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
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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 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.
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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.
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(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 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
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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 Oplink 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. Representations and Warranties of the Stockholder. Stockholder (i) is
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the beneficial owner of the shares of Avanex Common Stock indicated on the final
page of this Agreement, free and
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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)
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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
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Stockholder hereunder and thereunder shall terminate and shall have no further
force or effect as of the Expiration Date.
8. 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 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
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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 Oplink: Oplink Communications, Inc.
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0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
Fax No.: (000) 000-0000
With a copy to:
Cooley Godward LLP
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Xxxxxxx Xxxxxxxx Xxxxxx
Fax No.: (000) 000-0000
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
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the State of Delaware, without reference to rules of conflicts of law.
(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 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
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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 Avanex
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 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
Xxxxxxxxx Xxxxx and Xxxxx Xxxx, 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]
