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Exhibit 4.5
JDS UNIPHASE CANADA LTD.
and
CIBC MELLON TRUST COMPANY,
Rights Agent
AMENDED AND RESTATED RIGHTS AGREEMENT
Dated as of February ___, 2000
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TABLE OF CONTENTS
Section 1. Certain Definitions...............................................................1
Section 2. Appointment of Rights Agent.......................................................3
Section 3. Issue of Rights Certificates......................................................3
Section 4. Form of Rights Certificates.......................................................5
Section 5. Countersignature and Registration.................................................5
Section 6. Transfer, Split Up, Combination and Exchange of Rights Certificates; Mutilated,
Destroyed, Lost or Stolen Rights Certificates.................................5
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.....................6
Section 8. Cancellation and Destruction of Rights Certificates...............................8
Section 9. Reservation and Availability of Capital Stock.....................................8
Section 10. Exchangeable Share Record Date..................................................10
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights....10
Section 12. Certificate of Adjusted Purchase Price or Number of Shares......................15
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power............16
Section 14. Fractional Rights and Fractional Shares.........................................17
Section 15. Rights of Action................................................................18
Section 16. Agreement of Rights Holders.....................................................18
Section 17. Rights Certificate Holder Not Deemed a Shareholder..............................19
Section 18. Concerning the Rights Agent.....................................................19
Section 19. Merger or Consolidation or Change of Name of Rights Agent.......................20
Section 20. Duties of Rights Agent..........................................................20
Section 21. Change of Rights Agent..........................................................23
Section 22. Issuance of New Rights Certificates.............................................24
Section 23. Redemption and Termination......................................................24
Section 24. Notice of Certain Events........................................................25
Section 25. Notices.........................................................................26
Section 26. Supplements and Amendments......................................................26
Section 27. Successors......................................................................27
Section 28. Determinations and Actions by the Board of Directors, etc.......................27
Section 29. Benefits of this Agreement......................................................27
Section 30. Severability....................................................................28
Section 31. Governing Law...................................................................28
Section 32. Counterparts....................................................................28
Section 33. Descriptive Headings............................................................28
Section 34. Exchange........................................................................29
Exhibit A Form of Rights Certificate
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AMENDED AND RESTATED
RIGHTS AGREEMENT
AMENDED AND RESTATED
RIGHTS AGREEMENT, dated as of February ____,
2000 (the "Agreement"), between JDS Uniphase Canada Ltd., a corporation
incorporated under the laws of Canada (the "Company"), and CIBC Mellon Trust
Company, a trust company formed under the laws of Canada (the "Rights Agent").
RECITALS:
WHEREAS effective June 22, 1998 (the "Rights Dividend Declaration
Date"), the Board of Directors of the Company authorized and issued one right
(as such number may hereinafter be adjusted pursuant hereto) (a "Right") for
each exchangeable share of the Company (an "Exchangeable Share") issued between
the Effective Time (including the Exchangeable Shares issued at the Effective
Time) and, except as otherwise provided in Section 22, the Distribution Date (as
these terms are hereinafter defined), each Right initially representing the
right to purchase upon the terms and subject to the conditions hereinafter set
forth one Exchangeable Share;
WHEREAS, the Rights are intended to provide rights to acquire
additional Exchangeable Shares (or in certain circumstances other securities) on
terms substantially the same as the Uniphase Rights (as hereinafter defined)
confer the right to acquire shares of preferred stock (or other securities) of
JDS Uniphase Corporation (formerly, Uniphase Corporation) ("Uniphase"), a
Delaware corporation, that are essentially the economic equivalent of Uniphase
Common Stock (or in certain circumstances other securities);
WHEREAS, the Company desires to set forth certain terms and
conditions governing the Rights;
WHEREAS, the Board of Directors of Uniphase has determined that
it is in the best interest of Uniphase and the holders of Uniphase Common Stock
to amend the Third Amended and Restated
Rights Agreement dated October 15, 1999
between Uniphase and American Stock Transfer & Trust Company, as rights agent
(such agreement, as amended being the Uniphase
Rights Agreement) to increase the
purchase price of the Series B Preferred Stock of Uniphase, par value U.S.$0.001
per share, from U.S.$600 to U.S.$3,600;
WHEREAS, the Board of Directors of the Company has approved an
amendment to this Agreement such that it conforms to the Uniphase
Rights
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS
Capitalized terms used herein and not otherwise defined herein will have
the meaning given in the Uniphase
Rights Agreement. In addition, for purposes of
this Agreement, the following terms have the meanings indicated:
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(a) "Adjustment Shares" has the meaning set forth in Section
11(a)(ii).
(b) "Adjustment Spread" has the meaning set forth in Section 34
(a)(ii).
(c) "Business Day" shall mean any day other than a Saturday, Sunday
or a day on which banking institutions in the city of New York,
New York are authorized or obligated by law or executive order
to close.
(d) "Canadian Prospectus" shall mean a prospectus (including a short
form prospectus) prepared in accordance with applicable Canadian
Securities Laws for the purposes of qualifying securities for
distribution or distribution to the public, as the case may be,
in any province or territory of Canada.
(e) "Canadian Securities Law" shall mean statutes and regulations
applicable to the trading of securities in any province or
territory of Canada including applicable rules, policy
statements and blanket rulings and orders promulgated by
Canadian securities regulatory authorities.
(f) "Company" means JDS Uniphase Canada Ltd., a corporation
incorporated under the laws of Canada, and also means a
Principal Party to the extent provided in Section 13(a).
(g) "Current Value" has the meaning set forth in Section 11(a)(iii).
(h) "Depositary Agent" has the meaning set forth in Section 7(c).
(i) "Effective Date" has the meaning set forth in the Plan of
Arrangement.
(j) "Exchangeable Shares" has the meaning set forth in the Recitals.
(k) "Plan of Arrangement" shall mean the plan of arrangement of JDS
FITEL Inc., a corporation incorporated under the laws of Canada
("JDS"), contemplated by that certain merger agreement made as
of January 28, 1999, as amended and restated as of April 29,
1999 among Uniphase, the Company and JDS, as amended from time
to time.
(l) "Principal Party" has the meaning set forth in Section 13(b).
(m) "Purchase Price" has the meaning set forth in Section 7(b).
(n) "Redemption Price" has the meaning set forth in Section 23(a).
(o) "Registration Date" has the meaning set forth in Section 9(c).
(p) "Registration Statement" has the meaning set forth in Section
9(c).
(q) "Right" has the meaning set forth in the Recitals to this
Agreement.
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(r) "Rights Agent" has the meaning set forth in the Recitals to this
Agreement.
(s) "Rights Certificate" has the meaning set forth in Section 3(a).
(t) "Rights Dividend Declaration Date" has the meaning set forth in
the recitals to this Agreement.
(u) "Section 11(a)(ii) Event" shall mean the event described in
Section 11(a)(ii) of the Uniphase
Rights Agreement.
(v) "Section 13 Event" shall mean any event described in clause (x),
(y) or (z) of Section 13(a) of the Uniphase
Rights Agreement.
(w) "Section 34(a)(i) Exchange Ratio" has the meaning set forth in
Section 34(a)(i).
(x) "Spread" has the meaning set forth in Section 11(a)(iii).
(y) "Triggering Event" shall mean any Section 11(a)(ii) Event or any
Section 13 Event.
(z) "Uniphase" has the meaning set forth in the Recitals to this
Agreement.
(aa) "Uniphase Common Stock" means the common stock, par value
U.S.$0.001 per share, of Uniphase.
(bb) "Uniphase Purchase Price" means the "Purchase Price" as defined
in the Uniphase
Rights Agreement.
(cc) "Uniphase Rights" shall mean the "Rights" as defined in the
Uniphase Rights Agreement.
(dd) "Uniphase Rights Agreement" means the fourth amended and
restated rights agreement dated as of February ____, 2000 (and
as it may be thereafter amended and in effect from time to time)
between Uniphase and American Stock Transfer & Trust Company, as
rights agent.
SECTION 2. APPOINTMENT OF RIGHTS AGENT
The Company hereby appoints the Rights Agent to act as agent for the
Company in accordance with the terms and conditions hereof, and the Rights Agent
hereby accepts such appointment. With the consent of the Rights Agent, the
Company may from time to time appoint such co-rights agents as it may deem
necessary or desirable.
SECTION 3. ISSUE OF RIGHTS CERTIFICATES
(a) Until the Distribution Date, (x) the Rights will be evidenced
(subject to the provisions of paragraph (b) of this Section 3)
by the certificates for Exchangeable Shares registered in the
names of the holders of Exchangeable Shares as of and subsequent
to the
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Effective Date (which certificates for Exchangeable Shares shall be deemed also
to be certificates for Rights) and not by separate certificates, and (y) the
Rights will be transferable only in connection with the transfer of the
underlying Exchangeable Shares including a transfer to the Company; provided,
however, that if a tender or exchange offer (or take-over bid) is terminated
prior to the occurrence of a Distribution Date, then no Distribution Date shall
occur as a result of such tender or exchange offer (or take-over bid). As soon
as practicable after the Distribution Date, the Rights Agent will send by
first-class, insured, postage prepaid mail, to each registered holder of
Exchangeable Shares as of the Close of Business on the Distribution Date, at the
address of such holder shown on the records of the Company, one or more rights
certificates, in substantially the form of Exhibit A hereto (the "Rights
Certificates"), evidencing one Right for each Exchangeable Share so held,
subject to adjustment as provided herein.
In the event that an adjustment in the number of Rights per Exchangeable
Share has been made pursuant to Section 11(p) hereof, at the time of
distribution of the Rights Certificates, the Company may make the necessary and
appropriate rounding adjustments (in accordance with Section 14(a) hereof) so
that Rights Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional Rights. As of and after
the Distribution Date, the Rights will be evidenced solely by such Rights
Certificates.
(b) Rights shall, without any further action, be issued in respect
of all Exchangeable Shares which are issued on or after the Effective Date but
prior to the earlier of the Distribution Date and the Expiration Date.
Certificates representing such Exchangeable Shares shall bear the following
legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in the Rights Agreement between JDS
Uniphase Canada Ltd. (the "Company") and CIBC Mellon Trust
Company (the "Rights Agent") dated as of June 30, 1999, as
amended from time to time (the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a copy of
which is on file at the principal office of the stock transfer
administration office of the Rights Agent. Under certain
circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be
evidenced by this certificate. The Company will mail to the
holder of this certificate a copy of the Rights Agreement, as in
effect on the date of mailing, without charge promptly after
receipt of a written request therefor. UNDER CERTAIN
CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS ISSUED
TO, OR HELD BY, ANY PERSON WHO IS, WAS OR BECOMES AN ACQUIRING
PERSON OR ANY AFFILIATE OR ASSOCIATE THEREOF (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT), WHETHER CURRENTLY HELD BY OR
ON BEHALF OF SUCH PERSON OR BY ANY SUBSEQUENT HOLDER, MAY BECOME
NULL AND VOID.
Until the earlier of the Distribution Date and the Expiration Date, the Rights
associated with the Exchangeable Shares represented by such certificates
shall be evidenced by such certificates alone, notwithstanding the
absence of the foregoing legend, and registered holders of the
Exchangeable Shares shall also be the registered holders of the
associated Rights, and the transfer
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of any of such certificates shall also constitute the transfer of the Rights
associated with the Exchangeable Shares represented by such certificates.
SECTION 4. FORM OF RIGHTS CERTIFICATES
The Rights Certificates (and the forms of election to purchase,
assignment and certificate to be printed on the reverse thereof) shall each be
substantially in the form set forth in Exhibit A hereto and may have such marks
of identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
applicable law or any rule or regulation thereunder or with any rule or
regulation of any stock exchange or automated quotation system on which the
Rights may from time to time be listed or to conform to usage. Subject to the
provisions of Sections 11 and 22 hereof, the Rights Certificates, whenever
distributed, shall be dated as of the Effective Date and on their face shall
entitle the holders thereof to purchase such number of Exchangeable Shares as
shall be set forth therein at the price set forth therein, but the amount and
type of securities, cash or other assets that may be acquired upon the exercise
of each Right and the Purchase Price thereof shall be subject to adjustment as
provided herein.
SECTION 5. COUNTERSIGNATURE AND REGISTRATION
(a) Rights Certificates shall be executed on behalf of the Company
by its Chairman, the President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary, Treasurer or one of
its Assistant Secretaries. The signature of any of these officers on the Rights
Certificates may be manual or facsimile. Rights Certificates bearing the manual
or facsimile signatures of the individuals who were at any time the proper
officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
countersignature of such Rights Certificates or did not hold such offices at the
date of such Rights Certificates. No Rights Certificate shall be entitled to any
benefit under this Agreement or be valid for any purpose unless there appears on
such Rights Certificate a countersignature duly executed by the Rights Agent by
manual signature of an authorized signatory, and such countersignature upon any
Rights Certificate shall be conclusive evidence, and the only evidence, that
such Rights Certificate has been duly countersigned as required hereunder.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its office designated for surrender of Rights Certificates
upon exercise or transfer, books for registration and transfer of the Rights
Certificates issued hereunder. Such books shall show the name and address of
each holder of the Rights Certificates, the number of Rights evidenced on its
face by each Rights Certificate and the date of each Rights Certificate.
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHTS CERTIFICATES;
MUTILATED, DESTROYED, LOST OR STOLEN RIGHTS CERTIFICATES
(a) Subject to the provisions of Sections 4, 7(e) and 14 hereof, at
any time after the Close of Business on the Distribution Date, and at or prior
to the Close of Business on the
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Expiration Date, any Rights Certificate or Certificates may be transferred,
split up, combined or exchanged for another Rights Certificate or Certificates,
entitling the registered holder to purchase a like number of Exchangeable Shares
(or, following a Triggering Event, other securities, cash or other assets, as
the case may be) as the Rights Certificate or Certificates surrendered then
entitled such holder to purchase. Any registered holder desiring to transfer,
split up, combine or exchange any Rights Certificate or Certificates shall make
such request in writing delivered to the Rights Agent, and shall surrender the
Rights Certificate or Certificates to be transferred, split up, combined or
exchanged at the office of the Rights Agent designated for such purpose. Neither
the Rights Agent nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any such surrendered Rights
Certificate until the registered holder shall have completed and executed the
certificate set forth in the form of assignment on the reverse side of such
Rights Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) of the Rights
represented by such Rights Certificate or Affiliates or Associates thereof as
the Company shall reasonably request; whereupon the Rights Agent shall, subject
to the provisions of Sections 4, 7(e) and 14 hereof, countersign and deliver to
the Person entitled thereto a Rights Certificate or Rights Certificates, as the
case may be, as so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of Rights
Certificates.
(b) Subject to Section 7(e) hereof, if a Rights Certificate shall be
mutilated, lost, stolen or destroyed, upon request by the registered holder of
the Rights represented thereby and upon payment to the Company and the Rights
Agent of all reasonable expenses incident thereto, there shall be issued, in
exchange for and upon cancellation of the mutilated Rights Certificate, or in
substitution for the lost, stolen or destroyed Rights Certificate, a new Rights
Certificate, in substantially the form of the prior Rights Certificate, of like
tenor and representing the equivalent number of Rights, but, in the case of
loss, theft or destruction, only upon receipt of evidence satisfactory to the
Company and the Rights Agent of such loss, theft or destruction of such Rights
Certificate and an indemnity satisfactory to them to save each of them and any
of their agents harmless.
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS
(a) Prior to the Expiration Date, the registered holder of any
Rights Certificate may, subject to the provisions of Sections 7(e), 9(c) and
11(a)(ii) hereof, exercise the Rights evidenced thereby, in whole or in part, at
any time after the Distribution Date upon surrender of the Rights Certificate,
with the form of election to purchase and the certificate on the reverse side
thereof duly executed, to the Rights Agent at the office of the Rights Agent
designated for such purpose, together with payment of the aggregate Purchase
Price (as hereinafter defined) for the number of Exchangeable Shares (or,
following a Triggering Event, other securities, cash or other assets, as the
case may be) for which such surrendered Rights are then exercisable.
(b) The purchase price for each Exchangeable Share shall be
U.S.$3,600, subject to adjustment from time to time as provided in Sections 11
and 13(a) hereof (such purchase price, as so adjusted, being the "Purchase
Price"), and shall be payable in accordance with paragraph (c) below.
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(c) As promptly as practicable following the occurrence of the
Distribution Date, the Company shall deposit with the Rights Agent or other
corporation in good standing organized under the laws of Canada or any Province
thereof, which is authorized under such laws to exercise corporate trust or
stock transfer powers and is subject to supervision or examination by any
Canadian authority (such institution being the "Depositary Agent"), certificates
representing the Exchangeable Shares that may be acquired upon exercise of the
Rights and shall cause such Depositary Agent to enter into an agreement pursuant
to which the Depositary Agent shall issue receipts representing interests in the
Exchangeable Shares so deposited. Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of election to purchase and the
certificate duly executed, accompanied by payment, with respect to each Right so
exercised, of the Purchase Price for the Exchangeable Shares (or, following a
Triggering Event, other securities, cash or other assets, as the case may be) to
be purchased thereby as set forth below and an amount equal to any applicable
transfer tax or charge which may be payable in respect of any transfer involved
in the transfer or delivery of Rights Certificates or the issuance and delivery
of certificates for Exchangeable Shares in a name other than that of the holder
of the Rights being exercised or evidence satisfactory to the Company of payment
of such tax or charge, the Rights Agent shall, subject to Section 20(k) hereof,
thereupon promptly (i) requisition from the Depositary Agent depositary receipts
representing such number of Exchangeable Shares as are to be purchased and the
Company will direct the Depositary Agent to comply with such request, (ii)
requisition from the Company the amount of cash, if any, to be paid in lieu of
fractional Exchangeable Shares in accordance with Section 14 hereof, (iii) after
receipt of such depositary receipts, cause the same to be delivered to or upon
the order of the registered holder of such Rights Certificate, registered in
such name or names as may be designated by such holder, and (iv) after receipt
thereof, deliver such cash, if any, to or upon the order of the registered
holder of such Rights Certificate. In the event that the Company is obligated to
issue Exchangeable Shares, other securities of the Company, pay cash and/or
distribute other property pursuant to Section 11(a) hereof, the Company will
make all arrangements necessary so that such Exchangeable Shares, other
securities, cash and/or other property are available for distribution by the
Rights Agent, if and when appropriate. The payment of the Purchase Price (as
such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in
cash or by certified or bank check or money order payable to the order of the
Company.
(d) In case the registered holder of any Rights Certificate shall
exercise less than all the Rights evidenced thereby, a new Rights Certificate
evidencing the Rights remaining unexercised shall be issued by the Rights Agent
and delivered to, or upon the order of, the registered holder of such Rights
Certificate, registered in such name or names as may be designated by such
holder, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from
and after the first occurrence of a Section 11(a)(ii) Event, any Rights
beneficially owned by (i) an Acquiring Person or an Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) which becomes a transferee after the Acquiring Person
becomes such, or (iii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) which becomes a transferee prior to or concurrently with
the Acquiring Person becoming such and which receives such Rights pursuant to
either (A) a transfer (whether or not for consideration) from the Acquiring
Person (or any such Associate or Affiliate) to holders of
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equity interests in such Acquiring Person (or any such Associate or Affiliate)
or to any Person with whom the Acquiring Person (or such Associate or Affiliate)
has any continuing agreement, arrangement or understanding regarding the
transferred Rights, Exchangeable Shares or the Company or (B) a transfer which a
majority of the Board of Directors has determined to be part of a plan,
arrangement or understanding which has as a primary purpose or effect the
avoidance of this Section 7(e), shall be null and void without any further
action, and no holder of such Rights shall have any rights whatsoever with
respect to such Rights, whether under any provision of this Agreement or
otherwise. The Company shall use all reasonable efforts to ensure that the
provisions of this Section 7(e) are complied with, but shall have no liability
to any holder of Rights or any other Person as a result of its failure to make
any determination under this Section 7(e) with respect to an Acquiring Person or
its Affiliates, Associates or transferees.
(f) Notwithstanding anything in this Agreement or any Rights
Certificate to the contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered holder upon the
occurrence of any purported exercise by such registered holder unless such
registered holder shall have (i) completed and executed the certificate
following the form of election to purchase set forth on the reverse side of the
Rights Certificate surrendered for such exercise, and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) of the Rights represented by such Rights Certificate or
Affiliates or Associates thereof as the Company shall reasonably request.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHTS CERTIFICATES
All Rights Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to the Company
or any of its agents, be delivered to the Rights Agent for cancellation or in
cancelled form, or, if surrendered to the Rights Agent, shall be cancelled by
it, and no Rights Certificates shall be issued in lieu thereof except as
expressly permitted by this Agreement. The Company shall deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent shall so cancel and
retire, any Rights Certificates acquired by the Company otherwise than upon the
exercise thereof. The Rights Agent shall deliver all cancelled Rights
Certificates to the Company, or shall, at the written request of the Company,
destroy such cancelled Rights Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
SECTION 9. RESERVATION AND AVAILABILITY OF CAPITAL STOCK
(a) The Company shall at all times prior to the Expiration Date
cause to be reserved and kept available, out of its authorized and unissued
Exchangeable Shares, the number of Exchangeable Shares that, as provided in this
Agreement, will be sufficient to permit the exercise in full of all outstanding
Rights. Upon the occurrence of any events resulting in an increase in the
aggregate number of Exchangeable Shares (or other equity securities of the
Company) issuable upon exercise of all outstanding Rights above the number then
reserved, the Company shall make appropriate increases in the number of shares
so reserved.
(b) If the Exchangeable Shares to be issued and delivered upon the
exercise of the Rights may be listed on any stock exchange or automated
quotation system, the Company shall
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during the period from the Distribution Date through the Expiration Date use its
best efforts to cause all securities reserved for such issuance to be listed on
such exchange or system upon official notice of issuance upon such exercise.
(c) The Company shall use its best efforts (i) as soon as
practicable following the occurrence of a Section 11(a)(ii) Event and a
determination by the Company in accordance with Section 11(a)(iii) hereof of the
consideration to be delivered by the Company upon exercise of the Rights or, if
so required by law, as soon as practicable following the Distribution Date (such
date being the "Registration Date"), to file a registration statement on an
appropriate form under the Securities Act, with respect to the securities that
may be acquired upon exercise of the Rights (the "Registration Statement"), (ii)
to cause the Registration Statement to become effective as soon as practicable
after such filing, (iii) to cause the Registration Statement to continue to be
effective (and to include a prospectus complying with the requirements of the
Securities Act) until the earlier of (A) the date as of which the Rights are no
longer exercisable for the securities covered by the Registration Statement, and
(B) the Expiration Date and (iv) to take as soon as practicable following the
Registration Date such action as may be required to ensure that any acquisition
of securities upon exercise of the Rights complies with any applicable state
securities or "blue sky" laws; provided that (i) the terms "registration
statement" or "Registration Statement" include a Canadian Prospectus; and (ii)
any references to a registration statement or Registration Statement having
become effective, or similar references, shall include a Canadian Prospectus for
which a final receipt has been obtained from the relevant Canadian securities
regulatory authorities. The Company may temporarily suspend, for a period of
time not to exceed one hundred twenty (120) days after the date set forth in
clause (i) of the first sentence of this Section 9(c), the exercisability of the
Rights in order to prepare and file such registration statement and permit it to
become effective. Upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension is no
longer in effect. In addition, if the Company shall determine that a
registration statement is required following the Distribution Date, the Company
may temporarily suspend the exercisability of the Rights until such time as a
registration statement has been declared effective. Notwithstanding any
provision of this Agreement to the contrary, the Rights shall not be exercisable
in any jurisdiction if the requisite qualification in such jurisdiction shall
not have been obtained, the exercise thereof shall not be permitted under
applicable law or a registration statement shall not have been declared
effective.
(d) The Company shall take such action as may be necessary to ensure
that all Exchangeable Shares (and, following the occurrence of a Triggering
Event, any other securities that may be delivered upon exercise of Rights) shall
be, at the time of delivery of the certificates or depositary receipts for such
securities (subject to payment of the Purchase Price), duly and validly
authorized and issued and fully paid and non-assessable.
(e) The Company shall pay any documentary, stamp or transfer tax or
charge imposed in connection with the issuance or delivery of the Rights
Certificates or upon the exercise of Rights; provided, however, the Company
shall not be required to pay any such tax or charge imposed in connection with
the issuance or delivery of Exchangeable Shares, or any certificates for such
Exchangeable Shares (or, following the occurrence of a Triggering Event, any
other
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securities, cash or assets, as the case may be) to any Person other than
the registered holder of the Rights Certificates evidencing the Rights
surrendered for exercise. The Company shall not be required to issue or deliver
any certificates for Exchangeable Shares (or, following the occurrence of a
Triggering Event, any other securities, cash or assets, as the case may be) to,
or in a name other than that of, the registered holder of the Rights Certificate
upon the exercise of any Rights represented thereby until any such tax or charge
shall have been paid (any such tax or charge being payable by the holder of such
Rights Certificate at the time of surrender) or until it has been established to
the Company's satisfaction that no such tax or charge is due.
SECTION 10. EXCHANGEABLE SHARE RECORD DATE
Each Person in whose name any certificate for Exchangeable Shares (or,
following the occurrence of a Triggering Event, other securities) is issued upon
the exercise of Rights shall for all purposes be deemed to have become the
holder of record of the Exchangeable Shares (or, following the occurrence of a
Triggering Event, other securities) represented thereby on, and such certificate
shall be dated, the date upon which the Rights Certificate evidencing such
Rights was duly surrendered and payment of the Purchase Price (and any
applicable transfer taxes) was made; provided, however, that if the date of such
surrender and payment is a date upon which the Exchangeable Shares (or,
following the occurrence of a Triggering Event, other securities) transfer books
of the Company are closed, such Person shall be deemed to have become the
registered holder of such securities on, and such certificate shall be dated,
the next succeeding Business Day on which the Exchangeable Shares (or, following
the occurrence of a Triggering Event, other securities) transfer books of the
Company are open and, further provided, however, that if delivery of
Exchangeable Shares (or, following the occurrence of a Triggering Event, other
securities) is delayed pursuant to Section 9(c), such Persons shall be deemed to
have become the registered holders of such Exchangeable Shares (or, following
the occurrence of a Triggering Event, other securities) only when such
Exchangeable Shares (or other securities) first become deliverable. Prior to the
exercise of the Rights evidenced thereby, the holder of a Rights Certificate
shall not be entitled to any rights of a shareholder of the Company with respect
to securities for which the Rights shall be exercisable, including, without
limitation, the right to vote, to receive dividends or other distributions or to
exercise any pre-emptive rights, and shall not be entitled to receive any notice
of any proceedings of the Company, except as provided herein.
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND OF SHARES OR
NUMBER OF RIGHTS
The Purchase Price, the number and kind of securities purchasable upon
exercise of each Right and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section 11.
(a) (i) If any adjustment shall be made pursuant to Section 11(a)(i)
of the Uniphase Rights Agreement (including any such adjustment resulting from
the application of Section 11(f) thereof) or in the event the Company shall at
any time after the Rights Dividend Declaration Date (A) declare a dividend on
the Exchangeable Shares payable in Exchangeable Shares, (B) subdivide the
outstanding Exchangeable Shares, (C) combine the outstanding Exchangeable
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Shares into a smaller number of shares, or (D) issue any shares of its capital
stock in a reclassification of the Exchangeable Shares (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), except as otherwise
provided in this Section 11(a), then, in connection therewith, the number of
Exchangeable Shares or shares of capital stock, as the case may be, issuable on
such date upon exercise of the Rights, shall be proportionately adjusted so that
the holder of any Right exercised after such time shall be entitled to receive,
upon payment of the Purchase Price then in effect, the aggregate number and kind
of Exchangeable Shares or shares of capital stock, as the case may be, which, if
such Right had been exercised immediately prior to such date, such holder would
have owned upon such exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification. If an event occurs which
would require an adjustment under both this Section 11(a)(i) and Section
11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be
in addition to, and shall be made prior to, any adjustment required pursuant to
Section 11(a)(ii) hereof.
(ii) If any adjustment shall be made pursuant to Section 11(a)(ii) of the
Uniphase Rights Agreement, there shall at the same time be made a corresponding
adjustment to the Rights so that each holder of a Right (except as provided
below and in Section 7(c) hereof) shall thereafter have the right to receive,
upon exercise thereof at the current Purchase Price in accordance with the terms
of this Agreement, in lieu of the number of Exchangeable Shares for which such
Rights were theretofore exercisable, such number of Exchangeable Shares as shall
equal the number of Units for which each Uniphase Right is exercisable following
such adjustment multiplied by the ratio of the number of Rights then associated
with each Exchangeable Share and the Purchase Price shall thereafter be adjusted
to the Uniphase Purchase Price in effect under the Uniphase Rights Agreement
following the corresponding adjustment thereunder; provided that the Purchase
Price and the number of Exchangeable Shares issuable upon exercise of a Right
shall be further adjusted as provided in this Agreement to reflect any events
occurring after the date of such adjustment (such Exchangeable Shares being the
"Adjustment Shares").
(iii) In the event that the number of Exchangeable Shares which are authorized
for issuance by the Company but are not outstanding or reserved for issuance for
purposes other than upon exercise of the Rights is not sufficient to permit the
exercise in full of the Rights in accordance with the foregoing subparagraph
(ii) of this Section 11(a), the Company, by the vote of a majority of the Board
of Directors, shall, to the extent permitted by applicable law: (A) determine
the excess (such excess being the "Spread") of (1) the aggregate value of the
Adjustment Shares issuable upon the exercise of a Right (the "Current Value")
over (2) the Purchase Price, and (B) with respect to each Right (other than
Rights which have become void pursuant to Section 7(e)), make adequate provision
to substitute, in whole or in part, for such Adjustment Shares, upon exercise of
a Right and payment of the Purchase Price, (1) cash, (2) a reduction in the
Purchase Price, (3) other equity securities of the Company, (4) debt securities
of the Company, (5) other assets, or (6) any combination of the foregoing,
having an aggregate value which, when added to the value of the Exchangeable
Shares actually issued upon exercise of such Right, shall have an aggregate
value equal to the Current Value (less the amount of any reduction in such
Purchase Price), where such aggregate value has been determined by a majority of
the Board of Directors, after receiving advice from a nationally recognized
investment banking firm; provided, however, that if the Company shall not have
made adequate provision to deliver value pursuant to clause
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(B) above within thirty (30) days following the later of (x) the first
occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's
right of redemption pursuant to Section 23(a) expires (the later of (x) and (y)
being referred to herein as the "Section 11(a)(iii) Trigger Date"), then,
subject to Section 34 hereof, the Company shall be obligated (to the extent
permitted by applicable law) to deliver, upon the surrender for exercise of a
Right and without requiring payment of the Purchase Price, Exchangeable Shares
(to the extent available), and then, if necessary, cash or a combination
thereof, which Exchangeable Shares and/or cash shall have an aggregate value
equal to the Spread. To the extent that the Company determines that some action
need be taken pursuant to the first sentence of this Section 11(a)(iii), the
Company shall provide, subject to Section 7(e) hereof, that such action shall
apply uniformly to all outstanding Rights. For purposes of this Section
11(a)(iii), the value of an Exchangeable Share shall be the current market price
(as determined pursuant to Section 11(d) hereof) per Exchangeable Share, on the
Section 11(a)(iii) Trigger Date.
(b) If any adjustment shall be made pursuant to Section 11(b) of the
Uniphase Rights Agreement (including any such adjustment resulting from the
application of Section 11(f) thereof), then, in connection with the issuance of
rights, options or warrants to all holders of Exchangeable Shares corresponding
to the issuance of rights, options or warrants to the holders of Uniphase Common
Stock which occasioned such adjustment, the Purchase Price to be in effect after
the record date for the issuance of such rights, options or warrants to holders
of Exchangeable Shares shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by the same fraction by which the
"Purchase Price" under Section 11(b) of the Uniphase Rights Agreement is
multiplied to effect the corresponding adjustment thereunder. In the event such
subscription price may be paid by delivery of consideration part or all of which
may be in a form other than cash, the value of such consideration shall be as
determined in good faith by a majority of the Board of Directors, whose
determination shall be described in a statement filed with the Rights Agent and
shall be binding on the Rights Agent and the holders of the Rights. Exchangeable
Shares owned by or held for the account of the Company or any Subsidiary shall
not be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is fixed, and
in the event that such rights or warrants are not so issued, the Purchase Price
shall be adjusted to be the Purchase Price which would then be in effect if such
record date had not been fixed.
(c) If any adjustment shall be made pursuant to Section 11(c) of the
Uniphase Rights Agreement (including any such adjustment resulting from the
application of Section 11(f) thereof), then, in connection with a distribution
of evidences of indebtedness, cash, assets or subscription rights or warrants,
the Purchase Price to be in effect after the record date for the distribution of
such evidences of indebtedness, cash, assets or subscription rights or warrants
to the holders of Exchangeable Shares shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date by the same
fraction by which the "Purchase Price" under Section 11(c) of the Uniphase
Rights Agreement is multiplied to effect the corresponding adjustment
thereunder. Such adjustments shall be made successively whenever such a record
date is fixed, and in the event that such distribution is not so made, the
Purchase Price shall be adjusted to be the Purchase Price which would have been
in effect if such record date had not been fixed.
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(d) For the purpose of any computation hereunder, the "current
market price" per Exchangeable Share on any date shall be deemed to be
equivalent to the "current market price" per share of Uniphase Common Stock as
determined in accordance with Section 11(d) of the Uniphase Rights Agreement.
(e) Anything herein to the contrary notwithstanding, no adjustment
in the Purchase Price shall be required if no adjustment in the Uniphase
Purchase Price is required pursuant to Section 11(e) of the Uniphase Rights
Agreement.
(f) If as a result of an adjustment made pursuant to Section 13(a)
hereof, the holder of any Right thereafter exercised shall become entitled to
receive any shares of capital stock other than Exchangeable Shares, thereafter
the number of such other shares so receivable upon exercise of any Right and the
Purchase Price thereof shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Exchangeable Shares contained in Sections 11(a), (b), (c), (e),
(g), (h), (i), (k), (l), (m) and (p), and the provisions of Sections 7, 9, 10,
13 and 14 hereof with respect to the Exchangeable Shares shall apply on like
terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of Exchangeable Shares (or
other securities or amount of cash or combination thereof) that may be acquired
from time to time hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided
in Section 11(i), upon each adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of Exchangeable Shares
(calculated to the nearest one hundred-thousandth of an Exchangeable Share)
obtained by (i) multiplying (x) the number of Exchangeable Shares covered by a
Right immediately prior to such adjustment by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price and (ii) dividing the
product so obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights, in lieu of any adjustment in
the number of Exchangeable Shares that may be acquired upon the exercise of a
Right. Each of the Rights outstanding after the adjustment in the number of
Rights shall be exercisable for the number of Exchangeable Shares for which a
Right was exercisable immediately prior to such adjustment. Each Right held of
record prior to such adjustment of the number of Rights shall become that number
of Rights (calculated to the nearest one hundredth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of the Purchase Price
by the Purchase Price in effect immediately after adjustment of the Purchase
Price. The Company shall make a public announcement of its election to adjust
the number of Rights, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made. This record date may
be the date on which the Purchase Price is adjusted or any day thereafter, but,
if the Rights
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Certificates have been issued, shall be at least ten days later than the date of
such public announcement. If Rights Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the Company
shall, as promptly as practicable, cause to be distributed to holders of record
of Rights Certificates on such record date Rights Certificates evidencing,
subject to Section 14 hereof, the additional Rights to which such holders shall
be entitled as a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in substitution and
replacement for the Rights Certificates held by such holders prior to the date
of adjustment, and upon surrender thereof, if required by the Company, new
Rights Certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Rights Certificates to be so distributed shall
be issued, executed and countersigned in the manner provided for herein (and may
bear, at the option of the Company, the adjusted Purchase Price) and shall be
registered in the names of the holders of record of Rights Certificates on the
record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price
or the number of Exchangeable Shares issuable upon the exercise of the Rights,
the Rights Certificates theretofore and thereafter issued may continue to
express the Purchase Price per Exchangeable Share and the number of Exchangeable
Shares which were expressed in the initial Rights Certificates issued hereunder.
(k) [INTENTIONALLY LEFT BLANK.]
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuance to the holder of any Right exercised after such record date
of that number of Exchangeable Shares and shares of other capital stock or
securities of the Company, if any, issuable upon such exercise over and above
the number of Exchangeable Shares and shares of other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of
the Purchase Price in effect prior to such adjustment; provided, however, that
the Company shall deliver to such holder a due xxxx or other appropriate
instrument evidencing such holder's right to receive such additional shares
(fractional or otherwise) or securities upon the occurrence of the event
requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that in their good faith judgment a majority of the Board of
Directors shall determine to be advisable in order that any (i) consolidation or
subdivision of the Exchangeable Shares, (ii) issuance wholly for cash of any
Exchangeable Shares at less than the current market price, (iii) issuance wholly
for cash of Exchangeable Shares or securities which by their terms are
convertible into or exchangeable for Exchangeable Shares, (iv) stock dividends
or (v) issuance of rights, options or warrants referred to in this Section 11,
hereafter made by the Company to holders of its Exchangeable Shares, shall not
be taxable to such holders or shall reduce the taxes payable by such holders.
(n) Neither Uniphase nor the Company shall, at any time after the
Distribution Date, (i) consolidate or amalgamate with any other Person (other
than a Subsidiary of Uniphase or the
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Company in a transaction which complies with Section 11(o)), (ii) merge with or
into any other Person (other than a Subsidiary of Uniphase or the Company in a
transaction which complies with Section 11(o)), or (iii) sell or transfer (or
permit any Subsidiary to sell or transfer), in one transaction, or a series of
transactions, assets or earning power aggregating more than 50% of the assets or
earning power, in the case of the Company, of the Company and its Subsidiaries
(taken as a whole) or, in the case of Uniphase, of Uniphase and its Subsidiaries
(taken as a whole), to any other Person or Persons (other than Uniphase or the
Company, as applicable, and/or any of their Subsidiaries in one or more
transactions each of which complies with Section 11(o) hereof), if (x) at the
time of or immediately after such consolidation, merger or sale there are any
rights, warrants or other instruments or securities outstanding or agreements in
effect which would substantially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights or (y) prior to, simultaneously with or
immediately after such consolidation, merger or sale, the Person which
constitutes, or would constitute, the "Principal Party" for purposes of Section
13(a) hereof shall have distributed or otherwise transferred to its shareholders
or other persons holding an equity interest in such Person Rights previously
owned by such Person or any of its Affiliates and Associates; provided, however,
this Section 11(n) shall not affect the ability of any Subsidiary of the Company
or Uniphase (other than the Company) to consolidate or amalgamate with, merge
with or into, or sell or transfer assets or earning power to, any other
Subsidiary of the Company or Uniphase (other than the Company).
(o) After the Distribution Date, the Company shall not, except as
permitted by Section 23, Section 26 or Section 34 hereof, take (or permit any
Subsidiary to take) any action if at the time such action is taken it is
reasonably foreseeable that such action will diminish substantially or otherwise
eliminate the benefits intended to be afforded by the Rights.
(p) Notwithstanding anything in this Agreement to the contrary, in
the event any adjustment is made under Section 11 or 13 of the Uniphase Rights
Agreement and the adjustment to be made under this Section 11 or Section 13
hereof by reason of the events requiring the adjustment under the Uniphase
Rights Agreement does not result in conferring upon the holders of the Rights
the right to acquire additional Exchangeable Shares (or, following a Trigger
Event, other securities, cash or other assets, as the case may be) on terms
substantially the same as the Uniphase Rights confer the right to acquire shares
of Uniphase Common Stock or preferred stock of Uniphase that is essentially the
economic equivalent of Uniphase Common Stock (or, following a Triggering Event,
other securities, cash or other assets, as the case may be) as contemplated by
the recitals to this Agreement, the Board of Directors shall, concurrently with
the adjustment made under the Uniphase Rights Agreement, make such adjustment in
the Purchase Price, the number and kind of shares or other property subject to
purchase upon exercise of each Right and the number of Rights outstanding as
shall be appropriate in the circumstances to achieve the same result.
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES
Whenever an adjustment is made as provided in Section 11 or Section 13
hereof, the Company shall (a) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for such adjustment,
(b) promptly file with the Rights Agent, and with the transfer agent for the
Exchangeable Shares, a copy of such certificate, and (c) mail a
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brief summary thereof to each holder of a Rights Certificate (or, if prior to
the Distribution Date, to each holder of a certificate representing Exchangeable
Shares) in accordance with Section 25 hereof. The Rights Agent shall be fully
protected in relying on any such certificate and on any adjustment therein
contained and shall not be deemed to have knowledge of any such adjustment
unless and until it shall have received such certificate.
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING POWER
(a) In the event that, following the first occurrence of a Section
11(a)(ii) Event, a Section 13 Event shall occur, then, and in each such case,
proper provision shall be made concurrently with the corresponding action
pursuant to Section 13 of the Uniphase Rights Agreement so that: (i) each holder
of a Right (other than Rights which have become void as provided in Section 7(e)
hereof), shall thereafter have the right to receive, upon the exercise thereof
at the then current Purchase Price, such number of validly authorized and
issued, fully paid, non-assessable and freely tradeable shares of Common Stock
of the Principal Party (as such term is hereinafter defined), which shares shall
not be subject to any liens, encumbrances, rights of call or first refusal,
transfer restrictions or other adverse claims, as shall be equal to the number
of shares of such Uniphase Common Stock for which each Uniphase Right is
exercisable following the corresponding adjustment under Section 13(a) of the
Uniphase Rights Agreement multiplied by the ratio of the number of Uniphase
Rights then associated with each share of Uniphase Common Stock to the number of
Rights then associated with each Exchangeable Share and the Purchase Price in
effect under this Agreement shall thereafter be adjusted to the Uniphase
Purchase Price in effect under the Uniphase Rights Agreement following the
corresponding adjustment thereunder; provided, however, that the Purchase Price
and the number of shares of Common Stock of such Principal Party so receivable
upon exercise of a Right shall be further adjusted as provided in this Agreement
to reflect any changes occurring after such adjustment; (ii) such Principal
Party shall thereafter be liable for, and shall assume, by virtue of such
Section 13 Event, all the obligations and duties of the Company pursuant to this
Agreement; (iii) the term "Company" shall thereafter be deemed to refer to such
Principal Party in all respects; (iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient number of shares
of its Common Stock in accordance with Section 9 hereof) in connection with the
consummation of any such transaction as may be necessary to assure that the
provisions of this Agreement shall thereafter be applicable, as nearly as
reasonably may be, in relation to its shares of Common Stock thereafter
deliverable upon the exercise of the Rights to its shares of Common Stock;
provided, however, that, upon the subsequent occurrence of any merger,
consolidation, sale of all or substantially all of the assets, recapitalization,
reclassification of shares, reorganization or other extraordinary transaction in
respect of such Principal Party, each holder of a Right shall thereupon be
entitled to receive, upon exercise of a Right and payment of the Purchase Price,
such cash, shares, rights, warrants and other property which such holder would
have been entitled to receive had it, at the time of such transaction, owned the
shares of Common Stock of the Principal Party purchasable upon the exercise of a
Right, and such Principal Party shall take such steps (including, but not
limited to, reservation of shares of stock) as may be necessary to permit the
subsequent exercise of the Rights in accordance with the terms hereof for such
cash, shares, rights, warrants and other property; and (v) the provisions of
Section 11(a)(ii) hereof shall be of no further effect following the first
occurrence of any Section 13 Event.
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(b) "Principal Party" shall mean the Person designated as such under
the Uniphase Rights Agreement.
(c) The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or amalgamations or sales or other
transfers. In the event that a Section 13 Event shall occur at any time after
the occurrence of a Section 11(a)(ii) Event, the Rights that have not
theretofore been exercised shall thereafter become exercisable in a manner
described in Section 13(a).
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES
(a) The Company shall not be required to issue fractions of Rights
or to distribute Rights Certificates which evidence fractional Rights. In lieu
of issuing such fractional Rights, there shall be paid to the Persons to which
such fractional Rights would otherwise be issuable, an amount in cash equal to
such fraction of the market value of a whole Right. For purposes of this Section
14(a), the market value of a whole Right shall be the closing price of the
Rights for the Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The closing price of the
Rights for any day shall be, if the Rights are listed or admitted to trading on
a stock exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal stock
exchange on which the Rights are listed or admitted to trading or, if the Rights
are not listed or admitted to trading on any securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by Nasdaq or such other
system then in use in the United States or Canada or, if on any such date the
Rights are not quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker making a market in
the Rights selected by a majority of the Board of Directors. If on any such date
no such market maker is making a market in the Rights, the fair value of the
Rights on such date as determined in good faith by a majority of the Board of
Directors shall be used and such determination shall be described in a statement
filed with the Rights Agent and the holders of the Rights and shall be
conclusive for all such persons.
(b) The Company shall not be required to issue fractional
Exchangeable Shares upon exercise of the Rights or to distribute certificates
which evidence such fractional Exchangeable Shares. In lieu of such fractional
Exchangeable Shares, the Company may pay to the registered holders of Rights
Certificates at the time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the then current market price of an
Exchangeable Share on the day of exercise, determined in accordance with Section
11(d) hereof.
(c) The holder of a Right by the acceptance of such Right expressly
waives his right to receive any fractional Rights or any fractional Exchangeable
Shares upon exercise of a Right, except as permitted by this Section 14.
SECTION 15. RIGHTS OF ACTION
All rights of action in respect of this Agreement, other than rights of
action vested in the Rights Agent pursuant to Section 18 hereof, are vested in
the respective registered holders of the
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Rights Certificates (and, prior to the Distribution Date, the registered holders
of certificates representing Exchangeable Shares); and any registered holder of
a Rights Certificate (or, prior to the Distribution Date, of a certificate
representing Exchangeable Shares), without the consent of the Rights Agent or of
the holder of any other Rights Certificate (or, prior to the Distribution Date,
of a certificate representing Exchangeable Shares), may, in his own behalf and
for his own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company or any other Person to enforce, or otherwise act
in respect of, his right to exercise the Rights evidenced by such Rights
Certificate in the manner provided in such Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement and
shall be entitled to specific performance of the obligations hereunder and
injunctive relief against actual or threatened violations of the obligations
hereunder of any Person subject to this Agreement.
SECTION 16. AGREEMENT OF RIGHTS HOLDERS
Every holder of a Right by accepting the same consents and agrees with
the Company and the Rights Agent and with every other holder of a Right that:
(a) to be bound by and subject to the provisions of this Agreement,
as amended from time to time in accordance with the terms hereof, in respect of
all Rights held;
(b) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of Exchangeable Shares;
(c) after the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the office of the Rights Agent designated for such purposes, duly endorsed or
accompanied by a proper instrument of transfer and with the appropriate forms
and certificates duly executed;
(d) subject to Section 6(a) and Section 7(f) hereof, the Company and
the Rights Agent may deem and treat the person in whose name a Rights
Certificate (or, prior to the Distribution Date, the associated Exchangeable
Shares) is registered as the absolute owner thereof and of the Rights evidenced
thereby (notwithstanding any notations of ownership or writing on the Rights
Certificates or the associated Exchangeable Shares certificate made by anyone
other than the Company or the Rights Agent) for all purposes whatsoever, and
neither the Company nor the Rights Agent, subject to the last sentence of
Section 7 (e) hereof, shall be affected by any notice to the contrary;
(e) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any holder
of a Right or any other Person as a result of its inability to perform any of
its obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided,
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however, the Company must use its best efforts to have any such order, decree or
ruling lifted or otherwise overturned as promptly as practicable; and
(f) subject to the provisions of Section 26, without the approval of
any holder of Rights or Exchangeable Shares and upon the sole authority of the
Board of Directors, acting in good faith, this Agreement may be supplemented or
amended from time to time as provided herein;
SECTION 17. RIGHTS CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER
No holder, as such, of any Rights Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of the number of
Exchangeable Shares or any other securities of the Company which may at any time
be issuable on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Rights Certificate be construed to confer
upon the holder of any Rights Certificate, as such, any of the rights of a
shareholder of the Company or any right to vote for the election of directors or
upon any matter submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action, or, except as provided in Section 24
hereof, to receive notice of meetings or other actions affecting shareholders,
or to receive dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by such Rights Certificate shall have been exercised in
accordance with the provisions hereof. This Section 17 shall also apply to
holders, as such, of Rights prior to the issuance of Rights Certificates.
SECTION 18. CONCERNING THE RIGHTS AGENT
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, its reasonable expenses, including reasonable
fees and disbursements of its counsel, incurred in connection with the execution
and administration of this Agreement and the exercise and performance of its
duties hereunder. The Company shall indemnify the Rights Agent for, and hold it
harmless against, any loss, liability, or expense, incurred without negligence,
bad faith or wilful misconduct on the part of the Rights Agent, for anything
done or omitted by the Rights Agent in connection with the acceptance and
administration of this Agreement, including the reasonable costs and expenses of
defending against any claim of liability hereunder. This right to
indemnification shall survive the termination of this Agreement and the
resignation or removal of the Rights Agent.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in connection
with its administration of this Agreement in reliance upon any Rights
Certificate or certificate for Exchangeable Shares or for other securities of
the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement or other paper or document believed by it to be genuine and to have
been signed, executed and, where necessary, verified or acknowledged by the
proper Person or Persons.
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(c) The Company shall inform the Rights Agent in a reasonably timely
manner of events which may materially affect the administration of this
Agreement by the Rights Agent and, at any time upon request, shall provide to
the Rights Agent an incumbency certificate certifying the then current officers
of the Company.
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent shall be a party, or any corporation succeeding to
the security services businesses of the Rights Agent or any successor Rights
Agent, shall be the successor to the Rights Agent under this Agreement without
the execution or filing of any document or any further act on the part of any of
the parties hereto; provided, however, that such corporation would be eligible
for appointment as a successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent shall succeed to the
agency created by this Agreement, any of the Rights Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may adopt the
countersignature of a predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor or in
the name of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates and
in this Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Rights Certificates so countersigned; and in
case at that time any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such Rights Certificates either
in its prior name or in its changed name; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates and
in this Agreement.
SECTION 20. DUTIES OF RIGHTS AGENT
The Rights Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which the Company
and the holders of Rights Certificates, by their acceptance thereof, shall be
bound:
(a) The Rights Agent may retain and consult with legal counsel (who
may be legal counsel for the Company), and the opinion of such counsel shall be
full and complete authorization and protection to the Rights Agent as to any
action taken or omitted by it in good faith and in accordance with such opinion
and the Rights Agent may also consult with such other experts as the Rights
Agent shall consider necessary or appropriate to properly carry out the duties
and obligations imposed under this Agreement, and shall be protected in acting
and relying in good faith on the advice of any such expert.
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(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person, the
determination of "current market price" and the nature and amount of any
adjustment under the Uniphase Rights Agreement corresponding to an adjustment to
be made under this Agreement) be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be specified herein) may be deemed to be
conclusively proved and established by a certificate signed by the Chairman, the
Vice Chairman, the Chief Executive Officer, the President, the Chief Financial
Officer, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company and delivered to the Rights
Agent; provided, however, that so long as any Person is an Acquiring Person
hereunder, such certificate shall be signed and delivered by a majority of the
Board of Directors; and such certificate shall be full authorization to the
Rights Agent for any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
certificates for Exchangeable Shares or in the Rights Certificates or be
required to verify the same (except as to its countersignature thereof), but all
such statements and recitals are and shall be deemed to have been made by the
Company only.
(e) The Rights Agent shall not have any responsibility for the
validity of this Agreement or the execution and delivery hereof (except the due
execution hereof by the Rights Agent) or for the validity or execution of any
Exchangeable Share certificate or of any Rights Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or failure by the Company to satisfy conditions
contained in this Agreement or in any Rights Certificate; nor shall it be
responsible for any adjustment required under the provisions of Section 11 or
Section 13 hereof or for the manner, method or amount of any such adjustment or
the ascertaining of the existence of facts that would require any such
adjustment (except with respect to the exercise of Rights evidenced by Rights
Certificates after receipt by the Rights Agent of the certificate describing any
such adjustment contemplated by Section 12); nor shall it by any act hereunder
be deemed to make any representation or warranty as to the authorization or
reservation of any Exchangeable Shares or any other securities to be issued
pursuant to this Agreement or any Rights Certificate or as to whether any
Exchangeable Shares or any other securities will, when so issued, be validly
authorized and issued, fully paid and non-assessable.
(f) The Company shall perform, execute, acknowledge and deliver or
cause to be performed, executed, acknowledged and delivered all such further
acts, instruments and assurances as may reasonably be required by the Rights
Agent for the performance by the Rights Agent of its duties under this
Agreement.
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(g) The Rights Agent is hereby authorized and directed to accept
written instructions with respect to the performance of its duties hereunder
from the Chairman, the Vice Chairman, the Chief Executive Officer, the
President, the Chief Financial Officer, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer of the Company,
and to apply to such officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or suffered to be taken
by it in good faith in accordance with instructions of any such officer;
provided, however, that so long as any Person is an Acquiring Person hereunder,
the Rights Agent shall accept such instructions and advice only from a majority
of the Board of Directors and shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with such instructions of
a majority of the Board of Directors. Any application by the Rights Agent for
written instructions from the Company may, at the option of the Rights Agent,
set forth in writing any action proposed to be taken or omitted by the Rights
Agent under this Rights Agreement and the date on and/or after which such action
shall be taken or such omission shall be effective. The Rights Agent shall not
be liable for any action taken by, or omission of, the Rights Agent in
accordance with a proposal included in any such application on or after the date
specified in such application (which date shall not be less than five Business
Days after the date any such officer of the Company actually receives such
application, unless any such officer shall have consented in writing to an
earlier date) unless, prior to taking any such action (or the effective date in
the case of an omission), the Rights Agent shall have received written
instructions in response to such application specifying the action to be taken
or omitted.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Company or have a pecuniary interest in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Rights Agent
under this Agreement. Nothing herein shall preclude the Rights Agent from acting
in any other capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent will not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from such act, default, neglect
or misconduct, provided such act, default, neglect or misconduct did not
constitute or such loss was not a result of such attorneys' or agents'
negligence, bad faith or willful misconduct.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of its rights hereunder if
the Rights Agent shall have reasonable grounds for believing that repayment of
such funds or adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either not
been completed, not signed or indicates an
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affirmative response to clause 1 and/or 2 thereof, the Rights Agent shall not
take any further action with respect to such requested exercise or transfer
without first consulting with the Company. If such certificate has been
completed and signed and shows a negative response to clauses 1 and 2 of such
certificate, unless previously instructed otherwise in writing by the Company
(which instructions may impose on the Rights Agent additional ministerial
responsibilities, but no discretionary responsibilities), the Rights Agent may
assume without further inquiry that the Rights Certificate is not owned by a
Person described in Section 7(e) hereof and shall not be charged with any
knowledge to the contrary.
SECTION 21. CHANGE OF RIGHTS AGENT
The Rights Agent or any successor Rights Agent may resign and be
discharged from its duties under this Agreement upon thirty days' prior notice
in writing mailed to the Company, and to the transfer agent of the Exchangeable
Shares, by registered or certified mail, and to the holders of the Rights
Certificates by first-class mail. The Company may remove the Rights Agent or any
successor Rights Agent upon thirty days' prior notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, and to the transfer
agent of the Exchangeable Shares, by registered or certified mail, and to the
holders of the Rights Certificates by first-class mail. If the Rights Agent
shall resign or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the Company shall fail
to make such appointment within a period of thirty days after giving notice of
such removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder of a
Rights Certificate or, prior to the Distribution Date, the holder of a
certificate for the Exchangeable Shares (who shall, with such notice, submit his
Rights Certificate or certificate for the Exchangeable Shares, as the case may
be, for inspection by the Company), then any registered holder of any Rights
Certificate or, prior to the Distribution Date, the holder of a certificate for
the Exchangeable Shares may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether appointed
by the Company or by such a court, shall be (a) a corporation organized and
doing business under the laws of Canada or any Province thereof in good
standing, shall be authorized under applicable laws to exercise corporate trust
or stock transfer powers or (b) an Affiliate of a corporation described in
clause (a). After appointment, the successor Rights Agent shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company shall file notice
thereof in writing with the predecessor Rights Agent and the transfer agent of
the Exchangeable Shares, and mail a notice thereof in writing to the registered
holders of the Rights Certificates (or certificates for Exchangeable Shares
prior to the Distribution Date). Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent.
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SECTION 22. ISSUANCE OF NEW RIGHTS CERTIFICATES
Notwithstanding any of the provisions of this Agreement or the Rights to
the contrary, the Company may, at its option, issue new Rights Certificates
evidencing Rights in such form as may be approved by a majority of the Board of
Directors to reflect any adjustment or change made in accordance with the
provisions of this Agreement in the Purchase Price or the number or kind or
class of shares or other securities or property that may be acquired under the
Rights Certificates. In addition, in connection with the issuance or sale of
Exchangeable Shares following the Distribution Date and prior to the Expiration
Date, the Company (a) shall, with respect to Exchangeable Shares so issued or
sold pursuant to the exercise of stock options or under any employee plan or
arrangement, or upon the exercise, conversion or exchange of securities
hereinafter issued by the Company, and (b) may, in any other case, if deemed
necessary or appropriate by a majority of the Board of Directors, issue Rights
Certificates representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that (i) no such Rights Certificate
shall be issued if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of material adverse
tax consequences to the Company or the Person to whom such Rights Certificate
would be issued, and (ii) no such Rights Certificate shall be issued if, and to
the extent that, appropriate adjustment shall otherwise have been made in lieu
of the issuance thereof.
SECTION 23. REDEMPTION AND TERMINATION
(a) The Company shall, at such time as the Uniphase Rights are
redeemed pursuant to the Uniphase Rights Agreement, redeem all but not less than
all of the then outstanding Rights at a redemption price of U.S.$0.01 per Right,
as such amount may be appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof (such redemption
price being the "Redemption Price"). The Company may, at its option, by action
of a majority of the Board of Directors, pay the Redemption Price either in
Exchangeable Shares (based on the "current market price", as defined in Section
11(d) hereof, of the Exchangeable Shares at the time of redemption) or cash and
the redemption of the Rights shall be effective on the basis and with such
conditions as the Board of Directors may in its sole discretion establish.
(b) Immediately upon the action of Uniphase ordering the redemption
of the Uniphase Rights pursuant to Section 23 of the Uniphase Rights Agreement,
evidence of which shall be filed with the Rights Agent, and without any further
action and without any notice, the right to exercise the Rights will terminate
and the only right thereafter of the holders of Rights shall be to receive the
Redemption Price for each Right so held. The Company shall promptly give public
notice of any such redemption; provided, however, that the failure to give, or
any defect in, any such notice shall not affect the validity of such redemption.
Promptly after the action of a majority of the Board of Directors ordering the
redemption of the Rights, the Company shall give notice of such redemption to
the Rights Agent and the holders of the then outstanding Rights by mailing such
notice to all such holders at each holder's last address as it appears upon the
registry books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Exchangeable Shares. Any notice
which is mailed in the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of redemption will state
the method by which the payment of the Redemption Price will be made.
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SECTION 24. NOTICE OF CERTAIN EVENTS
(a) In the event that (x) Uniphase shall give notice pursuant to
Section 24 of the Uniphase Rights Agreement or (y) the Company shall propose, at
any time after the Distribution Date, (i) to pay any dividend payable in stock
of any class to the holders of Exchangeable Shares or to make any other
distribution to the holders of Exchangeable Shares (other than a regular
quarterly cash dividend paid out of funds legally available therefor), (ii) to
offer to the holders of Exchangeable Shares rights or warrants to subscribe for
or to purchase any additional Exchangeable Shares or shares of stock of any
class or any other securities, rights or options, (iii) to effect any
reclassification of its Exchangeable Shares (other than a reclassification
involving only the subdivision of outstanding Exchangeable Shares), (iv) to
effect any consolidation, amalgamation or merger into or with any other Person
(other than a Subsidiary of the Company in a transaction that complies with
Section 11(o) hereof), or to effect any sale or other transfer (or to permit one
or more of its Subsidiaries to effect any sale or other transfer), in one or
more transactions, of more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any other Person or Persons
(other than Uniphase and/or any of its Subsidiaries (including the Company) in
one or more transactions each of which complies with Section 11(o) hereof), or
(v) to effect the liquidation, dissolution or winding up of the Company, then,
in each such case, the Company shall give to each holder of a Rights Certificate
(or prior to the Distribution Date, to each holder of certificates for the
Exchangeable Shares), to the extent feasible and in accordance with Section 25
hereof, (A) a notice of the action proposed by Uniphase as set forth in the
notice given pursuant to Section 24 of the Uniphase Rights Agreement or (B)
notice of such proposed action by the Company, which shall specify the record
date for the purposes of such stock dividend, distribution of rights or
warrants, or the date on which such reclassification, consolidation,
amalgamation, merger, sale, transfer, liquidation, dissolution, or winding up is
to take place and the date of participation therein by the holders of the
Exchangeable Shares, if any such date is to be fixed. Such notice shall be so
given in the case of any action covered by clause (x) above as soon as possible
but not later than two (2) Business Days after such notice is given by Uniphase,
and in the case of any action covered by clause (y) (i) or (ii) above at least
twenty (20) days prior to the record date for determining holders of the
Exchangeable Shares for purposes of such action, and in the case of any such
other action, at least twenty (20) days prior to the date of the taking of such
proposed action or the date of participation therein by the holders of the
Exchangeable Shares whichever shall be the earlier; provided, however, no such
notice shall be required pursuant to this Section 24, if any Subsidiary of the
Company effects a consolidation, amalgamation or merger with or into, or effects
a sale or other transfer of assets or earnings power to, any other Subsidiary of
the Company.
(b) In case any Triggering Event shall occur, then, in any such
case, the Company shall as soon as practicable thereafter give to each holder of
a Rights Certificate, to the extent feasible and in accordance with Section 25
hereof, a notice of the occurrence of such event, which shall specify the event
and the consequences of the event to holders of Rights under Section 11(a)(ii)
or Section 13 hereof, as the case may be.
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SECTION 25. NOTICES
All notices and other communications provided for hereunder shall,
unless otherwise stated herein, be in writing and mailed or sent or delivered
(including by telecopier), if to the Company, at:
JDS Uniphase Canada Ltd.
c/o JDS Uniphase Corporation
000 Xxxxxxxxx Xxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Senior Vice President, Business Development
Telecopier No.: (000) 000-0000
and if to the Rights Agent, at its address at:
CIBC Mellon Trust Company
000 Xxx Xxxxxx
X.X. Xxx 0
Xxxxxxx, Xxxxxxx
Attention: AVP, Client Services
Telecopier No.: (000) 000-0000
Notices or demands authorized or required by this Agreement to be given
or made by the Company or the Rights Agent to the holder of any Rights
Certificate (or, if prior to the Distribution Date, to the holder of
certificates representing Exchangeable Shares) shall be sufficiently given or
made if sent by first-class mail, postage prepaid, addressed to such holder at
the address of such holder as shown on the registry books of the Company.
SECTION 26. SUPPLEMENTS AND AMENDMENTS
Prior to the Distribution Date and subject to the penultimate sentence
of this Section 26, the Company may and the Rights Agent shall, if the Company
so directs, supplement or amend any provision of this Agreement in any respect
without the approval of any holders of certificates representing Exchangeable
Shares. From and after the Distribution Date and subject to the penultimate
sentence of this Section 26, the Company may and the Rights Agent shall, if the
Company so directs, supplement or amend this Agreement without the approval of
any holders of Rights Certificates in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) to shorten or lengthen any
time period hereunder, or (iv) to change or supplement the provisions hereunder
in any manner which the Company may deem necessary or desirable and which shall
not adversely affect the interests of the holders of Rights Certificates (other
than an Acquiring Person or an Affiliate or Associate of an Acquiring Person);
provided, however, that this Agreement may not be supplemented or amended to
lengthen, pursuant to clause (iii) of this
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sentence, (A) subject to Section 28 hereof, a time period relating to when the
Rights may be redeemed at such time as the Rights are not then redeemable, or
(B) any other time period unless such lengthening is for the purpose of
protecting, enhancing or clarifying the rights of, and/or the benefits to, the
holders of Rights. Upon the delivery of a certificate from an appropriate
officer of the Company or, so long as any Person is an Acquiring Person
hereunder, from the majority of the Board of Directors which states that the
proposed supplement or amendment is in compliance with the terms of this Section
26, the Rights Agent shall execute such supplement or amendment. At any time and
subject to the penultimate sentence of this Section 26, the Company and the
Rights Agent shall supplement or amend any provision of this Agreement without
the approval of any holders of Rights Certificates in order to ensure that the
Rights provide rights to acquire additional Exchangeable Shares (or in certain
circumstances other securities) on terms substantially the same as the Uniphase
Rights confer the right to acquire shares of preferred stock (or other
securities) of Uniphase that are essentially the economic equivalent of Uniphase
Common Stock (or in certain circumstances other securities). Notwithstanding
anything contained in this Agreement to the contrary, (i) no supplement or
amendment shall be made which changes the Redemption Price, the Purchase Price,
the Expiration Date or the number of Exchangeable Shares or other securities or
assets for which a Right is exercisable without the approval of a majority of
the Board of Directors, and (ii) following the occurrence of a Section 11(a)(ii)
Event, no supplement or amendment whatsoever shall be made without the approval
of the Board of Directors. Prior to the Distribution Date, the interests of the
holders of Rights shall be deemed coincident with the interests of the holders
of Exchangeable Shares.
SECTION 27. SUCCESSORS
All the covenants and provisions of this Agreement by or for the benefit
of the Company or the Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
SECTION 28. DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS, ETC.
Except as otherwise specifically provided herein, the Board of Directors
of the Company shall have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically granted to the
Board or to the Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the right and
power (i) to interpret the provisions of this Agreement, and (ii) to make all
determinations deemed necessary or advisable for the administration of this
Agreement. All such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by a majority of the Board of Directors in
good faith shall (x) be final, conclusive and binding on the Company, the Rights
Agent, the holders of the Rights and all other parties, and (y) not subject the
Board or any member thereof to any liability to the holders of the Rights.
SECTION 29. BENEFITS OF THIS AGREEMENT
Nothing in this Agreement shall be construed to give to any Person other
than the Company, the Rights Agent and the registered holders of the Rights
Certificates (and, prior to the
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Distribution Date, registered holders of Exchangeable Shares) any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Rights Certificates (and, prior to the Distribution
Date, registered holders of Exchangeable Shares).
SECTION 30. SEVERABILITY
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated; provided, however, that
notwithstanding anything in this Agreement to the contrary, if any such term,
provision, covenant or restriction is held by such court or authority to be
invalid, void or unenforceable and a majority of the Board of Directors
determines in its good faith judgment that severing the invalid language from
this Agreement would adversely affect the purpose or effect of this Agreement
and the Rights shall not then be redeemable, the right of redemption set forth
in Section 23 hereof shall be reinstated and shall not expire until the Close of
Business on the tenth Business Day following the date of such determination by a
majority of the Board of Directors.
SECTION 31. GOVERNING LAW
This Agreement, each Right and each Rights Certificate issued hereunder
shall be governed by, and construed in accordance with, the laws of the State of
Delaware applicable to contracts executed in and to be performed entirely in
such State.
SECTION 32. COUNTERPARTS
This Agreement may be executed (including by telecopier) in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original, but all of which taken
together shall constitute one and the same instrument.
SECTION 33. DESCRIPTIVE HEADINGS
The headings contained in this Agreement are for descriptive purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
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SECTION 34. EXCHANGE
(a) (i) The Company shall, at such time as the Uniphase Rights are
exchanged pursuant to Section 34(a)(i) of the Uniphase Rights Agreement,
exchange all or part of the then outstanding and exercisable Rights (which shall
not include Rights that have become void pursuant to Section 7(e) hereof) for
Exchangeable Shares at an exchange ratio of one Exchangeable Share per Right, as
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange ratio being the
"Section 34(a)(i) Exchange Ratio").
(ii) The Company shall, at such time as the Uniphase Rights are exchanged
pursuant to Section 34(a)(ii) of the Uniphase Rights Agreement, exchange all or
part of the then outstanding and exercisable Rights (which shall not include
Rights that have become void pursuant to Section 7(e)) for Exchangeable Shares
at an exchange ratio equal to the Section 34(a)(ii) Exchange Ratio (as defined
in the Uniphase Rights Agreement), as appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the date
hereof. The "Adjustment Spread" shall equal (x) the aggregate market price on
the date of such event of the number of Adjustment Shares determined pursuant to
Section 11(a)(ii), minus (y) the Purchase Price.
(b) Immediately upon the exchange of any Rights pursuant to Section
34(a) and without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right thereafter of a holder
of such Rights shall be to receive that number of Exchangeable Shares, equal to
the number of such Rights held by such holder multiplied by the Section 34(a)(i)
Exchange Ratio or the Section 34(a)(ii) Exchange Ratio, as the case may be. The
Company shall promptly give notice of any such exchange; provided, however, that
the failure to give, or any defect in, such notice shall not affect the validity
of such exchange. The Company promptly shall mail a notice of any such exchange
to all of the holders of such Rights at their last addresses as they appear upon
the registry books of the Rights Agent. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange shall state the method by which the
exchange of Exchangeable Shares for Rights will be effected and, in the event of
any partial exchange, the number of Rights which will be exchanged. Any partial
exchange shall be effected pro rata based on the number of Rights (other than
Rights which have become void pursuant to the provisions of Section 7(e) hereof)
held by each holder of Rights.
(c) In the event that the number of Exchangeable Shares which are
authorized for issuance by the Company but not outstanding or reserved for
issuance for purposes other than upon exercise of the Rights are not sufficient
to permit any exchange of Rights as contemplated in accordance with this Section
34, the Company, upon a resolution of a majority of the Board of Directors,
shall take all such action as may be necessary to authorize additional
Exchangeable Shares for issuance upon exchange of the Rights or make adequate
provision to substitute, in whole or in part, (1) cash, (2) other equity
securities of the Company, (3) debt securities of the Company, (4) other assets,
or (5) any combination of the foregoing, having an aggregate value for each
Right to be exchanged equal to the Adjustment Spread where such aggregate value
has been determined by a majority of the Board of Directors.
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(d) The Company shall not be required to issue fractions of
Exchangeable Shares or to distribute certificates which evidence fractional
Exchangeable Shares. In lieu of issuing fractional Exchangeable Shares, the
Company may pay to the registered holders of Rights Certificates at the time
such Rights are exchanged as herein provided an amount in cash equal to the same
fraction of the current market price (determined pursuant to Section 11(d)
hereof) of one Exchangeable Share immediately prior to the date of exchange
pursuant to this Section 34.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the date first above written.
JDS UNIPHASE CANADA LTD.
By:
---------------------------------------
Name:
Title:
CIBC MELLON TRUST COMPANY
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
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EXHIBIT A
[FORM OF RIGHTS CERTIFICATE]
Certificate No. ______ ______ Rights
NOT EXERCISABLE AFTER THE EXPIRATION DATE (AS DEFINED IN THE RIGHTS
AGREEMENT REFERRED TO BELOW). THE RIGHTS ARE SUBJECT TO REDEMPTION OR
EXCHANGE, AT THE OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES (SPECIFIED IN THE RIGHTS
AGREEMENT), RIGHTS BENEFICIALLY OWNED BY ACQUIRING PERSONS (AS DEFINED
IN THE RIGHTS AGREEMENT) OR ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY
BECOME NULL AND VOID.
RIGHTS CERTIFICATE
JDS UNIPHASE CANADA LTD.
This certifies that ______________________, or registered assigns, is
the registered holder of the number of Rights set forth above, each of which
entitles the registered holder thereof, subject to the terms and conditions of
the Rights Agreement dated as of June 30, 1999, as amended from time to time
(the "Rights Agreement"; terms defined therein are used herein with the same
meaning unless otherwise defined herein) between JDS Uniphase Canada Ltd., a
corporation incorporated under the laws of Canada (the "Company"), and CIBC
Mellon Trust Company, as Rights Agent (which term shall include any successor
Rights Agent under the Rights Agreement), to purchase from the Company at any
time after the Distribution Date and prior to the Expiration Date at the office
of the Rights Agent, one Exchangeable Share of the Company at the Purchase Price
initially of U.S.$270 per Exchangeable Share, upon presentation and surrender of
this Rights Certificate with the Election to Purchase and related certificate
duly executed. The number of Rights evidenced by this Rights Certificate (and
the number of shares which may be purchased upon exercise thereof) set forth
above, and the Purchase Price per Unit set forth above, and the Purchase Price
per share set forth above, are the number and Purchase Price as of June 30, 1999
based on the Exchangeable Shares as constituted at such date.
Upon the occurrence of Section 11(a)(ii) Event, if the Rights evidenced
by this Rights Certificate are beneficially owned by an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person or, under certain
circumstances described in the Rights Agreement, a transferee of any such
Acquiring Person, Associate or Affiliate, such Rights shall become null and void
and no holder hereof shall have any right with respect to such rights from and
after the occurrence of such Section 11(a)(ii) Event.
In certain circumstances described in the Rights Agreement, the Rights evidenced
hereby may entitle the registered holder thereof to purchase capital stock of an
entity other than the Company or receive Exchangeable Shares, cash or other
assets, all as provided in the Rights
34
Agreement. As provided in the Rights Agreement, the Purchase Price and the
number and kind of Exchangeable Shares or other securities, which may be
purchased upon the exercise of the Rights evidenced by this Rights Certificate
are subject to modification and adjustment upon the happening of certain events,
including a Triggering Event.
This Rights Certificate is subject to all of the terms and conditions of
the Rights Agreement, which terms and conditions are hereby incorporated herein
by reference and made a part hereof and to which Rights Agreement reference is
hereby made for a full description of the rights, limitations of rights,
obligations, duties and immunities hereunder of the Rights Agent, the Company
and the holders of the Rights Certificates, which limitations of rights include
the temporary suspension of the exercisability of such Rights under the specific
circumstances set forth in the Rights Agreement. Copies of the Rights Agreement
are on file at the principal office of the Rights Agent and are available from
the Rights Agent upon written request.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the office of the Rights Agent designated for such purpose, may be
exchanged for another Rights Certificate or Rights Certificates of like tenor
and date evidencing an aggregate number of Rights equal to the aggregate number
of Rights evidenced by the Rights Certificate or Rights Certificates
surrendered. If this Rights Certificate shall be exercised in part, the
registered holder shall be entitled to receive, upon surrender hereof, another
Rights Certificate or Rights Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate may be redeemed by the Company under certain circumstances
at its option at a redemption price of U.S.$0.01 per Right, at any time prior to
the earlier of the close of business on (i) the tenth day following the Stock
Acquisition Date (as such time period may be extended pursuant to the Rights
Agreement), other than a Stock Acquisition Date that occurs as a result of a
Qualifying Offer, or (ii) the Final Expiration Date.
No fractional Exchangeable Shares will be issued upon the exercise of
any Right or Rights evidenced hereby, but in lieu thereof a cash payment will be
made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of Exchangeable
Shares or of any other securities which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
shareholder of the Company or any right to vote for the election of directors or
upon any matter submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting (except as provided in the Rights Agreement), or to
receive dividends of subscription rights, or otherwise, until the Rights
evidenced by this Rights Certificate shall have been exercised as provided in
the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
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35
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal. Dated as of _____, __________
JDS UNIPHASE CANADA LTD.
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Secretary
Countersigned:
CIBC MELLON TRUST COMPANY
---------------------------------
Authorized Signature:
A-3
36
[FORM OF REVERSE SIDE OF RIGHTS CERTIFICATE]
FORM OF ASSIGNMENT
(To be executed by the registered holder if
such holder desires to transfer
the Rights Certificate.)
FOR VALUE RECEIVED ____________________ hereby sells, assigns and transfers
unto:___________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________________
________________________________________________________________________________
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint Attorney, to transfer the
within Rights Certificate on the books of the within-named Company, with full
power of substitution.
Dated:
------------------------------
Signature
Signature Guaranteed:
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37
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
pursuant to the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from
any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: ______________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
Signatures must be guaranteed, if presented for transfer in Canada, by a
Canadian chartered bank, major Canadian trust company, or a member of the Stock
Transfer Agents Medallion Program ("STAMP"). If presented for transfer in the
United States, signatures must be guaranteed by an approved eligible financial
institution acceptable to the Rights Agent in its sole discretion or by a
participant in the Securities Transfer Agents Medallion Program, the Stock
Exchange Medallion Program or the New York Stock Exchange Medallion Program.
In the event the certification set forth above is not completed, the
Company will deem the beneficial owner of the Rights evidenced by this Rights
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement) and, in the case of an Assignment, will affix a
legend to that effect on any Rights Certificates issued in exchange for this
Rights Certificate.
A-5
38
FORM OF ELECTION TO PURCHASE
(To be executed if the registered holder
desires to exercise Rights represented
by the Rights Certificate.)
TO: JDS UNIPHASE CANADA LTD.
The undersigned hereby irrevocably elects to exercise
____________________ Rights represented by this Rights Certificate to purchase
the Exchangeable Shares issuable upon the exercise of the Rights (or such other
securities of the Company or of any other person or other property which may be
issuable upon the exercise of the Rights) and requests that certificates for
such Exchangeable Shares be issued in the name of and delivered to
________________________________________________________________________________
(Please print name and address)
(Please insert social security or other identifying number).____________________
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
________________________________________________________________________________
(Please print name and address)
(Please insert social security or other identifying number).____________________
Dated:
_______________________________
Signature
A-6
39
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes in
(1) and (2) that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are
not beneficially owned by an Acquiring Person or an Affiliate or an Associate
thereof (as defined in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned,
the undersigned [ ] did [ ] did not acquire the Rights evidenced by this Rights
Certificate from any person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate thereof.
Dated:
____________________________
Signature
Signature Guaranteed:
NOTICE
The signature in the foregoing Election to Purchase and Certificate must
conform to the name as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
Signatures must be guaranteed, if presented for transfer in Canada, by a
Canadian chartered bank, major Canadian trust company, or a member of the Stock
Transfer Agents Medallion Program ("STAMP"). If presented for transfer in the
United States, signatures must be guaranteed by an approved eligible financial
institution acceptable to the Rights Agent in its sole discretion or by a
participant in the Securities Transfer Agents Medallion Program, the Stock
Exchange Medallion Program or the New York Stock Exchange Medallion Program.
In the event the certification set forth above is not completed, the
Company will deem the beneficial owner of the Rights evidenced by this Rights
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement) and, in the case of an Assignment, will affix a
legend to that effect on any Rights Certificates issued in exchange for this
Rights Certificate.
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