**EXHIBIT 10.23**

 

February 24, 2006 

 

Mr. Brad Kolb 

 

**OFFER OF EMPLOYMENT**

 

Dear Brad: 

 

I am very pleased to extend to you this offer of employment to join Avanex (the “Company”). 

 

The position offered to you is that of Senior Vice President, Operations. Your place of work will be at the Company’s offices inFremont, California and you will report to Jo Major, President and CEO. This is a full-time, regular, exempt position of considerable responsibility, integral to our continued business development and success. In this position you will be expectedto devote your full business time, attention and energies to the performance of your duties with the Company. 

 

The specifics of this offer are as follows: 

 

**Base Salary:** You will be compensated at a bi-weekly rate of $8,653, paid every other Friday, subject to the usual, required withholding in accordance with the Company’s normal payroll procedures. (This represents anequivalent annual rate of pay of $225,000.00). 

 

**Annual Bonus:** You willbe eligible to participate in the Executive Bonus Plan for Fiscal Year 2006, in accordance with the guidelines as established by the Compensation Committee of the Board. Under this plan your annual target bonus amount will be 60% of your basesalary. 

 

**Stock Options:** Subject to approval by the CompensationCommittee of the Board of Directors, you will be granted a stock option under the Company’s 1998 Stock Plan (the “Plan”) to purchase 400,000 shares of the Company’s Common Stock at an exercise price equal to the then current fairmarket value on the date of grant, as determined under the Plan (the “Option”). 

 

**Restricted Stock Units:**Subject to approval by the Compensation Committee of the Board of Directors, you will be granted 200,000 shares of restricted stock unit under the Company’s 1998 Stock Plan (the“Plan”). The terms and conditions of the grant will be included in the Grant Agreement after 6-8 weeks of your start date. 

 

**Start Date:**March 13, 2006 upon acceptance of this offer. 

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**Employment Term:** In the event that Mr. Kolb’s employment is terminated without cause, he shall be entitled to receive severance according to theCompany’s standard severance policy for executive officers of the company. 

 

**Benefits:** As a regular employee, you will be eligible to participate in Avanex’s benefits plans and programs available to U.S. full time employees, in accordance with the terms of those plans. 

 

**At-Will Employment:** You should be aware that your employment with the Companyconstitutes “at-will” employment. This means that your employment relationship with the Company may be terminated at any time with or without notice, with or without good cause or for any or no cause, at either party’s option. Youunderstand and agree that neither your job performance nor promotions, commendations, bonuses or the like from the Company give rise to or in any way serve as the basis for modification, amendment, or extension, by implication or otherwise, of yourat-will employment with the Company. 

 

**Conflict of Interest:** You agreethat, during the term of your employment with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involvedduring the term of your employment, nor will you engage in any other activities that conflict with your obligations to the Company. 

 

In accepting this offer, you are representing to the Company that (a) you are not a party to any employment agreement or other contract or arrangement whichprohibits your full-time employment with the Company, (b) you do not know of any conflict which would restrict your employment with the Company and (c) you have not and will not bring with you to your employment with the Company anydocuments, records or other confidential information belonging to former employers. We ask that, if you have not already done so, you disclose to the Company any and all agreements relating to your prior employment that may affect your eligibilityto be employed by the Company or limit the manner in which you may be employed. 

 

**Employment, Confidential Information, and Invention Assignment Agreement**: As a condition of your employment with the Company, you must sign and comply with an Employment, Confidential Information, and Invention Assignment Agreementwhich requires, among other provisions, the assignment of rights to any invention made during your employment at Avanex and non-disclosure of proprietary information. As a Company employee, you will be required to sign an acknowledgment that youhave read and understand the Company policies and procedures (as set forth on the Company’s Outlook “Public Files” system or other similar 

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electronic system that the Company may designate), and you will be expected to abide by all Company policies and procedures. 

 

**Indemnification Agreement:** The Company will offer you the opportunity to become aparty to its standard form of indemnification agreement for officers and directors. 

 

**Arbitration Agreement:** As a condition of your employment, you are also required to sign and comply with an Arbitration Agreement. Among other provisions, the Arbitration Agreement provides that in the event of certain disputes orclaims relating to or arising out of our employment relationship, you and the Company agree that (i) those disputes between you and the Company shall be fully and finally resolved by binding arbitration, (ii) you are waiving any and allrights to have such disputes resolved in court by a judge or jury; (iii) the arbitrator shall have the power to award any remedies available under applicable law, except attorneys’ fees and costs, which can be awarded to the prevailingparty only if authorized by statute or contract, (iv) such disputes shall be resolved by a neutral arbitrator, and (v) the Company shall pay for any administrative or hearing fees charged by the arbitrator. Please note that we must receiveyour signed Arbitration Agreement before your first day of employment. 

 

**Reference and Background Checks:********The Company reserves the right to conduct reference checks and/or background investigations on all of its potential employees. Your job offer, therefore, is contingent upon a clearanceof such a reference check and/or background investigation. 

 

**I-9 EmploymentEligibility Verification:** For purposes of federal immigration law, you will be required to provide to the Company documentary evidence of your identity and eligibility for employment in the United States. Such documentation must be provided tous within three (3) business days of your date of hire, or our employment relationship with you may be terminated. 

 

**Governing Law:** The internal substantive laws, but not the choice of law rules, of the State of California, shall govern this letter. You hereby agree to exclusivepersonal jurisdiction and venue in the state and federal courts of the state of California. 

 

**Severability:** In the event that any provision hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, this letter shall continue in full force and effectwithout such provision. 

 

**General:** This letter, along with the otheraforementioned employment-related agreements and stock option described above, set forth the terms of your employment with the Company and 

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supersede in their entirety any and all prior agreements and understandings concerning your employment relationship with the Company, whether written or oral. The termsof this letter may only be amended, canceled or discharged in writing signed by an authorized representative of the Company and by you. 

 

We would appreciate a response to this offer no later than March 3, 2006. To indicate your acceptance of this offer, please sign and date this letter in the spaceprovided below and return it to Human Resources. A duplicate original is enclosed for your records. 

 

Brad, it is a pleasure extending this offer to you. We are hopeful that you recognize, as we do, the tremendous opportunity we have ahead of us and we welcome you to the Avanex team. 

 

Sincerely, 

 

 

AVANEX CORPORATION 

 

Jo Major 

 

President and CEO

 

/s/    Jo Major

 

Accepted:                    /s/    Bradley A.Kolb                     Date:         3/3/06        

 

Enclosures 

Duplicate Offer Letter 

Employment, Confidential Information, and Invention Assignment Agreement 

IndemnificationAgreement 

Arbitration Agreement