EXHIBIT 10.23
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) 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.
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.
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;
(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):
(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 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.
(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 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.
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
(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 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.
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.
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
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 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]
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:_________________________________
__________________________________
