REGISTRATION RIGHTS AGREEMENT dated as of May 17, 2006 between JDS Uniphase Corporation and and Merrill Lynch, Pierce, Fenner & Smith Incorporated as Initial Purchasers
REGISTRATION
RIGHTS AGREEMENT
dated
as of May 17, 2006
between
JDS
Uniphase Corporation
and
▇.▇.
▇▇▇▇▇▇ Securities Inc.
and
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
as
Initial Purchasers
REGISTRATION
RIGHTS AGREEMENT, dated as of May 17, 2006 (this “Agreement”),
between JDS Uniphase Corporation, a Delaware corporation (the “Company”),
and
▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, as initial purchasers (the “Initial
Purchasers”)
to the
Purchase Agreement, dated May 11, 2006 (the “Purchase
Agreement”),
between the Company and the Initial Purchasers. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement. The Company has
represented and warranted that it will have executed and delivered this
Agreement prior to closing the transactions contemplated under the Purchase
Agreement.
The
Company agrees with the Initial Purchasers, (i) for their benefit as Initial
Purchasers and (ii) for the benefit of the beneficial owners (including the
Initial Purchasers) from time to time of the Notes (as defined herein) and
the
beneficial owners from time to time of the Underlying Common Stock (as defined
herein) issued upon conversion of the Notes (each of the foregoing a
“Holder”
and
together the “Holders”),
as
follows:
Section
1 .
Definitions. Capitalized
terms used herein without definition shall have their respective meanings set
forth in the Purchase Agreement. As used in this Agreement, the following terms
shall have the following meanings:
“Additional
Interest Amount”
has
the
meaning set forth in Section
2(e)
hereof.
“Affiliate”
means
with respect to any specified person, an “affiliate,” as defined in Rule 144, of
such person.
“Amendment
Effectiveness Deadline”
has
the
meaning set forth in Section
2(d)
hereof.
“Business
Day”
means
any day, except a Saturday, Sunday or legal holiday on which banking
institutions in The City of New York are authorized or obligated by law or
executive order to close.
“Common
Stock”
means
the shares of common stock, $0.001 par value per share, of the Company, together
with the Rights evidenced by such common stock to the extent provided in the
Rights Agreement, and any other shares of common stock as may constitute “Common
Stock” for purposes of the Indenture, including the Underlying Common
Stock.
“Conversion
Price”
has
the
meaning assigned such term in the Indenture.
“Deferral
Notice”
has
the
meaning set forth in Section
3(h)
hereof.
“Deferral
Period”
has
the
meaning set forth in Section
3(h)
hereof.
“Effectiveness
Deadline”
has
the
meaning set forth in Section
2(a)
hereof.
“Effectiveness
Period”
means
the period commencing on the first date that a Shelf Registration Statement
is
declared effective under the Securities Act hereof and ending on the earliest
of
(i) the date when all of the Registrable Securities have been sold pursuant
to
the Shelf Registration statement or Rule 144, (ii) the expiration of the holding
period under Rule 144(k) under the Securities Act, or any successor provision
or
(iii) the date when all of the Registrable Securities have ceased to be
outstanding (whether as a result of repurchase and cancellation, conversion
or
otherwise).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.
“Filing
Deadline”
has
the
meaning set forth in Section
2(a)
hereof.
“Holder”
has
the
meaning set forth in the second paragraph of this Agreement.
“Indenture”
means
the Indenture dated as of May 17, 2006 between the Company and The Bank of
New
York, as trustee, pursuant to which the Notes are being issued.
“Initial
Purchasers”
has
the
meaning set forth in the preamble hereof.
“Interest
Payment Date”
means
each May 15 and November 15.
“Issue
Date”
means
the first date of original issuance of the Notes.
“Material
Event”
has
the
meaning set forth in Section
3(h)
hereof.
“Notes”
means
the 1.00% Senior Convertible Notes Due 2026 of the Company to be purchased
pursuant to the Purchase Agreement, including any Notes purchased by the Initial
Purchasers upon exercise of their option to purchase additional
Notes.
“Notice
and Questionnaire”
means
a
written notice delivered to the Company containing substantially the information
called for by the Selling Securityholder Notice and Questionnaire attached
as
Annex A to the Offering Memorandum of the Company, dated May 11, 2006,
relating to the Notes.
“Notice
Holder”
means,
on any date, any Holder that has delivered a Notice and Questionnaire to the
Company on or prior to such date.
“Purchase
Agreement”
has
the
meaning set forth in the preamble hereof.
“Prospectus”
means
a
prospectus relating to a Shelf Registration Statement, as amended or
supplemented, and all materials incorporated by reference in such
Prospectus.
"Record
Holder" means with
respect to any Interest Payment Date relating to any Notes as to which any
Additional Interest Amount has accrued, the registered holder of such Note
or
Underlying Common Stock on the May 1 or the November 1 immediately preceding
the
Interest Payment Date.
“Registrable
Securities”
means
the Notes until such Notes have been converted into or exchanged for the
Underlying Common Stock and, at all times subsequent to any such conversion,
the
Underlying Common Stock and any securities into or for which such Underlying
Common Stock has been converted or exchanged, and any security issued with
respect thereto upon any stock dividend, split or similar event until, in the
case of any such security, (A) the earliest of (i) its effective registration
under the Securities Act and resale in accordance with a Shelf Registration
Statement, (ii) expiration of the holding period that would be applicable
thereto under Rule 144(k) or (iii) its sale to the public pursuant to Rule
144
(or any similar provision then in force, but not Rule 144A) under the Securities
Act, and (B) as a result of the event or circumstance described in any of the
foregoing clauses (i) through (iii), the legend with respect to transfer
restrictions required under the Indenture is removed or removable in accordance
with the terms of the Indenture or such legend, as the case may be.
“Registration
Default”
has
the
meaning set forth in Section
2(e)
hereof.
“Registration
Default Period”
has
the
meaning set forth in Section
2(e)
hereof.
“Rights
Agreement”
means
the Fifth Amended and Restated Rights Agreement dated February 13, 2003 between
the Company and American Stock Transfer & Trust Company, as rights
agent.
“Rule
144”
means
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the
SEC.
“Rule
144A”
means
Rule 144A under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the
SEC.
“SEC”
means
the Securities and Exchange Commission.
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the SEC thereunder.
“Shelf
Registration Statement”
has
the
meaning set forth in Section
2(a)
hereof,
including amendments to such registration statement, all exhibits and all
materials incorporated by reference in such registration statement.
“Special
Counsel”
means
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP or one such other successor counsel
as shall be specified by the Holders of a majority of the Registrable
Securities, but which may, with the written consent of the Initial Purchasers
(which shall not be unreasonably withheld), be another nationally recognized
law
firm experienced in securities law matters designated by the Company. For
purposes of determining Holders of a majority of the Registrable Securities
in
this definition, Holders of Notes shall be deemed to be the Holders of the
number of shares of Underlying Common Stock into which such Notes are or would
be convertible as of the date the consent is requested.
“Trustee”
means
The Bank of New York, the Trustee under the Indenture.
“Underlying
Common Stock”
means
the Common Stock into which the Notes are convertible or issued upon any such
conversion.
Section
2 .
Shelf Registration. (a)
To the
extent not prohibited by any applicable law or applicable interpretation of
the
staff of the SEC, the Company shall prepare and file or cause to be prepared
and
filed with the SEC, as soon as practicable but in any event by the date (the
“Filing
Deadline”)
210
days after the Issue Date, a registration statement for an offering to be made
on a delayed or continuous basis pursuant to Rule 415 of the Securities Act
registering the resale from time to time by Holders of the Registrable
Securities (a “Shelf
Registration Statement”).
The
Shelf Registration Statement shall be on Form S-3 or another appropriate form
permitting registration of the Registrable Securities for resale by the Holders
in accordance with the methods of distribution elected by the Holders and set
forth in the Shelf Registration Statement. The Company shall use its
commercially reasonable efforts to cause a Shelf Registration Statement to
be
declared effective under the Securities Act as promptly as is practicable but
in
any event by the date (the “Effectiveness
Deadline”)
that
is 240 days after the Issue Date, and to keep a Shelf Registration Statement
continuously effective under the Securities Act until the expiration of the
Effectiveness Period (subject to the procedures described in Section 3). Each
Holder that became a Notice Holder on or prior to the date ten Business Days
prior to the initial Shelf Registration Statement is declared effective shall
be
named as a selling securityholder in the initial Shelf Registration Statement
and the related Prospectus in such a manner as to permit such Holder to deliver
the Prospectus to purchasers of Registrable Securities in accordance with
applicable law provided that such Holder shall have completed and delivered
to
the Company a Notice and Questionnaire. None of the Company’s current security
holders (other than the Holders) have the right to include any of the Company’s
securities in a Shelf Registration Statement.
(b) If
a
Shelf Registration Statement covering resales of the Registrable Securities
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because all securities registered thereunder shall have
been
resold pursuant thereto or shall have otherwise ceased to be Registrable
Securities), the Company shall use its best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within 45 days of such cessation of effectiveness amend the Shelf
Registration Statement in a manner reasonably expected to obtain the withdrawal
of the order suspending the effectiveness thereof, or file an additional Shelf
Registration Statement so that all Registrable Securities outstanding as of
the
date of such filing are covered by a Shelf Registration Statement. If a new
Shelf Registration Statement is filed, the Company shall use its commercially
reasonable efforts to cause the new Shelf Registration Statement to become
effective as promptly as is practicable after such filing and to keep the new
Shelf Registration Statement continuously effective until the end of the
Effectiveness Period.
(c) The
Company shall amend and supplement the Prospectus and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or file a new Shelf Registration Statement, if required
by the Securities Act, or any other documents necessary to name a Notice Holder
as a selling securityholder pursuant to Section
2(d)
below.
(d) Each
Holder may sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus only in accordance with this Section
2(d)
and
Section
3(h).
From
and after the date the initial Shelf Registration Statement is declared
effective, the Company shall, as promptly as practicable after the date a Notice
and Questionnaire is delivered, and in any event upon the later of (x) 15
Business Days after such date or (y) five Business Days after the expiration
of
any Deferral Period in effect when the Notice and Questionnaire is delivered
or
put into effect within 15 Business Days of such delivery date:
(i) if
required by applicable law, file with the SEC a post-effective amendment to
the
Shelf Registration Statement or prepare and, if required by applicable law,
file
a supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file a new Shelf Registration
Statement or any other required document so that the Holder delivering such
Notice and Questionnaire is named as a selling securityholder in a Shelf
Registration Statement and the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of the Registrable
Securities in accordance with applicable law and, if the Company shall file
a
post-effective amendment to a Shelf Registration Statement or shall file a
new
Shelf Registration Statement, the Company shall use its commercially reasonable
efforts to cause such post-effective amendment or new Shelf Registration
Statement to be declared effective under the Securities Act as promptly as
is
practicable, but in any event by the date (the “Amendment
Effectiveness Deadline”)
that
is 45 days after the date such post-effective amendment or new Shelf
Registration Statement is required by this clause to be filed;
(ii) provide
such Holder copies of any documents filed pursuant to Section
2(d)(i);
and
(iii) notify
such Holder as promptly as practicable after the effectiveness under the
Securities Act of any new Shelf Registration Statement or post-effective
amendment filed pursuant to Section
2(d)(i);
provided
that if
such Notice and Questionnaire is delivered during a Deferral Period, the Company
shall so inform the Holder delivering such Notice and Questionnaire and shall
take the actions set forth in clauses (i), (ii) and (iii) above upon expiration
of the Deferral Period in accordance with Section
3(h).
Notwithstanding anything contained herein to the contrary, (i) the Company
shall
be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Shelf Registration Statement or related Prospectus
and (ii) the Amendment Effectiveness Deadline shall be extended by up to ten
Business Days from the expiration of a Deferral Period.
(e) The
parties hereto agree that the Holders of Registrable Securities will suffer
damages and that it would not be feasible to ascertain the extent of such
damages with precision, if:
(i) the
Company has failed to perform its obligations set forth in the first sentence
of
Section 2(a) hereof on or prior to the Filing Deadline,
(ii) a
Shelf
Registration Statement has not been declared effective under the Securities
Act
on or prior to the Effectiveness Deadline,
(iii) the
Company has failed to perform its obligations set forth in Section
2(d)(i)
within
the time period required therein,
(iv) a
new
Shelf Registration Statement or a post-effective amendment to a Shelf
Registration Statement has not become effective on or prior to the Amendment
Effectiveness Deadline in accordance with Section
2(d)(i)
hereof,
(v) the
aggregate duration of Deferral Periods in any period exceeds the number of
days
permitted in respect of such period pursuant to Section
3(h)
hereof,
or
(vi) the
number of Deferral Periods in any period exceeds the number permitted in respect
of such period pursuant to Section
3(h)
hereof.
Each
event described in any of the foregoing clauses (i) through (vi) is individually
referred to herein as a “Registration
Default.”
For
purposes of this Agreement, each Registration Default set forth above shall
begin and end on the dates set forth in the table set forth below:
|
Type
of Registration Default by Clause
|
Beginning
Date
|
Ending
Date
|
|
(i)
|
Filing
Deadline
|
the
date a Shelf Registration Statement is filed
|
|
(ii)
|
Effectiveness
Deadline
|
the
date a Shelf Registration Statement becomes effective under the Securities
Act
|
|
(iii)
|
the
date by which the Company is required to perform its obligations
under
Section
2(d)(i)
|
the
date the Company performs its obligations set forth in Section
2(d)(i)
|
|
(iv)
|
the
Amendment Effectiveness Deadline
|
the
date the applicable post-effective amendment to a Shelf Registration
Statement or a new Shelf Registration Statement becomes effective
under
the Securities Act
|
|
(v)
|
the
date on which the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted by Section
3(h)
|
termination
of the Deferral Period that caused the limit on the aggregate duration
of
Deferral Periods to be exceeded
|
|
(vi)
|
the
date of commencement of a Deferral Period that causes the number
of
Deferral Periods to exceed the number permitted by Section
3(h)
|
termination
of the Deferral Period that caused the number of Deferral Periods
to
exceed the number permitted by Section
3(h)
|
For
purposes of this Agreement, Registration Defaults shall begin on the dates
set
forth in the table above and shall continue until the ending dates set forth
in
the table above.
Commencing
on (and including) any date that a Registration Default has begun and ending
on
(but excluding) the next date on which there are no Registration Defaults that
have occurred and are continuing (a “Registration
Default Period”),
the
Company shall be required to pay to Record Holders of Registrable Securities
that are Notes in respect of each day in the Registration Default Period
additional interest in respect of any Note, at a rate per annum equal to an
additional one-quarter of one percent (0.25%) of the aggregate principal amount
of such Note, to and including the 90th day following the date of such
Registration Default, and one-half of one percent (0.5%) thereof with respect
to
any Note from and after the 91st day following the date of such Registration
Default (the “Additional
Interest Amount”);
provided
that in
the case of a Registration Default Period that is in effect solely as a result
of a Registration Default of the type described in clause (iii) or (iv) of
the
preceding paragraph, such Additional Interest Amount, as applicable, shall
be
paid only to the Holders (as set forth in the succeeding paragraph) that have
delivered Notices and Questionnaires that caused the Company to incur the
obligations set forth in Section
2(d)
the
non-performance of which is the basis of such Registration Default.
Notwithstanding the foregoing, no Additional Interest Amount shall accrue as
to
any Registrable Security from and after the earlier of (x) the date such
security is no longer a Registrable Security and (y) expiration of the
Effectiveness Period. The rate of accrual of the Additional Interest Amount
with
respect to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Registration
Defaults.
The
Additional Interest Amount shall accrue from the first day of the applicable
Registration Default Period, and shall be payable on each Interest Payment
Date
during the Registration Default Period (and on the Interest Payment Date next
succeeding the end of the Registration Default Period if the Registration
Default Period does not end on a Interest Payment Date) to the Record Holders
of
the Registrable Securities that are Notes entitled thereto; provided
that any
Additional Interest Amount accrued with respect to any Note or portion thereof
redeemed by the Company on a redemption date, purchased by the Company on a
repurchase date prior to the Interest Payment Date, shall, in any such event,
be
paid instead to the Holder who submitted such Note or portion thereof for
redemption or purchase on the applicable redemption date or repurchase date,
as
the case may be, on such date (or promptly following the conversion date, in
the
case of conversion), unless the redemption date or the repurchase date, as
the
case may be, falls after May 1 or November 1 and on or prior to the
corresponding Interest Payment Date; and provided
further,
that,
in the case of a Registration Default of the type described in clause (iii)
or
(iv) of the first paragraph of this Section
2(e)
such
Additional Interest Amount shall be paid only to the Holders entitled thereto
by
check mailed to the address set forth in the Notice and Questionnaire delivered
by such Holder. If a holder has converted some or all of its Notes into
Underlying Common Stock, the holder will not be entitled to receive any
Additional Interest Amount with respect to such Underlying Common Stock or
the
principal amount of the Note that have been so converted. In addition, in no
event will any Additional Interest Amount be payable in connection with a
Registration Default relating to a failure to register the Underlying Common
Stock deliverable upon conversion of the Notes. For avoidance of doubt, if
the
Company fails to register both the Notes and the Underlying Common Stock
deliverable upon conversion of the Notes, then any Additional Interest Amount
will be payable in connection with the Registration Default relating to the
failure to register the Notes. The Trustee shall be entitled, on behalf of
registered holders of Notes or Underlying Common Stock, to seek any available
remedy for the enforcement of this Agreement, including, with respect to holders
of the Notes, for the payment of such Additional Interest Amount.
Notwithstanding the foregoing, the parties agree that the sole damages payable
for a violation of the terms of this Agreement with respect to which additional
interest are expressly provided shall be such additional interest. Nothing
shall
preclude any Holder from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.
All
of
the Company’s obligations set forth in this Section
2(e)
that are
outstanding with respect to any Registrable Security at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section
8(k)).
The
parties hereto agree that the additional interest provided for in this
Section
2(e)
constitute a reasonable estimate of the damages that may be incurred by Holders
of Notes by reason of the failure of a Shelf Registration Statement to be filed
or declared effective or available for effecting resales of Notes in accordance
with the provisions hereof.
Section
3 .
Registration Procedures. In
connection with the registration obligations of the Company under Section
2
hereof,
the Company shall:
(a) Before
filing any Shelf Registration Statement or Prospectus or any amendments or
supplements thereto with the SEC, furnish to the Initial Purchasers and the
Special Counsel of such offering, if any, copies of all such documents proposed
to be filed at least three Business Days prior to the filing of such Shelf
Registration Statement or amendment thereto or Prospectus or supplement
thereto.
(b) Subject
to Section
3(h)
prepare
and file with the SEC such amendments and post-effective amendments to each
Shelf Registration Statement as may be necessary to keep such Shelf Registration
Statement continuously effective during the Effectiveness Period; cause the
related Prospectus to be supplemented by any required prospectus supplement,
and
as so supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) under the Securities Act; and use its best efforts to comply
with
the provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Shelf Registration Statement
during the Effectiveness Period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Shelf Registration
Statement as so amended or such Prospectus as so supplemented.
(c) As
promptly as practicable give notice to the Notice Holders, the Initial
Purchasers and the Special Counsel, (i)
when any
Prospectus, prospectus supplement, Shelf Registration Statement or
post-effective amendment to a Shelf Registration Statement has been filed with
the SEC and, with respect to a Shelf Registration Statement or any
post-effective amendment, when the same has been declared effective,
(ii)
of any
request, following the effectiveness of the initial Shelf Registration Statement
under the Securities Act, by the SEC or any other federal or state governmental
authority for amendments or supplements to any Shelf Registration Statement
or
related Prospectus or for additional information, (iii)
of the
issuance by the SEC or any other federal or state governmental authority of
any
stop order suspending the effectiveness of any Shelf Registration Statement
or
the initiation or threatening of any proceedings for that purpose, (iv)
of the
receipt by the Company of any notification with respect to the suspension of
the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of
any
proceeding for such purpose, (v)
of the
occurrence of, but not the nature of or details concerning, a Material Event
and
(vi)
of the
determination by the Company that a post-effective amendment to a Shelf
Registration Statement will be filed with the SEC, which notice may, at the
discretion of the Company (or as required pursuant to Section
3(h))
state
that it constitutes a Deferral Notice, in which event the provisions of
Section
3(h)
shall
apply.
(d) Use
its
best efforts to obtain the withdrawal of any order suspending the effectiveness
of a Shelf Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction in which they have been qualified for
sale, in either case at the earliest possible moment, and provide immediate
notice to each Notice Holder and the Initial Purchasers of the withdrawal of
any
such order.
(e) As
promptly as practicable furnish to each Notice Holder, the Special Counsel
and
the Initial Purchaser, upon request and without charge, at least one conformed
copy of each Shelf Registration Statement and any amendment thereto, including
exhibits and all documents incorporated or deemed to be incorporated therein
by
reference.
(f) During
the Effectiveness Period, deliver to each Notice Holder, the Special Counsel,
if
any, and the Initial Purchaser, in connection with any sale of Registrable
Securities pursuant to a Shelf Registration Statement, without charge, as many
copies of the Prospectus relating to such Registrable Securities (including
each
preliminary prospectus) and any amendment or supplement thereto as such Notice
Holder may reasonably request; and the Company hereby consents (except during
such periods that a Deferral Notice is outstanding and has not been revoked)
to
the use of such Prospectus or each amendment or supplement thereto by each
Notice Holder in connection with any offering and sale of the Registrable
Securities covered by such Prospectus or any amendment or supplement thereto
in
the manner set forth therein.
(g) Prior
to
any public offering of the Registrable Securities pursuant to a Shelf
Registration Statement, use its best efforts to register or qualify or cooperate
with the Notice Holders and the Special Counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States
as
any Notice Holder reasonably requests in writing (which request may be included
in the Notice and Questionnaire); prior to any public offering of the
Registrable Securities pursuant to a Shelf Registration Statement, use its
commercially reasonable efforts to keep each such registration or qualification
(or exemption therefrom) effective during the Effectiveness Period in connection
with such Notice Holder’s offer and sale of Registrable Securities pursuant to
such registration or qualification (or exemption therefrom) and do any and
all
other acts or things reasonably necessary or advisable to enable the disposition
in such jurisdictions of such Registrable Securities in the manner set forth
in
the Shelf Registration Statement and the related Prospectus; provided
that the
Company will not be required to (i)
qualify
as a foreign corporation or as a dealer in securities in any jurisdiction where
it would not otherwise be required to qualify but for this Agreement or
(ii)
take any
action that would subject it to general service of process in suits or to
taxation in any such jurisdiction where it is not then so subject.
(h) Upon
(A)
the issuance by the SEC of a stop order suspending the effectiveness of a Shelf
Registration Statement or the initiation of proceedings with respect to a Shelf
Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B)
the
occurrence of any event or the existence of any fact (a “Material
Event”)
as a
result of which a Shelf Registration Statement shall contain any untrue
statement of a material fact or omit to state any material fact required to
be
stated therein or necessary to make the statements therein not misleading,
or
any Prospectus shall contain any untrue statement of a material fact or omit
to
state any material fact required to be stated therein or necessary to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (C) the occurrence or existence of any pending
corporate development that, in the reasonable discretion of the Company, makes
it appropriate to suspend the availability of a Shelf Registration Statement
and
the related Prospectus:
(i) in
the
case of clause (B) above, as promptly as practicable prepare and file, if
necessary pursuant to applicable law, a post-effective amendment to such Shelf
Registration Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document that
would
be incorporated by reference into such Shelf Registration Statement and
Prospectus so that such Shelf Registration Statement does not contain any untrue
statement of a material fact or omit to state any material fact required to
be
stated therein or necessary to make the statements therein not misleading,
and
such Prospectus does not contain any untrue statement of a material fact or
omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Shelf Registration Statement, use its best efforts
to cause it to be declared effective as promptly as is practicable,
and
(ii) give
notice to the Notice Holders, and the Special Counsel, if any, that the
availability of a Shelf Registration Statement is suspended (a “Deferral
Notice”).
The
Company will use its best efforts to ensure that the use of the Prospectus
may
be resumed (x) in the case of clause (A) above, as promptly as is practicable,
(y) in the case of clause (B) above, as soon as, in the sole judgment of the
Company, public disclosure of such Material Event would not be prejudicial
to or
contrary to the interests of the Company or, if necessary to avoid unreasonable
burden or expense, as soon as practicable thereafter and (z) in the case of
clause (C) above, as soon as in the reasonable discretion of the Company, such
suspension is no longer appropriate. The Company shall be entitled to exercise
its right under this Section
3(h)
to
suspend the availability of a Shelf Registration Statement or any Prospectus,
without incurring or accruing any obligation to pay additional interest or
liquidated damages pursuant to Section
2(e),
no more
than once in any three month period or three times in any twelve month period,
and any such period during which the availability of the Shelf Registration
Statement and any Prospectus is suspended (the “Deferral
Period”)
shall,
without incurring any obligation to pay additional interest or liquidated
damages pursuant to Section
2(e),
not
exceed 30 days; provided
that the
aggregate duration of any Deferral Periods shall not exceed 30 days in any
three
month period (or 60 days in any three month period in the event of a Material
Event pursuant to which the Company has delivered a second notice as required
below) or 90 days in any 12 month period; provided
that in
the case of a Material Event relating to an acquisition or a probable
acquisition or financing, recapitalization, business combination or other
similar transaction, the Company may, without incurring any obligation to pay
additional interest or liquidated damages pursuant to Section
2(e),
deliver
to Notice Holders a second notice to the effect set forth above, which shall
have the effect of extending the Deferral Period by up to an additional 30
days,
or such shorter period of time as is specified in such second
notice.
(i) If
requested in writing in connection with a disposition of Registrable Securities
pursuant to a Shelf Registration Statement, make reasonably available for
inspection during normal business hours by a representative for the Notice
Holders of such Registrable Securities, any broker-dealers, attorneys and
accountants retained by such Notice Holders, and any attorneys or other agents
retained by a broker-dealer engaged by such Notice Holders, all relevant
financial and other records and pertinent corporate documents and properties
of
the Company and its subsidiaries, and cause the appropriate officers, directors
and employees of the Company and its subsidiaries to make reasonably available
for inspection during normal business hours on reasonable notice all relevant
information reasonably requested by such representative for the Notice Holders,
or any such broker-dealers, attorneys or accountants in connection with such
disposition, in each case as is customary for similar “due diligence”
examinations; provided
that
such
persons shall first agree in writing with the Company that any non-public
information shall be used solely for the purposes of satisfying “due diligence”
obligations under the Securities Act and exercising rights under this Agreement
and shall be kept confidential by such persons, unless (i)
disclosure of such information is required by court or administrative order
or
is necessary to respond to inquiries of regulatory authorities, (ii)
in the
opinion of Special Counsel, disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities laws
in
connection with the filing of any Shelf Registration Statement or the use of
any
prospectus referred to in this Agreement), (iii)
such
information becomes generally available to the public other than as a result
of
a disclosure or failure to safeguard by any such person or (iv)
such
information becomes available to any such person from a source other than the
Company and such source is not bound by a confidentiality agreement, and
provided
further
that the
foregoing inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of all the Notice Holders and the other
parties entitled thereto by the Special Counsel. Any person legally compelled
to
disclose any such confidential information made available for inspection shall
provide the Company with prompt prior written notice of such requirement so
that
the Company may seek a protective order or other appropriate
remedy.
(j) Comply
with all applicable rules and regulations of the SEC in all material respects
and make generally available to its securityholders earning statements (which
need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) for a 12-month period commencing on the first day of the
first fiscal quarter of the Company commencing after the effective date of
a
Shelf Registration Statement, which statements shall be made available no later
than 45 days after the end of the 12-month period or 90 days if the 12-month
period coincides with the fiscal year of the Company.
(k) Use
its
best efforts to cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold or to be sold pursuant to a Shelf Registration Statement, which
certificates shall not bear any restrictive legends, and cause such Registrable
Securities to be in such denominations as are permitted by the Indenture and
registered in such names as such Notice Holder may request in writing at least
one Business Day prior to any sale of such Registrable Securities.
(l) Provide
a
CUSIP number for all Registrable Securities covered by each Shelf Registration
Statement not later than the effective date of such Shelf Registration Statement
and provide the Trustee and the transfer agent for the Common Stock with printed
certificates for the Registrable Securities that are in a form eligible for
deposit with The Depository Trust Company.
(m) Use
its
best efforts to cooperate and assist in any filings required to be made with
the
National Association of Securities Dealers, Inc.
(n) Upon
(i)
the
filing of the initial Shelf Registration Statement and (ii)
the
effectiveness of the initial Shelf Registration Statement, announce the same,
in
each case by release to Reuters Economic Services and Bloomberg Business
News.
Section
4 .
Holder’s Obligations. (a)
Each
Holder agrees, by acquisition of the Registrable Securities, that no Holder
shall be entitled to sell any of such Registrable Securities pursuant to a
Shelf
Registration Statement or to receive a Prospectus relating thereto, unless
such
Holder has furnished the Company with a Notice and Questionnaire as required
pursuant to Section
2(d)
hereof
(including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees promptly to furnish to the Company all information required to
be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Registrable Securities as the Company
may from time to time reasonably request. Any sale of any Registrable Securities
by any Holder shall constitute a representation and warranty by such Holder
that
the information relating to such Holder and its plan of distribution is as
set
forth in the Prospectus delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the time of such sale contain
any untrue statement of a material fact relating to or provided by such Holder
or its plan of distribution and that such Prospectus does not as of the time
of
such sale omit to state any material fact relating to or provided by such Holder
or its plan of distribution necessary to make the statements in such Prospectus,
in the light of the circumstances under which they were made, not
misleading.
(b) Upon
receipt of any Deferral Notice, each Notice Holder agrees not to sell any
Registrable Securities pursuant to any Shelf Registration Statement until such
Notice Holder’s receipt of copies of the supplemented or amended Prospectus
provided for in Section
3(h)(i),
or
until it is advised in writing by the Company that the Prospectus may be
used.
(c) In
the
event of a sale of Registrable Securities by the Holder under the Registration
Statement, if requested by the Company, the Holder shall deliver to the
Company’s transfer agent, with a copy to the Company, a Certificate of
Subsequent Sale substantially in the form attached here to as Exhibit
A.
Section
5 .
Registration Expenses. The
Company shall bear all fees and expenses incurred in connection with the
performance by the Company of its obligations under Sections 2
and
3
of this
Agreement whether or not any Shelf Registration Statement is declared effective.
Such fees and expenses shall include, without limitation, (i) all registration
and filing fees (including, without limitation, fees and expenses (x) with
respect to filings required to be made with the National Association of
Securities Dealers, Inc. and (y) of compliance with federal and state securities
or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of the Special Counsel in connection with Blue Sky qualifications
of the Registrable Securities under the laws of such jurisdictions as Notice
Holders of a majority of the Registrable Securities being sold pursuant to
a
Shelf Registration Statement may designate), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
in a form eligible for deposit with The Depository Trust Company), (iii)
duplication expenses relating to copies of any Shelf Registration Statement
or
Prospectus delivered to any Holders hereunder, (iv) the fees and disbursements
of counsel for the Company in connection with any Shelf Registration Statement,
(v) reasonable fees and disbursements of the Trustee and its counsel and of
the
registrar and transfer agent for the Common Stock, (vi) Securities Act liability
insurance obtained by the Company in its sole discretion and (vii) the
reasonable fees and disbursements of Special Counsel. In addition, the Company
shall pay the internal expenses of the Company (including, without limitation,
all salaries and expenses of officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing by the Company of the Registrable
Securities on any securities exchange on which similar securities of the Company
are then listed and the fees and expenses of any person, including special
experts, retained by the Company. Notwithstanding the provisions of this
Section
5,
each
seller of Registrable Securities shall pay any broker’s commission, agency fee
or underwriter’s discount or commission in connection with the sale of the
Registrable Securities under a Shelf Registration Statement.
Section
6 .
Indemnification and Contribution.
(a) The
Company agrees to indemnify and hold harmless each Notice Holder, each person,
if any, who controls any Notice Holder within the meaning of either Section
15
of the Securities Act or Section 20 of the Exchange Act, and each affiliate
of
any Notice Holder within the meaning of Rule 405 under the Securities Act
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused
by
any untrue statement or alleged untrue statement of a material fact contained
in
any Shelf Registration Statement or any amendment thereof, any preliminary
prospectus or any Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), caused by any omission
or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar
as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Holder furnished to the Company by such Holder
expressly for use therein.
(b) Each
Holder agrees severally and not jointly to indemnify and hold harmless the
Company and its directors, its officers who sign any Shelf Registration
Statement and each person, if any, who controls the Company (within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act)
or
any other Holder, to the same extent as the foregoing indemnity from the Company
to such Holder, but only with reference to information relating to such Holder
furnished to the Company by such Holder expressly for use in such Shelf
Registration Statement or Prospectus or amendment or supplement thereto. In
no
event shall the liability of any Holder hereunder be greater in amount than
the
dollar amount of the proceeds received by such Holder upon the sale of the
Registrable Securities pursuant to the Shelf Registration Statement giving
rise
to such indemnification obligation.
(c) In
case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
Section
6(a)
or
6(b)
hereof,
such person (the “indemnified
party”)
shall
promptly notify the person against whom such indemnity may be sought (the
“indemnifying
party”)
in
writing and the indemnifying party, upon request of the indemnified party,
shall
retain counsel reasonably satisfactory to the indemnified party to represent
the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i)
the
indemnifying party and the indemnified party shall have mutually agreed to
the
retention of such counsel or (ii)
the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by, in the case of parties indemnified pursuant to
Section
6(a),
the
Holders of a majority (with Holders of Notes deemed to be the Holders, for
purposes of determining such majority, of the number of shares of Underlying
Common Stock into which such Notes are or would be convertible as of the date
on
which such designation is made) of the Registrable Securities covered by the
Shelf Registration Statement held by Holders that are indemnified parties
pursuant to Section
6(a)
and, in
the case of parties indemnified pursuant to Section
6(b),
the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested
an
indemnifying party to reimburse the indemnified party for fees and expenses
of
counsel as contemplated by the second and third sentences of this paragraph,
the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such
settlement. No indemnifying party shall, without the prior written consent
of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To
the
extent that the indemnification provided for in Section
6(a)
or
6(b)
is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying
party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as
a
result of such losses, claims, damages or liabilities (i)
in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand or (ii)
if the
allocation provided by clause (i) above is not permitted by applicable law,
in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on
the
other hand in connection with the statements or omissions that resulted in
such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company shall be deemed
to
be equal to the total net proceeds from the initial placement pursuant to the
Purchase Agreement (before deducting expenses) of the Registrable Securities
to
which such losses, claims, damages or liabilities relate. The relative benefits
received by any Holder shall be deemed to be equal to the value of receiving
registration rights under this Agreement for the Registrable Securities. The
relative fault of the Holders on the one hand and the Company on the other
hand
shall be determined by reference to, among other things, whether the untrue
or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Holders or
by
the Company, and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Holders’
respective obligations to contribute pursuant to this Section
6(d)
are
several in proportion to the respective number of Registrable Securities they
have sold pursuant to a Shelf Registration Statement, and not
joint.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section
6(d)
were
determined by pro
rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party
in connection with investigating or defending any such action or claim.
Notwithstanding this Section
6(d),
no
indemnifying party that is a selling Holder shall be required to contribute
any
amount in excess of the amount by which the total price at which the Registrable
Securities sold by it and distributed to the public were offered to the public
exceeds the amount of any damages that such indemnifying party has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The
remedies provided for in this Section
6
are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity, hereunder, under the
Purchase Agreement or otherwise.
(f) The
indemnity and contribution provisions contained in this Section
6
shall
remain operative and in full force and effect regardless of (i)
any
termination of this Agreement, (ii)
any
investigation made by or on behalf of any Holder, any person controlling any
Holder or any affiliate of any Holder or by or on behalf of the Company, its
officers or directors or any person controlling the Company and (iii)
the sale
of any Registrable Securities by any Holder.
Section
7 .
Information Requirements. The
Company covenants that, if at any time before the end of the Effectiveness
Period, the Company is not subject to the reporting requirements of the Exchange
Act, it will cooperate with any Holder and take such further reasonable action
as any Holder may reasonably request in writing (including, without limitation,
making such reasonable representations as any such Holder may reasonably
request), all to the extent required from time to time to enable such Holder
to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144 and Rule 144A under the
Securities Act and customarily taken in connection with sales pursuant to such
exemptions. Upon the written request of any Holder, the Company shall deliver
to
such Holder a written statement as to whether it has complied with such filing
requirements, unless such a statement has been included in the Company’s most
recent report filed pursuant to Section 13 or Section 15(d) of Exchange Act.
Notwithstanding the foregoing, nothing in this Section
7
shall be
deemed to require the Company to register any of its securities (other than
the
Common Stock) under the Exchange Act.
Section
8 .
Miscellaneous.
(a) No
Conflicting Agreements. The
Company is not, as of the date hereof, a party to, nor shall it, on or after
the
date of this Agreement, enter into, any agreement with respect to its securities
that conflicts with the rights granted to the Holders in this Agreement. The
Company represents and warrants that the rights granted to the Holders hereunder
do not in any way conflict with the rights granted to the holders of the
Company’s securities under any other agreements.
(b) Amendments
and Waivers. The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the Company has obtained the
written consent of Holders of a majority of the then outstanding Underlying
Common Stock constituting Registrable Securities (with Holders of Notes deemed
to be the Holders, for purposes of this Section, of the number of outstanding
shares of Underlying Common Stock into which such Notes are or would be
convertible as of the date on which such consent is requested). Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
securities are being sold pursuant to a Shelf Registration Statement and that
does not directly or indirectly affect the rights of other Holders may be given
by Holders of at least a majority of the Registrable Securities being sold
by
such Holders pursuant to such Shelf Registration Statement; provided
that the
provisions of this sentence may not be amended, modified or supplemented except
in accordance with the provisions of the immediately preceding sentence.
Notwithstanding the foregoing sentence, this Agreement may be amended by written
agreement signed by the Company and the Initial Purchaser, without the consent
of the Holders of Registrable Securities, to cure any ambiguity or to correct
or
supplement any provision contained herein that may be defective or inconsistent
with any other provision contained herein, or to make such other provisions
in
regard to matters or questions arising under this Agreement that shall not
adversely affect the interests of the Holders of Registrable Securities. Each
Holder of Registrable Securities outstanding at the time of any such amendment,
modification, supplement, waiver or consent or thereafter shall be bound by
any
such amendment, modification, supplement, waiver or consent effected pursuant
to
this Section
8(b)
whether
or not any notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(c) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand delivery, by telecopier, by courier or by first-class
mail, return receipt requested, and shall be deemed given (i) when made, if
made
by hand delivery, (ii) upon confirmation, if made by telecopier, (iii) one
Business Day after being deposited with such courier, if made by overnight
courier or (iv) on the date indicated on the notice of receipt, if made by
first-class mail, to the parties as follows:
(i) if
to a
Holder, at the most current address given by such Holder to the Company in
a
Notice and Questionnaire or any amendment thereto;
(ii) if
to the
Company, to:
JDS
Uniphase Corporation
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if
to the
Initial Purchaser, to:
▇.▇.
▇▇▇▇▇▇ Securities Inc.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Syndicate Desk
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
and:
▇▇▇▇▇▇▇
▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4
World
Financial Center
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Office of the General Counsel
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
or
to
such other address as such person may have furnished to the other persons
identified in this Section
8(c)
in
writing in accordance herewith.
(d) Approval
of Holders.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by
the
Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) (other than the Initial Purchasers or subsequent Holders if
such
subsequent Holders are deemed to be such affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(e) Successors
and Assigns. Any
person who purchases any Registrable Securities from an Initial Purchaser shall
be deemed, for purposes of this Agreement, to be an assignee of such Initial
Purchaser. This Agreement shall inure to the benefit of and be binding upon
the
successors and assigns of each of the parties and shall inure to the benefit
of
and be binding upon each Holder of any Registrable Securities, provided
that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the
Indenture. If any transferee of any Holder shall acquire Registrable Securities,
in any manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this Agreement, and
by
taking and holding such Registrable Securities, such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such person shall be entitled to
receive the benefits hereof.
(f) Counterparts.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be original and all of which taken together shall constitute one and the
same
agreement.
(g) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(h) Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK.
(i) Severability.
If any
term, provision, covenant or restriction of this Agreement is held to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated thereby, and
the
parties hereto shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction, it being intended that all
of
the rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
(j) Entire
Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and the registration rights granted by the Company with respect to the
Registrable Securities. Except as provided in the Purchase Agreement, there
are
no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein, with respect to the registration rights granted
by
the Company with respect to the Registrable Securities. This Agreement
supersedes all prior agreements and undertakings among the parties with respect
to such registration rights. No party hereto shall have any rights, duties
or
obligations other than those specifically set forth in this Agreement. In no
event will such methods of distribution take the form of an underwritten
offering of the Registrable Securities without the prior agreement of the
Company.
(k) Termination.
This
Agreement and the obligations of the parties hereunder shall terminate upon
the
end of the Effectiveness Period, except for any liabilities or obligations
under
Section
4,
5
or
6
hereof
and the obligations to make payments of and provide for additional interest
or
liquidated damages under Section
2(e)
hereof
to the extent such damages accrue prior to the end of the Effectiveness Period,
each of which shall remain in effect in accordance with its terms.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
|
JDS
UNIPHASE CORPORATION
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Confirmed
and accepted as of
the
date
first above written:
|
▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
A
CERTIFICATE
OF SUBSEQUENT SALE
[Transfer
Agent]
[Address]
Attention:
[_______]
JDS
Uniphase Corporation
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
Re:
|
Sale
of Registrable Securities of JDS Uniphase Corporation (the “Company”)
pursuant to the Company’s Prospectus, dated , 2006 (the
“Prospectus”)
|
Ladies
and Gentlemen:
The
undersigned hereby certifies, in connection with the transfer of Registrable
Securities of the Company included in the table of Selling Securityholders
in
the Prospectus, that the undersigned has sold the number of the Company’s
Registrable Securities indicated below pursuant to the Prospectus and in a
manner described under the caption “Plan of Distribution” in the Prospectus, and
that such sale complies with all applicable securities laws, including, without
limitation, the Prospectus delivery requirements of the Securities Act of 1933,
as amended.
Selling
Securityholder (the beneficial owner):_____________________________
Record
Holder (e.g., if held in name of
nominee):__________________________
Number
of
Securities Sold:____________________________________________
Date
of
Sale:_______________________________________________________
Very
truly yours,
Dated:________________
_______________________________________________________
Print
Full Legal Name of Selling Stockholder or Nominee
By:_____________________________________________________
Name:__________________________________________________
Title:___________________________________________________