EXHIBIT 10.30
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of June
22, 1999, by and between E-Tek Dynamics, Inc., a Delaware corporation (the
"Company"), and the shareholders (the "Shareholders") of E-Tek Electrophotonics
Solutions Corporation, a Nova Scotia company ("EP") listed on Schedule A hereto.
RECITALS
WHEREAS, pursuant to the Share Purchase Agreement, dated May 26, 1999, by
and among the Company, Xxxxx Nova Scotia Company ("Company Sub"), EP and certain
other parties (the "Share Purchase Agreement"), Company Sub has agreed to issue
shares of its common stock to the Shareholders in exchange for their shares of
EP capital stock;
WHEREAS, pursuant to the Share Purchase Agreement, the Shareholders may
exchange the shares of Company Sub common stock for shares of Company Common
Stock (the "Common Stock");
WHEREAS, as an inducement to the Shareholders to enter into the Share
Purchase Agreement, as of the Closing Date, the Shareholders shall be granted
certain registration rights with respect to the Common Stock as set forth
herein; and
WHEREAS, the registration rights granted to the Shareholders will be
subordinate to the registration rights previously granted by the Company to its
founders and certain other investors (as more fully described in Section 2.4
hereof).
NOW, THEREFORE, in consideration of the promises, mutual covenants and
conditions herein contained, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall
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have the following respective meanings:
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the 1933 Act, and the declaration or ordering of effectiveness
of such registration statement or document.
"Registration Statement" means any registration statement described in
Section 2.1 or Section 2.2 of this Agreement.
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"Registrable Securities" means the Common Stock of the Company issued to
the Shareholders upon the exchange of the Company Sub common stock in accordance
with the terms and conditions of the Share Purchase Agreement, and any
securities of the Company issued as a dividend on or other distribution with
respect to, or in exchange for or replacement of, such Common Stock.
"SEC" means the Securities and Exchange Commission.
2. Registration Rights.
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2.1 Shelf Registration. Subject to Section 4.1 hereof, the Company
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shall file a Registration Statement on Form S-3 with the SEC within sixty (60)
days of the date it first becomes eligible to file a Form S-3 Registration
Statement (which 60-day period is expected to end on January 31, 2000) to
register under the 1933 Act the resale or other disposition of the Registrable
Securities by the Shareholders, and as promptly as practicable after filing the
Registration Statement the Company shall use its best efforts to cause the
Registration Statement to be declared effective by the SEC. The Company shall
notify Drs. A. Tino Alavie and Xxxxxx Xxxxxxxx (the "Shareholders' Agent") when
the Registration Statement has been declared effective by the SEC. Except as
provided in Section 4 hereof, the Company shall maintain the effectiveness of
the Registration Statement until at least one month after the period in which
Shareholders may exchange the shares of Company Sub common stock for shares of
Company Common Stock (which is equivalent to a period of 37 months after the
closing of the transactions contemplated by the Share Purchase Agreement) and,
from time to time, will amend or supplement the Registration Statement and the
prospectus contained therein to the extent necessary to comply with the 1933 Act
and any applicable state securities statute or regulation.
2.2 Piggyback Registration. If, but without any obligation to do so,
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the Company proposes to register its sale of common stock under the Act in
connection with an underwritten public offering of such common stock solely for
cash (other than a registration relating solely to the sale of securities to
participants in a Company stock plan or a transaction covered by Rule 145 under
the 1933 Act (or the resale of securities issued pursuant to such a
transaction), a registration in which the only stock being registered is Common
Stock issuable upon conversion of debt securities which are also being
registered, or any registration on any form which does not include substantially
the same information as would be required to be included in a registration
statement covering the sale of the Registrable Securities), the Company shall,
at such time, give each Shareholder written notice of such registration. Upon
the written request of each Shareholder given within ten (10) days after mailing
of such notice by the Company in accordance with Section 10.1, the Company
shall, subject to the provisions of Section 2.3, cause to be registered under
the 1933 Act all of the Registrable Securities that each such Shareholder has
requested to be registered. The Company's obligations under this Section 2.2
shall terminate upon the effectiveness of the Form S-3 Registration Statement
described in Section 2.1.
2.3 Underwriting Requirements. In connection with any underwritten
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public offering described in Section 2.2, the Company shall not be required to
include any of the
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Shareholders' Registrable Securities in such underwriting unless the Shareholder
accepts the terms of the underwriting as agreed upon between the Company and the
underwriters, and then only in such quantity as the underwriters determine in
their sole discretion will not jeopardize the success of the offering by the
Company. If the total amount of securities, including Registrable Securities,
requested to be included in such offering exceeds the amount of securities that
the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company shall be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering. In such event, the Company may reduce the number of
Registrable Securities to be included in the offering, or exclude the
Registrable Securities altogether, prior to reducing or excluding the shares
proposed to be offered by the Company or any other selling stockholders (in the
event that the number of Registrable Securities is reduced, the Registrable
Securities included shall be apportioned pro rata among the Shareholders
according to the total amount of Registrable Securities entitled to be included
therein owned by each Shareholder). For purposes of the preceding parenthetical
clause concerning apportionment, for any Shareholder which is a holder of
Registrable Securities and which is a partnership or corporation, the partners,
retired partners and shareholders of such holder, or the estates and family
members of any such partners and retired partners and any trusts for the benefit
of any of the foregoing persons shall be deemed to be a single "Shareholder,"
and any pro-rata reduction with respect to such "Shareholder" shall be based
upon the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "Shareholder," as defined in this
sentence.
2.4 Limitations on Registration Rights. The Shareholders acknowledge
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that the registration rights granted to them hereunder are subordinate to the
registration rights previously granted by the Company to its founders and
certain investors who invested in the Company prior to its initial public
offering. In other words, those founders' and investors' piggyback registration
rights have priority over the Shareholders' piggyback registration rights. Due
to the large number of shares of common stock held by these founders and
investors, it is likely that even if the Shareholders attempt to piggyback on an
underwritten public offering, the Shareholders will be precluded from doing so.
As a result, the Shareholders may not be able to sell any Registrable Securities
until the Registration Statement described in Section 2.1 is available.
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3. Further Obligations of the Company after Registration.
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3.1 The Company shall, as soon as reasonably possible after the
effectiveness of a Registration Statement, use its best efforts to register and
qualify the Registrable Securities covered by the Registration Statement under
such other securities or "blue sky" laws of such jurisdictions as shall be
reasonably requested by the Shareholders, provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions unless the Company is already subject to service in such
jurisdiction and except as may be required by the 0000 Xxx.
3.2 With respect to a Registration Statement filed pursuant to Section
2.1, the Company shall, as soon as reasonably possible after the effectiveness
of the Registration Statement, furnish to the Shareholders' Agent such numbers
of copies of a prospectus in conformity with the requirements of the 1933 Act,
and such other documents as the Shareholders may reasonably request in order to
facilitate the resale or other disposition of Registrable Securities owned by
them.
3.3 With respect to a Registration Statement filed pursuant to Section
2.1, the Company shall promptly notify each selling Shareholder of such
Registrable Securities of the happening of any event as a result of which the
prospectus included in the 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 Shareholder, the Company will
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading.
4. Conditions and Limitations on Registration Rights. The registration
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rights granted by this Agreement are subject to the following additional
conditions and limitations:
4.1 The Company may suspend or delay the effectiveness of a
Registration Statement, or delay the filing of a Registration Statement if the
Company is in possession of material nonpublic information that the Company does
not deem advisable to disclose in the Registration Statement or otherwise to the
public at such time, whether such information relates to a financing project,
pending acquisition, merger, or other material corporate transaction to which
the Company is or expects to be a party, or any other matter or matters. If the
Company suspends the effectiveness of a Registration Statement, the Company will
promptly notice the Shareholders of such suspension and will again notice the
Shareholders when such suspension is no longer necessary.
4.2 Each Shareholder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3.3 or
4.1 hereof, such Shareholder shall forthwith discontinue disposition of
Registrable Securities until such Shareholder's receipt of copies of the
supplemented or amended prospectus contemplated by Section 3.3 or 4.1 hereof, or
until it is advised in writing (the "Advice") by the Company that the use of the
prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the prospectus, and,
if so directed by the Company, such Shareholder will deliver to the
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Company all copies of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
4.3 The registration rights granted by this Agreement shall not be
transferable or assignable without the Company's prior written consent;
provided, however, that notwithstanding the foregoing, the registration rights
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granted under this Agreement may be transferred or assigned together with any
Registrable Securities transferred or assigned to any constituent partner or
affiliate of a Shareholder, or the estate or personal representative of a
Shareholder, provided that such transfer or assignment may otherwise be effected
in accordance with applicable provincial, state and federal securities laws,
written notice of such transfer is delivered to the Company at least ten (10)
days in advance thereof, and the transferee or assignee thereof executes and
delivers a copy of this Agreement thereby agreeing to be bound by the terms and
provisions set forth herein. Any purported transfer or assignment in violation
of this provision shall be void and of no force and effect whatsoever.
4.4 No Shareholder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the result
of any controversy that might arise with respect to the interpretation or
implementation of this Section 4.
5. Information from Shareholders. It shall be a condition precedent to
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the obligations of the Company to take any action pursuant to this Agreement
with respect to the Registrable Securities of the Shareholders that the
Shareholders shall furnish to the Company such information regarding themselves,
the Registrable Securities held by them, and the intended method of disposition
of such securities, as shall be required to effect the registration of the
Registrable Securities.
6. Expenses of Registration. The Company shall pay all registration,
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filing and qualification fees (including SEC filing fees and the listing fees of
the Nasdaq National Market or any stock exchange on which the Company securities
are traded) attributable to the Registrable Securities registered on behalf of
the Shareholders under this Agreement. The Shareholders shall pay all
underwriting discount or commissions attributable to the sale of their
securities and any legal, accounting or other professional fees or expenses
incurred by them.
7. Indemnification.
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7.1 The Company will indemnify and hold harmless the Shareholders,
each of their directors, officers, trustees or beneficiaries, if applicable, and
each person, if any, who controls a non-individual shareholder within the
meaning of the 1933 Act against any losses, claims, damages, or liabilities
(joint or several) to which the Shareholders may become subject under the 1933
Act, or the 1934 Act or other federal or state law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise out of or
are based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, including
any final prospectus contained therein or any amendments or supplements thereto,
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make
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the statements' therein not misleading, provided, however, that the indemnity
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agreement contained in this Section 7.1 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company, which consent shall
not be unreasonably withheld, nor shall the Company be liable in any such case
for any such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with information furnished in writing expressly for use in connection
with such registration by the Shareholders seeking indemnification hereunder. In
addition, the Company shall not be liable for any untrue statement or omission
in any prospectus if a supplement or amendment thereto correcting such untrue
statement or omission was delivered to the Shareholders' Agent prior to the
pertinent sale or sales by the Shareholders.
7.2 Each Shareholder will indemnify and hold harmless the Company,
each of its directors, each of its officers who has signed the Registration
Statement, each person, if any, who controls the Company within the meaning of
the 1933 Act, any other shareholder selling securities in the Registration
Statement and any controlling person of any such shareholder, against any
losses, claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject under the 1933 Act or the 1934 Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Shareholder solely for such Shareholder's behalf expressly for use in connection
with such registration; provided, however, that the indemnity agreement
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contained in this Section 7.2 shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is effected
without the consent of such Shareholder, which consent shall not be unreasonably
withheld, provided that in no event shall any indemnity under this Section 7.2
by such Shareholder exceed the gross proceeds from the offering, before
deducting discounts or commissions, containing the Violation at issue received
by such Shareholder.
7.3 Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 7, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties. The failure to deliver written notice to the
indemnifying party promptly upon the commencement of any such action, if
materially prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
7, but the omission so to deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 7.
7.4 If the indemnification provided for in this Section 7 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability,
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claim, damage, or expense referred to therein, then the indemnifying party, in
lieu of indemnifying such indemnified party hereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such loss,
liability, claim, damage, or expense in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
that resulted in such loss, liability, claim, damage, or expense as well as any
other relevant equitable considerations. The relative fault of the indemnifying
party and of the indemnified party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
7.5 The obligations of the Company, and the Shareholders under this
Section 7 shall survive the completion of any offering of Registrable Securities
under a registration statement filed pursuant to this Agreement or otherwise.
8. Reports Under the Securities Exchange Act. The Company agrees to file
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with the SEC in a timely manner all reports and other documents and information
required of the Company under the 1934 Act, and take such other actions as may
be necessary to assure the availability of Form S-3 for use in connection with
the registration rights provided in this Agreement.
9. Rule 144. If the Company is required to file the reports under the
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1933 Act and the 1934 Act, the Company shall use its best efforts to file the
reports in a timely manner to permit resales or other dispositions of
Registrable Securities pursuant to Rule 144 promulgated under the 1933 Act
("Rule 144"). In the event that all of a Shareholder's Registrable Securities
may be resold or otherwise disposed of in a ninety (90) day period under Rule
144 without registration under the 1933 Act, the registration rights granted
under this Agreement to such Shareholder, and the obligations of the Company
hereunder (other than its obligations under this Section 8) to such Shareholder,
shall automatically terminate in their entirety and be of no further force and
effect whatsoever without any further action on the part of the Company or any
of the Shareholders.
10. Miscellaneous.
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10.1 Notices. Notice to the Shareholders' Agent shall constitute
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notice to all the shareholders party hereto. All notices and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or by commercial delivery service, or mailed by registered
or certified mail (return receipt requested) or sent via facsimile (with
acknowledgment of complete transmission) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
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(1) if to the Company:
E-Tek Dynamics, Inc.
0000 Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with copies to (which shall not constitute notice
hereunder):
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Fraser Xxxxxx
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxx X0X 0X0
Attention: X.X. Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(2) if to the Shareholders' Agent, to
Xx. X. Xxxx Alavie and Xxxxxx Xxxxxxxx
[Address]
with a copy to:
Xxxxxx & Associates
000 Xxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx X0X 0x0
Attention: Xxxxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
10.2 Interpretation. The words "include," "includes" and "including"
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when used herein shall be deemed in each case to be followed by the words
"without limitation." The table of
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contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
10.3 Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
10.4 Entire Agreement; Assignment. This Agreement and the documents
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and instruments and other agreements among the parties hereto referenced herein:
(a) constitute the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof; (b) are not intended to confer upon any other person (including, without
limitation, those persons listed on any exhibits hereto) any rights or remedies
hereunder; and (c) shall not be assigned by operation of law or otherwise
without the prior written consent of each party hereto, except that the Company
may assign its rights and obligations hereunder to an affiliate of the Company
provided that the Company shall remain liable for all its obligations hereunder
notwithstanding such assignment. Any assignment of rights or delegation of
duties under this Agreement by a party without the prior written consent of the
other parties, if such consent is required hereby, shall be void.
10.5 Severability. In the event that any provision of this Agreement
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or the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
10.6 Other Remedies. Except as otherwise provided herein, any and all
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remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
10.7 Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of California, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
E-TEK DYNAMICS, INC.
By: ______________________________________
Name:
Title:
SHAREHOLDER
By: ______________________________________
Name:
Title:
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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SCHEDULE A
List of Shareholders
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