EXHIBIT 4.4
JDS UNIPHASE CANADA LTD.
and
CIBC MELLON TRUST COMPANY,
Rights Agent
RIGHTS AGREEMENT
Dated as of June 30, 1999
TABLE OF CONTENTS
Section 1. Certain Definitions 1
Section 2. Appointment of Rights Agent 3
Section 3. Issue of Rights Certificates 3
Section 4. Form of Rights Certificates 4
Section 5. Countersignature and Registration 5
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates 5
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights 6
Section 8. Cancellation and Destruction of Rights Certificates 8
Section 9. Reservation and Availability of Capital Stock 8
Section 10. Exchangeable Share Record Date 10
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights 10
Section 12. Certificate of Adjusted Purchase Price or Number of Shares 15
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power 16
Section 14. Fractional Rights and Fractional Shares 17
Section 15. Rights of Action 17
Section 16. Agreement of Rights Holders 18
Section 17. Rights Certificate Holder Not Deemed a Shareholder 19
Section 18. Concerning the Rights Agent 19
Section 19. Merger or Consolidation or Change of Name of Rights Agent 20
Section 20. Duties of Rights Agent 20
Section 21. Change of Rights Agent 23
Section 22. Issuance of New Rights Certificates 23
Section 23. Redemption and Termination 24
Section 24. Notice of Certain Events 24
Section 25. Notices 25
Section 26. Supplements and Amendments 26
Section 27. Successors 27
Section 28. Determinations and Actions by the Board of Directors, etc. 27
Section 29. Benefits of this Agreement 27
Section 30. Severability 28
Section 31. Governing Law 28
Section 32. Counterparts 28
Section 33. Descriptive Headings 28
Section 34. Exchange 28
Exhibit A Form of Rights Certificate
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of June 30, 1999 (the
"Agreement"), between JDS Uniphase Canada Ltd., a corporation
incorporated under the laws of Canada (the "Company"), and CIBC Mellon
Trust Company, a trust company formed under the laws of Canada (the
"Rights Agent").
RECITALS:
WHEREAS, the Board of Directors of the Company authorized
and issued one right (as such number may hereinafter be adjusted
pursuant hereto) (a "Right") for each exchangeable share of the Company
(an "Exchangeable Share") issued between the Effective Time (including
the Exchangeable Shares issued at the Effective Time) and, except as
otherwise provided in Section 22, the Distribution Date (as these terms
are hereinafter defined), each Right initially representing the right to
purchase upon the terms and subject to the conditions hereinafter set
forth one Exchangeable Share;
WHEREAS, the Rights are intended to provide rights to
acquire additional Exchangeable Shares (or in certain circumstances
other securities) on terms substantially the same as the Uniphase Rights
(as hereinafter defined) confer the right to acquire shares of preferred
stock (or other securities) of Uniphase Corporation, a Delaware
corporation ("Uniphase"), that are essentially the economic equivalent
of Uniphase Common Stock (or in certain circumstances other securities); and
WHEREAS, the Company desires to set forth certain terms and
conditions governing the Rights;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions
Capitalized terms used herein and not otherwise defined herein
will have the meaning given in the Uniphase Rights Agreement. In
addition, for purposes of this Agreement, the following terms have the
meanings indicated:
(a) "Adjustment Shares" has the meaning set forth in Section
11(a)(ii).
(b) "Adjustment Spread" has the meaning set forth in Section 34 (a)(ii).
(c) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in the city of
New York, New York are authorized or obligated by law or
executive order to close.
(d) "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.
(e) "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.
(f) "Company" means JDS Uniphase Canada Ltd., a corporation
incorporated under the laws of Canada, and also means a
Principal Party to the extent provided in Section 13(a).
(g) "Current Value" has the meaning set forth in Section 11(a)(iii).
(h) "Depositary Agent" has the meaning set forth in Section 7(c).
(i) "Effective Date" has the meaning set forth in the Plan of Arrangement.
(j) "Exchangeable Shares" has the meaning set forth in the Recitals.
(k) "Plan of Arrangement" shall mean the plan of arrangement of
JDS FITEL Inc., a corporation incorporated under the laws of
Canada ("JDS"), contemplated by that certain merger
agreement made as of January 28, 1999, as amended and
restated as of April 29, 1999 among Uniphase, the Company
and JDS, as amended from time to time.
(l) "Principal Party" has the meaning set forth in Section 13(b).
(m) "Purchase Price" has the meaning set forth in Section 7(b).
(n) "Redemption Price" has the meaning set forth in Section 23(a).
(o) "Registration Date" has the meaning set forth in Section 9(c).
(p) "Registration Statement" has the meaning set forth in Section 9(c).
(q) "Right" has the meaning set forth in the Recitals to this Agreement.
(r) "Rights Agent" has the meaning set forth in the Recitals to
this Agreement.
(s) "Rights Certificate" has the meaning set forth in Section 3(a).
(t) "Section 11(a)(ii) Event" shall mean the event described in
Section 11(a)(ii) of the Uniphase Rights Agreement.
(u) "Section 13 Event" shall mean any event described in clause
(x), (y) or (z) of Section 13(a) of the Uniphase Rights
Agreement.
(v) "Section 34(a)(i) Exchange Ratio" has the meaning set forth
in Section 34(a)(i).
(w) "Spread" has the meaning set forth in Section 11(a)(iii).
(x) "Triggering Event" shall mean any Section 11(a)(ii) Event or
any Section 13 Event.
(y) "Uniphase" has the meaning set forth in the Recitals to this
Agreement.
(z) "Uniphase Common Stock" means the common stock, par value
U.S.$0.001 per share, of Uniphase.
(aa) "Uniphase Purchase Price" means the "Purchase Price" as
defined in the Uniphase Rights Agreement.
(bb) "Uniphase Rights" shall mean the "Rights" as defined in the
Uniphase Rights Agreement.
(cc) "Uniphase Rights Agreement" means the second amended and
restated rights agreement dated as of June 30, 1999 (and as
it may be thereafter amended and in effect from time to
time) between Uniphase and American Stock Transfer & Trust
Company, as rights agent.
Section 2. Appointment of Rights Agent
The Company hereby appoints the Rights Agent to act as agent for
the Company in accordance with the terms and conditions hereof, and the
Rights Agent hereby accepts such appointment. With the consent of the
Rights Agent, the Company may from time to time appoint such co-rights
agents as it may deem necessary or desirable.
Section 3. Issue of Rights Certificates
(a) Until the Distribution Date, (x) the Rights will be
evidenced (subject to the provisions of paragraph (b) of this Section 3)
by the certificates for Exchangeable Shares registered in the names of
the holders of Exchangeable Shares as of and subsequent to the Effective
Date (which certificates for Exchangeable Shares shall be deemed also to
be certificates for Rights) and not by separate certificates, and (y)
the Rights will be transferable only in connection with the transfer of
the underlying Exchangeable Shares including a transfer to the Company;
provided, however, that if a tender or exchange offer (or take-over bid)
is terminated prior to the occurrence of a Distribution Date, then no
Distribution Date shall occur as a result of such tender or exchange
offer (or take-over bid). As soon as practicable after the Distribution
Date, the Rights Agent will send by first-class, insured, postage
prepaid mail, to each registered holder of Exchangeable Shares as of the
Close of Business on the Distribution Date, at the address of such
holder shown on the records of the Company, one or more rights
certificates, in substantially the form of Exhibit A hereto (the "Rights
Certificates"), evidencing one Right for each Exchangeable Share so
held, subject to adjustment as provided herein.
In the event that an adjustment in the number of Rights per
Exchangeable Share has been made pursuant to Section 11(p) hereof, at
the time of distribution of the Rights Certificates, the Company may
make the necessary and appropriate rounding adjustments (in accordance
with Section 14(a) hereof) so that Rights Certificates representing only
whole numbers of Rights are distributed and cash is paid in lieu of any
fractional Rights. As of and after the Distribution Date, the Rights
will be evidenced solely by such Rights Certificates.
(b) Rights shall, without any further action, be issued in
respect of all Exchangeable Shares which are issued on or after the
Effective Date but prior to the earlier of the Distribution Date and the
Expiration Date. Certificates representing such Exchangeable Shares
shall bear the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in the Rights Agreement between
JDS Uniphase Canada Ltd. (the "Company") and CIBC Mellon
Trust Company (the "Rights Agent") dated as of June 30,
1999, as amended from time to time (the "Rights Agreement"),
the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal
office of the stock transfer administration office of the
Rights Agent. Under certain circumstances, as set forth in
the Rights Agreement, such Rights will be evidenced by
separate certificates and will no longer be evidenced by
this certificate. The Company will mail to the holder of
this certificate a copy of the Rights Agreement, as in
effect on the date of mailing, without charge promptly after
receipt of a written request therefor. UNDER CERTAIN
CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS
ISSUED TO, OR HELD BY, ANY PERSON WHO IS, WAS OR BECOMES AN
ACQUIRING PERSON OR ANY AFFILIATE OR ASSOCIATE THEREOF (AS
SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT), WHETHER
CURRENTLY HELD BY OR ON BEHALF OF SUCH PERSON OR BY ANY
SUBSEQUENT HOLDER, MAY BECOME NULL AND VOID.
Until the earlier of the Distribution Date and the Expiration Date, the Rights
associated with the Exchangeable Shares represented by such certificates
shall be evidenced by such certificates alone, notwithstanding the
absence of the foregoing legend, and registered holders of the
Exchangeable Shares shall also be the registered holders of the
associated Rights, and the transfer of any of such certificates shall
also constitute the transfer of the Rights associated with the
Exchangeable Shares represented by such certificates.
Section 4. Form of Rights Certificates
The Rights Certificates (and the forms of election to purchase,
assignment and certificate to be printed on the reverse thereof) shall
each be substantially in the form set forth in Exhibit A hereto and may
have such marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law or
any rule or regulation thereunder or with any rule or regulation of any
stock exchange or automated quotation system on which the Rights may
from time to time be listed or to conform to usage. Subject to the
provisions of Sections 11 and 22 hereof, the Rights Certificates,
whenever distributed, shall be dated as of the Effective Date and on
their face shall entitle the holders thereof to purchase such number of
Exchangeable Shares as shall be set forth therein at the price set forth
therein, but the amount and type of securities, cash or other assets
that may be acquired upon the exercise of each Right and the Purchase
Price thereof shall be subject to adjustment as provided herein.
Section 5. Countersignature and Registration
(a) Rights Certificates shall be executed on behalf of the
Company by its Chairman, the President or one of its Vice Presidents,
under its corporate seal reproduced thereon attested by its Secretary,
Treasurer or one of its Assistant Secretaries. The signature of any of
these officers on the Rights Certificates may be manual or facsimile.
Rights Certificates bearing the manual or facsimile signatures of the
individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the countersignature of
such Rights Certificates or did not hold such offices at the date of
such Rights Certificates. No Rights Certificate shall be entitled to any
benefit under this Agreement or be valid for any purpose unless there
appears on such Rights Certificate a countersignature duly executed by
the Rights Agent by manual signature of an authorized signatory, and
such countersignature upon any Rights Certificate shall be conclusive
evidence, and the only evidence, that such Rights Certificate has been
duly countersigned as required hereunder.
(b) Following the Distribution Date, the Rights Agent will keep
or cause to be kept, at its office designated for surrender of Rights
Certificates upon exercise or transfer, books for registration and
transfer of the Rights Certificates issued hereunder. Such books shall
show the name and address of each holder of the Rights Certificates, the
number of Rights evidenced on its face by each Rights Certificate and
the date of each Rights Certificate.
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates
(a) Subject to the provisions of Sections 4, 7(e) and 14 hereof,
at any time after the Close of Business on the Distribution Date, and at
or prior to the Close of Business on the Expiration Date, any Rights
Certificate or Certificates may be transferred, split up, combined or
exchanged for another Rights Certificate or Certificates, entitling the
registered holder to purchase a like number of Exchangeable Shares (or,
following a Triggering Event, other securities, cash or other assets, as
the case may be) as the Rights Certificate or Certificates surrendered
then entitled such holder to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Rights Certificate or
Certificates shall make such request in writing delivered to the Rights
Agent, and shall surrender the Rights Certificate or Certificates to be
transferred, split up, combined or exchanged at the office of the Rights
Agent designated for such purpose. Neither the Rights Agent nor the
Company shall be obligated to take any action whatsoever with respect to
the transfer of any such surrendered Rights Certificate until the
registered holder shall have completed and executed the certificate set
forth in the form of assignment on the reverse side of such Rights
Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) of the
Rights represented by such Rights Certificate or Affiliates or
Associates thereof as the Company shall reasonably request; whereupon
the Rights Agent shall, subject to the provisions of Sections 4, 7(e)
and 14 hereof, countersign and deliver to the Person entitled thereto a
Rights Certificate or Rights Certificates, as the case may be, as so
requested. The Company may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with
any transfer, split up, combination or exchange of Rights Certificates.
(b) Subject to Section 7(e) hereof, if a Rights Certificate
shall be mutilated, lost, stolen or destroyed, upon request by the
registered holder of the Rights represented thereby and upon payment to
the Company and the Rights Agent of all reasonable expenses incident
thereto, there shall be issued, in exchange for and upon cancellation of
the mutilated Rights Certificate, or in substitution for the lost,
stolen or destroyed Rights Certificate, a new Rights Certificate, in
substantially the form of the prior Rights Certificate, of like tenor
and representing the equivalent number of Rights, but, in the case of
loss, theft or destruction, only upon receipt of evidence satisfactory
to the Company and the Rights Agent of such loss, theft or destruction
of such Rights Certificate and an indemnity satisfactory to them to save
each of them and any of their agents harmless.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights
(a) Prior to the Expiration Date, the registered holder of any
Rights Certificate may, subject to the provisions of Sections 7(e), 9(c)
and 11(a)(ii) hereof, exercise the Rights evidenced thereby, in whole or
in part, at any time after the Distribution Date upon surrender of the
Rights Certificate, with the form of election to purchase and the
certificate on the reverse side thereof duly executed, to the Rights
Agent at the office of the Rights Agent designated for such purpose,
together with payment of the aggregate Purchase Price (as hereinafter
defined) for the number of Exchangeable Shares (or, following a
Triggering Event, other securities, cash or other assets, as the case
may be) for which such surrendered Rights are then exercisable.
(b) The purchase price for each Exchangeable Share shall be
U.S.$270, subject to adjustment from time to time as provided in
Sections 11 and 13(a) hereof (such purchase price, as so adjusted, being
the "Purchase Price"), and shall be payable in accordance with paragraph
(c) below.
(c) As promptly as practicable following the occurrence of the
Distribution Date, the Company shall deposit with the Rights Agent or
other corporation in good standing organized under the laws of Canada or
any Province thereof, which is authorized under such laws to exercise
corporate trust or stock transfer powers and is subject to supervision
or examination by any Canadian authority (such institution being the
"Depositary Agent"), certificates representing the Exchangeable Shares
that may be acquired upon exercise of the Rights and shall cause such
Depositary Agent to enter into an agreement pursuant to which the
Depositary Agent shall issue receipts representing interests in the
Exchangeable Shares so deposited. Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of election to purchase
and the certificate duly executed, accompanied by payment, with respect
to each Right so exercised, of the Purchase Price for the Exchangeable
Shares (or, following a Triggering Event, other securities, cash or
other assets, as the case may be) to be purchased thereby as set forth
below and an amount equal to any applicable transfer tax or charge which
may be payable in respect of any transfer involved in the transfer or
delivery of Rights Certificates or the issuance and delivery of
certificates for Exchangeable Shares in a name other than that of the
holder of the Rights being exercised or evidence satisfactory to the
Company of payment of such tax or charge, the Rights Agent shall,
subject to Section 20(k) hereof, thereupon promptly (i) requisition from
the Depositary Agent depositary receipts representing such number of
Exchangeable Shares as are to be purchased and the Company will direct
the Depositary Agent to comply with such request, (ii) requisition from
the Company the amount of cash, if any, to be paid in lieu of fractional
Exchangeable Shares in accordance with Section 14 hereof, (iii) after
receipt of such depositary receipts, cause the same to be delivered to
or upon the order of the registered holder of such Rights Certificate,
registered in such name or names as may be designated by such holder,
and (iv) after receipt thereof, deliver such cash, if any, to or upon
the order of the registered holder of such Rights Certificate. In the
event that the Company is obligated to issue Exchangeable Shares, other
securities of the Company, pay cash and/or distribute other property
pursuant to Section 11(a) hereof, the Company will make all arrangements
necessary so that such Exchangeable Shares, other securities, cash
and/or other property are available for distribution by the Rights
Agent, if and when appropriate. The payment of the Purchase Price (as
such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be
made in cash or by certified or bank check or money order payable to the
order of the Company.
(d) In case the registered holder of any Rights Certificate
shall exercise less than all the Rights evidenced thereby, a new Rights
Certificate evidencing the Rights remaining unexercised shall be issued
by the Rights Agent and delivered to, or upon the order of, the
registered holder of such Rights Certificate, registered in such name or
names as may be designated by such holder, subject to the provisions of
Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary,
from and after the first occurrence of a Section 11(a)(ii) Event, any
Rights beneficially owned by (i) an Acquiring Person or an Associate or
Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring
Person (or of any such Associate or Affiliate) which becomes a
transferee after the Acquiring Person becomes such, or (iii) a
transferee of an Acquiring Person (or of any such Associate or
Affiliate) which becomes a transferee prior to or concurrently with the
Acquiring Person becoming such and which receives such Rights pursuant
to either (A) a transfer (whether or not for consideration) from the
Acquiring Person (or any such Associate or Affiliate) to holders of
equity interests in such Acquiring Person (or any such Associate or
Affiliate) or to any Person with whom the Acquiring Person (or such
Associate or Affiliate) has any continuing agreement, arrangement or
understanding regarding the transferred Rights, Exchangeable Shares or
the Company or (B) a transfer which a majority of the Board of Directors
has determined to be part of a plan, arrangement or understanding which
has as a primary purpose or effect the avoidance of this Section 7(e),
shall be null and void without any further action, and no holder of such
Rights shall have any rights whatsoever with respect to such Rights,
whether under any provision of this Agreement or otherwise. The Company
shall use all reasonable efforts to ensure that the provisions of this
Section 7(e) are complied with, but shall have no liability to any
holder of Rights or any other Person as a result of its failure to make
any determination under this Section 7(e) with respect to an Acquiring
Person or its Affiliates, Associates or transferees.
(f) Notwithstanding anything in this Agreement or any Rights
Certificate to the contrary, neither the Rights Agent nor the Company
shall be obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise by such registered
holder unless such registered holder shall have (i) completed and
executed the certificate following the form of election to purchase set
forth on the reverse side of the Rights Certificate surrendered for such
exercise, and (ii) provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) of the Rights
represented by such Rights Certificate or Affiliates or Associates
thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates
All Rights Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to the
Company or any of its agents, be delivered to the Rights Agent for
cancellation or in cancelled form, or, if surrendered to the Rights
Agent, shall be cancelled by it, and no Rights Certificates shall be
issued in lieu thereof except as expressly permitted by this Agreement.
The Company shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and retire, any Rights
Certificates acquired by the Company otherwise than upon the exercise
thereof. The Rights Agent shall deliver all cancelled Rights
Certificates to the Company, or shall, at the written request of the
Company, destroy such cancelled Rights Certificates, and in such case
shall deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Stock
(a) The Company shall at all times prior to the Expiration Date
cause to be reserved and kept available, out of its authorized and
unissued Exchangeable Shares, the number of Exchangeable Shares that, as
provided in this Agreement, will be sufficient to permit the exercise in
full of all outstanding Rights. Upon the occurrence of any events
resulting in an increase in the aggregate number of Exchangeable Shares
(or other equity securities of the Company) issuable upon exercise of
all outstanding Rights above the number then reserved, the Company shall
make appropriate increases in the number of shares so reserved.
(b) If the Exchangeable Shares to be issued and delivered upon
the exercise of the Rights may be listed on any stock exchange or
automated quotation system, the Company shall during the period from the
Distribution Date through the Expiration Date use its best efforts to
cause all securities reserved for such issuance to be listed on such
exchange or system upon official notice of issuance upon such exercise.
(c) The Company shall use its best efforts (i) as soon as
practicable following the occurrence of a Section 11(a)(ii) Event and a
determination by the Company in accordance with Section 11(a)(iii)
hereof of the consideration to be delivered by the Company upon exercise
of the Rights or, if so required by law, as soon as practicable
following the Distribution Date (such date being the "Registration
Date"), to file a registration statement on an appropriate form under
the Securities Act, with respect to the securities that may be acquired
upon exercise of the Rights (the "Registration Statement"), (ii) to
cause the Registration Statement to become effective as soon as
practicable after such filing, (iii) to cause the Registration Statement
to continue to be effective (and to include a prospectus complying with
the requirements of the Securities Act) until the earlier of (A) the
date as of which the Rights are no longer exercisable for the securities
covered by the Registration Statement, and (B) the Expiration Date and
(iv) to take as soon as practicable following the Registration Date such
action as may be required to ensure that any acquisition of securities
upon exercise of the Rights complies with any applicable state
securities or "blue sky" laws; provided that (i) the terms "registration
statement" or "Registration Statement" include a Canadian Prospectus;
and (ii) any references to a registration statement or 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. The Company
may temporarily suspend, for a period of time not to exceed one hundred
twenty (120) days after the date set forth in clause (i) of the first
sentence of this Section 9(c), the exercisability of the Rights in order
to prepare and file such registration statement and permit it to become
effective. Upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such time as
the suspension is no longer in effect. In addition, if the Company shall
determine that a registration statement is required following the
Distribution Date, the Company may temporarily suspend the
exercisability of the Rights until such time as a registration statement
has been declared effective. Notwithstanding any provision of this
Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction if the requisite qualification in such jurisdiction shall
not have been obtained, the exercise thereof shall not be permitted
under applicable law or a registration statement shall not have been
declared effective.
(d) The Company shall take such action as may be necessary to
ensure that all Exchangeable Shares (and, following the occurrence of a
Triggering Event, any other securities that may be delivered upon
exercise of Rights) shall be, at the time of delivery of the
certificates or depositary receipts for such securities (subject to
payment of the Purchase Price), duly and validly authorized and issued
and fully paid and non-assessable.
(e) The Company shall pay any documentary, stamp or transfer tax
or charge imposed in connection with the issuance or delivery of the
Rights Certificates or upon the exercise of Rights; provided, however,
the Company shall not be required to pay any such tax or charge imposed
in connection with the issuance or delivery of Exchangeable Shares, or
any certificates for such Exchangeable Shares (or, following the
occurrence of a Triggering Event, any other securities, cash or assets,
as the case may be) to any Person other than the registered holder of
the Rights Certificates evidencing the Rights surrendered for exercise.
The Company shall not be required to issue or deliver any certificates
for Exchangeable Shares (or, following the occurrence of a Triggering
Event, any other securities, cash or assets, as the case may be) to, or
in a name other than that of, the registered holder of the Rights
Certificate upon the exercise of any Rights represented thereby until
any such tax or charge shall have been paid (any such tax or charge
being payable by the holder of such Rights Certificate at the time of
surrender) or until it has been established to the Company's
satisfaction that no such tax or charge is due.
Section 10. Exchangeable Share Record Date
Each Person in whose name any certificate for Exchangeable Shares
(or, following the occurrence of a Triggering Event, other securities)
is issued upon the exercise of Rights shall for all purposes be deemed
to have become the holder of record of the Exchangeable Shares (or,
following the occurrence of a Triggering Event, other securities)
represented thereby on, and such certificate shall be dated, the date
upon which the Rights Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable
transfer taxes) was made; provided, however, that if the date of such
surrender and payment is a date upon which the Exchangeable Shares (or,
following the occurrence of a Triggering Event, other securities)
transfer books of the Company are closed, such Person shall be deemed to
have become the registered holder of such securities on, and such
certificate shall be dated, the next succeeding Business Day on which
the Exchangeable Shares (or, following the occurrence of a Triggering
Event, other securities) transfer books of the Company are open and,
further provided, however, that if delivery of Exchangeable Shares (or,
following the occurrence of a Triggering Event, other securities) is
delayed pursuant to Section 9(c), such Persons shall be deemed to have
become the registered holders of such Exchangeable Shares (or, following
the occurrence of a Triggering Event, other securities) only when such
Exchangeable Shares (or other securities) first become deliverable.
Prior to the exercise of the Rights evidenced thereby, the holder of a
Rights Certificate shall not be entitled to any rights of a shareholder
of the Company with respect to securities for which the Rights shall be
exercisable, including, without limitation, the right to vote, to
receive dividends or other distributions or to exercise any pre-emptive
rights, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights
The Purchase Price, the number and kind of securities purchasable
upon exercise of each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this Section 11.
(a) (i) If any adjustment shall be made pursuant to Section
11(a)(i) of the Uniphase Rights Agreement (including any such adjustment
resulting from the application of Section 11(f) thereof) or in the event
the Company shall at any time after the date of this Agreement (A)
declare a dividend on the Exchangeable Shares payable in Exchangeable
Shares, (B) subdivide the outstanding Exchangeable Shares, (C) combine
the outstanding Exchangeable Shares into a smaller number of shares, or
(D) issue any shares of its capital stock in a reclassification of the
Exchangeable Shares (including any such reclassification in connection
with a consolidation or merger in which the Company is the continuing or
surviving corporation), except as otherwise provided in this Section
11(a), then, in connection therewith, the number of Exchangeable Shares
or shares of capital stock, as the case may be, issuable on such date
upon exercise of the Rights, shall be proportionately adjusted so that
the holder of any Right exercised after such time shall be entitled to
receive, upon payment of the Purchase Price then in effect, the
aggregate number and kind of Exchangeable Shares or shares of capital
stock, as the case may be, which, if such Right had been exercised
immediately prior to such date, such holder would have owned upon such
exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification. If an event occurs which
would require an adjustment under both this Section 11(a)(i) and Section
11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i)
shall be in addition to, and shall be made prior to, any adjustment
required pursuant to Section 11(a)(ii) hereof.
(ii) If any adjustment shall be made pursuant to Section 11(a)(ii) of
the Uniphase Rights Agreement, there shall at the same time be made a
corresponding adjustment to the Rights so that each holder of a Right
(except as provided below and in Section 7(c) hereof) shall thereafter
have the right to receive, upon exercise thereof at the current Purchase
Price in accordance with the terms of this Agreement, in lieu of the
number of Exchangeable Shares for which such Rights were theretofore
exercisable, such number of Exchangeable Shares as shall equal the
number of Units for which each Uniphase Right is exercisable following
such adjustment multiplied by the ratio of the number of Rights then
associated with each Exchangeable Share and the Purchase Price shall
thereafter be adjusted to the Uniphase Purchase Price in effect under
the Uniphase Rights Agreement following the corresponding adjustment
thereunder; provided that the Purchase Price and the number of
Exchangeable Shares issuable upon exercise of a Right shall be further
adjusted as provided in this Agreement to reflect any events occurring
after the date of such adjustment (such Exchangeable Shares being the
"Adjustment Shares").
(iii) In the event that the number of Exchangeable Shares which are
authorized for issuance by the Company but are not outstanding or
reserved for issuance for purposes other than upon exercise of the
Rights is not sufficient to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii) of this Section 11(a),
the Company, by the vote of a majority of the Board of Directors, shall,
to the extent permitted by applicable law: (A) determine the excess
(such excess being the "Spread") of (1) the aggregate value of the
Adjustment Shares issuable upon the exercise of a Right (the "Current
Value") over (2) the Purchase Price, and (B) with respect to each Right
(other than Rights which have become void pursuant to Section 7(e)),
make adequate provision to substitute, in whole or in part, for such
Adjustment Shares, upon exercise of a Right and payment of the Purchase
Price, (1) cash, (2) a reduction in the Purchase Price, (3) other equity
securities of the Company, (4) debt securities of the Company, (5) other
assets, or (6) any combination of the foregoing, having an aggregate
value which, when added to the value of the Exchangeable Shares actually
issued upon exercise of such Right, shall have an aggregate value equal
to the Current Value (less the amount of any reduction in such Purchase
Price), where such aggregate value has been determined by a majority of
the Board of Directors, after receiving advice from a nationally
recognized investment banking firm; provided, however, that if the
Company shall not have made adequate provision to deliver value pursuant
to clause (B) above within thirty (30) days following the later of (x)
the first occurrence of a Section 11(a)(ii) Event and (y) the date on
which the Company's right of redemption pursuant to Section 23(a)
expires (the later of (x) and (y) being referred to herein as the
"Section 11(a)(iii) Trigger Date"), then, subject to Section 34 hereof,
the Company shall be obligated (to the extent permitted by applicable
law) to deliver, upon the surrender for exercise of a Right and without
requiring payment of the Purchase Price, Exchangeable Shares (to the
extent available), and then, if necessary, cash or a combination
thereof, which Exchangeable Shares and/or cash shall have an aggregate
value equal to the Spread. To the extent that the Company determines
that some action need be taken pursuant to the first sentence of this
Section 11(a)(iii), the Company shall provide, subject to Section 7(e)
hereof, that such action shall apply uniformly to all outstanding
Rights. For purposes of this Section 11(a)(iii), the value of an
Exchangeable Share shall be the current market price (as determined
pursuant to Section 11(d) hereof) per Exchangeable Share, on the Section
11(a)(iii) Trigger Date.
(b) If any adjustment shall be made pursuant to Section 11(b) of
the Uniphase Rights Agreement (including any such adjustment resulting
from the application of Section 1l(f) thereof), then, in connection with
the issuance of rights, options or warrants to all holders of
Exchangeable Shares corresponding to the issuance of rights, options or
warrants to the holders of Uniphase Common Stock which occasioned such
adjustment, the Purchase Price to be in effect after the record date for
the issuance of such rights, options or warrants to holders of
Exchangeable Shares shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by the same
fraction by which the "Purchase Price" under Section 11(b) of the
Uniphase Rights Agreement is multiplied to effect the corresponding
adjustment thereunder. In the event such subscription price may be paid
by delivery of consideration part or all of which may be in a form other
than cash, the value of such consideration shall be as determined in
good faith by a majority of the Board of Directors, whose determination
shall be described in a statement filed with the Rights Agent and shall
be binding on the Rights Agent and the holders of the Rights.
Exchangeable Shares owned by or held for the account of the Company or
any Subsidiary shall not be deemed outstanding for the purpose of any
such computation. Such adjustment shall be made successively whenever
such a record date is fixed, and in the event that such rights or
warrants are not so issued, the Purchase Price shall be adjusted to be
the Purchase Price which would then be in effect if such record date had
not been fixed.
(c) If any adjustment shall be made pursuant to Section 1l(c) of
the Uniphase Rights Agreement (including any such adjustment resulting
from the application of Section 11(f) thereof), then, in connection with
a distribution of evidences of indebtedness, cash, assets or
subscription rights or warrants, the Purchase Price to be in effect
after the record date for the distribution of such evidences of
indebtedness, cash, assets or subscription rights or warrants to the
holders of Exchangeable Shares shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date by the
same fraction by which the "Purchase Price" under Section 11(c) of the
Uniphase Rights Agreement is multiplied to effect the corresponding
adjustment thereunder. Such adjustments shall be made successively
whenever such a record date is fixed, and in the event that such
distribution is not so made, the Purchase Price shall be adjusted to be
the Purchase Price which would have been in effect if such record date
had not been fixed.
(d) For the purpose of any computation hereunder, the "current
market price" per Exchangeable Share on any date shall be deemed to be
equivalent to the "current market price" per share of Uniphase Common
Stock as determined in accordance with Section 11(d) of the Uniphase
Rights Agreement.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required if no adjustment in
the Uniphase Purchase Price is required pursuant to Section 11(e) of the
Uniphase Rights Agreement.
(f) If as a result of an adjustment made pursuant to Section
13(a) hereof, the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock other than Exchangeable
Shares, thereafter the number of such other shares so receivable upon
exercise of any Right and the Purchase Price thereof shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the
Exchangeable Shares contained in Sections 11(a), (b), (c), (e), (g),
(h), (i), (k), (l), (m) and (p), and the provisions of Sections 7, 9,
10, 13 and 14 hereof with respect to the Exchangeable Shares shall apply
on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to
any adjustment made to the Purchase Price hereunder shall evidence the
right to purchase, at the adjusted Purchase Price, the number of
Exchangeable Shares (or other securities or amount of cash or
combination thereof) that may be acquired from time to time hereunder
upon exercise of the Rights, all subject to further adjustment as
provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase Price as
a result of the calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase
Price, that number of Exchangeable Shares (calculated to the nearest one
hundred-thousandth of an Exchangeable Share) obtained by (i) multiplying
(x) the number of Exchangeable Shares covered by a Right immediately
prior to such adjustment by (y) the Purchase Price in effect immediately
prior to such adjustment of the Purchase Price and (ii) dividing the
product so obtained by the Purchase Price in effect immediately after
such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment
of the Purchase Price to adjust the number of Rights, in lieu of any
adjustment in the number of Exchangeable Shares that may be acquired
upon the exercise of a Right. Each of the Rights outstanding after the
adjustment in the number of Rights shall be exercisable for the number
of Exchangeable Shares for which a Right was exercisable immediately
prior to such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest one hundredth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of the Purchase
Price by the Purchase Price in effect immediately after adjustment of
the Purchase Price. The Company shall make a public announcement of its
election to adjust the number of Rights, indicating the record date for
the adjustment, and, if known at the time, the amount of the adjustment
to be made. This record date may be the date on which the Purchase Price
is adjusted or any day thereafter, but, if the Rights Certificates have
been issued, shall be at least ten days later than the date of such
public announcement. If Rights Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the
Company shall, as promptly as practicable, cause to be distributed to
holders of record of Rights Certificates on such record date Rights
Certificates evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement
for the Rights Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the Company, new
Rights Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Rights Certificates to be so
distributed shall be issued, executed and countersigned in the manner
provided for herein (and may bear, at the option of the Company, the
adjusted Purchase Price) and shall be registered in the names of the
holders of record of Rights Certificates on the record date specified in
the public announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of Exchangeable Shares issuable upon the exercise of
the Rights, the Rights Certificates theretofore and thereafter issued
may continue to express the Purchase Price per Exchangeable Share and
the number of Exchangeable Shares which were expressed in the initial
Rights Certificates issued hereunder.
(k) [Intentionally left blank.]
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date
for a specified event, the Company may elect to defer until the
occurrence of such event the issuance to the holder of any Right
exercised after such record date of that number of Exchangeable Shares
and shares of other capital stock or securities of the Company, if any,
issuable upon such exercise over and above the number of Exchangeable
Shares and shares of other capital stock or securities of the Company,
if any, issuable upon such exercise on the basis of the Purchase Price
in effect prior to such adjustment; provided, however, that the Company
shall deliver to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional shares
(fractional or otherwise) or securities upon the occurrence of the event
requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Purchase
Price, in addition to those adjustments expressly required by this
Section 11, as and to the extent that in their good faith judgment a
majority of the Board of Directors shall determine to be advisable in
order that any (i) consolidation or subdivision of the Exchangeable
Shares, (ii) issuance wholly for cash of any Exchangeable Shares at less
than the current market price, (iii) issuance wholly for cash of
Exchangeable Shares or securities which by their terms are convertible
into or exchangeable for Exchangeable Shares, (iv) stock dividends or
(v) issuance of rights, options or warrants referred to in this Section
11, hereafter made by the Company to holders of its Exchangeable Shares,
shall not be taxable to such holders or shall reduce the taxes payable
by such holders.
(n) Neither Uniphase nor the Company shall, at any time after
the Distribution Date, (i) consolidate or amalgamate with any other
Person (other than a Subsidiary of Uniphase or the Company in a
transaction which complies with Section 11(o)), (ii) merge with or into
any other Person (other than a Subsidiary of Uniphase or the Company in
a transaction which complies with Section 11(o)), or (iii) sell or
transfer (or permit any Subsidiary to sell or transfer), in one
transaction, or a series of transactions, assets or earning power
aggregating more than 50% of the assets or earning power, in the case of
the Company, of the Company and its Subsidiaries (taken as a whole) or,
in the case of Uniphase, of Uniphase and its Subsidiaries (taken as a
whole), to any other Person or Persons (other than Uniphase or the
Company, as applicable, and/or any of their Subsidiaries in one or more
transactions each of which complies with Section 11(o) hereof), if (x)
at the time of or immediately after such consolidation, merger or sale
there are any rights, warrants or other instruments or securities
outstanding or agreements in effect which would substantially diminish
or otherwise eliminate the benefits intended to be afforded by the
Rights or (y) prior to, simultaneously with or immediately after such
consolidation, merger or sale, the Person which constitutes, or would
constitute, the "Principal Party" for purposes of Section 13(a) hereof
shall have distributed or otherwise transferred to its shareholders or
other persons holding an equity interest in such Person Rights
previously owned by such Person or any of its Affiliates and Associates;
provided, however, this Section 11(n) shall not affect the ability of
any Subsidiary of the Company or Uniphase (other than the Company) to
consolidate or amalgamate with, merge with or into, or sell or transfer
assets or earning power to, any other Subsidiary of the Company or
Uniphase (other than the Company).
(o) After the Distribution Date, the Company shall not, except
as permitted by Section 23, Section 26 or Section 34 hereof, take (or
permit any Subsidiary to take) any action if at the time such action is
taken it is reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be
afforded by the Rights.
(p) Notwithstanding anything in this Agreement to the contrary,
in the event any adjustment is made under Section 11 or 13 of the
Uniphase Rights Agreement and the adjustment to be made under this
Section 11 or Section 13 hereof by reason of the events requiring the
adjustment under the Uniphase Rights Agreement does not result in
conferring upon the holders of the Rights the right to acquire
additional Exchangeable Shares (or, following a Trigger Event, other
securities, cash or other assets, as the case may be) on terms
substantially the same as the Uniphase Rights confer the right to
acquire shares of Uniphase Common Stock or preferred stock of Uniphase
that is essentially the economic equivalent of Uniphase Common Stock
(or, following a Triggering Event, other securities, cash or other
assets, as the case may be) as contemplated by the recitals to this
Agreement, the Board of Directors shall, concurrently with the
adjustment made under the Uniphase Rights Agreement, make such
adjustment in the Purchase Price, the number and kind of shares or other
property subject to purchase upon exercise of each Right and the number
of Rights outstanding as shall be appropriate in the circumstances to
achieve the same result.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares
Whenever an adjustment is made as provided in Section 11 or
Section 13 hereof, the Company shall (a) promptly prepare a certificate
setting forth such adjustment and a brief statement of the facts
accounting for such adjustment, (b) promptly file with the Rights Agent,
and with the transfer agent for the Exchangeable Shares, a copy of such
certificate, and (c) mail a brief summary thereof to each holder of a
Rights Certificate (or, if prior to the Distribution Date, to each
holder of a certificate representing Exchangeable Shares) in accordance
with Section 25 hereof. The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment therein contained
and shall not be deemed to have knowledge of any such adjustment unless
and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power
(a) In the event that, following the first occurrence of a
Section 11(a)(ii) Event, a Section 13 Event shall occur, then, and in
each such case, proper provision shall be made concurrently with the
corresponding action pursuant to Section 13 of the Uniphase Rights
Agreement so that: (i) each holder of a Right (other than Rights which
have become void as provided in Section 7(e) hereof), shall thereafter
have the right to receive, upon the exercise thereof at the then current
Purchase Price, such number of validly authorized and issued, fully
paid, non-assessable and freely tradeable shares of Common Stock of the
Principal Party (as such term is hereinafter defined), which shares
shall not be subject to any liens, encumbrances, rights of call or first
refusal, transfer restrictions or other adverse claims, as shall be
equal to the number of shares of such Uniphase Common Stock for which
each Uniphase Right is exercisable following the corresponding
adjustment under Section 13(a) of the Uniphase Rights Agreement
multiplied by the ratio of the number of Uniphase Rights then associated
with each share of Uniphase Common Stock to the number of Rights then
associated with each Exchangeable Share and the Purchase Price in effect
under this Agreement shall thereafter be adjusted to the Uniphase
Purchase Price in effect under the Uniphase Rights Agreement following
the corresponding adjustment thereunder; provided, however, that the
Purchase Price and the number of shares of Common Stock of such
Principal Party so receivable upon exercise of a Right shall be further
adjusted as provided in this Agreement to reflect any changes occurring
after such adjustment; (ii) such Principal Party shall thereafter be
liable for, and shall assume, by virtue of such Section 13 Event, all
the obligations and duties of the Company pursuant to this Agreement;
(iii) the term "Company" shall thereafter be deemed to refer to such
Principal Party in all respects; (iv) such Principal Party shall take
such steps (including, but not limited to, the reservation of a
sufficient number of shares of its Common Stock in accordance with
Section 9 hereof) in connection with the consummation of any such
transaction as may be necessary to assure that the provisions of this
Agreement shall thereafter be applicable, as nearly as reasonably may
be, in relation to its shares of Common Stock thereafter deliverable
upon the exercise of the Rights to its shares of Common Stock; provided,
however, that, upon the subsequent occurrence of any merger,
consolidation, sale of all or substantially all of the assets,
recapitalization, reclassification of shares, reorganization or other
extraordinary transaction in respect of such Principal Party, each
holder of a Right shall thereupon be entitled to receive, upon exercise
of a Right and payment of the Purchase Price, such cash, shares, rights,
warrants and other property which such holder would have been entitled
to receive had it, at the time of such transaction, owned the shares of
Common Stock of the Principal Party purchasable upon the exercise of a
Right, and such Principal Party shall take such steps (including, but
not limited to, reservation of shares of stock) as may be necessary to
permit the subsequent exercise of the Rights in accordance with the
terms hereof for such cash, shares, rights, warrants and other property;
and (v) the provisions of Section 11(a)(ii) hereof shall be of no
further effect following the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean the Person designated as such
under the Uniphase Rights Agreement.
(c) The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or amalgamations or sales or other
transfers. In the event that a Section 13 Event shall occur at any time
after the occurrence of a Section 11(a)(ii) Event, the Rights that have
not theretofore been exercised shall thereafter become exercisable in a
manner described in Section 13(a).
Section 14. Fractional Rights and Fractional Shares
(a) The Company shall not be required to issue fractions of
Rights or to distribute Rights Certificates which evidence fractional
Rights. In lieu of issuing such fractional Rights, there shall be paid
to the Persons to which such fractional Rights would otherwise be
issuable, an amount in cash equal to such fraction of the market value
of a whole Right. For purposes of this Section 14(a), the market value
of a whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such fractional
Rights would have been otherwise issuable. The closing price of the
Rights for any day shall be, if the Rights are listed or admitted to
trading on a stock exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the
principal stock exchange on which the Rights are listed or admitted to
trading or, if the Rights are not listed or admitted to trading on any
securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter
market, as reported by Nasdaq or such other system then in use in the
United States or Canada or, if on any such date the Rights are not
quoted by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker making a market
in the Rights selected by a majority of the Board of Directors. If on
any such date no such market maker is making a market in the Rights, the
fair value of the Rights on such date as determined in good faith by a
majority of the Board of Directors shall be used and such determination
shall be described in a statement filed with the Rights Agent and the
holders of the Rights and shall be conclusive for all such persons.
(b) The Company shall not be required to issue fractional
Exchangeable Shares upon exercise of the Rights or to distribute
certificates which evidence such fractional Exchangeable Shares. In
lieu of such fractional Exchangeable Shares, the Company may pay to the
registered holders of Rights Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same
fraction of the then current market price of an Exchangeable Share on
the day of exercise, determined in accordance with Section 11(d) hereof.
(c) The holder of a Right by the acceptance of such Right
expressly waives his right to receive any fractional Rights or any
fractional Exchangeable Shares upon exercise of a Right, except as
permitted by this Section 14.
Section 15. Rights of Action
All rights of action in respect of this Agreement, other than
rights of action vested in the Rights Agent pursuant to Section 18
hereof, are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered
holders of certificates representing Exchangeable Shares); and any
registered holder of a Rights Certificate (or, prior to the Distribution
Date, of a certificate representing Exchangeable Shares), without the
consent of the Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of a certificate
representing Exchangeable Shares), may, in his own behalf and for his
own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company or any other Person to enforce, or
otherwise act in respect of, his right to exercise the Rights evidenced
by such Rights Certificate in the manner provided in such Rights
Certificate and in this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and shall be entitled to
specific performance of the obligations hereunder and injunctive relief
against actual or threatened violations of the obligations hereunder of
any Person subject to this Agreement.
Section 16. Agreement of Rights Holders
Every holder of a Right by accepting the same consents and agrees
with the Company and the Rights Agent and with every other holder of a
Right that:
(a) to be bound by and subject to the provisions of this
Agreement, as amended from time to time in accordance with
the terms hereof, in respect of all Rights held;
(b) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Exchangeable
Shares;
(c) after the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if
surrendered at the office of the Rights Agent designated for such
purposes, duly endorsed or accompanied by a proper instrument of
transfer and with the appropriate forms and certificates duly executed;
(d) subject to Section 6(a) and Section 7(f) hereof, the Company
and the Rights Agent may deem and treat the person in whose name a
Rights Certificate (or, prior to the Distribution Date, the associated
Exchangeable Shares) is registered as the absolute owner thereof and of
the Rights evidenced thereby (notwithstanding any notations of ownership
or writing on the Rights Certificates or the associated Exchangeable
Shares certificate made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor the
Rights Agent, subject to the last sentence of Section 7 (e) hereof,
shall be affected by any notice to the contrary;
(e) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any
holder of a Right or any other Person as a result of its inability to
perform any of its obligations under this Agreement by reason of any
preliminary or permanent injunction or other order, decree or ruling
issued by a court of competent jurisdiction or by a governmental,
regulatory or administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of such
obligation; provided, however, the Company must use its best efforts to
have any such order, decree or ruling lifted or otherwise overturned as
promptly as practicable; and
(f) subject to the provisions of Section 26, without the
approval of any holder of Rights or Exchangeable Shares and upon the
sole authority of the Board of Directors, acting in good faith, this
Agreement may be supplemented or amended from time to time as provided
herein;
Section 17. Rights Certificate Holder Not Deemed a Shareholder
No holder, as such, of any Rights Certificate shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of the
number of Exchangeable Shares or any other securities of the Company
which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any
Rights Certificate be construed to confer upon the holder of any Rights
Certificate, as such, any of the rights of a shareholder of the Company
or any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or, except as provided in Section 24
hereof, to receive notice of meetings or other actions affecting
shareholders, or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such Rights
Certificate shall have been exercised in accordance with the provisions
hereof. This Section 17 shall also apply to holders, as such, of Rights
prior to the issuance of Rights Certificates.
Section 18. Concerning the Rights Agent
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to
time, on demand of the Rights Agent, its reasonable expenses, including
reasonable fees and disbursements of its counsel, incurred in connection
with the execution and administration of this Agreement and the exercise
and performance of its duties hereunder. The Company shall indemnify the
Rights Agent for, and hold it harmless against, any loss, liability, or
expense, incurred without negligence, bad faith or wilful misconduct on
the part of the Rights Agent, for anything done or omitted by the Rights
Agent in connection with the acceptance and administration of this
Agreement, including the reasonable costs and expenses of defending
against any claim of liability hereunder. This right to
indemnification shall survive the termination of this Agreement and the
resignation or removal of the Rights Agent.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by
it in connection with its administration of this Agreement in reliance
upon any Rights Certificate or certificate for Exchangeable Shares or
for other securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement or other paper or document
believed by it to be genuine and to have been signed, executed and,
where necessary, verified or acknowledged by the proper Person or
Persons.
(c) The Company shall inform the Rights Agent in a reasonably
timely manner of events which may materially affect the administration
of this Agreement by the Rights Agent and, at any time upon request,
shall provide to the Rights Agent an incumbency certificate certifying
the then current officers of the Company.
Section 19. Merger or Consolidation or Change of Name of Rights Agent
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a party, or any
corporation succeeding to the security services businesses of the Rights
Agent or any successor Rights Agent, shall be the successor to the
Rights Agent under this Agreement without the execution or filing of any
document or any further act on the part of any of the parties hereto;
provided, however, that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section
21 hereof. In case at the time such successor Rights Agent shall succeed
to the agency created by this Agreement, any of the Rights Certificates
shall have been countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of a predecessor Rights
Agent and deliver such Rights Certificates so countersigned; and in case
at that time any of the Rights Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Rights
Certificates either in the name of the predecessor or in the name of the
successor Rights Agent; and in all such cases such Rights Certificates
shall have the full force provided in the Rights Certificates and in
this Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates
shall not have been countersigned, the Rights Agent may countersign such
Rights Certificates either in its prior name or in its changed name; and
in all such cases such Rights Certificates shall have the full force
provided in the Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent
The Rights Agent undertakes the duties and obligations imposed by
this Agreement upon the following terms and conditions, by all of which
the Company and the holders of Rights Certificates, by their acceptance
thereof, shall be bound:
(a) The Rights Agent may retain and consult with legal counsel
(who may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection to the
Rights Agent as to any action taken or omitted by it in good faith and
in accordance with such opinion and the Rights Agent may also consult
with such other experts as the Rights Agent shall consider necessary or
appropriate to properly carry out the duties and obligations imposed
under this Agreement, and shall be protected in acting and relying in
good faith on the advice of any such expert.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that any
fact or matter (including, without limitation, the identity of any
Acquiring Person, the determination of "current market price" and the
nature and amount of any adjustment under the Uniphase Rights Agreement
corresponding to an adjustment to be made under this Agreement) be
proved or established by the Company prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence in respect
thereof be specified herein) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman, the Vice Chairman,
the Chief Executive Officer, the President, the Chief Financial Officer,
any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company and delivered to the
Rights Agent; provided, however, that so long as any Person is an
Acquiring Person hereunder, such certificate shall be signed and
delivered by a majority of the Board of Directors; and such certificate
shall be full authorization to the Rights Agent for any action taken or
suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in this Agreement or in
the certificates for Exchangeable Shares or in the Rights Certificates
or be required to verify the same (except as to its countersignature
thereof), but all such statements and recitals are and shall be deemed
to have been made by the Company only.
(e) The Rights Agent shall not have any responsibility for the
validity of this Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or for the validity or
execution of any Exchangeable Share certificate or of any Rights
Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any covenant or failure by
the Company to satisfy conditions contained in this Agreement or in any
Rights Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or Section 13 hereof or for
the manner, method or amount of any such adjustment or the ascertaining
of the existence of facts that would require any such adjustment (except
with respect to the exercise of Rights evidenced by Rights Certificates
after receipt by the Rights Agent of the certificate describing any such
adjustment contemplated by Section 12); nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Exchangeable Shares or any other
securities to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any Exchangeable Shares or any other
securities will, when so issued, be validly authorized and issued, fully
paid and non-assessable.
(f) The Company shall perform, execute, acknowledge and deliver
or cause to be performed, executed, acknowledged and delivered all such
further acts, instruments and assurances as may reasonably be required
by the Rights Agent for the performance by the Rights Agent of its
duties under this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
written instructions with respect to the performance of its duties
hereunder from the Chairman, the Vice Chairman, the Chief Executive
Officer, the President, the Chief Financial Officer, any Vice President,
the Secretary, any Assistant Secretary, the Treasurer or any Assistant
Treasurer of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be liable
for any action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer; provided, however,
that so long as any Person is an Acquiring Person hereunder, the Rights
Agent shall accept such instructions and advice only from a majority of
the Board of Directors and shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with such
instructions of a majority of the Board of Directors. Any application
by the Rights Agent for written instructions from the Company may, at
the option of the Rights Agent, set forth in writing any action proposed
to be taken or omitted by the Rights Agent under this Rights Agreement
and the date on and/or after which such action shall be taken or such
omission shall be effective. The Rights Agent shall not be liable for
any action taken by, or omission of, the Rights Agent in accordance with
a proposal included in any such application on or after the date
specified in such application (which date shall not be less than five
Business Days after the date any such officer of the Company actually
receives such application, unless any such officer shall have consented
in writing to an earlier date) unless, prior to taking any such action
(or the effective date in the case of an omission), the Rights Agent
shall have received written instructions in response to such application
specifying the action to be taken or omitted.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights
or other securities of the Company or have a pecuniary interest in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though
it were not Rights Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for the
Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights
or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and the Rights Agent
will not be answerable or accountable for any act, default, neglect or
misconduct of any such attorneys or agents or for any loss to the
Company resulting from such act, default, neglect or misconduct,
provided such act, default, neglect or misconduct did not constitute or
such loss was not a result of such attorneys' or agents' negligence, bad
faith or willful misconduct.
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties or in the exercise of
its rights hereunder if the Rights Agent shall have reasonable grounds
for believing that repayment of such funds or adequate indemnification
against such risk or liability is not reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered to
the Rights Agent for exercise or transfer, the certificate attached to
the form of assignment or form of election to purchase, as the case may
be, has either not been completed, not signed or indicates an
affirmative response to clause 1 and/or 2 thereof, the Rights Agent
shall not take any further action with respect to such requested
exercise or transfer without first consulting with the Company. If such
certificate has been completed and signed and shows a negative response
to clauses 1 and 2 of such certificate, unless previously instructed
otherwise in writing by the Company (which instructions may impose on
the Rights Agent additional ministerial responsibilities, but no
discretionary responsibilities), the Rights Agent may assume without
further inquiry that the Rights Certificate is not owned by a Person
described in Section 7(e) hereof and shall not be charged with any
knowledge to the contrary.
Section 21. Change of Rights Agent
The Rights Agent or any successor Rights Agent may resign and be
discharged from its duties under this Agreement upon thirty days' prior
notice in writing mailed to the Company, and to the transfer agent of
the Exchangeable Shares, by registered or certified mail, and to the
holders of the Rights Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon thirty days'
prior notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to the transfer agent of the Exchangeable
Shares, by registered or certified mail, and to the holders of the
Rights Certificates by first-class mail. If the Rights Agent shall
resign or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the Company
shall fail to make such appointment within a period of thirty days after
giving notice of such removal or after it has been notified in writing
of such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Rights Certificate or, prior to the
Distribution Date, the holder of a certificate for the Exchangeable
Shares (who shall, with such notice, submit his Rights Certificate or
certificate for the Exchangeable Shares, as the case may be, for
inspection by the Company), then any registered holder of any Rights
Certificate or, prior to the Distribution Date, the holder of a
certificate for the Exchangeable Shares may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a
court, shall be (a) a corporation organized and doing business under the
laws of Canada or any Province thereof in good standing, shall be
authorized under applicable laws to exercise corporate trust or stock
transfer powers or (b) an Affiliate of a corporation described in clause
(a). After appointment, the successor Rights Agent shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor
Rights Agent any property at the time held by it hereunder, and execute
and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Not later than the effective date of any such appointment,
the Company shall file notice thereof in writing with the predecessor
Rights Agent and the transfer agent of the Exchangeable Shares, and mail
a notice thereof in writing to the registered holders of the Rights
Certificates (or certificates for Exchangeable Shares prior to the
Distribution Date). Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the Rights Agent
or the appointment of the successor Rights Agent.
Section 22. Issuance of New Rights Certificates
Notwithstanding any of the provisions of this Agreement or the
Rights to the contrary, the Company may, at its option, issue new Rights
Certificates evidencing Rights in such form as may be approved by a
majority of the Board of Directors to reflect any adjustment or change
made in accordance with the provisions of this Agreement in the Purchase
Price or the number or kind or class of shares or other securities or
property that may be acquired under the Rights Certificates. In
addition, in connection with the issuance or sale of Exchangeable Shares
following the Distribution Date and prior to the Expiration Date, the
Company (a) shall, with respect to Exchangeable Shares so issued or sold
pursuant to the exercise of stock options or under any employee plan or
arrangement, or upon the exercise, conversion or exchange of securities
hereinafter issued by the Company, and (b) may, in any other case, if
deemed necessary or appropriate by a majority of the Board of Directors,
issue Rights Certificates representing the appropriate number of Rights
in connection with such issuance or sale; provided, however, that (i) no
such Rights Certificate shall be issued if, and to the extent that, the
Company shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or
the Person to whom such Rights Certificate would be issued, and (ii) no
such Rights Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of the
issuance thereof.
Section 23. Redemption and Termination
(a) The Company shall, at such time as the Uniphase Rights are
redeemed pursuant to the Uniphase Rights Agreement, redeem all but not
less than all of the then outstanding Rights at a redemption price of
U.S.$0.01 per Right, as such amount may be appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring
after the date hereof (such redemption price being the "Redemption
Price"). The Company may, at its option, by action of a majority of the
Board of Directors, pay the Redemption Price either in Exchangeable
Shares (based on the "current market price", as defined in Section 11(d)
hereof, of the Exchangeable Shares at the time of redemption) or cash
and the redemption of the Rights shall be effective on the basis and
with such conditions as the Board of Directors may in its sole
discretion establish.
(b) Immediately upon the action of Uniphase ordering the
redemption of the Uniphase Rights pursuant to Section 23 of the Uniphase
Rights Agreement, evidence of which shall be filed with the Rights
Agent, and without any further action and without any notice, the right
to exercise the Rights will terminate and the only right thereafter of
the holders of Rights shall be to receive the Redemption Price for each
Right so held. The Company shall promptly give public notice of any such
redemption; provided, however, that the failure to give, or any defect
in, any such notice shall not affect the validity of such redemption.
Promptly after the action of a majority of the Board of Directors
ordering the redemption of the Rights, the Company shall give notice of
such redemption to the Rights Agent and the holders of the then
outstanding Rights by mailing such notice to all such holders at each
holder's last address as it appears upon the registry books of the
Rights Agent or, prior to the Distribution Date, on the registry books
of the transfer agent for the Exchangeable Shares. Any notice which is
mailed in the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of redemption will
state the method by which the payment of the Redemption Price will be
made.
Section 24. Notice of Certain Events
(a) In the event that (x) Uniphase shall give notice pursuant to
Section 24 of the Uniphase Rights Agreement or (y) the Company shall
propose, at any time after the Distribution Date, (i) to pay any
dividend payable in stock of any class to the holders of Exchangeable
Shares or to make any other distribution to the holders of Exchangeable
Shares (other than a regular quarterly cash dividend paid out of funds
legally available therefor), (ii) to offer to the holders of
Exchangeable Shares rights or warrants to subscribe for or to purchase
any additional Exchangeable Shares or shares of stock of any class or
any other securities, rights or options, (iii) to effect any
reclassification of its Exchangeable Shares (other than a
reclassification involving only the subdivision of outstanding
Exchangeable Shares), (iv) to effect any consolidation, amalgamation or
merger into or with any other Person (other than a Subsidiary of the
Company in a transaction that complies with Section 11(o) hereof), or to
effect any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one or more
transactions, of more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any other Person or
Persons (other than Uniphase and/or any of its Subsidiaries (including
the Company) in one or more transactions each of which complies with
Section 11(o) hereof), or (v) to effect the liquidation, dissolution or
winding up of the Company, then, in each such case, the Company shall
give to each holder of a Rights Certificate (or prior to the
Distribution Date, to each holder of certificates for the Exchangeable
Shares), to the extent feasible and in accordance with Section 25
hereof, (A) a notice of the action proposed by Uniphase as set forth in
the notice given pursuant to Section 24 of the Uniphase Rights Agreement
or (B) notice of such proposed action by the Company, which shall
specify the record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which such
reclassification, consolidation, amalgamation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the Exchangeable Shares, if any
such date is to be fixed. Such notice shall be so given in the case of
any action covered by clause (x) above as soon as possible but not later
than two (2) Business Days after such notice is given by Uniphase, and
in the case of any action covered by clause (y) (i) or (ii) above at
least twenty (20) days prior to the record date for determining holders
of the Exchangeable Shares for purposes of such action, and in the case
of any such other action, at least twenty (20) days prior to the date of
the taking of such proposed action or the date of participation therein
by the holders of the Exchangeable Shares whichever shall be the
earlier; provided, however, no such notice shall be required pursuant to
this Section 24, if any Subsidiary of the Company effects a
consolidation, amalgamation or merger with or into, or effects a sale or
other transfer of assets or earnings power to, any other Subsidiary of
the Company.
(b) In case any Triggering Event shall occur, then, in any such
case, the Company shall as soon as practicable thereafter give to each
holder of a Rights Certificate, to the extent feasible and in accordance
with Section 25 hereof, a notice of the occurrence of such event, which
shall specify the event and the consequences of the event to holders of
Rights under Section 11(a)(ii) or Section 13 hereof, as the case may be.
Section 25. Notices
All notices and other communications provided for hereunder shall,
unless otherwise stated herein, be in writing and mailed or sent or
delivered (including by telecopier), if to the Company, at:
JDS Uniphase Canada Ltd.
c/o Uniphase Corporation
163 Baypointe Parkway
San Jose, California 95134
Attention: Senior Vice President, Business Development
Telecopier No.: (408) 954-0540
and if to the Rights Agent, at its address at:
CIBC Mellon Trust Company
320 Bay Street
P.O. Box 1
Toronto, Ontario
Attention: AVP, Client Services
Telecopier No.: (416) 643-5570
Notices or demands authorized or required by this Agreement to be
given or made by the Company or the Rights Agent to the holder of any
Rights Certificate (or, if prior to the Distribution Date, to the holder
of certificates representing Exchangeable Shares) shall be sufficiently
given or made if sent by first-class mail, postage prepaid, addressed to
such holder at the address of such holder as shown on the registry books
of the Company.
Section 26. Supplements and Amendments
Prior to the Distribution Date and subject to the penultimate
sentence of this Section 26, the Company may and the Rights Agent shall,
if the Company so directs, supplement or amend any provision of this
Agreement in any respect without the approval of any holders of
certificates representing Exchangeable Shares. From and after the
Distribution Date and subject to the penultimate sentence of this
Section 26, the Company may and the Rights Agent shall, if the Company
so directs, supplement or amend this Agreement without the approval of
any holders of Rights Certificates in order (i) to cure any ambiguity,
(ii) to correct or supplement any provision contained herein which may
be defective or inconsistent with any other provisions herein, (iii) to
shorten or lengthen any time period hereunder, or (iv) to change or
supplement the provisions hereunder in any manner which the Company may
deem necessary or desirable and which shall not adversely affect the
interests of the holders of Rights Certificates (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person); provided,
however, that this Agreement may not be supplemented or amended to
lengthen, pursuant to clause (iii) of this sentence, (A) subject to
Section 28 hereof, a time period relating to when the Rights may be
redeemed at such time as the Rights are not then redeemable, or (B) any
other time period unless such lengthening is for the purpose of
protecting, enhancing or clarifying the rights of, and/or the benefits
to, the holders of Rights. Upon the delivery of a certificate from an
appropriate officer of the Company or, so long as any Person is an
Acquiring Person hereunder, from the majority of the Board of Directors
which states that the proposed supplement or amendment is in compliance
with the terms of this Section 26, the Rights Agent shall execute such
supplement or amendment. At any time and subject to the penultimate
sentence of this Section 26, the Company and the Rights Agent shall
supplement or amend any provision of this Agreement without the approval
of any holders of Rights Certificates in order to ensure that the Rights
provide rights to acquire additional Exchangeable Shares (or in certain
circumstances other securities) on terms substantially the same as the
Uniphase Rights confer the right to acquire shares of preferred stock
(or other securities) of Uniphase that are essentially the economic
equivalent of Uniphase Common Stock (or in certain circumstances other
securities). Notwithstanding anything contained in this Agreement to
the contrary, (i) no supplement or amendment shall be made which changes
the Redemption Price, the Purchase Price, the Expiration Date or the
number of Exchangeable Shares or other securities or assets for which a
Right is exercisable without the approval of a majority of the Board of
Directors, and (ii) following the occurrence of a Section 11(a)(ii)
Event, no supplement or amendment whatsoever shall be made without the
approval of the Board of Directors. Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed coincident with the
interests of the holders of Exchangeable Shares.
Section 27. Successors
All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
Section 28. Determinations and Actions by the Board of Directors, etc.
Except as otherwise specifically provided herein, the Board of
Directors of the Company shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers
specifically granted to the Board or to the Company, or as may be
necessary or advisable in the administration of this Agreement,
including, without limitation, the right and power (i) to interpret the
provisions of this Agreement, and (ii) to make all determinations deemed
necessary or advisable for the administration of this Agreement. All
such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with respect
to the foregoing) which are done or made by a majority of the Board of
Directors in good faith shall (x) be final, conclusive and binding on
the Company, the Rights Agent, the holders of the Rights and all other
parties, and (y) not subject the Board or any member thereof to any
liability to the holders of the Rights.
Section 29. Benefits of this Agreement
Nothing in this Agreement shall be construed to give to any Person
other than the Company, the Rights Agent and the registered holders of
the Rights Certificates (and, prior to the Distribution Date, registered
holders of Exchangeable Shares) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered
holders of the Rights Certificates (and, prior to the Distribution Date,
registered holders of Exchangeable Shares).
Section 30. Severability
If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force
and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement to
the contrary, if any such term, provision, covenant or restriction is
held by such court or authority to be invalid, void or unenforceable and
a majority of the Board of Directors determines in its good faith
judgment that severing the invalid language from this Agreement would
adversely affect the purpose or effect of this Agreement and the Rights
shall not then be redeemable, the right of redemption set forth in
Section 23 hereof shall be reinstated and shall not expire until the
Close of Business on the tenth Business Day following the date of such
determination by a majority of the Board of Directors.
Section 31. Governing Law
This Agreement, each Right and each Rights Certificate issued
hereunder shall be governed by, and construed in accordance with, the
laws of the State of Delaware applicable to contracts executed in and to
be performed entirely in such State.
Section 32. Counterparts
This Agreement may be executed (including by telecopier) in one or
more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an
original, but all of which taken together shall constitute one and the
same instrument.
Section 33. Descriptive Headings
The headings contained in this Agreement are for descriptive
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 34. Exchange
(a) (i) The Company shall, at such time as the Uniphase Rights
are exchanged pursuant to Section 34(a)(i) of the Uniphase Rights
Agreement, exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void pursuant to
Section 7(e) hereof) for Exchangeable Shares at an exchange ratio of one
Exchangeable Share per Right, as appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the
date hereof (such exchange ratio being the " Section 34(a)(i) Exchange
Ratio").
(ii) The Company shall, at such time as the Uniphase Rights are
exchanged pursuant to Section 34(a)(ii) of the Uniphase Rights
Agreement, exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void pursuant to
Section 7(e)) for Exchangeable Shares at an exchange ratio equal to the
Section 34(a)(ii) Exchange Ratio (as defined in the Uniphase Rights
Agreement), as appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof. The
"Adjustment Spread" shall equal (x) the aggregate market price on the
date of such event of the number of Adjustment Shares determined
pursuant to Section 11(a)(ii), minus (y) the Purchase Price.
(b) Immediately upon the exchange of any Rights pursuant to
Section 34(a) and without any further action and without any notice, the
right to exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive that number of
Exchangeable Shares, equal to the number of such Rights held by such
holder multiplied by the Section 34(a)(i) Exchange Ratio or the Section
34(a)(ii) Exchange Ratio, as the case may be. The Company shall
promptly give notice of any such exchange; provided, however, that the
failure to give, or any defect in, such notice shall not affect the
validity of such exchange. The Company promptly shall mail a notice of
any such exchange to all of the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights Agent.
Any notice which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such notice
of exchange shall state the method by which the exchange of Exchangeable
Shares for Rights will be effected and, in the event of any partial
exchange, the number of Rights which will be exchanged. Any partial
exchange shall be effected pro rata based on the number of Rights (other
than Rights which have become void pursuant to the provisions of Section
7(e) hereof) held by each holder of Rights.
(c) In the event that the number of Exchangeable Shares which
are authorized for issuance by the Company but not outstanding or
reserved for issuance for purposes other than upon exercise of the
Rights are not sufficient to permit any exchange of Rights as
contemplated in accordance with this Section 34, the Company, upon a
resolution of a majority of the Board of Directors, shall take all such
action as may be necessary to authorize additional Exchangeable Shares
for issuance upon exchange of the Rights or make adequate provision to
substitute, in whole or in part, (1) cash, (2) other equity securities
of the Company, (3) debt securities of the Company, (4) other assets, or
(5) any combination of the foregoing, having an aggregate value for each
Right to be exchanged equal to the Adjustment Spread where such
aggregate value has been determined by a majority of the Board of
Directors.
(d) The Company shall not be required to issue fractions of
Exchangeable Shares or to distribute certificates which evidence
fractional Exchangeable Shares. In lieu of issuing fractional
Exchangeable Shares, the Company may pay to the registered holders of
Rights Certificates at the time such Rights are exchanged as herein
provided an amount in cash equal to the same fraction of the current
market price (determined pursuant to Section 11(d) hereof) of one
Exchangeable Share immediately prior to the date of exchange pursuant to
this Section 34.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the date first above written.
JDS UNIPHASE CANADA LTD.
By:
Name:
Title:
CIBC MELLON TRUST COMPANY
By:
Name:
Title:
By:
Name:
Title:
EXHIBIT A
[Form of Rights Certificate]
Certificate No. ______ ______ Rights
NOT EXERCISABLE AFTER THE EXPIRATION DATE (AS DEFINED IN THE
RIGHTS AGREEMENT REFERRED TO BELOW). THE RIGHTS ARE SUBJECT TO
REDEMPTION OR EXCHANGE, AT THE OPTION OF THE COMPANY, ON THE TERMS
SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES
(SPECIFIED IN THE RIGHTS AGREEMENT), RIGHTS BENEFICIALLY OWNED BY
ACQUIRING PERSONS (AS DEFINED IN THE RIGHTS AGREEMENT) OR ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID.
Rights Certificate
JDS UNIPHASE CANADA LTD.
This certifies that ______________________, or registered assigns,
is the registered holder of the number of Rights set forth above, each
of which entitles the registered holder thereof, subject to the terms
and conditions of the Rights Agreement dated as of June 30, 1999, as
amended from time to time (the "Rights Agreement"; terms defined therein
are used herein with the same meaning unless otherwise defined herein)
between JDS Uniphase Canada Ltd., a corporation incorporated under the
laws of Canada (the "Company"), and CIBC Mellon Trust Company, as Rights
Agent (which term shall include any successor Rights Agent under the
Rights Agreement), to purchase from the Company at any time after the
Distribution Date and prior to the Expiration Date at the office of the
Rights Agent, one Exchangeable Share of the Company at the Purchase
Price initially of U.S.$270 per Exchangeable Share, upon presentation
and surrender of this Rights Certificate with the Election to Purchase
and related certificate duly executed. The number of Rights evidenced by
this Rights Certificate (and the number of shares which may be purchased
upon exercise thereof) set forth above, and the Purchase Price per Unit
set forth above, and the Purchase Price per share set forth above, are
the number and Purchase Price as of June 30, 1999 based on the
Exchangeable Shares as constituted at such date.
Upon the occurrence of Section 11(a)(ii) Event, if the Rights
evidenced by this Rights Certificate are beneficially owned by an
Acquiring Person or an Affiliate or Associate of any such Acquiring
Person or, under certain circumstances described in the Rights
Agreement, a transferee of any such Acquiring Person, Associate or
Affiliate, such Rights shall become null and void and no holder hereof
shall have any right with respect to such rights from and after the
occurrence of such Section 11(a)(ii) Event.
In certain circumstances described in the Rights Agreement, the
Rights evidenced hereby may entitle the registered holder thereof to
purchase capital stock of an entity other than the Company or receive
Exchangeable Shares, cash or other assets, all as provided in the Rights
Agreement. As provided in the Rights Agreement, the Purchase Price and
the number and kind of Exchangeable Shares or other securities, which
may be purchased upon the exercise of the Rights evidenced by this
Rights Certificate are subject to modification and adjustment upon the
happening of certain events, including a Triggering Event.
This Rights Certificate is subject to all of the terms and
conditions of the Rights Agreement, which terms and conditions are
hereby incorporated herein by reference and made a part hereof and to
which Rights Agreement reference is hereby made for a full description
of the rights, limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the Rights
Certificates, which limitations of rights include the temporary
suspension of the exercisability of such Rights under the specific
circumstances set forth in the Rights Agreement. Copies of the Rights
Agreement are on file at the principal office of the Rights Agent and
are available from the Rights Agent upon written request.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office of the Rights Agent
designated for such purpose, may be exchanged for another Rights
Certificate or Rights Certificates of like tenor and date evidencing an
aggregate number of Rights equal to the aggregate number of Rights
evidenced by the Rights Certificate or Rights Certificates surrendered.
If this Rights Certificate shall be exercised in part, the registered
holder shall be entitled to receive, upon surrender hereof, another
Rights Certificate or Rights Certificates for the number of whole Rights
not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company under
certain circumstances at its option at a redemption price of U.S.$0.01
per Right, at any time prior to the earlier of the close of business on
(i) the tenth day following the Stock Acquisition Date (as such time
period may be extended pursuant to the Rights Agreement), other than a
Stock Acquisition Date that occurs as a result of a Qualifying Offer, or
(ii) the Final Expiration Date.
No fractional Exchangeable Shares will be issued upon the exercise
of any Right or Rights evidenced hereby, but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled
to vote or receive dividends or be deemed for any purpose the holder of
Exchangeable Shares or of any other securities which may at any time be
issuable on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a shareholder of the Company or
any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or
other actions affecting (except as provided in the Rights Agreement), or
to receive dividends of subscription rights, or otherwise, until the
Rights evidenced by this Rights Certificate shall have been exercised as
provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of ,
JDS UNIPHASE CANADA LTD.
Name: Mike Phillips
Title: Secretary
Countersigned:
CIBC MELLON TRUST COMPANY
Authorized Signature:
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if
such holder desires to transfer
the Rights Certificate.)
FOR VALUE RECEIVED ____________________ hereby sells, assigns and
transfers
unto:
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint Attorney, to
transfer the within Rights Certificate on the books of the within-named
Company, with full power of substitution.
Dated:
Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Rights Certificate [ ] is [ ] is not being sold,
assigned and transferred by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Acquiring
Person (as such terms are defined pursuant to the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced
by this Rights Certificate from any Person who is, was or subsequently
became an Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated:
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement or
any change whatsoever.
Signatures must be guaranteed, if presented for transfer in
Canada, by a Canadian chartered bank, major Canadian trust company, or a
member of the Stock Transfer Agents Medallion Program ("STAMP"). If
presented for transfer in the United States, signatures must be
guaranteed by an approved eligible financial institution acceptable to
the Rights Agent in its sole discretion or by a participant in the
Securities Transfer Agents Medallion Program, the Stock Exchange
Medallion Program or the New York Stock Exchange Medallion Program.
In the event the certification set forth above is not completed,
the Company will deem the beneficial owner of the Rights evidenced by
this Rights Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) and, in the case
of an Assignment, will affix a legend to that effect on any Rights
Certificates issued in exchange for this Rights Certificate.
FORM OF ELECTION TO PURCHASE
(To be executed if the registered holder
desires to exercise Rights represented
by the Rights Certificate.)
To: JDS UNIPHASE CANADA LTD.
The undersigned hereby irrevocably elects to exercise
____________________ Rights represented by this Rights Certificate to
purchase the Exchangeable Shares issuable upon the exercise of the
Rights (or such other securities of the Company or of any other person
or other property which may be issuable upon the exercise of the Rights)
and requests that certificates for such Exchangeable Shares be issued in
the name of and delivered to
(Please print name and address)
(Please insert social security
or other identifying number).
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such
Rights shall be registered in the name of and delivered to:
(Please print name and address)
(Please insert social security
or other identifying number).
Dated:
Signature
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes
in (1) and (2) that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ]
are not beneficially owned by an Acquiring Person or an Affiliate or
an Associate thereof (as defined in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the
undersigned, the undersigned [ ] did [ ] did not acquire the
Rights evidenced by this Rights Certificate from any person who is, was
or subsequently became an Acquiring Person or an Affiliate or Associate
thereof.
Dated:
Signature
Signature Guaranteed:
NOTICE
The signature in the foregoing Election to Purchase and
Certificate must conform to the name as written upon the face of this
Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.
Signatures must be guaranteed, if presented for transfer in
Canada, by a Canadian chartered bank, major Canadian trust company, or a
member of the Stock Transfer Agents Medallion Program ("STAMP"). If
presented for transfer in the United States, signatures must be
guaranteed by an approved eligible financial institution acceptable to
the Rights Agent in its sole discretion or by a participant in the
Securities Transfer Agents Medallion Program, the Stock Exchange
Medallion Program or the New York Stock Exchange Medallion Program.
In the event the certification set forth above is not completed,
the Company will deem the beneficial owner of the Rights evidenced by
this Rights Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) and, in the case
of an Assignment, will affix a legend to that effect on any Rights
Certificates issued in exchange for this Rights Certificate.
