-----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, VtG4Z72QgXhGfHre0Hk4YBt+ge9VnPqmMH9zJu+C7dzeV5motsVg3iWvuLlrQllQ QFd1pY6H1UR7qnfsWb0yXg== 0001012870-02-001518.txt : 20020415 0001012870-02-001518.hdr.sgml : 20020415 ACCESSION NUMBER: 0001012870-02-001518 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20020328 GROUP MEMBERS: INVESTAR BURGEON VENTURE CAPITAL, INC. SUBJECT COMPANY: 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 SEC ACT: 1934 Act SEC FILE NUMBER: 005-60061 FILM NUMBER: 02590806 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 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CHANG HERBERT CENTRAL INDEX KEY: 0001134178 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 3600 PRUNERIDE AVE STREET 2: STE 300 CITY: SANTA CLARA STATE: CA ZIP: 95051 BUSINESS PHONE: 4082222500 MAIL ADDRESS: STREET 1: 3600 PRUNERIDGE AVE STREET 2: STE 300 CITY: SANTA CLARA STATE: CA ZIP: 95051 SC 13D 1 dsc13d.txt SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 Oplink Communications, Inc. (Name of Issuer) Common Stock, $0.001 par value per share (Title of Class of Securities) 68375Q106 (CUSIP Number) Herbert Chang Room 1201, 12F, 333 Keelung Road Taipei, Taiwan (8862) 2757-9585 (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 [X]. 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. CUSIP No. 68375Q106 Page 2 of 12 1 NAME OF REPORTING PERSON Herbert Chang S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 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 Taiwan NUMBER OF 7 SOLE VOTING POWER SHARES 0 BENEFICIALLY OWNED BY 8 SHARED VOTING POWER EACH 22,513,808/1/ REPORTING PERSON 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 22,513,808/1/ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 22,513,808/1/ shares 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] _________________________ /1/ Mr. Chang beneficially owns 22,513,808 issued and outstanding shares of Oplink Common Stock. This amount includes (i) 14,890,448 shares held by InveStar Burgeon Venture Capital, Inc.; (ii) 3,648,896 shares held by InveStar Excelsus Venture Capital (Int'l), Inc., LDC; (iii) 2,574,464 shares held by Forefront Venture Partners, L.P.; and (iv) 1,400,000 shares held by InveStar Dayspring Venture Capital, Inc. Based on the 163,927,229 shares of Oplink Common Stock outstanding as of March 18, 2002, the number of shares of Oplink Common Stock indicated represents approximately 13.7% of the outstanding Oplink Common Stock, excluding options to purchase an aggregate of 488,000 shares of Oplink Common Stock held by Mr. Chang, which options are exercisable within 60 days of March 18, 2002. All 22,513,808 shares of Oplink Common Stock are subject to a Voting Agreement and Irrevocable Proxy, as described in Items 3 and 4. CUSIP No. 68375Q106 Page 3 of 12 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13.7%/1/ (Based on 163,927,229 shares of Oplink Common Stock outstanding as of March 18, 2002.) 14 TYPE OF REPORTING PERSON IN CUSIP No. 68375Q106 Page 4 of 12 1 NAME OF REPORTING PERSON InveStar Burgeon Venture Capital, Inc. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 6 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands NUMBER OF 7 SOLE VOTING POWER SHARES 0 BENEFICIALLY OWNED BY 8 SHARED VOTING POWER EACH 14,890,448 REPORTING PERSON 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 14,890,448 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 14,890,448 shares 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.1% (Based on 163,927,229 shares of Oplink Common Stock outstanding as of March 18, 2002.) 14 TYPE OF REPORTING PERSON CO CUSIP No. 68375Q106 Page 5 of 12 ITEM 1. SECURITY AND ISSUER This statement on Schedule 13D relates to the common stock, $0.001 par value per share (the "Oplink Common Stock"), of Oplink Communications, Inc., a Delaware corporation ("Oplink"). The principal executive offices of Oplink are located at 3469 North First Street, San Jose, California 95134. ITEM 2. IDENTITY AND BACKGROUND (a) The name of the persons filing this statement are Herbert Chang and InveStar Burgeon Venture Capital, Inc. (b) The business address of Mr. Chang and InveStar Burgeon Venture Capital, Inc. is Room 1201, 12F, 333 Keelung Road, Taipei, Taiwan. (c) Mr. Chang is President of InveStar Capital, Inc. and is a director of Oplink. The principal business address of InveStar Capital, Inc. is Room 1201, 12F, 333 Keelung Road, Taipei, Taiwan. (d) During the past five years, neither Mr. Chang nor InveStar Burgeon Venture Capital, Inc. has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the past five years, neither Mr. Chang nor InveStar Burgeon Venture Capital, Inc. has been 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) Mr. Chang is a citizen of Taiwan and InveStar Burgeon Venture Capital, Inc. is a corporation organized in the Cayman Islands. 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 Oplink have entered into Voting Agreements and Irrevocable Proxies with Avanex as described in Item 4 and Item 5 of this Schedule 13D. Avanex did not pay additional consideration to any such stockholder in connection with the execution and delivery of the Voting Agreements and Irrevocable Proxies. Mr. Chang's and InveStar Burgeon Venture Capital, Inc.'s ownership of Oplink Common Stock were previously reported on a Schedule 13G filed with the Commission on February 14, 2001 and an amendment thereto filed on February 13, 2002. Mr. Chang and InveStar Burgeon Venture Capital, Inc. are filing this Schedule 13D because they recently entered into a Voting Agreement and Irrevocable Proxy designed to facilitate the consummation of a Merger described below. All 22,513,808 shares of Oplink Common Stock beneficially owned by Mr. Chang are subject to a Voting Agreement and Irrevocable Proxy, as described in Items 4 and 5. This amount includes (i) 14,890,448 shares held by InveStar Burgeon Venture Capital, Inc.; (ii) 3,648,896 shares held by InveStar Excelsus Venture Capital (Int'l), Inc., LDC; (iii) 2,574,464 shares held by Forefront Venture Partners, L.P.; and (iv) 1,400,000 shares held by InveStar Dayspring Venture Capital, Inc. Based on the 163,927,229 shares of Oplink Common Stock outstanding as of March 18, 2002, the number of shares of Oplink Common Stock indicated represents approximately 13.7% of the outstanding Oplink Common Stock, excluding options to purchase an aggregate of 488,000 shares of Oplink Common Stock held by Mr. Chang, which options are exercisable within 60 days of March 18, 2002. All 14,890,448 shares of Oplink Common Stock beneficially owned by InveStar Burgeon Venture Capital, Inc. are subject to a Voting Agreement and Irrevocable Proxy, as described in Items 4 and 5. Based on the 163,927,229 shares of Oplink Common Stock outstanding as of March 18, 2002, the number of shares of Oplink Common Stock indicated represents approximately 9.1% of the outstanding Oplink Common Stock. ITEM 4. PURPOSE OF TRANSACTION CUSIP No. 68375Q106 Page 6 of 12 (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, Mr. Chang and InveStar Burgeon Venture Capital, Inc. each entered into a Voting Agreement and Irrevocable Proxy with Avanex. References to, and descriptions of, the Merger, the Reorganization 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 and the Voting Agreement, included as Exhibits 2.1 and 2.2, respectively, to this Schedule 13D, which are incorporated herein in their entirety where such references and descriptions appear. (c) Not applicable. (d) If the Merger is consummated, Oplink will become a wholly-owned subsidiary of Avanex, and Avanex will subsequently determine the size and membership of the board of directors of Oplink and the officers of Oplink. (e) The Reorganization Agreement prohibits Oplink, without the prior written consent of Avanex, 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 Oplink 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, 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 Oplink 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 Oplink to engage in a transaction that would entail a change of control of Oplink during the pendency of the Reorganization Agreement. Upon consummation of the Merger, the Certificate of Incorporation of Oplink will be in a form satisfactory to Avanex. (h) Upon consummation of the Merger, the Oplink Common Stock will cease to be quoted on any quotation system or exchange. (i) Upon consummation of the Merger, the Oplink Common Stock will become eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended. (j) Other than as described above, neither Mr. Chang nor InveStar Burgeon Venture Capital, Inc. currently has any plan or proposal which relates to, or may result in, any of the matters listed in Items 4(a) - (i) of Schedule 13D (although Mr. Chang and InveStar Burgeon Venture Capital, Inc. each reserves the right to develop such plans). CUSIP No. 68375Q106 Page 7 of 12 ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a)-(b) As a result of the Voting Agreement and the Irrevocable Proxy relating to the shares of Oplink Common Stock beneficially owned by Mr. Chang and InveStar Burgeon Venture Capital, Inc., Avanex has shared power to vote shares of Oplink Common Stock beneficially owned by Mr. Chang and InveStar Burgeon Venture Capital, Inc. for the limited purpose of voting (i) in favor of approval and adoption of the Reorganization 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 Reorganization 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. Mr. Chang and InveStar Burgeon Venture Capital, Inc. have retained the right to vote their shares of Oplink Common Stock on all matters other than those identified in the Voting Agreement and Irrevocable Proxy. The Voting Agreement also prohibits Mr. Chang and InveStar Burgeon Venture Capital, Inc. from selling or otherwise disposing of shares of Oplink Common Stock for certain time periods, except in certain instances. The Voting Agreement and Irrevocable Proxy terminates upon the first to occur of the closing of the Merger or the termination of the Reorganization Agreement. The 22,513,808 issued and outstanding shares of Oplink Common Stock, all of which are covered by the Voting Agreements and Irrevocable Proxies executed by Mr. Chang and InveStar Burgeon Venture Capital, Inc., constitute approximately 13.7% of the issued and outstanding shares of Oplink Common Stock as of March 15, 2002 (as represented by Oplink in the Reorganization Agreement). Any additional shares of Oplink Common Stock acquired by Mr. Chang or InveStar Burgeon Venture Capital, Inc.after the date of this Schedule 13D and on or before the record date for persons entitled to notice of, and to vote at, a meeting of Oplink's stockholders at which the Reorganization Agreement and the Merger will be voted upon (whether such shares are acquired upon the exercise of stock options or otherwise), must also be voted in accordance with the terms of the Voting Agreement and Irrevocable Proxy. The description contained in this Item 5 of the transactions contemplated by the Voting Agreement and Irrevocable Proxy is qualified in its entirety by reference to the full text of the Voting Agreement and Irrevocable Proxy, a copy of which is attached to this Schedule 13D as Exhibit 2.2. Schedule I to this Schedule 13D sets forth the names, addresses and employers of the executive officers and directors of Avanex. To the knowledge of Mr. Chang and InveStar Burgeon Venture Capital, Inc., no shares of Oplink Common Stock are beneficially owned by Avanex or any person listed on Schedule I to this Schedule 13D. During the past five years, to the knowledge of Mr. Chang and InveStar Burgeon Venture Capital, Inc., neither Avanex nor any person listed on Schedule I to this Schedule 13D has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). During the past five years, to the knowledge of Mr. Chang and InveStar Burgeon Venture Capital, Inc., neither Avanex nor any person listed on Schedule I to this Schedule 13D has been 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 the knowledge of Mr. Chang and InveStar Burgeon Venture Capital, Inc., all persons named in Schedule I to this Schedule 13D are citizens of the United States with the exception of Giovanni Barbarossa, who is a citizen of Italy. (c) Neither Mr. Chang nor InveStar Burgeon Venture Capital, Inc., and to the knowledge of Mr. Chang and InveStar Burgeon Venture Capital, Inc., no 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. CUSIP No. 68375Q106 Page 8 of 12 ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Other than as described in Item 4 above, neither Mr. Chang nor InveStar Burgeon Venture Capital, Inc. is a party to any contracts, arrangements, understandings or relationships (legal or otherwise) with respect to any securities of Oplink, 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 Communications, Inc. on March 22, 2002.) 2.2 Form of Oplink Voting Agreement and Irrevocable Proxy, dated as of March 18, 2002, a substantially similar form of which was executed by Herbert Chang and InveStar Burgeon Venture Capital, Inc. in favor of Avanex Corporation and certain related persons. CUSIP No. 68375Q106 Page 9 of 12 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. Date: March 28, 2002 /s/ Herbert Chang --------------------------------- Herbert Chang CUSIP No. 68375Q106 Page 10 of 12 Joint Filing Statement Pursuant to Rule 13d-1(k)(1), we, the undersigned, hereby express our agreement that the attached Schedule 13D is filed on behalf of each of us. Date: March 28, 2002 Herbert Chang By: /s/ Herbert Chang ----------------------------------- Herbert Chang InveStar Burgeon Venture Capital, Inc. By: /s/ Herbert Chang ----------------------------------- Herbert Chang, Secretary SCHEDULE I EXECUTIVE OFFICERS AND DIRECTORS OF AVANEX
PRINCIPAL OCCUPATION NAME AND ADDRESS NAME OR EMPLOYMENT OF EMPLOYER - ---- ------------- ----------- Paul Engle (D) 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 (D) Chairman Avanex Corporation 40919 Encyclopedia Circle Fremont, California 94538 Todd Brooks (D) General Partner Mayfield Fund 2800 Sand Hill Road Menlo Park, California 94025 Vinton G. Cerf (D) Senior Vice President, c/o Avanex Corporation Internet Architecture and Technology 40919 Encyclopedia Circle MCI Worldcom Fremont, California 94538 Federico Faggin (D) President and Chief Executive Officer Synaptics 2381 Bering Drive San Jose, California 95131 Joel Smith (D) Dean, University of South Carolina The Darla Moore School of Business Moore School of Business 1705 College Street Columbia, South Carolina 29208 (D) = Director of Avanex
EXHIBITS EXHIBIT NO. DESCRIPTION - ----------------------- 2.2 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 Communications, Inc. on March 22, 2002.) 2.2 Form of Oplink Voting Agreement and Irrevocable Proxy, dated as of March 18, 2002, a substantially similar form of which was executed by Herbert Chang and InveStar Burgeon Venture Capital, Inc. in favor of Avanex Corporation and certain related persons. EX-2.2 3 dex22.txt FORM OF OPLINK VOTING AGREEMENT 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 -------- 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 ------------------- 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. ------------------ (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; provided, however, that Stockholder may transfer such Shares during the - - 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 ------------------------- 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 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 -2- 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 ------------------ 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 Avanex 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. Modification of Registration Rights. In the event that Stockholder ----------------------------------- 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. -3- (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 ------------------------------------------------- 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) -------------------- 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 ----------- Stockholder hereunder and thereunder shall terminate and shall have no further force or effect as of the Expiration Date. 9. 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 Avanex shall be irreparably harmed and that there shall be no adequate remedy at law for a violation of -4- 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 ------- 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 40919 Encyclopedia Circle Fremont, CA 94538 Attention: Chief Executive Officer Facsimile: (510) 897-4189 With copies to: Wilson Sonsini Goodrich & Rosati, Professional Corporation 650 Page Mill Road Palo Alto, California 94304-1050 Facsimile: (650) 496-4367 Attention: Mark A. Bertelsen, Esq. and to: Wilson Sonsini Goodrich & Rosati Professional Corporation Spear Street Tower One Market San Francisco, California 94105 Facsimile: (415) 947-2099 Attention: Steve L. Camahort, Esq. If to Stockholder: To the address for notice set forth on the signature page hereof. With copies to: Cooley Godward LLP 3000 El Camino Real Palo Alto, CA 94306 Attention: Eric Jensen Fax No.: (650) 849-7400 (f) Governing Law. This Agreement shall be governed by the laws of ------------- the State of Delaware, without reference to rules of conflicts of law. -5- (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 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 ------------------ 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 Oplink Common Stock. -6- 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 Paul Engle and Walter Alessandrini, 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] -----END PRIVACY-ENHANCED MESSAGE-----