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As filed with the Securities and Exchange Commission on August 3, 2000
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AVANEX CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 94-3285348
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(State of Incorporation) (I.R.S. Employer Identification Number)
40919 Encyclopedia Circle
Fremont, California 94538
(Address of Principal Executive Offices)
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Holographix Inc. 1996 Stock Option Plan, as amended
Holographix Inc. 2000 Stock Option Plan, as amended
(Full title of the plans)
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Walter Alessandrini
President and Chief Executive Officer
Avanex Corporation
40919 Encyclopedia Circle
Fremont, California 94538
(Name and address of agent for service)
(510) 897-4188
(Telephone number, including area code, of agent for service)
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Copy to:
Judith M. O'Brien
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 493-9300
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
AMOUNT PROPOSED MAXIMUM AGGREGATE
TITLE SECURITIES TO TO BE OFFERING PRICE OFFERING AMOUNT OF
BE REGISTERED REGISTERED PER SHARE PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $0.001 per share par
value: To be issued under the
Holographix Inc. 1996 Stock Option
Plan, as amended 93,399 $0.026 $ 2428.37 $ 0.64
Common Stock, $0.001 per share par
value: To be issued under the
Holographix Inc. 2000 Stock Option
Plan, as amended 615,656 $4.425 $2,724,277.80 $719.21
</TABLE>
(1) The registration fee for the shares of Common Stock to be issued
pursuant to outstanding options under the Holographix Inc. 1996 Stock
Option Plan, as amended, and the Holographix Inc. 2000 Stock Option
Plan, as amended, both employee stock option plans, was calculated in
accordance with Rule 457(h) of the Securities Act based upon the basis
of the weighted average price per share at which the options may be
exercised.
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AVANEX CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
1. The Company's Prospectus filed February 4, 2000 pursuant to Rule
424(b) of the Securities Act of 1933, as amended (the "Securities Act") relating
to the Company's initial public offering of its Common Stock.
2. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated January 26, 2000, filed
pursuant to Section 12 of the Securities Exchange Act of 1934 (the "Exchange
Act"), and any further amendment or report filed hereafter for the purpose of
updating such description.
3. All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since February 3, 2000.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act on or after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock offered hereby has been
passed upon for Avanex Corporation by Wilson Sonsini Goodrich & Rosati,
Professional Corporation, Palo Alto, California. As of the date of this
registration statement, WS Investment Company 98A, WS Investment Company 99A and
WS Investment Company 99B, each an investment partnership composed of certain
current and former members of and persons associated with Wilson Sonsini
Goodrich & Rosati, Professional Corporation, in addition to certain current
individual members of Wilson Sonsini Goodrich & Rosati, Professional Corporation
beneficially own shares of Avanex Corporation Common Stock. As of May 3, 2000,
such individuals and entities beneficially owned an aggregate of approximately
423,419 shares of Avanex Corporation Common Stock.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "[a] corporation may indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful."
With respect to derivative actions, Section 145(b) of the DGCL provides in
relevant part that "[a] corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor...[by reason of his service in one of the capacities
specified in the preceding sentence] against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper."
The Eighth Article of the Company's Amended and Restated Certificate of
Incorporation provides for the indemnification of directors to the fullest
extent permissible under Delaware law.
Article VI of the Company's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the Company if such
person acted in good faith and in a manner reasonably believed to be in and not
opposed to the best interest of the Company, and, with respect to any criminal
action or proceeding, the indemnified party had no reason to believe his or her
conduct was unlawful.
The Company has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
the Company's Bylaws, and intends to enter into indemnification agreements with
any new directors and executive officers in the future.
The Company carries officer and director liability insurance with
respect to certain matters, including matters arising under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
4.1 Holographix Inc. 1996 Stock Option Plan, as amended
4.2 Holographix Inc. 2000 Stock Option Plan, as amended
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Independent Auditors
23.2 Consent of counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
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ITEM 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
D. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense
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of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto, duly
authorized, in the City of Fremont, State of California, on August 3, 2000.
AVANEX CORPORATION
By: /s/ Walter Alessandrini
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Walter Alessandrini, President and
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Walter Alessandrini and Brian Kinard, and
each of them, their true and lawful attorneys and agents, with full power of
substitution, each with power to act alone, to sign and execute on behalf of the
undersigned any amendment or amendments to this Registration Statement on Form
S-8 and to perform any acts necessary in order to file such amendments, and each
of the undersigned does hereby ratify and confirm all that said attorneys and
agents, or their or his substitutes, shall do or cause to be done by virtue
hereof. Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed on August 3, 2000 by the following persons in the
capacities indicated.
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SIGNATURE TITLE
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<S> <C>
/s/ Walter Alessandrini Director, President and Chief Executive Officer
------------------------------------- (Principal Executive Officer)
Walter Alessandrini
/s/ Jessy Chao Vice President and Chief Financial Officer
------------------------------------- (Principal Financial and Accounting Officer)
Jessy Chao
/s/ Xiaofan Cao Senior Vice President, Product Development and Director
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Xiaofan Cao
/s/ Todd Brooks Director
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Todd Brooks
/s/ Michael Goguen Director
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Michael Goguen
/s/ Seth Neiman Director
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Seth Neiman
/s/ Vint Cerf Director
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Vint Cerf
/s/ Joel Smith Director
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Joel Smith
/s/ Federico Faggin Director
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Federico Faggin
/s/ Gregory Reyes Director
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Gregory Reyes, Jr.
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
4.1 Holographix Inc. 1996 Stock Option Plan, as amended
4.2 Holographix Inc. 2000 Stock Option Plan, as amended
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Independent Auditors
23.2 Consent of counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
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