EXHIBIT 10.19
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REGISTRATION RIGHTS AGREEMENT
Dated as of October 15, 2003
among
Finisar Corporation,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
X.X. Xxxxxxx & Sons, Inc.,
CIBC World Markets Corp.,
Xxxxxxx & Company, Inc.,
RBC Xxxx Xxxxxxxx Inc.,
SoundView Technology Corporation
and
Xxxxxx Xxxxxx Partners LLC
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this fifteenth day of October, 2003, among Finisar Corporation, a
Delaware corporation (the "Company"), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, X.X. Xxxxxxx & Sons, Inc., CIBC World Markets Corp., Xxxxxxx &
Company, Inc., RBC Xxxx Xxxxxxxx Inc., SoundView Technology Corporation and
Xxxxxx Xxxxxx Partners LLC (each, an "Initial Purchaser," and collectively, the
"Initial Purchasers"), pursuant to that certain Purchase Agreement, dated
October 8, 2003, among the Company and the Initial Purchasers (the "Purchase
Agreement"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the Initial Purchasers'
obligations thereunder, the Company has agreed to provide to the Initial
Purchasers and their direct and indirect transferees and assigns the
registration rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time, and the rules and regulations of the SEC promulgated thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Closing Date" shall mean the Closing Time as defined in Section 2(c)
the Purchase Agreement.
"Common Stock" shall mean common stock, $0.001 par value per share, of
the Company.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that any such depositary
must have an address in The Borough of Manhattan, The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section
2.1(a) hereof.
"Effectiveness Target Date" shall mean the one hundred eightieth
(180th) day after the Closing Date.
"Filing Date" shall mean the ninetieth (90th) day after the Closing
Date.
"Holder" shall mean an Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture.
"Indenture" shall mean the Indenture relating to the Securities, dated
as of October 15, 2003, between the Company and U.S. Bank National Association,
as trustee, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the terms thereof.
"Initial Purchaser" or "Initial Purchasers" shall have the meaning set
forth in the preamble to this Agreement.
"Liquidated Damages" shall have the meaning set forth in Section 2.4
hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Registrable Securities outstanding; provided, that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or any of its affiliates (as such term is defined in Rule 405 under the
0000 Xxx) shall be disregarded in determining whether such consent or approval
was given by the Holders of such required percentage.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notes" shall mean the 2 1/2% Convertible Subordinated Notes due 2010
of the Company to be purchased pursuant to the Purchase Agreement.
"Notice and Questionnaire" means a written notice delivered to the
Company containing substantially the information called for in the Form of
Selling Securityholder Notice and Questionnaire attached as Annex A to the
Company's offering memorandum, dated October 8, 2003, relating to the Notes.
"Person" shall mean an individual, partnership, corporation, limited
liability company, joint venture, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in any Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement, and all other amendments and supplements to any such
prospectus, including post-effective amendments, and in each case including all
material incorporated or deemed to be incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Registrable Securities" shall mean the Notes and the shares of Common
Stock into which the Notes are convertible, upon original issuance thereof, and
at all times subsequent thereto; provided, however, that any Securities shall
cease to be Registrable Securities when (i) a
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Registration Statement with respect to such Securities shall have been declared
effective under the 1933 Act and such Securities shall have been sold pursuant
to such Registration Statement, (ii) such Securities shall have been sold to the
public pursuant to Rule 144 (or any similar provision then in force, other than
Rule 144A) under the 1933 Act, or (iii) such Securities shall have ceased to be
outstanding.
"Registration Default" shall have the meaning set forth in Section 2.4
hereof.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or NASD registration and filing
fees, (ii) all fees and expenses incurred in connection with compliance with
state or other securities or blue sky laws and compliance with the rules of the
NASD (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with qualification of any Registrable
Securities under state or other securities or blue sky laws and any filing with
and review by the NASD), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements thereto,
any underwriting agreements, securities sales agreements, certificates
representing the Securities and other documents relating to the performance of
and compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities on any
securities exchange or exchanges or on any quotation system, (v) all rating
agency fees, (vi) all fees and disbursements relating to the qualification of
the Indenture under applicable securities laws, (vii) the fees and disbursements
of counsel for the Company and the fees and expenses of independent public
accountants for the Company or for any other Person, business or assets whose
financial statements are included in any Registration Statement or Prospectus,
including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, (viii) the fees and expenses
of a "qualified independent underwriter" as defined by Conduct Rule 2720 of the
NASD (if required by the NASD rules) and the fees and disbursements of its
counsel, (ix) the fees and expenses of the Trustee, any registrar, any
depositary, any paying agent, any escrow agent or any custodian, in each case
including their respective counsel, (x) the reasonable fees and disbursements of
one law firm representing the Holders of Registrable Securities and (xi) the
reasonable fees and expenses of the Initial Purchasers in connection with the
Shelf Registration, including the reasonable fees and expenses of one counsel to
the Initial Purchasers, and (xii) any fees and disbursements of the underwriters
customarily paid by issuers or sellers of securities and the fees and expenses
of any special experts retained by the Company in connection with any
Registration Statement, but excluding underwriting discounts and commissions and
any transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company pursuant to the provisions of Section 2 of this Agreement that covers
all of the Registrable Securities on an appropriate form under Rule 415 under
the 1933 Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated or deemed to be
incorporated by reference therein.
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"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently performed
by the United States Securities and Exchange Commission.
"Securities" shall mean the Notes and the shares of Common Stock into
which the Notes are convertible, upon original issuance thereof, and at all
times subsequent thereto.
"Shelf Registration" shall have the meaning set forth in Section 2.1
hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from time
to time, and the rules and regulations of the SEC promulgated thereunder.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Underwriters" shall have the meaning set forth in Section 4(a) hereof.
For purposes of this Agreement, (i) all references in this Agreement to
any Registration Statement or Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the SEC pursuant
to its Electronic Data Gathering, Analysis and Retrieval system; (ii) all
references in this Agreement to financial statements and schedules and other
information which is "contained", "included" or "stated" in any Registration
Statement or Prospectus (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which is incorporated or deemed to be incorporated by reference in
such Registration Statement or Prospectus, as the case may be; and (iii) all
references in this Agreement to amendments or supplements to any Registration
Statement or Prospectus shall be deemed to mean and include the filing of any
document under the 1934 Act which is incorporated or deemed to be incorporated
by reference in such Registration Statement or Prospectus, as the case may be.
2. Registration Under the 1933 Act.
2.1 Shelf Registration.
(a) The Company shall, no later than the Filing Date, file
with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 under the 1933 Act registering
the resale by Holders thereof of the Registrable Securities (the "Shelf
Registration"). The Shelf Registration shall be on Form S-3 under the
1933 Act or another appropriate form permitting registration of such
Registrable Securities for resale by the Holders in the manner or
manners reasonably designated by them (including, without limitation,
one or more underwritten offerings). The Company shall not permit any
securities other than Registrable Securities to be included in the
Shelf Registration. The Company shall use its best efforts to cause the
Registration Statement to be declared effective by the SEC as promptly
as practicable, but no later than the Effectiveness Target Date, and to
keep such Registration Statement effective, supplemented and amended as
required, in order to permit the Prospectus forming a part thereof to
be useable by the Holders until the earliest of (i) the date that is
two years after the last date of original issuance of any of the Notes,
(ii) the date when the Holders are able to sell all of their Securities
immediately without restriction pursuant to the volume
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limitation provisions of Rule 144 under the 1933 Act or otherwise, or
(iii) all of the Registrable Securities covered by the Registration
Statement have been sold pursuant to the Registration Statement (the
"Effectiveness Period"); provided, however, that the Effectiveness
Period in respect of the Registration Statement shall be extended to
the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the 1933 Act and as
otherwise provided herein.
(b) Notwithstanding any other provisions hereof, the Company
shall use its best efforts to ensure that (i) any Registration
Statement and any amendment thereto and any Prospectus forming a part
thereof and any supplements thereto complies in all material respects
with the 1933 Act, (ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming a part of any Registration
Statement and any amendment or supplement to such Prospectus, does not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(c) The Company further agrees, if necessary, to supplement or
amend the Registration Statement, as required by Section 3(b) below,
and to furnish to the Holders of Registrable Securities copies of any
such supplement or amendment promptly after its being used or filed
with the SEC.
2.2 Expenses. The Company shall pay all Registration Expenses in
connection with the Shelf Registration and any Registration Statement. Each
Holder shall pay all fees and disbursements of its counsel, other than as set
forth in the preceding sentence or in the definition of Registration Expenses,
and all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Registration Statement.
2.3 Effectiveness.
(a) The Company shall be deemed not to have used its best efforts to
cause the Registration Statement to become, or to remain, effective during the
requisite periods set forth herein if the Company voluntarily takes any action
that would, or omits to take any action such that the omission would, result in
any such Registration Statement not being declared effective or remaining
effective, or in the Holders of Registrable Securities covered thereby not being
able to offer and sell such Registrable Securities during that period as and to
the extent contemplated hereby, unless such action is required by applicable
law.
(b) The Registration Statement shall not be deemed to have become
effective unless it has been declared effective by the SEC; provided, however,
that if, after it has been declared effective, the offering of Registrable
Securities pursuant to the Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement shall be deemed not to
have
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been effective during the period of such interference, until the offering of
Registrable Securities pursuant to such Registration Statement may legally
resume.
2.4 Liquidated Damages. In the event that (a) the Registration
Statement has not been filed with the SEC on the day following the Filing Date,
(b) the Registration Statement is not declared effective by the SEC on the day
following the Effectiveness Target Date, (c) the Registration Statement,
previously declared effective, shall cease to be effective or usable at any time
during the Effectiveness Period for any reason without being succeeded within
five business days by a post-effective amendment to such Registration Statement
or a report filed with the SEC pursuant to the 1934 Act that cures such failure
or (d) the Company suspends the use of any Prospectus related to the
Registration Statement for a period exceeding thirty (30) days in any
consecutive three-month period or exceeding an aggregate of ninety (90) days in
any consecutive twelve-month period (each such event referred to in clauses (a)
through (d) above, a "Registration Default"), then additional interest shall be
borne by the Notes in the form of liquidated damages ("Liquidated Damages") at a
rate per year equal to: (i) one-quarter of one percent (0.25%) of the
outstanding principal amount of the Notes from and including the day of such
Registration Default to and including the 90th day following such Registration
Default and (ii) one half of one percent (0.50%) of the outstanding principal
amount of Notes from and after the ninety-first (91st) day following the
occurrence of such Registration Default; provided that the aggregate increase in
such interest rate will in no event exceed one half of one percent (0.50%) per
annum. If a Holder has converted some or all of its Notes into Common Stock,
that Holder will be entitled to receive equivalent amounts based on the
principal amount of the Notes converted.
Upon the cure of such Registration Default, the accrual of Liquidated
Damages will cease and the interest rate will revert to the original rate so
long as no other Registration Default shall have occurred and shall be
continuing at such time and the Company is otherwise in compliance with this
Agreement; provided, however, that, if after any such reduction in interest
rate, one or more Registration Defaults shall again occur, the interest rate
shall again be increased pursuant to the foregoing provisions. A Registration
Default under clause (a) above shall be cured on the date that the Shelf
Registration is filed with the SEC; a Registration Default under clause (b)
above shall be cured on the date that the Shelf Registration is declared
effective by the SEC; a Registration Default under clause (c) above shall be
cured on the date the Shelf Registration is declared effective or useable; and a
Registration Default under clause (d) above shall be cured on the date the
Prospectus is declared useable by the Company.
The Company shall notify the Trustee within three business days after
each and every date on which a Registration Default occurs. Liquidated Damages
shall be paid by the Company semi-annually in arrears to the Holders by
depositing with the Trustee, in trust, for the benefit of the Holders of
Registrable Securities, on or before the applicable semiannual interest payment
date, immediately available funds in sums sufficient to pay the Liquidated
Damages then due. The accrued Liquidated Damages shall be payable on each
interest payment date to the record Holder of Securities entitled to receive the
interest payment to be paid on such date as set forth in the Indenture. Each
obligation to pay Liquidated Damages shall be deemed to accrue from and
including the applicable Registration Default to, but excluding, the day on
which the Registration Default has been cured.
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2.5 Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under this Section 2 may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it would not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under this Section 2.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Shelf Registration and the Registration Statement pursuant to Section 2 hereof,
the Company shall:
(a) prepare and file with the SEC a Registration Statement
within the period specified in Section 2, on the appropriate form under
the 1933 Act, which form (i) shall be selected by the Company, (ii)
shall be available for the sale of the Registrable Securities by the
selling Holders thereof, and (iii) shall comply as to form in all
material respects with the requirements of the applicable form and
include or incorporate by reference all financial statements required
by the SEC to be filed therewith or incorporated by reference therein,
and use its best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; cause each Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provision
then in force) under the 1933 Act; and comply with the provisions of
the 1933 Act and the 1934 Act with respect to the disposition of all
securities covered by a Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the selling Holders thereof;
(c) (i) notify each Holder of Registrable Securities, at least
five business days prior to filing, that a Registration Statement with
respect to the Registrable Securities is being filed and advising such
Holders that the distribution of Registrable Securities will be made in
accordance with the method elected by the Majority Holders; (ii)
furnish to each Holder of Registrable Securities, to counsel for the
Holders, to counsel for the Initial Purchasers and to each underwriter
of an underwritten offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other
documents as such Holder, counsel or underwriter may reasonably
request, including financial statements and schedules and, if such
Holder, counsel or underwriter so requests, all exhibits (including
those incorporated by reference) in order to facilitate the public sale
or other disposition of the Registrable Securities; and (iii) the
Company hereby consents to the use of the Prospectus, including each
preliminary Prospectus, or any amendment or supplement thereto by each
of the Holders and underwriters of Registrable Securities in
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connection with the offering and sale of the Registrable Securities
covered by any Prospectus or any amendment or supplement thereto;
(d) use its best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder of Registrable Securities
covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Securities shall reasonably
request, to cooperate with the Holders and the underwriters of any
Registrable Securities in connection with any filings required to be
made with the NASD, to keep each such registration or qualification
effective during the period such Registration Statement is required to
be effective, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company
shall not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise
be required to qualify but for this Section 3(d) or (ii) take any
action which would subject it to general service of process or taxation
in any such jurisdiction if it is not then so subject;
(e) notify each Holder of Registrable Securities and counsel
for such Holder promptly and, if requested by such Holder or counsel,
confirm such advice in writing promptly (i) when a Registration
Statement has become effective and when any post-effective amendments
and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for post-effective amendments or
supplements to a Registration Statement or Prospectus or for additional
information after a Registration Statement has become effective, (iii)
of the issuance by the SEC or any state securities authority of any
stop order suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, (iv) if between the
effective date of a Registration Statement and the closing of any sale
of Registrable Securities covered thereby, the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating
to such offering cease to be true and correct in all material respects,
(v) of the happening of any event or the discovery of any facts during
the period a Registration Statement is effective which makes any
statement made in such Registration Statement or the related Prospectus
untrue in any material respect or which constitutes an omission to
state a material fact in such Registration Statement or Prospectus or
which requires the making of any changes in such Registration Statement
or Prospectus in order to make the statements therein not misleading,
(vi) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and (vii) of any determination by the
Company that a post-effective amendment to a Registration Statement
would be appropriate;
(f) furnish counsel for the Holders of Registrable Securities
and counsel for any underwriters of Registrable Securities copies of
any comment letters received from the SEC or any other request by the
SEC or any state securities authority for amendments or supplements to
a Registration Statement and Prospectus or for additional information;
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(g) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement as
soon as practicable and provide immediate notice to each Holder of the
withdrawal of any such order;
(h) furnish to each Holder of Registrable Securities, and each
underwriter, if any, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto,
including financial statements and schedules (without documents
incorporated or deemed to be incorporated therein by reference or
exhibits thereto, unless requested);
(i) cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and cause such Registrable Securities
to be in such denominations (consistent with the provisions of the
Indenture) and in a form eligible for deposit with the Depositary and
registered in such names as the selling Holders or the underwriters, if
any, may reasonably request in writing at least three business days
prior to the closing of any sale of Registrable Securities;
(j) upon the occurrence of any event or the discovery of any
facts, each as contemplated by Sections 3(e)(v) and 3(e)(vi) hereof, as
promptly as practicable after the occurrence of such an event, use its
best efforts to prepare a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not
contain at the time of such delivery any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The Company agrees to notify each Holder to
suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to suspend
use of the Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission. At such time as
such public disclosure is otherwise made or the Company determines that
such disclosure is not necessary, in each case to correct any
misstatement of a material fact or to include any omitted material
fact, the Company agrees promptly to notify each Holder of such
determination and to furnish each Holder such number of copies of the
Prospectus, as amended or supplemented, as such Holder may reasonably
request;
(k) obtain CUSIP numbers for all Registrable Securities not
later than the effective date of a Registration Statement, and provide
the Trustee with printed certificates for the Registrable Securities in
a form eligible for deposit with the Depositary;
(l) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Registrable Securities, (ii)
cooperate with the Trustee and the Holders to effect such changes, if
any, to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and (iii) execute,
and use its best efforts to cause the Trustee to execute, all documents
as may be required to effect such
9
changes, if any, and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely
manner;
(m) enter into agreements (including underwriting agreements)
and take all other customary and appropriate actions in order to
expedite or facilitate the disposition of such Registrable Securities
and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration;
(i) make such representations and warranties to
the Holders of such Registrable Securities and the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested by such
Holders and underwriters;
(ii) in connection with any underwritten
offering, seek to obtain opinions of counsel to the Company
and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any, and the Holders of a majority
in principal amount of the Registrable Securities being sold)
addressed to each selling Holder (where reasonably possible)
and the underwriters, if any, covering the matters customarily
covered in opinions requested in sales of securities or
underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(iii) in connection with any underwritten
offering, seek to obtain "comfort letters" and updates thereof
with respect to such Registration Statement and the Prospectus
included therein, all amendments and supplements thereto and
all documents incorporated or deemed to be incorporated by
referenced therein from the Company's independent certified
public accountants and (where reasonably possible) from the
independent certified public accountants for any other Person
or any business or assets whose financial statements are
included or incorporated by reference in the Registration
Statement or Prospectus, each addressed to the underwriters,
if any, and (where reasonably possible) to have such letter
addressed to the selling Holders of Registrable Securities,
such letters to be in customary form and covering matters of
the type customarily covered in "comfort letters" to
underwriters in connection with similar underwritten
offerings;
(iv) enter into securities sales agreements with
the Holders and agents of the Holders providing for, among
other things, the appointment of such agents for the selling
Holders for the purpose of soliciting purchases of Registrable
Securities, which agreements shall be in form, substance and
scope customary for similar offerings;
(v) if an underwriting agreement is entered into
in the case of any underwritten offering, cause the same to
set forth indemnification and contribution provisions and
procedures substantially equivalent to the indemnification and
contribution provisions and procedures set forth in Section 4
hereof with respect to the underwriters and all other parties
to be indemnified pursuant to Section 4
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hereof or, at the request of any underwriters, in the form
customarily provided to such underwriters in similar types of
transactions; and
(vi) deliver such other documents and
certificates as may be reasonably requested and as are
customarily delivered in similar offerings to the Holders of a
majority in principal amount of the Registrable Securities
being sold and the managing underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto)
and (ii) each closing under any underwriting or similar agreement as
and to the extent required thereunder;
(n) make available for inspection by representatives of the
Holders of the Registrable Securities and any underwriters
participating in any disposition pursuant to a Registration Statement
and any counsel or accountant retained by such Holders or underwriters,
all financial and other records, documents and properties of the
Company reasonably requested by any such Persons, and cause the
respective officers, directors, employees, and any other agents of the
Company to supply all information reasonably requested by any such
representative, underwriter, special counsel or accountant in
connection with a Registration Statement, and make such representatives
of the Company available for discussion of such documents as shall be
reasonably requested by the Initial Purchasers;
(o) a reasonable time prior to filing any Registration
Statement, any Prospectus forming a part thereof, any amendment to such
Registration Statement or amendment or supplement to such Prospectus,
provide copies of such document upon request to the Holders of
Registrable Securities, to the Initial Purchasers, to the underwriter
or underwriters of an underwritten offering of Registrable Securities,
if any, and to counsel for any such Holders, the Initial Purchasers or
underwriters, and make such changes in any such document prior to the
filing thereof as the Holders of Registrable Securities, the Initial
Purchasers, the counsel to the Holders or the underwriter or
underwriters or any of their respective counsel may reasonably request;
cause the representatives of the Company to be available for discussion
of such documents as shall be reasonably requested by the Holders of
Registrable Securities, the Initial Purchasers on behalf of such
Holders or any underwriter; and shall not at any time make any filing
of any such document of which such Holders, the Initial Purchasers on
behalf of such Holders, their counsel or any underwriter shall not have
previously been advised and furnished a copy or to which the Majority
Holders, the Initial Purchasers on behalf of the Holders, their counsel
or any underwriter shall reasonably object within a reasonable time
period;
(p) use its best efforts to cause all Registrable Securities
to be listed on any securities exchange on which similar debt or equity
securities issued by the Company are then listed, if any;
(q) use its best efforts to cause the Registrable Securities
to be rated with the appropriate rating agencies, if so requested by
the Majority Holders or by the underwriter
11
or underwriters of an underwritten offering of Registrable Securities,
if any, unless the Registrable Securities are already so rated;
(r) otherwise comply with all applicable rules and regulations
of the SEC and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering at least twelve
(12) months which shall satisfy the provisions of Section 11(a) of the
1933 Act and Rule 158 thereunder; and
(s) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter and its counsel (including any "qualified
independent underwriter" that is required to be retained in accordance
with the rules and regulations of the NASD).
Each Holder of Registrable Securities agrees that if such Holder wishes
to sell Registrable Securities pursuant to the Registration Statement and the
related Prospectus, it will deliver a Notice and Questionnaire to the Company at
least three Business Days prior to any intended distribution of the Registrable
Securities pursuant to the Registration Statement. Upon receipt of such
completed Notice and Questionnaire, together with such other information as the
Company may reasonably request from a Holder of Notes following the
effectiveness of the Registration Statement, the Company, as promptly as
reasonably practicable, but in any event within five business days of such
receipt, file such amendments to the Registration Statement or supplements to
the related Prospectus as are necessary to permit such Holder to deliver such
Prospectus to Purchasers of Registrable Securities, subject to the right of the
Company to suspend the use of the Prospectus as discussed herein. Any Holder
that does not complete and deliver a Notice and Questionnaire or provide such
other information will not be named as a selling Holder in the Prospectus and
therefore will not be permitted to sell any registrable securities pursuant to
the Registration Statement.
Each Holder agrees that, upon receipt of any notice from the Company of
the happening of any event or the discovery of any facts, each of the kind
described in Sections 3(e)(ii), 3(e)(iii) or 3(e)(v) through 3(e)(vii) hereof,
such Holder will forthwith discontinue disposition of Registrable Securities
pursuant to a Registration Statement until receipt by such Holder of (i) the
copies of the supplemented or amended Prospectus contemplated by Section 3(j)
hereof or (ii) written notice from the Company that the Shelf Registration is
once again effective or that no supplement or amendment is required. If so
directed by the Company, such Holder will deliver to the Company (at the
Company's expense) all copies in such Holder's possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. Nothing in
this paragraph shall prevent the accrual of Liquidated Damages on any
Securities.
In the event that the Company fails to file any Registration Statement
and maintain the effectiveness of any such Registration Statement as provided
herein, the Company shall not file any Registration Statement with respect to
any securities (within the meaning of Section 2(1) of the 0000 Xxx) of the
Company other than Registrable Securities.
If any of the Registrable Securities covered by any Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will
12
manage such offering will be selected by the Majority Holders of such
Registrable Securities included in such offering and shall be reasonably
acceptable to the Company. No Holder of Registrable Securities may participate
in any underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
4. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Initial
Purchasers, each Holder, each Person who participates as an underwriter (each,
an "Underwriter") and each Person, if any, who controls any Initial Purchaser,
Holder or Underwriter within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto)
pursuant to which Registrable Securities were registered under the 1933
Act, including all documents incorporated therein by reference, or any
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto) or any omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 4(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
any indemnified party), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information
13
furnished to the Company by the Initial Purchasers, any Holder or Underwriter
expressly for use in a Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto).
(b) Each Holder, severally but not jointly, agrees to indemnify and
hold harmless the Company, the Initial Purchasers, each Underwriter and the
other selling Holders, and each of their respective directors and officers, and
each Person, if any, who controls the Company, the Initial Purchasers, any
Underwriter or any other selling Holder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 4(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
with respect to such Holder furnished to the Company by such Holder expressly
for use in the Registration Statement (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto); provided, however, that no
such Holder shall be liable for any claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action or proceeding commenced
against it in respect of which indemnity may be sought hereunder, but failure so
to notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4 (whether or
not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than forty-five (45)
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least thirty (30) days prior to
14
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(e) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the indemnifying party or parties on the one hand and of
the indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative fault of such indemnifying party or parties on the one
hand and the indemnified party or parties on the other hand shall be determined
by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by such indemnifying party or parties or
such indemnified party or parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(f) The Company, the Holders and the Initial Purchasers agree that it
would not be just or equitable if contribution pursuant to this Section 4 were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (e)
above. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 4 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 4, no Initial Purchaser
or Holder shall be required to contribute any amount in excess of the amount by
which the total price at which Registrable Securities sold by it pursuant to a
Registration Statement were offered exceeds the amount of any damages that such
Initial Purchaser, Holder or Underwriter has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser, Holder or Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Initial Purchaser, Holder or Underwriter, as the case may
be, and each director of the Company, each officer of the Company who signed the
Registration Statement and each Person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the
15
same rights to contribution as the Company. The respective obligations of the
Initial Purchasers, Holders, and Underwriters to contribute pursuant to this
Section 4 are several in proportion to the principal amount of Securities sold
by them pursuant to a Registration Statement and not joint.
The indemnity and contribution provisions contained in this Section 4
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Initial Purchaser, Holder or Underwriter or any Person controlling any
Initial Purchaser, Holder or Underwriter, or by or on behalf of the Company, its
officers, or directors or any Person controlling the Company, and (iii) any sale
of Registrable Securities pursuant to a Registration Statement.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file all reports required to be filed by it under the
1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder, that if it ceases to be so required
to file such reports, it will upon the request of any Holder or beneficial owner
of Registrable Securities (a) make publicly available such information
(including, without limitation, the information specified in Rule 144A(d)(4)
under the 0000 Xxx) as is necessary to permit sales pursuant to Rule 144 under
the 1933 Act, (b) deliver or cause to be delivered, promptly following a request
by any Holder or beneficial owner of Registrable Securities or any prospective
purchaser or transferee designated by such Holder or beneficial owner, such
information (including, without limitation, the information specified in Rule
144A(d)(4) under the 0000 Xxx) as is necessary to permit sales pursuant to Rule
144A under the 1933 Act and it will take such further action as any Holder or
beneficial owner of Registrable Securities may reasonably request, and (c) take
such further action that is reasonable in the circumstances, in each case, to
the extent required from time to time to enable such Holder to sell its
Registrable Securities without registration under the 1933 Act within the
limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act,
as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder or
beneficial owner of Registrable Securities, the Company will deliver to such
Holder a written statement as to whether it has complied with such requirements.
5.2 No Inconsistent Agreements. The Company has not entered into nor
will the Company on or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not and will not in any way
conflict with and are not and will not be inconsistent with the rights granted
to the holders of any of the Company's other issued and outstanding securities
under any other agreements entered into by the Company or any of its
subsidiaries.
5.3 Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of Holders of at
least a majority in aggregate principal amount of
16
the outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure.
5.4 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telecopier or any courier guaranteeing overnight delivery (a)
if to a Holder (other than the Initial Purchasers), at the most current address
set forth on the records of the registrar under the Indenture, (b) if to an
Initial Purchaser, at the most current address given by such Initial Purchaser
to the Company by means of a notice given in accordance with the provisions of
this Section 5.4, which address initially is the address set forth in the
Purchase Agreement with respect to such Initial Purchaser, (c) if to the
Company, initially at the Company's address set forth in the Purchase Agreement,
and thereafter at such other address of which notice is given in accordance with
the provisions of this Section 5.4, and (d) if to any Underwriter, at the most
current address given by such Underwriter to the Company by means of a notice
given in accordance with the provisions of this Section 5.4, which address
initially is the address set forth in the applicable underwriting agreement.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged, if telecopied; and on the next business day if timely delivered to
an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
5.5 Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms hereof or of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
5.6 Third Party Beneficiaries. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries of the agreements made hereunder between the Company, on the
one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.
17
5.7 Restriction on Resales. If (i) the Company or any of its
subsidiaries or affiliates (as defined in Rule 144 under the 0000 Xxx) shall
redeem, purchase or otherwise acquire any Registrable Security which is a
"restricted security" within the meaning of Rule 144 under the 1933 Act, the
Company will deliver or cause to be delivered such Registrable Security to the
Trustee for cancellation and neither the Company nor any of its subsidiaries or
affiliates will hold or resell such Registrable Security or issue any new
Security to replace the same.
5.8 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
5.9 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
5.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.11 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FINISAR CORPORATION
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: President & Chief Executive Officer
Confirmed and accepted as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXXX & SONS, INC.
CIBC WORLD MARKETS CORP.
XXXXXXX & COMPANY, INC.
RBC XXXX XXXXXXXX INC.
SOUNDVIEW TECHNOLOGY CORPORATION
XXXXXX XXXXXX PARTNERS LLC
BY: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
---------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Director
