UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
Avanex Corporation
-------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.001 per share
-------------------------------------------------------------------------------
(Title of Class of Securities)
05348W 10 9
-------------------------------------------------------------------------------
(CUSIP Number)
Denise A. Hauselt, Esq.
Deborah McLean Quinn, Esq. Secretary and Assistant General Counsel
Nixon Peabody LLP Corning Incorporated
Clinton Square Suite 1300 One Riverfront Plaza
Rochester, New York 14604 Corning, New York 14830-0001
Telephone: 716-263-1307 Telephone: 607-974-9000
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
December 19, 2003
-------------------------------------------------------------------------------
(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 ss.ss. 240.13d-1(e), 240.13d01(f) or 240.13d-1(g), check the
following box |_|.
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
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 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
R737202.2737202.3
R737202.2737202.3
SCHEDULE 13D
CUSIP No. 05348W109
-------------------------------------------------------------------------------
--------- ---------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
Corning Incorporated
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
16-0393470
--------- ---------------------------------------------------------------------
--------- ---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) X
--------- ---------------------------------------------------------------------
--------- ---------------------------------------------------------------------
3 SEC USE ONLY
--------- ---------------------------------------------------------------------
--------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC, 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
New York
--------- ---------------------------------------------------------------------
--------------------------------- -------- ------------------------------------
NUMBER OF 7 SOLE VOTING POWER
19,474,542 shares
SHARES -------- ------------------------------------
-------- ------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
0
OWNED BY -------- ------------------------------------
-------- ------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
19,474,542 shares
REPORTING -------- ------------------------------------
-------- ------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
-------- ------------------------------------
-------- ------------------------------------
--------- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
--------- ---------------------------------------------------------------------
--------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
--------- ---------------------------------------------------------------------
--------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14%
--------- ---------------------------------------------------------------------
--------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
--------- ---------------------------------------------------------------------
This Amendment No. 2 to Schedule 13D is filed by Corning Incorporated
("Corning"), a New York corporation, in connection with shares of the Common
Stock, par value $.001 per share, of Avanex Corporation ("Avanex" or "Issuer"),
a Delaware corporation with offices at 40919 Encyclopedia Circle, Fremont,
California 94538.
Item 1. Security and Issuer.
This Amendment No. 2 to Schedule 13D relates to shares of the Common Stock,
par value $.001 per share ("Common Stock") of Avanex Corporation (the "Issuer"
or "Avanex"). The Issuer's principal executive office is located at 40919
Encyclopedia Circle, Fremont, California 94538. Based upon Avanex's Form 10-Q
Quarterly Report for period ended September 30, 2003, Avanex had 128,083,657
shares of Avanex Common Stock were issued and outstanding on October 28, 2003.
In addition, on November 21, 2003, Avanex filed a Registration Statement on Form
S-3 (File No. 333-110678) registering for resale an additional 6,915,555 shares
of Avanex Common Stock issued in a private placement in November 2003. Certain
capitalized terms used in this Amendment No. 2 to Schedule 13D and not defined
are used with the meaning ascribed thereto in Amendment No. 1 to Schedule 13D
filed by Corning on July 31, 2003 ("Amendment No. 1"). This Amendment No. 2
shows the 21,474,507 shares of Avanex Common Stock issued to Corning on the
closing date under the Purchase Agreement (as described below) and also reflects
the additional 35 shares of Avanex Common Stock issued to Corning as of the
closing date as a result of adjustments in the number of outstanding shares of
Avanex Common Stock as of the closing date under the Purchase Agreement.
Finally, this Amendment No. 2 reflects the gift of 2,000,000 shares of Avanex
Common Stock by Corning to The Corning Museum of Glass described below.
Item 2. Identity and Background.
Corning is organized as a corporation under the laws of the State of New
York, and its business address is One Riverfront Plaza, Corning, New York 14831.
Effective December 19, 2003, Corning transferred two million shares of Avanex
Common Stock as a gift to The Corning Museum of Glass (the "Museum"). The Museum
is a New York not-for-profit corporation formed in 1951 pursuant to the New York
State Education Law and an organization exempt from federal income taxes under
Section 503(c)(3) of the Internal Revenue Code of 1986, as amended. The Museum's
business address is One Museum Way, Corning, New York 14830.
Item 5. Interest in Securities of the Issuer
After the gift by Corning to the Museum described in Item 2 above, Corning
owns 19,474,542 shares of Avanex Common Stock, or 14% of the outstanding. While
the officers and certain of the directors of the Museum are officers and/or
directors of Corning, Corning disclaims beneficial ownership of the two million
shares of Avanex Common Stock now held by the Museum. Those shares were acquired
by the Museum subject to the Stockholders' Agreement.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
Other than the Purchase Agreement and the Stockholders' Agreement, the terms of
which are described in Amendment No. 1 and copies of which were filed therewith
and which are incorporated herein by reference, and the Agreement Relating to
Gift of Shares of the Common Stock of Avanex Corporation, dated December 16,
2003, between Corning and The Corning Museum of Glass,
consented to by Avanex Corporation (a copy of which is filed herewith and
incorporated by reference herein), and the transactions contemplated thereby,
there are no contracts, arrangements, understandings or relationships among
Corning or the Museum and its officers and directors with respect to the shares
of Avanex Common Stock or, to the best knowledge of Corning, among any of
Corning's executive officers and directors or the Museum's officers and
directors or, to their knowledge, between any of Corning's executive officers
and directors or the Museum's directors and officers and any other person, with
respect to the shares of Avanex Common Stock.
Item 7. Material to Be Filed as Exhibits. The following documents filed with
Amendment No. 1 are incorporated herein as exhibits to this Amendment No. 2
to Schedule 13D:
99.1 Stock Acquisition and Asset Purchase Agreement, dated May 12, 2003,
between Avanex, Corning and Alcatel which is incorporated by reference to
Exhibit 2.1 to the Avanex Corporation Form 8-K Current Report for May 12, 2003,
Commission File No. 000-29175.
99.2 Stockholders' Agreement, dated July 31, 2003, among Avanex and Corning
and Alcatel.
The following document is also filed herein:
99.3 Agreement Relating to Gift of Shares of the Common Stock of Avanex
Corporation, dated December 16, 2003, between Corning and The Corning Museum of
Glass, consented to by Avanex Corporation.
Signature
After reasonable inquiry and to the best of the undersigned's knowledge and
belief I certify that the information set forth in this statement is true,
complete and correct.
Dated: December 29, 2003 Corning Incorporated
By: /s/ William D. Eggers
Print Name: William D. Eggers
Title: Senior Vice President & General Counsel
EXHIBIT 99.3
Agreement Relating to Gift of Shares of
Common Stock of Avanex Corporation
-----------------------------------
This Agreement is entered into by and between Corning Incorporated, a
business corporation organized and subsisting under the laws of the State of New
York (hereinafter "Corning"), and The Corning Museum of Glass, a not-for-profit
corporation organized and subsisting under the laws of the State of New York
(hereinafter, "CMoG").
WHEREAS, Corning has periodically made charitable contributions to CMoG to
assist CMoG in financing its charitable, social and education pursuits; and
WHEREAS, Corning is willing to make a charitable contribution in the form
of Two Million (2,000,000) shares of common stock issued by Avanex Corporation,
a Delaware corporation (hereinafter, "Avanex"), to Corning in connection with
the acquisition by Avanex of certain assets formerly associated with Corning's
Photonic Technologies business;
WHEREAS, at the time Corning acquired the shares of common stock of Avanex,
Corning entered into a Stockholders Agreement (hereainafter, the "Stockholders
Agreement") (a copy of which is attached hereto for reference purposes) with
Avanex pursuant to which Corning agreed that it would not dispose, even by gift,
any shares of common stock of Avanex unless the proposed disposition qualified
under certain exemptions noted in the Stockholders Agreement, one which
contemplated dispositions to a person or group approved in advance by Avanex's
board of directors;
WHEREAS, Corning has approached Avanex's board of directors and solicited
its consent to a proposal by which Corning would transfer by gift to CMoG a
portion of the shares of common stock of Avanex issued to Corning in connection
with the above-referenced transaction, provided any such shares so transferred
to CMoG would continue to be subject to and governed by the same obligations and
other restrictions on stock transfer or sale that applies to the shares of
common stock of Avanex owned by Corning; and Avanex's board of directors has
approved Corning's proposal; and
WHEREAS, CMoG is willing to accept such shares of common stock of Avanex
that Corning intends to transfer to it by gift subject to the same obligations
and other restrictions on stock transfer or sale that applies to the shares of
common stock of Avanex owned by Corning; and
WHEREAS, by this Agreement, Corning and CMoG intend to clearly set forth
their understanding and agreement as to the shares of common stock of Avanex
transferred by Corning to CMoG by gift.
NOW, THEREFORE, in consideration of the foregoing and the covenants
hereinafter contained, Corning and CMoG agree as follows:
1. Corning hereby transfer and conveys by gift to CMoG, and CMoG hereby
accepts from Corning by way of quitclaim, Corning's right, title and
interest up to 2,000,000 shares of common stock of Avanex (hereinafter, the
"Shares") owned by Corning. The exact number will be determined by Corning
in its sole discretion.
2. Corning and CMoG will work cooperatively with Avanex and its designated
transfer agent to properly record the transfer of the Shares from Corning
to CMoG, once the exact number is determined by Corning.
3. CMoG acknowledges that there are certain obligations and restrictions
associated with the ownership of the Shares as imposed by the Stockholders
Agreement and applicable securities laws to which CMoG is willing to, and
hereby agrees to be, bound. Without limitation, such obligations and
restrictions include the following:
(a) Until July 31, 2006, CMoG must not (i) attempt to acquire additional
securities issued by Avanex other than incidental indirect
investments, if any, made by employee benefit plan-relates trusts
sponsored by CMoG; (ii) propose an Avanex Transaction Proposal (as
that term is defined in Section 2.1(b) of the Stockholders Agreement);
(iii) publicly seek to exercise control or influence over the
management of Avanex; (iv) solicit proxies in opposition of a
recommendation or proposal of Avanex's management; (v) participate in
a "group" with unaffiliated persons for the purpose of acquiring,
holding or voting Avanex securities.
(b) Until July 31, 2006, CMoG will not dispose of any of Shares to: (i)
any person or group that has (i)(A) announced or commenced an
unsolicited offer for any voting securities issued by Avanex, (B)
publicly initiated, proposed or otherwise solicited Avanex
stockholders for the approval of one or more stockholder proposals
with respect to Avanex, or (C) publicly made, or in any way
participated in, any solicitation of proxies (or written consents) in
opposition to the recommendation or proposal of the board of directors
of Avanex; or (ii) any person or group known to CMoG at the time of
the disposition to be accumulating stock on behalf of or acting in
concert with any person or group contemplating any of the foregoing.
(c) For so long as Corning and CMoG together own 5% or more of the
outstanding voting securities of Avanex, CMoG will (i) vote the Shares
on all matters to be voted on by the holders of Avanex securities and
will do so in the manner recommended by the majority of Avanex's board
of directors; and (ii) be present, in person or by proxy, at all
meetings of the stockholders of Avanex (or written consents solicited
in lieu thereof) so that the Shares may be counted for purposes of
determining the presence of a quorum at such meeting. The foregoing
also applies to any written consents that may be solicited from the
securities holders of Avanex by Avanex's board of directors.
(d) Until July 28, 2004, CMoG will not dispose (by sale, gift, or
otherwise) all or any portion of the Shares, subject to the following
exceptions: (i) to persons approved in writing in advance by Avanex's
board of directors; (ii) to an affiliate provided the affiliate agrees
in writing (in form reasonably acceptable to Avanex) to hold the
Shares subject to all the provisions of the Stockholders Agreement,
and agrees to transfer the Shares back to CMoG if it ceases to be an
affiliate of CMoG; and (iii) in response to a tender offer or exchange
offer made by Avanex or recommended by Avanex's board of directors, or
pursuant to a merger, consolidation or other business combination
involving Avanex approved by its board of directors.
(e) The Shares have not been registered and therefore any proposed sale
until they are registered must also be compliant with the provisions
of Rule 144 of the Securities Exchange Act of 1934.
(f) The certificate or certificates representing the Shares will have the
following legends placed thereon:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER AS TO THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER, INCLUDING ANY SALE, PLEDGE OR OTHER
HYPOTHECATION, WHICH RESTRICTIONS ARE SET FORTH IN A
STOCKHOLDERS' AGREEMENT BETWEEN THE ISSUER, CORNING INCORPORATED
AND ALCATEL, A COPY OF WHICH MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE
TO THE SECRETARY OF THE ISSUER AT THE ISSUER'S PRINCIPAL
EXECUTIVE OFFICES.
(g) Prior to any proposed transfer of the Shares, CMoG shall give written
notice to Avanex of its intention to effect such transfer except for a
proposed transfer of Shares to be made pursuant to a registration
statement. The notice to Avanex shall describe the manner and
circumstances of the proposed transfer in sufficient detail, and shall
be accompanied by either: (i) a written opinion of legal counsel
addressed to Avanex and reasonably satisfactory to Avanex, to the
effect that the proposed transfer will not require registration of the
Shares under the Securities Act of 1933; or (ii) a "no action" letter
from the Securities Exchange Commission (SEC) and a copy of the
request letter by CMoG (together with all supplements or amendments
thereto), which shall have been provided to Avanex at or prior to the
time of first delivery to the SEC's staff, to the effect that the
transfer of the Shares without registration will not result in a
recommendation by the staff of the SEC that action be taken with
respect thereto.
4. Pursuant to Section 4.1(a) of the Stockholder Agreement, Avanex has
covenanted to cause a portion of the shares of common stock issued by it to
Corning (which would include the Shares) to be registered in order to
permit Corning to sell such shares subject to the transfer restrictions
noted in the Stockholders Agreement. Corning agrees that it shall, and does
hereby, assign its rights under Section 4.1(a) of the Stockholders
Agreement to enable CMoG to register the Shares so as to permit CMoG, if it
so desires, to sell the Shares as soon as practicable following the Initial
Lock-Up Period (as those terms are defined in the Stockholders Agreement).
Accordingly, Corning and CMoG hereby notify Avanex, and Avanex hereby
confirms receipt of such notice, that the Shares are to be registered for
sale in the Initial Registration Statement. As a result, the Initial
Registration Statement should cause the following number of share owned by
Corning and CMoG to become registered for sale: CMoG (2,000,000 shares) and
Corning (147,454 shares). Supplements or amendments that are made to the
Initial Registration Statement for purposes of permitting sales in the
Second Quarter, Third Quarter, and Fourth Quarter (as those terms are
defined in the Stockholders Agreement) will register shares of Avanex
common stock owned by Corning.
5. This letter agreement represents the entire agreement between the parties
with respect to its subject matter and supersedes all prior or
contemporaneous negotiations, discussions, commitments or understandings
with respect thereto.
If the foregoing is agreeable to CMoG, please so indicate by signing in the
space provided below.
Very truly yours,
/S/ Mark S. Rogus
Mark S. Rogus,
Vice President & Treasurer
Dated: December 16, 2003
Acknowledged and Agreed:
The Corning Museum of Glass
By: /S/ James B. Flaws
--------------------
Name: James B. Flaws
Title: Treasurer
Date: December 16, 2003
Pursuant to Section 8.10 of the Stockholders Agreement, Avanex agrees to the
proposed transfer by gift of the Shares by Corning to CMoG subject to the terms
of this Agreement.
Avanex Corporation
By: /S/ Anthony Florence
----------------------
Name: Anthony Florence
Title: Chief Governance Officer
Dated: December 16, 2003