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EXHIBIT 10.12.1
AVANEX CORPORATION
SECOND AMENDED AND RESTATED VOTING AGREEMENT
This Second Amended and Restated Voting Agreement (the "Agreement") is
made as of the ___ day of September, 1999, by and among Avanex Corporation, a
California corporation (the "Company"), Xxxxx X. Xxx, Xxxxx Xxxx and Xxxx Xxx-Xx
Xxxxx (the "Founders"), and the holders of shares of Preferred Stock listed on
Exhibit A (collectively, the "Purchasers" and individually, each a "Purchaser").
RECITALS
A. Pursuant to that certain Amended and Restated Series A Preferred,
Series B Preferred and Series C Preferred Stock Purchase Agreement (the "Prior
Purchase Agreement"), the Purchasers thereto purchased (i) 4,530,080 shares of
Series A Preferred Stock of the Company (the "Series A Preferred"), (ii) after
the Company met certain conditions set forth in the Prior Purchase Agreement,
6,296,744 shares of Series B Preferred Stock of the Company (the "Series B
Preferred"), (iii) after the Company met certain conditions set forth in the
Prior Purchase Agreement, 9,032,169 shares of Series C Preferred Stock of the
Company (the "Series C Preferred"). In connection with the Prior Purchase
Agreement, the Purchasers thereto, the Company and the Founders entered into
that certain First Amended and Restated Voting Agreement dated February 19, 1999
(the "Prior Voting Agreement").
B. The Company and the Purchasers have entered into that Series D
Preferred Stock Purchase Agreement (the "Purchase Agreement") of even date
herewith, pursuant to which the Company shall, after meeting certain conditions
set forth in the Purchase Agreement, sell Purchasers up to 3,487,097 shares of
Series D Preferred Stock of the Company (the "Series D Preferred") (the Series A
Preferred, Series B Preferred, the Series C Preferred and the Series D Preferred
are hereinafter collectively referred to as the "Preferred Stock").
C. The Company's Second Amended and Restated Articles of Incorporation
(the "Articles") provide that the holders of shares of Common Stock, voting as a
separate class, shall be entitled to elect two directors (the "Common
Directors") and, the holders of shares of Preferred Stock, voting as a separate
class, shall be entitled to elect three directors; provided, however, that under
certain circumstances the number of directors the holders of Preferred Stock are
entitled to elect may be reduced to two (the "Preferred Directors"). The
Articles further provide that any additional directors (the "Independent
Directors") shall be elected by the holders of the Preferred Stock and the
holders of Common Stock voting as a single class.
D. A condition to the Purchasers' obligations under the Purchase
Agreement is that the Company, the Founders and the Purchasers enter into this
Agreement for the purpose of setting forth the terms and conditions pursuant to
which the Purchasers and the Founders shall vote their shares of the Company's
voting stock in favor of certain designees to the Company's Board of Directors.
The Company, the Purchasers and the Founders each desire to facilitate the
voting arrangements set forth in this Agreement, and the sale and purchase of
shares of Preferred Stock pursuant to the Purchase Agreement, by agreeing to the
terms and conditions set forth below.
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E. The parties to the Prior Voting Agreement desire to amend, restate
and supersede such agreement and adopt this Agreement in lieu thereof.
AGREEMENT
The parties agree as follows:
1. ELECTION OF DIRECTORS
(a) BOARD REPRESENTATION. At each annual meeting of the
shareholders of the Company, or at any meeting of the shareholders of the
Company at which members of the Board of Directors of the Company are to be
elected, or whenever members of the Board of Directors are to be elected by
written consent, with respect to the election of the Independent Directors, the
Founders and the Purchasers agree to vote or act with respect to their shares so
as to elect those Independent Directors designated by a majority vote of the
Common Directors and the Preferred Directors all voting together.
(b) APPOINTMENT OF DIRECTORS. In the event of the resignation,
death, removal or disqualification of an Independent Director, a majority of the
Common Directors and the Preferred Directors voting together shall promptly
nominate a new Independent Director, and, at the next annual meeting of the
shareholders of the Company, or at any meeting of the shareholders of the
Company at which members of the Board of Directors of the Company are to be
elected, or whenever members of the Board of Directors are to be elected by
written consent, with respect to the election of the Independent Directors, then
each Purchaser and Founder shall vote its shares of capital stock of the Company
to elect such nominee to the Board of Directors.
2. NO REVOCATION. The voting agreements contained herein are coupled
with an interest and may not be revoked during the term of this Agreement.
3. CHANGE IN NUMBER OF DIRECTORS. The Founders and the Purchasers will
not vote for any amendment or change to the Articles of Incorporation or Bylaws
providing for the election of more than seven (7) or less than five (5)
directors, or any other amendment or change to the Articles of Incorporation
Bylaws inconsistent with the terms of this Agreement.
4. LEGENDS. Each certificate representing shares of the Company's
capital stock held by Founders or Purchasers or any assignee of the Founders or
Purchasers shall bear the following legend:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT BY AND
AMONG THE COMPANY AND CERTAIN SHAREHOLDERS OF THE COMPANY (A COPY OF
WHICH MAY BE OBTAINED FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST
IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO
AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SAID VOTING
AGREEMENT."
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5. TERMINATION. This Agreement shall terminate upon the earlier of (a) a
firm commitment underwritten public offering by the Company of shares of its
Common Stock pursuant to a registration statement under the Securities Act of
1933, as amended, or (b) the sale, conveyance, disposal, or encumbrance of all
or substantially all of the Company's property or business or the Company's
merger into or consolidation with any other corporation (other than a
wholly-owned subsidiary corporation) or if the Company effects any other
transaction or series of related transactions in which more than fifty percent
(50%) of the voting power of the Company is disposed of, provided that this
Section 5 shall not apply to a merger effected exclusively for the purpose of
changing the domicile of the Company.
6. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
(b) AMENDMENTS AND WAIVERS. Any term hereof may be amended or
waived only with the written consent of the Company, the Founders, and holders
of at least sixty-seven (67%) the Preferred Stock. Any amendment or waiver
effected in accordance with this Section 6(b) shall be binding upon the Company,
the holders of Preferred Stock and any holder of Founders' Shares, and each of
their respective successors and assigns.
(c) ADDITIONAL PARTIES. The parties to this Agreement acknowledge
that the Company's Preferred Stock may be sold in multiple closings pursuant to
the Purchase Agreement, and agree that all of the purchasers of Preferred Stock
pursuant to such agreement can be added as parties to this Agreement, with all
of the rights and obligations of Purchasers under this Agreement without any
further action or approval by other parties to this Agreement.
(d) NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient on the date of delivery, when
delivered personally or by overnight courier or sent by telegram or fax, or
forty-eight (48) hours after being deposited in the U.S. mail, as certified or
registered mail, with postage prepaid, and addressed to the party to be notified
at such party's address or fax number as set forth on the signature page or on
Exhibit A hereto, or as subsequently modified by written notice.
(e) SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(f) GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and
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interpreted in accordance with the laws of the State of California, without
giving effect to principles of conflicts of law.
(g) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
(h) TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(i) ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties regarding rights to
registration. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties hereto. This
Agreement shall supersede and cancel all prior agreements between the parties
hereto with regard to the subject matter hereof, including, but not limited to,
the Prior Voting Agreement.
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The parties hereto have executed this Voting Agreement as of the date
first written above.
"COMPANY"
AVANEX CORPORATION
By:
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Xxxxxx Xxxxxxxxxxxx, Chief Executive Officer
Address: 00000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
[Signature page to the Second Amended and Restated Voting Agreement]
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"FOUNDERS"
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Xxxxx X. Xxx
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Xxxxx Xxxx
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Xxxx Xxx-Xx Xxxxx
[Signature page to the Second Amended and Restated Voting Agreement]
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"PURCHASERS"
SEQUOIA CAPITAL FRANCHISE
FUND
SEQUOIA CAPITAL FRANCHISE
PARTNERS
SEQUOIA CAPITAL VII
a California Limited
Partnership
SEQUOIA TECHNOLOGY PARTNERS
VII
a California Limited
Partnership
SQP 1997
SEQUOIA 1997 LLC
SEQUOIA INTERNATIONAL PARTNERS
By: SC VII-A Management, LLC
A California Limited Liability
Company,
its General Partner
By:
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Managing Member
[Signature page to the Second Amended and Restated Voting Agreement]
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CROSSPOINT VENTURE PARTNERS 1997
By:
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Xxxx Xxxxxx
Partner
CROSSPOINT VENTURE PARTNERS LS 1999
By:
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Xxxx Xxxxxx
Partner
[Signature page to the Second Amended and Restated Voting Agreement]
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JAFCO CO., LTD.
By:
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JAFCO America Ventures, Inc.
Its Executive Partner
[Signature page to the Second Amended and Restated Voting Agreement]
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U.S. INFORMATION TECHNOLOGY NO. 2
INVESTMENT ENTERPRISE
PARTNERSHIP
By:
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JAFCO America Ventures, Inc.
Its Executive Partner
[Signature page to the Second Amended and Restated Voting Agreement]
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XXXXXXXX IX
A Delaware Limited Partnership
By:
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Xxxxxxxx IX Management, L.L.C.
Its General Partner
XXXXXXXX ASSOCIATES FUND IV
A Delaware Limited Partnership
By:
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Xxxxxxxx IX Management, L.L.C.
Its General Partner
[Signature page to the Second Amended and Restated Voting Agreement]
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