Exhibit 2.2
OPLINK COMMUNICATIONS, INC.
FORM OF VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
March 18, 2002, between Avanex Corporation, a Delaware corporation ("Avanex"),
and the undersigned stockholder (the "Stockholder") of Oplink Communications,
Inc., a Delaware corporation ("Oplink").
RECITALS
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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 Oplink 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 Avanex,
Stockholder (in his or her capacity as such) agrees to vote the Shares (as
defined below) and other such shares of capital stock of Oplink 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
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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 Oplink (including all
shares of Oplink Common Stock and all options, warrants and other rights to
acquire shares of Oplink Common Stock) owned by Stockholder as of the date of
this Agreement; and (ii) all additional securities of Oplink (including all
additional shares of Oplink Common Stock and all additional options, warrants
and other rights to acquire shares of Oplink 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.
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(a) Transferee of Shares to be Bound by this Agreement. Stockholder
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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
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A; provided, however, that Stockholder may transfer such Shares during the
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period from the date of this Agreement through the Expiration Date as would
otherwise be permitted under the requirements of subsection (e) of Rule 144
promulgated under the Securities Act of 1933, as amended, without causing the
transferee of such Shares to have executed a counterpart of this Agreement and a
proxy.
(b) Transfer of Voting Rights. Stockholder agrees that, during the
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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.
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(a) Agreement to Vote. Prior to the Expiration Date, at every meeting
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of the stockholders of Oplink 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 Oplink with respect to the following
matters, Stockholder (in his or her capacity as such) shall vote the Shares: (i)
in favor of approval and adoption of the Merger Agreement (as the same may be
amended from time to time in accordance with its terms); (ii) in favor of
approval of the Merger; (iii) in favor of each of the transactions contemplated
by the Merger Agreement; (iv) in favor of any matter that could reasonably be
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expected to facilitate the Merger; and (v) against any matter that could
reasonably be expected to prevent the Merger.
(b) No Other Agreement. Prior to the Expiration Date, Stockholder
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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,
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Stockholder agrees to deliver to Avanex a Proxy in the form attached hereto as
Exhibit A (the "Proxy"), which shall be irrevocable to the fullest extent
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permissible by law, with respect to the Shares.
5. Modification of Registration Rights. In the event that Stockholder
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holds Registrable Securities (as such term is defined in the Rights Agreement)
pursuant to that certain Third Amended and Restated Rights Agreement dated as of
February 7, 2000, by and among Oplink, Stockholder and certain other parties
thereto, as amended by the Amendment Agreement dated August 28, 2000 (the
"Oplink Rights Agreement"), Stockholder agrees as follows with respect to any
registration rights held by Stockholder which are set forth therein:
(a) Stockholder shall use its commercially reasonable efforts to
amend the Oplink Rights Agreement as follows:
(i) The registration rights set forth in Section 3.2 of the
Oplink Rights Agreement shall be terminated;
(ii) The registration rights set forth in Section 3.12 of the
Oplink Rights Agreement shall be modified such that they may not be implemented
until at least six (6) months following such date as the Merger (as defined in
the Merger Agreement) shall become effective in accordance with the terms and
provisions of the Merger Agreement;
(iii) The following provisions shall be implemented:
(A) the right of the Company, on two (2) occasions during
any twelve month period, to suspend use of the prospectus contained in a
Registration Statement for up to twenty (20) business days without explanation;
and
(B) the right of the Company to postpone the declaration
of effectiveness of a Registration Statement for up to twenty (20) business days
if Avanex's Board of Directors determines that there exists material nonpublic
information regarding Avanex which its Board of Directors determines in good
faith would be detrimental to Avanex to disclose in a Registration Statement;
(iv) Additional amendments and modifications as agreed to by the
required parties.
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(b) In the event that the Oplink Rights Agreement has not been
amended prior to the Closing Date of the Merger (as defined in the Merger
Agreement), then within five (5) days of the Closing Date of the Merger Avanex
shall enter into a rights agreement (the "Avanex Rights Agreement") with each
holder of Registrable Securities who (i) would own greater than one percent (1%)
of the outstanding stock of Avanex, after giving effect to the Merger and (ii)
has agreed to waive all rights under the Oplink Rights Agreement. The Avanex
Rights Agreement shall contain customary registration rights and shall conform
to the provisions of the proposed amendments to the Oplink Rights Agreement set
forth above.
6. Representations and Warranties of the Stockholder. Stockholder (i) is
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the beneficial owner of the shares of Oplink Common Stock indicated on the final
page of this Agreement, free and 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 Oplink other than the shares of
Oplink Common Stock and options and warrants to purchase shares of Common Stock
of Oplink 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.
7. Additional Documents. Stockholder (in his or her capacity as such)
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hereby covenants and agrees to execute and deliver any additional documents
necessary or desirable, in the reasonable opinion of Avanex, to carry out the
intent of this Agreement.
8. Termination. This Agreement, the Proxy and all obligations of
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Stockholder hereunder and thereunder shall terminate and shall have no further
force or effect as of the Expiration Date.
9. Miscellaneous.
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(a) Severability. If any term, provision, covenant or restriction of
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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
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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,
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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
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acknowledge that Avanex shall be irreparably harmed and that there shall be no
adequate remedy at law for a violation of
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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
Avanex upon any such violation, Avanex shall have the right to enforce such
covenants and agreements by specific performance, injunctive relief or by any
other means available to Avanex at law or in equity.
(e) Notices. All notices and other communications pursuant to this
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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 Avanex: Avanex Corporation
00000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
With copies to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
and to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
If to Stockholder: To the address for notice set forth on the
signature page hereof.
With copies to: Cooley Godward LLP
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Fax No.: (000) 000-0000
(f) Governing Law. This Agreement shall be governed by the laws of
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the State of Delaware, without reference to rules of conflicts of law.
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(g) Entire Agreement. This Agreement and the Proxy contain the entire
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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
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becomes (during the term hereof) a director or officer of Oplink, 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 Oplink in exercising its rights
under the Merger Agreement.
(i) Effect of Headings. The section headings are for convenience only
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and shall not affect the construction or interpretation of this Agreement.
(j) Counterparts. This Agreement may be executed in several
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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
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of this Agreement to the contrary, nothing in this Agreement shall obligate
Stockholder to exercise any option, warrant or other right to acquire any Oplink
Common Stock.
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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 Oplink.
AVANEX CORPORATION STOCKHOLDER
By: _________________________________ By: ___________________________________
Signature
Name: _______________________________ Name: _________________________________
Title: ______________________________ Title: ________________________________
_______________________________________
_______________________________________
Print Address
_______________________________________
Telephone
_______________________________________
Facsimile No.
Share beneficially owned:
___________shares of Oplink Common Stock
___________shares of Oplink Common Stock
issuable upon exercise of outstanding
options or warrants
[Signature Page to Oplink Voting Agreement]
Exhibit A
IRREVOCABLE PROXY
The undersigned stockholder of Oplink Communications, Inc., a Delaware
corporation ("Oplink"), hereby irrevocably (to the fullest extent permitted by
law) appoints Xxxx Xxxxx and Xxxxxx Xxxxxxxxxxxx, directors on the Board of
Directors of Avanex Corporation, a Delaware corporation ("Avanex"), 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 Oplink (including all shares of Oplink Common Stock
and all options, warrants and other rights to acquire shares of Oplink Common
Stock) owned by the undersigned as of the date of this proxy (the "Proxy") and
all additional securities of Oplink (including all additional shares of Oplink
Common Stock and all additional options, warrants and other rights to acquire
shares of Oplink 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 Oplink Voting
Agreement of even date herewith by and between Avanex and the undersigned
stockholder (the "Voting Agreement"), and is granted in consideration of Avanex
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"). 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
Oplink and in every written consent in lieu of such meeting (i) in favor of
approval and adoption of the Merger Agreement (as the same may be amended from
time to time in accordance with its terms), (ii) in favor of approval of the
Merger, (iii) in favor of each of the transactions contemplated by the Merger
Agreement, (iv) in favor of any matter that could reasonably be
expected to facilitate the Merger, and (v) 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 Oplink.
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:
_______ shares of Oplink Common Stock
_______ shares of Oplink Common Stock
issuable upon exercise of outstanding
options or warrants
[Signature Page to Irrevocable Proxy]
