Common use of Finisar Capital Structure Clause in Contracts

Finisar Capital Structure. (a) The authorized capital stock of Finisar consists of 750,000,000 shares of Finisar Common Stock and 5,000,000 shares of Finisar Preferred Stock, $0.001 par value ("Finisar Preferred Stock"). As of the close of business on May 13, 2008, (i) 308,838,619 shares of Finisar Common Stock were issued and outstanding, all of which were duly authorized, validly issued, fully paid and nonassessable; (ii) no shares of Finisar Preferred Stock were issued or outstanding; (iii) 16,671,377 shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 51/4% Convertible Subordinated Notes due 2008; (iv) 13,495,277 shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 21/2% Convertible Subordinated Notes due 2010; (v) no shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 21/2% Convertible Senior Subordinated Notes due 2010; (vi) 6,800,000 shares of Finisar Common Stock were reserved for issuance pursuant to an amended and restated convertible promissory note dated March 21, 2008 issued in connection with Finisar's acquisition of AZNA LLC (the notes described in clauses (iii), (iv) and (v) and this clause (vi) being referred to herein, collectively, as the "Finisar Convertible Notes"); (vii) 53,138,389 shares of Finisar Common Stock were reserved for issuance upon the exercise of outstanding options to purchase Finisar Common Stock ("Finisar Options") and the exercise, settlement or conversion of outstanding RSUs ("Finisar RSU Awards") granted under Finisar's stock option plans (the "Finisar Option Plans"); (viii) 37,042,324 shares of Finisar Common Stock were reserved for future issuance under the Finisar Option Plans; and (ix) 11,060,097 shares of Finisar Common Stock were reserved for future issuance pursuant to Finisar's employee stock purchase plan (including its sub-plan, the "Finisar Purchase Plan"). All shares of Finisar Common Stock subject to issuance as specified above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. There are no obligations, contingent or otherwise, of Finisar or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Finisar Common Stock or the capital stock of any Finisar Subsidiary or make any investment (in the form of a loan, capital contribution or otherwise) in any such Subsidiary or any other entity other than guarantees of bank obligations of such Subsidiaries entered into in the ordinary course of business. (b) All of the outstanding shares of capital stock of each of Finisar's Subsidiaries are duly authorized, validly issued, fully paid and nonassessable, and all such shares (other than directors' qualifying shares in the case of foreign Subsidiaries) are owned by Finisar and/or one or more Finisar Subsidiaries free and clear of all security interests, Liens, claims, pledges, agreements, limitations on Finisar's voting rights, charges or other encumbrances of any nature. (c) Except as set forth in this Section 4.2, there are (i) no equity securities of any class of Finisar or any of its Subsidiaries, or any securities exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding, and (ii) no outstanding options, warrants, RSUs, equity securities, calls, rights, commitments or agreements of any character to which Finisar or any of its Subsidiaries is a party or by which any of them are bound obligating Finisar or any of its Subsidiaries to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any equity securities of Finisar or any of its Subsidiaries or obligating Finisar or any of its Subsidiaries to grant, extend, accelerate the vesting of or otherwise amend or enter into any such option, warrant, equity security, call, right, commitment or agreement. There are no voting trusts, proxies or other agreements or understandings with respect to the shares of capital stock of Finisar (A) between or among Finisar and any of its stockholders or (B) to Finisar's knowledge, among any of Finisar's stockholders, except for the Finisar Voting Agreements. (d) All outstanding shares of Finisar Common Stock, all Finisar Options and Finisar RSU Awards outstanding under the Finisar Option Plans and all of the Finisar Convertible Notes have been issued and granted in compliance with (i) all applicable securities Laws and (ii) all requirements set forth in any plans, contracts or agreements providing for the issuance or grant of such securities.

Finisar Capital Structure. (a) The authorized capital stock of Finisar consists of 750,000,000 500,000,000 shares of Finisar Common Stock and 5,000,000 shares of Finisar Preferred Stock, $0.001 par value value, 500,000 of which are designated Series RP Preferred Stock ("“Finisar Preferred Stock"”). The shares of Series RP Preferred Stock are issuable upon exercise of rights attached to shares of Finisar Common Stock pursuant to the Rights Agreement dated as of September 25, 2002 between Finisar and American Stock Transfer & Trust Company. As of the close of business on May 13April 1, 20082005, (i) 308,838,619 258,885,997 shares of Finisar Common Stock were issued and outstanding, all of which had been duly authorized and validly issued and were duly authorized, validly issued, fully paid and nonassessable; (ii) , and no shares of Finisar Preferred Stock were issued or and outstanding; (iii) 16,671,377 As of April 1, 2005, 61,614,736 shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 51/4% Convertible Subordinated Notes due 2008; (iv) 13,495,277 shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 21/2% Convertible Subordinated Notes due 2010; (v) no shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 21/2% Convertible Senior Subordinated Notes due 2010; (vi) 6,800,000 shares of Finisar Common Stock stock were reserved for issuance pursuant to an amended Finisar’s stock option plans and restated convertible promissory note dated March 21employee stock purchase plan, 2008 issued in connection with Finisar's acquisition of AZNA LLC (the notes described in clauses (iii), (iv) and (v) and this clause (vi) being referred to herein, collectively, as the "Finisar Convertible Notes"); (vii) 53,138,389 58,647,060 shares of Finisar Common Stock were reserved for issuance upon the exercise of outstanding options to purchase Finisar Common Stock ("Finisar Options") and the exercise, settlement or conversion of outstanding RSUs ("Finisar RSU Awards") granted under Finisar's stock option plans (the "Finisar Option Plans"); (viii) 37,042,324 ’s 5 1/4% convertible subordinated notes due 2008 and 2 1/2% convertible subordinated notes due 2010 and 964,117 shares of Finisar Common Stock were reserved for future issuance under upon exercise of outstanding warrants. No material change in such capitalization has occurred between April 1, 2005 and the Finisar Option Plans; and (ix) 11,060,097 shares date of Finisar Common Stock were reserved for future issuance pursuant to Finisar's employee stock purchase plan (including its sub-plan, the "Finisar Purchase Plan")this Agreement. All shares of Finisar Common Stock subject to issuance as specified above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. There are no obligations, contingent or otherwise, of Finisar or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Finisar Common Stock or the capital stock of any Finisar Subsidiary or make any investment (in the form of a loan, capital contribution or otherwise) in any such Subsidiary or any other entity other than guarantees of bank obligations of such Subsidiaries entered into in the ordinary course of business. (b) All of the outstanding shares of capital stock of each of Finisar's Subsidiaries Sub have been duly authorized and validly issued and are duly authorized, validly issued, fully paid and nonassessable, and all such shares (other than directors' qualifying shares in the case of foreign Subsidiaries) are owned by Finisar and/or one or more Finisar Subsidiaries Finisar, free and clear of all security interests, Liens, claims, pledges, agreements, limitations on Finisar's voting rights, charges or other encumbrances of any nature. (cb) Except as set forth in this Section 4.24.2 or as reserved for future grants of options under Finisar’s stock option plans or Finisar’s employee stock purchase plan, there are (i) no equity securities of any class of Finisar or any of its SubsidiariesFinisar, or any securities security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding, outstanding and (ii) no outstanding subscriptions, options, warrants, RSUs, equity securitiesputs, calls, rights, rights or other commitments or agreements of any character to which Finisar or any of its Subsidiaries is a party or by which any of them are it is bound obligating Finisar or any of its Subsidiaries to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any equity securities of Finisar or any of its Subsidiaries or obligating Finisar or any of its Subsidiaries to grant, extend, accelerate the vesting of or otherwise amend or enter into any such option, warrant, equity security, call, right, commitment or agreement. There are no voting trusts, proxies or other agreements or understandings with respect to the shares of capital stock of Finisar (A) between or among Finisar and any of its stockholders or (B) to Finisar's knowledge, among any of Finisar's stockholders, except for the Finisar Voting Agreements. (dc) All outstanding The shares of Finisar Common StockStock to be issued pursuant to the Merger, all Finisar Options when issued in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and Finisar RSU Awards outstanding under the Finisar Option Plans and all of the Finisar Convertible Notes have been issued and granted in compliance with (i) all applicable securities Laws and (ii) all requirements set forth in any plans, contracts or agreements providing for the issuance or grant of such securitiesnonassessable.

Finisar Capital Structure. (a) The authorized capital stock of Finisar consists of 750,000,000 200,000,000 shares of Finisar Common Stock and 5,000,000 shares of Finisar Preferred Stock, $0.001 par value ("Finisar Preferred Stock"). As of the close of business on May 13September 30, 20082000, (i) 308,838,619 160,165,469 shares of Finisar Common Stock were issued and outstanding, all of which had been duly authorized and validly issued and were duly authorized, validly issued, fully paid and nonassessable; (ii) . As of September 30, 2000, 8,480,471 shares of Finisar Common stock were reserved for issuance pursuant to stock options granted and outstanding under Finisar's stock option plans and rights outstanding under Finisar's employee stock purchase plan. No material change in such capitalization has occurred between September 30, 2000 and the date of this Agreement. As of the date hereof, no shares of Finisar Preferred Stock were are issued or outstanding; (iii) 16,671,377 shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 51/4% Convertible Subordinated Notes due 2008; (iv) 13,495,277 shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 21/2% Convertible Subordinated Notes due 2010; (v) no shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 21/2% Convertible Senior Subordinated Notes due 2010; (vi) 6,800,000 shares of Finisar Common Stock were reserved for issuance pursuant to an amended and restated convertible promissory note dated March 21, 2008 issued in connection with Finisar's acquisition of AZNA LLC (the notes described in clauses (iii), (iv) and (v) and this clause (vi) being referred to herein, collectively, as the "Finisar Convertible Notes"); (vii) 53,138,389 shares of Finisar Common Stock were reserved for issuance upon the exercise of outstanding options to purchase Finisar Common Stock ("Finisar Options") and the exercise, settlement or conversion of outstanding RSUs ("Finisar RSU Awards") granted under Finisar's stock option plans (the "Finisar Option Plans"); (viii) 37,042,324 shares of Finisar Common Stock were reserved for future issuance under the Finisar Option Plans; and (ix) 11,060,097 shares of Finisar Common Stock were reserved for future issuance pursuant to Finisar's employee stock purchase plan (including its sub-plan, the "Finisar Purchase Plan"). All shares of Finisar Common Stock subject to issuance as specified above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. There are no obligations, contingent or otherwise, of Finisar or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Finisar Common Stock or the capital stock of any Finisar Subsidiary or make any investment (in the form of a loan, capital contribution or otherwise) in any such Subsidiary or any other entity other than guarantees of bank obligations of such Subsidiaries entered into in the ordinary course of business. (b) All of the outstanding shares of capital stock of each of Finisar's Subsidiaries are duly authorized, validly issued, fully paid and nonassessable, and all such shares (other than directors' qualifying shares in the case of foreign Subsidiaries) are owned by Finisar and/or one or more Finisar Subsidiaries free and clear of all security interests, Liens, claims, pledges, agreements, limitations on Finisar's voting rights, charges or other encumbrances of any nature. (c) Except as set forth in this Section 4.24.2 or as reserved for future grants of options under Finisar's stock option plans or Finisar's employee stock purchase plan, there are (i) no equity securities of any class of Finisar or any of its SubsidiariesFinisar, or any securities security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding, outstanding and (ii) no outstanding subscriptions, options, warrants, RSUs, equity securitiesputs, calls, rights, rights or other commitments or agreements of any character to which Finisar or any of its Subsidiaries is a party or by which any of them are it is bound obligating Finisar or any of its Subsidiaries to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any equity securities of Finisar or any of its Subsidiaries or obligating Finisar or any of its Subsidiaries to grant, extend, accelerate the vesting of or otherwise amend or enter into any such option, warrant, equity security, call, right, commitment or agreement. There are no voting trusts, proxies or other agreements or understandings with respect to the shares of capital stock of Finisar (A) between or among Finisar and any of its stockholders or (B) to Finisar's knowledge, among any of Finisar's stockholders, except for the Finisar Voting Agreements. (dc) All outstanding The shares of Finisar Preferred Stock to be issued pursuant to the Merger, when issued in accordance with the terms of this Agreement, and the shares of Finisar Common Stock, all Finisar Options and Finisar RSU Awards outstanding under when issued in accordance with the Finisar Option Plans and all terms of the Finisar Convertible Notes have been issued Certificate of Designation, will be duly authorized, validly issued, fully paid and granted in compliance with (i) all applicable securities Laws and (ii) all requirements set forth in any plans, contracts or agreements providing for the issuance or grant of such securitiesnonassessable.

Finisar Capital Structure. (a) The authorized capital stock of Finisar consists of 750,000,000 200,000,000 shares of Finisar Common Stock and 5,000,000 shares of Finisar Preferred Stock, $0.001 par value ("Finisar Preferred Stock"). As of the close of business on May 13July 31, 20082000, (i) 308,838,619 159,874,284 shares of Finisar Common Stock were issued and outstanding, all of which had been duly authorized and validly issued and were duly authorized, validly issued, fully paid and nonassessable; (ii) . As of July 31, 2000, 11,056,500 shares of Finisar Common stock were reserved for issuance pursuant to stock options granted and outstanding under Finisar's stock option plans and rights outstanding under Finisar's employee stock purchase plan. No material change in such capitalization has occurred between July 31, 2000 and the date of this Agreement. As of the date hereof, no shares of Finisar Preferred Stock were are issued or outstanding; (iii) 16,671,377 shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 51/4% Convertible Subordinated Notes due 2008; (iv) 13,495,277 shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 21/2% Convertible Subordinated Notes due 2010; (v) no shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 21/2% Convertible Senior Subordinated Notes due 2010; (vi) 6,800,000 shares of Finisar Common Stock were reserved for issuance pursuant to an amended and restated convertible promissory note dated March 21, 2008 issued in connection with Finisar's acquisition of AZNA LLC (the notes described in clauses (iii), (iv) and (v) and this clause (vi) being referred to herein, collectively, as the "Finisar Convertible Notes"); (vii) 53,138,389 shares of Finisar Common Stock were reserved for issuance upon the exercise of outstanding options to purchase Finisar Common Stock ("Finisar Options") and the exercise, settlement or conversion of outstanding RSUs ("Finisar RSU Awards") granted under Finisar's stock option plans (the "Finisar Option Plans"); (viii) 37,042,324 shares of Finisar Common Stock were reserved for future issuance under the Finisar Option Plans; and (ix) 11,060,097 shares of Finisar Common Stock were reserved for future issuance pursuant to Finisar's employee stock purchase plan (including its sub-plan, the "Finisar Purchase Plan"). All shares of Finisar Common Stock subject to issuance as specified above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. There are no obligations, contingent or otherwise, of Finisar or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Finisar Common Stock or the capital stock of any Finisar Subsidiary or make any investment (in the form of a loan, capital contribution or otherwise) in any such Subsidiary or any other entity other than guarantees of bank obligations of such Subsidiaries entered into in the ordinary course of business. (b) All of the outstanding shares of capital stock of each of Finisar's Subsidiaries Sub have been duly authorized and validly issued and are duly authorized, validly issued, fully paid and nonassessable, and all such shares (other than directors' qualifying shares in the case of foreign Subsidiaries) are owned by Finisar and/or one or more Finisar Subsidiaries Finisar, free and clear of all security interests, Liens, claims, pledges, agreements, limitations on Finisar's voting rights, charges or other encumbrances of any nature. (cb) Except as set forth in this Section 4.24.2 or as reserved for future grants of options under Finisar's stock option plans or Finisar's employee stock purchase plan, there are (i) no equity securities of any class of Finisar or any of its SubsidiariesFinisar, or any securities security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding, outstanding and (ii) no outstanding subscriptions, options, warrants, RSUs, equity securitiesputs, calls, rights, rights or other commitments or agreements of any character to which Finisar or any of its Subsidiaries is a party or by which any of them are it is bound obligating Finisar or any of its Subsidiaries to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any equity securities of Finisar or any of its Subsidiaries or obligating Finisar or any of its Subsidiaries to grant, extend, accelerate the vesting of or otherwise amend or enter into any such option, warrant, equity security, call, right, commitment or agreement. There are no voting trusts, proxies or other agreements or understandings with respect to the shares of capital stock of Finisar (A) between or among Finisar and any of its stockholders or (B) to Finisar's knowledge, among any of Finisar's stockholders, except for the Finisar Voting Agreements. (dc) All outstanding The shares of Finisar Common StockStock to be issued pursuant to the Merger, all Finisar Options when issued in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and Finisar RSU Awards outstanding under the Finisar Option Plans and all of the Finisar Convertible Notes have been issued and granted in compliance with (i) all applicable securities Laws and (ii) all requirements set forth in any plans, contracts or agreements providing for the issuance or grant of such securitiesnonassessable.

Finisar Capital Structure. (a) The authorized capital stock of Finisar consists of 750,000,000 500,000,000 shares of Finisar Common Stock and 5,000,000 shares of Finisar Preferred Stock, $0.001 par value value, 500,000 of which are designated Series RP Preferred Stock ("“Finisar Preferred Stock"”). The shares of Series RP Preferred Stock are issuable upon exercise of rights attached to shares of Finisar Common Stock pursuant to the Rights Agreement dated as of September 25, 2002 between Finisar and American Stock Transfer & Trust Company. As of the close of business on May 13January 31, 20082005, (i) 308,838,619 258,744,483 shares of Finisar Common Stock were issued and outstanding, all of which had been duly authorized and validly issued and were duly authorized, validly issued, fully paid and nonassessable; (ii) , and no shares of Finisar Preferred Stock were issued or and outstanding; (iii) 16,671,377 . As of January 31, 2005, 61,285,830 shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 51/4% Convertible Subordinated Notes due 2008; (iv) 13,495,277 shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 21/2% Convertible Subordinated Notes due 2010; (v) no shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 21/2% Convertible Senior Subordinated Notes due 2010; (vi) 6,800,000 shares of Finisar Common Stock stock were reserved for issuance pursuant to an amended Finisar’s stock option plans and restated convertible promissory note dated March 21employee stock purchase plan, 2008 issued in connection with Finisar's acquisition of AZNA LLC (the notes described in clauses (iii), (iv) and (v) and this clause (vi) being referred to herein, collectively, as the "Finisar Convertible Notes"); (vii) 53,138,389 58,647,060 shares of Finisar Common Stock were reserved for issuance upon the exercise of outstanding options to purchase Finisar Common Stock ("Finisar Options") and the exercise, settlement or conversion of outstanding RSUs ("Finisar RSU Awards") granted under Finisar's stock option plans (the "Finisar Option Plans"); (viii) 37,042,324 ’s 51/4% convertible subordinated notes due 2008 and 21/2% convertible subordinated notes due 2010 and 964,117 shares of Finisar Common Stock were reserved for future issuance under upon exercise of outstanding warrants. No material change in such capitalization has occurred between January 31, 2005 and the Finisar Option Plans; and (ix) 11,060,097 shares date of Finisar Common Stock were reserved for future issuance pursuant to Finisar's employee stock purchase plan (including its sub-plan, the "Finisar Purchase Plan")this Agreement. All shares of Finisar Common Stock subject to issuance as specified above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. There are no obligations, contingent or otherwise, of Finisar or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Finisar Common Stock or the capital stock of any Finisar Subsidiary or make any investment (in the form of a loan, capital contribution or otherwise) in any such Subsidiary or any other entity other than guarantees of bank obligations of such Subsidiaries entered into in the ordinary course of business. (b) All of the outstanding shares of capital stock of each of Finisar's Subsidiaries Sub have been duly authorized and validly issued and are duly authorized, validly issued, fully paid and nonassessable, and all such shares (other than directors' qualifying shares in the case of foreign Subsidiaries) are owned by Finisar and/or one or more Finisar Subsidiaries Finisar, free and clear of all security interests, Liens, claims, pledges, agreements, limitations on Finisar's voting rights, charges or other encumbrances of any nature. (cb) Except as set forth in this Section 4.24.2 or as reserved for future grants of options under Finisar’s stock option plans or Finisar’s employee stock purchase plan, there are (i) no equity securities of any class of Finisar or any of its SubsidiariesFinisar, or any securities security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding, outstanding and (ii) no outstanding subscriptions, options, warrants, RSUs, equity securitiesputs, calls, rights, rights or other commitments or agreements of any character to which Finisar or any of its Subsidiaries is a party or by which any of them are it is bound obligating Finisar or any of its Subsidiaries to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any equity securities of Finisar or any of its Subsidiaries or obligating Finisar or any of its Subsidiaries to grant, extend, accelerate the vesting of or otherwise amend or enter into any such option, warrant, equity security, call, right, commitment or agreement. There are no voting trusts, proxies or other agreements or understandings with respect to the shares of capital stock of Finisar (A) between or among Finisar and any of its stockholders or (B) to Finisar's knowledge, among any of Finisar's stockholders, except for the Finisar Voting Agreements. (dc) All outstanding The shares of Finisar Common StockStock to be issued pursuant to the Merger, all Finisar Options when issued in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and Finisar RSU Awards outstanding under the Finisar Option Plans and all of the Finisar Convertible Notes have been issued and granted in compliance with (i) all applicable securities Laws and (ii) all requirements set forth in any plans, contracts or agreements providing for the issuance or grant of such securitiesnonassessable.

Finisar Capital Structure. (a) The authorized capital stock of Finisar consists of 750,000,000 200,000,000 shares of Finisar Common Stock and 5,000,000 shares of Finisar Preferred Stock, $0.001 par value ("Finisar Preferred Stock"). As of the close of business on May 13September 30, 20082000, (i) 308,838,619 160,165,469 shares of Finisar Common Stock were issued and outstanding, all of which had been duly authorized and validly issued and were duly authorized, validly issued, fully paid and nonassessable; (ii) no shares . As of Finisar Preferred Stock were issued or outstanding; (iii) 16,671,377 shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 51/4% Convertible Subordinated Notes due 2008; (iv) 13,495,277 shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 21/2% Convertible Subordinated Notes due 2010; (v) no shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 21/2% Convertible Senior Subordinated Notes due 2010; (vi) 6,800,000 September 30, 2000, 8,480,471 shares of Finisar Common Stock were reserved for issuance pursuant to an amended stock options granted and restated convertible promissory note dated March 21, 2008 issued in connection with Finisar's acquisition of AZNA LLC (the notes described in clauses (iii), (iv) and (v) and this clause (vi) being referred to herein, collectively, as the "Finisar Convertible Notes"); (vii) 53,138,389 shares of Finisar Common Stock were reserved for issuance upon the exercise of outstanding options to purchase Finisar Common Stock ("Finisar Options") and the exercise, settlement or conversion of outstanding RSUs ("Finisar RSU Awards") granted under Finisar's stock option plans (the "Finisar Option Plans"); (viii) 37,042,324 shares of Finisar Common Stock were reserved for future issuance and rights outstanding under the Finisar Option Plans; and (ix) 11,060,097 shares of Finisar Common Stock were reserved for future issuance pursuant to Finisar's employee stock purchase plan (including its sub-plan. No material change in such capitalization has occurred between September 30, 2000 and the "Finisar Purchase Plan")date of this Agreement. All As of the date hereof, no shares of Finisar Common Preferred Stock subject to issuance as specified above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessableissued or outstanding. There are no obligations, contingent or otherwise, of Finisar or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Finisar Common Stock or the capital stock of any Finisar Subsidiary or make any investment (in the form of a loan, capital contribution or otherwise) in any such Subsidiary or any other entity other than guarantees of bank obligations of such Subsidiaries entered into in the ordinary course of business. (b) All of the outstanding shares of capital stock of each of Finisar's Subsidiaries Sub have been duly authorized and validly issued and are duly authorized, validly issued, fully paid and nonassessable, and all such shares (other than directors' qualifying shares in the case of foreign Subsidiaries) are owned by Finisar and/or one or more Finisar Subsidiaries Finisar, free and clear of all security interests, Liens, claims, pledges, agreements, limitations on Finisar's voting rights, charges or other encumbrances of any nature. (cb) Except as set forth in this Section 4.24.2 or as reserved for future grants of options under Finisar's stock option plans or Finisar's employee stock purchase plan, there are (i) no equity securities of any class of Finisar or any of its SubsidiariesFinisar, or any securities security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding, outstanding and (ii) no outstanding subscriptions, options, warrants, RSUs, equity securitiesputs, calls, rights, rights or other commitments or agreements of any character to which Finisar or any of its Subsidiaries is a party or by which any of them are it is bound obligating Finisar or any of its Subsidiaries to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any equity securities of Finisar or any of its Subsidiaries or obligating Finisar or any of its Subsidiaries to grant, extend, accelerate the vesting of or otherwise amend or enter into any such option, warrant, equity security, call, right, commitment or agreement. There are no voting trusts, proxies or other agreements or understandings with respect to the shares of capital stock of Finisar (A) between or among Finisar and any of its stockholders or (B) to Finisar's knowledge, among any of Finisar's stockholders, except for the Finisar Voting Agreements. (dc) All outstanding The shares of Finisar Common StockStock to be issued pursuant to the Merger, all Finisar Options when issued in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and Finisar RSU Awards outstanding under the Finisar Option Plans nonassessable, and all of the Finisar Convertible Notes have been issued and granted in compliance with (i) all applicable securities Laws and (ii) all requirements set forth in free from any plans, contracts or agreements providing for the issuance or grant of such securitiespreemptive rights.

Finisar Capital Structure. (a) The authorized capital stock of Finisar consists of 750,000,000 200,000,000 shares of Finisar Common Stock and 5,000,000 shares of Finisar Preferred Stock, $0.001 par value ("Finisar Preferred Stock"). As of the close of business on May 13September 30, 20082000, (i) 308,838,619 160,165,469 shares of Finisar Common Stock were issued and outstanding, all of which had been duly authorized and validly issued and were duly authorized, validly issued, fully paid and nonassessable; (ii) . As of September 30, 2000, 8,480,471 shares of Finisar Common stock were reserved for issuance pursuant to stock options granted and outstanding under Finisar's stock option plans and rights outstanding under Finisar's employee stock purchase plan. No material change in such capitalization has occurred between September 30, 2000 and the date of this Agreement. As of the date hereof, no shares of Finisar Preferred Stock were are issued or outstanding; (iii) 16,671,377 shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 51/4% Convertible Subordinated Notes due 2008; (iv) 13,495,277 shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 21/2% Convertible Subordinated Notes due 2010; (v) no shares of Finisar Common Stock were reserved for issuance upon conversion of Finisar's 21/2% Convertible Senior Subordinated Notes due 2010; (vi) 6,800,000 shares of Finisar Common Stock were reserved for issuance pursuant to an amended and restated convertible promissory note dated March 21, 2008 issued in connection with Finisar's acquisition of AZNA LLC (the notes described in clauses (iii), (iv) and (v) and this clause (vi) being referred to herein, collectively, as the "Finisar Convertible Notes"); (vii) 53,138,389 shares of Finisar Common Stock were reserved for issuance upon the exercise of outstanding options to purchase Finisar Common Stock ("Finisar Options") and the exercise, settlement or conversion of outstanding RSUs ("Finisar RSU Awards") granted under Finisar's stock option plans (the "Finisar Option Plans"); (viii) 37,042,324 shares of Finisar Common Stock were reserved for future issuance under the Finisar Option Plans; and (ix) 11,060,097 shares of Finisar Common Stock were reserved for future issuance pursuant to Finisar's employee stock purchase plan (including its sub-plan, the "Finisar Purchase Plan"). All shares of Finisar Common Stock subject to issuance as specified above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. There are no obligations, contingent or otherwise, of Finisar or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Finisar Common Stock or the capital stock of any Finisar Subsidiary or make any investment (in the form of a loan, capital contribution or otherwise) in any such Subsidiary or any other entity other than guarantees of bank obligations of such Subsidiaries entered into in the ordinary course of business. (b) All of the outstanding shares of capital stock of each of Finisar's Subsidiaries Sub have been duly authorized and validly issued and are duly authorized, validly issued, fully paid and nonassessable, and all such shares (other than directors' qualifying shares in the case of foreign Subsidiaries) are owned by Finisar and/or one or more Finisar Subsidiaries Finisar, free and clear of all security interests, Liens, claims, pledges, agreements, limitations on Finisar's voting rights, charges or other encumbrances of any nature.. As of December 31, 2000, 185,500,768 shares of Finisar Common Stock were issued and outstanding and an aggregate of 12,148,851 shares of Finisar Common Stock were subject to outstanding options or purchase rights under Finisar's employee stock option plans, employee stock purchase plan and options assumed in connection with Finisar's acquisitions of Sensors Unlimited, Inc. and Demeter Technologies, Inc. (cb) Except as set forth in this Section 4.24.2 or as reserved for future grants of options under Finisar's stock option plans or Finisar's employee stock purchase plan, there are (i) no equity securities of any class of Finisar or any of its SubsidiariesFinisar, or any securities security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding, outstanding and (ii) no outstanding subscriptions, options, warrants, RSUs, equity securitiesputs, calls, rights, rights or other commitments or agreements of any character to which Finisar or any of its Subsidiaries is a party or by which any of them are it is bound obligating Finisar or any of its Subsidiaries to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any equity securities of Finisar or any of its Subsidiaries or obligating Finisar or any of its Subsidiaries to grant, extend, accelerate the vesting of or otherwise amend or enter into any such option, warrant, equity security, call, right, commitment or agreement. There are no voting trusts, proxies or other agreements or understandings with respect to the shares of capital stock of Finisar (A) between or among Finisar and any of its stockholders or (B) to Finisar's knowledge, among any of Finisar's stockholders, except for the Finisar Voting Agreements. (dc) All outstanding The shares of Finisar Preferred Stock to be issued pursuant to the Merger, when issued in accordance with the terms of this Agreement, and the shares of Finisar Common Stock, all Finisar Options and Finisar RSU Awards outstanding under the Finisar Option Plans and all Stock issuable upon conversion of the Finisar Convertible Notes have been Preferred Stock, when issued in accordance with the terms of the Certificate of Designation, will be duly authorized, validly issued, fully paid and granted in compliance with (i) all applicable securities Laws and (ii) all requirements set forth in any plans, contracts or agreements providing for nonassessable. Subject to the issuance or grant of such securitiesthe Permit pursuant to the Hearing (as each is defined in Section 6.9) as contemplated by, and in accordance with, Section 6.9 of this Agreement, the offer, sale and issuance of the Finisar Preferred Stock and the Finisar Common Stock issuable upon conversion of the Finisar Preferred Stock (the "Conversion Stock") and the subsequent resale of the Finisar Preferred Stock and Conversion Stock by the Shomiti securityholders will be exempt from the registration requirements of Section 5 of the Securities Act.