REGISTRATION RIGHTS AGREEMENT
Exhibit 99.4
Execution Version
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of January 13, 2006,
is by and between BOOKHAM, INC., a Delaware corporation (the “Company”), and each of the
entities whose names appear on the signature pages hereof. Such entities are each referred to
herein as an “Investor” and, collectively, as the “Investors”.
The Investors have agreed, on the terms and subject to the conditions set forth in the
Securities Exchange Agreement, dated as of January 13, 2006 (the “Securities Exchange
Agreement”), to convert the 7% Senior Unsecured Convertible Debentures issued by the Company to
each of the Investors on December 20, 2004 in exchange for an aggregate of: (i) $2,231,000 in cash,
(ii) 750,000 shares of Common Stock (the “Registrable Common Shares”), and (iii) warrants
to purchase 400,000 shares of Common Stock in the form attached as Exhibit A to the
Securities Exchange Agreement (each, a “Warrant”, and collectively, the
“Warrants”).
In order to induce each Investor to enter into the Securities Exchange Agreement, the Company
has agreed to provide certain registration rights under the Securities Act of 1933, as amended (the
“Securities Act”), and under applicable state securities laws.
In consideration of each Investor entering into the Securities Exchange Agreement, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the meanings specified:
“Business Day” means any day other than a Saturday, a Sunday or a day on which
the Commission is closed or on which banks in the City of New York are required or
authorized by law to be closed.
“Commission” means the Securities and Exchange Commission.
“Effective Date” means the date on which the Registration Statement is declared
effective by the Commission.
“Filing Deadline” means the forty-fifth (45th) calendar day following the
Initial Closing Date.
“Holder” means any person owning or having the right to acquire, through
conversion of the Debentures or exercise of the Warrants or otherwise, Registrable
Securities, including initially each Investor and thereafter any permitted assignee thereof.
“Registrable Securities” means the Registrable Common Shares, the Warrant
Shares and any other shares of Common Stock issuable pursuant to the terms of the Warrants
and any shares of capital stock issued or issuable from time to time (with any adjustments)
in replacement of, in exchange for or otherwise in respect of the Warrant Shares.
“Registration Deadline” means the one hundred thirty-fifth (135th) calendar day
following the Initial Closing Date.
“Registration Period” has the meaning set forth in paragraph 2(c) below.
“Registration Statement” means a registration statement or statements prepared
in compliance with the Securities Act and pursuant to Rule 415 under the Securities Act
(“Rule 415”) or any successor rule providing for the offering of securities on a
continuous or delayed basis.
“Warrant Shares” means the shares of Common Stock issuable upon exercise of the
Warrants.
Capitalized terms used herein and not otherwise defined shall have the respective meanings
specified in the Securities Exchange Agreement.
2. REGISTRATION.
(a) Filing of Registration Statement. On or before the Filing Deadline and subject to
the receipt of a completed stockholder questionnaire, such questionnaire to be in the form attached
hereto as Annex A (a “Stockholder Questionnaire”), the Company shall prepare and
file with the Commission a Registration Statement on Form S-3 as a “shelf” registration statement
under Rule 415 covering the resale of a number of shares of Registrable Securities equal to all of
the Registrable Common Shares and one hundred percent (100%) of the number of shares of Common
Stock issuable upon exercise of the Warrants (such number to be determined without regard to any
restriction on such exercise). Such Registration Statement may also include the resale of up to
4,000,000 shares of Common Stock owned of record by Nortel Networks Corporation and its Affiliates.
Such Registration Statement shall state, to the extent permitted by Rule 416 under the Securities
Act, that it also covers such indeterminate number of additional shares of Common Stock as may
become issuable upon the exercise of the Warrants in order to prevent dilution resulting from stock
splits, stock dividends or similar events.
(b) Alternative Registration Statement. Notwithstanding the foregoing paragraph 2(a),
if at the relevant date set forth in paragraph 2(a) for filing a Registration Statement, the
Company does not meet the eligibility requirements for filing a Registration Statement on Form S-3,
then in such case the Company shall instead prepare and file with the Commission a Registration
Statement meeting the foregoing requirements on Form S-1, and in such event, the Company shall
re-file such Registration Statement, or file a new Registration Statement covering at least the
number of shares then registered on the existing Registration Statement(s) (and not previously sold
pursuant to an existing Registration Statement or pursuant to Rule 144 under the Securities Act
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(“Rule 144”)), on Form S-3 as promptly as practicable (but in no event later than thirty
(30) days) after the Company meets the eligibility requirements to use Form S-3 for the resale of Registrable
Securities by each Investor.
(c) Effectiveness. The Company shall use commercially reasonable efforts to cause the
Registration Statement to become effective as soon as practicable following the filing thereof, but
in no event later than the Registration Deadline. The Company shall respond promptly to any and
all comments made by the staff of the Commission with respect to the Registration Statement, and
shall submit to the Commission, within two (2) Business Days after the Company learns that no
review of the Registration Statement will be made by the staff of the Commission or that the staff
of the Commission has no further comments on the Registration Statement, as the case may be, a
request for acceleration of the effectiveness of such Registration Statement to a time and date not
later than two (2) Business Days after the submission of such request. The Company will maintain
the effectiveness of each Registration Statement filed pursuant to this Agreement until the
earliest to occur of (i) the date on which all of the Registrable Securities eligible for resale
thereunder have been publicly sold pursuant to either the Registration Statement or Rule 144, (ii)
the date on which all of the Registrable Securities remaining to be sold under such Registration
Statement (in the reasonable opinion of counsel to the Company) may be immediately sold to the
public under Rule 144(k) under the Securities Act (“Rule 144(k)”) or any successor
provision and (iii) the date that is the second (2nd) anniversary of the Effective Date
(the period beginning on the Initial Closing Date and ending on the earliest to occur of (i), (ii)
or (iii) above being referred to herein as the “Registration Period”).
(d) Registration Default. If (i) the Registration Statement is not filed on or before
the Filing Deadline or declared effective by the Commission on or before the Registration Deadline
for reasons other than the failure of all applicable Holders to timely provide a completed
Stockholder Questionnaire, (ii) after a Registration Statement has been declared effective by the
Commission, sales of Registrable Securities (other than such Registrable Securities as are then
freely saleable pursuant to Rule 144(k)) cannot be made by a Holder under a Registration Statement
for any reason not within the exclusive control of such Holder, or (iii) an amendment or supplement
to a Registration Statement, or a new registration statement, required to be filed pursuant to the
terms of paragraph 3(j) below, is not filed on or before the date required by such paragraph (each
of the foregoing clauses (i), (ii) and (iii) being referred to herein as a “Registration
Default”), the Company shall make the following cash payments to each Holder:
(1) with respect to the Registrable Common Shares: an amount equal to: (A)
the number of Registrable Common Shares such Holder desires to sell less
that portion of such Registrable Common Shares that may then be sold
pursuant to Rule 144, multiplied by (B) the fair market value of the Common
Stock on the Principal Market on the date of Holder’s intended sale,
multiplied by (C) one percent (1%); and
(2) with respect to the Warrant Shares: an amount equal to (A) the number
of Warrant Shares such Holder desires to sell less that portion of such
Warrant Shares that are then freely saleable pursuant to Rule 144 (assuming
a cashless exercise of such Warrants), multiplied by (B) the difference
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between the fair market value of the Common Stock on the Principal Market
less the exercise price of the Warrants, multiplied by (C) one percent (1%);
for each thirty (30) day period or part thereof in which a Registration Default exists; provided,
however, that in the event of the failure of a Holder to timely provide a completed Stockholder
Questionnaire, such Registration Deadline shall be extended two (2) Business Days from the date of
the receipt of such completed Stockholder Questionnaire. Notwithstanding any provision of this
Agreement to the contrary, the Company shall be permitted to suspend for one or more periods
(provided that the aggregate length of such suspension shall not exceed thirty (30) consecutive
days (or forty-five (45) consecutive days if the Company is required by Commission regulations to
file financial statements with respect to an acquired business) or an aggregate of sixty (60) days
in any 365 day period) the actions required under paragraph 2(a) of this Agreement to the extent
that the Board of Directors of the Company concludes in good faith that the disclosure of
information in the prospectus is not in the best interest of the Company. Each such payment
required to be made under this paragraph 2(d) shall be made within five (5) Business Days following
the last day of each calendar month in which a Registration Default exists. Any such payment shall
be in addition to any other remedies available to each Holder at law or in equity, whether pursuant
to the terms hereof, the Securities Purchase Agreement, the Debentures, or otherwise.
(e) Allocation of Registrable Securities. The initial number of Registrable Securities
included in any Registration Statement and each increase in the number thereof included therein
shall be allocated pro rata among the Holders based on the aggregate number of Registrable Common
Shares owned of record by the Holder and the number of Warrant Shares issuable to each Holder at
the time the Registration Statement covering such initial number of Registrable Securities or
increase thereof is declared effective by the Commission (such number of Warrant Shares to be
determined using the Exercise Price (as defined in the Warrant) in effect at such time and without
regard to any restriction on the ability of a Holder to exercise such Holder’s Warrant as of such
date). In the event that a Holder sells or otherwise transfers any of such Holder’s Registrable
Securities, each transferee shall be allocated the portion of the then remaining number of
Registrable Securities included in such Registration Statement allocable to the transferor.
(f) Registration of Other Securities. During the period beginning on the date hereof
and ending on the Effective Date, the Company shall refrain from filing any registration statement
(other than (i) a Registration Statement filed hereunder, (ii) a registration statement on Form S-8
with respect to stock option plans and agreements and stock plans currently in effect and disclosed
in the Securities Purchase Agreement or the schedules thereto, (iii) a registration statement on
Form S-4 with respect to an acquisition or other business combination involving the Company or (iv)
a shelf or demand registration statement filed by the Company upon the exercise by Nortel Networks
Corporation or its Affiliates of demand registration rights outstanding on the Initial Closing
Date). Except as set forth in Section 2, in no event shall the Company include any securities
other than Registrable Securities on any Registration Statement filed by the Company on behalf of
the Holders pursuant to the terms hereof.
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3. OBLIGATIONS OF THE COMPANY.
In addition to performing its obligations hereunder, including without limitation those
pursuant to Section 2 above, the Company shall, with respect to each Registration Statement:
(a) prepare and file with the Commission such amendments and supplements to such Registration
Statement and the prospectus used in connection with such Registration Statement as may be
necessary to comply with the provisions of the Securities Act or to maintain the effectiveness of
such Registration Statement during the Registration Period, or as may be reasonably requested by a
Holder in order to incorporate information concerning such Holder or such Holder’s intended method
of distribution;
(b) promptly following the Initial Closing, secure the listing on the Principal Market of all
Registrable Securities, and at any Holder’s request, provide such Holder with reasonable evidence
thereof;
(c) so long as a Registration Statement is effective covering the resale of the applicable
Registrable Securities owned by a Holder, furnish to each Holder such number of copies of the
prospectus included in such Registration Statement, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents as such Holder may
reasonably request in order to facilitate the disposition of such Holder’s Registrable Securities;
(d) use commercially reasonable efforts to register or qualify the Registrable Securities
under the securities or “blue sky” laws of such jurisdictions within the United States, or obtain
an exemption therefrom, as shall be reasonably requested from time to time by a Holder, and do any
and all other acts or things which may reasonably be necessary or advisable to enable such Holder
to consummate the public sale or other disposition of the Registrable Securities in such
jurisdictions; provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to service of process in
any such jurisdiction;
(e) notify each Holder immediately after becoming aware of the occurrence of any event (but
shall not, without the prior written consent of such Holder, disclose to such Holder any facts or
circumstances constituting material non-public information) as a result of which the prospectus
included in such Registration Statement, as then in effect, contains an untrue statement of
material fact or omits to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then existing, and as promptly
as practicable prepare and file with the Commission and furnish to each Holder a reasonable number
of copies of a supplement or an amendment to such prospectus as may be necessary so that such
prospectus does not contain an untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading in light
of the circumstances then existing;
(f) use commercially reasonable efforts to prevent the issuance of any stop order or other
order suspending the effectiveness of such Registration Statement and, if such an order is
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issued, to use commercially reasonable efforts obtain the withdrawal thereof at the earliest
possible time and to notify each Holder in writing of the issuance of such order and the resolution
thereof;
(g) furnish to each Holder, on the date that such Registration Statement, or any successor
registration statement, becomes effective, a letter, dated such date, signed by an officer of or
counsel to the Company and addressed to such Holder, confirming such effectiveness and, to the
knowledge of such counsel, the absence of any stop order;
(h) provide to each Holder and its representatives the reasonable opportunity to conduct a
reasonable inquiry of the Company’s financial and other records during normal business hours and
make available during normal business hours and with reasonable advance notice its officers,
directors and employees for questions regarding information which such Holder may reasonably
request in order to fulfill any due diligence obligation on its part;
(i) permit counsel for each Holder to review such Registration Statement and all amendments
and supplements thereto, and any comments made by the staff of the Commission concerning such
Holder and/or the transactions contemplated by the Transaction Documents and the Company’s
responses thereto, within a reasonable period of time prior to the filing thereof with the
Commission (or, in the case of comments made by the staff of the Commission, within a reasonable
period of time following the receipt thereof by the Company); and
(j) in the event that, at any time, the number of shares available under the Registration
Statement is insufficient to cover one hundred percent (100%) of the Registrable Securities (for
this purpose, the number of Warrant Shares shall be determined using the Exercise Price (as defined
in Warrant), as applicable, in effect at such time and without regard to any restriction on the
ability of any Holder to exercise such Holder’s Warrant) the Company shall promptly amend such
Registration Statement or file a new registration statement, in any event as soon as practicable,
but not later than the tenth (10th) day following notice from a Holder of the occurrence
of such event, so that such Registration Statement or such new registration statement, or both,
covers no less than one hundred percent (100%) of the Registrable Securities eligible for resale
thereunder (for this purpose, the number of Warrant Shares shall be determined using the Exercise
Price (as defined in the Warrant) in effect at the time of such amendment or filing and without
regard to any restriction on the ability of any Holder to exercise such Holder’s Warrant). The
Company shall use commercially reasonable efforts to cause such amendment and/or new Registration
Statement to become effective as soon as practicable following the filing thereof. Any Registration
Statement filed pursuant to this paragraph 3(j) shall state that, to the extent permitted by Rule
416 under the Securities Act, such Registration Statement also covers such indeterminate number of
additional shares of Common Stock as may become issuable upon exercise of the Warrants in order to
prevent dilution resulting from stock splits, stock dividends or similar events. Unless and until
such amendment or new Registration Statement becomes effective, each Holder shall have the rights
described in paragraph 2(d) above.
4. OBLIGATIONS OF EACH HOLDER.
In connection with the registration of Registrable Securities pursuant to a Registration
Statement, each Holder shall:
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(a) timely furnish to the Company (i) a completed Stockholder Questionnaire and (ii) such
information in writing regarding itself and the intended method of disposition of such Registrable
Securities as the Company shall reasonably request in order to effect the registration thereof;
(b) upon receipt of any notice from the Company of the happening of any event of the kind
described in paragraphs 3(e) or 3(f), immediately discontinue any sale or other disposition of such
Registrable Securities pursuant to such Registration Statement until the filing of an amendment or
supplement as described in paragraph 3(e) or withdrawal of the stop order referred to in paragraph
3(f), and use commercially reasonable efforts to maintain the confidentiality of such notice and
its contents;
(c) to the extent required by applicable law, deliver a prospectus to the purchaser of such
Registrable Securities;
(d) notify the Company when it has sold all of the Registrable Securities held by it; and
(e) notify the Company in the event that any information supplied by such Holder in writing
for inclusion in such Registration Statement or related prospectus is untrue or omits to state a
material fact required to be stated therein or necessary to make such information not misleading in
light of the circumstances then existing; immediately discontinue any sale or other disposition of
such Registrable Securities pursuant to such Registration Statement until the filing of an
amendment or supplement to such prospectus as may be necessary so that such prospectus does not
contain an untrue statement of material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of the circumstances
then existing; and use commercially reasonable efforts to assist the Company as may be appropriate
to make such amendment or supplement effective for such purpose.
5. INDEMNIFICATION.
In the event that any Registrable Securities are included in a Registration Statement under
this Agreement:
(a) To the extent permitted by law, the Company shall indemnify and hold harmless each Holder,
the officers, directors, employees, agents and representatives of such Holder, and each person, if
any, who controls such Holder within the meaning of the Securities Act or the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), against any losses, claims, damages,
liabilities or reasonable out-of-pocket expenses (whether joint or several) (collectively,
including reasonable legal expenses or other expenses reasonably incurred in connection with
investigating or defending same, “Losses”), insofar as any such Losses arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a material fact contained in
such Registration Statement under which such Registrable Securities were registered, including any
preliminary prospectus or final prospectus contained therein or any amendments or supplements
thereto, or (ii) the omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein, in light of the circumstances under
which they
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were made, not misleading. Subject to the provisions of paragraph 5(c) below, the Company will
reimburse such Holder, and each such officer, director, employee, agent, representative or
controlling person, for any reasonable legal expenses or other out-of-pocket expenses as reasonably
incurred by any such entity or person in connection with investigating or defending any Loss;
provided, however, that the foregoing indemnity shall not apply to amounts paid in settlement of
any Loss if such settlement is effected without the consent of the Company (which consent shall not
be unreasonably withheld), nor shall the Company be obligated to indemnify any person for any Loss
to the extent that such Loss arises out of or is based upon (i) any disclosure or any omission or
alleged omission (to state a material fact required to be stated therein or necessary to make
statements therein not misleading) that is based upon or in conformity with written information
furnished (or not furnished, in the case of an omission) by such person expressly for use in such
Registration Statement or (ii) a failure of such person to deliver or cause to be delivered the
final prospectus contained in the Registration Statement and made available by the Company, if such
delivery is required by applicable law.
(b) To the extent permitted by law, each Holder who is named in such Registration Statement as
a selling stockholder, acting severally and not jointly, shall indemnify and hold harmless the
Company, the officers, directors, employees, agents and representatives of the Company, and each
person, if any, who controls the Company within the meaning of the Securities Act or the Exchange
Act, against any Losses to the extent (and only to the extent) that any such Losses arise out of or
are based upon (i) any disclosure or any omission or alleged omission (to state a material fact
required to be stated therein or necessary to make statements therein not misleading) that is based
upon or in conformity with written information furnished (or not furnished, in the case of an
omission) by such person expressly for use in such Registration Statement, or (ii) a failure of
such Holder to deliver or cause to be delivered the final prospectus contained in the Registration
Statement and made available by the Company, if such delivery is required under applicable law.
Subject to the provisions of paragraph 5(c) below, such Holder will reimburse any legal or other
expenses as reasonably incurred by the Company and any such officer, director, employee, agent,
representative, or controlling person, in connection with investigating or defending any such Loss;
provided, however, that the foregoing indemnity shall not apply to amounts paid in settlement of
any such Loss if such settlement is effected without the consent of such Holder (which consent
shall not be unreasonably withheld); and provided, further, that, in no event shall any indemnity
under this paragraph 5(b) exceed the net proceeds resulting from the sale of the Registrable
Securities sold by such Holder under such Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of the
commencement of any action (including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this Section 5,
promptly deliver to the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in and to assume the defense thereof with
counsel selected by the indemnifying party and reasonably acceptable to the indemnified party;
provided, however, that an indemnified party shall have the right to retain its own counsel, with
the reasonably incurred fees and expenses of one such counsel for all indemnified parties to be
paid by the indemnifying party, if representation of such indemnified party by the counsel retained
by the indemnifying party would be inappropriate under applicable standards of professional conduct
due to actual or potential conflicting interests between such indemnified party and any other party
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represented by such counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the delivery of notice of any such action, to the
extent prejudicial to its ability to defend such action, shall relieve such indemnifying party of
any liability to the indemnified party under this Section 5 with respect to such action, but the
omission so to deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this Section 5 or with
respect to any other action unless the indemnifying party is materially prejudiced as a result of
not receiving such notice.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 5 is
unavailable or insufficient to hold harmless an indemnified party for any reason, the Company and
each Holder agree, severally and not jointly, to contribute to the aggregate Losses to which the
Company or such Holder may be subject in such proportion as is appropriate to reflect the relative
fault of the Company and such Holder in connection with the statements or omissions which resulted
in such Losses; provided, however, that in no case shall such Holder be responsible for any amount
in excess of the net proceeds resulting from the sale of the Registrable Securities sold by it
under the Registration Statement. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the Company or by such
Holder. The Company and each Holder agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the provisions of this
paragraph (d), 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 is not guilty of
such fraudulent misrepresentation. For purposes of this Section 5, each person who controls a
Holder within the meaning of either the Securities Act or the Exchange Act and each officer,
director, employee, agent or representative of such Holder shall have the same rights to
contribution as such Holder, and each person who controls the Company within the meaning of either
the Securities Act or the Exchange Act and each officer, director, employee, agent or
representative of the Company shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The obligations of the Company and each Holder under this Section 5 shall survive the
exercise of the Warrants in full, the completion of any offering or sale of Registrable Securities
pursuant to a Registration Statement under this Agreement, or otherwise.
6. REPORTS.
With a view to making available to each Holder the benefits of Rule 144 and any other similar
rule or regulation of the Commission that may at any time permit such Holder to sell securities of
the Company to the public without registration, the Company agrees to:
(a) make and keep public information available, as those terms are understood and defined in
Rule 144;
(b) file with the Commission in a timely manner all reports and other documents required of
the Company under the Exchange Act; and
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(c) furnish to such Holder, so long as such Holder owns any Registrable Securities, promptly
upon written request (i) a written statement by the Company, if true, that it has complied with the
reporting requirements of Rule 144 and the Exchange Act, (ii) to the extent not publicly available
through the Commission’s XXXXX database, a copy of the most recent annual or quarterly report of
the Company and such other reports and documents so filed by the Company with the Commission, and
(iii) such other information as may be reasonably requested by such Holder in connection with such
Holder’s compliance with any rule or regulation of the Commission which permits the selling of any
such securities without registration.
7. MISCELLANEOUS.
(a) Expenses of Registration. Except as otherwise provided in the Securities Exchange
Agreement, all reasonable expenses, other than underwriting discounts and commissions and fees and
expenses of counsel and other advisors to each Holder, incurred in connection with the
registrations, filings or qualifications described herein, including (without limitation) all
registration, filing and qualification fees, printers’ and accounting fees and the fees and
disbursements of counsel for the Company shall be borne by the Company.
(b) Amendment; Waiver. Except as expressly provided herein, neither this Agreement
nor any term hereof may be amended or waived except pursuant to a written instrument executed by
the Company and the Holders of at least two-thirds (2/3) of the Registrable Securities and Warrant
Shares then outstanding (assuming exercise of all Warrants and without regard to any limitation on
such exercise). Any amendment or waiver effected in accordance with this paragraph shall be binding
upon each Holder, each future Holder and the Company. The failure of any party to exercise any
right or remedy under this Agreement or otherwise, or the delay by any party in exercising such
right or remedy, shall not operate as a waiver thereof.
(c) Notices. Any notice, demand or request required or permitted to be given by the
Company or a Holder pursuant to the terms of this Agreement shall be in writing and shall be deemed
delivered (i) when delivered personally or by verifiable facsimile transmission, unless such
delivery is made on a day that is not a Business Day, in which case such delivery will be deemed to
be made on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to
a reputable overnight courier and (iii) on the Business Day actually received if deposited in the
U.S. mail (certified or registered mail, return receipt requested, postage prepaid), addressed as
follows:
If to the Company:
Bookham, Inc.
0000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Tel: 000-000-0000
Fax: 000-000-0000
0000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
00
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
and if to a Holder, to such address as shall be designated by such Holder in writing to the
Company.
(d) Assignment. Upon the transfer of any Warrant or any Registrable Securities by a
Holder, the rights of such Holder hereunder with respect to such securities so transferred shall be
assigned automatically to the transferee thereof, and such transferee shall thereupon be deemed to
be a “Holder” for purposes of this Agreement, as long as: (i) the Company is, within a reasonable
period of time following such transfer, furnished with written notice of the name and address of
such transferee, (ii) the transferee agrees in writing with the Company to be bound by all of the
provisions hereof, and (iii) such transfer is made in accordance with the applicable requirements
of the Securities Exchange Agreement or the Warrants.
(e) Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, and all of which together shall be deemed one and the same instrument. This
Agreement, once executed by a party, may be delivered to any other party hereto by facsimile
transmission.
(f) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed entirely
within the State of New York.
(g) Holder of Record. A person is deemed to be a Holder whenever such person owns or
is deemed to own of record such Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two or more persons with respect to the same Registrable
Securities, the Company shall act upon the basis of instructions, notice or election received from
the record owner of such Registrable Securities.
(h) Entire Agreement. This Agreement, the Securities Exchange Agreement, the Warrants
and the other Transaction Documents constitute the entire agreement among the parties hereto with
respect to the subject matter hereof and thereof. There are no restrictions, promises, warranties
or undertakings, other than those set forth or referred to herein and therein. This Agreement, the
Securities Exchange Agreement, the Warrants, and the other Transaction Documents supersede all
prior agreements and understandings among the parties hereto with respect to the subject matter
hereof and thereof.
(i) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(j) Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other person.
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[Signature Pages to Follow]
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IN WITNESS WHEREOF, the undersigned have executed this Registration Rights Agreement as of the
date first-above written.
By:
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/s/ Xxxxxxx Xxxxx
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| Title: Chief Financial Officer |
[Signature page to Registration Rights Agreement]
SATELLITE STRATEGIC FINANCE ASSOCIATES, LLC
| By: | Satellite Asset Management, L.P., its Manager | |||||
| By: | /s/ Xxxxx Xxxxxxx
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| General Counsel | ||||||
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights Agreement as of the
date first-above written.
| SMITHFIELD FIDUCIARY LLC | ||||
By:
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/s/ Xxxx X. Chill
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| Title Authorized Signatory | ||||
Portside Growth and Opportunity Fund
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Investor Name |
| By: | , its Manager | |||||
| By: | /s/ Xxxxxxx Xxxxx | |||||
| Name: Xxxxxxx Xxxxx Title: Authorized Signatory |
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IN WITNESS WHEREOF, the undersigned have executed this Registration Rights Agreement as of the
date first-above written.
By: |
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| Title: | ||||
| Capital Ventures International | ||||
| By: Heights Capital Mangement, LLC | ||||
| is Authorized Agent | ||||
| Investor Name | ||||
By:
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/s/ Xxxxxx Kobing
|
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| Title: Investment Manager |
