CORNING INC /NY — Major Shareholding Notification 2003

Jul 31, 2003

SC 13D/A 1 a03-1741_1sc13da.htm SC 13D/A

SEC 1746 (11-02) Potential persons who are to respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number.

UNITED STATES	OMB APPROVAL
SECURITIES AND EXCHANGE COMMISSION	OMB Number: 3235-0145
Washington,
D.C. 20549	Expires: December 31, 2005
SCHEDULE
13D (Amendment
No. 1)	Estimated average burden hours per response. . 11

Under the Securities Exchange Act of 1934 (Amendment No. 1)*

*Avanex Corporation*

(Name of Issuer)

*Common Stock, par value $.001 per share*

(Title of Class of Securities)

*05348W 10 9*

(CUSIP Number)

*Deborah McLean Quinn, Esq. Nixon Peabody LLP Clinton Square Suite 1300 Rochester, New York 14604 Telephone: 716-263-1307*

*Denise A. Hauselt, Esq. Secretary and Assistant General Counsel Corning Incorporated One Riverfront Plaza Corning, New York 14830-0001 Telephone: 607-974-9000*

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

*July 31, 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 §§240.13d-1(e), 240.13d-1(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 §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).

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| CUSIP
No. 05348W109 — 1. | Names of
Reporting Persons. I.R.S. Identification Nos. of above persons (entities
only). Corning Incorporated 16-0393470 | |
| --- | --- | --- |
| 2. | Check the
Appropriate Box if a Member of a Group (See Instructions) | |
| | (a) | [ ] |
| | (b) | [ X ] |
| 3. | SEC Use
Only | |
| 4. | Source of
Funds (See Instructions) WC, OO | |
| 5. | Check 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 Shares Beneficially Owned by Each Reporting Person With | 7. | Sole
Voting Power 21,474,507 |
| | 8. | Shared
Voting Power 0 |
| | 9. | Sole
Dispositive Power 21,474,507 |
| | 10. | Shared Dispositive Power 0 |
| 11. | Aggregate
Amount Beneficially Owned by Each Reporting Person 21,474,507 | |
| 12. | Check if
the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [X]* | |
| 13. | Percent
of Class Represented by Amount in Row (11) 17% | |
| 14. | Type of
Reporting Person (See Instructions) CO | |

• A small number of additional shares may be issued by Avanex to Corning to adjust for any options to purchase shares of Avanex common stock which may have been exercised between July 28, 2003, and July 31, 2003.

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| This
Amendment No. 1 to Schedule 13D is filed by Corning Incorporated (“Corning”),
a New York corporation, amending that certain Schedule 13D filed by Corning
with the Securities and Exchange Commission on May 22, 2003, in connection
with (i) the termination in accordance with their terms of the Voting
Agreement and Irrevocable Proxies, (ii)
closing of certain transactions contemplated by a Share Acquisition
and Asset Purchase Agreement (the “Purchase Agreement”), dated as of May 12,
2003, between Avanex Corporation (“Avanex” or “Issuer”), a Delaware
corporation with offices at 40919 Encyclopedia Circle, Fremont, California
94538, Corning and Alcatel (“Alcatel”), a corporation formed under the laws
of France, with offices at 54, rue La Boetie, 75008 Paris, France, and (iii)
execution by Corning and Alcatel of a Stockholders’ Agreement (“Stockholders’
Agreement”) with Avanex. | |
| --- | --- |
| Item 1. | Security and Issuer |
| This
Amendment No. 1 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. Avanex has informed the
undersigned that 69,476,348 shares of Avanex Common Stock were issued and
outstanding as of the close of business on July 28, 2003. On July 31, 2003, Avanex issued to Corning
and its affiliate Corning O.T.I. S.r.l. (“OTI”) 21,474,507 shares of Common
Stock of Avanex, or approximately 17% of the issued and outstanding shares of
Avanex Common Stock as of the date hereof, pursuant to the terms of the
Purchase Agreement. Corning’s
previously disclosed voting rights granted pursuant to certain Voting Agreements
Proxies from officers and directors of Avanex in the form attached as Exhibit
99.2 to the original Schedule 13D terminated as of the closing under the
Purchase Agreement. Additional Shares
of Avanex Common Stock may be issued to Corning and/or OTI if options to
purchase shares of Avanex Common Stock were exercised between July 28, 2003,
and July 31, 2003, such that Corning and OTI will collectively own in the
aggregate a number of shares of Avanex Common Stock equal to 17% of the total
number of shares of Avanex Common Stock issued and outstanding as of July 31,
2003, after giving effect to the transactions contemplated in the Purchase
Agreement. | |
| 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. Please refer to Item 2 of Corning’s
Schedule 13D filed with the Securities and Exchange Commission on May 22,
2003, for additional information. | |
| Item 3. | Source and Amount of Funds or
Other Consideration |
| Consideration
for the Avanex Common Stock and the Stockholders’ Agreement included delivery
by Corning and OTI to Avanex of certain assets and cash in accordance with
the terms of the Purchase Agreement.
See Item 4, below. | |

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| Item 4. |
| --- |
| Purchase
Agreement |
| Pursuant
to the terms of the Purchase Agreement, at closing Corning and its affiliates
transferred and assigned to Avanex certain specified tangible and intangible
assets, including intellectual property, relating to Corning’s optical
amplifier facility in Erwin, N.Y. and its optical components plant in Milan,
Italy, along with certain liabilities related to the operations of those
facilities. Avanex also assumed
Corning’s warranty and repair obligations with respect to their optical
communications modules (“OCM”) products.
Corning expects Avanex to hire approximately 400 employees from
Corning and its Italian subsidiary in this transaction. Corning also paid Avanex $20 million in
cash at closing plus an amount equal to its warranty expenses for certain
other warranty repairs. At closing,
Avanex issued to Corning a number of its shares of Common Stock equal to 17%
of the outstanding shares of Common Stock (the “Corning Share Issuance”). |
| Simultaneously
with the Corning Share Issuance and pursuant to the terms of the Purchase
Agreement, Alcatel transferred the stock of its French subsidiary Optronics
France to Avanex, together with certain specified additional intellectual
property and cash in the amount of U.S.$40 million, 15 million euros and
certain additional amounts relating to restructuring costs. Avanex assumed the liabilities of the
Optronics France subsidiary other than certain enumerated real property and
other obligations which was assigned to Alcatel or its subsidiaries at the
closing. At the closing under the
Purchase Agreement, Avanex delivered to Alcatel the number of shares of
Avanex Common Stock equal to 28% of the outstanding shares of Common Stock
(the “Alcatel Share Issuance”). |
| This
description is only a summary of the terms of the Purchase Agreement which is
Exhibit 99.1 to the original Schedule 13D and is incorporated herein by
reference. |
| Stockholders’
Agreement |
| At
the closing of the transactions contemplated by the Purchase Agreement,
Corning and Alcatel entered into a Stockholders’ Agreement with Avanex. With respect to Corning and its
affiliates, the Stockholders’ Agreement provides that for a period of three
years after the closing under the Purchase Agreement with respect to the
Corning Share issuance Corning will not, and will cause its affiliates not
to, directly or indirectly, alone or in concert with any other person: (a)
acquire record or beneficial ownership of any Avanex securities other than
those acquired in the Corning Share Issuance, by way of stock split, dividend
or other recapitalization, or any incidental indirect investment made by
employee-benefit plan related trusts; (b) propose or seek a merger, consolidation,
recapitalization, reorganization, restructuring, sale, lease, exchange or
other disposition of substantially all of the assets of, or other business
combination involving, or tender or exchange offer for securities of Avanex
or any other transaction which would result in the stockholders of Avanex
immediately prior to the transaction holding less that 50% of the equity
securities of the surviving or resulting corporation or parent entity after
the transaction; (c) publicly seek to exercise control or influence of the
management of Avanex, provided that any Corning nominee who is a director of
Avanex may take any action necessary to fulfill his fiduciary obligations to
the stockholders of Avanex; (d) solicit or participate in the solicitation of
any proxies in opposition to a recommendation of the Board of Directors of
Avanex (as such terms are defined under the Exchange Act); or (e) form or
join a group or act in concert with any person or take any similar action to
acquire, hold, vote or dispose of any Avanex securities, other than an
acquisition of up to 5% of the Avanex securities through an acquisition,
business combination or merger with any entity owning such securities. |
| In
addition, the Stockholders’ Agreement provides that so long as Corning and its
affiliates own 5% or more of the outstanding voting securities of Avanex,
Corning will vote, and cause any affiliate holding the shares of Common Stock
to vote, the securities beneficially owned by Corning in |

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| the
manner recommended by a majority of the Board of Directors of Avanex and will
cause such securities to be present in person or by proxy at all meetings of
Avanex stockholders for the purposes of establishing a quorum. For a period of one year and two business
days following the date of the Stockholders’ Agreement, Corning and its
affiliates will agree not to sell or otherwise transfer record, beneficial or
economic ownership of the shares of Common Stock it receives in the Corning
Share Issuance. Thereafter, Corning
and its affiliates will dispose of no more than 10% of the shares issued upon
the Corning Share Issuance during each calendar quarter thereafter, together
with any portion of the previous quarters’ permitted dispositions not disposed
of in the prior quarters. Avanex will
agree to register the shares of Common Stock held by Corning in increments
corresponding to the rights of disposition after the initial lock-up period. Corning also has certain demand
registration rights and piggy back rights and will agree to suspend any
offering from time to time if requested by Avanex upon the occurrence of
certain conditions when Avanex has material information which it would be
detrimental to Avanex to disclose at such time, the prospectus is or becomes
misleading, or the continued offering would materially interfere with a
material corporate transaction or event involving Avanex. Corning has also agreed to withhold its
Common Stock from the market for 90 days upon the request of Avanex or its
underwriters if Avanex is publicly offering its securities. |
| --- |
| For
a period of five years after the closing of the transactions under the
Purchase Agreement and so long as Corning and its affiliates hold at least 5%
of the outstanding Common Stock, Corning will have the contractual right
under the Stockholders’ Agreement to purchase new securities offered by
Avanex for cash or, if the Avanex offering is for other than cash, the cash
equivalent as determined by the Board of Directors of Avanex, that number of
new securities of Avanex which will permit Corning to maintain its
proportionate interest in Avanex. The
terms and conditions of the sale to Corning upon the exercise of any such
right would be on the same terms and conditions as other purchasers in the
issuance, subject to Corning obtaining any required governmental
approvals. Certain securities
issuances by Avanex would not be subject to the right of purchase by Corning,
including: issuances to officers, employees, directors and others pursuant to
stock incentive or benefit plans or programs approved by the stockholders of
Avanex, securities issued upon exercise of securities outstanding as of the
closing of the transactions contemplated by the Purchase Agreement,
securities issued by Avanex in the acquisition of another corporation or
assets by Avanex, securities issued to financial institutions pursuant to
commercial leasing or debt financing transactions approved by the Board of
Directors, securities issued in connection with sponsored research, collaboration,
technology license, development, OEM, marketing or similar agreements or
strategic partnerships approved by the Board of Directors of Avanex,
securities excluded from the right by unanimous vote of the Board of
Directors, and any right, option or warrant to acquire any such securities. |
| Pursuant
to the Stockholders’ Agreement, Corning will, after the Corning Share
Issuance and so long as it owns 5% or more of the outstanding shares of
Avanex Common Stock, have the right to designate one individual reasonably
acceptable to Avanex to be elected to the Board of Directors of Avanex and
the Board will recommend to the Avanex stockholders the election of such
designee for a term of not more than three years. Upon the request of Avanex made at a time when Corning holds
less than 5% of the outstanding Common Stock, the Corning designee will
resign from the Board of Directors within five days of such request. |
| This
description is only a summary of the terms of the Stockholders’ Agreement
which is Exhibit 99.3 to the original Schedule 13D and is incorporated herein
by reference. |
| Other
Plans or Proposals |
| Except
as provided in the Purchase Agreement and the Stockholders’ Agreement, there
are no |

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| other
plans or proposals of the Reporting Persons with respect to any of the
actions described in paragraphs (a) through (j) of Item 4 of Schedule 13D. | |
| --- | --- |
| Item 5. | Interest in Securities of the
Issuer |
| Pursuant
to the Purchase Agreement, Corning acquired 21,474,507 shares of Avanex
Common Stock. The 17% ownership set
forth in this Amendment No. 1 to Schedule 13D is based upon 126,320,632
shares of Avanex Common Stock outstanding as of July 31, 2003, following
consummation of the transactions described in the Purchase Agreement. | |
| Except
as described herein, there have been no transactions in the Avanex Common
Stock by Corning, its executive officers (including the Corning Officers) and
directors within the past 60 days. | |
| Item 6. | Contracts, Arrangements,
Understandings or Relationships with Respect to Securities of the Issuer |
| Other
than the Purchase Agreement and the Stockholders’ Agreement, each described
above, and the transactions contemplated thereby, there are no contracts,
arrangements, understandings or relationships among the persons named in Item
2 or between any such person and any other person with respect to the shares
of Avanex Common Stock or, to the best knowledge of Corning and the Corning
Officers, among any of Corning’s executive officers and directors or, to
their knowledge, between any of Corning’s executive officers and directors
and any other person, with respect to the shares of Avanex Common Stock. The above descriptions of the Purchase
Agreement, the Voting Agreements and Proxies and the Stockholders’ Agreement
and the agreements filed as exhibits hereto are incorporated herein by
reference. | |
| Item 7. | Material to Be Filed as Exhibits |
| The
following documents have been filed as exhibits to the original 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 Voting Agreement and Form of Irrevocable
Proxy, each dated May 12, 2003, between Corning, Alcatel and each of Walter
Alessandrini, Giovanni Barbarossa, Vinton G. Cerf, Todd Brooks, Joel A. Smith
III, and Susan Wang. | |
| 99.3 Stockholders’ Agreement, dated July 31,
2003, among Avanex and Corning and Alcatel. | |

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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.

| Corning
Incorporated |
| --- |
| July 31, 2003 |
| Date |
| /s/ Denise A. Hauselt |
| Signature |
| Denise A. Hauselt, Secretary |
| Name/Title |

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