<PAGE>
-SECURITIES AND EXCHANGE COMMISSION-
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. _______________)*
JDS UNIPHASE CORPORATION
------------------------
(Name of Issuer)
COMMON STOCK PAR VALUE $0.001 PER SHARE
---------------------------------------
(Title of Class of Securities)
466125 10 1
-----------
(CUSIP Number)
Nicholas Unkovic, Esq.
Roya Hosseini, Esq.
GRAHAM & JAMES LLP
600 Hansen Way
Palo Alto, CA 94304-1043
(650) 843-3235
--------------
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
JULY 6, 1999
------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.113d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box. / /
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7(b) for
other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act,
but shall be subject to all other provisions of the Act (however, SEE the
Notes).
<PAGE>
<TABLE>
<CAPTION>
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CUSIP No. 466125 10 1 13D Page 1 of 9 Pages
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<S> <C>
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1) Names of Reporting Persons I.R.S. Identification Nos. of Above Persons (entities only)
The Furukawa Electric Co., Ltd. ("FEC")
FEJ Holding Inc. ("FEJH")
FEJ Sales Inc. ("FEJS")
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2) Check the Appropriate Box if a Member of a Group (SEE Instructions)
(a) x
(b)
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3) SEC Use Only
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4) Source of Funds (See Instructions)
WC, OO
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5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
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6) Citizenship or Place of Organization
Japan
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Number of (7) Sole Voting Power = 0
Shares
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Beneficially (8) Shared Voting Power = 18,999,260
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Owned by (9) Sole Dispositive Power = 0
Each Reporting
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Person with (10) Shared Dispositive Power = 18,999,260
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11) Aggregate Amount Beneficially Owned by Each Reporting Person
18,999,260
</TABLE>
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<TABLE>
<S> <C>
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12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares / /
(SEE Instructions)
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13) Percent of Class Represented by Amount in Row (11)
24%
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14) Type of Reporting Person (See Instructions)
CO
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</TABLE>
<PAGE>
ITEM 1 SECURITY AND ISSUER.
The title of the class of the equity securities to which this
statement relates is Common Stock, $0.001 per share, of JDS Uniphase
Corporation (the "Issuer").
The Issuer and the address of its principal executive offices are:
JDS Uniphase Corporation
163 Baypointe Parkway
San Jose, CA 95134
ITEM 2 IDENTITY AND BACKGROUND.
(a) - (c) and (f):
FEC is a corporation organized and existing under the
laws of Japan. The principal business address of FEC
is 6-1, Marunochi 2-chome, Chiyoda-ku, Tokyo 100-8322,
Japan. FEC is a diversified company engaged, directly
or through its subsidiaries, in the manufacture and sale of
electric wire and cable, nonferrous metals and related
products, fiber optics related products and other products.
FEJH and FEJS are Canadian corporations wholly owned by
FEC and the record owners of the securities that are
the subject of this Schedule 13D. Set forth below is
information concerning the name, business address, and
present principal occupation or employment of all of the
present executive officers and directors of FEC, FEJH,
and FEJS. Also provided are the names of each person
controlling such corporations, if any, and each executive
officer and director of any corporation or other person
ultimately in control of such corporation, if any.
FEJH and FEJS
<TABLE>
<CAPTION>
Name Business Address Present Principal Occupation or Employment
---- ---------------- ------------------------------------------
<S> <C> <C>
FEJH and FEJS
DIRECTOR 6-1, Marunouchi 2-Chome Managing Director, FEC
Jo Kubota Chiyoda-Ku, Tokyo
100-8322, Japan
PRESIDENT " "
Jo Kubota
VICE PRESIDENT " Manager, Finance and Accounting Dept.,
Hideo Sakura FEC
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
=============================================================================================================================
NAME BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT
=============================================================================================================================
<S> <C> <C>
FEC
CHAIRMAN 6-1, Marunouchi 2-Chome, Chairman/FEC
Kengo Tomomatsu Chiyoda-Ku, Tokyo
100-8322, Japan
- -----------------------------------------------------------------------------------------------------------------------------
PRESIDENT
Junnosuke Furukawa " President/FEC
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VICE PRESIDENT
Takaharu Shibata " Vice President/FEC
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SENIOR MANAGING DIRECTORS
Masaaki Noguchi " Senior Managing Director/FEC
- -----------------------------------------------------------------------------------------------------------------------------
Masashi Kato " "
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Shiro Okuda " "
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Hiroshi Ishihara " "
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MANAGING DIRECTORS
Jo Kubota " Managing Director/FEC
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Katsuhiko Okubo " "
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Masaei Numanami " "
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Shintaro Koizumi " "
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DIRECTORS 6-1, Marunouchi 2-Chome, Director/FEC
Akitaka Nakai Chiyoda-Ku, Tokyo President/Furukawa Co. Ltd.
100-8370, Japan Industrial Cable Div./FEC
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Yoshihisa Katsuyama Hiratsuka Works/ Director
5-1-9 Higashi-yawata, General Manager
Hiratsuka-City, Kanagawa Industrial Cable Div./FEC
254-0016, Japan
- -----------------------------------------------------------------------------------------------------------------------------
Takekazu Hanatani 6-1, Marunouchi 2-Chome Deputy Director
Chiyoda-Ku, Tokyo Deputy General Manager
100-8322, Japan Sales and Marketing Div./FEC
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Takeshi Hisamori " Director
Deputy General Manager
Copper Products Group/FEC
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Ikuo Shigemura " Director
Deputy General Manager
Light Metals Group/FEC
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Mikio Moritani " Director
General Manager
Bare Wire & Cable Div./FEC
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Yuichi Zuzuki Director
Deputy General Manager
Research & Development Div./FEC
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Hiroshi Wada 6-1, Marunouchi 2-Chome Director
Chiyoda-Ku, Tokyo General Manager
100-8322, Japan Personnel Dept./FEC
- -----------------------------------------------------------------------------------------------------------------------------
Makoto Shimizu " Director
General Manager
Automotive Products Div./FEC
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Kunihoro Matsubara " Director
General Manager
Fitel Products Div./FEC
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Zensuke Iwata Shinagawa Works/ Director
4-13-14 General Manager
Higashi-shinagawa Power Cable Div./FEC
Shinagawa-Ku
Tokyo 140-0002, Japan
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Takemasa Ide Kansai Branch/ Director
2-1-29 Doujimahama General Manager
Kita-Ku Kansai Branch/FEC
Osaka 530-0004, Japan
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Osamu Sato 6-1, Marunouchi 2-Chome Director
Chiyoda-Ku, Tokyo General Manager
100-8322, Japan Finance & Accounting Dept./FEC
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Kiyoshi Takeuchi " Director
General Manager
Plant & Facilities Dept./FEC
=============================================================================================================================
</TABLE>
<PAGE>
(d) - (e)
During the last five years, neither FEC, nor any of
the persons listed above, has been convicted in a criminal
proceeding or been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction
and as a result of such proceeding been subject to a
judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to,
Federal or State securities laws or finding any violation
with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Pursuant to a Merger Agreement dated as of January 28, 1999
(the "Merger Agreement"), by and among Uniphase, 3506967
Canada, Inc., a wholly-owned subsidiary of Uniphase
("Exchangeco") and JDS Fitel, Inc. ("JDS"), Uniphase
(through one or more subsidiaries) acquired 100 percent of
the voting securities of JDS. Each holder of the JDS Common
Shares who is a resident of Canada was entitled to elect to
receive, at such holder's option, 0.50855 of an
exchangeable non-voting share ("Exchangeable Shares") in
the capital of Exchangeco or 0.50855 of a common share in
the capital of Uniphase ("Uniphase Common Shares"), for
each JDS Common Share held.
As a result of the transactions contemplated by the merger,
FEC, as a former 47.6% shareholder of JDS (i.e. owner
of 37,359,670 JDS Common Shares), through its Canadian
subsidiaries FEJH and FEJS, acquired 18,999,260
Exchangeable Shares, representing approximately 24% of the
aggregate outstanding Uniphase Common Shares and
Exchangeable Shares taken together.
The Exchangeable Shares were issued by Exchangeco. The
Exchangeable Shares are intended to be the economic
equivalent to the Uniphase Common Shares. The Exchangeable
Shares are exchangeable at any time at the option of the
holder on a one-for-one basis, for Uniphase Common Shares.
Holders of the Exchangeable Shares are able to exercise
essentially the same voting rights with respect to Uniphase
as they would have if they had exchanged their Exchangeable
Shares for Uniphase Common Shares.
Uniphase has been renamed JDS Uniphase Corporation.
ITEM 4. PURPOSE OF TRANSACTION.
As a result of the transactions contemplated by the merger,
FEC, as a former 47.6% shareholder of JDS (i.e. owner
of 37,359,670 JDS Common Shares), through FEJH and FEJS,
acquired 18,999,260 Exchangeable Shares, representing
approximately 24% of the aggregate outstanding Uniphase
Common Shares and Exchangeable Shares taken together.
<PAGE>
FEC, through FEJH and FEJS, acquired the Issuer's
stock for investment purposes. However, FEC does not
now intend to acquire additional Uniphase Common Shares or
Exchangeable Shares.
FEC intends to review its equity interest in the Issuer
on a continuing basis. Depending on an evaluation of the
Issuer's business and prospects, and upon future
developments (including, but not limited to, market
prices of the Exchangeable Shares and Uniphase Commons
Shares, availability and alternative uses of funds, as
well as conditions in the securities markets and general
economic and industry conditions), and subject to the
provisions of the Furukawa Support Agreement (the
"Support Agreement") and the Registration Rights
Agreement described below, FEC may acquire additional
shares, dispose of any or all of their shares at any
time or maintain their position at the current level.
Subject to applicable securities law, any additional
purchases or sales may be made in the open market or in
privately negotiated transactions.
(a) - (d) are inapplicable.
Except as set forth above, FEC has no present plans
or intentions which would result in or relate to any of
the transactions required to be described in subparagraphs
(e) through (j) of Item 4 of Schedule 13D, although
FEC may, depending on the factors set forth above, and
other considerations, determine to pursue one or more such
transactions.
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) - (b)
FEC, through FEJH and FEJS, owns 18,999,260 of
Exchangable Shares, which represents approximately 24%
of the aggregate outstanding Uniphase Common Shares and
Exchangeable Shares taken together. Such Exchangeable
Shares are economically equivalent to the Uniphase
Common Shares. The Exchangeable Shares are exchangeable
at any time at the option of the holder on a one-for-one
basis, for Uniphase Common Shares. Uniphase Common Stock
has a par value of $0.001 per share. To the best
knowledge of FEC, none of the directors or executive
officers of FEC listed in Item 2 beneficially own any
Common Stock of the Issuer. FEC, through FEJH and
FEJS, has the shared power to vote and dispose of all
18,999,260 shares.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
Pursuant to the Support Agreement dated January 28,
1999, as amended and restated as of April 29, 1999, by
and among FEC, Uniphase, Exchangeco and JDS a copy of
which is filed as an exhibit hereto and incorporated
herein by reference, FEC has agreed that neither it nor
any of its affiliates shall, without the prior written
consent of Uniphase, transfer, directly or indirectly,
after the Effective Date, Exchangeable Shares or
Uniphase Common Shares
<PAGE>
representing 10% or more of the total combined voting power
of the then outstanding Exchangeable Shares and Uniphase
Common Shares, taken together, to any one Person that is
(i) a Uniphase competitor as described in Uniphase's most
recent Form 10-K or any subsequent filing made by Uniphase
with the SEC; or (ii) a Person, who directly or indirectly,
has either (A) previously sought to acquire a controlling
interest (being 50% of the combined voting power) in a
publicly traded corporation through a hostile tender offer
or other structure not approved by the board of directors
of the target corporation, and who Uniphase reasonably
determines, based upon credible external information,
intends to make such a hostile bid to acquire a controlling
interest in Uniphase; or (B) publicly disclosed an
intention to acquire, directly or indirectly, any
combination of Uniphase Common Shares and Exchangeable
Shares representing more than 50% of the total combined
voting power of Uniphase Common Shares and Exchangeable
Shares then outstanding, taken together.
Also, in the Support Agreement, Uniphase and Exchangeco
have agreed that, notwithstanding the terms and conditions
of the Exchangeable Shares and provided that FEC owns
at least 992,372 Exchangeable Shares, the date, if any,
established by the board of directors of Exchangeco for the
redemption by Exchangeco of the Exchangeable Shares shall
not be established as any date earlier than March 31, 2014
and Exchangeco will not voluntarily initiate, or consent to
the initiation of, any liquidation, dissolution or
winding-up of Exchangeco or other distribution of its
assets among its shareholders for the purpose of winding-up
of its affairs, in each case without the prior written
consent of FEC.
The Support Agreement provides that it will be terminated
upon the date which is 10 years after July 6, 1999, subject
to earlier termination by FEC or Uniphase in the event
the members of the FEC group of companies own, in the
aggregate, either more than 50% or less than 10% of the
total combined voting power of all outstanding Uniphase
Common Shares.
Pursuant to the Registration Rights Agreement, dated July
6, 1999, by and among the Issuer, Exchangeco, FEJH and
FEJS, a copy of which is filed as an exhibit hereto and
incorporated herein by reference, upon request and in
specified circumstances, Uniphase or Exchangeco, as the
case may be, will register or qualify Uniphase Common
Shares or Exchangeable Shares held by FEJH or FEJS (or its
permitted transferees) under United States securities laws
(with respect to the Uniphase Common Shares) or Canadian
securities laws (with respect to the Exchangeable Shares)
in order to facilitate the sale of such shares.
The Registration Rights Agreement restricts the number of
times registration or qualification may be requested to
once per twelve-month period and to a total of five times.
The Registration Rights Agreement also provides FEJH and
FEJS with certain rights to have its or their Uniphase
Common Shares or Exchangeable Shares registered or
qualified when JDS Uniphase or Exchangeco, as the case may
be, effects a registration or qualification of its shares.
The rights provided in the Registration Rights Agreement
expire upon the earlier of 10 years from the date of the
agreement or, with respect to FEJH or FEJS or a particular
<PAGE>
transferee, when that shareholder holds less than 1% of
the outstanding Uniphase Common Shares and Exchangeable
Shares then outstanding, taken together.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
99.1 FEC Support Agreement.
99.2 Registration Rights Agreement.
SIGNATURE.
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
July 14, 1999
THE FURUKAWA ELECTRIC CO., LTD.
by
/S/ Osamu Sato
- -------------------------------
Osamu Sato
- -------------------------------
Name
General Manager / Finance and Accounting Department
- ---------------------------------------------------
Title
<PAGE>
SUPPORT AGREEMENT
-----------------
THIS AGREEMENT amended and restated as of the 29th day of April, 1999.
A M O N G:
UNIPHASE CORPORATION,
a corporation existing under the laws of the State of
Delaware (hereinafter referred to as "Uniphase")
- and -
3506967 CANADA INC.,
a corporation existing under the laws of Canada
(hereinafter referred to as "Exchangeco")
- and -
THE FURUKAWA ELECTRIC CO., LTD.,
a corporation existing under the laws of Japan
(hereinafter referred to as "Furukawa")
- and -
JDS FITEL INC.,
a corporation existing under the laws of Canada
(hereinafter referred to as "JDS")
RECITALS:
- ---------
1. Uniphase and its wholly-owned subsidiary, Exchangeco,
(collectively, the "Uniphase Parties") propose to enter into an amended and
restated merger agreement (the "Merger Agreement") with JDS substantially in
the form attached hereto as Schedule C under which, among other things and as
more particularly described in the Merger Agreement, Exchangeco would issue
Class B non-voting preference shares ("Class B Non-Voting Preference Shares")
to certain direct or indirect holders of common shares of JDS under a plan of
arrangement (the "Arrangement") under the CANADA BUSINESS CORPORATIONS ACT
("CBCA"). Pursuant to the Arrangement, Exchangeco and 3025244 Nova Scotia
Company would then acquire all of the outstanding Class B Non-Voting
Preference Shares and the holders of Class B Non-Voting Preference Shares
would receive Exchangeable Shares of Exchangeco or common shares of Uniphase.
2. This Agreement sets out the terms and conditions of the
agreement of Furukawa (i) to support the Arrangement, including any
Alternative Transaction (as defined in section 2.3)
<PAGE>
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contemplated thereby; (ii) to vote the JDS Common Shares owned by Furukawa in
favour of the Arrangement and any Alternative Transaction; (iii) to certain
matters relating to its ownership of Uniphase Common Shares for a period of
10 years following the Effective Date of the Arrangement; and (iv) to abide
by the restrictions and covenants set forth herein.
3. Furukawa acknowledges that the Uniphase Parties would not enter
into the Merger Agreement but for the execution and delivery of this
Agreement by Furukawa.
ARTICLE 1.
DEFINITIONS
1.1. As used herein, the term "JDS Common Shares" means the common shares
of JDS as constituted at the date hereof and includes any other voting
securities of JDS that may result from a reclassification, conversion,
consolidation, subdivision or exchange of, or distribution or dividend on,
such shares. As used herein, the term "Uniphase Common Shares" means the
Exchangeable Shares of Exchangeco, the shares of common stock, US$0.001 par
value, of Uniphase and any other voting securities of Uniphase which are
entitled to vote generally in the election of directors of Uniphase. As used
herein, the term "FCo Group" means Furukawa and all Affiliates of Furukawa.
As used herein, the term "Affiliate" of any Person means any other Person
directly or indirectly controlling, controlled by, or under common control
of, that Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common
control with"), as applied to any Person, means the possession by another
Person, directly or indirectly, of the power to direct or cause the direction
of the management and policies of that first mentioned Person, whether
through the ownership of voting securities, by contract or otherwise. Other
capitalized terms which are not defined in this Agreement have the meaning
ascribed to such terms in the Merger Agreement.
ARTICLE 2.
COMMITMENT IN FAVOUR OF THE ARRANGEMENT
2.1. NON-SOLICITATION. Furukawa irrevocably covenants and agrees in favour
of the Uniphase Parties that Furukawa will not directly or indirectly solicit
or initiate (including by way of furnishing information or entering into any
form of agreement or arrangement) any inquiries or proposals regarding any
merger, amalgamation, take-over bid, sale of material assets (or any lease,
long-term supply agreement or other arrangement having the same economic
effect as a sale) or material sale of shares or rights or interests therein
or thereto (other than as contemplated by section 2.8) or similar
transactions involving JDS or any material subsidiary of JDS, or a proposal
to do so, other than with the Uniphase Parties (each, an "Inconsistent
Transaction"). Furukawa shall promptly notify JDS and Uniphase in writing of
any proposal of which Furukawa becomes aware for an Inconsistent Transaction
and of any request in connection with such a proposal for non-public
information relating to JDS or any of its material subsidiaries and of all
the relevant details relating to such a proposal. JDS acknowledges and
agrees to such notice being provided by Furukawa.
<PAGE>
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2.2. VOTING. Subject to section 2.9:
(a) Furukawa irrevocably covenants and agrees in favour of the
Uniphase Parties to vote or to cause to be voted the JDS Common
Shares (including shares owned as of January 28, 1999, whether
held directly or indirectly, and including shares acquired at
any time prior to the Meeting (as defined below)) owned by the
FCo Group (collectively, the "Furukawa Shares") in favour of
the Arrangement at any special meeting or meetings or
adjournment or adjournments thereof of holders of JDS Common
Shares to be held to consider the Arrangement (the "Meeting"),
including in connection with any separate vote of any sub-group
of shareholders that may be required to be taken and of which
sub-group any member of the FCo Group forms a part. Furukawa
irrevocably covenants and agrees in favour of the Uniphase
Parties that (i) no later than five days prior to the date of
the Meeting it shall deliver or cause to be delivered to JDS a
duly executed proxy or proxies in favour of management of JDS
voting in favour of the Arrangement and (ii) such proxy or
proxies will not be revoked.
(b) Furukawa irrevocably covenants and agrees in favour of the
Uniphase Parties to vote or to cause to be voted the Furukawa
Shares against any Inconsistent Transaction proposal at any
meeting of shareholders of JDS.
2.3. CHANGE IN NATURE OF TRANSACTION. Subject to Section 2.9, Furukawa
irrevocably covenants and agrees in favour of the Uniphase Parties that if
the Uniphase Parties and their counsel and JDS and its counsel mutually agree
that it is necessary or desirable to proceed with another form of transaction
whereby Uniphase or any of its Affiliates would effectively acquire 100% of
the JDS Common Shares on economic terms and other terms and conditions
(including, without limitation, tax treatment) and having consequences to
Furukawa which, in relation to JDS and Furukawa, in the sole determination of
Furukawa acting reasonably, are substantially equivalent to those
contemplated by the Merger Agreement (an "Alternative Transaction"), the FCo
Group will support the completion of such Alternative Transaction in the same
manner as the Arrangement.
2.4. MEETING OF SHAREHOLDERS. Subject to section 2.9, if an Alternative
Transaction involves a meeting or meetings of holders of shares of JDS,
Furukawa irrevocably covenants and agrees in favour of the Uniphase Parties
to vote the Furukawa Shares or to cause the Furukawa Shares to be voted in
favour of any matters necessary or ancillary to the completion of the
transactions contemplated by the Alternative Transaction in the same manner,
MUTATIS MUTANDIS, as that referred to in section 2.2(a).
2.5. CHANGES OF REFERENCES. In the event of any proposed Alternative
Transaction, the references in this Agreement to "Arrangement" shall be
changed to "Alternative Transaction" and all terms, covenants, conditions,
representations and warranties of this Agreement shall be and shall be deemed
to have been made in the context of the Alternative Transaction. All
references to the "Effective Date" herein shall also refer to the date of
closing of the transactions contemplated by the Alternative Transaction.
<PAGE>
-4-
2.6. NO DISSENT. Furukawa covenants that it will not nor will any other
member of the FCo Group exercise any rights of dissent provided under section
190 of the CBCA or the Interim Order or otherwise in connection with the
Arrangement, any Alternative Transaction or any other corporate transaction
considered at the JDS Meeting in connection therewith.
2.7. TRANSFER OF SHARES. Furukawa irrevocably covenants and agrees in
favour of the Uniphase Parties that the FCo Group will not prior to the
Effective Time transfer or assign or agree to transfer or assign any of the
Furukawa Shares, whether pursuant to an Inconsistent Transaction or
otherwise, without the prior consent of Uniphase, which consent shall not be
unreasonably withheld if it is sought for BONA FIDE tax planning purposes and
does not materially prejudice, directly or indirectly, the Uniphase Parties
or completion of the Arrangement.
2.8. PERMITTED TRANSFER OF SHARES. Notwithstanding section 2.7, the FCo
Group may at any time and from time to time prior to the Effective Time
transfer or assign or agree to transfer or assign Furukawa Shares in the
following circumstances, without the prior consent of Uniphase:
(a) the FCo Group may transfer or assign Furukawa Shares to any
other member of the FCo Group provided that such member agrees
in writing, in form and substance reasonably satisfactory to
Uniphase, to be bound by this Agreement; and
(b) the FCo Group may transfer or assign up to 14% of the Furukawa
Shares, provided that it retains the right to vote or cause to
be voted such shares in connection with the Arrangement by
obtaining an irrevocable proxy from any transferee or assignee
or by obtaining the written agreement of the transferee or
assignee, in form and substance reasonably satisfactory to
Uniphase, to be bound by sections 2.2, 2.3, 2.4, 2.6, 2.7 and
2.8 of this Agreement.
2.9. CONDITIONS PRECEDENT. The obligations of Furukawa to support the
Arrangement and to perform its obligations contemplated by sections 2.2,
2.3, 2.4 and 2.6 shall be subject to fulfillment of the following conditions
(which are for the FCo Group's exclusive benefit and may be waived by
Furukawa on behalf of the FCo Group and which, if not satisfied or waived,
will relieve the FCo Group of any obligations under sections 2.2, 2.3, 2.4
and 2.6):
(a) there shall not be in force any order or decree of a
Governmental Entity restraining or enjoining Furukawa from
performing its obligations contemplated by sections 2.2, 2.3,
2.4 and 2.6 and there shall be no proceeding of a judicial or
administrative nature or otherwise, in progress or threatened
that relates to or results from the transactions or actions
contemplated by this Agreement or the Merger Agreement that
would, if successful, result in an order or ruling that would
preclude Furukawa from performing its obligations contemplated
by sections 2.2, 2.3, 2.4 and 2.6 in accordance with the terms
hereof;
<PAGE>
-5-
(b) on the date of the Meeting, Osler, Hoskin & Harcourt shall have
delivered an opinion letter addressed to Furukawa or its
Affiliates substantially in the form attached hereto as
Schedule A;
(c) as of the date of the Meeting, the Japanese taxation
authorities shall have continued to confirm orally to
representatives of Furukawa, in a form satisfactory to Furukawa
acting reasonably, that the conversion of the JDS Common Shares
into Class B Non-Voting Preference Shares and the exchange
thereof for Exchangeable Shares and the Ancillary Rights (as
defined in Schedule A hereto) will occur on a tax-free basis
under the taxation Laws of Japan;
(d) prior to the date of the Meeting, JDS shall have obtained an
opinion from an independent valuer that the fair market value
of (i) the Ancillary Rights, (ii) all the overriding call
rights as such expression is generally used in transactions
involving exchangeable shares, and (iii) the rights provided to
Furukawa pursuant to section 6.2 of this Agreement are nominal,
in a form satisfactory for Furukawa, acting reasonably; and
(e) on the date of the Meeting, Morrison & Foerster LLP shall have
delivered an opinion letter addressed to Uniphase, in form and
substance reasonably satisfactory to Uniphase and Furukawa and
upon which Furukawa and its Affiliates shall be entitled to
rely, substantially to the effect that, among other things:
(i) it is more likely than not that the transactions
contemplated by the Arrangement will be considered a
taxable asset acquisition and not a tax-free
reorganization or incorporation for the purposes of
United States federal income tax law;
(ii) it is more likely than not that Amalco will be able to
obtain a stepped-up cost basis on the assets of JDS upon
the Arrangement taking effect which will result in
depreciation and amortization deductions that will
reduce for United States federal income tax law purposes
the earnings and profits of Amalco for purposes of (1)
computing the amount of taxable dividends received by
Uniphase when such earnings and profits are distributed
to Uniphase, and (2) making foreign tax credit
calculations; and
(iii) neither Uniphase nor any of its Affiliates will be
subject to any penalties under United States income tax
law as a consequence of adopting the filing positions
set out in sections 2.9(e)(i) and (ii) above.
2.10. CONDITIONS PRECEDENT TO CLOSING. Furukawa shall have the right, subject
to section 2.11, to notify JDS and Uniphase that it is terminating this
Agreement (and Uniphase and JDS acknowledge and agree that in such instance, the
Merger Agreement is automatically terminated) if the following conditions
precedent have not been fulfilled (which are for the FCo Group's exclusive
benefit and may be waived by Furukawa on behalf of the FCo Group):
<PAGE>
-6-
(a) on the Effective Date, Osler, Hoskin & Harcourt shall have
delivered an opinion letter addressed to Furukawa or its
Affiliates substantially in the form attached hereto as
Schedule A;
(b) as of the Effective Date, the Japanese taxation authorities
shall have continued to confirm orally to representatives of
Furukawa, in a form satisfactory to Furukawa acting reasonably,
that the conversion of the JDS Common Shares into Class B
Non-Voting Preference Shares and the exchange thereof for
Exchangeable Shares and the Ancillary Rights will occur on a
tax-free basis under the taxation Laws of Japan;
(c) on or prior to the Effective Date a Registration Rights
Agreement substantially in the form attached hereto as Schedule
B shall have been executed by Uniphase and Exchangeco, amended
as required if the Exchangeable Shares are to be held by more
than one Affiliate of Furukawa on the Effective Date;
(d) on or prior to the Effective Date, the Uniphase Rights
Agreement shall have been amended in a form satisfactory to
Furukawa, acting reasonably, such amendments to include
provisions providing that (i) FCo Group will not be an
"Acquiring Person" as a result of the acquisition of Uniphase
Common Shares pursuant to the Merger Agreement; (ii) so long as
FCo Group owns 5% or more of the outstanding Uniphase Common
Shares, the definition of "Acquiring Person" in the Rights
Agreement shall not be amended without the prior written
consent of Furukawa, and (iii) any member of the FCo Group may
acquire, directly or indirectly, the shares or assets of any
Person that owns Uniphase Common Shares, without causing any
member of the FCo Group to become an "Acquiring Person",
provided that the FCo Group agrees to sell such Uniphase Common
Shares within 180 days of the completion of the acquisition;
(e) on the Effective Date, Morrison & Foerster LLP shall have
delivered an opinion letter addressed to Uniphase substantially
in the form of the opinion letter required by section 2.9(e)
and upon which Furukawa and its Affiliates shall be entitled to
rely; and
(f) on or prior to the Effective Date, professional fees (both
accounting and legal) incurred by Furukawa in assessing
Alternative Transactions shall have been reimbursed to Furukawa
by Uniphase or JDS.
2.11. JAPANESE TAXATION AUTHORITY. With respect to the conditions set out
in sections 2.9(c) and 2.10(b) above, Furukawa covenants and agrees that it
will (i) inform Uniphase and JDS forthwith if the Japanese taxation
authorities affirmatively discontinue to confirm at any time that such
conversion and exchange will occur on a tax-free basis under the taxation
Laws of Japan, (ii) use its reasonable efforts to ensure that the Japanese
taxation authorities continue to confirm that such conversion and exchange
will occur on a tax-free basis under the taxation Laws of Japan, and (iii)
not take any steps or actions intentionally or willfully designed to
encourage
<PAGE>
-7-
the Japanese taxation authorities affirmatively to discontinue to confirm
that such conversion and exchange will occur on a tax-free basis under the
taxation Laws of Japan.
In the event that the Japanese taxation authorities
affirmatively discontinue to confirm that the conversion and exchange will
occur on a tax-free basis under the taxation Laws of Japan at any time prior
to the Effective Time, the parties agree, if requested in writing by either
Uniphase or JDS, to negotiate in good faith for a period of thirty (30) days
as to the structure of any Alternative Transaction that would cause the
conditions set out in section 2.9(c) and/or section 2.10(b), as the case may
be, to be satisfied, in the sole determination of Furukawa acting reasonably,
as of the date of the Meeting and/or the Effective Date, as the case may be.
2.12. NOMINEE DIRECTORS. For greater certainty, nothing in this Article 2
shall in any way restrict or prevent any director, officer, employee,
representative or agent of Furukawa who is a director of JDS from discharging
his or her fiduciary duties to JDS and its shareholders.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES OF FURUKAWA. Furukawa hereby
represents and warrants to the Uniphase Parties that:
(a) INCORPORATION AND AUTHORIZATION. It is a corporation duly
incorporated and validly existing under the laws of its
jurisdiction of incorporation; it has all necessary power,
authority, capacity and right, and has received all requisite
approvals to enter into this Agreement and this Agreement has
been duly executed and delivered by Furukawa and constitutes a
legal, valid and binding agreement enforceable by the Uniphase
Parties against Furukawa in accordance with its terms subject,
however, to limitations with respect to enforcement imposed by
law in connection with bankruptcy or similar proceedings, the
equitable power of the court to stay proceedings before them
and the execution of judgments and to the extent that equitable
remedies such as specific performance and injunction are in the
discretion of the court from which they are sought.
(b) OWNERSHIP OF SHARES. As of January 28, 1999, Furukawa was the
sole beneficial owner of 40,489,670 JDS Common Shares; the
Furukawa Shares constituted all of the JDS Common Shares owned
or controlled, directly or indirectly by Furukawa as of January
28, 1999; Furukawa has the exclusive right to dispose of the
Furukawa Shares under the Arrangement, subject to the transfer
or assignment of any Furukawa Shares in accordance with
sections 2.7 and 2.8; and Furukawa is not a party to, bound or
affected by or subject to, any charter or by-law provision,
statute, regulation, judgment, order, decree or law which would
be violated, contravened, breached by, or under which default
would occur as a result of the execution and delivery of this
Agreement or the consummation of any of the transactions
provided for in this Agreement subject only to making necessary
filings with or giving notifications to any governmental,
administrative or regulatory authority having jurisdiction.
<PAGE>
-8-
(c) GOOD TITLE. Furukawa has, and subject to the transfer or
assignment of any Furukawa Shares in accordance with sections
2.7 and 2.8 will have at the Effective Time, good and
marketable title to the Furukawa Shares, free and clear of any
and all mortgages, liens, charges, restrictions, security
interests, adverse claims, pledges, encumbrances and demands or
rights of others of any nature or kind whatsoever.
(d) NO AGREEMENTS. No Person, firm or corporation has any
agreement or option, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming an agreement or
option, for the purchase, acquisition, or transfer from
Furukawa or its subsidiaries of any of the Furukawa Shares or
any interest therein or right thereto, except pursuant to this
Agreement and in connection with a transfer or assignment of
any Furukawa Shares in accordance with section 2.8.
(e) VOTING. Furukawa has not previously granted or agreed to grant
any ongoing proxy in respect of the Furukawa Shares or entered
into any voting trust, vote pooling or other agreement with
respect to the right to vote, call meetings of shareholders or
give consents or approvals of any kind as to the Furukawa
Shares.
(f) CONSENTS. No consent, waiver, approval, authorization,
exemption, registration, license or declaration of or by, or
filing with, or notification to any Governmental Entity, is
required to be made or obtained by Furukawa in connection with
(i) the execution and delivery by Furukawa and enforcement
against Furukawa of this Agreement; or (ii) the consummation of
any transactions by Furukawa provided for herein.
(g) NON-ARM'S LENGTH TRANSACTIONS. There does not exist any
guarantee or any agreement, understanding or commitment giving
rise to any guarantee on the part of JDS to Furukawa or any
Affiliates of Furukawa (or any associates or insiders of any of
the foregoing) and there are no loans to or investments in
Furukawa or any Affiliates of Furukawa (or any associates or
insiders of any of the foregoing) by JDS or any of its
subsidiaries or associates.
3.2. REPRESENTATIONS AND WARRANTIES OF UNIPHASE. Uniphase hereby
represents and warrants to Furukawa that:
(a) INCORPORATION AND AUTHORIZATION. It is a corporation duly
incorporated and validly existing under the laws of its
jurisdiction of incorporation; it has all necessary power,
authority, capacity and right, and has received all requisite
approvals to enter into this Agreement and this Agreement has
been duly executed and delivered by Uniphase and constitutes a
legal, valid and binding agreement enforceable by Furukawa
against Uniphase in accordance with its terms subject, however,
to limitations with respect to enforcement imposed by law in
connection with bankruptcy or similar proceedings, the
equitable power of the court to stay proceedings before them
and the execution of judgments and to the extent that
<PAGE>
-9-
equitable remedies such as specific performance and injunction
are in the discretion of the court from which they are sought.
(b) CONFLICTS. Uniphase is not a party to, bound or affected by or
subject to, any charter or by-law provision, statute,
regulation, judgment, order, decree or Laws which would be
violated, contravened, breached by, or under which default
would occur as a result of the execution and delivery of this
Agreement or the consummation of any of the transactions
provided for in this Agreement subject only to making necessary
filings with or giving notifications to any governmental,
administrative or regulatory authority having jurisdiction.
(c) CONSENTS. No consent, waiver, approval, authorization,
exemption, registration, license or declaration of or by, or
filing with, or notification to any Governmental Entity, is
required to be made or obtained by Uniphase in connection with
(i) the execution and delivery by Uniphase and enforcement
against Uniphase of this Agreement; or (ii) the consummation of
any transactions by Uniphase provided for herein.
3.3. SURVIVAL. The representations and warranties of Furukawa and Uniphase
in this Agreement shall survive the execution and delivery of this Agreement
and shall survive the completion of the Arrangement for a period of one year
from the Effective Date.
ARTICLE 4.
COVENANTS OF FURUKAWA FOLLOWING THE ARRANGEMENT
4.1. RESTRICTIONS ON TRANSFER. The FCo Group shall not, without the prior
written consent of Uniphase, directly or indirectly, offer, sell or transfer
Uniphase Common Shares representing 10% or more of the total combined voting
power of the then outstanding Uniphase Common Shares to any one Person that
is a Uniphase Competitor (as defined below) or a Hostile Purchaser (as
defined below).
4.2. CERTAIN DEFINITIONS. For the purpose of section 4.1: "Uniphase
Competitor" means at any time a Person that is described as a competitor of
Uniphase in the most recent Form 10-K or any subsequent filing of Uniphase
made by Uniphase with the SEC pursuant to the 1933 Act or the 1934 Act and
"Hostile Purchaser" means any Person, directly or indirectly through
Affiliates, that has either (i) previously sought to acquire a controlling
interest in a publicly traded corporation (being 50% of the total combined
voting power) through a hostile tender offer or other structure not approved
by the board of directors of the target publicly traded corporation and that
Uniphase reasonably determines, based upon credible external information,
intends to make such a hostile bid to acquire such a controlling interest in
Uniphase; or (ii) publicly disclosed an intention to acquire, directly or
indirectly, Uniphase Common Shares representing more than 50% of the total
combined voting power of Uniphase Common Shares then outstanding.
<PAGE>
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ARTICLE 5.
CONFIDENTIALITY
5.1. MUTUAL NON-DISCLOSURE. Furukawa and Uniphase acknowledge and agree
that the business of Furukawa is or will be competitive with certain aspects
of the business of the Uniphase Parties after the Arrangement is completed
and that, subject to section 5.2, competitively sensitive or confidential
information ("Confidential Information") relating to the business of the
Uniphase Parties will not be disclosed or made available to Furukawa, other
members of the FCo Group or any of their respective directors, officers,
employees, agents or representatives (collectively the "Furukawa
Representatives").
5.2. FINANCIAL INFORMATION. Uniphase acknowledges and agrees that, in
order for Furukawa to prepare its financial statements (including the notes
thereto) and Tax Returns, it will require certain information from Uniphase,
including Confidential Information. Uniphase agrees on its own behalf and on
behalf of its subsidiaries (including, without limitation, Exchangeco), that:
(a) it will make available on a timely basis to Furukawa and its
accountants and auditors any information, including
Confidential Information, that Furukawa requires to prepare any
of its financial statements (including the notes thereto) or
Tax Returns,
(b) it will make available on a timely basis to Furukawa any of
Uniphase's officers, employees, agents (including its
accountants and auditors) or representatives that Furukawa
reasonably requests in order to assist Furukawa in
understanding and analyzing the information provided, and
(c) it consents to the disclosure by Furukawa of any information,
including Confidential Information, that Furukawa is required
by applicable Laws or accounting principles to include in any
of its financial statements (including the notes thereto) or
Tax Returns or to disclose to any Governmental Entity.
5.3. FURUKAWA NON-DISCLOSURE. Except to the extent provided in section
5.2, Furukawa agrees on its own behalf, and agrees it will cause the Furukawa
Representatives:
(a) not to use or allow the use for any purpose of any portion of
the Confidential Information, or notes, summaries or other
material prepared and derived from the Confidential Information
(the "Notes");
(b) not to disclose or allow disclosure to others of any portion of
the Confidential Information or the Notes;
(c) not to disclose or allow disclosure that the Confidential
Information has been made available to Furukawa or that
Furukawa has received any portion of the Confidential
Information; and
<PAGE>
-11-
(d) not to make or allow to be made copies of or otherwise
reproduce the Confidential Information or any part thereof.
Furukawa agrees that it will take all steps reasonably necessary to ensure
that access to the Confidential Information is denied to any of the Furukawa
Representatives who are directly involved in the day-to-day operation of that
portion of its business which competes with the Business.
5.4. EXCEPTION. The provisions of section 5.3 shall not apply to such
portions of the Confidential Information that:
5.4.1. are or become generally available to the public otherwise than
as a result of disclosure, directly or indirectly, by Furukawa or a
Furukawa Representative; or
5.4.2. become available to Furukawa on a non-confidential basis from a
source other than the Uniphase Parties or a Representative thereof
provided that such source is not to the knowledge of Furukawa, upon
reasonable inquiry, prohibited from transmitting the Confidential
Information by a contractual, legal or fiduciary obligation; or
5.4.3. were known to Furukawa or were in its possession on a
non-confidential basis prior to being disclosed to it by the Uniphase
Parties or by someone on their behalf; or
5.4.4. are required by applicable Laws or court order to be disclosed.
5.5. NOTICE. In the event that Furukawa is required by law to disclose any
portion of the Confidential Information or the Notes, Furukawa shall, if
permitted by law, provide Uniphase with prompt written notice of such
requirement so that Uniphase may either seek an appropriate court order which
would have the effect of relieving Furukawa of the requirement to disclose or
else waive Furukawa's compliance with the provisions of this Agreement. If,
however, Furukawa is legally obliged, in the reasonable opinion of its
counsel, to disclose Confidential Information or the Notes or else become
liable for contempt or suffer some other penalty, Furukawa may disclose such
information without liability to Uniphase under this Agreement provided that
Furukawa will disclose only that portion of the Confidential Information
which it is so legally obliged to disclose and will exercise its reasonable
efforts to obtain a protective order or other assurance that such
Confidential Information will be kept confidential.
5.6. SURVIVAL. The provisions of this Article 5 shall survive the
termination of this Agreement.
ARTICLE 6.
GENERAL
6.1. TERM OF AGREEMENT.
(a) In the event the Merger Agreement is terminated by JDS, the
Uniphase Parties or by the mutual agreement of the Uniphase
Parties and JDS, this Agreement shall
<PAGE>
-12-
automatically terminate at 11:59 p.m. (Toronto time) on the
date of termination of the Merger Agreement (for greater
certainty, termination of the Merger Agreement for this purpose
is without reference to any payment obligations under Article 9
thereof).
(b) If there is a determination by the JDS Board of Directors at
the conclusion of the process set out in sections 5.4 and 5.5
of the Merger Agreement that an Acquisition Proposal
constitutes a Superior Transaction, Furukawa may terminate this
Agreement by notice to the Uniphase Parties.
(c) If the Effective Date does not occur on or prior to September
30, 1999, then this Agreement shall terminate, provided that
the parties hereto may mutually agree to extend such date.
(d) After the Effective Date unless terminated earlier, this
Agreement shall automatically terminate on the date which is 10
years after the Effective Date. Either Furukawa or Uniphase
may terminate this Agreement at any time by notice in writing
to the other party if (i) the members of the FCo Group shall
own, in the aggregate, Uniphase Common Shares representing more
than 50% of the total combined voting power of all outstanding
Uniphase Common Shares, or (ii) the members of the FCo Group
own, in the aggregate, Uniphase Common Shares representing less
than 10% of the total combined voting power of all outstanding
Uniphase Common Shares.
6.2. EXCHANGEABLE SHARES. Uniphase and Exchangeco covenant and agree that,
(a) notwithstanding the terms of the rights, privileges,
restrictions and conditions attaching to the Exchangeable
Shares of Exchangeco (the "Share Terms"), the Redemption Date
(as defined in section 1.1 of the Share Terms) shall not be
established by the Board of Directors of Exchangeco as any date
earlier than March 31, 2014 without the prior written consent
of Furukawa, and
(b) Exchangeco will not voluntarily initiate, or consent to the
initiation of, the liquidation, dissolution or winding up of
Exchangeco or other distribution of its assets among its
shareholders for the purpose of winding-up its affairs without
the prior written consent of Furukawa,
provided that these restrictions shall not apply, if at any time, Furukawa
owns fewer than 992,372 Exchangeable Shares. The provisions of this section
6.2 shall survive the termination of this Agreement.
6.3. MEETINGS WITH SENIOR MANAGEMENT. Uniphase covenants and agrees that
it will cause senior members of Uniphase to meet in Tokyo, Japan with members
of management of Furukawa on a quarterly basis to report upon, and discuss,
the business, affairs, operations, financial results and prospects of
Uniphase; provided that nothing in this section shall require such senior
members of management to disclose any Confidential Information.
<PAGE>
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6.4. TIME OF THE ESSENCE. Time shall be of the essence of this Agreement.
6.5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein and each of the parties attorns to the
non-exclusive jurisdiction of the Province of Ontario for all purposes hereof.
6.6. INJUNCTIONS. Each of Furukawa and Uniphase recognizes and
acknowledges that a breach by it of any of its covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which each party would not have an adequate remedy at law for money damages
and, therefore, each party agrees that in the event of such a breach by it,
the other party shall be entitled to the remedy of specific performance of
such covenant or agreement and to injunctive and other equitable relief in
addition to any other remedy to which they may be entitled at law or in
equity.
6.7. SHARE CERTIFICATES. If requested in writing by Uniphase, Furukawa
shall present or cause to be presented promptly all certificates representing
Uniphase Common Shares owned at any time following the Effective Date by
members of the FCo Group, for the placement thereon as long as such Uniphase
Common Shares are subject to the restrictions contained in this Agreement of
the following legend;
The securities represented by this certificate are subject to
the provisions of an Agreement amended and restated as of April
29, 1999, among The Furukawa Electric Co., Ltd., Uniphase
Corporation, JDS FITEL Inc. and 3506967 Canada Inc. and may not
be sold or transferred except in accordance therewith. A copy
of such Agreement is on file at the office of the Corporate
Secretary of Uniphase Corporation.
The Company may enter a stop transfer order with the transfer
agent or agents of Uniphase Common Shares against the transfer of Uniphase
Common Shares owned by the FCo Group except in compliance with the
requirements of this Agreement. Uniphase agrees to remove promptly any stop
transfer order with respect to, and issue promptly unlegended certificates in
substitution for, certificates for any Uniphase Common Shares that are no
longer subject to the restrictions contained in this Agreement.
6.8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which shall constitute one and the same Agreement.
6.9. CONSULTATION. Uniphase and JDS acknowledge that Furukawa shall have
the right to review and suggest changes to any news release or public
statement relating to the Arrangement or Alternative Transaction which
specifically names Furukawa or refers to this Agreement, a reasonable period
of time, in the circumstances, prior to the making or release thereof, and
that, subject to applicable Laws no such press release or public statement
shall be made without the prior consent of Furukawa, such consent not to be
unreasonably withheld.
<PAGE>
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6.10. INTERPRETATION NOT AFFECTED BY HEADINGS, ETC. The division of this
Agreement into Articles, sections, and other portions and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation hereof. Unless otherwise indicated, all
references to an "Article" or "section" followed by a number and/or a letter
refer to the specified Article or section of this Agreement. The terms "this
Agreement", "hereof", "herein" and "hereunder" and similar expressions refer
to this Agreement and not to any particular Article, section or other portion
hereof and include any agreement or instrument supplementary or ancillary
hereto.
6.11. NUMBER, ETC. Unless the context otherwise requires, words importing
the singular shall include the plural and VICE VERSA and words importing any
gender shall include all genders.
6.12. DATE FOR ANY ACTION. In the event that any date on which any action
is required to be taken hereunder by any of the parties hereto is not a
Business Day, such action shall be required to be taken on the next
succeeding day which is a Business Day.
6.13. INVALIDITY OF PROVISIONS. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the fullest extent possible.
6.14. NOTICES. All notices and other communications which may or are
required to be given pursuant to any provision of this Agreement shall be
given or made in writing and shall be deemed to be validly given if served
personally or by confirmed telecopy, in each case addressed to the particular
party at:
6.14.1. If to Furukawa:
6-1 Marunouchi
2-chome
Chiyoda-ku,
Tokyo, 100-8322
Japan
Attention: Yoshihisa Okada, General Manager
Telecopier No.: 81-3-3286-3708
<PAGE>
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with a copy to:
Goodman Phillips & Vineberg
250 Yonge Street
Suite 2400
Toronto, Ontario M5B 2M6
Canada
Attention: Kenneth Wiener
Telecopier No.: (416) 979-1234
6.14.2. If to Uniphase or to Exchangeco:
Uniphase Corporation
163 Baypointe Parkway
San Jose, California 95134
U.S.A.
Attention: Michael C. Phillips
Senior Vice President, Business Development
Telecopier No.: (408) 954-0540
6.14.3. If to JDS:
JDS FITEL Inc.
570 West Hunt Club Road
Nepean, Ontario K2G 5W8
Canada
Attention: Konstantin Kotzeff,
Vice President, Legal Affairs & Corporate Secretary
Telecopier No.: (613) 727-1852
or at such other address of which any party may, from time to time, advise
the other parties by notice in writing given in accordance with the
foregoing. The date of receipt of any such notice shall be deemed to be the
date of delivery or telecopying thereof.
6.15. ASSIGNMENT. No party hereto may assign its rights under this
Agreement.
6.16. BINDING EFFECT. This Agreement shall be binding upon and shall enure
to the benefit of the parties hereto and their respective successors.
6.17. WAIVER AND MODIFICATION. Furukawa and the Uniphase Parties may waive
or consent to the modification of, in whole or in part, any inaccuracy of any
representation or warranty made to them hereunder or in any document to be
delivered pursuant hereto and may waive or consent to the modification of any
of the covenants herein contained for their respective benefit or waive or
consent to the modification of any of the obligations of the other parties
<PAGE>
-16-
hereto. Any waiver or consent to the modification of any of the provisions
of this Agreement, to be effective, must be in writing executed by the party
granting such waiver or consent. No waiver of any provisions of this
Agreement shall constitute a waiver of any other provision nor shall any such
waiver constitute a continuous waiver unless otherwise expressly provided.
[INTENTIONALLY LEFT BLANK]
<PAGE>
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6.18. FURTHER ASSURANCES. Each party hereto shall, from time to time, and
at all times hereafter, at the request of the other parties hereto, but
without further consideration, do all such further acts and execute and
deliver all such further documents and instruments as shall be reasonably
required in order to fully perform and carry out the terms and intent hereof.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement as of the date first written above.
UNIPHASE CORPORATION
by:__________________________________
__________________________________
3506967 CANADA INC.
by:__________________________________
__________________________________
THE FURUKAWA ELECTRIC CO., LTD.
by:__________________________________
__________________________________
JDS FITEL INC.
by:__________________________________
__________________________________
<PAGE>
JDS UNIPHASE CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement"), dated July 6, 1999, is by
and among JDS Uniphase Corporation, a Delaware corporation (the "Company"), JDS
Uniphase Canada Ltd., a corporation organized under the laws of Canada
("Exchangeco"), and FEJ Holding Inc. and FEJ Sales Inc. (each an "Investor"),
each a corporation organized under the laws of the Northwest Territories and a
wholly-owned subsidiary of The Furukawa Electric Co., Ltd.
RECITALS:
A. The Investors hold an aggregate of 37,359,670 non-voting exchangeable
shares ("Exchangeable Shares") of Exchangeco. Each Exchangeable Share is
exchangeable by its terms into one share of the $.001 par value per share common
stock of the Company ("Common Stock").
B. The Furukawa Electric Co., Ltd., Exchangeco, JDS FITEL Inc. and the Company
are parties to a Support Agreement, dated as of January 28, 1999, as amended and
restated as of April 29, 1999 (the "Support Agreement"), pursuant to which The
Furukawa Electric Co., Ltd. agreed, among other things, to support that certain
plan of arrangement, whereby, among other things, Exchangeco acquired a portion
of the outstanding capital of JDS FITEL Inc. and issued the Exchangeable Shares
to the Investors.
C. The Furukawa Electric Co., Ltd. has caused the Investors to execute and
deliver this Agreement.
D. As consideration for The Furukawa Electric Co., Ltd.'s execution and
delivery of the Support Agreement and its obligations contained therein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and Exchangeco wish to grant the Investors
certain rights under the Securities Laws (as herein defined) with respect to the
shares of Common Stock and/or Exchangeable Shares held by the Investors.
<PAGE>
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NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1.
REGISTRATION RIGHTS
1.1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the
following respective meanings:
A. "CANADIAN PROSPECTUS" shall mean a prospectus (including a short form
prospectus) prepared in accordance with applicable Canadian Securities
Laws for the purposes of qualifying securities for distribution or
distribution to the public, as the case may be, in any province or
territory of Canada.
B. "CANADIAN SECURITIES LAW" shall mean statutes and regulations
applicable to the trading of securities in any province or territory
of Canada including applicable rules, policy statements and blanket
rulings and orders promulgated by Canadian securities regulatory
authorities.
C. "COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
D. "COMMON STOCK MARKET VALUE" shall mean, at any date set forth herein,
the product of (i) the average of the closing sale prices on the
NASDAQ National Market (or any other national securities exchange upon
which the Common Stock is listed, from time to time) of one share of
Common Stock over the ten (10) trading days ending on the trading day
immediately prior to such date; and (ii) the number of shares of
Registrable Common Stock (as hereinafter defined) held by a Holder or
Holders to be registered on behalf of such Holder or Holders, as the
case may be.
E. "EXCHANGEABLE SHARE MARKET VALUE" shall mean, at any date set forth
herein, the product of (i) the average of the closing sale prices on
the TSE (or any other Canadian securities exchange upon which the
Exchangeable Shares are listed, from time to time) of one Exchangeable
Share over the ten (10) trading days ending on the trading day
immediately prior to such date; and (ii) the number of Registrable
Exchangeable Shares (as hereinafter defined) held by a Holder or
Holders to be registered on behalf of such Holder or Holders, as the
case may be.
F. "HOLDER" shall mean (i) an Investor; and (ii) any person or entity
holding Registrable Securities (as herein defined) to whom the rights
under this Section 1 have been transferred by an Investor in
accordance with Section 1.10 hereof.
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G. "INITIATING HOLDERS" shall mean any Holders who in the aggregate hold
greater than 25% of the Registrable Securities from time to time.
H. "PHILIPS" shall mean Koninklijke Philips Electronics N.V., a company
duly established under the laws of The Netherlands, together with its
successors and assigns.
I. "PHILIPS DEMAND REGISTRATION" shall mean any registration filed by the
Company at the request of Philips pursuant to Section 2.2 of the
Philips Stockholder Agreement.
J. "PHILIPS REGISTRABLE SECURITIES" shall mean Registrable Securities (as
defined in the Philips Stockholder Agreement).
K. "PHILIPS STOCKHOLDER AGREEMENT" shall mean that certain Stockholder
Agreement, dated as of June 9, 1998, between the Company and Philips.
L. The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement
in compliance with the Securities Act and the declaration or ordering
of the effectiveness of such registration statement. In addition,
unless inconsistent with the context: (i) the term "REGISTRATION" and
any references to the act of registering include the qualification
under Canadian Securities Laws of a Canadian Prospectus in respect of
a distribution or distribution to the public, as the case may be, of
securities; (ii) the term "REGISTERED" as applied to any securities
includes a distribution or distribution to the public, as the case may
be, of securities so qualified; (iii) the terms "REGISTRATION
STATEMENT" includes a Canadian Prospectus; (iv) any references to a
registration statement having become effective, or similar references,
shall include a Canadian Prospectus for which a final receipt has been
obtained from the relevant Canadian securities regulatory authorities;
and (v) the provisions of this Agreement shall be applied, MUTATIS
MUTANDIS, to any proposed distribution of securities hereunder in any
province or territory of Canada or to which the prospectus
requirements under any of the Canadian Securities Laws shall otherwise
apply.
M. "REGISTRABLE SECURITIES" means (i) the Exchangeable Shares held by an
Investor as of the date hereof and any securities of Exchangeco issued
or issuable in respect of the Exchangeable Shares upon any stock
split, stock dividend, recapitalization or similar event, or any
securities of Exchangeco otherwise issuable in respect of the
Exchangeable Shares held by an Investor as of the date hereof; and
(ii) any shares of Common Stock for which such Exchangeable Shares
have been exchanged pursuant to the Voting and Exchange Trust
Agreement, and any shares of Common Stock of the Company issued or
issuable in respect of such Common Stock upon any stock split, stock
dividend, recapitalization, or similar event, or any shares of Common
Stock otherwise issuable with respect to such shares of Common Stock;
provided, however, that shares of Common Stock or other
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securities shall only be treated as Registrable Securities for the
purposes of a registration under the Securities Act if and so long
as they have not been (A) sold to or through a broker, dealer or
underwriter in a public distribution or a public securities
transaction, or (B) sold (or available for sale) to the public
pursuant to an effective registration statement or Rule 144
promulgated under the Securities Act or sold in a private
transaction in which the transferor's rights under Section 1 of
this Agreement are not assigned.
N. "REGISTRATION EXPENSES" shall mean all expenses (other than Selling
Expenses), except as otherwise stated below, incurred by Exchangeco or
the Company in complying with Sections 1.2, 1.3 and 1.4 hereof,
including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of
counsel for Exchangeco or the Company, blue sky fees and expenses, the
expenses of any special audits, incident to or required by such
registration, and reasonable fees and disbursements of a single
special counsel for the Holders.
O. "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the
relevant time.
P. "SECURITIES EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, or any similar federal statute and the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the relevant time.
Q. "SECURITIES LAWS" shall mean the Securities Act, the Exchange Act and
the Canadian Securities Laws.
R. "SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities
registered by the Holders.
S. "TSE" shall mean The Toronto Stock Exchange.
T. "VOTING AND EXCHANGE TRUST AGREEMENT" shall mean that certain Voting
and Exchange Trust Agreement dated as of the date hereof among the
Company, Exchangeco and the Trustee (as defined therein).
1.2. REQUESTED REGISTRATION.
A. REQUEST FOR REGISTRATION OF COMMON STOCK. Notwithstanding any other
provision contained in this Agreement, with respect to Registrable
Common Stock (as defined below), the Initiating Holders shall only be
entitled to request a registration, qualification or compliance in
respect of such shares in the United States. In case the Company
shall receive from Initiating Holders a written request that the
Company effect any registration, qualification or compliance in the
United States with respect to shares of Common Stock constituting
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Registrable Securities (such shares to be hereinafter referred to as
"Registrable Common Stock") with a Common Stock Market Value of not
less than U.S.$60,000,000, the Company will:
1. within thirty (30) days give written notice of the proposed
registration, qualification or compliance to all other Holders; and
2. as soon as practicable, subject to the limitations and conditions set
forth in this Agreement, use reasonable best efforts to effect such
registration, qualification or compliance (including, without
limitation, appropriate qualification under applicable blue sky or
other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and any other governmental
requirements or regulations) so requested and as would permit or
facilitate the sale and distribution of all or such portion of such
Registrable Common Stock as are specified in such request, together
with all or such portion of the Registrable Common Stock of any Holder
or Holders and the Common Stock of other holders of Common Stock with
rights to do so joining in such request as are specified in a written
request received by the Company within twenty (20) days after receipt
of such written notice from the Company.
B. REQUEST FOR REGISTRATION OF EXCHANGE SHARES. Notwithstanding any
other provision contained in this Agreement, with respect to the
Registrable Exchangeable Shares (as defined below), the Initiating
Holders shall only be entitled to request a registration,
qualification or compliance in respect of such shares in the provinces
and territories of Canada. In case the Company shall receive from
Initiating Holders a written request that Exchangeco effect any
registration, qualification or compliance with respect to Exchangeable
Shares constituting Registrable Securities (such shares to be
hereinafter referred to as "Registrable Exchangeable Shares") with a
Exchangeable Share Market Value of not less than Cdn.$90,000,000, the
Company will:
1. within thirty (30) days give written notice of the proposed
registration, qualification or compliance to all other Holders;
and
2. as soon as practicable, subject to the limitations and
conditions set forth in this Agreement, use reasonable best
efforts to cause Exchangeco to effect such registration,
qualification or compliance under Canadian Securities Law so
as to permit or facilitate the sale and distribution in the
provinces and territories of Canada of all or such portion of
such Registrable Exchangeable Shares as are specified in such
request, together with all or such portion of the Registrable
Exchangeable Shares of any Holder or Holders and the Common
Stock of other holders of Common Stock with rights to do so
joining in such request as are specified in a written request
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received by the Company within twenty (20) days after receipt
of such written notice from the Company.
C. LIMITATION. Notwithstanding the foregoing, neither the Company nor
Exchangeco shall be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Section
1.2:
1. In any particular jurisdiction in which the Company or
Exchangeco, as applicable, would be required to execute a
general consent to service of process in effecting such
registration, qualification or compliance unless the Company
or Exchangeco, as applicable, is already subject to service in
such jurisdiction and except as may be required by the
Securities Laws.
2. After the Company and/or Exchangeco have effected an aggregate
of five (5) such registrations between them pursuant to
Sections 1.2(A) and 1.2(B), and such registrations have been
declared or ordered effective; provided however, that if the
request for a registration is subsequently withdrawn at the
request of the Holders of a number of shares of Registrable
Securities such that there are not enough Holders of
Registrable Securities intending to participate in the
registration sufficient to request such a registration (the
"Requesting Holders"), then such Requesting Holders shall, at
such Requesting Holders' option, either (i) be required to pay
all Registration Expenses, or (ii) lose one of their five (5)
rights to cause the Company or Exchangeco to effect a
registration under this Section 1.2; and provided, further,
however, that if the requested registration is withdrawn and
at the time of such withdrawal the Requesting Holders have
learned of a material adverse change in the condition,
business or prospects of the Company from that known to the
Requesting Holders at the time of their request and have
withdrawn the request with reasonable promptness following
disclosure by the Company of such material adverse change,
then the Requesting Holders shall not be required to pay any
of such Registration Expenses and shall retain their rights
pursuant to Section 1.2; and provided, further, however, that
if the Initiating Holders request contemporaneous
registrations of Registrable Common Stock and Registrable
Exchangeable Shares pursuant to Sections 1.2(A) and (B), and
the offerings pursuant to such registrations are completed on
or about the same date, such registrations shall be treated as
one (1) registration for the purposes of this Section
1.2(C)(2).
3. If the Company or Exchangeco has, within the twelve (12) month
period preceding the date of the receipt of the registration
request, already effected one (1) registration pursuant to
this Section 1.2.
4. If the Company shall furnish to such Holders a certificate
signed by the President of the Company stating that in the
good faith judgment of the
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Board of Directors of the Company it would be seriously
detrimental to the Company or its stockholders for a
registration statement of the Company or Exchangeco to be
filed in the near future, then the Company's and Exchangeco's
obligations to register, qualify or comply under this Section
1.2 shall be deferred for one or more periods, aggregating not
more than sixty (60) days in any twelve (12) month period.
5. If the Initiating Holders propose to dispose of shares of
Registrable Common Stock that may be immediately registered on
Form S-3 pursuant to a request made pursuant to Section 1.4
below.
Subject to the foregoing clauses (1) through (5), the Company or
Exchangeco, as applicable, shall file a registration statement
covering the Registrable Securities so requested to be registered as
soon as practicable after receipt of the request or requests of the
Initiating Holders.
D. UNDERWRITING. If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of a firm
commitment underwritten offering, they shall so advise the Company as
part of their request made pursuant to this Section 1.2, and the
Company shall so advise the Holders as part of the notice given
pursuant to Section 1.2(A)(1) or Section 1.2(B)(1), as applicable.
The Initiating Holders shall designate any underwriter or underwriters
to be retained in connection with any registration pursuant to this
Section 1.2, which underwriters shall be reasonably acceptable to the
Company. In such event, the right of any Holder to registration
pursuant to Section 1.2 shall be conditioned upon such Holder's
participation in the underwriting arrangements required by this
Section 1.2, and the inclusion of such Holder's Registrable Securities
in the underwriting to the extent requested shall be limited to the
extent provided herein.
The Company or Exchangeco, as applicable, shall (together with all
Holders proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in customary form
with the managing underwriter selected for such underwriting by a
majority in interest of the Initiating Holders, but subject to the
Company's or Exchangeco's, as applicable, reasonable approval.
Notwithstanding any other provision of this Section 1.2, if the
managing underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten (including Registrable Securities), then the Company or
Exchangeco, as applicable, shall so advise all holders of Registrable
Securities and the number of shares of Registrable Securities that may
be included in the registration and underwriting shall be allocated
among all Holders in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by such Holders at
the time of filing the registration statement; provided, however,
that, the number of shares of Registrable Securities held by the
Initiating Holders to be included in such
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underwriting and registration shall not be reduced unless all other
securities of the Company (including any Philips Registrable
Securities) or Exchangeco, as applicable, are first entirely
excluded from the underwriting and registration. If a limitation
on the number of shares to be included in such registration shall
still be required after giving effect to the limitation in the
preceding sentence, the Company or Exchangeco, as applicable, shall
so advise the Holders, and the number of shares that may be
included in the underwriting shall be allocated to the Holders, in
proportion, as nearly as practicable, to the respective amounts of
Registrable Securities then held by Holders requesting to have
shares included in the registration statement; and provided, that,
if, as a result of exclusions by the underwriter or underwriters
pursuant to this Section 1.2(D), less than fifty percent (50%) of
the aggregate shares of Registrable Securities registered in such
offering shall be for the account of Holders, then such
registration shall not be treated as an exercise of one of the five
(5) registration rights of Holders pursuant to this Section 1.2.
No Registrable Securities excluded from the underwriting by reason
of the underwriter's marketing limitation shall be included in such
registration. To facilitate the allocation of shares in accordance
with the above provisions, the Company or Exchangeco, as
applicable, or the underwriters may round the number of shares
allocated to any Holder to the nearest one hundred (100) shares.
If any Holder of Registrable Securities disapproves of the terms of
the underwriting, such person may elect to withdraw therefrom by
written notice to the Company or Exchangeco, as applicable, the
managing underwriter and the Initiating Holders. The Registrable
Securities so withdrawn shall also be withdrawn from registration, and
such Registrable Securities shall not be transferred in a public
distribution prior to ninety (90) days after the effective date of
such registration, or such other shorter period of time as the
underwriters may require.
1.3. COMPANY OR EXCHANGECO REGISTRATION.
A. NOTICE OF REGISTRATION. If at any time or from time to time the
Company or Exchangeco, as applicable, shall determine to register any
of its securities or to proceed with any proposed distribution or
distribution to the public thereof, as the case may be, either for its
own account or the account of a security holder or holders, other than
(i) a registration relating solely to employee benefit plans, (ii) a
registration relating solely to a Commission Rule 145 transaction, in
the case of a Company registration, (iii) a registration on Form S-4
(or equivalent form), in the case of a Company registration, or (iv) a
registration in which the only Common Stock or Exchangeable Shares
being registered are Common Stock or Exchangeable Shares,
respectively, issuable upon conversion of convertible debt securities
which are also being registered, the Company will:
1. promptly give to each Holder written notice thereof, and
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2. in the case of a Company registration of Common Stock, include
in such registration (and any related qualification under blue
sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Common Stock specified
in a written request or requests, made within twenty (20) days
after receipt of such written notice from the Company, by any
Holder; and in the case of an Exchangeco registration of
Exchangeable Shares, use reasonable best efforts to cause
Exchangeco to include in such registration (and any related
qualification or other compliance), and in any underwriting
involved therein, all the Registrable Exchangeable Shares
specified in a written request or requests, made within twenty
(20) days after receipt of such written notice from the
Company, by any Holder.
B. UNDERWRITING. If the registration of which the Company gives notice
is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice
given pursuant to Section 1.3(A)(1). In such event, the right of any
Holder to registration pursuant to Section 1.3 shall be conditioned
upon such Holder's participation in such underwriting and the
inclusion of Registrable Common Stock, in the case of a Company
offering of Common Stock, or Registrable Exchangeable Shares, in the
case of an Exchangeco offering of Exchangeable Shares, to the extent
provided herein.
All Holders proposing to distribute their securities through such
underwriting shall (together with the Company or Exchangeco, as the
case may be, and the other holders distributing their securities
through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such
underwriting by the Company or Exchangeco, as the case may be;
provided, however, that no Holder participating in such underwriting
shall be required to make any representation or warranty except with
respect to such Holder and its intended method of distribution, and
that the liability of such Holder shall be limited to an amount equal
to the net proceeds from such underwriting received by such Holder.
Notwithstanding any other provision of this Agreement, if the managing
underwriter advises the Company or Exchangeco, as the case may be,
that marketing factors require a limitation of the number of shares to
be underwritten, then the underwriter may exclude some or all
Registrable Securities from such registration and underwriting;
provided, however, that, subject to the next sentence, any such
limitation or "cutback" shall be (i) first applied to all shares
proposed to be sold in such offering (other than for the account of
the Company or Exchangeco, as the case may be), which are not
Registrable Securities or Philips Registrable Securities; (ii) then
applied to the Registrable Securities of Holders and Philips
Registrable Securities, if applicable. In the event that the number
of shares of Registrable Securities and Philips Registrable
Securities, if applicable, to be included in a registration shall be
limited pursuant to the foregoing, the Company or Exchangeco, as the
case may be, shall so advise all Holders and Philips, if applicable,
and the number of shares of Registrable Securities and Philips
Registrable Securities, if applicable, that may
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be included in the registration and underwriting shall be allocated
among all Holders and Philips, if applicable, in proportion, as
nearly as practicable, to the respective amounts of Registrable
Securities and Philips Registrable Securities, if applicable,
requested to be included. Notwithstanding the preceding sentence,
if such registration is a Philips Demand Registration, no Philips
Registrable Securities shall be excluded from such registration
pursuant to any underwriter limitation or cutback unless and until
all Registrable Securities have been so excluded from such
registration. No Registrable Securities excluded from the
underwriting by reason of the underwriters marketing limitation
shall be included in such registration. To facilitate the
allocation of shares in accordance with the above provisions, the
Company or Exchangeco, as the case may be, or the underwriters may
round the number of shares allocated to any Holder to the nearest
one hundred (100) shares.
If any Holder disapproves of the terms of any such underwriting, it
may elect to withdraw therefrom by written notice to the Company or
Exchangeco, as the case may be, and the managing underwriter. Any
securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration, and shall not be transferred in a
public distribution prior to one hundred and twenty (120) days after
the effective date of the registration statement relating thereto, or
such other shorter period of time as the underwriters may require.
If by the withdrawal of such Registrable Securities a greater number
of Registrable Securities held by other Holders may be included in
such registration (up to the maximum of any limitation then imposed by
the underwriter), then the Company or Exchangeco, as the case may be,
shall offer to all Holders, if any, whose shares have been excluded
from the registration by the terms of this Section 1.3(B), the right
to include additional Registrable Securities in the same proportion
used in determining the underwriter limitation in this Section 1.3(B)
up to the limitation then imposed by the underwriter.
C. RIGHT TO TERMINATE REGISTRATION. The Company or Exchangeco, as the
case may be, shall have the right to terminate or withdraw any
registration initiated by it under this Section 1.3 prior to the
effectiveness of such registration whether or not any Holder has
elected to include securities in such registration. The Registration
Expenses of such withdrawn registration shall be borne by the Company
or Exchangeco, as the case may be, in accordance with Section 1.5
hereof.
1.4. REGISTRATION ON FORM S-3, ETC.
A. If any Holder or Holders request that the Company file a registration
statement on Form S-3 (or any successor form to Form S-3) for a public
offering of shares of Registrable Common Stock and the Company is a
registrant entitled to use Form S-3, or any similar short form
registration statement, to register the Registrable Common Stock for
such an offering, the Company shall use its
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reasonable best efforts, as soon as practicable, to cause such
Registrable Common Stock to be registered for the offering on such
form and to cause such Registrable Common Stock to be qualified in
such United States jurisdictions as such Holder or Holders may
reasonably request.
If any Holder or Holders request that the Company use reasonable best
efforts to cause Exchangeco to file a short form Canadian Prospectus
for a public offering of Registrable Exchangeable Shares and
Exchangeco is entitled to use a short form Canadian Prospectus, or any
similar short form registration statement, to register the Registrable
Exchangeable Shares for such an offering, Exchangeco shall use its
reasonable best efforts, as soon as practicable, to cause such
Registrable Exchangeable Shares to be registered pursuant to such
short form Canadian Prospectus or other short form registration
statement and to cause such Registrable Exchangeable Shares to be
qualified for distribution or distribution to the public, as the case
may be, in such Canadian jurisdictions as such Holder or Holders may
reasonably request.
If the Company is to bear the expenses of a registration pursuant to
the terms of Section 1.5, the Company shall inform other Holders of
the proposed registration and offer them the opportunity to
participate. The substantive provisions of Section 1.3(B) shall be
applicable to each registration initiated under this Section 1.4.
B. Notwithstanding the foregoing, neither the Company nor Exchangeco, as
the case may be, shall be obligated to take any action pursuant to
this Section 1.4: (i) with respect to Registrable Common Stock, to
the extent Form S-3 (or any successor or similar form) is not
available for such offering by the Holders; (ii) with respect to
Registrable Exchangeable Shares, to the extent Exchangeco is not
entitled to use a short form Canadian Prospectus (or any successor or
similar form) to qualify such securities for distribution or
distribution to the public, as the case may be; (iii) if the Holders
propose to sell Registrable Common Stock with a Common Stock Market
Value of less than U.S.$5,000,000 or Registrable Exchangeable Shares
with an Exchangeable Share Market Value of less than Cdn.$7,500,000,
as the case may be; (iv) if the Company has, within the twelve (12)
month period preceding the date of such request, already effected one
(1) registration on Form S-3 for the Holders pursuant to this Section
1.4 or Exchangeco has already effected one (1) registration pursuant
to a short form Canadian Prospectus (or any similar or successor form)
pursuant to this Section 1.4; (v) in any particular jurisdiction in
which the Company or Exchangeco, as the case may be, would be required
to execute a general consent to service of process in effecting such
registration, qualification or compliance unless the Company or
Exchangeco, as the case may be, is already subject to service in such
jurisdiction and except as may be required by the Securities Laws; or
(vi) if the Company shall furnish to such Holder a certificate signed
by the President of the Company stating that in the good faith
judgment of the Board of Directors it would be seriously
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detrimental to the Company, Exchangeco or their shareholders for
registration statements to be filed in the near future, then the
Company's and Exchangeco's obligation to use their reasonable best
efforts to file a registration statement shall be deferred for one
or more periods, aggregating not more than sixty (60) days in any
twelve (12) month period.
C. Notwithstanding Sections 1.4(A) and 1.4(B), if any Holder or Holders
request Exchangeco to file a short form Canadian prospectus for a
public offering of Registrable Exchangeable Shares on a "bought deal"
basis (as such expression is generally used in Canadian Securities
Laws) and Exchangeco is entitled to use a short form Canadian
Prospectus to register Registrable Exchangeable Shares for such an
offering, Exchangeco shall use its reasonable best efforts to cause
such Registrable Exchangeable Shares to be registered for the offering
on such basis (including within the time frames specified for a bought
deal under Canadian Securities Laws) and to cause such Registrable
Exchangeable Shares to be qualified in such jurisdictions of Canada as
such Holder or Holders may reasonably request. Neither the Company
nor Exchangeco shall inform other Holders of the proposed
registration, nor shall they offer them any opportunity to
participate. The Holder or Holders shall designate the underwriter or
underwriters to be retained in connection with such registration,
which underwriters shall be reasonably acceptable to the Company and
Exchangeco. Exchangeco shall (together with the Holders proposing to
distribute their securities through such underwriting) enter into an
underwriting agreement in customary form for a bought deal with the
underwriters selected for such registration by the Holder or Holders,
but subject to Exchangeco's reasonable approval.
D. For greater certainty, a request for registration pursuant to Section
1.4(C) shall also constitute a request for registration pursuant to
Section 1.2 for the purposes of determining whether the Holders have
extinguished their rights to request five (5) registrations from the
Company and Exchangeco.
1.5. EXPENSES OF REGISTRATION.
Except as otherwise expressly set forth herein, all Registration
Expenses incurred in connection with all registrations requested pursuant to
Sections 1.2 and 1.3 shall be borne by the Company; provided, however, that with
respect to any sale of Registrable Exchangeable Shares pursuant to a Canadian
Prospectus, each Holder shall pay its pro rata share of the Registration
Expenses to the extent that such expenses are required to be paid by the Holders
under Canadian Securities Laws. All Registration Expenses incurred in
connection with registrations requested pursuant to Section 1.4, the reasonably
anticipated aggregate price to the public of which, net of underwriting
discounts and commissions, would exceed U.S.$2,500,000, shall be borne by the
Company; provided, however, that with respect to any sale of Registrable
Exchangeable Shares pursuant to a Canadian Prospectus, each Holder shall pay its
pro rata share of the Registration Expenses to the extent that such expenses are
required to be paid by the Holders under Canadian Securities Laws; and further
provided, however, that the Company shall
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not be required to bear the expenses of more than one such registration in
any twelve (12) month period. All Selling Expenses relating to securities
registered on behalf of Holders shall be borne by the Holders of such
securities pro rata on the basis of the number of shares so registered. If
the Holders are required to pay the Registration Expenses in connection with
a registration of Registrable Common Stock, such expenses shall be borne by
the Holders of securities (including Registrable Securities) requesting such
registration in proportion to the number of shares for which registration was
requested and such Holders shall not forfeit any right pursuant to Section
1.2 to request a registration.
1.6. REGISTRATION PROCEDURES.
In the case of each registration, qualification or compliance effected
by the Company or Exchangeco, as the case may be, pursuant to this Section 1,
the Company or Exchangeco, as the case may be, will keep each Holder advised in
writing as to the initiation of each registration, qualification and compliance
and as to the completion thereof. At its expense the Company or Exchangeco, as
the case may be, will:
A. Prepare and file with the Commission or Canadian securities regulatory
authorities, as applicable, a registration statement, and including
amendments and supplements, with respect to such securities and use
its reasonable best efforts to cause such registration statement to
become and remain effective for at least the earlier of one hundred
eighty (180) days (or two (2) years, if such registration is pursuant
to Section 1.4(A) or (B)), and the date on which the distribution
described in the registration statement has been completed;
B. Furnish to the Holders participating in such registration and to the
underwriters of the securities being registered such reasonable number
of copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as such Holders or underwriters
may reasonably request in order to facilitate the public offering of
such securities;
C. Use its reasonable best efforts to register and qualify the
Registrable Common Stock covered by a Company registration statement
under such other securities or blue sky laws of such United States
jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions;
D. In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriters of such offering; each
Holder participating in such underwriting shall also enter into and
perform its obligations under such an agreement;
E. Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a registration statement
relating thereto is required to
<PAGE>
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be delivered under the Securities Laws, of the happening of any
event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing;
F. Furnish, at the request of any Holder requesting registration of
Registrable Securities, on the date that such Registrable Securities
are delivered to the underwriters for sale, if such securities are
being sold through underwriters, or, if such securities are not being
sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion,
dated as of such date, of the counsel representing the Company or
Exchangeco, as the case may be, for the purposes of such registration,
in form and substance as is customarily given to underwriters in
underwritten public offering and reasonably satisfactory to a majority
in interest of the Holders requesting registration, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Securities; (ii) a "comfort" letter dated as of such date,
from the independent certified public accountants of the Company or
Exchangeco, as the case may be, in form and substance as is
customarily given by independent certified public accountants to
underwriters in an underwritten public offering and reasonably
satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities; and (iii)
if a Canadian Prospectus is filed in the Province of Quebec, opinions
of Quebec counsel and of the auditors representing the Company and
Exchangeco for the purposes of such registration relating to
translation into the French language of the applicable registration
statement, in form and substance as is customarily given to
underwriters in an underwritten public offering and reasonably
satisfactory to a majority in interest of Holders requesting
registration, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities; and
G. Upon the execution of confidentiality agreements in form and substance
satisfactory to the Company, make available for inspection of any
Holder participating in a registration and any attorney, accountant or
other professional retained by any such Holder or underwriter
(collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company and/or
Exchangeco, as applicable, (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any
Inspectors in connection with such registration statement. Records
that the Company determines, in good faith, to be confidential and
that it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such Records
is necessary to avoid or correct a misstatement or omission in such
registration statement, or (ii) the release of such Records is ordered
pursuant to a subpoena or other order
<PAGE>
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from a court of competent jurisdiction or from the Commission or any
Canadian securities regulatory authority.
1.7. INDEMNIFICATION.
A. The Company will indemnify each Holder, each of its officers and
directors and partners, and each person controlling such Holder within
the meaning of Section 15 of the Securities Act, with respect to which
registration, qualification or compliance has been effected pursuant
to this Agreement, and each underwriter, if any, and each person who
controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages and
liabilities (or actions in respect thereof), including any of the
foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission
(or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or any violation by the Company or Exchangeco, as the case
may be, of the Securities Laws, state securities law or any rule or
regulation promulgated under the such laws applicable to the Company
or Exchangeco, as the case may be, and relating to action or inaction
required of the Company or Exchangeco, as the case may be, in
connection with any such registration, qualification or compliance,
and will reimburse each such Holder, each of its officers and
directors, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred, as such expenses are
incurred, in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any
such claim, loss, damage, liability or expense arises out of or is
based on any untrue statement or omision or alleged untrue statement
or omission in a registration statement or prospectus made in reliance
upon and in conformity with written information furnished to the
Company by a Holder or underwriter specifically for use therein.
B. Each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company
or Exchangeco, as applicable, each of its directors and officers, each
underwriter, if any, of the Company's or Exchangeco's securities
covered by such a registration statement, each person who controls the
Company or Exchangeco, as applicable, or such underwriter within the
meaning of Section 15 of the Securities Act, and each other such
Holder, each of its officers and directors and each person controlling
such Holder within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on
<PAGE>
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any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus,
offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse the Company or Exchangeco, as applicable, such
Holders, such directors, officers, underwriters or control persons
for any legal or any other expenses reasonably incurred, as such
expenses are incurred, in connection with investigating or
defending any such claim, loss, damage, liability or action, in
each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus,
offering circular or other document in reliance upon and in
conformity with written information furnished to the Company or
Exchangeco, as applicable, by such Holder specifically for use
therein; provided, however, that the indemnity agreement contained
in this Section 1.7(B) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if
such settlement is effected without the consent of each Holder,
which consent shall not be unreasonably withheld. Notwithstanding
the foregoing, the liability of each Holder under this Section
1.7(B) shall be limited in an amount equal to the net proceeds of
the public offering received by such Holder; provided, however,
such limitation shall not apply in the case of willful fraud by
such Holder.
C. Each party entitled to indemnification under this Section 1.7 (the
"Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting
therefrom, provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or litigation, shall be approved by
the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense
at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Agreement unless
the failure to give such notice is materially prejudicial to an
Indemnifying Party's ability to defend such action, in which case the
Indemnifying Party shall be relieved of its obligations under this
Section 1.7 to the extent of such prejudice, and provided further that
the Indemnifying Party shall pay the fees and costs of separate
counsel for the Indemnified Party should a situation arise where there
are actual or potential differing interests between the Indemnifying
Party and Indemnified Party. No claim may be settled without the
consent of the Indemnifying Party (which consent shall not be
unreasonably withheld). No Indemnifying Party, in the defense of any
such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional
<PAGE>
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term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such
claim or litigation.
D. If the indemnification provided for in this Section 1.7 is held by a
court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage, or expense
referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such
loss, liability, claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on
the one hand and of the Indemnified Party on the other in connection
with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant
equitable considerations. The relative fault of the Indemnifying
Party and of the Indemnified Party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified
Party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or
omission, provided however, that, in any such case, (A) no such Holder
will be required to contribute any amount in excess of the public
offering price of all such Registrable Securities offered and sold by
such Holder pursuant to such registration statement; and (B) no person
or entity guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
E. The obligations under this Section 1.7 shall survive the completion of
any offering of Registrable Securities in a registration statement
under this Section 1 and otherwise.
1.8. INFORMATION BY HOLDERS.
The Holder or Holders of Registrable Securities included in any
registration shall furnish to the Company or Exchangeco, as applicable, such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company or
Exchangeco, as applicable, may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Section 1.
1.9. RULE 144 REPORTING.
With a view to making available the benefits of certain rules and
regulations of the Commission that may at any time permit the sale of the
Registrable Common Stock to the public without registration, the Company agrees
to:
<PAGE>
-18-
A. Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all
times after the effective date that the Company becomes subject to the
reporting requirements of the Securities Act or the Securities
Exchange Act;
B. File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the
Securities Exchange Act;
C. Furnish to Holders of Registrable Common Stock forthwith upon request
a written statement by the Company as to its compliance with the
reporting requirements of Rule 144, and of the Securities Act and the
Securities Exchange Act, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the
Company as a Holder may reasonably request in availing itself of any
rule or regulation of the Commission allowing a Holder to sell any
such securities without registration; and
D. The Company shall not take any action or fail to take any action which
could reasonably impair the ability of the Company to perform its
obligations pursuant to this Section 1.9.
E. Take such action as is necessary to enable the Holders to utilize
Form S-3 for the sale of Registrable Common Stock.
1.10. TRANSFER OF REGISTRATION RIGHTS.
The rights and obligations granted to each Investor under this
Agreement may be assigned (but only with all related obligations) to any person
or entity who acquires at least 100,000 shares of Registrable Securities that
have not been sold to the public (other than an acquisition pursuant to an open
market purchase), provided that the Company is given written notice of such
assignment prior to such assignment, and that the transferee agrees in writing
to be bound by and subject to the terms and conditions of this Agreement,
including, without limitation, Section 1.11 below, and the Support Agreement.
1.11. STANDOFF AGREEMENT.
Each Holder hereby agrees that, during the period of duration
specified by the Company and an underwriter of Common Stock or Exchangeable
Shares or other securities of the Company or Exchangeco, following the effective
date of a registration statement of the Company or Exchangeco, as the case may
be, filed under the Securities Laws, it shall not, to the extent requested by
the Company or Exchangeco, as the case may be, and such underwriter, nor shall
it announce an intention to, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) any securities of the Company or Exchangeco held by
it at any time during such period except Common Stock or
<PAGE>
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Exchangeable Shares included in such registration; provided, however, that such
market stand-off time period shall not exceed 180 days.
In order to enforce the foregoing covenant, the Company or Exchangeco,
as the case may be, may impose stop-transfer instructions with respect to the
Registrable Securities of each Holder (and the shares or securities of every
other person subject to the foregoing restriction) until the end of such period.
Notwithstanding the foregoing, the obligations described in this
Section 1.11 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to a Commission Rule 145
transaction on Form S-4 or similar forms which may be promulgated in the future.
1.12. TERMINATION.
The rights to cause the Company or Exchangeco to register securities
granted to each Investor and any person or entity to whom rights under Section 1
have been transferred by each Investor in accordance with Section 1.10 shall
expire upon the earlier of ten (10) years or, for a particular Holder of
Registrable Securities, at such time as such holder owns securities constituting
less than one percent (1.0%) of the outstanding capital stock of the Company
(assuming all outstanding Exchangeable Shares have been exchanged for shares of
Common Stock) and is able to dispose of all such securities in one three-month
period pursuant to Rule 144.
ARTICLE 2.
MISCELLANEOUS
2.1. AMENDMENTS.
Any provision of this Agreement may be amended, waived or modified
upon the written consent of the (i) the Company; (ii) Exchangeco; and (iii) the
Holders of a majority of the outstanding Registrable Securities. Any amendment
or waiver effected in accordance with this Section 2.1 shall be binding upon
each holder of any Registrable Securities then outstanding, each future holder
of all such Registrable Securities, the Company and Exchangeco.
2.2. GOVERNING LAW.
This Agreement shall be governed in all respects by the laws of the
State of Delaware as such laws are applied to agreements between Delaware
residents entered into and to be performed entirely within Delaware.
<PAGE>
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2.3. SUCCESSORS AND ASSIGNS.
Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto.
2.4. ENTIRE AGREEMENT.
This Agreement constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof.
2.5. NOTICES, ETC.
All notices and other communications which may or are required to be
given pursuant to any provision of this Agreement shall be given or made in
writing and shall be deemed to be validly given if served personally or by
confirmed telecopy, in each case addressed (i) if to either Investor, at the
Investor's address, as shown on EXHIBIT A hereto, or at such other address as
such Investor shall have furnished to the Company and Exchangeco in writing,
with a copy to Goodman, Phillips & Vineberg, 250 Yonge Street, Suite 2400,
Toronto, Ontario, Canada M5B 2M6, Attention: Kenneth Wiener, or (ii) if to any
other holder of any shares subject to this Agreement, at such address as such
holder shall have furnished to the Company and Exchangeco in writing, or, until
any such holder so furnishes an address to the Company and Exchangeco, then to
and at the address of the last holder of such shares who has so furnished an
address to the Company and Exchangeco, or (iii) if to the Company and
Exchangeco, one copy should be sent to the Company's principal place of business
and addressed to the attention of the Corporate Secretary, or at such other
address as the Company shall have furnished to the Investors, with a copy to
Morrison & Foerster LLP, 1290 Avenue of the Americas, New York, New York,
U.S.A., 10104, Attention: Mark L. Mandel.
The date of receipt of any such notice shall be deemed to be the date
of delivery or telecopying thereof.
2.6. SEVERABILITY OF THIS AGREEMENT.
If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by any rule or law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
<PAGE>
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2.7. TITLES AND SUBTITLES.
The titles of the paragraphs and subparagraphs of this Agreement are
for convenience of reference only and are not to be considered in construing
this Agreement.
2.8. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
2.9. DELAYS OR OMISSIONS.
It is agreed that no delay or omission to exercise any right, power or
remedy accruing to any party to this Agreement, upon any breach or default of
another party to this Agreement, shall impair any such right, power or remedy,
nor shall it be construed to be a waiver of any such breach or default, or any
acquiescence therein, or of any similar breach or default thereafter occurring;
nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character by
any party to this Agreement of any breach or default under this Agreement, or
any waiver by such party of any provisions or conditions of this Agreement must
be in writing and shall be effective only to the extent specifically set forth
in writing and that all remedies, either under this Agreement, or by law or
otherwise, shall be cumulative and not alternative.
2.10. STOCK SPLITS.
All references to the number of shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend, recapitalization or other
change in the capital stock which may be made by the Company or Exchangeco after
the date hereof.
2.11. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants that (a) it has obtained the
necessary written consent pursuant to Section 2.13 of the Philips Stockholder
Agreement and the execution and delivery of this Agreement would not be in
breach of the Philips Stockholder Agreement or any other agreement entitling a
person to require the Company to register any shares of the Company's capital
stock held by such person, and (b) the terms and conditions of the registration
rights granted pursuant to this Agreement are substantially equivalent to those
set forth in the Philips Stockholder Agreement.
<PAGE>
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first written above.
JDS UNIPHASE CORPORATION
- ------------------------------
(Signature)
By:
Title:
JDS UNIPHASE CANADA LTD.
- ------------------------------
(Signature)
By:
Title:
FEJ HOLDING INC.
- ------------------------------
(Signature)
By:
Title:
FEJ SALES INC.
- ------------------------------
(Signature)
By:
Title:
<PAGE>
EXHIBIT A
INVESTORS' ADDRESSES
FEJ Holding Inc.
c/o The Furukawa Electric Co., Ltd.
6-1 Marunouchi 2-Chome
Chiyoda-Ku, Tokyo 100-8322
Japan
Fax: 011 81 3 3286-3709
Attention: Hideo Sakura
FEJ Sales Inc.
c/o The Furukawa Electric Co., Ltd.
6-1 Marunouchi 2-Chome
Chiyoda-Ku, Tokyo 100-8322
Japan
Fax: 011 81 3 3286-3709
Attenion: Hideo Sakura
