Patent License Agreement - Fujitsu Ltd. and Avanex Corp.


                                                              September 13, 1999

Mr. Walter Alessandrini
Chief Executive Officer
Avanex Corporation
42501 Albrae Street
Fremont, CA 94538
USA

                                                                                

Re: Patent License Agreement on VIPA between Fujitsu Limited and Avanex
Corporation

Dear Mr. Alessandrini:

Fujitsu Limited acknowledges that, as of September 13, 1999, the Conditions
Precedent in Section 2 of the above Patent License Agreement have been fulfilled
for dispersion compensator and the patent license for the same has been granted
to Avanex Corporation.

I appreciate your business.

Sincerely,

/s/ Yasuo Nagai

Yasuo Nagai
General Manager
Photonic Technology Development Division
Fujitsu Limited
4-1-1 Kamikodanaka, Nakahara-ku
Kawasaki, 211-8588
Japan




                            PATENT LICENSE AGREEMENT

THIS AGREEMENT is made and entered into by and between FUJITSU LIMITED, a
corporation of Japan, having its registered office at 4-1-1 Kamikodanaka,
Nakahara-ku, Kawasaki, Kanagawa, 211-88, Japan (hereinafter referred to as
"FUJITSU"), and AVANEX Corporation, a corporation of the State of California,
having its principal office at 42501 Albrae Street, Fremont, CA 94538, USA.
(hereinafter referred to as "AVANEX").

WITNESSETH

WHEREAS, FUJITSU owns patents in certain countries of the world with respect to
LICENSED PRODUCTS (defined below); and

WHEREAS, AVANEX desires to acquire licenses under such FUJITSU's patents; and

WHEREAS, FUJITSU is willing to grant such licenses to AVANEX.

NOW, THEREFORE, in consideration of the mutual covenants and premises contained
herein, the parties hereto agree as follows:

Section 1. DEFINITIONS

1.1 "SUBSIDIARY(IES)" shall mean any corporation, company or other entity more
than fifty percent (50%) of whose voting stock or other similar interests are
owned or controlled by AVANEX, directly or indirectly, as of EFFECTIVE DATE
(defined below) and thereafter so long as such ownership or control exists.

1.2 "LICENSED PRODUCTS" shall mean the following items (1) and (2):

(1) Wavelength multiplexer/demultiplexer devices which consist of the VIPA
element.

(2) Chromatic dispersion compensator devices which consist of the VIPA element
and a mirror.

1.3 "LICENSED PATENTS" shall mean all the patents issued under the following
patent applications and their divisions, continuations and
continuation-in-parts, and all reissues of any of the foregoing patents: [*]


1.4 "LICENSED TERRITORIES" shall mean the countries in which LICENSED PATENTS
are in existence.

1.5 "EFFECTIVE DATE" shall mean the date when all of the conditions of Section 2
are satisfied.

1.6 "DESIGN INFORMATION" shall mean the structural design information of
LICENSED PRODUCTS, which includes design parameters and parts design sheets, but
does not include the assembling know-how. FUJITSU can freely use this DESIGN
INFORMATION for its own use.

Section 2. CONDITIONS PRECEDENT AND EFFECTIVENESS OF AGREEMENT

The license pursuant to Section 3 below shall become available only after all of
the following conditions preceding have fulfilled for each LICENSED PRODUCT:

(a) Development by AVANEX of DESIGN INFORMATION used for LICENSED PRODUCTS in
accordance with the specifications which will be given by FUJITSU to AVANEX, no
later than one (1) month from the day when this agreement is signed by both
parties, pursuant to a separate confidential agreement. AVANEX shall perform
such development for FUJITSU with the first priority before manufacturing
LICENSED PRODUCTS for customers other than FUJITSU.

(b) DESIGN INFORMATION is given to FUJITSU with [*] charge.

Section 3. GRANTS OF LICENSES

3.1 FUJITSU hereby grants for the term of this Agreement to AVANEX, subject to
the


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conditions under Section 4 below, a non-exclusive and non-transferable license,
without the right to sublicense, under LICENSED PATENTS to make or have made
LICENSED PRODUCTS and to use, lease, sell, offer to sell, import or otherwise
dispose of such LICENSED PRODUCTS in LICENSED TERRITORIES.

3.2 The license granted to AVANEX hereunder shall also extend to any of
SUBSIDIARY provided that AVANEX shall cause SUBSIDIARIES to assume the same
obligations as imposed on AVANEX hereunder.

Section 4. LICENSES FEE

4.1 In consideration of the license set forth in Section 3 above, AVANEX shall,
beginning on the EFFECTIVE DATE and to the extent that AVANEX and SUBSIDIARIES
manufacture, have manufactured, use, lease, sell, offer to sell, import or
otherwise dispose of LICENSED PRODUCTS under this Agreement, pay to FUJITSU a
running royalty of [*] of all NET SALES AMOUNT (hereinafter defined) of all
LICENSED PRODUCTS which are made or had made, and used, leased, sold, imported
or otherwise disposed of by AVANEX and SUBSIDIARIES in LICENSED TERRITORIES.

4.2 For the purpose of this Agreement, "NET SALES AMOUNT" shall mean the total
of the arm's length selling prices of LICENSED PRODUCTS at which distributors,
dealers, customers and users of AVANEX or SUBSIDIARIES paid, but the following
items may be excluded; normal discounts actually granted, insurance fees and
packing and transportation charges as invoiced separately to customers, and
duties and sales taxes actually incurred and paid by AVANEX or SUBSIDIARIES. If
LICENSED PRODUCTS are used, leased, imported or otherwise disposed of by AVANEX
or SUBSIDIARY, or sold by AVANEX or SUBSIDIARY not on arm's length basis, the
selling prices used in calculating NET



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SALES AMOUNT shall be the average arm's length selling prices during the past
[*] for the same or similar LICENSED PRODUCTS sold by AVANEX or SUBSIDIARIES to
third party customers.

Section 5. PAYMENTS, REPORTS, RECORDS AND TAX

5.1 The running royalty set forth in Section 4.1 above shall be computed and
paid to FUJITSU by AVANEX within thirty (30) days after the end of each quarter
ending on March 31st, June 30th, September 30th and December 31st.

5.2 AVANEX shall, at the time of each payment of the running royalty under
Section 5.1 above, furnish to FUJITSU a royalty report in suitable form prepared
by Chief Financial Officer of AVANEX, which shall describe sales (including use,
lease, import or other disposition) quantity and gross sales price of LICENSED
PRODUCTS, any deduction from and/or adjustments to the gross sales price as
provided in Section 4.2 above, NET SALES AMOUNT, royalty amount, tax withheld
and royalty remitted. AVANEX shall, within sixty (60) days after the end of each
calendar year, also furnish to FUJITSU a royalty compliance report certified by
an outside Certified Public Accountant, for the period of the year.

5.3 The first royalty report and payment shall be made with respect to all
LICENSED PRODUCTS made or had made, and used, leased, sold, import or otherwise
disposed of by AVANEX and SUBSIDIARIES in LICENSED TERRITORIES from EFFECTIVE
DATE to the last day of the quarterly period next ending.

5.4 Payment hereunder shall be made without deductions of taxes, assessments or
other charges of any kind which may be imposed on FUJITSU by the Government of
the United States of America or any political subdivision thereof with respect
to any amounts due to FUJITSU pursuant to this Agreement, and such taxes,
assessments or other charges shall be paid by AVANEX. However, income taxes or
taxes of similar nature imposed on FUJITSU by the Government of the United
States of America or any other political subdivision thereof and paid by AVANEX
for the account of FUJITSU shall be deductible from the payment to FUJITSU to
the extent that such taxes are allowable as a credit against taxes imposed on
FUJITSU by the Government of Japan. To assist FUJITSU in obtaining such credit,
AVANEX shall furnish FUJITSU with such evidence as may be required by taxing
authorities of the Government of Japan to establish that any such taxes have
been paid.

5.5 If AVANEX fails to make any payment stipulated in this Agreement within the
time specified herein, AVANEX shall pay an interest of fifteen percent (15%) per
year on the unpaid balance payable from the due date until fully paid. The
foregoing payment of interest shall not affect FUJITSU's right to terminate this
Agreement in accordance with Section 7.2 below.

5.6 Any payment from AVANEX to FUJITSU hereunder shall be made by means of
telegraphic transfer remittance in U.S. Dollars to the following bank account of
FUJITSU, and notice of the payment shall be sent by AVANEX to FUJITSU's address
set forth in Section 8.6 below:

The Dai-Ichi Kangyo Bank, Ltd., Head Office, Tokyo, Japan
Account No. 011-1-167829

Section 6. ACCOUNTING AND AUDIT

With respect to the running royalty set forth in Section 4.1 above, AVANEX shall
keep full, clear and accurate records and accounts for LICENSED PRODUCTS subject
to royalty for a period of three (3) years. FUJITSU shall have the right through
a person(s) appointed by FUJITSU to audit, not more than once in each calendar
year and during normal business hours, all such records and accounts to the
extent necessary to verify that no underpayment has been made by AVANEX
hereunder. Such audit shall be conducted at FUJITSU's own expense, provided that
if any discrepancy or error exceeding five percent (5%) of the money actually
due is found through the audit, the cost of the audit shall be born by AVANEX.

Section 7. TERM AND TERMINATION


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7.1 This Agreement shall become effective on EFFECTIVE DATE and shall, unless
earlier terminated pursuant to Sections 7.2 or 7.3 below, continue until [*].

7.2 In the event of a breach of this Agreement by one party hereto, and if such
breach is not corrected within ninety (90) days after written notice complaining
thereof is received by such party, the other party may terminate this Agreement
forthwith by written notice to that effect to such party.

7.3 FUJITSU shall also have the right to terminate this Agreement forthwith by
giving written notice of termination to AVANEX at any time, upon or after:

(a) the filing by AVANEX of a petition in bankruptcy or insolvency; or

(b) any adjudication that AVANEX is bankrupt or insolvent; or

(c) the filing by AVANEX of any legal action or document seeking reorganization,
readjustment or arrangement of AVANEX's business under any law relating to
bankruptcy or insolvency; or

(d) the appointment of receiver for all or substantially all of the property of
AVANEX; or

(e) the making by AVANEX of any assignment for the benefit of creditors; or

(f) the institution of any proceedings for the liquidation or winding up of
AVANEX's business or for the termination of its corporate charter; or

(g) the assignment to third party of all or substantially all of the assets of
AVANEX; or

(h) important change in controlling ownership of AVANEX; or

(i) any activity or assistance by AVANEX or SUBSIDIARIES of challenging the
validity of any LICENSED PATENTS or restricting the scope thereof.

7.4 In the event of termination of this Agreement by FUJITSU pursuant to
Sections 7.2 or 7.3 above, the licenses granted hereunder to AVANEX and
SUBSIDIARIES shall automatically terminate when AVANEX received or deemed to be
received such termination notice hereunder. AVANEX shall pay the amount of the
running royalty accrued on or before the date of termination within thirty (30)
days thereafter.

Section 8. NEW PATENTS

A new patent derived from any improvement over inventions covered by the
LICENSED PATENTS:

(i) is owned by FUJITSU and the non-exclusive license shall be granted to AVANEX
at a reasonable royalty, if invention is made solely by FUJITSU. Detailed terms
and conditions for such license shall be separately agreed upon between the
parties.

(ii) is owned by AVANEX and the non-exclusive license shall be granted to
FUJITSU at a reasonable royalty, if invention is made solely by AVANEX. Detailed
terms and conditions for such license shall be separately agreed upon between
the parties. However, the non-exclusive license for a patent for which the
invention is made within [*] after the day when this agreement is signed by both
parties shall be royalty free.

(iii) is owned jointly by FUJITSU and AVANEX, if invention is made by FUJITSU
and AVANEX. Each party shall be free to practice and use such jointly owned
patent on a world-wide, non-exclusive basis without accounting to and
royalty-free to the-other party. Each party shall be free to license jointly
owned patent to SUBSIDIARIES but licenses to third parties may be granted only
upon the other party's prior consent, which may not be unreasonably withheld.


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Section 9. SAMPLE PRODUCT

Upon the conditions Section 2(a) and Section 2(b) have been fulfilled for each
LICENSED PRODUCT, AVANEX shall sell 3 sets of LICENSED PRODUCT's samples to
FUJITSU, if FUJITSU wishes to purchase. Such product's samples shall be made
based on DESIGN INFORMATION given to FUJITSU and their performance shall be in
accordance with the specifications set forth in Section 2(a). The purchase shall
be with a separate purchase order.

Section 10. MISCELLANEOUS

10.1 The parties hereto shall keep the terms and conditions of this Agreement
(except the existence of this Agreement) confidential and shall not divulge the
same or any part thereof to any third party except:

(i) with the prior written consent of the other party; or

(ii) to any governmental body having jurisdiction to request and to read the
same; or

(iii) as otherwise may be required by law or legal process; or

(iv) to legal counsel representing either party; or

(v) as required for review by the competent authorities of the Japanese or the
U.S. Government.

10.2 The construction and performance of this Agreement shall be governed by and
shall be subject to the laws of Japan.

10.3 The parties hereto shall use their best efforts to resolve by mutual
agreement any disputes, controversies or differences which may arise from,
under, out of or in connection with this Agreement. If any such disputes,
controversies or differences cannot be settled between the parties hereto, they
shall be finally settled by arbitration in Tokyo, Japan under the Rules of
International Chamber of Commerce and by three (3) arbitrators appointed in
accordance with the said Rules. The award rendered by the arbitrators shall be
final and binding upon the parties hereto. Judgment upon the award may be
entered into any court having jurisdiction thereof.

10.4 Any failure of either party to enforce, at any time or for any period of
time, any of the provisions of this Agreement shall not be construed as a waiver
of such provisions or of the right of such party thereafter to enforce such
provisions.

10.5 If any term, clause or provision of this Agreement shall be judged by the
competent authority to be invalid, the validity of any other term, clause or
provision shall not be affected; and such invalid term, clause or provision
shall be deemed deleted from this Agreement.

10.6 All notices required or permitted to be given hereunder shall be sent in
writing by certified or registered airmail, or facsimile (with a confirmation
letter thereof) to the address specified below or to such changed address as may
have been previously specified in writing by the addressed party:

If to FUJITSU: FUJITSU LIMITED
4-1-1 Kamikodanaka, Nakahara-ku
Kawasaki-shi, Kanagawa, 211-8588, Japan
Attention: General Manager, Industry Relations Division I (H043)
Facsimile No. +81-44-754-8503

If to AVANEX: AVANEX Corporation
42501 Albrae Street, Fremont, CA 94538, USA
Attention: Dr. Simon Cao, President
Facsimile No. +1-510-360-0689




Unless otherwise proven, each such notice given by either party hereto shall be
deemed to have been received by the other party on the fourteenth (14th) day
following the mailing date or on the second (2nd) day following the facsimile
date.

10.7 FUJITSU shall keep DESIGN INFORMATION disclosed by AVANEX confidential
against any third party However, the obligations on FUJITSU set out in this
Section 10.7 do not apply in respect of information:

(a) which is at any time in the public knowledge otherwise than through act or
failure to act on the part of FUJITSU; or

(b) which was known to FUJITSU before its receipt of the same from AVANEX,
without obligations of confidentiality; or

(c) which is at any time rightfully received by FUJITSU from any third party
without obligations of confidentiality; or

(d) which is at any time developed by FUJITSU independently of confidential
information.

The obligations set out in this Section 10.7 shall continue to bind FUJITSU for
[*] after the disclosure of DESIGN INFORMATION.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed in duplicate on the date below written.

FUJITSU LIMITED                             AVANEX Corporation

By: /s/ Yasuo Nagai                         By: /s/ Simon Cao

Name: Yasuo Nagai                           Name: SIMON CAO
      ------------                                ---------

Title: General Manager                      Title: President
       ---------------                             ---------

Date: 7/9/98                                Date: 7/15/98
      ------                                      -------

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                            Agreement on New Patents

This Agreement entered into as of August 26, 1998 by and between Fujitsu
Limited, a corporation of Japan, having an address at 4-1-1, Kamikodanaka,
Nakahara-ku, Kawasaki, Kanagawa, 211, Japan (hereinafter referred to as
"Fujitsu"), and Avanex Corporation, a corporation of the State of California,
having an address at 42501 Albrae Street, Fremont, CA 94538 (hereinafter
referred to as "Avanex").

WHEREAS, Fujitsu and Avanex have executed a PATENT LICENSE AGREEMENT in July,
1998, regarding the VIPA technologies.

WHEREAS, Fujitsu and Avanex are willing to have Technical Discussions between
the people from both parties regarding the VIPA technologies and other optics
technologies.

NOW, THEREFORE, both Fujitsu and Avanex agree that all patents produced directly
from the Technical Discussions stated above, regardless of whether the patents
are related to the VIPA technologies or not, are subject to the conditions in
the above mentioned PATENT LICENSE AGREEMENT, Section 8. NEW PATENTS.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the day above
written.

Fujitsu Limited                             Avanex Corporation

/s/Hideki Isono                             /s/ Simon Cao

Hideki Isono                                Simon Cao
Manager                                     President and CEO
Photonic Devices Development Dept.





 TYPE:  EX-10.24.1
 SEQUENCE:  30
 DESCRIPTION:  LETTER CLARIFYING THE PATENT LICENSE AGREEMENT


   1

                                                                 EXHIBIT 10.24.1

                                                                    July 1, 1998
Dr. Simon Cao
President
Avanex Corporation
42501 Albrae Street
Fremont, CA 94538
USA

Re: Patent License Agreement for the VIPA related devices between Fujitsu
Limited and Avanex Corporation

Dear Dr. Cao:

With regard to Section 7.3(h) of the agreement, Fujitsu Limited understands that
this term is defined as below.

"important change in controlling ownership of AVANEX" means acquisition of more
than half of Avanex Corporation by one of [*].

The [*] are defined as [*].

Sincerely,


/s/ Hideki Isono


Hideki Isono
Manager
Photonic Devices Development Dept.
Fujitsu Limited





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