EXHIBIT 10.17
EXECUTION COPY
E-TEK DYNAMICS, INC.
REGISTRATION AGREEMENT
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THIS AGREEMENT is made as of July 23, 1997, by and among E-Tek Dynamics,
Inc., a California corporation (the "Company"), the parties listed as Investors
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on the Schedule of Investors attached hereto (collectively, the "Investors") and
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Xxxxxxx Xxxxx Pan, Xxxx Xxxx Pan and the J.J. & Xxxxxxx Pan Revocable Trust
(collectively, the "Founders").
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WHEREAS, the parties to this Agreement are parties to a Recapitalization
Agreement dated as of June 27, 1997 (as the same may be amended and modified
from time to time in accordance with its terms, the "Recapitalization
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Agreement");
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WHEREAS, in order to induce the Investors to enter into the
Recapitalization Agreement, the Company has agreed to provide the registration
rights set forth in this Agreement;
WHEREAS, the execution and delivery of this Agreement is a condition to the
Closing under the Recapitalization Agreement; and
WHEREAS, unless otherwise provided in this Agreement, capitalized terms
used herein shall have the meanings set forth in paragraph 8 hereof.
NOW, THEREFORE, the parties hereto agree as follows:
1. Demand Registrations.
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(a) Requests for Registration. At any time after the Closing under the
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Recapitalization Agreement, the holders of a majority of the Investor
Registrable Securities may request registration under the Securities Act of all
or any portion of their Registrable Securities on Form S-1 or any similar long-
form registration ("Long-Form Registrations") or Form S-2 or S-3 or any similar
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short-form registration ("Short-Form Registrations"), if available. All
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registrations requested pursuant to this paragraph 1(a) are referred to herein
as "Demand Registrations". Each request for a Demand Registration shall specify
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the approximate number of Registrable Securities requested to be registered and
the anticipated per share price range for such offering. Within ten days after
receipt of a request for a Demand Registration, the Company shall give written
notice of such requested registration to all other holders of Registrable
Securities and, subject to paragraph 1(d) below, shall include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 20 days after the receipt
of the Company's notice.
(b) Long-Form Registrations. The holders of Investor Registrable
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Securities shall be entitled to request (i) three Long-Form Registrations in
which the Company shall pay all Registration Expenses ("Company-paid Long-Form
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Registrations") and (ii) an unlimited number of Long-Form Registrations in which
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the holders of Investor Registrable Securities shall pay their
share of the Registration Expenses as set forth in paragraph 5 hereof. A
registration shall not count as one of the permitted Company-paid Long-Form
Registrations until it has become effective, and neither the last nor any
subsequent Company-paid Long-Form Registration shall count as one of the
permitted Company-paid Long-Form Registrations unless the holders of Investor
Registrable Securities are able to register and sell at least 90% of the
Investor Registrable Securities requested to be included in such registration;
provided that in any event the Company shall pay all Registration Expenses in
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connection with any registration initiated as a Company-paid Long-Form
Registration whether or not it has become effective and whether or not such
registration has counted as one of the permitted Company-paid Long-Form
Registrations hereunder.
(c) Short-Form Registrations. In addition to the Long-Form Registrations
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provided pursuant to paragraph 1(b) above, the holders of Investor Registrable
Securities shall be entitled to request an unlimited number of Short-Form
Registrations in which the Company shall pay all Registration Expenses. Demand
Registrations shall be Short-Form Registrations whenever the Company is
permitted to use any applicable short form. After the Company has become subject
to the reporting requirements of the Securities Exchange Act, the Company shall
use its best efforts to make Short-Form Registrations on Form S-3 available for
the sale of Registrable Securities. The Company shall pay all Registration
Expenses in connection with any registration initiated as a Short-Form
Registration whether or not it has become effective.
(d) Priority on Demand Registrations. The Company shall not include in any
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Demand Registration any securities which are not Registrable Securities without
the prior written consent of the holders of a majority of the Investor
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold in an orderly manner in such offering within a price range
acceptable to the holders of a majority of the Investor Registrable Securities
initially requesting registration, the Company shall include in such
registration (i) first, the Registrable Securities requested to be included in
such registration, pro rata among the holders of such Registrable Securities on
the basis of the number of Registrable Securities owned by each such holder and
(ii) second, any other securities requested to be included in such registration;
provided that, notwithstanding the foregoing, in connection with the first two
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registrations of Investor Registrable Securities pursuant to this Agreement
(whether pursuant to a Demand Registration or a Piggyback Registration), if any
such registration is a Demand Registration, the Company shall include (i) first,
the Investor Registrable Securities requested to be included in such
registration, pro rata among the holders of such Investor Registrable Securities
on the basis of the number of Investor Registrable Securities owned by each such
holder, (ii) second, the Founder Registrable Securities requested to be included
in such registration, pro rata among the holders of such Founder Registrable
Securities on the basis of the number of Founder Registrable Securities owned by
each such holder and (iii) third, any other securities requested to be included
in such registration (it being understood, however, that neither the last nor
any subsequent registration subject to this proviso shall count as one of the
two registrations subject to this proviso unless the holders of Investor
Registrable Securities are able to register and sell at least 75% of the
Investor Registrable Securities requested to be included in such registration).
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(e) Expenses. Any Persons other than holders of Registrable Securities who
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participate in Demand Registrations which are not at the Company's expense must
pay their share of the Registration Expenses as provided in paragraph 5 hereof.
(f) Selection of Underwriters. The holders of a majority of the Investor
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Registrable Securities included in any Demand Registration shall have the right
to select the investment banker(s) and manager(s) to administer the offering.
(g) Other Registration Rights. Except as provided in this Agreement, the
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Company shall not grant to any Persons the right to request the Company to
register any equity securities of the Company (whether as a demand registration
or piggyback registration), or any securities convertible or exchangeable into
or exercisable for such securities, without the prior written consent of the
holders of a majority of the Investor Registrable Securities.
2. Piggyback Registrations.
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(a) Right to Piggyback. Whenever the Company proposes to register any of
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its securities under the Securities Act (other than pursuant to a Demand
Registration or a registration on Form S-4 or S-8 or any successor or similar
forms) and the registration form to be used may be used for the registration of
Registrable Securities (a "Piggyback Registration"), the Company shall give
prompt written notice to all holders of Registrable Securities of its intention
to effect such a registration and, subject to paragraphs 2(c) and 2(d) below,
shall include in such registration all Registrable Securities with respect to
which the Company has received written requests for inclusion therein within 20
days after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
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Registrable Securities shall be paid by the Company in all Piggyback
Registrations whether or not such registration is consummated.
(c) Priority on Primary Registrations. If a Piggyback Registration is an
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underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the marketability
of the offering, the Company shall include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, the Registrable Securities
requested to be included in such registration, pro rata among the holders of
such Registrable Securities on the basis of the number of Registrable Securities
owned by each such holder and (iii) third, any other securities requested to be
included in such registration; provided that, notwithstanding the foregoing, in
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connection with the first two registrations of Investor Registrable Securities
pursuant to this Agreement (whether pursuant to a Demand Registration or a
Piggyback Registration), if any such registration is to be made in connection
with an underwritten primary registration on behalf of the Company, the Company
shall include (i) first, the securities the Company proposes to sell, (ii)
second, the Investor Registrable Securities requested to be included in such
registration, pro rata among the holders of such Investor Registrable Securities
on the basis of the number of Investor Registrable Securities owned by each such
holder, (iii) third, the Founder Registrable Securities requested to be included
in such registration, pro rata among the holders of such Founder Registrable
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Securities on the basis of the number of Founder Registrable Securities owned by
each such holder and (iv) fourth, any other securities requested to be included
in such registration (it being understood, however, that neither the last nor
any subsequent registration subject to this proviso shall count as one of the
two registrations subject to this proviso unless the holders of Investor
Registrable Securities are able to register and sell at least 75% of the
Investor Registrable Securities requested to be included in such registration).
(d) Priority on Secondary Registrations. If a Piggyback Registration is an
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underwritten secondary registration on behalf of holders of the Company's
securities (other than the holders of Investor Registrable Securities), and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of the offering, the Company shall include in such registration
(i) first, the securities requested to be included therein by the holders
requesting such registration and the Registrable Securities requested to be
included in such registration, pro rata among the holders of such securities on
the basis of the number of securities owned by each such holder and (ii) second,
any other securities requested to be included in such registration; provided
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that, notwithstanding the foregoing, in connection with the first two
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registrations of Investor Registrable Securities pursuant to this Agreement
(whether pursuant to a Demand Registration or a Piggyback Registration), if any
such registration is to be made in connection with an underwritten secondary
registration on behalf of holders of the Company's securities (other than the
holders of Investor Registrable Securities), the Company shall include (i)
first, the securities requested to be included therein by the holders requesting
such registration and the Investor Registrable Securities requested to be
included in such registration, pro rata among the holders of such securities on
the basis of the number of securities owned by each such holder, (ii) second,
the Founder Registrable Securities requested to be included in such
registration, pro rata among the holders of such Founder Registrable Securities
on the basis of the number of Founder Registrable Securities owned by each such
holder and (iii) third, any other securities requested to be included in such
registration (it being understood, however, that neither the last nor any
subsequent registration subject to this proviso shall count as one of the two
registrations subject to this proviso unless the holders of Investor Registrable
Securities are able to register and sell at least 75% of the Investor
Registrable Securities requested to be included in such registration).
(e) Withdrawal by the Company. If, at any time after giving written notice
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of its intention to register any of its securities as set forth in paragraph
2(a) and prior to the effective date of such registration statement filed in
connection with such registration, the Company's board of directors shall
determine in its good faith judgment for any reason not to register such
securities, the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and thereupon shall be
relieved of its obligation to register any Registrable Securities in connection
with such registration (but not from its obligation to pay the Registration
Expenses in connection therewith as provided herein).
3. Holdback Agreements.
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(a) No holder of Registrable Securities shall effect any public sale or
distribution (including sales pursuant to Rule 144) of equity securities of the
Company, or any securities
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convertible into or exchangeable or exercisable for such securities, during the
seven days prior to the date of any proposed registered public offering of the
Company's Common Stock as set forth in a written notice delivered to such holder
at least seven days prior to such date (or of which such holder is otherwise
aware at least seven days prior to such date) and the 180-day period beginning
on the effective date of the Company's initial public offering of its Common
Stock under the Securities Act or during the seven days prior to the date of any
proposed registered public offering of the Company's Common Stock as set forth
in a written notice delivered to such holder at least seven days prior to such
date (or of which such holder is otherwise aware at least seven days prior to
such date) and the 90-day period beginning on the effective date of (A) the next
registered public offering of the Company's Common Stock and (B) any
underwritten Demand Registration or any underwritten Piggyback Registration in
which Registrable Securities are included (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree.
(b) The Company (i) shall not effect any public sale or distribution of
its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 180-day
period beginning on the effective date of the Company's initial public offering
of its Common Stock under the Securities Act or during the seven days prior to
and the 90-day period beginning on the effective date of (A) the next registered
public offering of the Company's Common Stock and (B) any underwritten Demand
Registration or any underwritten Piggyback Registration in which Registrable
Securities are included (except as part of such underwritten registration or
pursuant to registrations on Form S-8 or any successor or similar form), unless
the underwriters managing the registered public offering otherwise agree, and
(ii) shall cause each holder of at least 2% of its Common Stock, or any
securities convertible into or exchangeable or exercisable for Common Stock,
purchased from the Company at any time after the date of this Agreement (other
than in a registered public offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such periods (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable Securities
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have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company shall use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof, and pursuant thereto the Company shall as expeditiously
as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective; provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall furnish to the counsel selected by the
holders of a majority of the Investor Registrable Securities covered by such
registration statement copies of all such documents proposed to be filed, which
documents shall be subject to the review and comment of such counsel;
(b) notify each holder of Registrable Securities of the effectiveness of
each registration statement filed hereunder and prepare and file with the
Securities and Exchange
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Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of either (i) not less than six
months or, if such registration statement relates to an underwritten offering,
such longer period as in the opinion of counsel for the underwriters a
prospectus is required by law to be delivered in connection with sales of
Registrable Securities by an underwriter or dealer or (ii) such shorter period
as will terminate when all of the securities covered by such registration
statement have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in such registration
statement (but in any event not before the expiration of any longer period
required under the Securities Act), and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement until such time as all such securities have been disposed
of in accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement and the prospectus used
in connection therewith;
(c) furnish to each seller of Registrable Securities such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller (including any underwriter) reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller; provided that the Company shall not
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be required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this subparagraph, (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction;
(e) notify each seller of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, the Company shall prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then listed and,
if not so listed, to be listed on the NASD automated quotation system and, if
listed on the NASD automated quotation system, use its best efforts to secure
designation of all such Registrable Securities covered by such registration
statement as a NASDAQ "national market system security" within the meaning of
Rule 11Aa2-1 of the Securities and Exchange Commission or, failing that, to
secure NASDAQ authorization for such Registrable Securities and, without
limiting the generality of the foregoing, to arrange for at
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least two market makers to register as such with respect to such Registrable
Securities with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Investor Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including effecting a stock split or
a combination of shares);
(i) make available for inspection by one counsel selected by the holders
of a majority of the Registrable Securities included in such registration
statement, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such attorney, underwriter, or underwriter's
attorney, accountant or agent in connection with such registration statement
(provided that the Company may impose reasonable confidentiality restrictions on
the recipients of any confidential information);
(j) otherwise use its best efforts to comply with all applicable rules and
regulations of the Securities and Exchange Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in its sole
and exclusive judgment, might be deemed to be an underwriter or a controlling
person of the Company, to participate in the preparation of such registration or
comparable statement and to require the insertion therein of material, furnished
to the Company in writing, which in the reasonable judgment of such holder and
its counsel should be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Common Stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(m) use its best efforts to cause such Registrable Securities covered by
such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the sellers
thereof to consummate the disposition of such Registrable Securities; and
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(n) obtain a cold comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by cold comfort letters as the holders of a majority of the Investor
Registrable Securities and/or Founder Registrable Securities being sold
reasonably request.
5. Registration Expenses.
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(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, fees and disbursements of custodians,
and fees and disbursements of counsel for the Company and all independent
certified public accountants, underwriters (excluding discounts and commissions
of all holders of Registrable Securities, which shall be paid by such holders)
and other Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), shall be borne as provided in this Agreement, except
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that the Company shall, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed or on the NASD
automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Investor Registrable
Securities initially requesting such registration.
(c) To the extent Registration Expenses are not required to be paid by the
Company, each holder of securities included in any registration hereunder shall
pay those Registration Expenses allocable to the registration of such holder's
securities so included, and any Registration Expenses not so allocable shall be
borne by all sellers of securities included in such registration in proportion
to the aggregate selling price of the securities to be so registered.
6. Indemnification.
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(a) The Company agrees to indemnify, to the extent permitted by law, each
holder of Registrable Securities, its officers and directors and each Person who
controls such holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses caused by, or relating to any
action or proceeding arising out of or based upon, any untrue or alleged untrue
statement of material fact contained in any registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by such holder expressly for use therein or by such holder's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company shall indemnify such underwriters, their
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officers and directors and each Person who controls such underwriters (within
the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder; provided that the obligation to indemnify
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shall be individual, not joint and several, for each holder and shall be limited
to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification; provided that the failure to give prompt notice shall not
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impair any Person's right to indemnification hereunder to the extent such
failure has not prejudiced the indemnifying party and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities. The Company also
agrees to make such provisions, as are reasonably requested by any indemnified
party, for contribution to such party in the event the Company's indemnification
is unavailable for any reason.
7. Participation in Underwritten Registrations. No Person may participate
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in any registration hereunder which is underwritten unless such Person (i)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
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powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
8. Definitions.
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(a) "Founder Registrable Securities" means (i) any Common Stock held by
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the Founders and (ii) any Common Stock issued or issuable with respect to the
Common Stock referred to in clause (i) above by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular Founder Registrable
Securities, such securities shall cease to be Founder Registrable Securities
when they have been distributed to the public pursuant to an offering registered
under the Securities Act or sold to the public through a broker, dealer or
market maker in compliance with Rule 144 under the Securities Act (or any
similar rule then in force) or repurchased by the Company or any Subsidiary.
(b) "Investor Registrable Securities" means (i) any Common Stock issued or
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issuable upon the conversion of the Preferred Stock (as defined in the
Recapitalization Agreement) issued pursuant to the Recapitalization Agreement,
(ii) any securities issued or issuable with respect to the securities referred
to in clause (i) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization and (iii) any other shares of Common Stock held by
Persons holding securities described in clauses (i) or (ii) above. As to any
particular Investor Registrable Securities, such securities shall cease to be
Investor Registrable Securities when they have been distributed to the public
pursuant to an offering registered under the Securities Act or sold to the
public through a broker, dealer or market maker in compliance with Rule 144
under the Securities Act (or any similar rule then in force) or repurchased by
the Company or any Subsidiary.
(c) "Registrable Securities" means, collectively, the Investor Registrable
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Securities and the Founder Registrable Securities. For purposes of this
Agreement, a Person shall be deemed to be a holder of Registrable Securities,
and the Registrable Securities shall be deemed to be in existence, whenever such
Person has the right to acquire directly or indirectly such Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected, and such Person shall be entitled to exercise the rights of a holder
of Registrable Securities hereunder (it being understood, however, that any
Registrable Securities which are not shares of Common Stock shall be converted
or otherwise exchanged into shares of Common Stock immediately prior to the
effectiveness of any registration statement pursuant to which such Common Stock
is to be registered).
(d) Unless otherwise stated, other capitalized terms contained herein have
the meanings set forth in the Recapitalization Agreement.
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9. Miscellaneous.
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(a) No Inconsistent Agreements: The Company shall not hereafter enter into
--------------------------
any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Remedies. Any Person having rights under any provision of this
--------
Agreement shall be entitled to enforce such rights, specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(c) Amendments and Waivers. Except as otherwise provided herein, the
----------------------
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company, the holders of a majority of the Investor
Registrable Securities and the holders of a majority of the Founder Registrable
Securities (but only to the extent that the holders of Founder Registrable
Securities would be adversely affected by such amendment or waiver).
(d) Successors and Assigns. All covenants and agreements in this Agreement
----------------------
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not. In addition, whether or not any express assignment has been
made, the provisions of this Agreement which are for the benefit of purchasers
or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) Severability. Whenever possible, each provision of this Agreement
------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in two or
------------
more counterparts (including by means of telecopied signature pages), any one of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.
(g) Descriptive Headings. The descriptive headings of this Agreement are
--------------------
inserted for convenience only and do not constitute a part of this Agreement.
(h) Governing Law. All issues and questions concerning the construction,
-------------
validity, interpretation and enforcement of this Agreement shall be governed by,
and construed in accordance with, the laws of the State of California, without
giving effect to any choice of law or
-11-
conflict of law rules or provisions (whether of the State of California or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of California.
(i) Notices. All notices, demands or other communications to be given or
-------
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to each Investor at the address indicated on the
Schedule of Investors attached hereto and to the Company or the Founders at the
---------------------
address indicated below:
To the Company:
--------------
E-Tek Dynamics, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: President
To the Founders:
---------------
c/o Xx. Xxxxxxx Xxxxx Pan
Xxxx Xxxx Pan
[Address]
with a copy to:
--------------
(which shall not constitute notice to the Founders)
Fenwick & West, LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxxxx X. Xxxxx, Esq.
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
-12-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
E-TEK DYNAMICS, INC.
By: /s/ Xxxxxxx Xxxxx Pan
----------------------------------------
Its: PRESIDENT
----------------------------------------
SUMMIT/E-TEK HOLDINGS, L.L.C.
By: Summit Ventures IV, L.P., its Manager
By Summit Partners IV, L.P., its General
Partner
By: Stamps, Xxxxxxx & Co. IV, its General
Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
General Partner
MELLON BANK, N.A.,
as Trustee for First Plaza Group Trust
as directed by General Motors Investment
Management Corporation
By: ______________________________________
Name:
Title:
[Signature Page to Registration Agreement]
-13-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
E-TEK DYNAMICS, INC.
By: __________________________________
Its: _________________________________
SUMMIT/E-TEK HOLDINGS, L.L.C.
By: Summit Ventures IV, L.P., its
Manager
By Summit Partners IV, L.P., its
General Partner
By: Stamps, Xxxxxxx & Co. IV, its
General Partner
By: _________________________________
General Partner
Mellon Bank, N.A., solely in its
capacity as Trustee for FIRST PLAZA
GROUP TRUST, (as directed by General
Motors Investment Management
Corporation), and not in its individual
capacity.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: V.P.
[Signature Page to Registration Agreement]
-13-
XXXXX X. XXXXXX, as nominee for the
Broadview Partners Group
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Its: Xxxxx X. Xxxxxx as nominee
-------------------------------
XXXXXXXX STREET PARTNERS
By: _______________________________
Its: ______________________________
XXXXXXXX STREET PARTNERS DIF, LLC
By: _______________________________
Its: ______________________________
F&W INVESTMENTS 1997
By: _______________________________
Its: ______________________________
___________________________________
Xxxxxxx Xxxxx Pan
___________________________________
Xxxx Xxxx Pan
[Signature Page to Registration Agreement]
-14-
BROADVIEW ASSOCIATES, L.L.C.
By:________________________________
Its:_______________________________
XXXXXXXX STREET PARTNERS
By: /s/ [Signature]
-------------------------------
Its: Managing Member
-------------------------------
XXXXXXXX STREET PARTNERS DIF, LLC
By: /s/ [SIGNATURE]
--------------------------------
Its: Managing Member
--------------------------------
F&W INVESTMENTS 1997
By: ________________________________
Its: ________________________________
_____________________________________
Xxxxxxx Xxxxx Pan
_____________________________________
Xxxx Xxxx Pan
[Signature Page to Registration Agreement]
-14-
BROADVIEW ASSOCIATES, L.L.C.
By:___________________________________
Its:__________________________________
XXXXXXXX STREET PARTNERS
By:____________________________________
Its:___________________________________
XXXXXXXX STREET PARTNERS DIF, LLC
By:____________________________________
Its:___________________________________
F&W INVESTMENTS 1997
By: [SIGNATURE]
------------------------------------
Its:___________________________________
/s/ Xxxxxxx Xxxxx Pan
---------------------------------------
Xxxxxxx Xxxxx Pan
/s/ Xxxx Xxxx Pan
---------------------------------------
Xxxx Xxxx Pan
[Signature Page to Registration Agreement]
-14-
Xxxx Xxxx Pan and Xxxxxxx Xxxxx Pan,
Trustees of the J.J. & Xxxxxxx Pan Revocable
Trust dated February 14, 1997
/s/ Xxxx Xxxx Pan
--------------------------------------------
Xxxx Xxxx Pan
/s/ Xxxxxxx Xxxxx Pan
--------------------------------------------
Xxxxxxx Xxxxx Pan
[Signature Page to Registration Agreement]
-15-
Page intentionally left blank.
[Signature Page to Registration Agreement]
-16-
/s/ Xxxxxx Xxxxx
-----------------------------------
Xxxxxx Xxxxx
BAIN SECURITIES, INC.
By:_________________________
Xxxx Xxxxxxxxx
Its: Treasurer
[Signature Page to Registration Agreement]
-17-
____________________________________
Xxxxxx Xxxxx
BAIN SECURITIES, INC.
By: /s/ Xxxx Xxxxxxxxx
---------------------------------
Xxxx Xxxxxxxxx
Its: Treasurer
[Signature Page to Registration Agreement]
-17-
SCHEDULE OF INVESTORS
---------------------
Name and Address
----------------
Summit/E-Tek Holdings, L.L.C.
c/o Summit Partners, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
--------------
(which shall not constitute notice to the Investors)
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx X. Xxxx, Esq.
Bain Securities, Inc.
c/o Bain & Company, Inc.
0 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxx X. Xxxxxx, as nominee
for the Broadview Partners Group
c/o Broadview Associates
000 Xxxxx Xxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxxxxx Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
F&W Investments 1997
c/o Fenwick & Xxxx
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxxxxxx Xxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
-18-
Xxxxxx Xxxxx
c/o Digital Link Corporation
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Mellon Bank, N.A., as Trustee for
First Plaza Group Trust as directed by
General Motors Investment Management Corporation
Mellon Bank
Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxxxxxx Xxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
General Motors Investment Management Corporation
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (212) 418-6123
Xxxxxxxx Street Partners
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx
Phone: (000) 000-0000
Facsimile: (312) 861-2200
Xxxxxxxx Street Partners DIF, LLC
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
-19-
AMENDMENT NO. 1 TO
REGISTRATION AGREEMENT
This Amendment No. 1 to Registration Agreement (this "Amendment") is made
---------
and entered into effective as of November 5, 1997 by and among E-TEK Dynamics,
Inc., a California corporation (the "Company"), the parties listed as Investors
-------
on the Schedule of Investors attached hereto (collectively, the "Investors") and
--------------------- ---------
Xxxxxxx Xxxxx Pan, Xxxx Xxxx Pan and the J.J. & Xxxxxxx Pan Revocable Trust
(collectively, the "Founders").
--------
WHEREAS, all of the parties to this Amendment have previously entered into
a certain Registration Agreement dated as of July 23, 1997 (the "Registration
Agreement") providing registration rights for certain of the Company's
securities held by the Investors and the Founders;
WHEREAS, the parties to the Registration Agreement desire to amend the
Registration Agreement to provide certain registration rights for the Company's
securities issued or issuable pursuant to the Company's 1997 Executive Equity
Incentive Plan (the "Executive Plan"), as provided herein; and
--------------
WHEREAS, capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth in the Registration Agreement.
NOW THEREFORE, in consideration of the premises and covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. SECTION 4. The first clause of Section 4 of the Registration Agreement
is hereby amended to read in its entirety as follows:
"With respect to the Executive Plan Registration or whenever the
holders of Registrable Securities have requested that any Registrable
Securities be registered pursuant to this Agreement, the Company shall
use its best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of
disposition thereof, and pursuant thereto the Company shall as
expeditiously as possible:"
2. SECTIONS 8(c) AND 8(d). Sections 8(c) and 8(d)of the Registration
Agreement are hereby renumbered as Sections 8(d) and 8(e),
respectively. The first sentence of the newly renumbered Section 8(d)
of the Registration Agreement is hereby amended to read as follows:
""Registrable Securities" means, collectively, the Investor
----------------------
Registrable Securities, the Founder Registrable Securities and the
Executive Registrable Securities."
3. NEW SECTION 8(c). The Registration Agreement is hereby amended by
adding thereto a new Section 8(c) to read in its entirety as follows:
"(c) "Executive Registrable Securities" means (i) any Common Stock
--------------------------------
issued pursuant to the Company's 1997 Executive Equity Incentive Plan
(the "Executive Plan") or any Common Stock issuable upon exercise of
--------------
options granted pursuant to the Company's Executive Plan and (ii) any
Common Stock issued or issuable with respect to the Common Stock
referred to in clause (i) above by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any particular
Executive Registrable Securities, such securities shall cease to be
Executive Registrable Securities when they have been distributed to
the public pursuant to an offering registered under the Securities Act
or sold to the public through a broker, dealer or market maker in
compliance with Rule 144 under the Securities Act (or any similar rule
then in force) or repurchased by the Company or any Subsidiary."
4. NEW SECTION 9(j). The Registration Agreement is hereby amended by
adding thereto a new Section 9(j) to read in its entirety as follows:
"(j) Additional Parties. At any time and from time to time, the
------------------
Company may, without obtaining the signature, consent or permission of
any of the other parties to this Agreement, add as parties to this
Agreement those persons ("New Parties") who have received a grant of
-----------
the Company's securities (an "Award") pursuant to the Company's
-----
Executive Plan. The Award(s) of any New Parties shall be deemed
Executive Registrable Securities for the purposes of this Agreement.
The Company and any New Parties will execute counterpart signature
pages to this Agreement indicating the number of shares of the
Company's Common Stock constituting the Award(s) and such New Parties
will, upon delivery to the Company of such signature pages, become
parties to, and bound by, this Agreement. The Company will promptly
furnish copies of the signature pages of any New Parties to the
Investors and Founders."
5. NEW SECTION 10. The Registration Agreement is hereby amended by
adding thereto a new Section 10 to read in its entirety as follows:
"10. Executive Plan Registration on Form S-3. The Company, at its
---------------------------------------
expense, shall register under the Securities Act all of the Executive
Registrable Securities on a Form S-3 resale registration statement, such
registration statement to be effective within ten days of the effectiveness
of the registration statement of the Company's initial public offering (the
"Executive Plan Registration").
---------------------------
-2-
6. EFFECTIVENESS OF AMENDMENT. This Amendment will become effective once
executed by the Company and by the holders of a majority of the
Investor Registrable Securities and by the holders of a majority of
the Founder Registrable Securities.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
E-TEK DYNAMICS, INC.
By:
______________________________________________
Xxxxxxx X. Xxxxxxxxxxx, President
SUMMIT/E-TEK HOLDINGS, L.L.C.
By: Summit Ventures IV, L.P., its Manager
By: Summit Partners IV, L.P., its General Partner
By: Stamps, Xxxxxxx & Co. IV, its General Partner
By: ______________________________________________
General Partner
Mellon Bank, N.A., solely in its capacity as Trustee
for FIRST PLAZA GROUP TRUST, (as directed by
General Motors Investment Management Corporation),
and not in its individual capacity
By: ________________________________________________
Name:
Title:
XXXXX X. XXXXXX, as nominee for the
Broadview Partners Group
By:________________________________________________
Its:________________________________________________
-3-
[Signature Page to Amendment Xx. 0 xx Xxxxxxxxxxxx Xxxxxxxxx]
-0-
XXXXXXXX XXXXXX PARTNERS
By: ____________________________________________
Its: ___________________________________________
XXXXXXXX STREET PARTNERS DIF, LLC
By: ____________________________________________
Its: ___________________________________________
F&W INVESTMENTS 1997
By: ____________________________________________
Its: ___________________________________________
________________________________________________
Xxxxxxx Xxxxx Pan
________________________________________________
Xxxx Xxxx Pan
Xxxx Xxxx Pan and Xxxxxxx Xxxxx Pan, Trustees of
the J.J. & Xxxxxxx Pan Revocable Trust dated
February 14, 1997
________________________________________________
Xxxx Xxxx Pan
________________________________________________
Xxxxxxx Xxxxx Pan
[Signature Page to Amendment No. 1 to Registration Agreement]
-5-
__________________________________________
Xxxxxx Xxxxx
__________________________________________
BAIN SECURITIES, INC.
By: ______________________________________
Xxxx Xxxxxxxxx
Its: Treasurer
[Signature Page to Amendment No. 1 to Registration Agreement]
-6-
SCHEDULE OF INVESTORS
---------------------
Name and Address
----------------
Summit/E-Tek Holdings, L.L.C.
c/o Summit Partners, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
--------------
(which shall not constitute notice to the Investors)
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx X. Xxxx, Esq.
Bain Securities, Inc.
c/o Bain & Company, Inc.
0 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxx X. Xxxxxx, as nominee for the
Broadview Partners Group
c/o Broadview Associates
000 Xxxxx Xxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxxxxx, Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
F&W Investments 1997
c/o Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxxxxxx Xxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxx Xxxxx
c/o Digital Link Corporation
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Mellon Bank, N.A., as Trustee for
First Plaza Group Trust as directed by
General Motors Investment Management Corporation
Mellon Bank
Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxxxxxx Xxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
--------------
General Motors Investment Management Corporation
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (212) 418-6123
Xxxxxxxx Street Partners
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx
Phone: (000) 000-0000
Facsimile: (312) 861-2200
Xxxxxxxx Street Partners DIF, LLC
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
-3-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
written below.
E-TEK DYNAMICS, INC.
By: ________________________________
Its: _______________________________
NEW PARTY
Signature: __________________________
Name: XXXXXXX XXXXXXXXXXX
Number of shares of E-Tek Common Stock
Constituting the Award(s): 2,825,000
Date: NOVEMBER 13, 1997
[Signature Page to Registration Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
written below.
E-TEK DYNAMICS, INC.
By: ________________________________
Its: _______________________________
NEW PARTY
Signature: __________________________
Name: XXXXXX XXXXXXXX
Number of shares of E-Tek Common Stock
Constituting the Award(s): 1,200,000
Date: DECEMBER 11, 1997
[Signature Page to Registration Agreement]
