 652,947 are
options held by the Voting Agreement Stockholders which are currently
exercisable or will be exercisable within the next 60 days. The 7.8% ownership
set forth in this Schedule 13D is based upon 69,255,523 shares of Avanex Common
Stock outstanding as of May 9, 2003, as disclosed by Avanex in the Purchase
Agreement, and the 652,947 shares of Common Stock covered by the options. The
Voting Agreement Stockholders retain all rights in their shares of Common Stock,
including the right to receive dividends, except the voting and other rights
conveyed in the Voting Agreements and Proxies.
The filing of this Schedule 13D shall not be construed as an admission that
Corning or either Corning Officer is, for the purposes of Section 13(d) of the
Act, the beneficial owner of any Avanex Common Stock, and disclaims beneficial
ownership of the shares of Avanex Common Stock reported herein.
The only transactions in the Avanex Common Stock by Corning, its executive
officers (including the Corning Officers) and directors within the past 60 days
except as described above was a sale by Dionis Trust, a revocable trust of a
non-employee Director of Corning, Gordon Gund. Dionis Trust sold 40,000 shares
of Avanex on April 14, 2003 for $0.7137 per share in an open market transaction.
The shares of Avanex were acquired by Dionis Trust in March of 2001, 20,000
shares at $15.80 per share and 20,000 shares at $11.07 per share, The sale
resulted in a loss of approximately $12.70 per share.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer
Other than the Purchase Agreement, the Voting Agreements and Proxies, and
the form of the Stockholders' Agreement, each described above, and the
transactions contemplated thereby, there are no contracts, arrangements,
understandings or relationships among the persons named in Item 2 or between any
such person and any other person with respect to the shares of Avanex Common
Stock or, to the best knowledge of Corning and the Corning Officers, among any
of Corning's executive officers and directors or, to their knowledge, between
any of Corning's executive officers and directors and any other person, with
respect to the shares of Avanex Common Stock. The above descriptions of the
Purchase Agreement, the Voting Agreements and Proxies and the Stockholders'
Agreement are incorporated herein by reference.
Item 7. Material to Be Filed as Exhibits. The following documents are filed as
exhibits to this Schedule 13D:
99.1 Stock Acquisition and Asset Purchase Agreement , dated May 12, 2003,
between Avanex, Corning and Alcatel which is incorporated by reference to
Exhibit 2.1 to the Avanex Corporation Form 8-K Current Report for May 12, 2003,
Commission File No. 000-29175.
Page 8
99.2 Form of Voting Agreement and Proxy, each dated May 12, 2003 between
Corning, Alcatel and each of Walter Alessandrini, Giovanni Barbarossa, Vinton G.
Cerf, Todd Brooks, Joel A. Smith III, and Susan Wang.
99.3 Form of Stockholders' Agreement to be entered into at the closing of
the transactions contemplated by the Purchase Agreement between Avanex and
Corning and Alcatel.
99.4 Agreement between Corning and the Corning Officers regarding joint
filing of Schedule 13D and all amendments hereto.
Page 9
Signature
After reasonable inquiry and to the best of the undersigned's knowledge
and belief I certify that the information set forth in this statement is true,
complete and correct.
Dated: May 22, 2003 Corning Incorporated
By: /s/ Denise A. Hauselt
-------------------------------
Denise A. Hauselt,
Secretary and Assistant General
Counsel
/s/ William D. Eggers
-------------------------------
William D. Eggers
/s/ Denise A. Hauselt
-------------------------------
Denise A. Hauselt
Page 10
CUSIP No. 05348W109
Annex A to Schedule 13D
Executive Officers of Corning Incorporated (all with business addresses at One
Riverfront Plaza, Corning, New York 14831):
Name Citizenship Title
--------------------------- ------------- -----------------------------------
Larry Aiello United States President and Chief Executive Officer,
Corning Cable Systems
Katherine A. Asbeck United States Senior Vice President and Controller
Robert B. Brown United States Senior Vice President
Robert L. Ecklin United States Executive Vice President
William D. Eggers United States Senior Vice President and General Counsel
Gerald J. Fine United States Senior Vice President
James B. Flaws* United States Vice Chairman and Chief Financial Officer
Kirk P. Gregg United States Executive Vice President and Chief
Administrative Officer
James R. Houghton* United States Chairman of the Board and Chief Executive
Officer
Donald B. McNaughton United States Senior Vice President
Joseph A. Miller United States Executive Vice President and Chief
Technology Officer
Mark S. Rogus United States Vice President and Treasurer
Peter F. Volanakis* United States President, Corning Technologies
Wendell P. Weeks* United States President and Chief Operating Officer
*Also a member of the Board of Directors
Non-Employee Directors of Corning Incorporated (all with business addresses at
One Riverfront Plaza, Corning, New York 14831):
John Seely Brown United States Retired Chief Scientist, Xerox Corporation
Gordon Gund United States Chairman & Chief Executive Officer, Gund
Investment Corp.
Jeremy R. Knowles United States Amory Houghton Professor of Chemistry &
Biochemistry, Harvard University
John M. Hennessy United States Senior Advisor, Credit Suisse First Boston
James J. O'Connor United States Retired Chairman of the Board & Chief
Executive Officer, Unicom Corporation
Deborah Rieman United States Retired President & Chief Executive Officer,
Check Point Software Technologies, Inc.
H. Onno Ruding The Netherlands Vice President, Citicorp & Citibank, N.A.
William D. Smithburg United States Retired Chairman, President & Chief
Executive Officer, The Quaker Oats
Company
Hansel E. Tookes II United States Retired Chairman & Chief Executive
Officer, Raytheon Aircraft Company
Page 11
Annex B to Schedule 13D
Voting Agreement Stockholders and Holdings of Common Stock
Name of Voting Agreement Number of Shares of Number of Shares
Stockholder Common Stock Owned Subject to Options*
------------------------ ------------------ -------------------
Walter Alessandrini 4,701,148 0
Giovanni Barbarossa 728 530,447
Vinton G. Cerf 2,292 67,500
Todd A. Brooks 58,249 27,500
Joel A. Smith III 51,200 27,500
Susan Wang 0 0
*Stock options which were exercisable at or within 60 days after May 12, 2003.
Page 12
Exhibit 99.2
to Schedule 13D
[Form of]
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Voting Agreement") is made and entered into as
of May 12, 2003 among Corning Incorporated, a New York corporation ("Corning"),
Alcatel, a societe anonyme with a capital of 2,529,416,996 euros, its registered
office at 54, rue La Boetie, 75008, Paris, France and registered in the Registry
of Commerce and Companies under number 542019096 ("Alcatel"), and the
undersigned stockholder (the "Stockholder") of Avanex Corporation, a Delaware
corporation ("Avanex").
RECITALS
--------
A. Pursuant to the terms of a Share Acquisition and Asset Purchase
Agreement, dated as of May 12, 2003 (the "Purchase Agreement"), by and among
Avanex, Alcatel and Corning, (1) Avanex will acquire from Alcatel, and Alcatel
will sell to Avanex, all of the issued and outstanding share capital of Alcatel
Optronics France in consideration for which Avanex shall issue to Alcatel shares
of Avanex Common Stock, upon the terms and subject to the conditions set forth
in the Purchase Agreement (the "Alcatel Share Issuance"), and (2) Avanex will
purchase from Corning, and Corning will sell to Avanex, certain assets of
Corning, in consideration for which Avanex shall issue to Corning shares of
Avanex Common Stock, upon the terms and subject to the conditions set forth in
the Purchase Agreement (the "Corning Share Issuance").
B. As a material condition to the execution and delivery of the Purchase
Agreement by Alcatel and Corning, Stockholder has agreed to execute and deliver
this Voting Agreement.
C. Stockholder is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of such number
of shares of the outstanding Avanex Common Stock and shares of Avanex Common
Stock subject to outstanding options as is indicated on the signature page of
this Voting Agreement.
D. In consideration of the execution of the Purchase Agreement by each of
Corning and Alcatel, Stockholder (in his or her capacity as such) agrees to vote
the Shares (as defined below) and such other shares of Avanex Common Stock over
which Stockholder has voting power so as to facilitate consummation of the
transactions contemplated by the Purchase Agreement and to approve the Alcatel
Share Issuance and the Corning Share Issuance.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as
follows:
1. Certain Definitions. Capitalized terms not defined herein shall have the
meanings ascribed to them in the Purchase Agreement. For purposes of this Voting
Agreement:
(a) "Expiration Date" shall mean the earlier to occur of (i) such date
and time as the Purchase Agreement shall have been terminated pursuant to
Article XIII thereof, or (ii) such date and time: (A) as to Corning, the
Asset Purchase shall become effective in accordance with the terms and
provisions of the Purchase Agreement or (B) as to Alcatel, the Share
Acquisition shall become effective in accordance with the terms and
provisions of the Purchase Agreement.
Page 1
(b) "Person" shall mean any individual, corporation (including any
non-profit corporation), general partnership, limited partnership, limited
liability partnership, joint venture, estate, trust, company (including any
limited liability company or joint stock company), firm or other
enterprise, association, organization, entity or Governmental Entity.
(c) "Shares" shall mean all shares of Avanex Common Stock, and all
options, warrants and other rights to acquire shares of Avanex Common
Stock, now or hereafter owned or held, directly or indirectly, including by
way of stock dividend or distribution, split-up, recapitalization,
combination, exchange of shares and the like, by Stockholder, from the date
of this Voting Agreement through the Expiration Date.
(d) "Transfer". A Person shall be deemed to have effected a "Transfer"
of a security if such Person directly or indirectly: (i) sells, pledges,
encumbers, assigns, grants an option with respect to, transfers or disposes
of such security or any interest in such security; or (ii) enters into an
agreement or commitment providing for the sale of, pledge of, encumbrance
of, assignment of, grant of an option with respect to, transfer of or
disposition of such security or any interest therein.
2. Transfer of Shares.
(a) Transfer Restrictions. Stockholder agrees that, during the period
from the date of this Voting Agreement through the Expiration Date,
Stockholder shall not cause or permit any Transfer of any of the Shares to
be effected unless each Person to which any of such Shares, or any interest
in any of such Shares, is or may be transferred shall have: (i) executed a
counterpart of this Voting Agreement, executed a proxy to Corning in the
form attached hereto as Exhibit A (the "Corning Proxy") and executed a
proxy to Alcatel in the form attached hereto as Exhibit B (the "Alcatel
Proxy," and together with the Corning Proxy, the "Proxies") (each with such
modifications as Corning or Alcatel, respectively, may reasonably request);
and (ii) agreed in writing to hold such Shares (or interest in such Shares)
subject to all of the terms and provisions of this Voting Agreement.
Notwithstanding the foregoing or anything to the contrary set forth in this
Voting Agreement, Stockholder may sell Shares for cash to the extent
necessary to pay taxes incurred as a direct result of the exercise of
options to purchase Avanex Common Stock after the date hereof. The
Stockholder further agrees with, and covenants to, Alcatel and Corning that
the Stockholder shall not request that Avanex or any agent of Avanex
register the Transfer of any certificate or uncertificated interest
representing any of the Shares, unless such Transfer is made in compliance
with this Voting Agreement.
Page 2
(b) Transfer of Voting Rights. Stockholder agrees that, during the
period from the date of this Voting Agreement through the Expiration Date,
Stockholder shall not permit the deposit of any Shares in a voting trust or
grant any proxy or enter into any voting agreement or similar agreement in
contravention of the obligations of Stockholder under this Voting Agreement
with respect to any of the Shares. The Stockholder hereby revokes all other
proxies and powers of attorney with respect to the Shares that may have
heretofore been appointed or granted in contravention of the obligations of
Stockholder under this Voting Agreement.
3. Agreement to Vote Shares. At every meeting of the stockholders of Avanex
called, and at every adjournment or postponement thereof, and on every action or
approval by written consent of the stockholders of Avanex, Stockholder (in its,
his or her capacity as such) shall, or shall cause the holder of record on any
applicable record date to, vote the Shares (i) in favor of approval of each of
the Alcatel Share Issuance and the Corning Share Issuance and (ii) against any
action or agreement that would reasonably be expected to result in the failure
to satisfy any conditions to the Alcatel Share Issuance or the Corning Share
Issuance. Stockholder further agrees that Stockholder shall, or shall cause the
holder of record on any applicable record date to, appear at the Avanex
Stockholders' Meeting or otherwise cause the Shares to be counted as present
thereat for purposes of establishing a quorum. Prior to the Expiration Date, the
Stockholder shall not take any action or enter into any agreement or
understanding with any person to vote or give instructions in any manner
inconsistent with the terms of this Section 3. Without limiting the generality
of the foregoing, the Stockholder agrees that neither it, he or she nor any of
its subsidiaries (if the Stockholder is not a natural person) nor any of the
officers and directors (if the Stockholder is not a natural person) and
representatives (including any investment banker, attorney or accountant
retained by it or any of its subsidiaries (if the Stockholder is not a natural
person)) of it, him or her or its subsidiaries (if the Stockholder is not a
natural person) shall, and that it, he or she shall use its, his or her
reasonable best efforts to cause its, his or her and its subsidiaries' (if the
Stockholder is not a natural person) employees and other agents not (and shall
not authorize any of them) directly or indirectly, to engage in any solicitation
(as defined in Regulation 14A of the Rules and Regulations promulgated by the
Securities and Exchange Commission pursuant to the Exchange Act) of other
stockholders of Avanex against the Alcatel Share Issuance or the Corning Share
Issuance or against any action or agreement that would reasonably be expected to
result in the failure to satisfy any conditions to the Alcatel Share Issuance or
the Corning Share Issuance.
4. Directors and Officers. Notwithstanding any provision of this Voting
Agreement to the contrary, nothing in this Voting Agreement shall limit or
restrict Stockholder from (a) acting in Stockholder's capacity as a director or
officer of Avanex (it being understood that this Voting Agreement shall apply to
Stockholder solely in Stockholder's capacity as a stockholder of Avanex) or (b)
voting in such Stockholder's sole discretion on any matter other than those
relating to the Alcatel Share Issuance, the Corning Share Issuance or the
transactions contemplated by the Purchase Agreement.
5. Irrevocable Proxy. Concurrently with the execution of this Voting
Agreement, Stockholder agrees to deliver (i) the Corning Proxy to Corning and
(ii) the Alcatel Proxy to Alcatel, each of which shall be irrevocable to the
fullest extent permissible by law, with respect to the Shares.
Page 3
6. No Ownership Interest. Nothing contained in this Voting Agreement shall
be deemed to vest in Corning or Alcatel any direct or indirect ownership or
incidence of ownership of or with respect to any Shares. All rights, ownership
and economic benefits of and relating to the Shares shall remain vested in and
belong to Stockholder, and neither Corning nor Alcatel shall have any authority
to manage, direct, superintend, restrict, regulate, govern, or administer any of
the policies or operations of Avanex or exercise any power or authority to
direct Stockholder in the voting of any of the Shares, except as otherwise
provided herein.
7. Representations and Warranties of Stockholder.
(a) Authorization. This Voting Agreement constitutes a legal, valid
and binding agreement of Stockholder, enforceable against Stockholder in
accordance with its terms, except (i) as such enforcement is limited by
bankruptcy, insolvency and other similar laws effecting the enforcement of
creditors' rights generally and (ii) for limitations imposed by general
principles of equity.
(b) Compliance. The execution, delivery and performance of this Voting
Agreement by Stockholder requires no action by or in respect of, or filing
with, any governmental or non-governmental body, agency or official or any
other Person other than as required by any applicable requirements of the
Exchange Act and other filings or notifications that are immaterial to the
consummation of the transactions contemplated hereby.
(c) Non-contravention. The execution, delivery and performance of this
Voting Agreement by Stockholder does not and will not (a) violate any
applicable law, rule, regulation, judgment, injunction, order or decree
binding upon Stockholder, except for any such violations which would be
immaterial to the consummation of the transactions contemplated hereby, or
(b) constitute a default under any agreement or other instrument binding
upon Stockholder.
(d) Ownership of Shares. Stockholder (i) is the beneficial owner of
the shares of Avanex Common Stock and the options to purchase shares of
Avanex Common Stock indicated on the signature page of this Voting
Agreement, which are free and clear of any liens, adverse claims, charges,
security interests, pledges or options, proxies, voting trusts or
agreements, understandings or agreements, or any other rights or
encumbrances whatsoever ("Encumbrances") (except any Encumbrances arising
under securities laws, arising hereunder or that are not in contravention
of the obligations of Stockholder hereunder); and (ii) does not
beneficially own or otherwise have rights to acquire, whether or not
currently exercisable, any securities of Avanex other than the shares of
Avanex Common Stock and options to purchase shares of Avanex Common Stock
indicated on the signature page of this Voting Agreement. Stockholder
hereby agrees to promptly notify Alcatel and Corning in writing of any new
Shares of Avanex Common Stock, any new options, warrants or other rights to
purchase Avanex Common Stock, or any shares of Avanex Preferred Stock
acquired after the date of this Voting Agreement.
Page 4
(e) Voting Power. Stockholder has or will have sole voting power, sole
power of disposition, sole power to issue instructions with respect to the
matters set forth herein, and sole power to agree to all of the matters set
forth in this Voting Agreement, in each case with respect to all of
Stockholder's Shares, with no limitations, qualifications or restrictions
on such rights, subject to applicable federal securities laws and the terms
of this Voting Agreement.
8. Representations and Warranties of Corning.
(a) Existence and Power. Corning is a corporation duly organized,
validly existing and in good standing under the laws of the State of New
York.
(b) Authorization. The execution, delivery and performance of this
Voting Agreement by Corning are within Corning's powers and have been duly
authorized by all necessary action on the part of Corning. This Voting
Agreement constitutes a legal, valid and binding agreement of Corning,
enforceable against Corning in accordance with its terms, except (i) as
such enforcement is limited by bankruptcy, insolvency and other similar
laws effecting the enforcement of creditors' rights generally and (ii) for
limitations imposed by general principles of equity.
(c) Compliance. The execution, delivery and performance of this Voting
Agreement by Corning requires no action by or in respect of, or filing
with, any governmental or non-governmental body, agency or official or any
other Person other than as required by any applicable requirements of the
Exchange Act and other filings or notifications that are immaterial to the
consummation of the transactions contemplated hereby.
(d) Non-contravention. The execution, delivery and performance of this
Voting Agreement by Corning does not and will not (a) violate the internal
governance documents of Corning, (b) violate any applicable law, rule,
regulation, judgment, injunction, order or decree binding upon Corning,
except for any such violations which would be immaterial to the
consummation of the transactions contemplated hereby, or (c) constitute a
default under any agreement or other instrument binding upon Corning.
9. Representations and Warranties of Alcatel.
(a) Existence and Power. Alcatel is a societe anonyme duly organized,
validly existing and in good standing under the laws of the Republic of
France.
(b) Authorization. The execution, delivery and performance of this
Voting Agreement by Alcatel are within Alcatel's powers and have been duly
authorized by all necessary action on the part of Alcatel. This Voting
Agreement constitutes a legal, valid and binding agreement of Alcatel,
enforceable against Alcatel in accordance with its terms, except (i) as
such enforcement is limited by bankruptcy, insolvency and other similar
laws effecting the enforcement of creditors' rights generally and (ii) for
limitations imposed by general principles of equity.
Page 5
(c) Compliance. The execution, delivery and performance of this Voting
Agreement by Alcatel requires no action by or in respect of, or filing
with, any governmental or non-governmental body, agency or official or any
other Person other than as required by any applicable requirements of the
Exchange Act and other filings or notifications that are immaterial to the
consummation of the transactions contemplated hereby.
(d) Non-contravention. The execution, delivery and performance of this
Voting Agreement by Alcatel does not and will not (a) violate the internal
governance documents of Alcatel, (b) violate any applicable law, rule,
regulation, judgment, injunction, order or decree binding upon Alcatel,
except for any such violations which would be immaterial to the
consummation of the transactions contemplated hereby, or (c) constitute a
default under any agreement or other instrument binding upon Alcatel.
10. Legending of Shares. If so requested by Corning or Alcatel, Stockholder
agrees that the certificates representing the Shares shall bear a legend stating
that they are subject to this Voting Agreement and to the Proxies.
11. Termination. This Voting Agreement and the Proxies delivered in
connection herewith shall terminate and shall have no further force or effect as
of the Expiration Date. Nothing in this Section 11 shall relieve or otherwise
limit the liability of any party for breach of this Voting Agreement.
12. Miscellaneous.
(a) Amendments; Waiver. Neither this Voting Agreement nor any term
hereof may be amended, waived, discharged or terminated other than by a
written instrument signed by each beneficiary of the waiver, discharge,
amendment or termination and the obligor under any such amendment, waiver,
discharge or termination.
(b) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed duly given (i) on the date of delivery if
delivered personally, (ii) on the date of confirmation of receipt (or, the
first business day following such receipt if the date is not a business
day) of transmission by telecopy or telefacsimile or (iii) on the date of
confirmation of receipt (or, the first business day following such receipt
if the date is not a business day) if delivered by a nationally recognized
courier service. All notices hereunder shall be delivered as set forth
below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
Page 6
(i) if to Avanex, to:
Avanex Corporation
40919 Encyclopedia Circle
Fremont CA 94538
Attention: Chief Executive Officer
Fax No.: 510-897-4189
with copies to:
Wilson Sonsini Goodrich & Rosati, Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
Attention: Mark A. Bertelsen
Steve L. Camahort
Fax: 650-493-6811
(ii) if to Alcatel, to:
Alcatel 54, rue La Boetie
75008, Paris, France
ATTN: General Counsel
Fax No.: 011-331-4076-1435
with a copy to:
Proskauer Rose LLP
1585 Broadway
New York, NY 10036
Attention: Ronald R. Papa
Lauren K. Boglivi
Fax: 212-969-2900
(iii) if to Corning, to:
Corning Incorporated
One Riverfront Plaza
Corning, NY 14831
Attention: Secretary
Fax No.: 607-974-6135
Page 7
with a copy to:
Nixon Peabody LLP
Clinton Square
P.O. Box 31051
Rochester, NY 14803
Attention: Deborah McLean Quinn
Fax: 1-866-947-0724
(iv) If to Stockholder: To the address for notice set forth on
the signature page hereof.
(c) Counterparts. This Voting Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed
by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
(d) Interpretation; Knowledge. When a reference is made in this Voting
Agreement to Exhibits, such reference shall be to an Exhibit to this Voting
Agreement unless otherwise indicated. When a reference is made in this
Voting Agreement to Sections, such reference shall be to a section of this
Voting Agreement unless otherwise indicated. For purposes of this Voting
Agreement, the words "include," "includes" and "including," when used
herein, shall be deemed in each case to be followed by the words "without
limitation." The headings contained in this Voting Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Voting Agreement.
(e) Entire Agreement; Third-Party Beneficiaries. This Voting Agreement
and the Proxies (i) constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to
the subject matter hereof, and (ii) are not intended to confer upon any
other Person any rights or remedies hereunder.
(f) Severability. In the event that any provision of this Voting
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder
of this Voting Agreement will continue in full force and effect and the
application of such provision to other Persons or circumstances will be
interpreted so as reasonably to effect the intent of the parties hereto.
The parties further agree to replace such void or unenforceable provision
of this Voting Agreement with a valid and enforceable provision that will
achieve, to the greatest extent possible, the economic, business and other
purposes of such void or unenforceable provision.
Page 8
(g) Governing Law; Jurisdiction. This Voting Agreement shall be
governed by and construed in accordance with the laws of the State of New
York, regardless of the laws that might otherwise govern under applicable
principles of conflicts of law thereof, except to the extent of any
mandatory application of the Delaware General Corporation Law with respect
to the Proxies. Each party hereby (a) irrevocably and unconditionally
submits to the exclusive jurisdiction of the Delaware Court of Chancery,
with respect to all actions and proceedings arising out of or relating to
this Voting Agreement and the transaction contemplated hereby, (b) agrees
that all claims with respect to any such action or proceeding shall be
heard and determined in such courts and agrees not to commence an action or
proceeding relating to this Voting Agreement or the transactions
contemplated hereby except in such courts, (c) consents to service of
process upon him, her or it by mailing or delivering such service to the
address set forth in Section 12(b) hereof, and (d) agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Each party hereby irrevocably and unconditionally
waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this
Voting Agreement, (i) the defense of sovereign immunity, (ii) any claim
that it is not personally subject to the jurisdiction of the above-named
courts for any reason other than the failure to serve process in accordance
with this Section 12(g), (iii) that it or its property is exempt or immune
from jurisdiction of any such court or from any legal process commenced in
any such court (whether through service of notice, attachment prior to
judgment, execution of judgment or otherwise), and, to the fullest extent
permitted by applicable Law, that (A) the suit, action or proceeding in any
such court is improper, (B) the venue of such suit, action or proceeding is
improper and (C) this Voting Agreement, or the subject matter hereof, may
not be enforced in or by such courts.
(h) Rules of Construction. The parties hereto agree that they have
been represented by counsel during the negotiation and execution of this
Voting Agreement and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities in
an agreement or other document will be construed against the party drafting
such agreement or document.
(i) Assignment. Stockholder may not assign either this Voting
Agreement or any of its rights, interests, or obligations hereunder without
the prior written approval of Corning and Alcatel, except as provided in
Section 2. Neither Corning nor Alcatel may assign either this Voting
Agreement or any of its rights, interests, or obligations hereunder without
the prior written approval of Stockholder. Any purported assignment in
violation of this Section 12(i) shall be void. Subject to the preceding
sentence, this Voting Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and
permitted assigns.
(j) Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
VOTING AGREEMENT OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
Page 9
(k) Further Assurances. Each party hereto agrees to execute and
deliver, by the proper exercise of its powers, all such other and
additional instruments and documents and do all such other acts and things
as may be necessary to more fully effectuate this Voting Agreement.
(l) Expenses. All costs and expenses incurred in connection with this
Voting Agreement and the transactions contemplated hereby shall be paid by
the party incurring the expenses; provided, however, that if any action or
other proceeding relating to the enforcement of any provision of this
Voting Agreement is brought by any party hereto, the prevailing party shall
be entitled to recover reasonable attorneys' fees, costs and disbursements
(in addition to any other relief to which the prevailing party may be
entitled).
(m) No Obligation to Exercise Options. Notwithstanding any provision
of this Voting Agreement to the contrary, nothing in this Voting Agreement
shall obligate Stockholder to exercise any option, warrant or other right
to acquire shares of Avanex Common Stock.
(n) Liability. The rights and obligations of each of Corning and
Alcatel under this Voting Agreement shall be several and not joint. All
references to actions to be taken by the Stockholders under this Voting
Agreement refer to actions to be taken by Stockholders acting severally and
not jointly.
(o) Specific Performance. The parties hereto declare that it is
impossible to measure in money the damages which will accrue to a party
hereto or to their heirs, personal representatives, or assigns by reason of
a failure to perform any of the obligations under this Voting Agreement and
agree that the terms of this Voting Agreement shall be specifically
enforceable. If any party hereto or his heirs, personal representatives, or
assigns institutes any action or proceeding to specifically enforce the
provisions hereof, any person against whom such action or proceeding is
brought hereby waives the claim or defense therein that such party or such
personal representative has an adequate remedy at law, and such person
shall not offer in any such action or proceeding the claim or defense that
such remedy at law exists.
[The remainder of this page has been intentionally left blank]
Page 10
IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the day and year first above written.
CORNING, INCORPORATED STOCKHOLDER
By: /s/ Lawrence McRae By: *
--------------------------------- --------------------------------
Signature of Authorized Signatory Signature
Name: Lawrence McRae Name:
--------------------------------- --------------------------------
Title: Senior Vice President Title:
--------------------------------- --------------------------------
--------------------------------------
--------------------------------------
Print Address
ALCATEL --------------------------------------
Telephone
--------------------------------------
By: /s/ Paul Wenzel
---------------------------------
Facsimile No.
Signature of Authorized Signatory
Name: Paul Wenzel Shares beneficially owned:
---------------------------------
Title: Senior International Counsel ________ shares of Avanex Common Stock
---------------------------------
________ shares of Avanex Common Stock
issuable upon exercise of outstanding
options
[Signature Page to Voting Agreement]
* See attached Schedule for list of signing stockholders and holdings of
Avanex Common Stock and options to purchase Common Stock exercisable within 60
days of the Agreement
Page 11
EXHIBIT A
---------
IRREVOCABLE PROXY
Capitalized terms not defined herein shall have the meanings ascribed to
them in that certain Voting Agreement of even date herewith by and among
Corning, Alcatel and the undersigned stockholder (the "Voting Agreement"). The
undersigned stockholder (the "Stockholder") of Avanex Corporation, a Delaware
corporation ("Avanex"), hereby irrevocably (to the fullest extent permitted by
law) appoints Denise Hauselt and William D. Eggers of Corning Incorporated, a
New York corporation ("Corning"), and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise the Shares regarding the approval of the
Corning Share Issuance in accordance with the terms of this Proxy until the
Expiration Date. Upon the undersigned's execution of this Proxy, any and all
prior proxies given by the undersigned in contravention of the obligations of
Stockholder under the Voting Agreement with respect to any Shares are hereby
revoked and the undersigned agrees not to grant any subsequent proxies in
contravention of the obligations of Stockholder under the Voting Agreement with
respect to the Shares until after the Expiration Date.
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest, is granted pursuant to the Voting Agreement, and is
granted in consideration of Corning and Alcatel entering into the Purchase
Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned or postponed meeting of
stockholders of Avanex and in every written consent in lieu of such meeting: (i)
in favor of approval of the Corning Share Issuance and (ii) against any action
or agreement that would reasonably be expected to result in the failure to
satisfy any conditions to the Corning Share Issuance.
The attorneys and proxies named above may not exercise this Proxy on any
other matter. The undersigned stockholder may vote the Shares on all other
matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Page 12
This Proxy is irrevocable (to the fullest extent permitted by law). This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Expiration Date.
Dated: May 12, 2003
Signature of Stockholder: *
-------------------------------------
Print Name of Stockholder:
-------------------------------------
* See attached Schedule for list of signing stockholders and holding sof
Avanex Common Stock and options to purchase Common Stock exercisable within 60
days of the Agreement
[Signature Page to Irrevocable Proxy]
Page 13
EXHIBIT B
---------
IRREVOCABLE PROXY
Capitalized terms not defined herein shall have the meanings ascribed to
them in that certain Voting Agreement of even date herewith by and among
Corning, Alcatel and the undersigned stockholder (the "Voting Agreement"). The
undersigned stockholder (the "Stockholder") of Avanex Corporation, a Delaware
corporation ( "Avanex"), hereby irrevocably (to the fullest extent permitted by
law) appoints Pascal Durand-Barthez and Paul Wensel of Alcatel, a societe
anonyme with a capital of 2,529,416,996 euros, its registered office at 54, rue
La Boetie, 75008, Paris, France and registered in the Registry of Commerce and
Companies under number 542019096 ("Alcatel"), and each of them, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise the Shares regarding the
approval of the Alcatel Share Issuance in accordance with the terms of this
Proxy until the Expiration Date. Upon the undersigned's execution of this Proxy,
any and all prior proxies given by the undersigned in contravention of the
obligations of Stockholder under the Voting Agreement with respect to any Shares
are hereby revoked and the undersigned agrees not to grant any subsequent
proxies in contravention of the obligations of Stockholder under the Voting
Agreement with respect to the Shares until after the Expiration Date.
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest, is granted pursuant to the Voting Agreement, and is
granted in consideration of Corning and Alcatel entering into the Purchase
Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned or postponed meeting of
stockholders of Avanex and in every written consent in lieu of such meeting: (i)
in favor of approval of the Alcatel Share Issuance and (ii) against any action
or agreement that would reasonably be expected to result in the failure to
satisfy any conditions to the Alcatel Share Issuance.
The attorneys and proxies named above may not exercise this Proxy on any
other matter. The undersigned stockholder may vote the Shares on all other
matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Page 14
This Proxy is irrevocable (to the fullest extent permitted by law). This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Expiration Date.
Dated: May 12, 2003
Signature of Stockholder: *
-------------------------------------
Print Name of Stockholder:
-------------------------------------
* See attached Schedule for list of signing stockholders and holdings of
Avanex Common Stock and options to purchase Common Stock exercisable within 60
days of the Agreement
[Signature Page to Irrevocable Proxy]
Page 15
Schedule to Voting Agreement and Irrevocable Proxy
Voting Agreement Signing Stockholders and Holdings of Common Stock
Name of Number of Shares of Number of Shares
Stockholder Common Stock Owned Subject to Options*
-------------------- ------------------- -------------------
Walter Alessandrini 4,701,148 0
Giovanni Barbarossa 728 530,447
Vinton G. Cerf 2,292 67,500
Todd A. Brooks 58,249 27,500
Joel A. Smith III 51,200 27,500
Susan Wang 0 0
*Stock options which were exercisable at or within 60 days after May 12, 2003.
Page 16
Exhibit 99.3
to Schedule 13D
[Form to be signed at closing of Purchase Agreement]
STOCKHOLDERS' AGREEMENT
Between
AVANEX CORPORATION,
ALCATEL
and
CORNING INCORPORATED
Dated as of _____ __, 2003
Page 1
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS..........................................................1
---------------------
1.1 Certain Definitions..........................................1
--- -------------------
ARTICLE 2 STANDSTILL AND RELATED COVENANTS.....................................5
------------------------------------------
2.1 Standstill Provisions........................................5
--- ---------------------
2.2 Voting.......................................................6
--- ------
ARTICLE 3 RESTRICTIONS ON TRANSFER OF SECURITIES; COMPLIANCE WITH SECURITIES
--------------------------------------------------------------------------------
LAWS..................................................................6
----
3.1 Restrictions on Transfer.....................................6
--- ------------------------
3.2 Restrictive Legends..........................................9
--- -------------------
3.3 Procedures for Certain Transfers............................10
--- --------------------------------
3.4 Covenant Regarding Exchange Act Filings.....................10
--- ---------------------------------------
ARTICLE 4 REGISTRATION RIGHTS.................................................11
-----------------------------
4.1 Initial Registration; Demand Registration...................11
--- -----------------------------------------
4.2 Piggyback Registration......................................12
--- ----------------------
4.3 Registration Procedures, Rights and Obligations.............14
--- -----------------------------------------------
4.4 Expenses....................................................17
--- --------
4.5 Indemnification.............................................18
--- ---------------
4.6 Issuances by Avanex or Other Holders........................19
--- ------------------------------------
4.7 Information by the Stockholders.............................19
--- -------------------------------
4.8 Market Standoff Agreement...................................19
--- -------------------------
4.9 Restrictions on Transfer....................................20
--- ------------------------
4.10 Termination.................................................20
---- -----------
ARTICLE 5 RIGHT OF FIRST REFUSAL..............................................20
--------------------------------
ARTICLE 6 BOARD OF DIRECTORS..................................................22
----------------------------
6.1 Election of Directors.......................................22
--- ---------------------
6.2 Replacement Directors.......................................22
--- ---------------------
6.3 Resignation of Directors....................................22
--- ------------------------
ARTICLE 7 REPRESENTATIONS AND WARRANTIES......................................22
----------------------------------------
7.1 Representations and Warranties of Avanex....................22
--- ----------------------------------------
7.2 Representations and Warranties of Corning...................23
--- -----------------------------------------
7.3 Representations and Warranties of Alcatel...................24
--- -----------------------------------------
Page 2
ARTICLE 8 MISCELLANEOUS.......................................................24
-----------------------
8.1 Amendment; Waiver...........................................24
--- -----------------
8.2 Notices.....................................................25
--- --------
8.3 Interpretation..............................................26
--- --------------
8.4 Counterparts................................................26
--- ------------
8.5 Entire Agreement; Third-Party Beneficiaries.................26
--- -------------------------------------------
8.6 Severability................................................26
--- ------------
8.7 Other Remedies; Specific Performance........................27
--- ------------------------------------
8.8 Governing Law; Jurisdiction.................................27
--- ---------------------------
8.9 Rules of Construction.......................................27
--- ---------------------
8.10 Assignment..................................................28
---- ----------
8.11 Waiver of Jury Trial........................................28
---- --------------------
8.12 Further Assurances..........................................28
---- ------------------
8.13 Automatic Adjustments to Share Numbers......................28
---- --------------------------------------
8.14 Liability...................................................28
---- ---------
Schedules
---------
Schedule I Alcatel Competitors
Page 3
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (the "Agreement") is made and entered into as of
[_______], 2003, among Avanex Corporation, a Delaware corporation ("Avanex"),
Alcatel, a societe anonyme with a capital of 2,529,416,996 euros, its registered
office at 54, rue La Boetie 75008, Paris, France and registered in the Registry
of Commerce and Companies under number 542019096 ("Alcatel"), and Corning
Incorporated, a New York corporation ("Corning"). Corning and Alcatel are
together referred to herein as the "Stockholders," and each of them is referred
to herein as a "Stockholder."
RECITALS
--------
A. Pursuant to the terms of a Share Acquisition and Asset Purchase
Agreement, dated as of May 12, 2003 (the "Purchase Agreement"), by and among
Avanex, Alcatel and Corning, (1) Avanex will acquire from Alcatel, and Alcatel
will sell to Avanex, all of the issued and outstanding share capital of Alcatel
Optronics SA in consideration for which Avanex shall issue to Alcatel shares of
Avanex Common Stock (the "Alcatel Shares"), upon the terms and subject to the
conditions set forth in the Purchase Agreement, and (2) Avanex will purchase
from Corning, and Corning will sell to Avanex, certain assets of Corning, in
consideration for which Avanex shall issue to Corning shares of Avanex Common
Stock (the "Corning Shares," and together with the Alcatel Shares, the
"Consideration Shares"), upon the terms and subject to the conditions set forth
in the Purchase Agreement.
B. The Purchase Agreement provides for the execution and delivery of this
Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and conditions herein and in the Purchase Agreement, the parties
hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Certain Definitions. As used in this Agreement:
(a) "Affiliate" or "affiliate" shall have the meaning provided in Rule
144(a)(1) under the Securities Act.
(b) "Avanex" has the meaning set forth in the preamble hereto.
(c) "Avanex Securities" means all shares of capital stock of Avanex,
and all options, warrants, convertible securities or other rights to
acquire any shares of capital stock of Avanex or securities or instruments
exchangeable or exercisable for, or convertible into, shares of capital
stock of Avanex.
Page 4
(d) "Avanex Transaction Proposal" has the meaning set forth in Section
2.1(b).
(e) "Board" means the Board of Directors of Avanex.
(f) "Beneficial ownership" or "beneficial owner" has the meaning
provided in Rule 13d-3 under the Exchange Act. References to ownership of
Voting Securities hereunder mean record or beneficial ownership.
(g) "Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York, California or Paris, France are
authorized by law to close.
(h) "Corning" has the meaning set forth in the preamble hereto and
includes any Person controlling Corning.
(i) "Corning Designee" has the meaning set forth in Section 6.1.
(j) "Corning Shares" has the meaning set forth in the recitals hereto.
(k) "Consideration Shares" has the meaning set forth in the recitals
hereto.
(l) "Cumulative Basis" has the meaning set forth in Section 3.1(b)(i).
(m) "Demanding Stockholder" has the meaning set forth in Section
4.1(b).
(n) "Demand Managing Underwriter" has the meaning set forth in Section
4.3(d).
(o) "Demand Market Cut-Back" has the meaning set forth in Section
4.3(e).
(p) "Demand Registrable Securities" has the meaning set forth in
Section 4.1(b).
(q) "Demand Registration Statement" has the meaning set forth in
Section 4.1(b).
(r) "Demand Request" has the meaning set forth in Section 4.1(b).
(s) Person shall be deemed to have effected a "Disposition" of a
security if such Person, directly or indirectly, (i) offers to sell,
contracts to sell, makes any short sale of, or otherwise sells, disposes
of, loans, gifts, pledges, assigns, encumbers or grants any options or
rights with respect to, such security or any interest therein or any
security convertible into or exchangeable or exercisable for any such
security, (ii) enters into any swap, hedge or other arrangement that
transfers, in whole or in part, any of the economic consequences of
ownership of such security, or (iii) enters into any agreement or
understanding with respect to the foregoing.
(t) "Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
(u) "Financial Arbitrator" shall mean a nationally recognized
investment banking firm.
Page 5
(v) "First Quarter" has the meaning set forth in Section 3.1(b)(i).
(w) "First Release Period" has the meaning set forth in Section
3.1(b)(i).
(x) "Fourth Quarter" has the meaning set forth in Section 3.1(b)(i).
(y) "Group" or "group" shall have the meaning provided in Section
13(d)(3) of the Exchange Act and the rules and regulations promulgated
thereunder, but shall exclude any institutional underwriter purchasing
Voting Securities in connection with an underwritten registered offering
for purposes of a distribution of such securities.
(z) "Indemnified Party" has the meaning set forth in Section 4.5(c).
(aa) "Indemnifying Party" has the meaning set forth in Section 4.5(c).
(bb) "Initial Lock-Up Period" means the period ending two Business
Days prior to the first anniversary of the Share Acquisition Closing, in
the case of Alcatel, and the Asset Purchase Closing, in the case of
Corning.
(cc) "Initial Registration Statement" has the meaning set forth in
Section 4.1(a).
(dd) "Lock-Up Exceptions" has the meaning set forth in Section 3.1(a).
(ee) "New Securities" has the meaning set forth in Article 5.
(ff) "Alcatel" has the meaning set forth in the preamble hereto and
includes any Person controlling Alcatel.
(gg) "Alcatel Shares" has the meaning set forth in the recitals
hereto.
(hh) "Participating Stockholder" has the meaning set forth in Section
4.2(b).
(ii) "Person" shall mean any Person, individual, corporation,
partnership, trust, limited liability company or other non-governmental
entity or any governmental agency, court, authority or other body (whether
foreign, federal, state, local or otherwise).
(jj) "Piggyback Registrable Securities" has the meaning set forth in
Section 4.2(a).
(kk) "Piggyback Registration Statement" has the meaning set forth in
Section 4.2(a).
(ll) "Piggyback Request" has the meaning set forth in Section 4.2(a).
(mm) "Piggyback Underwriting Agreement" has the meaning set forth in
Section 4.2(b).
(nn) "Public Offering Lock-Up" has the meaning set forth in Section
4.8.
Page 6
(oo) "Purchase Agreement" has the meaning set forth in the recitals
hereto.
(pp) "Quarter" has the meaning set forth in Section 3.1(b)(i).
(qq) "Register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
(rr) "Registrable Securities" means (i) the Alcatel Shares, (ii) the
Corning Shares and (iii) any securities issued in respect of the foregoing
as a result of any stock split, stock dividend, recapitalization, or
similar transaction.
(ss) "Restricted Securities" has the meaning set forth in Section
3.2(a).
(tt) "Securities Act" means the United States Securities Act of 1933,
as amended.
(uu) "SEC" means the United States Securities and Exchange Commission
or any other United States federal agency administering the Securities Act.
(vv) "Second Quarter" has the meaning set forth in Section 3.1(b)(i).
(ww) "Standstill Period" has the meaning set forth in Section 2.1.
(xx) "Stockholders" and "Stockholder" have the meanings set forth in
the preamble hereto.
(yy) "Substitute Director" has the meaning set forth in Section 6.2.
(zz) "Suspension Condition" has the meaning set forth in Section
4.3(g).
(aaa) "Suspension Period" has the meaning set forth in Section 4.3(g).
(bbb) "Third Quarter" has the meaning set forth in Section 3.1(b)(i).
(ccc) "Voting Securities" means all securities of Avanex entitled, in
the ordinary course, to vote in the election of directors of Avanex, and
all options, warrants, convertible securities or other rights to acquire
any Securities of Avanex or securities or instruments exchangeable or
exercisable for, or convertible into, Securities of Avanex; provided that
Voting Securities shall not include stockholder rights or other comparable
securities that acquire such voting rights only upon the happening of a
trigger event or comparable contingency and which can only be transferred
together with the Securities to which they attach. References herein to
meetings of holders of Voting Securities shall include meetings of any
class or type thereof.
All capitalized terms used and not defined herein shall have the respective
meanings assigned to such terms in the Purchase Agreement.
Page 7
ARTICLE 2
STANDSTILL AND RELATED COVENANTS
2.1 Standstill Provisions. Beginning on the date of this Agreement until
the third anniversary of the Share Acquisition Closing, in the case of Alcatel,
or the Asset Purchase Closing, in the case of Corning (in each case, as
applicable to such Stockholder, the "Standstill Period"), without the prior
written consent of the Board or approval by vote at a meeting of the Board
(excluding, in the case of Corning, the Corning Designee), each Stockholder
covenants and agrees not to, and that it shall not cause or permit its
respective Affiliates to, directly or indirectly, alone or in concert with any
other Affiliate, group or Person:
(a) except for the Alcatel Shares and the Corning Shares, acquire,
offer or propose to acquire or agree to acquire, directly or indirectly,
whether through market purchases, tender or exchange offer, acquisition of
control (including by way of merger or consolidation) or otherwise, record
or beneficial ownership of, or the right to vote, any Avanex Securities;
provided, however, that the prior written consent of the Board shall not be
required for (i) the acquisition of any Avanex Securities resulting from a
stock split, stock dividend or similar recapitalization by Avanex, or (ii)
incidental indirect investments made by employee benefit plan-related
trusts;
(b) propose or seek to effect a merger, consolidation,
recapitalization, reorganization, restructuring, sale, lease, exchange or
other disposition of substantially all of the assets of, or other business
combination involving, or a tender or exchange offer for securities of,
Avanex or any of its subsidiaries or any material portion of Avanex's or
such subsidiary's business or assets, or any other type of transaction that
would result in the stockholders of Avanex immediately preceding such
transaction holding, directly or indirectly, less than fifty percent (50%)
of the equity interests in the surviving or resulting entity of such
transaction or in any parent entity immediately following such transaction
(any such action in this Section 2.1(b) being referred to herein as an
"Avanex Transaction Proposal");
(c) publicly seek to exercise any control or influence over the
management of Avanex or the Board or any of the businesses, operations or
policies of Avanex, provided, however, that the Corning Designee may take
any action necessary in order for such designee to fulfill his or her
fiduciary obligations to the stockholders of Avanex;
(d) solicit proxies (or written consents) or assist or participate in
any other way, directly or indirectly, in any solicitation of proxies (or
written consents), or otherwise become a "participant" in a "solicitation,"
or assist any "participant" in a "solicitation" (as such terms are defined
under the Exchange Act) in opposition to the recommendation or proposal of
the Board; or
Page 8
(e) except as contemplated herein, form, join in or in any other way
(including by deposit of Avanex Securities) participate in a "group" with
unaffiliated Persons, or in a partnership, pooling agreement, syndicate or
voting trust, with respect to any of Avanex Securities, or enter into any
agreement or arrangement or otherwise act in concert with any other
unaffiliated Person, for the purpose of acquiring, holding, voting or
disposing of any of Avanex Securities; provided, however, that the
provisions of this Section 2.1 shall not apply to any acquisition by
Alcatel or any of its Affiliates, or by Corning or any of its Affiliates,
of up to five percent (5%) in the aggregate of Avanex Securities pursuant
to an acquisition, business combination or merger with an entity that holds
Avanex Securities on the date of the closing of such acquisition, business
combination or merger.
2.2 Voting. Without the prior written consent of the full Board:
(a) For so long as Corning owns 5% or more of the outstanding Voting
Securities, (i) Corning shall take such action (and shall cause each
Affiliate of Corning that beneficially owns Voting Securities to take such
action) as may be required so that all Voting Securities beneficially owned
by Corning (or any such Affiliate of Corning) from time to time are voted
on all matters to be voted on by holders of Voting Securities in the manner
recommended by a majority of the Board, and (ii) Corning (or any Affiliate
of Corning), as the holder of Voting Securities, shall be present, in
Person or by proxy, at all meetings of the stockholders of Avanex so that
all Voting Securities beneficially owned by Corning (or such Affiliate of
Corning) from time to time may be counted for the purposes of determining
the presence of a quorum at such meetings.
(b) For so long as Alcatel owns 5% or more of the outstanding Voting
Securities, (i) Alcatel shall take such action (and shall cause each
Affiliate of Alcatel that beneficially owns Voting Securities to take such
action) as may be required so that all Voting Securities beneficially owned
by Alcatel (or any such Affiliate of Alcatel) from time to time are voted
on all matters to be voted on by holders of Voting Securities in the manner
recommended by the Board; and (ii) Alcatel (or any Affiliate of Alcatel),
as the holder of Voting Securities, shall be present, in Person or by
proxy, at all meetings of the stockholders of Avanex so that all Voting
Securities beneficially owned by Alcatel (or such Affiliate of Alcatel)
from time to time may be counted for the purposes of determining the
presence of a quorum at such meetings; provided that the foregoing voting
obligations of Alcatel shall not apply with respect to any Avanex
Transaction Proposal between Avanex and any competitor of Alcatel listed on
Schedule I hereto.
(c) The foregoing provisions shall also apply to the execution by
Corning or Alcatel, as the case may be, of any written consent in lieu of a
meeting of holders of Voting Securities.
ARTICLE 3
RESTRICTIONS ON TRANSFER OF SECURITIES; COMPLIANCE WITH SECURITIES LAWS
3.1 Restrictions on Transfer.
(a) During the Initial Lock-Up Period, each Stockholder covenants and
agrees that it shall not, and shall not cause or permit any of its
respective Affiliates to, effect any Disposition with respect to any Avanex
Securities now owned or hereafter acquired, or with respect to which
Corning or Alcatel (or any of their respective Affiliates) has or hereafter
acquires the power of disposition, subject to the following exceptions for
Dispositions (the "Lock-Up Exceptions"):
Page 9
(i) to any Person or group approved in writing in advance by the
Board;
(ii) to its Affiliate, so long as such Affiliate agrees in
writing (in form reasonably acceptable to Avanex) to hold such Avanex
Securities subject to all the provisions of this Agreement, and so
agrees to transfer such Avanex Securities to Corning or Alcatel, as
the case may be, or another Affiliate of Corning or Alcatel, as the
case may be, if it ceases to be an Affiliate of Corning or Alcatel, as
the case may be; and
(iii) in response to a tender offer or exchange offer made by
Avanex or recommended by the Board, or pursuant to a merger,
consolidation or other business combination involving Avanex approved
by the Board.
(b) Following the expiration of the Initial Lock-Up Period, the
following restrictions on transfer shall apply:
(i) In each case subject to the continued application of the
Lock-Up Exceptions: (A) from the expiration of the Initial Lock-Up
Period until the end of the calendar quarter in which the Initial
Lock-Up Period expires (the "First Release Period"), Corning may
effect Dispositions of up to 10% of the Corning Shares, (B) in the
first calendar quarter following the expiration of the First Release
Period (the "First Quarter"), but in any event at least 30 calendar
days after the last Disposition effected by Corning during the First
Release Period, Corning may effect Dispositions of up to an additional
10% of the Corning Shares on a Cumulative Basis (as defined below)
such that, at the end of the First Quarter, Corning holds at least 80%
of the Corning Shares, (C) in the second calendar quarter following
the expiration of the First Release Period (the "Second Quarter"),
Corning may effect Dispositions of up to an additional 10% of the
Corning Shares on a Cumulative Basis such that, at the end of the
Second Quarter, Corning holds at least 70% of the Corning Shares, (D)
in the third calendar quarter following the expiration of the First
Release Period (the "Third Quarter"), Corning may effect Dispositions
of up to an additional 10% of the Corning Shares on a Cumulative Basis
such that, at the end of the Third Quarter, Corning holds at least 60%
of the Corning Shares, (E) in the fourth calendar quarter following
the expiration of the First Release Period (the "Fourth Quarter," and
each of the First Quarter, Second Quarter, Third Quarter and Fourth
Quarter, a "Quarter"), Corning may effect Dispositions of up to an
additional 10% of the Corning Shares on a Cumulative Basis such that,
at the end of the Fourth Quarter, Corning holds at least 50% of the
Corning Shares, and (F) following the expiration of the Fourth
Quarter, there will be no further restrictions on Dispositions by
Corning pursuant to this Agreement. For purposes of this Section 3.1,
"Cumulative Basis" means that, in any given calendar quarter, the
Stockholder may transfer the number of Consideration Shares permitted
to be transferred in that calendar quarter plus a number of
Consideration Shares equal to the difference between (x) the aggregate
maximum number of Consideration Shares permitted to be transferred in
the previous calendar quarter(s) and (y) the number of Consideration
Shares actually transferred by the relevant Stockholder.
Page 10
(ii) In each case subject to the continued application of the
Lock-Up Exceptions: (A) during the First Release Period, Alcatel may
effect Dispositions of up to 10% of the Alcatel Shares, (B) in the
First Quarter, but in any event at least 30 calendar days after the
last Disposition effected by Alcatel during the First Release Period,
Alcatel may effect Dispositions of up to an additional 10% of the
Alcatel Shares on a Cumulative Basis such that, at the end of the
First Quarter, Alcatel holds at least 80% of the Alcatel Shares, (C)
in the Second Quarter, Alcatel may effect Dispositions of up to an
additional 10% of the Alcatel Shares on a Cumulative Basis such that,
at the end of the Second Quarter, Alcatel holds at least 70% of the
Alcatel Shares, (D) in the Third Quarter, Alcatel may effect
Dispositions of up to an additional 10% of the Alcatel Shares on a
Cumulative Basis such that, at the end of the Third Quarter, Alcatel
holds at least 60% of the Alcatel Shares, (E) in the Fourth Quarter,
Alcatel may effect Dispositions of up to an additional 10% of the
Alcatel Shares on a Cumulative Basis such that, at the end of the
Fourth Quarter, Alcatel holds at least 50% of the Alcatel Shares, and
(F) following the expiration of the Fourth Quarter, there will be no
further restrictions on Dispositions by Alcatel pursuant to this
Agreement. Notwithstanding the foregoing, during the Quarter ending
December 31, 2004 (the "December Quarter") Alcatel may effect a
Disposition or series of Dispositions of Alcatel Shares ("Significant
Dispositions") which relate to, in the aggregate, greater than 10% of
the Alcatel Shares, provided that, at the end of the December Quarter,
Alcatel will continue to hold at least that number of Alcatel Shares
equal to the product of (A) the lesser of (i) the actual number of
shares of Avanex Common Stock outstanding at the end of the December
Quarter or (ii) a mutually agreed upon reasonable estimate of the
minimum number of shares of Avanex Common Stock to be outstanding at
the end of the December Quarter multiplied by (B) .199; provided,
however, that in the event that, during the December Quarter, Alcatel
intends to effect Significant Dispositions, not less than sixty (60)
days prior to such Significant Disposition Alcatel and Avanex shall
discuss, and agree to, reasonable measures to enable such Significant
Dispositions to be made in an orderly manner and to minimize the
effect of such Significant Disposition on the public market for Avanex
Common Stock, which measures shall include block trades, privately
negotiated transactions and underwritten offerings, or any combination
thereof; provided, further, that in the event that Alcatel and Avanex
do not agree to such measures within a reasonable period, Alcatel and
Avanex shall refer the matter to a Financial Arbitrator. The Financial
Arbitrator shall be instructed to select the most appropriate
available measures to enable such Significant Disposition to be made
in an orderly manner and to minimize the effect of such Significant
Disposition on the public market for Avanex Common Stock. Following
the determination of such measures, the Significant Disposition shall
only be made in accordance with the manner(s) of sale selected by the
Financial Arbitrator. In the event that Alcatel effects a Significant
Disposition in the December Quarter, Alcatel may only effect
Dispositions in the Quarter following the December Quarter to the
extent that, at the end of such Quarter, Alcatel will hold at least
70% of the Alcatel Shares.
(c) Any Disposition by Corning or Alcatel or any of their
respective Affiliates of any Avanex Securities shall be subject in
each case to compliance with the Securities Act, including Rule 144
under the Securities Act, and, if applicable, the reasonable
requirements of Avanex's transfer agent with respect to sales of
securities pursuant to Rule 144.
Page 11
(d) Notwithstanding anything in this Agreement to the contrary,
during the Standstill Period each Stockholder covenants and agrees
that it shall not, and shall not cause or permit any of its respective
Affiliates to, make any Disposition to: (A) any Person or group that
has (1) announced or commenced an unsolicited offer for any Voting
Securities, (2) publicly initiated, proposed or otherwise solicited
Avanex stockholders for the approval of one or more stockholder
proposals with respect to Avanex or (3) publicly made, or in any way
participated in, any solicitation of proxies (or written consents), or
otherwise become a "participant" in a "solicitation," or assist any
"participant" in a "solicitation" (as such terms are defined under the
Exchange Act) in opposition to the recommendation or proposal of the
Board; or (B) any Person or group known to the Stockholder or its
Affiliates at the time of the Disposition to be accumulating stock on
behalf of or acting in concert with any Person or group contemplated
by clause (A) of this Section 3.1(d).
3.2 Restrictive Legends.
(a) Any certificate or certificates representing the
Consideration Shares and any securities issued in respect of the
Consideration Shares as a result of any stock split, stock dividend,
recapitalization, or similar transaction (collectively, the
"Restricted Securities") shall 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 SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER AS TO THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION.
(b) In addition to the legend provided for in Section 3.2(a), any
certificate or certificates representing the Restricted Securities and
any other Avanex Securities hereafter acquired by the Stockholder
shall be stamped or otherwise imprinted with a legend substantially in
the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER, INCLUDING ANY SALE, PLEDGE OR OTHER
HYPOTHECATION, WHICH RESTRICTIONS ARE SET FORTH IN A
STOCKHOLDERS' AGREEMENT BETWEEN THE ISSUER, CASCADES INCORPORATED
AND PARENT, A COPY OF WHICH MAY BE OBTAINED AT NO COST BY WRITTEN
REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF THE ISSUER AT THE ISSUER'S PRINCIPAL EXECUTIVE
OFFICES.
Each Stockholder consents to Avanex making a notation on its records and
giving instructions to any transfer agent of the Restricted Securities in order
to implement the restrictions on transfer established in this Article 3.
Page 12
3.3 Procedures for Certain Transfers.
(a) Prior to any proposed transfer of any Restricted Securities,
a Stockholder shall give written notice to Avanex of its intention to
effect such transfer; provided, however, that such notice shall not be
required for transfers made to Affiliates pursuant to the terms of
Section 3.1(a)(ii) or transfers made pursuant to a Piggyback
Registration Statement. Except for a proposed transfer of Restricted
Securities to be made pursuant to a Registration Statement, each such
notice shall describe the manner and circumstances of the proposed
transfer in sufficient detail, and shall be accompanied by either: (i)
a written opinion of legal counsel (including in-house counsel)
addressed to Avanex and reasonably satisfactory to Avanex, to the
effect that the proposed transfer of Restricted Securities will not
require registration of such Restricted Securities under the
Securities Act; or (ii) a "no action" letter from the SEC and a copy
of the request letter by such Stockholder (together with all
supplements or amendments thereto), which shall have been provided to
Avanex at or prior to the time of first delivery to the SEC's staff,
to the effect that the transfer of such Securities without
registration will not result in a recommendation by the staff of the
SEC that action be taken with respect thereto, whereupon such
Stockholder shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by such
Stockholder to Avanex.
(b) Each certificate evidencing the Restricted Securities shall
bear the appropriate restrictive legend set forth in Section 3.2(a)
above, except that the legend and the stock transfer instructions and
record notations with respect to such Restricted Securities shall be
removed if: (i) in the opinion of outside or in-house counsel for
Avanex, such legend is not required in order to establish compliance
with any provisions of the Securities Act; (ii) the Stockholder
provides Avanex with an opinion of counsel reasonably acceptable to
Avanex to the effect that a transfer of such Restricted Securities may
be made without registration under the Securities Act, or (iii) the
Stockholder provides Avanex with reasonable assurances, which may, at
the option of Avanex, include an opinion of counsel satisfactory to
Avanex, that such Restricted Securities can be sold pursuant to
section (k) of Rule 144 under the Securities Act. Each certificate
evidencing Restricted Securities shall bear the appropriate
restrictive legend set forth in Section 3.2(b) above, except that the
legend and the stock transfer instructions and record notations with
respect to such Restricted Securities shall be removed upon the
earlier to occur of (x) a transfer in accordance with the provisions
of this Article 3 that does not require the transferee to be bound by
this Article 3, and (y) expiration of the restrictions on transfer set
forth in Section 3.1.
3.4 Covenant Regarding Exchange Act Filings.
(a) With a view to making available to the Stockholders the
benefits of Rule 144 under the Securities Act and any other rule or
regulation of the SEC that may at any time permit any Stockholder to
sell securities of Avanex to the public without registration, Avanex
agrees to:
(i) Make and keep public information available, as those
terms are understood and defined in SEC Rule 144;
(ii) File with the SEC in a timely manner all reports and
other documents required of Avanex under the Securities Act and
the Exchange Act; and
(iii) Furnish to each Stockholder, so long as such
Stockholder owns any Avanex Securities, forthwith upon request
(A) a written statement by Avanex that it has complied with the
reporting requirements of SEC Rule 144; (B) a copy of the most
recent annual or quarterly report of Avanex and such other
reports and documents so filed by Avanex; and (C) such other
information as may be reasonably requested to allow such
Stockholder to avail itself of any rule or regulation of the SEC
which permits the selling of any such securities without
registration.
Page 13
(b) For so long as Alcatel holds five percent (5%) or more of the
outstanding shares of Avanex Common Stock, Avanex shall provide to
Alcatel, in addition to any reports that may be filed with the SEC,
periodic updates (but in no event less frequently than quarterly) as
to the status and development of the business of Avanex, through
meetings with the senior executives of Avanex if requested by Alcatel.
ARTICLE 4
REGISTRATION RIGHTS
4.1 Initial Registration; Demand Registration.
(a) Avanex shall use its commercially reasonable efforts to cause
ten percent (10%) of the Registrable Securities held by each
Stockholder to be registered under the Securities Act, upon the
expiration of the Initial Lock-Up Period, so as to permit the offering
and sale thereof in compliance with the restrictions on transfer set
forth in Section 3.1(b). Avanex shall use its commercially reasonable
efforts to prepare and file with the SEC, prior to the expiration of
the Initial Lock-Up Period, and shall use its commercially reasonable
efforts to cause to become effective upon the expiration of the
Initial Lock-Up Period, a registration statement on Form S-3 under the
Securities Act (or if such form is not available, any registration
statement form then available to Avanex) (the "Initial Registration
Statement") to effect such registration. Each Stockholder shall
provide all such reasonable information and materials and take all
such reasonable actions as may be required under applicable laws in
order to permit Avanex to comply with all applicable requirements of
the Securities Act, the Exchange Act and the rules and regulations of
the SEC thereunder, and to obtain any desired acceleration of the
effective date of such Initial Registration Statement. No later than
45 days prior to the expiration of the Initial Lock-Up Period, each
Stockholder shall provide notice to Avanex describing the nature or
method of distribution of Registrable Securities pursuant to the
Initial Registration Statement (including, in particular, whether the
Stockholder plans to effect such distribution by means of an
underwritten offering). Prior to the beginning of each Quarter, Avanex
shall file such amendments or supplements to the Initial Registration
Statement and each prospectus used in connection therewith as may be
necessary to increase the number of Registrable Securities that may be
offered and sold by each Stockholder pursuant to such Initial
Registration Statement to the extent necessary to allow each
Stockholder to offer and sell, pursuant to the Initial Registration
Statement, the number of Registrable Securities permitted to be
transferred by such Stockholder pursuant to Section 3.1(b) during such
Quarter.
Page 14
(b) If at any time after the expiration of the Fourth Quarter and
prior to the termination of the registration rights of a Stockholder
pursuant to Section 4.10, Avanex shall receive from such Stockholder
(a "Demanding Stockholder") a written request (a "Demand Request")
that Avanex register on Form S-3 under the Securities Act (or if such
form is not available, any registration statement form then available
to Avanex) any Registrable Securities not already sold or transferred
by such Stockholder, then Avanex shall use commercially reasonable
efforts to cause the Registrable Securities specified in such Demand
Request (the "Demand Registrable Securities") to be registered as soon
as reasonably practicable after receipt of such Demand Request. In
connection with any Demand Request, Avanex shall prepare and file with
the SEC as soon as practicable after receipt of such Demand Request,
and shall use its commercially reasonable efforts to cause to become
effective as soon as practicable thereafter, a registration statement
(a "Demand Registration Statement") to effect such registration;
provided, that Avanex shall be permitted to consolidate into a single
Demand Registration Statement the Demand Registrable Securities
proposed to be offered and sold by each of Alcatel and Corning
pursuant to any Demand Requests. Each Demand Request shall: (i)
specify the number of Demand Registrable Securities intended to be
offered and sold by the Stockholder pursuant thereto; (ii) express the
present intention of the Demanding Stockholder to offer or cause the
offering of such Demand Registrable Securities pursuant to such Demand
Registration Statement, (iii) describe the nature or method of
distribution of such Demand Registrable Securities pursuant to such
Demand Registration Statement (including, in particular, whether the
Demanding Stockholder plans to effect such distribution by means of an
underwritten offering); and (iv) contain the undertaking of the
Demanding Stockholder to provide all such reasonable information and
materials and take all such reasonable actions as may be required
under applicable laws in order to permit Avanex to comply with all
applicable requirements of the Securities Act, the Exchange Act and
the rules and regulations of the SEC thereunder, and to obtain any
desired acceleration of the effective date of such Demand Registration
Statement.
(c) The procedures to be followed by Avanex and a Stockholder,
and the respective rights and obligations of Avanex and a Stockholder,
with respect to the preparation, filing and effectiveness of the
Initial Registration Statement and Demand Registration Statements and
the distribution of Registrable Securities pursuant to the Initial
Registration Statement and Demand Registration Statements under this
Section 4.1 are set forth in Section 4.3.
4.2 Piggyback Registration.
(a) If at any time after the date of this Agreement and prior to
the termination of a Stockholder's registration rights pursuant to
Section 4.10, Avanex shall determine to register any of its Common
Stock under the Securities Act (other than (i) registration statements
relating to employee, consultant or director compensation or incentive
arrangements, including employee benefit plans, (ii) registration
statements pursuant to Rule 415 under the Securities Act or any
successor rule with similar effect (except that such registration
statements shall be considered PiggyBack Registration Statements (as
defined below) to the extent of any drawdown from such registration)
or (iii) any registration statement on Form S-4 with respect to any
merger, consolidation or acquisition), then Avanex will promptly give
each Stockholder written notice thereof and include in such
registration statement (a "Piggyback Registration Statement"), and in
any underwriting involved therein, all Registrable Securities (the
"Piggyback Registrable Securities") specified in a written request
made by either Stockholder (a "Piggyback Request") within five (5)
Business Days after receipt of such written notice from Avanex,
subject to the restrictions on transfer set forth in Section 3.1.
Page 15
(b) If the Piggyback Registration Statement of which Avanex gives
notice is for an underwritten offering, Avanex shall so advise the
Stockholders as a part of the written notice given pursuant to Section
4.2(a). In such event, the right of a Stockholder to registration
pursuant to this Section 4.2 shall be conditioned upon the agreement
of such Stockholder to participate in such underwriting and in the
inclusion of such Piggyback Registrable Securities in the underwriting
to the extent provided herein. Upon the request of the managing
underwriter, the Stockholder making the Piggyback Request (the
"Participating Stockholder") shall (together with Avanex and any other
holders distributing Securities pursuant to such Piggyback
Registration Statement, if any) enter into an underwriting agreement
(the "Piggyback Underwriting Agreement") in customary form with the
underwriter or underwriters selected for such underwriting by Avanex.
(c) Notwithstanding any other provision of this Agreement, if the
managing underwriters of any underwritten offering as to which a
Stockholder has made a Piggyback Registration Statement determine, in
their sole discretion, that, after including all the shares proposed
to be offered by Avanex and all the shares of any other Persons
entitled to registration rights with respect to such Piggyback
Registration Statement, marketing factors require a limitation of the
number of Piggyback Registrable Securities to be underwritten, Avanex
may exclude Piggyback Registrable Securities. The securities that are
entitled to be included in the underwritten offering shall be
allocated as follows: (i) first, to Avanex for securities being sold
for its own account, (ii) second, to the Stockholders requesting to
include Avanex Securities in such registration statement based on the
pro rata percentage of Avanex Securities held by such holders and
(iii) third, to the other holders of Avanex Securities requesting to
include Avanex Securities in such registration statement based on the
pro rata percentage of Avanex Securities held by such holders;
provided, however, that prior to December 31, 2004, the securities
that are entitled to be included in the underwritten offering shall be
allocated as follows: (i) first, to the Stockholders requesting to
include Avanex Securities in such registration statement based on the
pro rata percentage of Avanex Securities held by such holders, (ii)
second, to Avanex for securities being sold for its own account and
(iii) third, to the other holders of Avanex Securities requesting to
include Avanex Securities in such registration statement based on the
pro rata percentage of Avanex Securities held by such holders.
(d) If a Participating Stockholder does not agree to the terms of
any such underwriting, such Stockholder shall be excluded from
registering any of its Avanex Securities pursuant to the subject
Piggyback Registration Statement by written notice from Avanex or the
underwriter. Any Registrable Securities or other securities excluded
or withdrawn from such underwriting shall be withdrawn from such
registration.
(e) Except to the extent specifically provided in this Section
4.2, the procedures to be followed by Avanex and the Stockholders, and
the respective rights and obligations of Avanex and the Stockholders,
with respect to the distribution of any Piggyback Registrable
Securities by the Stockholders pursuant to any Piggyback Registration
Statement filed by Avanex shall be as set forth in the Piggyback
Underwriting Agreement, or any other agreement or agreements governing
the distribution of such Piggyback Registrable Securities pursuant to
such Piggyback Registration Statement.
(f) Notwithstanding the foregoing (but subject to Section 4.2(c)
hereof), nothing in this Section 4.2, or any other provision of this
Agreement, shall be construed to limit the right of Avanex, in its
reasonable discretion: (i) to delay, suspend or terminate the filing
of any Piggyback Registration Statement; (ii) to delay the
effectiveness of any Piggyback Registration Statement; (iii) to reduce
the number of securities to be distributed pursuant to any Piggyback
Registration Statement; or (iv) to withdraw such Piggyback
Registration Statement.
Page 16
4.3 Registration Procedures, Rights and Obligations. The procedures to
be followed by Avanex, Alcatel and Corning, and the respective rights and
obligations of Avanex, Alcatel and Corning, with respect to the
preparation, filing and effectiveness of the Initial Registration Statement
and any Demand Registration Statements (collectively, the "Registration
Statements") and the distribution of Registrable Securities pursuant
thereto, are as follows:
(a) The Stockholders shall not be entitled to make any Demand
Request until the expiration of the Fourth Quarter, and shall not be
entitled to make more than one (1) Demand Request each; provided,
however, that any Demand Request that: (A) does not result in the
corresponding Demand Registration Statement being declared effective
by the SEC; (B) is withdrawn by the Demanding Stockholder following
the imposition of an order by the SEC with respect to the
corresponding Demand Registration Statement; (C) is withdrawn by the
Demanding Stockholder as a result of the exercise by Avanex of its
suspension rights pursuant to Sections 4.3(f) or (g), or (D) is
withdrawn by the Demanding Stockholder as a result of a Demand Market
Cut-Back (as hereinafter defined), shall not count as a Demand
Request. Any Demand Request that is withdrawn by the Demanding
Stockholder for any reason other than as set forth in the previous
sentence shall count as a Demand Request.
(b) Avanex shall use commercially reasonable efforts to keep the
Registration Statements continuously effective until the termination
of the Stockholders' registration rights pursuant to Section 4.10 or
until such time as all Registrable Securities registered pursuant to
such Registration Statement have been sold. Avanex shall prepare and
file with the SEC such amendments and supplements to each Registration
Statement and each prospectus used in connection therewith as may be
necessary to make and to keep such Registration Statement effective
and to comply with the provisions of the Securities Act with respect
to the sale or other disposition of all Registrable Securities
proposed to be distributed pursuant to such Registration Statement
until the termination of the Stockholders' registration rights
pursuant to Section 4.10.
(c) If Alcatel proposes to effect the Disposition of more than
seven (7) million Registrable Securities or if Corning proposes to
effect the Disposition of more than five (5) million Registrable
Securities, in each case in any ninety (90) day period, then such
Stockholder and Avanex shall discuss, and agree to, reasonable
measures to enable such Disposition to be made in an orderly manner
and to minimize the effect of such Disposition on the public market
for Avanex Common Stock, which measures shall include block trades,
privately negotiated transactions and underwritten offerings, or any
combination thereof; provided, that in the event that such Stockholder
and Avanex do not agree to such measures within a reasonable period,
such Stockholder and Avanex shall refer the matter to a Financial
Arbitrator. The Financial Arbitrator shall be instructed to select the
most appropriate measures available to enable such Disposition to be
made in an orderly manner and to minimize the effect of such
Disposition on the public market for Avanex Common Stock. Following
the determination of such measures, the Disposition shall only be made
in accordance with the manner(s) of sale selected by the Financial
Arbitrator.
Page 17
(d) In connection with any underwritten offering pursuant to a
Demand Registration Statement, the Demanding Stockholder shall select,
and Avanex shall approve, which approval shall not be unreasonably
withheld, one investment banking firm to serve as manager of such
offering. The manager is hereinafter referred to as the "Demand
Managing Underwriter." Avanex shall, together with the Demanding
Stockholder, enter into an underwriting agreement with the Demand
Managing Underwriter, which agreement may contain representations,
warranties, indemnities and agreements then customarily included by an
issuer in underwriting agreements with respect to secondary
distributions under demand registration statements and may stipulate
that the Demand Managing Underwriter will receive commissions and fees
and other remuneration in connection with the distribution of any
Demand Registrable Securities.
(e) Notwithstanding any other provision of this Agreement, the
number of Demand Registrable Securities proposed to be distributed by
a Stockholder pursuant to any underwritten offering may be limited by
and at the discretion of the Demand Managing Underwriter if, in the
discretion of the Demand Managing Underwriter, marketing factors
required a limitation of the number of shares to be underwritten (a
"Demand Market Cut-Back"). The securities that are entitled to be
included in the underwritten offering shall be allocated to the
Stockholders and other holders of Avanex Securities requesting to
include such Avanex Securities in such registration statement based on
the pro rata percentage of Avanex Securities held by such holders.
(f) Notwithstanding any other provisions of this Agreement, in
the event that Avanex receives a Demand Request at a time when Avanex
(i) shall have filed, or has a bona fide intention to file, a
registration statement with respect to a proposed public offering of
equity or equity-linked securities, or (ii) has commenced, or has a
bona fide intention to commence, a public offering of equity or
equity-linked securities pursuant to an existing effective shelf or
other registration statement, then Avanex shall be entitled to
suspend, for a period of up to ninety (90) days after the receipt by
Avanex of such Demand Request, the filing of any Demand Registration
Statement.
(g) Notwithstanding any other provision of this Agreement, in the
event that Avanex determines that: (i) non-public material information
regarding Avanex exists, the immediate disclosure of which would be
detrimental to Avanex; (ii) the prospectus constituting a part of any
Registration Statement covering the distribution of any Registrable
Securities contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; or (iii) an offering of
Registrable Securities would materially interfere with any proposed
material acquisition, disposition or other similar corporate
transaction or event involving Avanex (each of the events or
conditions referred to in clauses (i), (ii) and (iii) of this sentence
is hereinafter referred to as a "Suspension Condition"), then Avanex
shall have the right to suspend, for a maximum period of 30 days (the
"Suspension Period"), (A) the filing or effectiveness of any
Registration Statement or (B) any distribution of Registrable
Securities pursuant to any effective Registration Statement. Avanex
will as promptly as practicable provide written notice to a
Stockholder when a Suspension Condition arises and when it ceases to
exist. Upon receipt of notice from Avanex of the existence of any
Suspension Condition, such Stockholder shall forthwith discontinue
efforts during the Suspension Period to: (i) cause Avanex to file or
cause any Registration Statement to be declared effective by the SEC
(in the event that such Registration Statement has not been filed, or
has been filed but not declared effective, at the time such
Stockholder receives notice that a Suspension Condition has arisen);
or (ii) offer or sell Registrable Securities (in the event that such
Registration Statement has been declared effective at the time such
Stockholder receives notice that a Suspension Condition has arisen).
In the event that a Stockholder had previously commenced or was about
to commence the distribution of Registrable Securities pursuant to a
prospectus under an effective Registration Statement, then Avanex
shall, as promptly as practicable after the Suspension Condition
ceases to exist, make available to such Stockholder (and to each
underwriter, if any, participating in such distribution) an amendment
or supplement to such prospectus. If so directed by Avanex, such
Stockholder shall deliver to Avanex all copies, other than permanent
file copies then in such Stockholder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt
of such notice.
Page 18
(h) Notwithstanding any other provision of this Agreement, Avanex
shall not be permitted to postpone the filing or effectiveness of any
Registration Statement or the distribution of any Registrable
Securities pursuant to an effective Registration Statement pursuant to
Sections 4.2(f), 4.3(g) or 4.8(a): (i) more than two (2) times in any
365 day period, or (ii) (A) with respect to Section 4.2(f), for an
aggregate of more than 180 days or (B) with respect to Section 4.3(g),
for an aggregate of more than 120 days (in either case, excluding any
market standoff periods applicable pursuant to Section 4.8) in any 365
day period.
(i) Avanex shall promptly notify a Stockholder of any stop order
issued or, to Avanex's knowledge, threatened to be issued by the SEC
with respect to any Registration Statement, and will use its
commercially reasonable efforts to prevent the entry of such stop
order or to remove it if entered at the earliest possible date.
(j) Avanex shall furnish to a Stockholder (and any underwriter in
connection with any underwritten offering) such number of copies of
any prospectus (including any preliminary prospectus and any amended
or supplemented prospectus), in conformity with the requirements of
the Securities Act, as such Stockholder (and such underwriters) shall
reasonably request in order to effect the offering and sale of any
Registrable Securities to be offered and sold, but only while Avanex
shall be required under the provisions hereof to cause the
Registration Statement pursuant to which such Registrable Securities
are intended to be distributed to remain current.
(k) Avanex shall use commercially reasonable efforts to register
or qualify the Registrable Securities covered by each Registration
Statement under the state securities or "blue sky" laws of such states
as a Stockholder shall reasonably request, and maintain any such
registration or qualification current, until the termination of the
Stockholders' registration rights pursuant to Section 4.10; provided,
however, that Avanex shall not be required to take any action that
would subject it to the general jurisdiction of the courts of any
jurisdiction in which it is not so subject or to qualify as a foreign
corporation in any jurisdiction where Avanex is not so qualified.
(l) Avanex shall furnish to a Stockholder and to each underwriter
engaged in an underwritten offering of Registrable Securities, a
signed counterpart, addressed to such Stockholder or such underwriter,
of (i) an opinion or opinions of counsel to Avanex (with respect to
Avanex and securities law compliance by Avanex) and (ii) a comfort
letter or comfort letters from Avanex's independent public
accountants, each in customary form and covering such matters of the
type customarily covered by opinions or comfort letters, as the case
may be, as such Stockholder or the managing underwriters may
reasonably request.
Page 19
(m) Avanex shall use commercially reasonable efforts to cause all
Registrable Securities to be listed on each securities exchange on
which similar securities of Avanex are then listed.
(n) Avanex shall take all such other actions reasonably necessary
to permit the Registrable Securities held by the Stockholders to be
registered and disposed of in accordance with the methods of
disposition described herein.
(o) Upon request from a Stockholder, Avanex shall use
commercially reasonable efforts to assist in the marketing of the
Registrable Securities, including, for example, by participating in
roadshow presentations with potential investors, and such other
methods as Avanex shall reasonably determine in its sole discretion,
and the cost of such efforts shall be paid by the Stockholder
requesting such assistance unless Avanex is also marketing Registrable
Securities for its own account at such time.
4.4 Expenses. Subject to Section 4.5, Avanex shall pay all
registration expenses, other than underwriting or selling discounts and
commissions, incurred by Avanex in connection with any registration
statements that are initiated pursuant to Sections 4.1 or 4.2 of this
Agreement, including, without limitation, all SEC, National Association of
Securities Dealers, Inc. and blue sky registration and filing fees,
printing expenses, transfer agents' and registrars' fees. Subject to
Section 4.5, each Stockholder shall pay (i) all expenses incurred by it
with respect to any registration pursuant to Sections 4.1 or 4.2,
including, without limitation, any counsel for such Stockholder, and (ii)
all underwriting discounts and selling commissions with respect to the
Registrable Securities sold by it pursuant to such registration statement.
4.5 Indemnification.
(a) In the case of any offering registered pursuant to this
Section 4, to the extent permitted by law, Avanex will indemnify and
hold harmless each Stockholder, its Affiliates and their respective
officers and directors, any underwriter (as defined in the Securities
Act) and each Person, if any, who controls such Persons within the
meaning of Section 15 of the Securities Act against any losses,
claims, damages or liabilities, joint or several, to which any such
Persons may be subject, under the Securities Act or otherwise, and to
reimburse any of such Persons for any legal or other expenses
reasonably incurred by them in connection with investigating any
claims or defending against any actions, insofar as such losses,
claims, damages or liabilities arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the registration statement under which such Registrable
Securities were registered under the Securities Act pursuant to this
Section 4, the prospectus contained therein (during the period that
Avanex is required to keep such prospectus current), or any amendment
or supplement thereto, or the omission or alleged omission to state
therein (if so used) a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading, except insofar
as such losses, claims, damages or liabilities arise out of or are (i)
based upon any such untrue statement or omission or alleged untrue
statement or omission made in reliance upon information furnished to
Avanex in writing by the Stockholder or any underwriter for the
Stockholder specifically for use therein, or (ii) made in any
preliminary prospectus, and the prospectus contained in the
registration statement as declared effective or in the form filed by
Avanex with the SEC pursuant to Rule 424 under the Securities Act
shall have corrected such statement or omission and a copy of such
prospectus shall not have been sent or otherwise delivered to such
Person at or prior to the confirmation of such sale to such Person.
Page 20
(b) By requesting registration under this Section 4, each
Stockholder agrees, if Registrable Securities held by it are included
in the securities as to which such registration is being effected, in
the same manner and to the same extent as set forth in the preceding
paragraph, to indemnify and to hold harmless Avanex, its Affiliates
and their respective directors and officers and each Person, if any,
who controls such Persons within the meaning of the Securities Act
against any losses, claims, damages or liabilities, joint or several,
to which any of such Persons may be subject under the Securities Act
or otherwise, and to reimburse any of such Persons for any legal or
other expenses incurred in connection with investigating or defending
against any such losses, claims, damages or liabilities, but only to
the extent it arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission of a material
fact in any registration statement under which the Registrable
Securities were registered under the Securities Act pursuant to this
Section 4, any prospectus contained therein, or any amendment or
supplement thereto, and which is information furnished to Avanex in
writing by such Stockholder expressly for use therein.
(c) Each party entitled to indemnification under this Section 4.5
(the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party shall be approved by
the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense
at its own expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Section 4.5
unless such failure is materially prejudicial to the Indemnifying
Party's ability to defend such claim. No Indemnifying Party, (i) in
the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, which consent shall not be
unreasonably withheld, consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such claim or litigation, or
(ii) shall be liable for amounts paid in any settlement if such
settlement is effected without the consent of the Indemnifying Party,
which consent shall not be unreasonably withheld.
4.6 Issuances by Avanex or Other Holders. As to each registration or
distribution referred to in Section 4.1, additional shares of Avanex
Securities to be sold for the account of Avanex or other holders may be
included therein; provided that the inclusion of such Avanex Securities in
such registration or distribution may be conditioned or restricted in
accordance with the allocation set forth in Section 4.3(e) if, in the
opinion of the Demand Managing Underwriters, marketing factors require a
limitation of the number of shares to be underwritten.
4.7 Information by the Stockholders. Each Stockholder shall furnish to
Avanex such information regarding such Stockholder in the distribution of
Registrable Securities proposed by such Stockholder as Avanex may
reasonably request in writing and as shall be required in connection with
any registration, qualification or compliance referred to in this Article
4.
Page 21
4.8 Market Standoff Agreement. For so long as any Stockholder
(together with its Affiliates) owns five percent (5%) or more of the
outstanding Avanex Securities, in connection with the public offering by
Avanex of any Avanex Securities, such Stockholder agrees that, upon the
request of Avanex or the underwriters managing any underwritten offering of
Avanex's Securities, the Stockholder shall agree in writing (the "Public
Offering Lock-Up") that neither such Stockholder (nor any Affiliate of such
Stockholder) will effect any Disposition of any Avanex Securities (other
than those included in such registration statement, if any) now or
hereafter acquired by such Stockholder (or any Affiliate of such
Stockholder) or with respect to which such Stockholder (or any Affiliate of
such Stockholder) has or hereafter acquires the power of disposition
without the prior written consent of Avanex and such underwriters for such
period of time (ninety (90) days after the date of the final prospectus
delivered to the underwriters for use in confirming sales in such offering)
as may be requested by Avanex and the underwriters; provided, however, that
neither such Stockholder nor any Affiliate of such Stockholder shall be
bound by such Public Offering Lock-Up more than twice during any twelve
month period. Each Stockholder agrees that Avanex may instruct its transfer
agent to place stop-transfer notations in its records to enforce the
provisions of the Public Offering Lock-Up contained in this Section 4.8.
Notwithstanding the foregoing, during the December Quarter Alcatel shall be
entitled to engage in Dispositions pursuant to the provisions of Section
3.1(b)(ii) to the extent necessary to enable Alcatel to reduce the number
of Alcatel Shares held by Alcatel, as of the end of the December Quarter,
to less than 20% of the outstanding shares of Avanex Common Stock.
4.9 Restrictions on Transfer. Notwithstanding anything in this Article
4, any Disposition by a Stockholder of Avanex Securities, whether by way of
a registered offering or otherwise, shall comply with the restrictions on
transfer set forth in Section 3.1.
4.10 Termination. The provisions of this Article 4 with respect to
registration rights shall terminate as to each Stockholder on the date when
all Registrable Securities held by such Stockholder may immediately be sold
under Rule 144(k) during any ninety (90) day period.
Page 22
ARTICLE 5
RIGHT OF FIRST REFUSAL
Until the earlier to occur of: (i) five years after the date of the Share
Acquisition Closing, in the case of Alcatel, or the Asset Purchase Closing, in
the case of Corning; and (ii) such time as such Stockholder (and any Affiliates
of such Stockholder) beneficially own in the aggregate less than five percent
(5%) of the Voting Securities, Avanex will give each Stockholder at least 30
days prior written notice of the issuance by Avanex of any Avanex Securities
("New Securities"). Such notice must set forth (a) the type of New Securities
proposed to be issued and sold and the material rights and preferences of such
New Securities, (b) the proposed price or range of prices at which such New
Securities are proposed to be sold and the terms of payment, (c) the number of
such New Securities to be offered for sale, and (d) the purpose of the offering,
and any other material feature, term or condition relating to such New
Securities or the proposed sale thereof. Upon receipt of such notice from
Avanex, each Stockholder will have the right, but not the obligation, to
purchase up to its pro-rata share of such New Securities. Such pro-rata share,
for purposes of this Article 5, for any Stockholder is the ratio of (x) the
total number of Avanex Securities held by such Stockholder prior to the issuance
of New Securities to (y) the total number of Avanex Securities outstanding
immediately prior to the issuance of New Securities held by all stockholders of
Avanex. Each Stockholder's purchase must be on the same terms and conditions as
the balance of such issuance of New Securities; provided, however, if the sale
price at which Avanex proposes to issue, deliver or sell any New Securities is
to be paid with consideration other than cash, then the purchase price at which
Corning or Alcatel may acquire its portion of such New Securities will be equal
in value (as determined in good faith by the Board or, at the request of
Alcatel, an independent appraiser selected by Alcatel) but payable entirely in
cash. The closing of each Stockholder's purchase of its portion of such New
Securities will occur simultaneously with the closing of the balance of the
issuance of such New Securities; provided, however, if as of the date of said
closing all necessary approvals of governmental authorities required in
connection with the issuance of such New Securities have not been obtained by
Avanex and/or a Stockholder then (i) such Stockholder will not be required to
effect the purchase of its portion of such New Securities until all necessary
governmental authority approvals are obtained and (ii) Avanex may terminate such
Stockholder's right to purchase its portion of such New Securities if such
Stockholder fails to obtain any necessary governmental authority approvals
applicable only to such Stockholder within 90 days of the closing of the balance
of the issuance of such New Securities (unless such approval cannot reasonably
be obtained within such 90 day period or the failure to obtain such approval is
caused by any action or inaction by Avanex). If at any time the terms of a
proposed issuance of New Securities are materially changed, altered or modified
from those stated in Avanex's notice to the Stockholders of the proposed
issuance thereof, then such proposed issuance will be treated as a new issuance
of New Securities, subject to the notice obligation of Avanex set forth above
and any election of a Stockholder to purchase its portion of such New Securities
prior to such change, alteration or modification may, in the sole discretion of
such Stockholder, be withdrawn.
Notwithstanding the foregoing, "New Securities" shall not include:
(i) securities issued or issuable to officers, employees,
directors, consultants, placement agents, and other service providers
of Avanex (or any subsidiary of Avanex) pursuant to stock grants,
option plans, purchase plans, agreements or other employee stock
incentive programs or arrangements approved by the Board (including
the Avanex Corporation 1999 Director Option Plan, the Avanex
Corporation 1998 Stock Plan and the Avanex Corporation 1999 Employee
Stock Purchase Plan);
(ii) securities issued pursuant to the exercise of any
exercisable securities outstanding as of the later to occur of the
Asset Purchase Closing or the Share Acquisition Closing;
Page 23
(iii) securities issued or issuable pursuant to the acquisition
of another corporation by Avanex by merger, purchase of securities,
purchase of substantially all of the assets or other reorganization or
to a joint venture agreement, provided, that such issuances are
approved by the Board;
(iv) securities issued or issuable to banks, equipment lessors or
other financial institutions pursuant to a commercial leasing or debt
financing transaction approved by the Board;
(v) securities issued or issuable in connecting with sponsored
research, collaboration, technology license, development, OEM,
marketing or other similar agreements or strategic partnerships
approved by the Board;
(vi) in the case of Corning, securities which are otherwise
excluded by the affirmative unanimous vote of the Board; and
(vii) any right, option or warrant to acquire any security
convertible into the securities excluded from the definition of New
Securities pursuant to subsections (i) through (vi) above.
ARTICLE 6
BOARD OF DIRECTORS
6.1 Election of Directors. At the Asset Purchase Closing and for so long as
Corning owns five percent (5%) or more of the outstanding shares of Avanex
Common Stock, Avanex will nominate and use its reasonable efforts to have one
individual designated by Corning and reasonably acceptable to Avanex (the
"Corning Designee") elected to the Board (including increasing the size of the
Board as of the Asset Purchase Closing and appointing the Corning Designee to
fill a new position on the Board resulting from such increase, and at each
annual or special meeting of stockholders of Avanex at which directors are to be
elected, causing the Board to recommend to the stockholders of Avanex that such
Corning Designee be elected as a member of the Board and soliciting proxies and
voting such proxies in favor of the election of such Corning Designee to the
Board) to serve for a term of not more than three (3) years.
6.2 Replacement Directors. In the event that the Corning Designee
designated in the manner set forth in Section 6.1 is unable to serve, or once
having commenced to serve, is removed or withdraws from the Board, such
withdrawing director's replacement (the "Substitute Director") will be
designated by Corning; provided, however that such Substitute Director is
reasonably acceptable to Avanex. Avanex agrees to nominate and use its
reasonable efforts to cause the election of such Substitute Director, promptly
following his or her nomination pursuant to this Section 6.2.
6.3 Resignation of Directors. In the event that Corning owns less than 5%
of the outstanding shares of Avanex Common Stock, then Avanex may at such time
request the Corning Designee to resign from the Avanex Board of Directors, and
within five (5) days following such request, the Corning Designee shall resign
from the Avanex Board of Directors.
Page 24
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of Avanex.
(a) Existence and Power. Avanex is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware.
(b) Authorization. The execution, delivery and performance of this
Agreement by Avanex are within Avanex's powers and have been duly
authorized by all necessary action on the part of Avanex. This Agreement
constitutes a legal, valid and binding agreement of Avanex, enforceable
against Avanex in accordance with its terms, except (i) as such enforcement
is limited by bankruptcy, insolvency and other similar laws effecting the
enforcement of creditors' rights generally and (ii) for limitations imposed
by general principles of equity.
(c) Compliance. The execution, delivery and performance of this
Agreement by Avanex requires no action by or in respect of, or filing with,
any governmental or non-governmental body, agency or official or any other
Person other than as required by any applicable requirements of the
Securities Act, the Exchange Act and other filings or notifications that
are immaterial to the consummation of the transactions contemplated hereby.
(d) Non-contravention. The execution, delivery and performance of this
Agreement by Avanex does not and will not (a) violate the internal
governance documents of Avanex, (b) violate any applicable law, rule,
regulation, judgment, injunction, order or decree binding upon Avanex,
except for any such violations which would be immaterial to Avanex, or (c)
constitute a default under any agreement or other instrument binding upon
Avanex.
7.2 Representations and Warranties of Corning.
(a) Existence and Power. Corning is a corporation duly organized,
validly existing and in good standing under the laws of the State of New
York.
(b) Authorization. The execution, delivery and performance of this
Agreement by Corning are within Corning's powers and have been duly
authorized by all necessary action on the part of Corning. This Agreement
constitutes a legal, valid and binding agreement of Corning, enforceable
against Corning in accordance with its terms, except (i) as such
enforcement is limited by bankruptcy, insolvency and other similar laws
effecting the enforcement of creditors' rights generally and (ii) for
limitations imposed by general principles of equity.
(c) Compliance. The execution, delivery and performance of this
Agreement by Corning requires no action by or in respect of, or filing
with, any governmental or non-governmental body, agency or official or any
other Person other than as required by any applicable requirements of the
Exchange Act and other filings or notifications that are immaterial to the
consummation of the transactions contemplated hereby.
Page 25
(d) Non-contravention. The execution, delivery and performance of this
Agreement by Corning does not and will not (a) violate the internal
governance documents of Corning, (b) violate any applicable law, rule,
regulation, judgment, injunction, order or decree binding upon Corning,
except for any such violations which would be immaterial to Corning, or (c)
constitute a default under any agreement or other instrument binding upon
Corning.
(e) Corning Ownership of Avanex Securities. On the date hereof and as
of the Asset Purchase Closing, without giving effect to the transactions
contemplated by the Purchase Agreement, neither Corning nor any Affiliate
of Corning beneficially owns any Avanex Securities.
7.3 Representations and Warranties of Alcatel.
(a) Existence and Power. Alcatel is a societe anonyme duly organized,
validly existing and in good standing under the laws of the Republic of
France.
(b) Authorization. The execution, delivery and performance of this
Agreement by Alcatel are within Alcatel's powers and have been duly
authorized by all necessary action on the part of Alcatel. This Agreement
constitutes a legal, valid and binding agreement of Alcatel, enforceable
against Alcatel in accordance with its terms, except (i) as such
enforcement is limited by bankruptcy, insolvency and other similar laws
effecting the enforcement of creditors' rights generally and (ii) for
limitations imposed by general principles of equity.
(c) Compliance. The execution, delivery and performance of this
Agreement by Alcatel requires no action by or in respect of, or filing
with, any governmental or non-governmental body, agency or official or any
other Person other than as required by any applicable requirements of the
Exchange Act and other filings or notifications that are immaterial to the
consummation of the transactions contemplated hereby.
(d) Non-contravention. The execution, delivery and performance of this
Agreement by Alcatel does not and will not (a) violate the internal
governance documents of Alcatel, (b) violate any applicable law, rule,
regulation, judgment, injunction, order or decree binding upon Alcatel,
except for any such violations which would be immaterial to Alcatel, or (c)
constitute a default under any agreement or other instrument binding upon
Alcatel.
(e) Alcatel Ownership of Avanex Securities. On the date hereof and as
of the Share Acquisition Closing, without giving effect to the transactions
contemplated by the Purchase Agreement, neither Alcatel nor any Affiliate
of Alcatel beneficially owns greater than one percent (1%), either
individually or in the aggregate, of all outstanding Avanex Securities.
Page 26
ARTICLE 8
MISCELLANEOUS
8.1 Amendment; Waiver. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated other than by a written instrument
signed by each beneficiary of the waiver, discharge, amendment or termination
and the obligor under any such amendment, waiver, discharge or termination.
8.2 Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed duly given (i) on the date of delivery if delivered personally,
(ii) on the date of confirmation of receipt (or, the first Business Day
following such receipt if the date is not a Business Day) of transmission by
telecopy or telefacsimile or (iii) on the date of confirmation of receipt (or,
the first Business Day following such receipt if the date is not a Business Day)
if delivered by a nationally recognized courier service. All notices hereunder
shall be delivered as set forth below, or pursuant to such other instructions as
may be designated in writing by the party to receive such notice:
(a) if to Avanex, to:
Avanex Corporation
40919 Encyclopedia Circle
Fremont, CA 94538, USA
Attention: Chief Executive Officer
Fax: 510-897-4189
with copies to:
Wilson Sonsini Goodrich & Rosati, Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
Attention: Mark A. Bertelsen
Steve L. Camahort
Fax: 650-493-6811
(b) if to Alcatel, to:
Alcatel
54, rue la Boetie
75008 Paris, France
Attention: General Counsel
Fax: 011-331-4076-1435
with a copy to:
Proskauer Rose LLP
1585 Broadway
New York, NY 10036
Attention: Ronald R. Papa
Lauren K. Boglivi
Fax: 212-969-2900
Page 27
(c) if to Corning, to:
Corning Incorporated
One Riverfront Plaza
Corning, New York 14831-0001
Attention: Corporate Secretary
Fax: 607-974-6135
with a copy to:
Nixon Peabody LLP
Clinton Square
P.O. Box 31051
Rochester, NY 14803
Attention: Deborah McLean Quinn
Fax: 866-947-0724
8.3 Interpretation. When a reference is made in this Agreement to
Schedules, such reference shall be to a Schedule to this Agreement unless
otherwise indicated. When a reference is made in this Agreement to Articles or
Sections, such reference shall be to an article or a section of this Agreement,
as the case may be, unless otherwise indicated. For purposes of this Agreement,
the words "include," "includes" and "including," when used herein, shall be
deemed in each case to be followed by the words "without limitation." The table
of contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
8.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
8.5 Entire Agreement; Third-Party Beneficiaries. This Agreement and the
documents and instruments and other agreements among the parties hereto as
contemplated by or referred to herein, (i) constitute the entire agreement among
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof, and (ii) are not intended to confer upon
any other Person any rights or remedies hereunder, except as specifically
provided in Section 4.5.
8.6 Severability. In the event that any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will
continue in full force and effect and the application of such provision to other
Persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the greatest extent possible, the economic, business and
other purposes of such void or unenforceable provision.
Page 28
8.7 Other Remedies; Specific Performance. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having jurisdiction, this
being in addition to any other remedy to which they are entitled at law or in
equity.
8.8 Governing Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof. Each party hereby (a) irrevocably and unconditionally submits to
the exclusive jurisdiction of the Delaware Court of Chancery, with respect to
all actions and proceedings arising out of or relating to this Agreement and the
transactions contemplated hereby, (b) agrees that all claims with respect to any
such action or proceeding shall be heard and determined in such courts and
agrees not to commence an action or proceeding relating to this Agreement or the
transactions contemplated hereby except in such courts, (c) consents to service
of process upon him, her or it by mailing or delivering such service to the
address set forth in Section 8.2 hereof, and (d) agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Each party hereby irrevocably and unconditionally waives, and agrees not to
assert, by way of motion, as a defense, counterclaim or otherwise, in any action
or proceeding with respect to this Agreement, (i) the defense of sovereign
immunity, (ii) any claim that it is not personally subject to the jurisdiction
of the above-named courts for any reason other than the failure to serve process
in accordance with this Section 8.8, (iii) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process commenced
in any such court (whether through service of notice, attachment prior to
judgment, execution of judgment or otherwise), and, to the fullest extent
permitted by applicable law, that (A) the suit, action or proceeding in any such
court is improper, (B) the venue of such suit, action or proceeding is improper
and (C) this Agreement, or the subject matter hereof, may not be enforced in or
by such courts.
8.9 Rules of Construction. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
8.10 Assignment. No Stockholder may assign either this Agreement or any of
its rights, interests, or obligations hereunder without the prior written
approval of Avanex, and Avanex may not assign either this Agreement or any of
its rights, interests, or obligations hereunder without the prior written
approval of the Stockholders; provided that, without the approval of Avanex, a
Stockholder may assign this Agreement (and the rights and obligations hereunder)
to any Affiliate in connection with a transfer of Avanex Securities to such
subsidiary pursuant to Section 3.1(a)(ii), and without the approval of the
Stockholders, Avanex may assign all or part of this Agreement (and the rights
and obligations hereunder) to the successor or an assignee of all or
Page 29
substantially all of Avanex's business; provided further that, in each case,
such assignee expressly assumes the relevant obligations of this Agreement (by a
written instrument delivered to the other parties, in form and substance
reasonably acceptable to them) and, notwithstanding such assignment, the parties
hereto shall each continue to be bound by all of their respective obligations
hereunder. Any purported assignment in violation of this Section 8.10 shall be
void. Subject to the preceding sentence, this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
8.11 Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT HEREOF.
8.12 Further Assurances. Each party hereto agrees to execute and deliver,
by the proper exercise of its corporate or other powers, all such other and
additional instruments and documents and do all such other acts and things as
may be necessary to more fully effectuate this Agreement.
8.13 Automatic Adjustments to Share Numbers. All numbers regarding the
number of shares of Avanex shall be appropriately and automatically adjusted to
take into account any stock splits, stock dividend or combination or other
reclassification occurring after the date hereof.
8.14 Liability. The right and obligations of each of Corning and Alcatel
under this Agreement shall be several and not joint. All references to actions
to be taken by the Stockholders under this Agreement refer to actions to be
taken by Corning and Alcatel acting severally and not jointly.
[Signature page follows]
Page 30
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized respective officers as of the date first
written above.
AVANEX CORPORATION
By:
Name:
Title:
ALCATEL
By:
Name:
Title:
CORNING INCORPORATED
By:
Name:
Title:
Page 31
Exhibit 99.4
To Schedule 13D
JOINT FILING AGREEMENT
The undersigned hereby agree that a Statement on Schedule 13D ("Schedule
13D") with respect to the shares of the common stock of Avanex Corporation
(CUSIP No. 05348W 10 9) be executed and filed on behalf of each of the
undersigned pursuant to and in accordance with the provisions of Rule 13d-1(k)
under the Securities Exchange Act of 1934, as amended, and that this Agreement
shall be included as an exhibit to the Schedule 13D, and may be included in any
such amendment. Each of the undersigned agrees to be responsible for the timely
filing of the Schedule 13D and any amendments thereto, and for the completeness
and accuracy of the information concerning itself, himself or herself, jointly
and not severally, contained therein. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement this 22nd
day of May, 2003.
CORNING INCORPORATED
By: /s/ Denise A. Hauselt
-------------------------------
Denise A. Hauselt,
Secretary and Assistant General
Counsel
/s/ William D. Eggers
-------------------------------
William D. Eggers
/s/ Denise A. Hauselt
-------------------------------
Denise A. Hauselt
Page 1