EXHIBIT 4.3
EXCHANGEABLE SHARE SUPPORT AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 6th day of July, 1999.
B E T W E E N:
JDS UNIPHASE CORPORATION,
a corporation existing under the laws of
the State of Delaware, (hereinafter
referred to as "JDS Uniphase"),
OF THE FIRST PART,
-and -
JDS UNIPHASE NOVA SCOTIA COMPANY, an
unlimited company existing under the laws
of the Province of Nova Scotia,
(hereinafter referred to as "JDS Uniphase
Nova Scotia"),
OF THE SECOND PART,
-and -
JDS UNIPHASE CANADA LTD., a corporation
existing under the laws of Canada
(hereinafter referred to as "Exchangeco"),
OF THE THIRD PART.
WHEREAS pursuant to a merger agreement (the "Merger Agreement")
dated as of January 28, 1999 and amended and restated as of April 29,
1999 among Uniphase Corporation, Exchangeco and JDS FITEL Inc. ("JDS")
and the plan of arrangement (the "Plan of Arrangement") contemplated by
the Merger Agreement, Exchangeco has issued Class B non-voting
preference shares ("Class B Non-Voting Preference Shares") to certain
direct or indirect holders of common shares of JDS;
AND WHEREAS pursuant to the Merger Agreement and the Plan of
Arrangement, Exchangeco is to issue exchangeable shares ("Exchangeable
Shares") to certain holders of Class B Non-Voting Preference Shares in
exchange for such Class B Non-Voting Preference Shares;
AND WHEREAS pursuant to the Merger Agreement and coincident with
the issue of Exchangeable Shares to certain holders of Class B Non-
Voting Preference Shares, JDS Uniphase and Exchangeco are to execute a
support agreement substantially in the form of this Agreement;
NOW THEREFORE in consideration of the respective covenants and
agreements provided in this Agreement and for other good and valuable
consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto covenant and agree as follows:
ARTICLE 1.
DEFINITIONS AND INTERPRETATION
1.1. Defined Terms
Each term denoted herein by initial capital letters and not
otherwise defined herein shall have the meaning ascribed thereto in the
rights, privileges, restrictions and conditions (collectively, the
"Share Provisions") attaching to the Exchangeable Shares attached as
Appendix 4 to the Plan of Arrangement as set out in the Articles of
Arrangement of JDS, unless the context requires otherwise.
1.2. Interpretation Not Affected by Headings
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 of this
Agreement. 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.
1.3. Number, Gender
Words importing the singular number only shall include the plural
and vice versa. Words importing any gender shall include all genders.
1.4. Date for any Action
If any date on which any action is required to be taken under this
Agreement is not a Business Day, such action shall be required to be
taken on the next succeeding Business Day.
ARTICLE 2.
COVENANTS OF JDS UNIPHASE AND EXCHANGECO
2.1. Covenants Regarding Exchangeable Shares
So long as any Exchangeable Shares not owned by JDS Uniphase or
its Affiliates are outstanding, JDS Uniphase will:
(a) not declare or pay any dividend on the JDS Uniphase Common
Shares unless (i) Exchangeco shall (w) simultaneously declare
or pay, as the case may be, an equivalent dividend (as
provided for in the Share Provisions) on the Exchangeable
Shares (an "Equivalent Dividend"), and (x) have sufficient
money or other assets or authorized but unissued securities
available to enable the due declaration and the due and
punctual payment, in accordance with applicable law, of any
Equivalent Dividend, or (ii) Exchangeco shall (y) subdivide
the Exchangeable Shares in lieu of a stock dividend thereon
(as provided for in the Share Provisions) (an "Equivalent
Stock Subdivision"), and (z) have sufficient authorized but
unissued securities available to enable the Equivalent Stock
Subdivision;
(b) advise Exchangeco sufficiently in advance of the declaration
by JDS Uniphase of any dividend on JDS Uniphase Common
Shares and take all such other actions as are reasonably
necessary, in co-operation with Exchangeco, to ensure that
(i) the respective declaration date, record date and payment
date for an Equivalent Dividend shall be the same as the
declaration date, record date and payment date for the
corresponding dividend on the JDS Uniphase Common Shares or,
(ii) the record date and effective date for an Equivalent
Stock Subdivision shall be the same as the record date and
payment date for the corresponding stock dividend on the JDS
Uniphase Common Shares;
(c) ensure that the record date for any dividend declared on JDS
Uniphase Common Shares is not less than 10 Business Days
after the declaration date of such dividend;
(d) take all such actions and do all such things as are
reasonably necessary or desirable to enable and permit
Exchangeco, in accordance with applicable law, to pay and
otherwise perform its obligations with respect to the
satisfaction of the Liquidation Amount, the Retraction Price
or the Redemption Price in respect of each issued and
outstanding Exchangeable Share upon the liquidation,
dissolution or winding-up of Exchangeco, the delivery of a
Retraction Request by a holder of Exchangeable Shares or a
redemption of Exchangeable Shares by Exchangeco, as the case
may be, including without limitation all such actions and all
such things as are necessary or desirable to enable and
permit Exchangeco to cause to be delivered JDS Uniphase
Common Shares to the holders of Exchangeable Shares in
accordance with the provisions of Article 5, 6 or 7, as the
case may be, of the Share Provisions;
(e) take all such actions and do all such things as are
reasonably necessary or desirable to enable and permit JDS
Uniphase Nova Scotia, in accordance with applicable law, to
perform its obligations arising upon the exercise by it of
the Liquidation Call Right, the Retraction Call Right or the
Redemption Call Right, including without limitation all such
actions and all such things as are necessary or desirable to
enable and permit JDS Uniphase Nova Scotia to cause to be
delivered JDS Uniphase Common Shares to the holders of
Exchangeable Shares in accordance with the provisions of the
Liquidation Call Right, the Retraction Call Right or the
Redemption Call Right, as the case may be; and
(f) if it becomes a "specified financial institution" (as such
term is defined in the Income Tax Act (Canada)) or does not
deal at arm's length with such a person, take all such
actions and do all such things as are reasonably necessary or
desirable to cause JDS Uniphase Nova Scotia to exercise the
Retraction Call Right if requested to do so by a holder of
Exchangeable Shares making a Retraction Request.
2.2. Segregation of Funds
JDS Uniphase will cause Exchangeco to deposit a sufficient amount
of funds in a separate account of Exchangeco and segregate a sufficient
amount of such other assets and property as is necessary to enable
Exchangeco to pay dividends when due and to pay or otherwise satisfy its
respective obligations under Article 5, 6 or 7 of the Share Provisions,
as applicable.
2.3. Reservation of JDS Uniphase Common Shares
JDS Uniphase hereby represents, warrants and covenants in favour
of Exchangeco and JDS Uniphase Nova Scotia that JDS Uniphase has
reserved for issuance and will, at all times while any Exchangeable
Shares (other than Exchangeable Shares held by JDS Uniphase or its
Affiliates) are outstanding, keep available, free from pre-emptive and
other rights, out of its authorized and unissued capital stock such
number of JDS Uniphase Common Shares (or other shares or securities into
which JDS Uniphase Common Shares may be reclassified or changed as
contemplated by section 2.7 hereof) (a) as is equal to the sum of
(i) the number of Exchangeable Shares issued and outstanding from time
to time and (ii) the number of Exchangeable Shares issuable upon the
exercise of all rights to acquire Exchangeable Shares outstanding from
time to time and (b) as are now and may hereafter be required to enable
and permit JDS Uniphase to meet its obligations under the Voting and
Exchange Trust Agreement and under any other security or commitment
pursuant to which JDS Uniphase may now or hereafter be required to issue
JDS Uniphase Common Shares, to enable and permit JDS Uniphase Nova
Scotia to meet its obligations under each of the Liquidation Call Right,
the Retraction Call Right and the Redemption Call Right and to enable
and permit Exchangeco to meet its obligations hereunder and under the
Share Provisions.
2.4. Notification of Certain Events
In order to assist JDS Uniphase to comply with its obligations
hereunder and to permit JDS Uniphase Nova Scotia to exercise the
Liquidation Call Right, the Retraction Call Right and the Redemption
Call Right, Exchangeco will notify JDS Uniphase and JDS Uniphase Nova
Scotia of each of the following events at the time set forth below:
(a) in the event of any determination by the Board of Directors
of Exchangeco to institute voluntary liquidation, dissolution
or winding-up proceedings with respect to Exchangeco or to
effect any other distribution of the assets of Exchangeco
among its shareholders for the purpose of winding up its
affairs, at least 60 days prior to the proposed effective
date of such liquidation, dissolution, winding-up or other
distribution;
(b) promptly, upon the earlier of receipt by Exchangeco of notice
of and Exchangeco otherwise becoming aware of any threatened
or instituted claim, suit, petition or other proceedings with
respect to the involuntary liquidation, dissolution or
winding-up of Exchangeco or to effect any other distribution
of the assets of Exchangeco among its shareholders for the
purpose of winding up its affairs;
(c) immediately, upon receipt by Exchangeco of a Retraction
Request;
(d) on the same date on which notice of redemption is given to
holders of Exchangeable Shares, upon the determination of a
Redemption Date in accordance with the Share Provisions; and
(e) as soon as practicable upon the issuance by Exchangeco of any
Exchangeable Shares or rights to acquire Exchangeable Shares
(other than the issuance of Exchangeable Shares and rights to
acquire Exchangeable Shares in exchange for outstanding Class
B Non-Voting Preference Shares pursuant to the Plan of
Arrangement).
2.5. Delivery of JDS Uniphase Common Shares to Exchangeco and JDS
Uniphase Nova Scotia
In furtherance of its obligations under sections 2.1(d) and
(e) hereof, upon notice from Exchangeco or JDS Uniphase Nova Scotia of
any event that requires Exchangeco or JDS Uniphase Nova Scotia to cause
to be delivered JDS Uniphase Common Shares to any holder of Exchangeable
Shares, JDS Uniphase shall forthwith issue and deliver or cause to be
delivered to Exchangeco or JDS Uniphase Nova Scotia the requisite number
of JDS Uniphase Common Shares to be received by, and issued to or to the
order of, the former holder of the surrendered Exchangeable Shares, as
Exchangeco or JDS Uniphase Nova Scotia shall direct. All such JDS
Uniphase Common Shares shall be duly authorized and validly issued as
fully paid and non-assessable and shall be free and clear of any lien,
claim or encumbrance. In consideration of the issuance and delivery of
each such JDS Uniphase Common Share, Exchangeco or JDS Uniphase Nova
Scotia, as the case may be, shall issue to JDS Uniphase, or as JDS
Uniphase shall direct, common shares of Exchangeco or JDS Uniphase Nova
Scotia having equivalent value.
2.6. Qualification of JDS Uniphase Common Shares
If any JDS Uniphase Common Shares (or other shares or securities
into which JDS Uniphase Common Shares may be reclassified or changed as
contemplated by section 2.7 hereof) to be issued and delivered hereunder
require registration or qualification with or approval of or the filing
of any document, including any prospectus or similar document or the
taking of any proceeding with or the obtaining of any order, ruling or
consent from any governmental or regulatory authority under any Canadian
or United States federal, provincial or state securities or other law or
regulation or pursuant to the rules and regulations of any securities or
other regulatory authority or the fulfilment of any other United States
or Canadian legal requirement before such shares (or such other shares
or securities) may be issued by JDS Uniphase and delivered by JDS
Uniphase at the direction of JDS Uniphase Nova Scotia or Exchangeco, if
applicable, to the holder of surrendered Exchangeable Shares or in order
that such shares (or such other shares or securities) may be freely
traded thereafter (other than any restrictions of general application on
transfer by reason of a holder being a "control person" for purposes of
Canadian provincial securities law or an "affiliate" of JDS Uniphase for
purposes of United States federal or state securities law), JDS Uniphase
will in good faith expeditiously take all such actions and do all such
things as are necessary or desirable to cause such JDS Uniphase Common
Shares (or such other shares or securities) to be and remain duly
registered, qualified or approved under United States and/or Canadian
law, as the case may be. JDS Uniphase will in good faith expeditiously
take all such actions and do all such things as are reasonably necessary
or desirable to cause all JDS Uniphase Common Shares (or such other
shares or securities) to be delivered hereunder to be listed, quoted or
posted for trading on all stock exchanges and quotation systems on which
outstanding JDS Uniphase Common Shares (or such other shares or
securities) have been listed by JDS Uniphase and remain listed and are
quoted or posted for trading at such time.
2.7. Economic Equivalence
(a) JDS Uniphase will not without prior approval of Exchangeco and the
prior approval of the holders of the Exchangeable Shares given in
accordance with section 10.2 of the Share Provisions:
(i) issue or distribute JDS Uniphase Common Shares (or
securities exchangeable for or convertible into or
carrying rights to acquire JDS Uniphase Common Shares)
to the holders of all or substantially all of the then
outstanding JDS Uniphase Common Shares by way of stock
dividend or other distribution, other than an issue of
JDS Uniphase Common Shares (or securities exchangeable
for or convertible into or carrying rights to acquire
JDS Uniphase Common Shares) to holders of JDS Uniphase
Common Shares who exercise an option to receive
dividends in JDS Uniphase Common Shares (or securities
exchangeable for or convertible into or carrying rights
to acquire JDS Uniphase Common Shares) in lieu of
receiving cash dividends; or
(ii)issue or distribute rights, options or warrants to the
holders of all or substantially all of the then
outstanding JDS Uniphase Common Shares entitling them
to subscribe for or to purchase JDS Uniphase Common
Shares (or securities exchangeable for or convertible
into or carrying rights to acquire JDS Uniphase Common
Shares); or
(iii)issue or distribute to the holders of all or
substantially all of the then outstanding JDS Uniphase
Common Shares (A) shares or securities of JDS Uniphase
of any class other than JDS Uniphase Common Shares
(other than shares convertible into or exchangeable for
or carrying rights to acquire JDS Uniphase Common
Shares), (B) rights, options or warrants other than
those referred to in section 2.7(a)(ii) above,
(C) evidences of indebtedness of JDS Uniphase or
(D) assets of JDS Uniphase,
unless the economic equivalent on a per share basis of such rights,
options, securities, shares, evidences of indebtedness or other
assets is issued or distributed simultaneously to holders of the
Exchangeable Shares, in which case, for greater certainty, no
approval of the holders of Exchangeable Shares is required;
provided that, for greater certainty, the above restrictions shall
not apply to any securities issued or distributed by JDS Uniphase
in order to give effect to and to consummate the transactions
contemplated by, and in accordance with, the Merger Agreement.
(b) JDS Uniphase will not without the prior approval of Exchangeco and
the prior approval of the holders of the Exchangeable Shares given
in accordance with section 10.2 of the Share Provisions:
(i) subdivide, redivide or change the then outstanding JDS
Uniphase Common Shares into a greater number of JDS
Uniphase Common Shares; or
(ii)reduce, combine, consolidate or change the then
outstanding JDS Uniphase Common Shares into a lesser
number of JDS Uniphase Common Shares; or
(iii)reclassify or otherwise change JDS Uniphase Common
Shares or effect an amalgamation, merger,
reorganization or other transaction affecting JDS
Uniphase Common Shares,
unless the same or an economically equivalent change shall
simultaneously be made to, or in the rights of the holders of, the
Exchangeable Shares, in which case, for greater certainty, no
approval of the holders of Exchangeable Shares is required.
(c) JDS Uniphase will ensure that the record date for any event
referred to in section 2.7(a) or 2.7(b) above, or (if no record
date is applicable for such event) the effective date for any such
event, is not less than five Business Days after the date on which
such event is declared or announced by JDS Uniphase (with
contemporaneous notification thereof by JDS Uniphase to
Exchangeco).
(d) The Board of Directors of Exchangeco shall determine, in good faith
and in its sole discretion, economic equivalence for the purposes
of any event referred to in section 2.7(a) or 2.7(b) above and each
such determination shall be conclusive and binding on JDS Uniphase.
In making each such determination, the following factors shall,
without excluding other factors determined by the Board of
Directors of Exchangeco to be relevant, be considered by the Board
of Directors of Exchangeco:
(i) in the case of any stock dividend or other distribution
payable in JDS Uniphase Common Shares, the number of
such shares issued in proportion to the number of JDS
Uniphase Common Shares previously outstanding;
(ii) in the case of the issuance or distribution of any
rights, options or warrants to subscribe for or
purchase JDS Uniphase Common Shares (or securities
exchangeable for or convertible into or carrying rights
to acquire JDS Uniphase Common Shares), the
relationship between the exercise price of each such
right, option or warrant and the current market value
(as determined by the Board of Directors of Exchangeco
in the manner above contemplated) of a JDS Uniphase
Common Share;
(iii) in the case of the issuance or distribution of any
other form of property (including without limitation
any shares or securities of JDS Uniphase of any class
other than JDS Uniphase Common Shares, any rights,
options or warrants other than those referred to in
section 2.7(d)(ii) above, any evidences of indebtedness
of JDS Uniphase or any assets of JDS Uniphase), the
relationship between the fair market value (as
determined by the Board of Directors of Exchangeco in
the manner above contemplated) of such property to be
issued or distributed with respect to each outstanding
JDS Uniphase Common Share and the current market value
(as determined by the Board of Directors of Exchangeco
in the manner above contemplated) of a JDS Uniphase
Common Share;
(iv) in the case of any subdivision, redivision or change of
the then outstanding JDS Uniphase Common Shares into a
greater number of JDS Uniphase Common Shares or the
reduction, combination, consolidation or change of the
then outstanding JDS Uniphase Common Shares into a
lesser number of JDS Uniphase Common Shares or any
amalgamation, merger, reorganization or other
transaction affecting JDS Uniphase Common Shares, the
effect thereof upon the then outstanding JDS Uniphase
Common Shares; and
(v) in all such cases, the general taxation consequences of
the relevant event to holders of Exchangeable Shares to
the extent that such consequences may differ from the
taxation consequences to holders of JDS Uniphase
Common Shares as a result of differences between
taxation laws of Canada and the United States (except
for any differing consequences arising as a result of
differing marginal taxation rates and without regard to
the individual circumstances of holders of Exchangeable
Shares).
For purposes of the foregoing determinations, the current market value
of any security listed and traded or quoted on a securities
exchange shall be the average of the closing bid and ask prices of
such security during a period of not less than 20 consecutive
trading days ending not more than three trading days before the
date of determination on the principal securities exchange on which
such securities are listed and traded or quoted; provided, however,
that if in the opinion of the Board of Directors of Exchangeco the
public distribution or trading activity of such securities during
such period does not create a market which reflects the fair market
value of such securities, then the current market value thereof
shall be determined by the Board of Directors of Exchangeco, in
good faith and in its sole discretion, and provided further that
any such determination by the Board of Directors of Exchangeco
shall be conclusive and binding on JDS Uniphase.
(e) Exchangeco agrees that, to the extent required, upon due notice
from JDS Uniphase, Exchangeco will use its best efforts to take or
cause to be taken such steps as may be necessary for the purposes
of ensuring that appropriate dividends are paid or other
distributions are made by Exchangeco, or subdivisions, redivisions
or changes are made to the Exchangeable Shares, in order to
implement the required economic equivalence with respect to the
JDS Uniphase Common Shares and Exchangeable Shares as provided for
in this section 2.7.
2.8. Tender Offers
In the event that a tender offer, share exchange offer, issuer
bid, take-over bid or similar transaction with respect to JDS Uniphase
Common Shares (an "Offer") is proposed by JDS Uniphase or is proposed to
JDS Uniphase or its shareholders and is recommended by the Board of
Directors of JDS Uniphase, or is otherwise effected or to be effected
with the consent or approval of the Board of Directors of JDS Uniphase,
and the Exchangeable Shares are not redeemed by Exchangeco or purchased
by JDS Uniphase Nova Scotia pursuant to the Redemption Call Right, JDS
Uniphase will use its reasonable efforts expeditiously and in good faith
to take all such actions and do all such things as are necessary or
desirable to enable and permit holders of Exchangeable Shares to
participate in such Offer to the same extent and on an economically
equivalent basis as the holders of JDS Uniphase Common Shares, without
discrimination. Without limiting the generality of the foregoing, JDS
Uniphase will use its reasonable efforts expeditiously and in good faith
to ensure that holders of Exchangeable Shares may participate in all
such Offers without being required to retract Exchangeable Shares as
against Exchangeco (or, if so required, to ensure that any such
retraction, shall be effective only upon, and shall be conditional upon,
the closing of the Offer and only to the extent necessary to tender or
deposit to the Offer). Nothing herein shall affect the rights of
Exchangeco to redeem (or JDS Uniphase Nova Scotia to purchase pursuant
to the Redemption Call Right) Exchangeable Shares, as applicable, in the
event of a JDS Uniphase Control Transaction.
2.9. Ownership of Outstanding Shares
Without the prior approval of Exchangeco and the prior approval of
the holders of the Exchangeable Shares given in accordance with
section 10.2 of the Share Provisions, JDS Uniphase covenants and agrees
in favour of Exchangeco that, as long as any outstanding Exchangeable
Shares are owned by any person or entity other than JDS Uniphase or any
of its Affiliates, JDS Uniphase will be and remain the direct or
indirect beneficial owner of all issued and outstanding voting shares in
the capital of Exchangeco and JDS Uniphase Nova Scotia.
2.10. JDS Uniphase and Affiliates Not to Vote Exchangeable Shares
JDS Uniphase covenants and agrees that it will appoint and cause
to be appointed proxyholders with respect to all Exchangeable Shares
held by it and its Affiliates for the sole purpose of attending each
meeting of holders of Exchangeable Shares in order to be counted as part
of the quorum for each such meeting. JDS Uniphase further covenants and
agrees that it will not, and will cause its Affiliates not to, exercise
any voting rights which may be exercisable by holders of Exchangeable
Shares from time to time pursuant to the Share Provisions or pursuant to
the provisions of the Canada Business Corporations Act (or any successor
or other corporate statute by which Exchangeco may in the future be
governed) with respect to any Exchangeable Shares held by it or by its
Affiliates in respect of any matter considered at any meeting of holders
of Exchangeable Shares.
2.11. Rule-10b-18 Purchases
For greater certainty, nothing contained in this Agreement,
including without limitation the obligations of JDS Uniphase contained
in section 2.8 hereof, shall limit the ability of JDS Uniphase or
Exchangeco to make a "Rule l0b-18 Purchase" of JDS Uniphase Common
Shares pursuant to Rule 10b-18 of the U.S. Securities Exchange Act of
1934, as amended, or any successor provisions thereof.
2.12. Stock Exchange Listing
JDS Uniphase covenants and agrees in favour of Exchangeco that, as
long as any outstanding Exchangeable Shares are owned by any person or
entity other than JDS Uniphase or any of its Affiliates, JDS Uniphase
will use its reasonable best efforts to maintain a listing for such
Exchangeable Shares on a Canadian stock exchange.
ARTICLE 3.
JDS UNIPHASE SUCCESSORS
3.1. Certain Requirements in Respect of Combination, etc.
JDS Uniphase shall not consummate any transaction (whether by way
of reconstruction, reorganization, consolidation, merger, transfer,
sale, lease or otherwise) whereby all or substantially all of its
undertaking, property and assets would become the property of any other
person or, in the case of a merger, of the continuing corporation
resulting therefrom unless, but may do so if:
(a) such other person or continuing corporation (the "JDS
Uniphase Successor") by operation of law, becomes, without
more, bound by the terms and provisions of this Agreement or,
if not so bound, executes, prior to or contemporaneously with
the consummation of such transaction, an Agreement
supplemental hereto and such other instruments (if any) as
are reasonably necessary or advisable to evidence the
assumption by the JDS Uniphase Successor of liability for all
moneys payable and property deliverable hereunder and the
covenant of such JDS Uniphase Successor to pay and deliver or
cause to be delivered the same and its Agreement to observe
and perform all the covenants and obligations of JDS Uniphase
under this Agreement; and
(b) such transaction shall be upon such terms and conditions as
substantially to preserve and not to impair in any material
respect any of the rights, duties, powers and authorities of
the other parties hereunder or the holders of Exchangeable
Shares.
3.2. Vesting of Powers in Successor
Whenever the conditions of section 3.1 have been duly observed and
performed, the parties, if required by section 3.1, shall execute and
deliver a supplemental agreement hereto and thereupon JDS Uniphase
Successor shall possess and from time to time may exercise each and
every right and power of JDS Uniphase under this Agreement in the name
of JDS Uniphase or otherwise and any act or proceeding by any provision
of this Agreement required to be done or performed by the Board of
Directors of JDS Uniphase or any officers of JDS Uniphase may be done
and performed with like force and effect by the directors or officers of
such JDS Uniphase Successor.
3.3. Who-ly-Owned Subsidiaries
Nothing herein shall be construed as preventing the amalgamation
or merger of any wholly-owned direct or indirect subsidiary of JDS
Uniphase with or into JDS Uniphase or the winding-up, liquidation or
dissolution of any wholly-owned subsidiary of JDS Uniphase provided that
all of the assets of such subsidiary are transferred to JDS Uniphase or
another wholly-owned direct or indirect subsidiary of JDS Uniphase and
any such transactions are expressly permitted by this Article 3.
ARTICLE 4.
GENERAL
4.1. Term
This Agreement shall come into force and be effective as of the
date hereof and shall terminate and be of no further force and effect at
such time as no Exchangeable Shares (or securities or rights convertible
into or exchangeable for or carrying rights to acquire Exchangeable
Shares) are held by any person or entity other than JDS Uniphase and any
of its Affiliates.
4.2. Changes in Capital of JDS Uniphase and Exchangeco
At all times after the occurrence of any event contemplated
pursuant to sections 2.7 and 2.8 hereof or otherwise, as a result of
which either JDS Uniphase Common Shares or the Exchangeable Shares or
both are in any way changed, this Agreement shall forthwith be amended
and modified as necessary in order that it shall apply with full force
and effect, mutatis mutandis, to all new securities into which JDS
Uniphase Common Shares or the Exchangeable Shares or both are so changed
and the parties hereto shall execute and deliver an Agreement in writing
giving effect to and evidencing such necessary amendments and
modifications.
4.3. Severability
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.
4.4. Amendments, Modifications
This Agreement may not be amended or modified except by an
Agreement in writing executed by Exchangeco, JDS Uniphase Nova Scotia
and JDS Uniphase and approved by the holders of the Exchangeable Shares
in accordance with section 10.2 of the Share Provisions.
4.5. Ministerial Amendments
Notwithstanding the provisions of section 4.4, the parties to this
Agreement may in writing at any time and from time to time, without the
approval of the holders of the Exchangeable Shares, amend or modify this
Agreement for the purposes of:
(a) adding to the covenants of any or all parties provided that
the Board of Directors of each of Exchangeco, JDS Uniphase
Nova Scotia and JDS Uniphase shall be of the good faith
opinion that such additions will not be prejudicial to the
rights or interests of the holders of the Exchangeable
Shares;
(b) making such amendments or modifications not inconsistent with
this Agreement as may be necessary or desirable with respect
to matters or questions which, in the good faith opinion of
the Board of Directors of each of Exchangeco, JDS Uniphase
Nova Scotia and JDS Uniphase, it may be expedient to make,
provided that each such Board of Directors shall be of the
good faith opinion that such amendments or modifications will
not be prejudicial to the rights or interests of the holders
of the Exchangeable Shares; or
(c) making such changes or corrections which, on the advice of
counsel to Exchangeco, JDS Uniphase Nova Scotia and JDS
Uniphase, are required for the purpose of curing or
correcting any ambiguity or defect or inconsistent provision
or clerical omission or mistake or manifest error, provided
that the Boards of Directors of each of Exchangeco, JDS
Uniphase Nova Scotia and JDS Uniphase shall be of the good
faith opinion that such changes or corrections will not be
prejudicial to the rights or interests of the holders of the
Exchangeable Shares.
4.6. Meeting to Consider Amendments
Exchangeco, at the request of JDS Uniphase, shall call a meeting
or meetings of the holders of the Exchangeable Shares for the purpose of
considering any proposed amendment or modification requiring approval
pursuant to section 4.4 hereof. Any such meeting or meetings shall be
called and held in accordance with the bylaws of Exchangeco, the Share
Provisions and all applicable laws.
4.7. Amendments Only in Writing
No amendment to or modification or waiver of any of the provisions
of this Agreement otherwise permitted hereunder shall be effective
unless made in writing and signed by all of the parties hereto.
4.8. Enurement
This Agreement shall be binding upon and enure to the benefit of
the parties hereto and their respective successors and assigns.
4.9. Notices to Parties
All notices and other communications between the parties to this
Agreement shall be in writing and shall be deemed to have been given if
delivered personally or by confirmed telecopy to the parties at the
following addresses (or at such other address for any such party as
shall be specified in like notice):
(a) if to Exchangeco:
3506967 Canada Inc.
c/o JDS Uniphase Corporation
163 Baypointe Parkway
San Jose, CA
U.S.A. 95134
Attention: Senior Vice President, Business Development
Telecopier No.: (408) 954-0540
(b) if to JDS Uniphase or JDS Uniphase Nova Scotia:
JDS Uniphase Corporation
163 Baypointe Parkway
San Jose, CA
U.S.A. 95134
Attention: Senior Vice President, Business Development
Telecopier No.: (408) 954-0540
Any notice or other communication given personally shall be deemed to
have been given and received upon delivery thereof and if given by
telecopy shall be deemed to have been given and received on the date of
confirmed receipt thereof unless such day is not a Business Day in which
case it shall be deemed to have been given and received upon the
immediately following Business Day.
4.10. Counterparts
This Agreement may be executed in counterparts, each of which
shall be deemed an original, and all of which taken together shall
constitute one and the same instrument.
4.11. Jurisdiction
This Agreement shall be construed and enforced in accordance with
the laws of the Province of Ontario and the laws of Canada applicable
therein.
4.12. Attornment
Each of JDS Uniphase and JDS Uniphase Nova Scotia agrees that any
action or proceeding arising out of or relating to this Agreement may be
instituted in the courts of Ontario, waives any objection which it may
have now or hereafter to the venue of any such action or proceeding,
irrevocably submits to the jurisdiction of the said courts in any such
action or proceeding, agrees to be bound by any judgment of the said
courts and not to seek, and hereby waives, any review of the merits of
any such judgment by the courts of any other jurisdiction and hereby
appoints Exchangeco at its registered office in the Province of Ontario
as attorney for service of process.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first above written.
JDS UNIPHASE CORPORATION
By:
Name:
Title:
JDS UNIPHASE NOVA SCOTIA COMPANY
By:
Name:
Title:
JDS UNIPHASE CANADA LTD.
By:
Name:
Title:
