EXHIBIT 4.9
REGISTRATION RIGHTS AGREEMENT
DATED AS OF OCTOBER 27, 2003
BETWEEN
JDS UNIPHASE CORPORATION
AND
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED,
▇▇▇▇▇▇▇, SACHS & CO.,
AND
CIBC WORLD MARKETS CORP.,
AS INITIAL PURCHASERS
REGISTRATION RIGHTS AGREEMENT, dated as of October 27, 2003 (this
"AGREEMENT"), between JDS Uniphase Corporation, a Delaware corporation (the
"COMPANY"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇▇, Sachs & Co. and CIBC
World Markets Corp., as initial purchasers (the "INITIAL PURCHASERS") to the
Purchase Agreement, dated October 27, 2003 (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 (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 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 October 31, 2003 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 November 15 and May 15.
"ISSUE DATE" means the first date of original issuance of the Notes.
"LIQUIDATED DAMAGES AMOUNT" has the meaning set forth in Section 2(e)
hereof.
"MATERIAL EVENT" has the meaning set forth in Section 3(h) hereof.
"NOTES" means the Zero Coupon Senior Convertible Notes Due 2010 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.
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"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 October 27, 2003, 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 or Underlying Common Stock as to which any Additional
Interest Amount or Liquidated Damages Amount has accrued, the registered holder
of such Note or Underlying Common Stock on the November 1 or May 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.
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"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") 90 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
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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 180 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
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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.
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(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
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Type of Registration
Default by Clause Beginning Date Ending Date
------------------------ ------------------------------------------ -------------------------------------------
(iii) the date by which the Company is required the date the Company performs its
to perform its obligations under Section obligations set forth in Section 2(d)(i)
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 termination of the Deferral Period that
of Deferral Periods in any period exceeds caused the limit on the aggregate duration
the number of days permitted by Section of Deferral Periods to be exceeded
3(h)
(vi) the date of commencement of a Deferral termination of the Deferral Period that
Period that causes the number of Deferral caused the number of Deferral Periods to
Periods to exceed the number permitted by exceed the number permitted by Section 3(h)
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 in respect of each day in the Registration Default Period
additional interest (i) 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
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of such Note and (ii) in respect of each share of outstanding Underlying Common
Stock that is a Registrable Security at a rate per annum equal to an additional
one-quarter of one percent (0.25%) on the Conversion Price on such date, 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 each of (i) and (ii) of
this sentence 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. In calculating the Additional Interest Amount on
shares of Underlying Common Stock on any date on which no Notes are outstanding,
the Conversion Price used shall be based on the Conversion Price that would be
in effect if the Notes were still outstanding. 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 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 or converted into Underlying Common Stock on a conversion 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, purchase
or conversion on the applicable redemption date, repurchase date or conversion
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 November 1 or May 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
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by check mailed to the address set forth in the Notice and Questionnaire
delivered by such Holder. 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 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 Registrable Securities by reason of the failure of a
Shelf Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Securities 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
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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
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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:
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(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
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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.
14
(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
15
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) up to $3,000 in 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
16
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; provided that the foregoing
indemnity shall not inure to the benefit of any Holder (or to the benefit of any
person controlling such Holder) from whom the person asserting such losses,
claims or liabilities purchased the Registrable Securities, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Holder to such person, if required by law so to have been delivered at or
prior to the written confirmation of the sale of the Registrable Securities to
such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such losses, claims, damages or liabilities,
unless such failure is the result of noncompliance by the Company with Section
2(c) hereof.
17
(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
18
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
19
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
20
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
21
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. (▇▇▇) ▇▇▇-▇▇▇▇
22
(iii) if to the Initial Purchaser, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Convertible Securities Desk
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
23
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.
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
JDS UNIPHASE CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇, SACHS & CO.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇
Title: Managing Director
CIBC WORLD MARKETS CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
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
October 27, 2003 (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):
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Record Holder (e.g., if held in name of nominee):
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Number of Securities Sold:
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Date of Sale:
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Very truly yours,
Dated:
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Print Full Legal Name of Selling Stockholder or Nominee
By:
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Name:
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Title:
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