EXHIBIT 10.8
AGREEMENT REGARDING CHANGE OF CONTROL
This Agreement is entered into effective July 6, 1999 by and between JDS
Uniphase Inc. (the "Company"), and Xxxxx Xxxxxx ("Executive").
RECITALS
Executive is employed by the Company and is a valued officer of the
Company. As an inducement to Executive to remain in the employ of the Company,
the Company wishes to provide for certain rights in favor of Executive to
exercise options to purchase shares of Common Stock (as defined below) held by
Executive upon a Change of Control (as defined below) of the Company upon the
terms herein provided.
NOW THEREFORE, in consideration of the foregoing and the mutual promises
herein contained, the parties agree as follows:
AGREEMENT
SECTION
1. DEFINITIONS
For purposes of this Agreement, the following definitions shall apply:
"Change of Control" means the occurrence of one or more of the following
with respect to the Company or with respect to JDS Uniphase Corporation:
(i) the acquisition by any person (or related group of persons), whether
by tender or exchange offer made directly to the stockholders, open
market purchases or any other transaction or series of transactions, of
shares of the Company or of Common Stock, as the case may be, possessing
sufficient voting power in the aggregate to elect an absolute majority
of the members of the Board of Directors of the Company or of JDS
Uniphase Corporation, as the case may be;
(ii) a merger or consolidation in which the Company or JDS Uniphase
Corporation, as the case may be, is not the surviving entity, except for
a transaction in which securities representing more than fifty percent
(50%) of the total combined voting power of the surviving entity are
held by persons who held shares of the Company or Common Stock, as the
case may be, immediately prior to such merger or consolidation and the
members of the Board of Directors of the Company or of JDS Uniphase
Corporation, as the case may be, immediately before such merger or
consolidation constitute a majority of the
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Board of Directors of the Company or of JDS Uniphase Corporation, as the
case may be, immediately after such merger or consolidation;
(iii) any reverse merger in which the Company or JDS Uniphase
Corporation, as the case may be, is the surviving entity but in which
either securities representing more than fifty percent (50%) of the
total combined voting power of the outstanding securities of the Company
or of JDS Uniphase Corporation, as the case may be, are transferred or
issued to holders different from those who held such securities
immediately prior to such merger or those members of the Board of
Directors of the Company or of JDS Uniphase Corporation, as the case may
be, immediately before such merger do not constitute a majority of the
Board of Directors immediately after such merger; or
(iv) the sale, transfer or other disposition of all or substantially all
of the assets of the Company or of JDS Uniphase Corporation, as the case
may be;.
but any such event in respect of the Company that does not result in any
change in the beneficial ownership of the Company by JDS Uniphase Corporation is
deemed not to be a Change of Control.
"Closing Date" means the date of the first closing of the transaction
constituting a Change of Control.
"Common Stock" means the aggregate of:
(a) the issued and outstanding $.001 par value, common stock of JDS
Uniphase Corporation; and,
(b) the issued and outstanding exchangeable shares in the capital of
3506967 Canada Inc. (the name of which has been or will be changed to
JDS Uniphase Canada Ltd.), an indirect subsidiary of JDS Uniphase
Corporation;
"Executive's Stock Options" shall mean any options to purchase Common
Stock held by Executive that have been issued to Executive by the Company or by
JDS Uniphase Corporation prior to a Closing Date.
SECTION 2. ACCELERATION OF OPTIONS ON A CHANGE IN CONTROL
The Company agrees that the right of Executive to exercise the
Executive's Stock Options shall be accelerated as of the Closing Date of a
Change of Control so that Executive's Stock Options shall become fully
exercisable as of the Closing Date as to all shares of the Common Stock subject
thereto and, subject to the terms of this Section 2, remain exercisable
thereafter in accordance with their terms. The foregoing acceleration of the
right of Executive to exercise Executive's Stock Options shall apply
notwithstanding any contrary terms in any stock option plan pursuant to which
such Options are granted or any stock option agreement executed by the Company
or by JDS Uniphase Corporation with respect to Executive's Stock Options,
including,
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without limitation, any stock option plan terms that are adopted or any stock
option agreement executed after the date hereof. Such acceleration of the
exercisability of the Executive's Stock Options shall apply and occur without
further action on the part of the Company, its Board of Directors, stockholders,
Executive or any other party. As a condition to an acceleration of the
Executive's Stock Options as provided in this Section 2, Executive agrees that
Executive's Stock Options shall terminate as of the Closing Date to the extent
unexercised as of such Closing Date if the terms and conditions of such Change
of Control require that all employee stock options terminate as of such Closing
Date. In no event shall this Section 2 be interpreted to cause the Executive's
Stock Options to be exercisable for a greater number of shares of Common Stock
than were subject to the Executive's Stock Options immediately prior to the
Closing Date.
SECTION 3. NO EMPLOYMENT AGREEMENT
Except as previously herein provided, Executive and the Company each
acknowledge and agree that this Agreement does not provide for the terms and
conditions of Executive's employment with the Company and does not require or
obligate Executive to provide services to the Company or the Company to continue
to employ Executive.
SECTION 4. NOTICES
All notices or other communications required or permitted hereunder
shall be made in writing and shall be deemed to have been duly given if
delivered by hand or mailed, postage prepaid, by certified or registered mail,
return receipt requested, and addressed to the Company at:
JDS Uniphase Inc.
000 Xxxx Xxxx Xxxx Xxxx
Xxxxxx Xxxxxxx X0X 0X0
or to the Executive at:
(home address of Executive)
Notice of change of address shall be effective only when done in accordance with
this Section.
SECTION 5. SUCCESSORS
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
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SECTION 6. ONTARIO LAW
The laws of the Province of Ontario shall govern the interpretation,
performance and enforcement of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
JDS UNIPHASE INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
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Title: Vice President
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/s/ Witness /s/ Xxxxx Xxxxxx
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Witness Xxxxx Xxxxxx
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