EXHIBIT 4.5
JDS UNIPHASE CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement"), dated July
6, 1999, is by and among JDS Uniphase Corporation, a Delaware
corporation (the "Company"), JDS Uniphase Canada Ltd., a corporation
organized under the laws of Canada ("Exchangeco"), and FEJ Holding Inc.
and FEJ Sales Inc. (each an "Investor"), each a corporation organized
under the laws of the Northwest Territories and a wholly-owned
subsidiary of The Furukawa Electric Co., Ltd.
RECITALS:
A. The Investors hold an aggregate of 37,359,670 non-voting
exchangeable shares ("Exchangeable Shares") of Exchangeco. Each
Exchangeable Share is exchangeable by its terms into one share of the
$.001 par value per share common stock of the Company ("Common Stock").
B. The Furukawa Electric Co., Ltd., Exchangeco, JDS FITEL Inc.
and the Company are parties to a Support Agreement, dated as of January
28, 1999, as amended and restated as of April 29, 1999 (the "Support
Agreement"), pursuant to which The Furukawa Electric Co., Ltd. agreed,
among other things, to support that certain plan of arrangement,
whereby, among other things, Exchangeco acquired a portion of the
outstanding capital of JDS FITEL Inc. and issued the Exchangeable Shares
to the Investors.
C. The Furukawa Electric Co., Ltd. has caused the Investors to
execute and deliver this Agreement.
D. As consideration for The Furukawa Electric Co., Ltd.'s
execution and delivery of the Support Agreement and its obligations
contained therein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company
and Exchangeco wish to grant the Investors certain rights under the
Securities Laws (as herein defined) with respect to the shares of Common
Stock and/or Exchangeable Shares held by the Investors.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1.
REGISTRATION RIGHTS
1.1. Certain Definitions.
As used in this Agreement, the following terms shall have
the following respective meanings:
A. "Canadian Prospectus" shall mean a prospectus (including a
short form prospectus) prepared in accordance with
applicable Canadian Securities Laws for the purposes of
qualifying securities for distribution or distribution to
the public, as the case may be, in any province or territory
of Canada.
B. "Canadian Securities Law" shall mean statutes and
regulations applicable to the trading of securities in any
province or territory of Canada including applicable rules,
policy statements and blanket rulings and orders promulgated
by Canadian securities regulatory authorities.
C. "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time
administering the Securities Act.
D. "Common Stock Market Value" shall mean, at any date set
forth herein, the product of (i) the average of the closing
sale prices on the NASDAQ National Market (or any other
national securities exchange upon which the Common Stock is
listed, from time to time) of one share of Common Stock over
the ten (10) trading days ending on the trading day
immediately prior to such date; and (ii) the number of
shares of Registrable Common Stock (as hereinafter defined)
held by a Holder or Holders to be registered on behalf of
such Holder or Holders, as the case may be.
E. "Exchangeable Share Market Value" shall mean, at any date
set forth herein, the product of (i) the average of the
closing sale prices on the TSE (or any other Canadian
securities exchange upon which the Exchangeable Shares are
listed, from time to time) of one Exchangeable Share over
the ten (10) trading days ending on the trading day
immediately prior to such date; and (ii) the number of
Registrable Exchangeable Shares (as hereinafter defined)
held by a Holder or Holders to be registered on behalf of
such Holder or Holders, as the case may be.
F. "Holder" shall mean (i) an Investor; and (ii) any person or
entity holding Registrable Securities (as herein defined) to
whom the rights under this Section 1 have been transferred
by an Investor in accordance with Section 1.10 hereof.
G. "Initiating Holders" shall mean any Holders who in the
aggregate hold greater than 25% of the Registrable
Securities from time to time.
H. "Philips" shall mean Koninklijke Philips Electronics N.V., a
company duly established under the laws of The Netherlands,
together with its successors and assigns.
I. "Philips Demand Registration" shall mean any registration
filed by the Company at the request of Philips pursuant to
Section 2.2 of the Philips Stockholder Agreement.
J. "Philips Registrable Securities" shall mean Registrable
Securities (as defined in the Philips Stockholder
Agreement).
K. "Philips Stockholder Agreement" shall mean that certain
Stockholder Agreement, dated as of June 9, 1998, between the
Company and Philips.
L. The terms "register," "registered" and "registration" refer
to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act
and the declaration or ordering of the effectiveness of such
registration statement. In addition, unless inconsistent
with the context: (i) the term "registration" and any
references to the act of registering include the
qualification under Canadian Securities Laws of a Canadian
Prospectus in respect of a distribution or distribution to
the public, as the case may be, of securities; (ii) the term
"registered" as applied to any securities includes a
distribution or distribution to the public, as the case may
be, of securities so qualified; (iii) the terms
"registration statement" includes a Canadian Prospectus;
(iv) any references to a registration statement having
become effective, or similar references, shall include a
Canadian Prospectus for which a final receipt has been
obtained from the relevant Canadian securities regulatory
authorities; and (v) the provisions of this Agreement shall
be applied, mutatis mutandis, to any proposed distribution
of securities hereunder in any province or territory of
Canada or to which the prospectus requirements under any of
the Canadian Securities Laws shall otherwise apply.
M. "Registrable Securities" means (i) the Exchangeable Shares
held by an Investor as of the date hereof and any securities
of Exchangeco issued or issuable in respect of the
Exchangeable Shares upon any stock split, stock dividend,
recapitalization or similar event, or any securities of
Exchangeco otherwise issuable in respect of the Exchangeable
Shares held by an Investor as of the date hereof; and (ii)
any shares of Common Stock for which such Exchangeable
Shares have been exchanged pursuant to the Voting and
Exchange Trust Agreement, and any shares of Common Stock of
the Company issued or issuable in respect of such Common
Stock upon any stock split, stock dividend,
recapitalization, or similar event, or any shares of Common
Stock otherwise issuable with respect to such shares of
Common Stock; provided, however, that shares of Common Stock
or other securities shall only be treated as Registrable
Securities for the purposes of a registration under the
Securities Act if and so long as they have not been (A) sold
to or through a broker, dealer or underwriter in a public
distribution or a public securities transaction, or (B) sold
(or available for sale) to the public pursuant to an
effective registration statement or Rule 144 promulgated
under the Securities Act or sold in a private transaction in
which the transferor's rights under Section 1 of this
Agreement are not assigned.
N. "Registration Expenses" shall mean all expenses (other than
Selling Expenses), except as otherwise stated below,
incurred by Exchangeco or the Company in complying with
Sections 1.2, 1.3 and 1.4 hereof, including, without
limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of
counsel for Exchangeco or the Company, blue sky fees and
expenses, the expenses of any special audits, incident to or
required by such registration, and reasonable fees and
disbursements of a single special counsel for the Holders.
O. "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and
regulations of the Commission thereunder, all as the same
shall be in effect at the relevant time.
P. "Securities Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, or any similar federal statute and
the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the relevant time.
Q. "Securities Laws" shall mean the Securities Act, the
Exchange Act and the Canadian Securities Laws.
R. "Selling Expenses" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to
the securities registered by the Holders.
S. "TSE" shall mean The Toronto Stock Exchange.
T. "Voting and Exchange Trust Agreement" shall mean that
certain Voting and Exchange Trust Agreement dated as of the
date hereof among the Company, Exchangeco and the Trustee
(as defined therein).
1.2. Requested Registration.
A. Request for Registration of Common Stock. Notwithstanding
any other provision contained in this Agreement, with
respect to Registrable Common Stock (as defined below), the
Initiating Holders shall only be entitled to request a
registration, qualification or compliance in respect of such
shares in the United States. In case the Company shall
receive from Initiating Holders a written request that the
Company effect any registration, qualification or compliance
in the United States with respect to shares of Common Stock
constituting Registrable Securities (such shares to be
hereinafter referred to as "Registrable Common Stock") with
a Common Stock Market Value of not less than
U.S.$60,000,000, the Company will:
1. within thirty (30) days give written notice of the
proposed registration, qualification or compliance to
all other Holders; and
2. as soon as practicable, subject to the limitations and
conditions set forth in this Agreement, use reasonable
best efforts to effect such registration,
qualification or compliance (including, without
limitation, appropriate qualification under applicable
blue sky or other state securities laws and
appropriate compliance with applicable regulations
issued under the Securities Act and any other
governmental requirements or regulations) so requested
and as would permit or facilitate the sale and
distribution of all or such portion of such
Registrable Common Stock as are specified in such
request, together with all or such portion of the
Registrable Common Stock of any Holder or Holders and
the Common Stock of other holders of Common Stock with
rights to do so joining in such request as are
specified in a written request received by the Company
within twenty (20) days after receipt of such written
notice from the Company.
B. Request for Registration of Exchange Shares.
Notwithstanding any other provision contained in this
Agreement, with respect to the Registrable Exchangeable
Shares (as defined below), the Initiating Holders shall only
be entitled to request a registration, qualification or
compliance in respect of such shares in the provinces and
territories of Canada. In case the Company shall receive
from Initiating Holders a written request that Exchangeco
effect any registration, qualification or compliance with
respect to Exchangeable Shares constituting Registrable
Securities (such shares to be hereinafter referred to as
"Registrable Exchangeable Shares") with a Exchangeable Share
Market Value of not less than Cdn.$90,000,000, the Company
will:
1. within thirty (30) days give written notice of the
proposed registration, qualification or compliance to
all other Holders; and
2. as soon as practicable, subject to the limitations and
conditions set forth in this Agreement, use reasonable
best efforts to cause Exchangeco to effect such
registration, qualification or compliance under
Canadian Securities Law so as to permit or facilitate
the sale and distribution in the provinces and
territories of Canada of all or such portion of such
Registrable Exchangeable Shares as are specified in
such request, together with all or such portion of the
Registrable Exchangeable Shares of any Holder or
Holders and the Common Stock of other holders of
Common Stock with rights to do so joining in such
request as are specified in a written request received
by the Company within twenty (20) days after receipt
of such written notice from the Company.
C. Limitation. Notwithstanding the foregoing, neither the
Company nor Exchangeco shall be obligated to take any action
to effect any such registration, qualification or compliance
pursuant to this Section 1.2:
1. In any particular jurisdiction in which the Company or
Exchangeco, as applicable, would be required to
execute a general consent to service of process in
effecting such registration, qualification or
compliance unless the Company or Exchangeco, as
applicable, is already subject to service in such
jurisdiction and except as may be required by the
Securities Laws.
2. After the Company and/or Exchangeco have effected an
aggregate of five (5) such registrations between them
pursuant to Sections 1.2(A) and 1.2(B), and such
registrations have been declared or ordered effective;
provided however, that if the request for a
registration is subsequently withdrawn at the request
of the Holders of a number of shares of Registrable
Securities such that there are not enough Holders of
Registrable Securities intending to participate in the
registration sufficient to request such a registration
(the "Requesting Holders"), then such Requesting
Holders shall, at such Requesting Holders' option,
either (i) be required to pay all Registration
Expenses, or (ii) lose one of their five (5) rights to
cause the Company or Exchangeco to effect a
registration under this Section 1.2; and provided,
further, however, that if the requested registration
is withdrawn and at the time of such withdrawal the
Requesting Holders have learned of a material adverse
change in the condition, business or prospects of the
Company from that known to the Requesting Holders at
the time of their request and have withdrawn the
request with reasonable promptness following
disclosure by the Company of such material adverse
change, then the Requesting Holders shall not be
required to pay any of such Registration Expenses and
shall retain their rights pursuant to Section 1.2; and
provided, further, however, that if the Initiating
Holders request contemporaneous registrations of
Registrable Common Stock and Registrable Exchangeable
Shares pursuant to Sections 1.2(A) and (B), and the
offerings pursuant to such registrations are completed
on or about the same date, such registrations shall be
treated as one (1) registration for the purposes of
this Section 1.2(C)(2).
3. If the Company or Exchangeco has, within the twelve
(12) month period preceding the date of the receipt of
the registration request, already effected one (1)
registration pursuant to this Section 1.2.
4. If the Company shall furnish to such Holders a
certificate signed by the President of the Company
stating that in the good faith judgment of the Board
of Directors of the Company it would be seriously
detrimental to the Company or its stockholders for a
registration statement of the Company or Exchangeco to
be filed in the near future, then the Company's and
Exchangeco's obligations to register, qualify or
comply under this Section 1.2 shall be deferred for
one or more periods, aggregating not more than sixty
(60) days in any twelve (12) month period.
5. If the Initiating Holders propose to dispose of shares
of Registrable Common Stock that may be immediately
registered on Form S-3 pursuant to a request made
pursuant to Section 1.4 below.
Subject to the foregoing clauses (1) through (5), the
Company or Exchangeco, as applicable, shall file a
registration statement covering the Registrable Securities
so requested to be registered as soon as practicable after
receipt of the request or requests of the Initiating
Holders.
D. Underwriting. If the Initiating Holders intend to
distribute the Registrable Securities covered by their
request by means of a firm commitment underwritten offering,
they shall so advise the Company as part of their request
made pursuant to this Section 1.2, and the Company shall so
advise the Holders as part of the notice given pursuant to
Section 1.2(A)(1) or Section 1.2(B)(1), as applicable. The
Initiating Holders shall designate any underwriter or
underwriters to be retained in connection with any
registration pursuant to this Section 1.2, which
underwriters shall be reasonably acceptable to the Company.
In such event, the right of any Holder to registration
pursuant to Section 1.2 shall be conditioned upon such
Holder's participation in the underwriting arrangements
required by this Section 1.2, and the inclusion of such
Holder's Registrable Securities in the underwriting to the
extent requested shall be limited to the extent provided
herein.
The Company or Exchangeco, as applicable, shall (together
with all Holders proposing to distribute their securities
through such underwriting) enter into an underwriting
agreement in customary form with the managing underwriter
selected for such underwriting by a majority in interest of
the Initiating Holders, but subject to the Company's or
Exchangeco's, as applicable, reasonable approval.
Notwithstanding any other provision of this Section 1.2, if
the managing underwriter advises the Initiating Holders in
writing that marketing factors require a limitation of the
number of shares to be underwritten (including Registrable
Securities), then the Company or Exchangeco, as applicable,
shall so advise all holders of Registrable Securities and
the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be
allocated among all Holders in proportion, as nearly as
practicable, to the respective amounts of Registrable
Securities held by such Holders at the time of filing the
registration statement; provided, however, that, the number
of shares of Registrable Securities held by the Initiating
Holders to be included in such underwriting and registration
shall not be reduced unless all other securities of the
Company (including any Philips Registrable Securities) or
Exchangeco, as applicable, are first entirely excluded from
the underwriting and registration. If a limitation on the
number of shares to be included in such registration shall
still be required after giving effect to the limitation in
the preceding sentence, the Company or Exchangeco, as
applicable, shall so advise the Holders, and the number of
shares that may be included in the underwriting shall be
allocated to the Holders, in proportion, as nearly as
practicable, to the respective amounts of Registrable
Securities then held by Holders requesting to have shares
included in the registration statement; and provided, that,
if, as a result of exclusions by the underwriter or
underwriters pursuant to this Section 1.2(D), less than
fifty percent (50%) of the aggregate shares of Registrable
Securities registered in such offering shall be for the
account of Holders, then such registration shall not be
treated as an exercise of one of the five (5) registration
rights of Holders pursuant to this Section 1.2. No
Registrable Securities excluded from the underwriting by
reason of the underwriter's marketing limitation shall be
included in such registration. To facilitate the allocation
of shares in accordance with the above provisions, the
Company or Exchangeco, as applicable, or the underwriters
may round the number of shares allocated to any Holder to
the nearest one hundred (100) shares.
If any Holder of Registrable Securities disapproves of the
terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company or Exchangeco, as
applicable, the managing underwriter and the Initiating
Holders. The Registrable Securities so withdrawn shall also
be withdrawn from registration, and such Registrable
Securities shall not be transferred in a public distribution
prior to ninety (90) days after the effective date of such
registration, or such other shorter period of time as the
underwriters may require.
1.3. Company or Exchangeco Registration.
A. Notice of Registration. If at any time or from time to time
the Company or Exchangeco, as applicable, shall determine to
register any of its securities or to proceed with any
proposed distribution or distribution to the public thereof,
as the case may be, either for its own account or the
account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans,
(ii) a registration relating solely to a Commission Rule 145
transaction, in the case of a Company registration, (iii) a
registration on Form S-4 (or equivalent form), in the case
of a Company registration, or (iv) a registration in which
the only Common Stock or Exchangeable Shares being
registered are Common Stock or Exchangeable Shares,
respectively, issuable upon conversion of convertible debt
securities which are also being registered, the Company
will:
1. promptly give to each Holder written notice thereof,
and
2. in the case of a Company registration of Common Stock,
include in such registration (and any related
qualification under blue sky laws or other
compliance), and in any underwriting involved therein,
all the Registrable Common Stock specified in a
written request or requests, made within twenty (20)
days after receipt of such written notice from the
Company, by any Holder; and in the case of an
Exchangeco registration of Exchangeable Shares, use
reasonable best efforts to cause Exchangeco to include
in such registration (and any related qualification or
other compliance), and in any underwriting involved
therein, all the Registrable Exchangeable Shares
specified in a written request or requests, made
within twenty (20) days after receipt of such written
notice from the Company, by any Holder.
B. Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving
an underwriting, the Company shall so advise the Holders as
a part of the written notice given pursuant to Section
1.3(A)(1). In such event, the right of any Holder to
registration pursuant to Section 1.3 shall be conditioned
upon such Holder's participation in such underwriting and
the inclusion of Registrable Common Stock, in the case of a
Company offering of Common Stock, or Registrable
Exchangeable Shares, in the case of an Exchangeco offering
of Exchangeable Shares, to the extent provided herein.
All Holders proposing to distribute their securities through
such underwriting shall (together with the Company or
Exchangeco, as the case may be, and the other holders
distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with
the managing underwriter selected for such underwriting by
the Company or Exchangeco, as the case may be; provided,
however, that no Holder participating in such underwriting
shall be required to make any representation or warranty
except with respect to such Holder and its intended method
of distribution, and that the liability of such Holder shall
be limited to an amount equal to the net proceeds from such
underwriting received by such Holder. Notwithstanding any
other provision of this Agreement, if the managing
underwriter advises the Company or Exchangeco, as the case
may be, that marketing factors require a limitation of the
number of shares to be underwritten, then the underwriter
may exclude some or all Registrable Securities from such
registration and underwriting; provided, however, that,
subject to the next sentence, any such limitation or
"cutback" shall be (i) first applied to all shares proposed
to be sold in such offering (other than for the account of
the Company or Exchangeco, as the case may be), which are
not Registrable Securities or Philips Registrable
Securities; (ii) then applied to the Registrable Securities
of Holders and Philips Registrable Securities, if
applicable. In the event that the number of shares of
Registrable Securities and Philips Registrable Securities,
if applicable, to be included in a registration shall be
limited pursuant to the foregoing, the Company or
Exchangeco, as the case may be, shall so advise all Holders
and Philips, if applicable, and the number of shares of
Registrable Securities and Philips Registrable Securities,
if applicable, that may be included in the registration and
underwriting shall be allocated among all Holders and
Philips, if applicable, in proportion, as nearly as
practicable, to the respective amounts of Registrable
Securities and Philips Registrable Securities, if
applicable, requested to be included. Notwithstanding the
preceding sentence, if such registration is a Philips Demand
Registration, no Philips Registrable Securities shall be
excluded from such registration pursuant to any underwriter
limitation or cutback unless and until all Registrable
Securities have been so excluded from such registration. No
Registrable Securities excluded from the underwriting by
reason of the underwriters marketing limitation shall be
included in such registration. To facilitate the allocation
of shares in accordance with the above provisions, the
Company or Exchangeco, as the case may be, or the
underwriters may round the number of shares allocated to any
Holder to the nearest one hundred (100) shares.
If any Holder disapproves of the terms of any such
underwriting, it may elect to withdraw therefrom by written
notice to the Company or Exchangeco, as the case may be, and
the managing underwriter. Any securities excluded or
withdrawn from such underwriting shall be withdrawn from
such registration, and shall not be transferred in a public
distribution prior to one hundred and twenty (120) days
after the effective date of the registration statement
relating thereto, or such other shorter period of time as
the underwriters may require.
If by the withdrawal of such Registrable Securities a
greater number of Registrable Securities held by other
Holders may be included in such registration (up to the
maximum of any limitation then imposed by the underwriter),
then the Company or Exchangeco, as the case may be, shall
offer to all Holders, if any, whose shares have been
excluded from the registration by the terms of this Section
1.3(B), the right to include additional Registrable
Securities in the same proportion used in determining the
underwriter limitation in this Section 1.3(B) up to the
limitation then imposed by the underwriter.
C. Right to Terminate Registration. The Company or Exchangeco,
as the case may be, shall have the right to terminate or
withdraw any registration initiated by it under this Section
1.3 prior to the effectiveness of such registration whether
or not any Holder has elected to include securities in such
registration. The Registration Expenses of such withdrawn
registration shall be borne by the Company or Exchangeco, as
the case may be, in accordance with Section 1.5 hereof.
1.4. Registration on Form S-3, etc.
A. If any Holder or Holders request that the Company file a
registration statement on Form S-3 (or any successor form to
Form S-3) for a public offering of shares of Registrable
Common Stock and the Company is a registrant entitled to use
Form S-3, or any similar short form registration statement,
to register the Registrable Common Stock for such an
offering, the Company shall use its reasonable best efforts,
as soon as practicable, to cause such Registrable Common
Stock to be registered for the offering on such form and to
cause such Registrable Common Stock to be qualified in such
United States jurisdictions as such Holder or Holders may
reasonably request.
If any Holder or Holders request that the Company use reasonable
best efforts to cause Exchangeco to file a short form
Canadian Prospectus for a public offering of Registrable
Exchangeable Shares and Exchangeco is entitled to use a
short form Canadian Prospectus, or any similar short form
registration statement, to register the Registrable
Exchangeable Shares for such an offering, Exchangeco shall
use its reasonable best efforts, as soon as practicable, to
cause such Registrable Exchangeable Shares to be registered
pursuant to such short form Canadian Prospectus or other
short form registration statement and to cause such
Registrable Exchangeable Shares to be qualified for
distribution or distribution to the public, as the case may
be, in such Canadian jurisdictions as such Holder or Holders
may reasonably request.
If the Company is to bear the expenses of a registration pursuant
to the terms of Section 1.5, the Company shall inform other
Holders of the proposed registration and offer them the
opportunity to participate. The substantive provisions of
Section 1.3(B) shall be applicable to each registration
initiated under this Section 1.4.
B. Notwithstanding the foregoing, neither the Company nor
Exchangeco, as the case may be, shall be obligated to take
any action pursuant to this Section 1.4: (i) with respect
to Registrable Common Stock, to the extent Form S-3 (or any
successor or similar form) is not available for such
offering by the Holders; (ii) with respect to Registrable
Exchangeable Shares, to the extent Exchangeco is not
entitled to use a short form Canadian Prospectus (or any
successor or similar form) to qualify such securities for
distribution or distribution to the public, as the case may
be; (iii) if the Holders propose to sell Registrable Common
Stock with a Common Stock Market Value of less than
U.S.$5,000,000 or Registrable Exchangeable Shares with an
Exchangeable Share Market Value of less than Cdn.$7,500,000,
as the case may be; (iv) if the Company has, within the
twelve (12) month period preceding the date of such request,
already effected one (1) registration on Form S-3 for the
Holders pursuant to this Section 1.4 or Exchangeco has
already effected one (1) registration pursuant to a short
form Canadian Prospectus (or any similar or successor form)
pursuant to this Section 1.4; (v) in any particular
jurisdiction in which the Company or Exchangeco, as the case
may be, would be required to execute a general consent to
service of process in effecting such registration,
qualification or compliance unless the Company or
Exchangeco, as the case may be, is already subject to
service in such jurisdiction and except as may be required
by the Securities Laws; or (vi) if the Company shall furnish
to such Holder a certificate signed by the President of the
Company stating that in the good faith judgment of the Board
of Directors it would be seriously detrimental to the
Company, Exchangeco or their shareholders for registration
statements to be filed in the near future, then the
Company's and Exchangeco's obligation to use their
reasonable best efforts to file a registration statement
shall be deferred for one or more periods, aggregating not
more than sixty (60) days in any twelve (12) month period.
C. Notwithstanding Sections 1.4(A) and 1.4(B), if any Holder or
Holders request Exchangeco to file a short form Canadian
prospectus for a public offering of Registrable Exchangeable
Shares on a "bought deal" basis (as such expression is
generally used in Canadian Securities Laws) and Exchangeco
is entitled to use a short form Canadian Prospectus to
register Registrable Exchangeable Shares for such an
offering, Exchangeco shall use its reasonable best efforts
to cause such Registrable Exchangeable Shares to be
registered for the offering on such basis (including within
the time frames specified for a bought deal under Canadian
Securities Laws) and to cause such Registrable Exchangeable
Shares to be qualified in such jurisdictions of Canada as
such Holder or Holders may reasonably request. Neither the
Company nor Exchangeco shall inform other Holders of the
proposed registration, nor shall they offer them any
opportunity to participate. The Holder or Holders shall
designate the underwriter or underwriters to be retained in
connection with such registration, which underwriters shall
be reasonably acceptable to the Company and Exchangeco.
Exchangeco shall (together with the Holders proposing to
distribute their securities through such underwriting) enter
into an underwriting agreement in customary form for a
bought deal with the underwriters selected for such
registration by the Holder or Holders, but subject to
Exchangeco's reasonable approval.
D. For greater certainty, a request for registration pursuant
to Section 1.4(C) shall also constitute a request for
registration pursuant to Section 1.2 for the purposes of
determining whether the Holders have extinguished their
rights to request five (5) registrations from the Company
and Exchangeco.
1.5. Expenses of Registration.
Except as otherwise expressly set forth herein, all
Registration Expenses incurred in connection with all registrations
requested pursuant to Sections 1.2 and 1.3 shall be borne by the
Company; provided, however, that with respect to any sale of Registrable
Exchangeable Shares pursuant to a Canadian Prospectus, each Holder shall
pay its pro rata share of the Registration Expenses to the extent that
such expenses are required to be paid by the Holders under Canadian
Securities Laws. All Registration Expenses incurred in connection with
registrations requested pursuant to Section 1.4, the reasonably
anticipated aggregate price to the public of which, net of underwriting
discounts and commissions, would exceed U.S.$2,500,000, shall be borne
by the Company; provided, however, that with respect to any sale of
Registrable Exchangeable Shares pursuant to a Canadian Prospectus, each
Holder shall pay its pro rata share of the Registration Expenses to the
extent that such expenses are required to be paid by the Holders under
Canadian Securities Laws; and further provided, however, that the
Company shall not be required to bear the expenses of more than one such
registration in any twelve (12) month period. All Selling Expenses
relating to securities registered on behalf of Holders shall be borne by
the Holders of such securities pro rata on the basis of the number of
shares so registered. If the Holders are required to pay the
Registration Expenses in connection with a registration of Registrable
Common Stock, such expenses shall be borne by the Holders of securities
(including Registrable Securities) requesting such registration in
proportion to the number of shares for which registration was requested
and such Holders shall not forfeit any right pursuant to Section 1.2 to
request a registration.
1.6. Registration Procedures.
In the case of each registration, qualification or
compliance effected by the Company or Exchangeco, as the case may be,
pursuant to this Section 1, the Company or Exchangeco, as the case may
be, will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company or Exchangeco, as the case may be,
will:
A. Prepare and file with the Commission or Canadian securities
regulatory authorities, as applicable, a registration
statement, and including amendments and supplements, with
respect to such securities and use its reasonable best
efforts to cause such registration statement to become and
remain effective for at least the earlier of one hundred
eighty (180) days (or two (2) years, if such registration is
pursuant to Section 1.4(A) or (B)), and the date on which
the distribution described in the registration statement has
been completed;
B. Furnish to the Holders participating in such registration
and to the underwriters of the securities being registered
such reasonable number of copies of the registration
statement, preliminary prospectus, final prospectus and such
other documents as such Holders or underwriters may
reasonably request in order to facilitate the public
offering of such securities;
C. Use its reasonable best efforts to register and qualify the
Registrable Common Stock covered by a Company registration
statement under such other securities or blue sky laws of
such United States jurisdictions as shall be reasonably
requested by the Holders, provided that the Company shall
not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general
consent to service of process in any such states or
jurisdictions;
D. In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement,
in usual and customary form, with the managing underwriters
of such offering; each Holder participating in such
underwriting shall also enter into and perform its
obligations under such an agreement;
E. Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a registration
statement relating thereto is required to be delivered under
the Securities Laws, of the happening of any event as a
result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading in the light of the
circumstances then existing;
F. Furnish, at the request of any Holder requesting
registration of Registrable Securities, on the date that
such Registrable Securities are delivered to the
underwriters for sale, if such securities are being sold
through underwriters, or, if such securities are not being
sold through underwriters, on the date that the registration
statement with respect to such securities becomes effective,
(i) an opinion, dated as of such date, of the counsel
representing the Company or Exchangeco, as the case may be,
for the purposes of such registration, in form and substance
as is customarily given to underwriters in underwritten
public offering and reasonably satisfactory to a majority in
interest of the Holders requesting registration, addressed
to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities; (ii) a "comfort"
letter dated as of such date, from the independent certified
public accountants of the Company or Exchangeco, as the case
may be, in form and substance as is customarily given by
independent certified public accountants to underwriters in
an underwritten public offering and reasonably satisfactory
to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable
Securities; and (iii) if a Canadian Prospectus is filed in
the Province of Quebec, opinions of Quebec counsel and of
the auditors representing the Company and Exchangeco for the
purposes of such registration relating to translation into
the French language of the applicable registration
statement, in form and substance as is customarily given to
underwriters in an underwritten public offering and
reasonably satisfactory to a majority in interest of Holders
requesting registration, addressed to the underwriters, if
any, and to the Holders requesting registration of
Registrable Securities; and
G. Upon the execution of confidentiality agreements in form and
substance satisfactory to the Company, make available for
inspection of any Holder participating in a registration and
any attorney, accountant or other professional retained by
any such Holder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company and/or
Exchangeco, as applicable, (collectively, the "Records") as
shall be reasonably necessary to enable them to exercise
their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information
reasonably requested by any Inspectors in connection with
such registration statement. Records that the Company
determines, in good faith, to be confidential and that it
notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of
such Records is necessary to avoid or correct a misstatement
or omission in such registration statement, or (ii) the
release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction or from
the Commission or any Canadian securities regulatory
authority.
1.7. Indemnification.
A. The Company will indemnify each Holder, each of its officers
and directors and partners, and each person controlling such
Holder within the meaning of Section 15 of the Securities
Act, with respect to which registration, qualification or
compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses,
damages and liabilities (or actions in respect thereof),
including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged untrue statement) of a
material fact contained in any registration statement,
prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by the
Company or Exchangeco, as the case may be, of the Securities
Laws, state securities law or any rule or regulation
promulgated under the such laws applicable to the Company or
Exchangeco, as the case may be, and relating to action or
inaction required of the Company or Exchangeco, as the case
may be, in connection with any such registration,
qualification or compliance, and will reimburse each such
Holder, each of its officers and directors, and each person
controlling such Holder, each such underwriter and each
person who controls any such underwriter, for any legal and
any other expenses reasonably incurred, as such expenses are
incurred, in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such
case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or
omission in a registration statement or prospectus made in
reliance upon and in conformity with written information
furnished to the Company by a Holder or underwriter
specifically for use therein.
B. Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such
registration, qualification or compliance is being effected,
indemnify the Company or Exchangeco, as applicable, each of
its directors and officers, each underwriter, if any, of the
Company's or Exchangeco's securities covered by such a
registration statement, each person who controls the Company
or Exchangeco, as applicable, or such underwriter within the
meaning of Section 15 of the Securities Act, and each other
such Holder, each of its officers and directors and each
person controlling such Holder within the meaning of Section
15 of the Securities Act, against all claims, losses,
damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or
other document, or any omission (or alleged omission) to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
and will reimburse the Company or Exchangeco, as applicable,
such Holders, such directors, officers, underwriters or
control persons for any legal or any other expenses
reasonably incurred, as such expenses are incurred, in
connection with investigating or defending any such claim,
loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement
(or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement,
prospectus, offering circular or other document in reliance
upon and in conformity with written information furnished to
the Company or Exchangeco, as applicable, by such Holder
specifically for use therein; provided, however, that the
indemnity agreement contained in this Section 1.7(B) shall
not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is
effected without the consent of each Holder, which consent
shall not be unreasonably withheld. Notwithstanding the
foregoing, the liability of each Holder under this
Section 1.7(B) shall be limited in an amount equal to the
net proceeds of the public offering received by such Holder;
provided, however, such limitation shall not apply in the
case of willful fraud by such Holder.
C. Each party entitled to indemnification under this Section
1.7 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting
therefrom, provided that counsel for the Indemnifying Party,
who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified
Party may participate in such defense at such party's
expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall
not relieve the Indemnifying Party of its obligations under
this Agreement unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to
defend such action, in which case the Indemnifying Party
shall be relieved of its obligations under this Section 1.7
to the extent of such prejudice, and provided further that
the Indemnifying Party shall pay the fees and costs of
separate counsel for the Indemnified Party should a
situation arise where there are actual or potential
differing interests between the Indemnifying Party and
Indemnified Party. No claim may be settled without the
consent of the Indemnifying Party (which consent shall not
be unreasonably withheld). No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with
the consent of each Indemnified Party, consent to entry of
any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release
from all liability in respect to such claim or litigation.
D. If the indemnification provided for in this Section 1.7 is
held by a court of competent jurisdiction to be unavailable
to an Indemnified Party with respect to any loss, liability,
claim, damage, or expense referred to herein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such loss,
liability, claim, damage, or expense in such proportion as
is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified
Party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable
considerations. The relative fault of the Indemnifying
Party and of the Indemnified Party shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
to state a material fact relates to information supplied by
the Indemnifying Party or by the Indemnified Party and the
parties' relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement or
omission, provided however, that, in any such case, (A) no
such Holder will be required to contribute any amount in
excess of the public offering price of all such Registrable
Securities offered and sold by such Holder pursuant to such
registration statement; and (B) no person or entity guilty
of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
E. The obligations under this Section 1.7 shall survive the
completion of any offering of Registrable Securities in a
registration statement under this Section 1 and otherwise.
1.8. Information by Holders.
The Holder or Holders of Registrable Securities included in
any registration shall furnish to the Company or Exchangeco, as
applicable, such information regarding such Holder or Holders, the
Registrable Securities held by them and the distribution proposed by
such Holder or Holders as the Company or Exchangeco, as applicable, may
request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Section 1.
1.9. Rule 144 Reporting.
With a view to making available the benefits of certain
rules and regulations of the Commission that may at any time permit the
sale of the Registrable Common Stock to the public without registration,
the Company agrees to:
A. Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities
Act, at all times after the effective date that the Company
becomes subject to the reporting requirements of the
Securities Act or the Securities Exchange Act;
B. File with the Commission in a timely manner all reports and
other documents required of the Company under the Securities
Act and the Securities Exchange Act;
C. Furnish to Holders of Registrable Common Stock forthwith
upon request a written statement by the Company as to its
compliance with the reporting requirements of Rule 144, and
of the Securities Act and the Securities Exchange Act, a
copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company
as a Holder may reasonably request in availing itself of any
rule or regulation of the Commission allowing a Holder to
sell any such securities without registration; and
D. The Company shall not take any action or fail to take any
action which could reasonably impair the ability of the
Company to perform its obligations pursuant to this Section
1.9.
E. Take such action as is necessary to enable the Holders to
utilize Form S-3 for the sale of Registrable Common Stock.
1.10. Transfer of Registration Rights.
The rights and obligations granted to each Investor under
this Agreement may be assigned (but only with all related obligations)
to any person or entity who acquires at least 100,000 shares of
Registrable Securities that have not been sold to the public (other than
an acquisition pursuant to an open market purchase), provided that the
Company is given written notice of such assignment prior to such
assignment, and that the transferee agrees in writing to be bound by and
subject to the terms and conditions of this Agreement, including,
without limitation, Section 1.11 below, and the Support Agreement.
1.11. Standoff Agreement.
Each Holder hereby agrees that, during the period of
duration specified by the Company and an underwriter of Common Stock or
Exchangeable Shares or other securities of the Company or Exchangeco,
following the effective date of a registration statement of the Company
or Exchangeco, as the case may be, filed under the Securities Laws, it
shall not, to the extent requested by the Company or Exchangeco, as the
case may be, and such underwriter, nor shall it announce an intention
to, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to
purchase or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) any securities of the Company or Exchangeco
held by it at any time during such period except Common Stock or
Exchangeable Shares included in such registration; provided, however,
that such market stand-off time period shall not exceed 180 days.
In order to enforce the foregoing covenant, the Company or
Exchangeco, as the case may be, may impose stop-transfer instructions
with respect to the Registrable Securities of each Holder (and the
shares or securities of every other person subject to the foregoing
restriction) until the end of such period.
Notwithstanding the foregoing, the obligations described in
this Section 1.11 shall not apply to a registration relating solely to
employee benefit plans on Form S-1 or Form S-8 or similar forms which
may be promulgated in the future, or a registration relating solely to a
Commission Rule 145 transaction on Form S-4 or similar forms which may
be promulgated in the future.
1.12. Termination.
The rights to cause the Company or Exchangeco to register
securities granted to each Investor and any person or entity to whom
rights under Section 1 have been transferred by each Investor in
accordance with Section 1.10 shall expire upon the earlier of ten (10)
years or, for a particular Holder of Registrable Securities, at such
time as such holder owns securities constituting less than one percent
(1.0%) of the outstanding capital stock of the Company (assuming all
outstanding Exchangeable Shares have been exchanged for shares of Common
Stock) and is able to dispose of all such securities in one three-month
period pursuant to Rule 144.
ARTICLE 2.
MISCELLANEOUS
2.1. Amendments.
Any provision of this Agreement may be amended, waived or
modified upon the written consent of the (i) the Company; (ii)
Exchangeco; and (iii) the Holders of a majority of the outstanding
Registrable Securities. Any amendment or waiver effected in accordance
with this Section 2.1 shall be binding upon each holder of any
Registrable Securities then outstanding, each future holder of all such
Registrable Securities, the Company and Exchangeco.
2.2. Governing Law.
This Agreement shall be governed in all respects by the laws
of the State of Delaware as such laws are applied to agreements between
Delaware residents entered into and to be performed entirely within
Delaware.
2.3. Successors and Assigns.
Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon,
the successors, assigns, heirs, executors and administrators of the
parties hereto.
2.4. Entire Agreement.
This Agreement constitutes the full and entire understanding
and agreement between the parties with regard to the subjects hereof.
2.5. Notices, etc.
All notices and other communications which may or are
required to be given pursuant to any provision of this Agreement shall
be given or made in writing and shall be deemed to be validly given if
served personally or by confirmed telecopy, in each case addressed (i)
if to either Investor, at the Investor's address, as shown on Exhibit A
hereto, or at such other address as such Investor shall have furnished
to the Company and Exchangeco in writing, with a copy to Goodman,
Phillips & Vineberg, 250 Yonge Street, Suite 2400, Toronto, Ontario,
Canada M5B 2M6, Attention: Kenneth Wiener, or (ii) if to any other
holder of any shares subject to this Agreement, at such address as such
holder shall have furnished to the Company and Exchangeco in writing,
or, until any such holder so furnishes an address to the Company and
Exchangeco, then to and at the address of the last holder of such shares
who has so furnished an address to the Company and Exchangeco, or (iii)
if to the Company and Exchangeco, one copy should be sent to the
Company's principal place of business and addressed to the attention of
the Corporate Secretary, or at such other address as the Company shall
have furnished to the Investors, with a copy to Morrison & Foerster LLP,
1290 Avenue of the Americas, New York, New York, U.S.A., 10104,
Attention: Mark L. Mandel.
The date of receipt of any such notice shall be deemed to be
the date of delivery or telecopying thereof.
2.6. Severability of this Agreement.
If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule or law, or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected
in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of
being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties
as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
2.7. Titles and Subtitles.
The titles of the paragraphs and subparagraphs of this
Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
2.8. Counterparts.
This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
2.9. Delays or Omissions.
It is agreed that no delay or omission to exercise any
right, power or remedy accruing to any party to this Agreement, upon any
breach or default of another party to this Agreement, shall impair any
such right, power or remedy, nor shall it be construed to be a waiver of
any such breach or default, or any acquiescence therein, or of any
similar breach or default thereafter occurring; nor shall any waiver of
any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. It is further agreed that
any waiver, permit, consent or approval of any kind or character by any
party to this Agreement of any breach or default under this Agreement,
or any waiver by such party of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in writing and that all remedies, either under
this Agreement, or by law or otherwise, shall be cumulative and not
alternative.
2.10. Stock Splits.
All references to the number of shares in this Agreement shall be
appropriately adjusted to reflect any stock split, stock dividend,
recapitalization or other change in the capital stock which may be made
by the Company or Exchangeco after the date hereof.
2.11. Representations and Warranties of the Company
The Company represents and warrants that (a) it has obtained
the necessary written consent pursuant to Section 2.13 of the Philips
Stockholder Agreement and the execution and delivery of this Agreement
would not be in breach of the Philips Stockholder Agreement or any other
agreement entitling a person to require the Company to register any
shares of the Company's capital stock held by such person, and (b) the
terms and conditions of the registration rights granted pursuant to this
Agreement are substantially equivalent to those set forth in the Philips
Stockholder Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first written above.
JDS UNIPHASE CORPORATION
(Signature)
By:
Title:
JDS UNIPHASE CANADA LTD.
(Signature)
By:
Title:
FEJ HOLDING INC.
(Signature)
By:
Title:
FEJ SALES INC.
(Signature)
By:
Title:
EXHIBIT A
INVESTORS' ADDRESSES
FEJ Holding Inc.
c/o The Furukawa Electric Co., Ltd.
6-1 Marunouchi 2-Chome
Chiyoda-Ku, Tokyo 100-8322
Japan
Fax: 011 81 3 3286-3709
Attention: Hideo Sakura
FEJ Sales Inc.
c/o The Furukawa Electric Co., Ltd.
6-1 Marunouchi 2-Chome
Chiyoda-Ku, Tokyo 100-8322
Japan
Fax: 011 81 3 3286-3709
Attenion: Hideo Sakura
