VOTING AGREEMENT
Exhibit 99.2
This Voting Agreement (“Voting Agreement”) is entered into as of January 27,
2009, by and between Bookham, Inc., a Delaware corporation (“Parent”), and Xxxxxxx
Xxxx (“Stockholder”).
Recitals
A. Stockholder is a holder of record and the “beneficial owner” (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934) of certain shares of common stock of Avanex
Corporation, a Delaware corporation (the “Company”).
B. Parent, Ultraviolet Acquisition Sub, Inc., a Delaware corporation (“Merger Sub”),
and the Company are entering into an Agreement and Plan of Merger and Reorganization of even date
herewith (the “Merger Agreement”), which provides (subject to the conditions set forth
therein) for the merger of Merger Sub into the Company (the “Merger”). Capitalized terms
used but not otherwise defined in this Voting Agreement have the meanings assigned to such terms in
the Merger Agreement.
C. In the Merger, each outstanding share of common stock of the Company is to be converted
into the right to receive 5.426 shares of Parent Common Stock.
D. Stockholder is entering into this Voting Agreement in order to induce Parent to enter into
the Merger Agreement and cause the Merger to be consummated.
Agreement
The parties to this Voting Agreement, intending to be legally bound, agree as follows:
SECTION 1. Certain Definitions
For purposes of this Voting Agreement:
(a) “Expiration Date” shall mean the earlier of: (i) the date on which the Merger
Agreement is validly terminated pursuant to Section 8 thereof; (ii) the date upon which the Merger
becomes effective; or (iii) such date and time as any amendment or change to the Merger Agreement
is effected without the Stockholder’s consent that (A) decreases the Exchange Ratio or (B)
materially and adversely affects the Stockholder.
(b) Stockholder shall be deemed to “Own” or to have acquired “Ownership” of a
security if Stockholder: (i) is the record owner of such security; or (ii) is the “beneficial
owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of such
security.
(c) “Subject Securities” shall mean: (i) all securities of the Company (including all
shares of Company Common Stock and all options, warrants and other rights to acquire shares of
Company Common Stock) Owned by Stockholder as of the date of this Voting Agreement; and (ii) all
additional securities of the Company (including all additional shares of Company Common Stock and
all additional options, warrants and other rights to acquire shares of Company Common Stock) of
which Stockholder acquires Ownership during the Voting Period.
(d) 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 to any Person other than
Parent; (ii) enters into an agreement or commitment contemplating the possible sale of, pledge of,
encumbrance of, grant of an option with respect to, transfer of or disposition of such security or
any interest therein to any Person other than Parent; or (iii) reduces such Person’s beneficial
ownership of, interest in or risk relating to such security.
(e) “Voting Period” shall mean the period commencing on the date of this Voting
Agreement and ending on the earlier of: (i) the date on which the Merger Agreement is validly
terminated; and (ii) the date on which a final vote is taken by the stockholders of the Company on
a proposal to adopt the Merger Agreement.
SECTION 2. Transfer of Subject Securities and Voting Rights
2.1 Restriction on Transfer of Subject Securities. Subject to Section 2.3, during the Voting
Period, Stockholder shall not, directly or indirectly, cause or permit any Transfer of any of the
Subject Securities to be effected; provided, however, that nothing contained in this Voting
Agreement will be deemed to restrict the ability of Stockholder to exercise any Company Options
held by Stockholder prior to the Expiration Date.
2.2 Restriction on Transfer of Voting Rights. During the Voting Period, Stockholder shall
ensure that: (a) none of the Subject Securities is deposited into a voting trust; and (b) no proxy
is granted inconsistent with this Voting Agreement, and no voting agreement or similar agreement is
entered into, with respect to any of the Subject Securities.
2.3 Permitted Transfers. Section 2.1 shall not prohibit a transfer of Subject Securities by
Stockholder: (a) if Stockholder is an individual: (i) to any member of Stockholder’s immediate
family; or to a trust for the benefit of Stockholder or any member of Stockholder’s immediate
family; or (ii) upon the death of Stockholder; (b) if Stockholder is a partnership or limited
liability company, to one or more partners or members of Stockholder or to an affiliated
corporation under common control with Stockholder; provided, however, that a transfer referred to
in this sentence shall be permitted only if, as a precondition to such transfer, the transferee
agrees in a writing, reasonably satisfactory in form and substance to Parent, to be bound by all of
the terms of this Voting Agreement; or (c) pursuant to any Rule 10b5-1 plan in effect as of the
date of this Voting Agreement.
SECTION 3. Voting of Shares
3.1 Voting Covenant. Stockholder hereby agrees that, prior to the Expiration Date, at any
meeting of the stockholders of the Company, however called, and in any written action by consent of
stockholders of the Company, unless otherwise directed in writing by Parent, Stockholder shall
cause any issued and outstanding shares of Company Common Stock Owned by Stockholder as of the
record date with respect to such meeting or consent:
(a) in favor of the adoption of the Merger Agreement; and
(b) against any Acquisition Proposal with respect to an Avanex Corporation.
2.
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 clause “(a)” or clause
“(b)” of the preceding sentence.
3.2 Proxy.
(a) Contemporaneously with the execution of this Voting Agreement, Stockholder shall deliver
to Parent a proxy in the form attached to this Voting Agreement as Exhibit A, which shall be
irrevocable to the fullest extent permitted by law (at all times during the Voting Period) with
respect to the shares referred to therein (the “Proxy”).
(b) Stockholder shall not enter into any tender, voting or other agreement, or grant a proxy
or power of attorney, with respect to the Subject Securities that is inconsistent with this Voting
Agreement or otherwise take any other action with respect to the Subject Securities that would in
any way restrict, limit or interfere with the performance of Stockholder’s obligations hereunder or
the transactions contemplated hereby.
SECTION 4. Representations and Warranties of Stockholder
Stockholder hereby represents and warrants to Parent as follows:
4.1 Authorization, etc. Stockholder has the power, authority and capacity to execute and
deliver this Voting Agreement and the Proxy and to perform Stockholder’s obligations hereunder and
thereunder. This Voting Agreement and the Proxy have been duly executed and delivered by
Stockholder and, assuming the due authorization, execution and delivery of this Voting Agreement by
Parent, constitute legal, valid and binding obligations of Stockholder, enforceable against
Stockholder in accordance with their terms, subject to: (a) laws of general application relating to
bankruptcy, insolvency and the relief of debtors; and (b) rules of law governing specific
performance, injunctive relief and other equitable remedies.
4.2 No Conflicts or Consents.
(a) The execution and delivery of this Voting Agreement and the Proxy by Stockholder do not,
and the performance of this Voting Agreement and the Proxy by Stockholder will not: (i) conflict
with or violate any Legal Requirement or Order applicable to Stockholder or by which Stockholder or
any of Stockholder’s properties is or may be bound or affected; or (ii) result in or constitute
(with or without notice or lapse of time) any breach of or default under, or give to any other
Person (with or without notice or lapse of time) any right of termination, amendment, acceleration
or cancellation of, or result (with or without notice or lapse of time) in the creation of any
Encumbrance on any of the Subject Securities pursuant to, any Contract to which Stockholder is a
party or by which Stockholder or any of Stockholder’s affiliates or properties is or may be bound
or affected.
(b) The execution and delivery of this Voting Agreement and the Proxy by Stockholder do not,
and the performance of this Voting Agreement and the Proxy by Stockholder will not, require any
Consent of any Person.
4.3 Title to Securities. As of the date of this Voting Agreement: (a) Stockholder holds of
record (free and clear of any Encumbrances) the number of outstanding shares of Company Common
Stock set forth under the heading “Shares Held of Record” on the signature page hereof; (b)
Stockholder holds (free and clear of any Encumbrances) the options, warrants and other rights to
acquire shares of
3.
Company Common Stock set forth under the heading “Options and Other Rights” on the signature
page hereof; (c) Stockholder Owns the additional securities of the Company set forth under the
heading “Additional Securities Beneficially Owned” on the signature page hereof; and (d)
Stockholder does not directly or indirectly Own any shares of capital stock or other securities of
the Company, or any option, warrant or other right to acquire (by purchase, conversion or
otherwise) any shares of capital stock or other securities of the Company, other than the shares
and options, warrants and other rights set forth on the signature page hereof.
4.4 Accuracy of Representations. The representations and warranties contained in this Voting
Agreement are accurate in all respects as of the date of this Voting Agreement, and will be
accurate in all respects at all times prior to the Expiration Date as if made as of any such time
or date.
SECTION 5. Miscellaneous
5.1 Stockholder Information. Stockholder hereby agrees to permit Parent, the Company and
Merger Sub to publish and disclose in the Form S-4 Registration Statement and the Joint Proxy
Statement/Prospectus Stockholder’s identity and ownership of shares of Company Common Stock and the
nature of Stockholder’s commitments, arrangements and understandings under this Voting Agreement.
5.2 Further Assurances. From time to time and without additional consideration, Stockholder
shall execute and deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents and other instruments, and shall take such further
actions, as Parent may reasonably request for the purpose of carrying out and furthering the intent
of this Voting Agreement.
5.3 Expenses. All costs and expenses incurred in connection with the transactions
contemplated by this Voting Agreement shall be paid by the party incurring such costs and expenses.
5.4 Notices. Any notice or other communication under this Voting Agreement shall be in
writing and shall be deemed to have been duly given or made as follows: (a) if sent by registered
or certified mail in the United States return receipt requested, upon receipt; (b) if sent by
nationally recognized overnight air courier (such as Federal Express), one business day after
mailing; (c) if sent by facsimile transmission before 5:00 p.m., when transmitted and receipt is
confirmed; (d) if sent by facsimile transmission after 5:00 p.m. and receipt is confirmed, on the
following business day; and (e) if otherwise actually personally delivered, when delivered,
provided that such notices, requests, demands and other communications are delivered to the address
set forth below, or to such other address as any party shall provide by like notice to the other
parties to this Voting Agreement:
if to Stockholder:
at the address set forth on the signature page hereof; and
if to Parent:
Bookham, Inc.
0000 Xxxxxxxx Xxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Attention: Chief Executive Officer and General Counsel
Facsimile: (000) 000-0000
0000 Xxxxxxxx Xxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Attention: Chief Executive Officer and General Counsel
Facsimile: (000) 000-0000
4.
5.5 Severability. Any term or provision of this Voting Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability
of the remaining terms and provisions of this Voting Agreement or the validity or enforceability of
the offending term or provision in any other situation or in any other jurisdiction. Upon such
determination that any term or provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Voting Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the fullest extent possible.
5.6 Entire Agreement. This Voting Agreement, the Proxy, the Merger Agreement and any other
documents delivered by the parties in connection herewith constitute the entire agreement between
the parties with respect to the subject matter hereof and thereof and supersede all prior
agreements and understandings between the parties with respect thereto.
5.7 Amendments. This Voting Agreement may not be amended, modified, altered or supplemented
other than by means of a written instrument duly executed and delivered on behalf of Parent and
Stockholder.
5.8 Assignment; Binding Effect; No Third Party Rights. Except as provided herein, neither
this Voting Agreement nor any of the interests or obligations hereunder may be assigned or
delegated by Stockholder, and any attempted or purported assignment or delegation of any of such
interests or obligations shall be void. Subject to the preceding sentence, this Voting Agreement
shall be binding upon Stockholder and Stockholder’s heirs, estate, executors and personal
representatives and Stockholder’s successors and assigns, and shall inure to the benefit of Parent
and its successors and assigns. Without limiting any of the restrictions set forth in Section 2,
Section 3 or elsewhere in this Voting Agreement, this Voting Agreement shall be binding upon any
Person to whom any Subject Securities are transferred. Nothing in this Voting Agreement is
intended to confer on any Person (other than Parent and its successors and assigns) any rights or
remedies of any nature.
5.9 Specific Performance. The parties agree that irreparable damage would occur in the event
that any of the provisions of this Voting Agreement or the Proxy were not performed in accordance
with its specific terms or were otherwise breached. Stockholder agrees that, in the event of any
breach or threatened breach by Stockholder of any covenant or obligation contained in this Voting
Agreement or in the Proxy, Parent shall be entitled (in addition to any other remedy that may be
available to it, including monetary damages) to seek and obtain: (a) a decree or order of specific
performance to enforce the observance and performance of such covenant or obligation; and (b) an
injunction restraining such breach or threatened breach. Stockholder further agrees that neither
Parent nor any other Person shall be required to obtain, furnish or post any bond or similar
instrument in connection with or as a condition to obtaining any remedy referred to in this Section
5.9, and Stockholder irrevocably waives any right he or it may have to require the obtaining,
furnishing or posting of any such bond or similar instrument.
5.10 Attorneys’ Fees. If any Legal Proceeding relating to this Voting Agreement or the
enforcement of any provision of this Voting Agreement is brought against Stockholder, 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).
5.11 Non-Exclusivity. The rights and remedies of Parent under this Voting Agreement are not
exclusive of or limited by any other rights or remedies which it may have, whether at law, in
equity, by contract or otherwise, all of which shall be cumulative (and not alternative).
5.
5.12 Governing Law; Jurisdiction; Waiver of Jury Trial. This Voting Agreement and the Proxy
shall be governed by, and construed in accordance with, the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable principles of conflicts of laws
thereof. In any action between any of the parties arising out of or relating to this Voting
Agreement, the Proxy or any of the transactions contemplated by this Voting Agreement or the Proxy,
each of the parties: (a) irrevocably and unconditionally consents and submits to the exclusive
jurisdiction and venue of the Chancery Court of the State of Delaware; (b) irrevocably waives the
right to trial by jury; and (c) irrevocably consents to service of process by first class
certified mail, return receipt requested, postage prepared, to the address at which Stockholder or
Parent, as the case may be, is to receive notice in accordance with Section 5.4.
5.13 Counterparts; Exchanges by Facsimile or Electronic Delivery. This Voting Agreement may
be executed in separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same instrument. The
exchange of a fully executed Voting Agreement (in counterparts or otherwise) by facsimile or
electronic delivery shall be sufficient to bind the parties to the terms and conditions of this
Voting Agreement.
5.14 Captions. The captions contained in this Voting Agreement are for convenience of
reference only, shall not be deemed to be a part of this Voting Agreement and shall not be referred
to in connection with the construction or interpretation of this Voting Agreement.
5.15 Waiver. Subject to the remainder of this Section 5.15, at any time prior to the
Expiration Date, any party hereto may: (a) extend the time for the performance of any of the
obligations or other acts of the other parties to this Voting Agreement; (b) waive any inaccuracy
in or breach of any representation, warranty, covenant or obligation of the other party in this
Voting Agreement or in any document delivered pursuant to this Voting Agreement; and (iii) waive
compliance with any covenant, obligation or condition for the benefit of such party contained in
this Voting Agreement. No failure on the part of Parent to exercise any power, right, privilege or
remedy under this Voting Agreement, and no delay on the part of Parent in exercising any power,
right, privilege or remedy under this Voting Agreement, shall operate as a waiver of such power,
right, privilege or remedy; and no single or partial exercise of any such power, right, privilege
or remedy shall preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. Parent shall not be deemed to have waived any claim available to Parent
arising out of this Voting Agreement, or any power, right, privilege or remedy of Parent under this
Voting Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly
set forth in a written instrument duly executed and delivered on behalf of Parent; and any such
waiver shall not be applicable or have any effect except in the specific instance in which it is
given.
5.16 Independence of Obligations. The covenants and obligations of Stockholder set forth in
this Voting Agreement shall be construed as independent of any other Contract between Stockholder,
on the one hand, and the Company or Parent, on the other. The existence of any claim or cause of
action by Stockholder against the Company or Parent shall not constitute a defense to the
enforcement of any of such covenants or obligations against Stockholder. Nothing in this Voting
Agreement shall limit any of the rights or remedies of Parent under the Merger Agreement, or any of
the rights or remedies of Parent or any of the obligations of Stockholder under any agreement
between Stockholder and Parent or any certificate or instrument executed by Stockholder in favor of
Parent; and nothing in the Merger Agreement or in any other such agreement, certificate or
instrument, shall limit any of the rights or remedies of Parent or any of the obligations of
Stockholder under this Voting Agreement.
5.17 Other Capacities. Notwithstanding any provision of this Voting Agreement to the
contrary, nothing in this Voting Agreement shall limit or restrict Stockholder from acting in good
faith in
6.
Stockholder’s capacity as a director or officer of the Company (it being understood that this
Voting Agreement shall apply to Stockholder solely in Stockholder’s capacity as a stockholder of
the Company).
5.18 Construction.
(a) For purposes of this Voting Agreement, whenever the context requires: the singular number
shall include the plural, and vice versa; the masculine gender shall include the feminine and
neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter
gender shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not be applied in the construction or interpretation of
this Voting Agreement.
(c) As used in this Voting Agreement, the words “include” and “including,” and variations
thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed
by the words “without limitation.”
(d) Except as otherwise indicated, all references in this Voting Agreement to “Sections” and
“Exhibits” are intended to refer to Sections of this Voting Agreement and Exhibits to this Voting
Agreement.
[Remainder of page intentionally left blank.]
7.
In Witness Whereof, Parent and Stockholder have caused this Voting Agreement to be
executed as of the date first written above.
| Bookham, Inc. | ||||
| By | ||||
| Title | ||||
| Stockholder | ||||
| Signature | ||||
| Printed Name | ||||
| Address: | ||||
| Facsimile: | ||||
| Additional Securities | ||||
| Shares Held of Record | Options and Other Rights | Beneficially Owned | ||
Signature Page to Voting Agreement
Exhibit A
Form of Irrevocable Proxy
Irrevocable Proxy
The undersigned stockholder (the “Stockholder”) of Avanex Corporation, a
Delaware corporation (the “Company”), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Xxxx Xxxxxx, Xxxxx Xxxxx and Bookham, Inc., a Delaware
corporation (“Parent”), and each of them, the attorneys and proxies of the Stockholder,
with full power of substitution and resubstitution, to the full extent of the Stockholder’s rights
with respect to the outstanding shares of capital stock of the Company owned of record by the
Stockholder as of the date of this proxy, which shares are specified on the final page of this
proxy. (The shares of the capital stock of the Company referred to in the immediately preceding
sentence are referred to as the “Shares.”) Upon the execution of this proxy, all prior
proxies given by the Stockholder with respect to any of the Shares are hereby revoked, and the
Stockholder agrees that no subsequent proxies inconsistent with this Proxy will be given with
respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in connection with, and
as security for, the Voting Agreement, dated as of the date hereof, between Parent and the
Stockholder (the “Voting Agreement”), and is granted in consideration of Parent entering
into the Agreement and Plan of Merger and Reorganization, dated as of the date hereof, among
Parent, Ultraviolet Acquisition Sub, Inc., a wholly-owned subsidiary of Parent, and the Company
(the “Merger Agreement”). This proxy will terminate on the Expiration Date (as defined in
the Voting Agreement).
Prior to the Expiration Date, the attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote any Shares owned by the undersigned, at any meeting of the
stockholders of the Company, however called, and in connection with any written action by consent
of stockholders of the Company:
(a) in favor of the adoption of the Merger Agreement; and
(b) against any Acquisition Proposal with respect to an Avanex Corporation (as such
terms are defined in the Merger Agreement).
The Stockholder may vote the Shares on all other matters not referred to in this proxy, and
the attorneys and proxies named above may not exercise this proxy with respect to such other
matters.
This proxy shall be binding upon the heirs, estate, executors, personal representatives,
successors and assigns of the Stockholder (including any transferee of any of the Shares).
Any term or provision of this proxy that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions
of this proxy or the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. Upon such determination that any term or provision is
invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this proxy so as to effect the original intent of the parties as closely as possible in
an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the
fullest extent possible.
[Signature page follows]
Proxy
Dated: , 2009
| Stockholder | ||||
| Signature | ||||
| Printed Name | ||||
| Number of shares of common stock of the Company owned of record as of the date of this proxy: | ||||
Proxy
