VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement") is
made and entered into as of January 17, 2000, between and among JDS Uniphase
Corporation, a corporation incorporated under the laws of the State of Delaware
("JDSU"), and the undersigned stockholder (the
"Stockholder") of E-TEK Dynamics, Inc., a corporation organized
under the laws of the State of Delaware ("Rainbow"). All
capitalized terms herein not otherwise defined shall have the meaning ascribed
to them in the Merger Agreement (as defined below).
RECITALS
- Pursuant to an Agreement and Plan of Reorganization
and Merger dated as of the date hereof (the "Merger Agreement")
by and among JDSU, Rainbow Acquisition, Inc. a corporation organized under the
laws of the State of Delaware ("Sub") and wholly owned
subsidiary of JDSU, and Rainbow, Sub is merging with and into Rainbow (the
"Merger") and Rainbow, as the surviving corporation of the
Merger, will thereby become a wholly owned subsidiary of JDSU;
- Stockholder is the beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of the shares of the outstanding Common Stock,
$0.001 par value per share, of Rainbow in the amounts indicated on the final
page of this Agreement (the "Shares"); and
- In consideration of the execution of the Merger Agreement
by JDSU, Stockholder agrees (i) not to transfer or otherwise dispose of any
of its Shares, or any other shares of capital stock of Rainbow acquired by such
Stockholder hereafter and prior to the Expiration Date (as defined in
Section 1.1 below) and (ii) agrees to vote its Shares and any other
such shares of capital stock of Rainbow in favor of approval of the Merger.
NOW, THEREFORE, the parties agree as follows:
- Agreement to Retain Shares
.
- Transfer and Encumbrance. Stockholder agrees to
be subject to such Stockholder's Proxy (as defined in Section 3) and agrees
not to transfer (except as may be specifically required by court order), sell,
exchange, or pledge prior to the Expiration Date or otherwise dispose of or
encumber Stockholder's Shares or any New Shares (as defined in Section 1.2)
prior to the Expiration Date, or to make any offer or agreement relating
thereto, at any time prior to the Expiration Date. As used herein, the term
"Expiration Date" shall mean the earlier to occur of
(i) the Effective Time (as such term is defined in the Merger Agreement)
and (ii) the date on which the Merger Agreement is terminated in accordance
with its terms (including any extensions to the Merger Agreement, as provided
for therein).
- New Shares. Stockholder agrees that any shares of
capital stock of Rainbow that such Stockholder purchases or with respect to
which Stockholder otherwise acquires beneficial ownership after the date of this
Agreement and prior to the Expiration Date ("New Shares") shall
be subject to the terms and conditions of this Agreement to the same extent as
if they constituted Shares.
- Agreement to Vote Shares. At every meeting
of the stockholders of Rainbow called with respect to any of the following, and
at every adjournment thereof, and on every action or approval by written consent
of the stockholders of Rainbow with respect to any of the following, Stockholder
agrees such Stockholder shall vote Stockholder's Shares and any New Shares in
favor of approval of the Merger Agreement, the Merger, and the transactions
contemplated thereby. This Agreement is intended to bind Stockholder as a
stockholder of Rainbow only with respect to the specific matters set forth
herein.
- Proxy. Concurrently with the execution of
this Agreement, Stockholder agrees to deliver to JDSU a proxy in the form
attached hereto as Exhibit A (the "Proxy"), which
shall be irrevocable to the extent provided in Section 212 of the Delaware
General Corporation Law, covering the total number of Shares and New Shares
beneficially owned or as to which beneficial ownership is acquired (as such term
is defined in Rule 13d-3 under the Exchange Act) by such Stockholder set
forth therein.
- Representations, Warranties and Covenants of
Stockholder. Stockholder hereby represents, warrants and covenants to
JDSU that such Stockholder (i) is the beneficial owner of Stockholder's
Shares, which at the date of this Agreement and at all times up until the
Expiration Date will be free and clear of any liens, claims, options, charges or
other encumbrances; (ii) does not beneficially own any shares of capital
stock of Rainbow other than Stockholder's Shares (excluding shares as to which
such Stockholder currently disclaims beneficial ownership in accordance with
applicable law); (iii) has full power and authority to make, enter into and
carry out the terms of this Agreement and such Stockholder's Proxy; and (iv) the
execution, delivery and performance of this Agreement by such Stockholder and
the consummation of the transactions contemplated hereby, will not (a) require
the consent, waiver, approval, or authorization of any governmental authority
or any other person or entity or (b) violate, conflict with, result in a breach
of or the acceleration of any obligation under, or constitute a default (or an
event which with notice or the lapse of time or both would become a default)
under, or give to others any right of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or other encumbrance on any
property or asset of the Stockholder pursuant to any provision of any indenture,
mortgage, lien, lease, agreement, contract, instrument, order, judgment,
ordinance, regulation or decree to which the Stockholder is subject or by which
the Stockholder or any of Stockholder's property or assets is bound.
- Additional Documents. Stockholder hereby
covenants and agrees to execute and deliver any additional documents necessary
or desirable, in the reasonable opinion of JDSU, to carry out the purpose and
intent of this Agreement.
- Consent and Waiver. Stockholder hereby
gives any consents or waivers that are reasonably required for the consummation
of the Merger under the terms of any agreement to which such Stockholder is a
party or pursuant to any rights such Stockholder may have. Stockholder further
agrees to give such additional consents and waivers as may be reasonably
required for the consummation of the Merger under the terms of any agreement to
which such Stockholder is a party or pursuant to any rights such Stockholder may
have. As further clarification, but not limitation, of the foregoing,
Stockholder further agrees to waive any registration rights it may have with
respect to Stockholder's Shares (including piggyback registration rights) prior
to the Expiration Date.
- Termination. This Agreement and the
Proxies delivered in connection herewith shall terminate and shall have no
further force or effect as of the Expiration Date.
- Miscellaneous
.
- Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
- Binding Effect and Assignment. This Agreement and
all of the provisions hereof shall be binding upon and insure to the benefit of
the parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either of the parties without the prior written consent of the other.
- Amendment and Modification. This Agreement may
not be modified, amended, altered or supplemented except by the execution and
delivery of a written agreement executed by the parties hereto.
- Specific Performance; Injunctive Relief. The
parties hereto acknowledge that JDSU will be irreparably harmed and that there
will be no adequate remedy at law for a violation of any of the covenants or
agreements of Stockholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to JDSU upon such
violation, JDSU shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to JDSU
at law or in equity.
- Notices. All notices that are required or may be
given pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if given in writing and delivered by hand or national
overnight courier service, transmitted by telecopy or mailed by registered or
certified mail, postage prepaid (effective when delivered by hand or telecopy,
one day after dispatch by overnight courier, and three business days after
dispatch by mail), as follows:
- if to JDSU or Sub, to:
JDS Uniphase Corporation
163 Baypointe Parkway
San Jose, CA 95134
Attention: Michael C. Phillips
Facsimile No.: (408) 954-0540
Telephone No.: (408) 434-1800
with a copy to:
Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105
Attention: John W. Campbell, Esq.
Facsimile No.: (415) 268-7522
Telephone No.: (415) 268-7000
- if to Stockholder, to the address set forth beneath such Shareholder's
signature below.
- Governing Law; Forum. This Agreement shall be
governed by, construed and enforced in accordance with the internal laws of the
State of Delaware.
- Entire Agreement. This Agreement and the Proxies
contain the entire understanding of the parties in respect of the subject matter
hereof, and supersede all prior negotiations and understandings between the
parties with respect to such subject matters.
- Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
- Effect of Headings. The section headings herein
are for convenience only and shall not affect the construction or interpretation
of this Agreement.
- Jurisdiction. The parties to this Agreement
agree that any suit, action or proceeding arising out of, or with respect to,
this Agreement or any judgment entered by any court in respect thereof shall be
brought in the courts of Delaware or in the U.S. District Court for Delaware as
the commencing party may elect, and Stockholder hereby accepts the exclusive
jurisdiction of those courts for the purpose of any suit, action or proceeding.
In addition, Stockholder hereby irrevocably waives, to the fullest extent
permitted by law, any objection which Stockholder may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement or any judgment entered by any court in respect thereof
brought in Delaware or the U.S. District Court for the District of Delaware, as
selected by the commencing party, and hereby further irrevocably waives any
claim that any suit, action or proceedings brought in Delaware or in such
District Court has been brought in an inconvenient forum.
- No Limitation on Actions of Stockholder as
Director. Notwithstanding anything to the contrary in this Agreement, in
the event Stockholder is a director of the Company, nothing in this Agreement is
intended or shall be construed to require Stockholder, in Stockholder's capacity
as a director of the Company, to act or fail to act in accordance with
Stockholder's fiduciary duties in such capacity.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed the day and year first above written.
JDS UNIPHASE CORPORATION
By:
Title:
STOCKHOLDER
By:
Stockholder's Address for Notice:
Shares beneficially owned:
_______ shares of Rainbow Common Stock
[SIGNATURE PAGE TO VOTING AGREEMENT]
EXHIBIT A
PROXY
TO VOTE STOCK OF
E-TEK DYNAMICS, INC.
The undersigned stockholder of E-Tek Dynamics, Inc., a
corporation organized under the laws of the State of Delaware,
("Rainbow"), hereby irrevocably (to the full extent permitted
by Section 212 of the Delaware General Corporation Law) appoints Michael C.
Phillips and Anthony R. Muller of JDS Uniphase Corporation, a corporation
organized under the laws of State of Delaware ("JDSU"), and
each of them, as the sole and exclusive attorneys and proxies of the
undersigned, with full power of substitution and resubstitution, to vote with
respect to all of the shares of capital stock of Rainbow that now are or
hereafter may be beneficially owned by the undersigned (including, without
limitation, the power to execute and deliver written consents pursuant to
Section 228 of the Delaware General Corporation Law), and any and all other
shares or securities of Rainbow issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in
accordance with the terms of this Proxy. The Shares beneficially owned by the
undersigned stockholder of Rainbow as of the date of this Proxy are listed on
the final page of this Proxy. Upon the undersigned's execution of this Proxy,
any and all prior proxies given by the undersigned with respect to any Shares
are hereby revoked and the undersigned agrees not to grant any subsequent
proxies with respect to the Shares until after the Expiration Date (as defined
below).
This Proxy is irrevocable (to the extent provided in
Section 212 of the Delaware General Corporation Law), is coupled with an
interest and is granted pursuant to that certain Voting Agreement dated as of
January 17, 2000, by and among JDSU and the undersigned stockholder (the
"Voting Agreement"), and is granted in consideration of JDSU
entering into that certain Agreement and Plan of Reorganization and Merger,
dated as of January 17, 2000, by and among Rainbow, JDSU and Rainbow
Acquisition, Inc., a corporation organized under the laws of the State of
Delaware ("Sub") and wholly owned subsidiary of JDSU (the
"Merger Agreement"). The Merger Agreement provides for the
merger of Sub with and into Rainbow (the "Merger"). As used
herein, the term "Expiration Date" shall mean the earlier to
occur of (i) the Effective Time (as such term is defined in the Merger
Agreement) and (ii) the date on which the Merger Agreement is terminated in
accordance with its terms (including any extensions to the Merger Agreement, as
provided for therein).
The attorneys and proxies named above, and each of them are
hereby authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney and proxy to vote the
Shares (including, without limitation, the power to execute and deliver written
consents pursuant to Section 228 of the Delaware General Corporation Law),
at every annual, special or adjourned meeting of the stockholders of Rainbow and
in every written consent in lieu of such meeting in favor of approval of the
Merger and the Merger Agreement. The attorneys and proxies named above may not
exercise this Proxy on any other matter except as provided above. The
undersigned stockholder may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding
upon the successors and assigns of the undersigned.
This Proxy is irrevocable (to the extent provided in
Section 212 of the Delaware General Corporation Law). This Proxy shall
terminate, and be of no further force and effect, automatically upon the
Expiration Date.
Dated: January 17, 2000
(Signature of Stockholder)
(Print Name of Stockholder)
Shares beneficially owned:
_______ shares of Rainbow Common Stock