-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HaRrti8lKsJQQkXzY1/zA2foX+v1A08/YIzXa75RfvRSEMhUHZQGqq2L1T+UvCJ8 /TZn5uy9DHRvFu1fSoD2Gg== 0001012870-02-001535.txt : 20020415 0001012870-02-001535.hdr.sgml : 20020415 ACCESSION NUMBER: 0001012870-02-001535 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20020328 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AVANEX CORP CENTRAL INDEX KEY: 0001056794 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 943285348 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-60829 FILM NUMBER: 02591901 BUSINESS ADDRESS: STREET 1: 40919 ENCYCLOPEDIA CIRCLE CITY: FREMONT STATE: CA ZIP: 94538 BUSINESS PHONE: 5108974172 MAIL ADDRESS: STREET 1: 40919 ENCYCLOPEDIA CIRCLE CITY: FREMONT STATE: CA ZIP: 94538 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: OPLINK COMMUNICATIONS INC CENTRAL INDEX KEY: 0001022225 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE & TELEGRAPH APPARATUS [3661] IRS NUMBER: 770411346 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 3469 NORTH FIRST STREET CITY: SAN JOSE STATE: CA ZIP: 95134 BUSINESS PHONE: 4084330606 MAIL ADDRESS: STREET 1: 3475 NORTH FIRST ST. CITY: SAN JOSE STATE: CA ZIP: 95134 SC 13D 1 dsc13d.txt SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 Avanex Corporation (Name of Issuer) Common Stock, $0.001 par value per share (Title of Class of Securities) 05348W109 (CUSIP Number) Frederick Fromm President and Chief Executive Officer Oplink Communications, Inc. 3469 North First Street San Jose, CA 95134 (408) 433-0606 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 18, 2002 (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 Rule 13d-1(e), (f) or (g), check the following box [_]. Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-7(b) for other parties to whom copies are to be sent. 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, as amended (the "Exchange Act") or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes). CUSIP No. 05348W109 Page 2 of 11 1 NAME OF REPORTING PERSON Oplink Communications, Inc. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 77-0411346 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 State of Delaware NUMBER OF 7 SOLE VOTING POWER SHARES 13,886,525/1/ BENEFICIALLY OWNED BY 8 SHARED VOTING POWER EACH 9,936,901/2/ REPORTING PERSON 9 SOLE DISPOSITIVE POWER 13,886,525/1/ 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON __________________ /1/ In the event the Option (discussed in Items 3, 4 and 5 below) becomes exercisable and is exercised in full, Oplink Communications, Inc. ("Oplink") will have sole voting and dispositive power with respect to 13,886,525 shares of Avanex Common Stock, which, based upon the 69,467,362 shares of Avanex Common Stock outstanding as of March 15, 2002 (as represented by Avanex in the Reorganization Agreement discussed in Items 3 and 4), the number of shares of Avanex Common Stock indicated represents approximately 19.9% of the outstanding Avanex Common Stock, excluding the shares of Avanex Common Stock issuable upon exercise of the Option. Prior to the exercise of the Option, Oplink is not entitled to any rights as a stockholder of Avanex Corporation as to the shares of Avanex Common Stock covered by the Option. The Option may only be exercised upon the occurrence of certain events referred to in the Avanex Stock Option Agreement, none of which has occurred as of the date hereof. Oplink expressly disclaims beneficial ownership of any of the shares of Avanex Common Stock that are purchasable by Oplink upon exercise of the Option until such time as Oplink purchases any such shares of Avanex Common Stock upon any such exercise. /2/ 9,936,901 shares of Avanex Common Stock (excluding options to purchase an aggregate of 2,635,742 shares of Avanex Common Stock, which options are exercisable within 60 days of March 15, 2002) are subject to Voting Agreements entered into by Oplink and certain stockholders of Avanex (discussed in Items 3 and 4 below). Oplink expressly disclaims beneficial ownership of any of the shares of Avanex Common Stock covered by the Voting Agreements. Based on the 69,467,362 shares of Avanex Common Stock outstanding as of March 15, 2002 (as represented by Avanex in the Reorganization Agreement), the number of shares of Avanex Common Stock indicated represents approximately 14.3% of the outstanding Avanex Common Stock, excluding options to purchase an aggregate of 2,633,505 shares of Avanex Common Stock, which options are exercisable within 60 days of March 15, 2002. CUSIP No. 05348W109 Page 3 of 11 23,823,426 shares /1/, /2/ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 28.6% (Based on 69,467,362 shares of Avanex Common Stock outstanding as of March 15, 2002, plus 13,886,525 shares after giving effect to the Option.) 14 TYPE OF REPORTING PERSON CO Neither the filing of this statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by Oplink Communications, Inc. that it is the beneficial owner of any of the Common Stock referred to herein for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose, and such beneficial ownership is expressly disclaimed. ITEM 1. SECURITY AND ISSUER This statement on Schedule 13D relates to the common stock, $0.001 par value per share ("Avanex Common Stock"), of Avanex Corporation, a Delaware corporation ("Avanex"). The principal executive offices of Avanex are located at 40919 Encyclopedia Circle, Fremont, California 94538. ITEM 2. IDENTITY AND BACKGROUND (a) The name of the person filing this statement is Oplink Communications, Inc., a Delaware corporation ("Oplink"). Oplink is a leading provider of innovative optical modules and components. (b) The address of the principal office and principal business of Oplink is 3469 North First Street, San Jose, California 95134. (c) Set forth in Schedule I to this Schedule 13D is the name and present principal occupation or employment of each of Oplink's executive officers and directors and the name, principal business and address of any corporation or other organization in which such employment is conducted. (d) During the past five years, neither Oplink nor, to Oplink's knowledge, any person named in Schedule I to this Schedule 13D, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the past five years, neither Oplink nor, to Oplink's knowledge, any person named in Schedule I to this Schedule 13D, was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such person was or is subject to a judgment, decree or final order enjoining future violations of or prohibiting or mandating activity subject to federal or state securities laws or finding any violation with respect to such laws. (f) With the exception of Mr. Herbert Chang, who is a citizen of Taiwan, and Mr. Yanfeng Yang, who is a citizen of the People's Republic of China, all of the directors and executive officers of Oplink named in Schedule I to this Schedule 13D are citizens of the United States. CUSIP No. 05348W109 Page 4 of 11 ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION To facilitate the consummation of the Merger (as defined in Item 4 below), certain stockholders of Avanex have entered into Voting Agreements and Irrevocable Proxies with Oplink as described in Item 4 and Item 5 of this Schedule 13D. Oplink did not pay additional consideration to any such stockholder in connection with the execution and delivery of the Voting Agreements and Irrevocable Proxies. Additionally, as further inducement to Avanex to enter into the Reorganization Agreement (as defined in Item 4), Avanex and Oplink entered into the Avanex Stock Option Agreement dated as of March 18, 2002 (the "Avanex Stock Option Agreement"), pursuant to which Avanex granted Oplink the right (the "Option"), under certain conditions specified in the Avanex Stock Option Agreement, to acquire up to 13,886,525 shares of Avanex Common Stock. The granting of the Option was negotiated as a material term of the entire Merger transaction. Oplink did not pay additional consideration to Avanex in connection with Avanex entering into the Avanex Stock Option Agreement and granting the Option. In the event the Option becomes exercisable, Oplink anticipates that it will use working capital for any exercise of the Option. ITEM 4. PURPOSE OF TRANSACTION (a) - (b) Pursuant to an Agreement and Plan of Reorganization dated as of March 18, 2002 (the "Reorganization Agreement"), by and among Avanex, Pearl Acquisition Corp., a Delaware corporation and wholly owned subsidiary of Avanex ("Merger Sub"), and Oplink, and subject to the conditions set forth therein (including, but not limited to, the adoption by the stockholders of Oplink of the Reorganization Agreement and the approval by the stockholders of Avanex of the issuance of Avanex Common Stock in connection with the Merger), Merger Sub will be merged with and into Oplink (the "Merger"), Oplink will become a wholly-owned subsidiary of Avanex and each outstanding share of Oplink common stock will be converted into 0.405344 of a share of Avanex Common Stock in accordance with the Reorganization Agreement. Concurrently with, and as a condition to, the execution and delivery of the Reorganization Agreement, Oplink and the persons named on Schedule II to this Schedule 13D entered into Voting Agreements and Irrevocable Proxies. As an inducement to Avanex to enter into the Reorganization Agreement, Avanex and Oplink entered into the Avanex Stock Option Agreement, as described in Item 3. Avanex's obligation to issue shares pursuant to the exercise of the Option is subject to the occurrence of certain events set forth in the Avanex Stock Option Agreement, which events might not occur. References to, and descriptions of, the Merger, the Reorganization Agreement, the Avanex Stock Option Agreement and the Voting Agreements and Irrevocable Proxies as set forth herein are qualified in their entirety by reference to the copies of the Reorganization Agreement, the Avanex Stock Option Agreement and the Voting Agreement, included as Exhibits 2.1, 2.2 and 2.3, respectively, to this Schedule 13D, which are incorporated herein in their entirety where such references and descriptions appear. (c) Not applicable. (d) Upon consummation of the Merger, the board of directors of Avanex will be increased to nine members, certain members of Oplink's current board of directors will become members of the board of directors of Avanex and it is anticipated that Bruce Horn will become Chief Financial Officer of Avanex, Frederick Fromm will become a director of and advisor to Avanex and Joseph Liu will become a Co-Chairman of Avanex's board of directors. (e) The Reorganization Agreement prohibits Avanex, without the prior written consent of Oplink, from (i) declaring, setting aside or paying any dividends or making any other distributions in respect of any capital stock or splitting, combining or reclassifying any capital stock or issuing or authorizing the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock; (ii) purchasing, redeeming or otherwise acquiring any shares of capital stock of Avanex or its subsidiaries, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any employee pursuant to stock option or purchase agreements in effect on March 18, 2002; and (iii) issuing, CUSIP No. 05348W109 Page 5 of 11 delivering, selling, authorizing, pledging or otherwise encumbering any shares of capital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or entering into other agreements or commitments of any character obligating Avanex to issue any such shares or convertible securities, other than in certain circumstances described in the Reorganization Agreement. Upon consummation of the Merger, the number of outstanding shares of Avanex Common Stock will be adjusted as contemplated by the Reorganization Agreement. (f) Upon consummation of the Merger, Oplink will become a wholly owned subsidiary of Avanex. (g) The Reorganization Agreement contains provisions that limit the ability of Avanex to engage in a transaction that would entail a change of control of Avanex during the pendency of the Reorganization Agreement. (h) Not applicable. (i) Not applicable. (j) Other than as described above, Oplink currently has no plan or proposal which relates to, or may result in, any of the matters listed in Items 4(a) - (i) of Schedule 13D (although Oplink reserves the right to develop such plans). ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) - (b) As a result of the Voting Agreements and the Irrevocable Proxies, Oplink has shared power to vote an aggregate of 9,936,901 shares of Avanex Common Stock for the limited purpose of voting (i) in favor of the approval of the issuance of shares of Avanex Common Stock to the stockholders of Oplink pursuant to the terms of the Reorganization Agreement; (ii) in favor of each of the transactions contemplated by the Reorganization Agreement; (iii) in favor of any matter that could reasonably be expected to facilitate the Merger; and (iv) against any matter that could reasonably be expected to prevent the Merger. The stockholders of Avanex who are parties to the Voting Agreements and Irrevocable Proxies retained the right to vote their shares of Avanex Common Stock on all matters other than those identified in the Voting Agreements. The shares covered by the Voting Agreements constitute approximately 14.3% of the issued and outstanding shares of Avanex Common Stock as of March 15, 2002. In addition, the individuals who have signed Voting Agreements and Irrevocable Proxies hold an aggregate of 2,635,742 options that are exercisable within 60 days of March 15, 2002. In the event the Option becomes exercisable and is exercised in full, Oplink will have the sole power to vote and to dispose of 13,866,525 shares of Avanex Common Stock which, based upon the 69,467,362 shares of Avanex Common Stock outstanding as of March 15, 2002 (as represented by Avanex in the Reorganization Agreement), equals 19.9% of the outstanding shares of Avanex excluding shares of Avanex Common Stock issuable upon exercise of the Option. To Oplink's knowledge, no shares of Avanex Common Stock are beneficially owned by any of the persons named in Schedule I to this Schedule 13D, except for such beneficial ownership, if any, arising solely from the Voting Agreements and Irrevocable Proxies. Set forth in Schedule II to this Schedule 13D is the name of each Avanex executive officer or director who executed a Voting Agreement and Irrevocable Proxy and the number of shares beneficially owned by each such person. Set forth in Schedule III to this Schedule 13D is the name and present principal occupation or employment of each person with whom Oplink shares the power to vote or to direct the vote or to dispose or direct the disposition of Avanex Common Stock. During the past five years, to Oplink's knowledge, no person named in Schedule III to this Schedule 13D has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). CUSIP No. 05348W109 Page 6 of 11 During the past five years, to Oplink's knowledge, no person named in Schedule III to this Schedule 13D was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such person was or is subject to a judgment, decree or final order enjoining future violations of or prohibiting or mandating activity subject to federal or state securities laws or finding any violation with respect to such laws. To Oplink's knowledge, all persons named in Schedule III to this Schedule 13D are citizens of the United States with the exception of Giovanni Barbarossa, who is a citizen of Italy. (c) Neither Oplink, nor to Oplink's knowledge, any person named in Schedule I to this Schedule 13D, has affected any transaction in Avanex Common Stock during the past 60 days, except as disclosed herein. (d) Not applicable. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Other than as described in Item 4 above, to Oplink's knowledge, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any securities of Avanex, including but not limited to transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS EXHIBIT NO. DESCRIPTION - ----------- ----------- 2.1 Agreement and Plan of Reorganization, dated as of March 18, 2002, by and among Avanex Corporation, Pearl Acquisition Corp., and Oplink Communications, Inc. (Incorporated by reference to Exhibit 2.1 of the Form 8-K filed by Oplink on March 22, 2002.) 2.2 Avanex Stock Option Agreement, dated as of March 18, 2002, between Avanex Corporation and Oplink Communications, Inc. (Incorporated by reference to Exhibit 2.3 of the Form 8-K filed by Oplink on March 22, 2002.) 2.3 Form of Avanex Voting Agreement and Irrevocable Proxy, dated as of March 18, 2002, in substantially the form entered into between Oplink Communications, Inc. and each of the persons listed on Schedule II to this Schedule 13D. CUSIP No. 05348W109 Page 7 of 11 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Oplink Communications, Inc. Dated: March 28, 2002 By: /s/ Frederick Fromm ------------------------------------- Frederick Fromm President and Chief Executive Officer CUSIP No. 05348W109 Page 8 of 11 SCHEDULE I EXECUTIVE OFFICERS AND EMPLOYEE DIRECTORS OF OPLINK NAME PRINCIPAL OCCUPATION OR EMPLOYMENT - ---- ---------------------------------- Frederick R. Fromm President, Chief Executive Officer and Director Bruce Horn Chief Financial Officer and Treasurer Wei-Zhong Li Chief Technology Officer Ken Brizel Senior Vice President, Strategy and Business Development Zee Hakimoglu Vice President, Product Line Management Christian Lepiane Vice President, Worldwide Sales Yanfeng Yang Vice President, Global Manufacturing Jingyu Xu Senior Vice President, Engineering Weiming Li Vice President, General Manager Oplink Zhuhai All individuals named in the above table are employed by Oplink Communications, Inc. The address of Oplink's principal executive office is 3469 North First Street, San Jose, California 95134. SCHEDULE I (CONTINUED) NON-EMPLOYEE DIRECTORS OF OPLINK
NAME AND PRINCIPAL OCCUPATION ADDRESS OF ORGANIZATION NAME OR EMPLOYMENT IN WHICH EMPLOYED - ---- ------------- ----------------- Joseph Y. Liu Private Investor c/o Oplink Communications, Inc. 3469 North First Street San Jose, California 95134 Terence P. Brown Private Investor, President Caymas Systems, Inc. and CEO 5330 Old Redwood Hwy., Suite B Petaluma, California 94954 Leonard J. LeBlanc Vice President of Corporate Ebest, Inc. Development 2350 Mission College Blvd. Santa Clara, California 95134 David Spreng Managing Member Crescendo Venture Management, LLC 480 Cowper Street, Suite 300 Palo Alto, California 94301 Chieh Chang Chief Executive Officer, c/o Oplink Communications, Inc. Progammable Microelectronics 3469 North First Street Company, Inc. San Jose, California 95134 Herbert Chang President c/o Oplink Communications, Inc. InveStar Capital, Inc. 3469 North First Street Taiwan San Jose, California 95134
CUSIP No. 05348W109 Page 9 of 11 SCHEDULE II
NUMBER OF SHARES OF PERCENTAGE OF OUTSTANDING VOTING AGREEMENT AVANEX COMMON STOCK SHARES OF AVANEX COMMON STOCKHOLDER BENEFICIALLY OWNED* STOCK AS OF MARCH 15, 2002 ================================================================================================ Paul Engle 762,500 1.10% Walter Alessandrini 4,747,052 6.8% Simon Cao 3,240,226 4.7% Jessy Chao 1,002,900 1.4% Margaret Quinn 70,000 .1% Todd Brooks 31,931 ** Vinton G. Cerf 2,292 ** Federico Faggin 40,000 ** Joel Smith 40,000 ** Giovanni Barbarossa 0 0% TOTAL 9,936,901 14.3%
* Does not include options to purchase an aggregate of 2,635,742 shares of Avanex Common Stock, which options are exercisable within 60 days of March 15, 2002. ** Less than 0.1%. CUSIP No. 05348W109 Page 10 of 11 SCHEDULE III
VOTING AGREEMENT PRINCIPAL OCCUPATION NAME AND ADDRESS STOCKHOLDER OR EMPLOYMENT OF EMPLOYER - ----------- ------------- ----------- Paul Engle President, Chief Executive Officer Avanex Corporation 40919 Encyclopedia Circle Fremont, California 94538 Giovanni Barbarossa Vice President, Product Development Avanex Corporation 40919 Encyclopedia Circle Fremont, California 94538 Simon Cao Chief Technology Officer and Avanex Corporation Senior Vice President, 40919 Encyclopedia Circle Business Development Fremont, California 94538 Jessy Chao Vice President, Finance and Avanex Corporation Chief Financial Officer 40919 Encyclopedia Circle Fremont, California 94538 John Tyler Vice President, Avanex Corporation Quality 40919 Encyclopedia Circle Fremont, California 94538 Margaret Quinn Vice President, Avanex Corporation Human Resourses and Administration 40919 Encyclopedia Circle Fremont, California 94538 Walter Alessandrini Chairman Avanex Corporation 40919 Encyclopedia Circle Fremont, California 94538 Todd Brooks General Partner Mayfield Fund 2800 Sand Hill Road Menlo Park, California 94025 Vinton G. Cerf Senior Vice President, c/o Avanex Corporation Internet Architecture and Technology 40919 Encyclopedia Circle MCI Worldcom Fremont, California 94538 Federico Faggin President and Chief Executive Officer Synaptics 2381 Bering Drive San Jose, California 95131 Joel Smith Dean, University of South Carolina The Darla Moore School of Business Moore School of Business 1705 College Street Columbia, South Carolina 29208
CUSIP No. 05348W109 Page 11 of 11 EXHIBIT INDEX EXHIBIT NO. DESCRIPTION - ---------- ------------ 2.1 Agreement and Plan of Reorganization, dated as of March 18, 2002, by and among Avanex Corporation, Pearl Acquisition Corp., and Oplink Communications, Inc. (Incorporated by reference to Exhibit 2.1 of the Form 8-K filed by Oplink on March 22, 2002.) 2.2 Avanex Stock Option Agreement, dated as of March 18, 2002, between Avanex Corporation and Oplink Communications, Inc. (Incorporated by reference to Exhibit 2.3 of the Form 8-K filed by Oplink on March 22, 2002.) 2.3 Form of Avanex Voting Agreement and Irrevocable Proxy, dated as of March 18, 2002, in substantially the form entered into between Oplink Communications, Inc. and each of the persons listed on Schedule II to this Schedule 13D. EX-2.3 3 dex23.txt FORM OF AVANEX VOTING AGREEMENT Exhibit 2.3 AVANEX CORPORATION FORM OF VOTING AGREEMENT THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of March 18, 2002, between Oplink Communications, Inc., a Delaware corporation ("Oplink"), and the undersigned stockholder (the "Stockholder") of Avanex Corporation, a Delaware corporation ("Avanex"). RECITALS A. Avanex, Pearl Acquisition Corp., a Delaware corporation and wholly owned subsidiary of Avanex ("Merger Sub"), and Oplink are entering into an Agreement and Plan of Reorganization (the "Merger Agreement"), which provides for the merger (the "Merger") of Merger Sub with and into Oplink. Pursuant to the Merger, all outstanding shares of Oplink Common Stock will be automatically converted into Avanex Common Stock, as set forth in the Merger Agreement, and Oplink will become a wholly owned subsidiary of Avanex; and B. 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 capital stock of Avanex and shares subject to outstanding options and warrants as is indicated on the signature page of this Agreement; and C. In consideration of the execution of the Merger Agreement by Oplink, Stockholder (in his or her capacity as such) agrees to vote the Shares (as defined below) and other such shares of capital stock of Avanex over which Stockholder has voting power so as to facilitate consummation of the Merger. 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 Merger Agreement. For purposes of this Agreement: (a) "Expiration Date" shall mean the earlier to occur of (i) such date and time as the Merger Agreement shall have been terminated pursuant to Article VII thereof, or (ii) such date and time as the Merger shall become effective in accordance with the terms and provisions of the Merger Agreement. (b) "Person" shall mean any (i) individual, (ii) corporation, limited liability company, partnership or other entity, or (iii) governmental authority. (c) "Shares" shall mean: (i) all securities of Avanex (including all shares of Avanex Common Stock and all options, warrants and other rights to acquire shares of Avanex Common Stock) owned by Stockholder as of the date of this Agreement; and (ii) all additional securities of Avanex (including all additional shares of Avanex Common Stock and all additional options, warrants and other rights to acquire shares of Avanex Common Stock) of which Stockholder acquires ownership during the period from the date of this 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, 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, grant of an option with respect to, transfer of or disposition of such security or any interest therein. 2. Transfer of Shares. ------------------ (a) Transferee of Shares to be Bound by this Agreement. Stockholder -------------------------------------------------- agrees that, during the period from the date of this 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 executed a counterpart of this Agreement and a proxy in the form attached hereto as Exhibit ------- A. - - (b) Transfer of Voting Rights. Stockholder agrees that, during the ------------------------- period from the date of this Agreement through the Expiration Date, Stockholder shall not deposit (or 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 Agreement with respect to any of the Shares. 3. Agreement to Vote Shares. ------------------------ (a) Agreement to Vote. Prior to the Expiration Date, at every meeting ----------------- of the stockholders of Avanex called with respect to the following matters, and at every adjournment or postponement thereof, and on every action or approval by written consent of the stockholders of Avanex with respect to the following matters, Stockholder (in his or her capacity as such) shall vote the Shares: (i) in favor of the approval of the issuance of shares of Avanex Common Stock to the stockholders of Oplink pursuant to the terms of the Merger Agreement (the "Share Issuance"); (ii) in favor of each of the transactions contemplated by the Merger Agreement; (iii) in favor of any matter that could reasonably be expected to facilitate the Merger; and (iv) against any matter that could reasonably be expected to prevent the Merger. (b) No Other Agreement. Prior to the Expiration Date, Stockholder ------------------ shall not 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. 4. Irrevocable Proxy. Concurrently with the execution of this Agreement, ----------------- Stockholder agrees to deliver to Oplink a Proxy in the form attached hereto as Exhibit A (the "Proxy"), which shall be irrevocable to the fullest extent - --------- permissible by law, with respect to the Shares. 5. Representations and Warranties of the Stockholder. Stockholder (i) is ------------------------------------------------- the beneficial owner of the shares of Avanex Common Stock indicated on the final page of this Agreement, free and -2- clear of any liens, adverse claims, options, rights of first refusal, co-sale rights, charges or other encumbrances; (ii) does not beneficially own any securities of the Avanex other than the shares of Avanex Common Stock and options and warrants to purchase shares of Common Stock of Avanex indicated on the final page of this Agreement; and (iii) has full power and legal capacity to make and enter into this Agreement and the Proxy and to carry out his or her obligations under the terms of this Agreement and the Proxy. 6. Additional Documents. Stockholder (in his or her capacity as such) -------------------- hereby covenants and agrees to execute and deliver any additional documents necessary or desirable, in the reasonable opinion of Oplink, to carry out the intent of this Agreement. 7. Termination. This Agreement, the Proxy and all obligations of ----------- Stockholder hereunder and thereunder shall terminate and shall have no further force or effect as of the Expiration Date. 8. Miscellaneous. ------------- (a) Severability. If any term, provision, covenant or restriction of ------------ this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, then the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. (b) Binding Effect and Assignment. This Agreement and all of the ----------------------------- provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, but, except as otherwise specifically provided herein, neither this Agreement nor any of the rights, interests or obligations of the parties hereto may be assigned by either of the parties without prior written consent of the other. (c) Amendments and Modification. This Agreement may not be modified, --------------------------- amended, altered or supplemented except upon the execution and delivery of a written agreement executed by the parties hereto. (d) Specific Performance; Injunctive Relief. The parties hereto --------------------------------------- acknowledge that Oplink shall be irreparably harmed and that there shall be no adequate remedy at law for a violation of any of the covenants or agreements of Stockholder set forth herein. Therefore, it is agreed that, in addition to any other remedies that may be available to Oplink upon any such violation, Oplink shall have the right to enforce such covenants and agreements by specific performance, injunctive relief or by any other means available to Oplink at law or in equity. (e) Notices. All notices and other communications pursuant to this ------- Agreement shall be in writing and deemed to be sufficient if contained in a written instrument and shall be deemed given if delivered personally, telecopied, sent by nationally-recognized overnight courier or mailed by registered or certified mail (return receipt requested), postage prepaid, to the parties at the following address (or at such other address for a party as shall be specified by like notice): If to Oplink: Oplink Communications, Inc. -3- 3469 North First Street San Jose, CA 95134 Attention: Chief Executive Officer Fax No.: (408) 433-0606 With a copy to: Cooley Godward LLP 3000 El Camino Real Palo Alto, CA 94306 Attention: Eric Jensen Suzanne Sawochka Hooper Fax No.: (650) 849-7400 If to Stockholder: To the address for notice set forth on the signature page hereof. (f) Governing Law. This Agreement shall be governed by the laws of ------------- the State of Delaware, without reference to rules of conflicts of law. (g) Entire Agreement. This Agreement and the Proxy contain the entire ---------------- understanding of the parties in respect of the subject matter hereof, and supersede all prior negotiations and understandings between the parties, both oral and written, with respect to such subject matter. (h) Officers and Directors. To the extent that Stockholder is or ---------------------- becomes (during the term hereof) a director or officer of Avanex, he or she makes no agreement or understanding herein in his or her capacity as such director or officer, and nothing herein will limit or affect, or give rise to any liability to Stockholder by virtue of, any actions taken by Stockholder in his or her capacity as an officer or director of Avanex in exercising its rights under the Merger Agreement. (i) Effect of Headings. The section headings are for convenience only ------------------ and shall not affect the construction or interpretation of this Agreement. (j) Counterparts. This Agreement may be executed in several ------------ counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement. (k) No Obligation to Exercise Options. Notwithstanding any provision --------------------------------- of this Agreement to the contrary, nothing in this Agreement shall obligate Stockholder to exercise any option, warrant or other right to acquire any Avanex Common Stock. -4- IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed on the day and year first above written. The undersigned is executing this Agreement only in his or her capacity as a stockholder. Such signature in no way affects his or her obligations as an officer or director of Avanex. OPLINK COMMUNICATIONS, INC. STOCKHOLDER By: ______________________________ By: __________________________________ Signature Name: ____________________________ Name: ________________________________ Title: ___________________________ Title: _______________________________ ______________________________________ ______________________________________ Print Address ______________________________________ Telephone ______________________________________ Facsimile No. Share beneficially owned: __________ Avanex Common Shares __________ Avanex Common Shares issuable upon exercise of outstanding options or warrants [Signature Page to Avanex Voting Agreement] Exhibit A IRREVOCABLE PROXY The undersigned stockholder of Avanex Corporation, a Delaware corporation ("Avanex"), hereby irrevocably (to the fullest extent permitted by law) appoints Frederick Fromm and Bruce Horn, directors on the Board of Directors of Oplink Communications, Inc., a Delaware corporation ("Oplink"), 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 all voting rights (to the full extent that the undersigned is entitled to do so) with respect to all securities of Avanex (including all shares of Avanex Common Stock and all options, warrants and other rights to acquire shares of Avanex Common Stock) owned by the undersigned as of the date of this proxy (the "Proxy") and all additional securities of Avanex (including all additional shares of Avanex Common Stock and all additional options, warrants and other rights to acquire shares of Avanex Common Stock) of which the undersigned acquires ownership of record during the period from the date of this Proxy through the Expiration Date (as defined below) (collectively, the "Shares") in accordance with the terms of this Proxy. The Shares beneficially owned by the undersigned stockholder of Oplink as of the date of this Proxy are listed on the final page of this Proxy. Upon the undersigned's execution of this Proxy, any and all prior proxies given by the undersigned with respect to the voting of the Shares on the matters referred to in the third full paragraph of this Proxy are hereby revoked and the undersigned agrees not to grant any subsequent proxies with respect to such matters until after the Expiration Date (as defined below). This Proxy is irrevocable (to the fullest extent permitted by law), is coupled with an interest and is granted pursuant to that certain Voting Agreement of even date herewith by and between Oplink, and the undersigned stockholder (the "Voting Agreement"), and is granted in consideration of Oplink entering into that certain Agreement and Plan of Reorganization of even date herewith (the "Merger Agreement"), by and among Avanex, Pearl Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of Avanex ("Merger Sub") and Oplink. The Merger Agreement provides for the merger of Merger Sub with and into Oplink in accordance with its terms (the "Merger"). Pursuant to the Merger, all outstanding capital stock of Oplink shall be converted into the right to receive Avanex Common Stock and Avanex shall issue shares of Avanex Common Stock to the stockholders of Oplink pursuant to the terms of the Merger Agreement (the "Share Issuance"). As used herein, the term "Expiration Date" shall mean the earlier to occur of (i) such date and time as the Merger Agreement shall have been validly terminated pursuant to Article VII thereof or (ii) such date and time as the Merger shall become effective in accordance with the terms and provisions of the Merger 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 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 meeting of stockholders of Avanex and in every written consent in lieu of such meeting (i) in favor of the Share Issuance, (ii) in favor of each of the transactions contemplated by the Merger Agreement, (iii) in favor of any matter that could reasonably be expected to facilitate the Merger, and (iv) against any matter that could reasonably be expected to prevent the Merger. The attorneys and proxies named above may not exercise this Proxy on any other matter except as provided above. 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. The undersigned is executing this Proxy only in his or her capacity as a stockholder. Such signature in no way affects his or her obligations as an officer or director of Avanex. 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: __________________________, 2002 Signature of Stockholder: ______________________ Print Name of Stockholder: _____________________ Shares beneficially owned: ______ Avanex Common Shares ______ Avanex Common Shares issuable upon exercise of outstanding options or warrants [Signature Page to Irrevocable Proxy] -----END PRIVACY-ENHANCED MESSAGE-----