3,600,000 Shares FINISAR CORPORATION COMMON STOCK, $0.001 PAR VALUE PER SHARE UNDERWRITING AGREEMENT
Exhibit 1.1
EXECUTION VERSION
3,600,000 Shares
FINISAR CORPORATION
COMMON STOCK, $0.001 PAR VALUE PER SHARE
December 20, 2010
December 20, 2010
Credit Suisse Securities (USA) LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
Finisar Corporation, a Delaware corporation (the “Company”), proposes to issue and sell to
Credit Suisse Securities (USA) LLC (the “Underwriter”) an aggregate of 3,600,000 shares of the
Common Stock, $0.001 par value per share, of the Company (the “Firm Shares”).
The Company also proposes to issue and sell to the Underwriter not more than an additional
540,000 shares of the Common Stock, $0.001 par value per share, of the Company (the “Additional
Shares”), if and to the extent that the Underwriter shall have determined to exercise the right to
purchase such shares of common stock granted to the Underwriter in Section 3 hereof. The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the “Shares.” The
shares of Common Stock, $0.001 par value per share, of the Company to be outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to as the “Common Stock.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement, including a prospectus, on Form S-3 (File No. 333-165479) relating to shelf
securities (the “Shelf Securities”), including the Shares. The registration statement as amended
to the date of this Underwriting Agreement (the “Agreement”), including the information (if any)
deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B
under the Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as
the “Registration Statement”; the related prospectus covering the Shelf Securities dated March 15,
2010, in the form first used to confirm sales of Shares (or in the form first made available to the
Underwriter by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities
Act) is hereinafter referred to as the “Base Prospectus.” The Base Prospectus, as supplemented by
the prospectus supplement specifically relating to the Shares in the form first used to confirm
sales of the Shares (or in the form first made available to the Underwriter by the Company to meet
requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as
the “Prospectus,” and the term preliminary prospectus means the preliminary form of the Prospectus,
if any, distributed to prospective purchasers of the Shares.
For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule
405 under the Securities Act, “Time of Sale Prospectus” means the preliminary prospectus, together
with the free writing prospectuses, if any, identified in Schedule I hereto, and “broadly available
road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the
Securities Act that has been made available without restriction to any person. As used herein, the
terms “Registration Statement,” “Base Prospectus,” “preliminary
prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated
by reference therein. The terms “supplement,” “amendment” and “amend” as used herein with respect
to the Registration Statement, the Base Prospectus, the Prospectus, the Time of Sale Prospectus or
any free writing prospectus shall include all documents subsequently filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that
are deemed to be incorporated by reference therein.
1. Representations and Warranties of the Company. The Company represents and warrants to and
agrees with the Underwriter that:
(a) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are
pending before or, to the knowledge of the Company, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) the Registration Statement, when it became effective
and when amended or deemed to be amended pursuant to Rule 430B, did not contain and will not
contain any 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, (iii) the Registration
Statement and the Prospectus comply and, when amended or deemed to be amended pursuant to Rule
430B, will comply in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the
time of each sale of the Shares in connection with the offering when the Prospectus is not yet
available to prospective purchasers and at the Closing Date (as defined in Section 4), the Time of
Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain
any untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
(v) each broadly available road show, if any, when considered together with the Time of Sale
Prospectus, does not, and at the time of each sale of the Shares in connection with the offering
when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as
defined in Section 4), each broadly available road show, if any, when considered together with the
Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not,
contain any untrue statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this paragraph do not apply
to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the
Prospectus based upon information relating to the Underwriter furnished to the Company in writing
by the Underwriter expressly for use therein.
(c) The Company is a “well known seasoned issuer” (as defined in Rule 405 under the Securities
Act) and is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405
and 433 under the Securities Act. Any free writing prospectus that the Company
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is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be,
filed with the Commission in accordance with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. Each free writing prospectus that
the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or
that was prepared by or on behalf of or used or referred to by the Company complies or will comply
in all material respects with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule I hereto, and electronic road shows, if any, each furnished to the
Underwriter before first use, the Company has not prepared, used or referred to, and will not,
without your prior consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the Time of Sale
Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all
of the issued shares of capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned directly by the Company,
free and clear of all liens, encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company conforms as to legal matters in all material
respects to the description thereof contained in each of the Time of Sale Prospectus and the
Prospectus.
(h) The shares of Common Stock outstanding prior to the issuance of the Shares to be sold by
the Company have been duly authorized and are validly issued, fully paid and non-assessable.
(i) The Shares to be sold by the Company have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar
rights.
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(j) The execution and delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) any
provision of the certificate of incorporation or bylaws of the Company, (iii) any agreement or
other instrument binding upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any subsidiary, except,
in the case of clauses (i), (iii) and (iv) above, where such contravention would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole, and no consent,
approval, authorization or order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under this Agreement, except such as
may be required by the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Shares.
(k) There has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus.
(l) The conditions for use of Form S-3, set forth in the General Instructions thereto, have
been satisfied.
(m) There are no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject (i) other than proceedings
accurately described in all material respects in the Time of Sale Prospectus and proceedings that
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or
on the power or ability of the Company to perform its obligations under this Agreement or to
consummate the transactions contemplated by the Time of Sale Prospectus or (ii) that are required
to be described in the Registration Statement or the Prospectus and are not so described; and there
are no statutes, regulations, contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(n) Each preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(o) The Company is not, and after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus will not be, required to
register as an “investment company” as such term is defined in the Investment Company Act of 1940,
as amended.
(p) The Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other
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approvals required of them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(q) There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(r) Except as described in the Time of Sale Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with respect to any securities of
the Company or to require the Company to include such securities with the Shares registered
pursuant to the Registration Statement.
(s) There are no contracts, other documents or other agreements required to be described in
the Registration Statement or to be filed as exhibits to the Registration Statement by the
Securities Act or by the rules and regulations thereunder which have not been described or filed as
required.
(t) Neither the Company nor any of its subsidiaries or affiliates, nor any director, officer,
or employee, nor, to the Company’s knowledge, any agent or representative of the Company or of any
of its subsidiaries or affiliates, has taken or will take any action in furtherance of an offer,
payment, promise to pay, or authorization or approval of the payment or giving of money, property,
gifts or anything else of value, directly or indirectly, to any “government official” (including
any officer or employee of a government or government-owned or controlled entity or of a public
international organization, or any person acting in an official capacity for or on behalf of any of
the foregoing, or any political party or party official or candidate for political office) to
influence official action or secure an improper advantage; and the Company and its subsidiaries and
affiliates have conducted their businesses in compliance with applicable anti-corruption laws and
have instituted and maintain and will continue to maintain policies and procedures designed to
promote and achieve compliance with such laws and with the representation and warranty contained
herein.
(u) Each of the Company and its subsidiaries has good and marketable title in fee simple to
all real property and good and marketable title to all personal property owned by it which is
material to the business of the Company and its subsidiaries, taken as a whole, in each case free
and clear of all liens, encumbrances and defects except such as are described in the Time of Sale
Prospectus or such as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the Company or its
subsidiaries are held by them under valid, subsisting and enforceable leases with
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such exceptions as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries, in each case except as
described in the Time of Sale Prospectus.
(v) (i) The Company and its subsidiaries own, possess, or have valid, binding and enforceable
licenses or other rights to use, or can acquire such ownership or right to use on reasonable terms,
the patents, patent rights and patent applications, copyrights, trademarks, service marks, trade
names, Internet domain names, technology, confidential information, software, know-how, (including
trade secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) and other intellectual property and proprietary rights necessary for or
material to the conduct of their business in the manner in which it is presently being conducted
and in the manner set forth in the Time of Sale Prospectus (collectively, the “Company Intellectual
Property”); (ii) (A) except as set forth in the Time of Sale Prospectus, neither the Company nor
any of its subsidiaries has received any challenge (including without limitation, notices of
expiration) to the validity or enforceability of any patent or patent application that is material
to the conduct of the business of the Company and its subsidiaries, taken as a whole (collectively,
the “Company Patents”) from any third party or governmental authority, and the Company and its
subsidiaries have made all filings and paid all fees necessary to maintain any Company Patents
owned by any of them, and (B) except as set forth in the Time of Sale Prospectus, neither the
Company nor any of its subsidiaries has received any challenge (including without limitation,
notices of expiration) to the validity or enforceability of such other Company Intellectual
Property from any third party or governmental authority, and the Company and its subsidiaries have
made all filings and paid all fees necessary to maintain any Company Intellectual Property owned by
any of them; (iii) the Company and its subsidiaries have taken reasonable measures necessary to
secure their interests in Company Intellectual Property, including the confidentiality of all trade
secrets and confidential information which constitutes Company Intellectual Property, and to secure
assignment of Company Intellectual Property from its employees and contractors; (iv) the Company is
not aware of any Company Intellectual Property required to be described in the Time of Sale
Prospectus that is not so described; (v) except as set forth in the Time of Sale Prospectus,
neither the Company nor any of its subsidiaries has received any claim of infringement or
misappropriation of (and the Company does not know of any infringement or misappropriation of)
intellectual property rights of others by the Company or any of its subsidiaries (A) with respect
to the Company Patents or (B) with respect to the Company Intellectual Property, in either case, if
an unfavorable decision, ruling or finding would have a material adverse effect on the Company and
its subsidiaries, taken as a whole; (vi) the Company and its subsidiaries are not in breach of, and
have complied in all material respects with all terms of, any license or other agreement relating
to any Company Intellectual Property, and no party to any such agreement has given the Company or
its subsidiaries notice of its intention to cancel, terminate, alter the scope of rights under or
fail to renew any such agreement; and (vii) except as set forth in the Time of Sale Prospectus, no
suit or other proceeding is pending against the Company or any of its subsidiaries concerning any
agreement concerning the Company Intellectual Property, including any proceeding concerning a claim
that the Company or its subsidiaries or another person has breached any such agreement, with
respect to which an unfavorable decision, ruling or finding would have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
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(w) All patent applications owned by the Company and its subsidiaries and filed with the
United States Patent and Trademark Office (the “PTO”) or any foreign or international patent
authority (the “Company Patent Applications”) that are material to the conduct of their business
have been duly and properly filed; the Company has complied with its duty of candor and disclosure
to the PTO for the Company Patent Applications; the Company is not aware of any facts required to
be disclosed to the PTO that were not disclosed to the PTO and which would preclude the grant of a
patent for the Company Patent Applications; and the Company has no knowledge of any facts which
would preclude it from having clear title to the Company Patent Applications that have been
identified by the Company as being exclusively owned by the Company.
(x) No material labor dispute with the employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company, is imminent; and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that would reasonably be expected to have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(y) The Company and its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as the Company believes are
prudent and customary in the businesses in which they are engaged. The Company has no reason to
believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or obtain similar coverage from similar insurers as may be necessary to continue its
business.
(z) The Company and its subsidiaries are in compliance in all material respects with, and
conduct their respective businesses in conformity in all material respects with, all applicable
federal, state and local laws and regulations.
(aa) The Company and each of its subsidiaries has timely filed all material federal, state,
local and foreign income and franchise tax returns required to be filed and are not in default in
the payment of any taxes which were payable pursuant to said returns or any assessments with
respect thereto, other than any that the Company or such Subsidiary is contesting in good faith.
There is no pending dispute with any taxing authority relating to any of such returns, and the
Company has no knowledge of any proposed liability for any tax to be imposed upon the properties or
assets of the Company or any of its subsidiaries for which there is not an adequate reserve
reflected in the Company’s financial statements included in the Registration Statement, the Time of
Sale Prospectus and the Prospectus.
(bb) The historical financial statements (including the related notes and supporting schedule)
contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, (i) comply in all material respects with the applicable requirements under the
Securities Act and the Exchange Act (except that certain supporting schedules are omitted), (ii)
present fairly in all material respects the financial position, results of operations and cash
flows of the entities purported to be shown thereby on the basis stated therein at the respective
dates or for the respective periods, and (iii) have been prepared in accordance with accounting
principles generally accepted in the United States of America consistently applied throughout the
periods involved, except to the extent disclosed therein.
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Nothing has come to the attention of the Company that has caused it to believe that
the statistical and market-related data included in the Registration Statement, the Time of Sale
Prospectus and the Prospectus is not based on or derived from sources that are reliable and
accurate in all material respects.
(cc) The Company maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with U.S. generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. Except as described in the Time of Sale Prospectus, since the end of
the Company’s most recent audited fiscal year, there has been (i) no material weakness in the
Company’s internal control over financial reporting (whether or not remediated) and (ii) no change
in the Company’s internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over financial reporting.
(dd) The Company has not sold, issued or distributed any shares of Common Stock during the
six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or
Regulation D or S of, the Securities Act, other than shares issued pursuant to employee benefit
plans, stock option plans or other employee compensation plans or pursuant to outstanding options,
rights or warrants.
(ee) Each material contract, agreement and license to which the Company or any of its
subsidiaries is bound is valid, binding, enforceable, and in full force and effect against the
Company or its subsidiaries, as applicable, and each other party thereto, except as enforceability
may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and
general principles of equity. Except as described in the Time of Sale Prospectus, neither the
Company nor any other party is in breach or default in any material respect with respect to any
such contract, agreement or license, and no event has occurred which with notice or lapse of time
would constitute a material breach or default, or permit termination, modification, or
acceleration, under any such contract, agreement or license. No party has repudiated any material
provision of any such contract, agreement or license.
(ff) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act, such
disclosure controls and procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Company’s co-principal executive officers
and principal financial officer by others within those entities. The Company has utilized such
controls and procedures in preparing and evaluating the disclosures in the Registration Statement,
the Time of Sale Prospectus and the Prospectus.
(gg) The operations of the Company and its subsidiaries are and have been conducted at all
times in material compliance with all applicable financial recordkeeping and reporting
requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting
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and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes
of jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no
action, suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.
(hh) (i) The Company represents that neither the Company nor any of its subsidiaries
(collectively, the “Entity”) or any director, officer, employee, or, to the Company’s knowledge,
any agent, affiliate or representative of the Entity, is an individual or entity (“Person”) that
is, or is owned or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control, the United Nations
Security Council, the European Union, Her Majesty’s Treasury, or other relevant
sanctions authority (collectively, “Sanctions”), nor
(B) located, organized or resident in a country or territory that is the
subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran,
North Korea, Sudan and Syria).
(ii) The Entity represents and covenants that it will not, directly or indirectly, use the
proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or
in any country or territory that, at the time of such funding or facilitation, is
the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any
Person (including any Person participating in the offering, whether as underwriter,
advisor, investor or otherwise).
(iii) The Entity represents and covenants that for the past five years, it has not knowingly
engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions
with any Person, or in any country or territory, that at the time of the dealing or transaction is
or was the subject of Sanctions.
2. [RESERVED]
3. Agreements to Sell and Purchase. On the basis of the representations and warranties herein
contained, but subject to the terms and conditions hereinafter stated, the Company hereby agrees to
sell to the Underwriter, and the Underwriter agrees to purchase from the Company, at $28.54 a share
(the “Purchase Price”) the Firm Shares.
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On the basis of the representations and warranties herein contained, and subject to the terms
and conditions hereinafter stated, the Company hereby grants to the Underwriter an option to
purchase up to 540,000 Additional Shares at the Purchase Price; provided, however, that the amount
paid by the Underwriter for any Additional Shares shall be reduced by an amount per share equal to
any cash dividends declared by the Company and payable on the Firm Shares but not payable on such
Additional Shares. The Underwriter may exercise this right on behalf of the in whole or from time
to time in part by giving written notice not later than 30 days after the date of this Agreement.
Any exercise notice (an “Exercise Notice”) shall specify the number of Additional Shares to be
purchased by the Underwriter and the date on which such shares are to be purchased. Each purchase
date must be at least one business day after the written notice is given and may not be earlier
than the closing date for the Firm Shares nor later than ten business days after the date of such
notice. Additional Shares may be purchased as provided in Section 4 hereof solely for the purpose
of covering over-allotments made in connection with the offering of the Firm Shares. On each day,
if any, that Additional Shares are to be purchased (an “Option Closing Date”), on the basis of the
representations and warranties herein contained, and subject to the terms and conditions
hereinafter stated, the Underwriter agrees to purchase the number of Additional Shares set forth in
the Exercise Notice. Subject to the foregoing, on each Option Closing Date, on the basis of the
representations and warranties herein contained, and subject to the terms and conditions
hereinafter stated, the Company agrees to sell to the Underwriter the number of Additional Shares
set forth in the Exercise Notice.
The Company agrees that, without the prior written consent of the Underwriter, it will not,
during the period ending 45 days after the date of the Prospectus, (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly
or indirectly, any shares of Common Stock or any other securities so owned convertible into or
exercisable or exchangeable for Common Stock; or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of the
Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise; or (3) file any
registration statement with the Commission relating to the offering of any shares of Common Stock
or any securities convertible into or exercisable or exchangeable for Common Stock.
The restrictions contained in the preceding paragraph shall not apply to (a) the Shares to be
sold hereunder, (b) the issuance by the Company of shares of Common Stock upon the exercise of an
option or warrant or the conversion of a security outstanding on the date hereof of which the
Underwriter has been advised in writing, (c) grants of employee or director stock options,
restricted stock or restricted stock units in accordance with the terms of any employee benefit
plan in effect on the date hereof that is described in the Time of Sale Prospectus or the issuance
by the Company of shares of Common Stock upon the exercise of such options or pursuant to the terms
of such restricted stock units, (d) the filing of any registration statement on Form S-8 in respect
of any employee benefit plan in effect on the date hereof and described in the Time of Sale
Prospectus, and (e) the issuance by the Company of up to 7,500,000 shares of Common Stock (or
options, warrants or convertible securities relating to shares of Common Stock) in connection with
bona fide mergers or acquisitions, joint ventures, commercial relationships or other strategic
transactions, provided that the acquiree of any such shares of Common Stock (or options, warrants
or convertible securities relating to shares of Common
10
Stock) so issued enters into an agreement in the form of Exhibit A hereto with respect to such
shares of Common Stock (or options, warrants or convertible securities relating to shares of Common
Stock) for the remainder of the 45-day restricted period.
4. Terms of Public Offering. The Underwriter hereby advises the Company that the Underwriter
intends to offer for sale to the public, initially on the terms set forth in the Prospectus, the
Shares as soon after this Agreement has been executed as the Underwriter, in its sole judgment, has
determined is advisable and practicable.
5. Payment and Delivery. Payment for the Firm Shares shall be made to the Company in Federal
or other funds immediately available in New York City against delivery of such Firm Shares for the
respective account of the Underwriter at 10:00 a.m., New York City time, on December 27, 2010, or
at such other time on the same or such other date, not later than January 3, 2011, as shall be
designated in writing by the Underwriter. The time and date of such payment are hereinafter
referred to as the “Closing Date.”
Payment for any Additional Shares sold by the Company shall be made to the Company in Federal
or other funds immediately available in New York City against delivery of such Additional Shares
for the account of the Underwriter at 10:00 a.m., New York City time, on the date specified in the
corresponding notice described in Section 3 or at such other time on the same or on such other
date, in any event not later than the tenth business day thereafter, as shall be designated in
writing by the Underwriter.
The Firm Shares and Additional Shares shall be registered in such names and in such
denominations as the Underwriter shall request in writing not later than one full business day
prior to the Closing Date or the applicable Option Closing Date, as the case may be. The Firm
Shares and Additional Shares shall be delivered to the Underwriter on the Closing Date or an Option
Closing Date, as the case may be, for the account of the Underwriter, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriter duly paid, against payment
of the Purchase Price therefor.
6. Conditions to the Underwriter’s Obligations. The obligations of the Underwriter is subject
to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given
of any intended or potential downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the rating accorded any of the
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that set forth in
the Time of Sale Prospectus as of the date of this Agreement that, in the Underwriter’s
11
judgment, is material and adverse and that makes it, in the Underwriter’s judgment,
impracticable to market the Shares on the terms and in the manner contemplated in the Time
of Sale Prospectus.
(b) The Underwriter shall have received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a)(i)
above and to the effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Underwriter shall have received on the Closing Date from DLA Piper LLP (US), counsel
for the Company, (i) an opinion dated the Closing Date substantially in the form of Exhibit B-1
hereto and (ii) a negative assurance letter dated the Closing Date substantially in the form of
Exhibit B-2 hereto.
(d) The Underwriter shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxxx &
Co., Malaysian counsel for the Company, dated the Closing Date, substantially in the form of
Exhibit C hereto.
(e) The Underwriter shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Underwriter, dated the Closing Date,
with respect to such matters as the Underwriter reasonably requests.
The opinions of DLA Piper LLP (US) described in Section 6(c) above shall be rendered to the
Underwriter at the request of the Company and shall so state therein.
(f) The Underwriter shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriter, from Ernst & Young LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial information contained
in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the
letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(g) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the
Underwriter and certain stockholders, officers and directors of the Company relating to sales and
certain other dispositions of shares of Common Stock or certain other securities, delivered to the
Underwriter on or before the date hereof, shall be in full force and effect on the Closing Date.
(h) At the Closing Date, the Company shall have used its best efforts to list the Shares on
the Nasdaq Global Select Market.
12
The obligation of the Underwriter to purchase Additional Shares hereunder on the applicable
Option Closing Date is subject to the satisfaction of the conditions set forth above as of the
Option Closing Date, and delivery to the Underwriter of the items set forth above, in each case
given or dated as of the applicable Option Closing Date.
7. Covenants of the Company. The Company covenants with the Underwriter as follows:
(a) To furnish to the Underwriter, without charge, five signed copies of the Registration
Statement (including exhibits thereto and documents incorporated therein by reference) and to
furnish to the Underwriter in New York City, without charge, prior to 10:00 a.m. New York City time
on the business day next succeeding the date of this Agreement and during the period mentioned in
Section 7(e) or 7(f) below, as many copies of the Time of Sale Prospectus, the Prospectus, any
documents incorporated therein by reference and any supplements and amendments thereto or to the
Registration Statement as the Underwriter may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to the Underwriter a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to which the Underwriter
reasonably objects, and to file with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) To furnish to the Underwriter a copy of each proposed free writing prospectus to be
prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any
proposed free writing prospectus to which the Underwriter reasonably objects.
(d) Not to take any action that would result in the Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time
when the Prospectus is not yet available to prospective purchasers and any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration Statement then on file, or
if, in the opinion of counsel for the Underwriter, it is necessary to amend or supplement the Time
of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriter and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time
of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of
Sale Prospectus, as amended or supplemented, will no longer conflict with the
13
Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented,
will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the
opinion of counsel for the Underwriter the Prospectus (or in lieu thereof the notice referred to in
Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriter, it is necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to
the Underwriter and to the dealers (whose names and addresses the Underwriter will furnish to the
Company) to which Shares may have been sold by the Underwriter to any other dealers upon request,
either amendments or supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser,
be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable
law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws
of such jurisdictions as the Underwriter shall reasonably request; provided, however, that nothing
contained herein shall require the Company to qualify to do business in any jurisdiction, to
execute a general consent of process in any state or to subject itself to taxation in any
jurisdiction in which it is otherwise not subject.
(h) To make generally available to the Company’s security holders and to the Underwriter as
soon as practicable an earning statement covering a period of at least twelve months beginning with
the first fiscal quarter of the Company occurring after the date of this Agreement which shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(i) If the third anniversary of the initial effective date of the Registration Statement
occurs before all of the Shares have been sold by the Underwriter, prior to the third anniversary
to file a new shelf registration statement and to take any other action necessary to permit the
public offering of the Shares to continue without interruption; references herein to the
Registration Statement shall include the new registration statement declared effective by the
Commission.
(j) To prepare a final term sheet relating to the offering of the Shares, containing only
information that describes the final terms of the offering in a form consented to by the
Underwriter, and to file such final term sheet within the period required by Rule 433(d)(5)(ii)
under the Securities Act following the date the final terms have been established for the offering
of the Shares.
8. Expenses. Whether or not the transactions contemplated in this Agreement are consummated
or this Agreement is terminated, the Company agrees to pay or cause to be paid all
14
expenses incident to the performance of its obligations under this Agreement, including: (i)
the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in
connection with the registration and delivery of the Shares under the Securities Act and all other
fees or expenses in connection with the preparation and filing of the Registration Statement, any
preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus
prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements
to any of the foregoing, including all printing costs associated therewith, and the mailing and
delivering of copies thereof to the Underwriter and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery of the Shares to the
Underwriter, including any transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with the qualification of the
Shares for offer and sale under state securities laws as provided in Section 7(g) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the Underwriter in connection
with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv)
all filing fees and the reasonable fees and disbursements of counsel to the Underwriter incurred in
connection with the review and qualification of the offering of the Shares by the Financial
Industry Regulatory Authority, Inc., (v) all costs and expenses incident to listing the Shares on
the Nasdaq Global Select Market, (vi) the cost of printing certificates representing the Shares,
(vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and
expenses of the Company relating to investor presentations on any “road show” undertaken in
connection with the marketing of the offering of the Shares, including, without limitation,
expenses associated with the preparation or dissemination of any electronic road show, expenses
associated with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of the Company and any
such consultants, except that the Underwriter and the Company will each pay half of the cost of any
aircraft chartered in connection with the road show, (ix) the document production charges and
expenses associated with printing this Agreement and (x) all other costs and expenses incident to
the performance of the obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except as provided in this Section, Section
10 entitled “Indemnity and Contribution” and the last paragraph of Section 12 below, the
Underwriter will pay all of their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Shares by them and any advertising
expenses connected with any offers they may make.
The provisions of this Section shall not supersede or otherwise affect any agreement that the
Company may otherwise have for the allocation of such expenses among themselves.
9. Covenants of the Underwriter. The Underwriter covenants with the Company not to take any
action that would result in the Company being required to file with the Commission under Rule
433(d) a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would
not be required to be filed by the Company thereunder, but for the action of the Underwriter.
15
10. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless the
Underwriter, each person, if any, who controls the Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of the Underwriter
within the meaning of Rule 405 under the Securities Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act,
any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act, or the Prospectus or any amendment or supplement thereto, or caused by
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to the Underwriter furnished to the Company
in writing by the Underwriter expressly for use therein.
(b) The Underwriter agrees to indemnify and hold harmless the Company the directors of the
Company, the officers of the Company who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the
Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the
Prospectus (as amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading, but
only with reference to information relating to the Underwriter furnished to the Company in writing
by the Underwriter expressly for use in the Registration Statement, any preliminary prospectus, the
Time of Sale Prospectus, any issuer free writing prospectus or the Prospectus or any amendment or
supplement thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 10(a) or
10(b), such person (the “indemnified party”) shall promptly notify the person against whom such
indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the
16
indemnified party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is understood that
the indemnifying party shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i)
the fees and expenses of more than one separate firm (in addition to any local counsel) for the
Underwriter and all persons, if any, who control the Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of the
Underwriter within the meaning of Rule 405 under the Securities Act and (ii) the fees and expenses
of more than one separate firm (in addition to any local counsel) for the Company, its directors,
its officers who sign the Registration Statement and each person, if any, who controls the Company
within the meaning of either such Section. In the case of any such separate firm for the
Underwriter and such control persons and affiliates of the Underwriter, such firm shall be
designated in writing by the Underwriter. In the case of any such separate firm for the Company,
and such directors, officers and control persons of the Company, such firm shall be designated in
writing by the Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the
second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims that are the subject
matter of such proceeding and does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of an indemnified party.
(d) To the extent the indemnification provided for in Section 10(a) or 10(b) is unavailable to
an indemnified party or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the indemnifying party or parties on
the one hand and the indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 10(d)(i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits referred to in clause
10(d)(i) above but also 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, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company on the one hand
and the Underwriter on the other hand in connection with the offering of the Shares shall be deemed
to be in the same respective proportions as the net proceeds from the offering of
17
the Shares (before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriter, in each case as set forth in the table on
the cover of the Prospectus, bear to the aggregate price to the public of the Shares. The relative
fault of the Company on the one hand and the Underwriter on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriter and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriter agree that it would not be just or equitable if
contribution pursuant to this Section 10 were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable considerations referred to in
Section 10(d). The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in Section 10(d) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 10, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages that the Underwriter has otherwise been required to pay by reason of 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 10 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 10 and the
representations, warranties and other statements of the Company contained in this Agreement 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 the Underwriter, any person controlling the
Underwriter or any affiliate of the Underwriter or the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any of the Shares.
11. Termination. The Underwriter may terminate this Agreement by notice given by the
Underwriter to the Company, if after the execution and delivery of this Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as
the case may be, any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global
Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange
or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or
clearance services in the United States shall have occurred, (iv) any moratorium on commercial
banking activities shall have been declared by Federal or New York State authorities or (v) there
shall have occurred any outbreak or escalation of hostilities, or any change in financial markets
or any calamity or crisis that, in the Underwriter’s judgment, is material and adverse and which,
singly or together with any other event specified in this clause (v), makes it, in the
Underwriter’s judgment, impracticable or
18
inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and in the
manner contemplated in the Time of Sale Prospectus or the Prospectus.
12. Effectiveness. This Agreement shall become effective upon the execution and delivery
hereof by the parties hereto.
If this Agreement shall be terminated by the Underwriter because of any failure or refusal on
the part of the Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriter for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by the Underwriter in connection with
this Agreement or the offering contemplated hereunder.
13. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Shares, represents the entire agreement between the Company and the
Underwriter with respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
(b) The Company acknowledges that in connection with the offering of the Shares: (i) the
Underwriter has acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the Underwriter owes the Company only those duties and
obligations set forth in this Agreement and prior written agreements (to the extent not superseded
by this Agreement), if any, and (iii) the Underwriter may have interests that differ from those of
the Company. The Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriter arising from an alleged breach of fiduciary duty in connection with
the offering of the Shares.
14. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
15. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
16. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
17. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriter at Eleven Madison Avenue, New York, New York 10010-3629, Attention:
LCD-IBD, with a copy to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, 000 Xxxx Xxxx
Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxx, Esq., and if to the Company shall be
delivered, mailed or sent to it at 0000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Chief Financial Officer (telecopy no. (000) 000-0000), with copies to it at 000 Xxxxxxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxx, 00000, Attention: Vice President, General Counsel and Secretary and to DLA
Piper LLP (US), 0000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxxxx, Esq. (telecopy no. (000) 000-0000).
19
| Very truly yours, FINISAR CORPORATION |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | CEO | |||
|
Accepted as of the date hereof CREDIT SUISSE SECURITIES (USA) LLC |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Managing Director | |||
20
SCHEDULE I
Time of Sale Prospectus
None.
EXHIBIT A
Form of Lock-Up Letter
December __ 2010
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, N.Y. 10010-3629
Eleven Madison Avenue
New York, N.Y. 10010-3629
Ladies and Gentlemen:
The undersigned understands that Credit Suisse Securities (USA) LLC (the “Underwriter”)
proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Finisar
Corporation, a Delaware corporation (the “Company”), providing for the public offering (the “Public
Offering”) by the Underwriter, of shares (the “Shares”) of the Common Stock, $0.001 par value of
the Company (the “Common Stock”).
To induce the Underwriter to continue its efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of the Underwriter, it will not,
during the period commencing on the date hereof and ending forty-five (45) days after the date of
the final prospectus relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly
or indirectly, any shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned or any
other securities so owned convertible into or exercisable or exchangeable for Common Stock or (2)
enter into any swap or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise.
The foregoing sentence shall not apply to the sale of securities pursuant to the terms of the
Underwriting Agreement or to (a) sales of the Shares or transactions involving or relating to
shares of Common Stock or other securities acquired in open market transactions after the
completion of the Public Offering, provided that no filing under Section 16(a) of the Exchange Act
of 1934 shall be required or shall be voluntarily made in connection with subsequent sales of
Common Stock or other securities acquired in such open market transactions; (b) transfers of shares
of Common Stock or any security convertible into Common Stock as a bona fide gift, or upon the
death of the undersigned, by will or intestate succession to the undersigned’s immediate family
(which, when used herein, shall mean any relationship by blood, marriage or adoption not more
remote than first cousin); (c) transfers of shares of Common Stock or any security convertible into
Common Stock to a trust, the beneficiaries of which are exclusively the undersigned or members of
the undersigned’s immediate family, provided that in the case of a transfer or distribution
pursuant to clause (b) or (c), (i) each donee or distributee shall sign and deliver a lock-up
letter substantially in the form of this letter and (ii) no filing under Section
16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common
Stock, shall be required or shall be voluntarily made during the restricted period referred to in
the foregoing sentence; (d) the disposal or withholding of shares of Common Stock by the Company on
behalf of the undersigned otherwise issuable upon a vesting event of restricted stock units, issued
to the undersigned prior to the date of this agreement under Company stock incentive plans, solely
to satisfy withholding tax obligations; (e) the sale of shares of Common Stock made pursuant to a
trading plan in conformity with Rule 10b5-1 under the Exchange Act established prior to the date
hereof; or (f) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act
for the transfer of shares of Common Stock, provided that such plan does not provide for the
transfer of Common Stock during the restricted period and no public announcement or filing under
the Exchange Act regarding the establishment of such plan shall be required of or voluntarily made
by or on behalf of the undersigned or the Company. In addition, the undersigned agrees that,
without the prior written consent of the Underwriter, it will not, during the period commencing on
the date hereof and ending forty-five (45) days after the date of the Prospectus, make any demand
for or exercise any right with respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common Stock. The undersigned also
agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent
and registrar against the transfer of the undersigned’s shares of Common Stock except in compliance
with the foregoing restrictions.
The undersigned understands that the Company and the Underwriter are relying upon this
agreement in proceeding toward consummation of the Public Offering. The undersigned further
understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs,
legal representatives, successors and assigns. This agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the conflict of laws
principles thereof.
It is understood that the undersigned will be immediately released from the undersigned’s
obligations under this agreement in the event (i) the Underwriting Agreement is not executed by the
parties on or before January 31, 2011, (ii) the Company notifies the Underwriter prior the
execution of the Underwriting Agreement in writing that it does not intend to proceed with the
Public Offering, or (iii) the Underwriting Agreement (other than the provisions thereof which
survive termination) shall terminate or be terminated prior to payment for and delivery of the
Common Stock pursuant to the Underwriting Agreement.
Whether or not the Public Offering actually occurs depends on a number of factors, including
market conditions. Any Public Offering will only be made pursuant to the Underwriting Agreement,
the terms of which are subject to negotiation between the Company and the Underwriter.
| Very truly yours, | ||||
| (Signature) | ||||
| (Printed Name) | ||||
| (Address) |
EXHIBIT B-1
Form of Company Counsel Opinion
(i) the
Company has been duly incorporated and is a validly existing corporation in good
standing under the laws of the State of Delaware, has the corporate power and authority to own its
property and to conduct its business as described in the Time of Sale Prospectus and the Prospectus
and is duly qualified to do business as a foreign corporation, and is in good standing, in the
States of California, New Jersey, Pennsylvania and Texas;
(ii) each
subsidiary of the Company listed on Schedule I hereto has been duly
incorporated and is a validly existing corporation or limited liability company, as applicable,
and is in good standing under the laws of the jurisdiction of its formation, has the corporate
power and authority to own its property and to conduct its business as described in the Time of
Sale Prospectus and is duly qualified to do business as a foreign corporation or limited liability
company, and is in good standing, in the states listed on Schedule I hereto;
(iii) the authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the Prospectus;
(iv) the shares of Common Stock outstanding prior to the issuance of the Securities to be
sold by the Company have been duly authorized and are validly issued, fully paid and
non-assessable;
(v) all of the issued shares of capital stock or limited liability company interests of
each subsidiary of the Company listed on Schedule I hereto have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned directly by the Company,
free and clear of any liens, encumbrances, equities or claims known to us;
(vi) the Securities to be sold by the Company have been duly authorized and, when issued and
delivered in accordance with the terms of the Underwriting Agreement against payment therefor,
will be validly issued, fully paid and non-assessable, and the issuance of such Securities will
not be subject to any preemptive or similar rights to acquire common stock under the certificate
of incorporation or bylaws of the Company, the DGCL or any agreement or other instrument listed on
Schedule II hereto;
(vii) the Underwriting Agreement has been duly authorized, executed and delivered by
the Company;
(viii) the execution and delivery by the Company of, and the performance by the Company of its
obligations under, the Underwriting Agreement will not contravene (a) any provision of United
States federal or California state law or the DGCL applicable to the Company, (b) the certificate
of
incorporation or bylaws of the Company, (c) any agreement or other instrument listed on
Schedule II hereto, (d) any judgment, order or decree of any governmental body, agency or
court of the United States, Delaware (under the DGCL) or California known to us that may be
applicable to the Company or any of its subsidiaries listed on Schedule I hereto, and no
consent, approval, authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations under the Underwriting
Agreement, except (a) such as may be required by the securities or blue sky laws of the various
states in connection with the offer and sale of the Securities and the filing of a Notification:
Listing of Additional Shares with the Nasdaq Stock Market LLC and (b) those that have been
obtained;
(ix) the statements relating to legal matters, documents or proceedings included in (A) the
Time of Sale Prospectus and the Prospectus under the captions “Risk Factors — We are subject to
pending shareholder derivative legal proceedings,” “Material U.S. Federal Income Tax Considerations
for Non-U.S. Holders,” and “Description of Capital Stock”, (B) the Prospectus under the caption
“Underwriter” and (C) Item 15 of the Registration Statement, in each case fairly summarize in all
material respects such matters, documents or proceedings;
(x) we do not know of any legal or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the Registration Statement
or the Prospectus and are not so described or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not described or filed as required; and
the Company is not, and after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus will not be, required to
register as an “investment company” as such term is defined in the Investment Company Act of 1940,
as amended.
EXHIBIT B-2
Form of Company Counsel Negative Assurance Letter
Based upon our participation described above, (A) in our opinion (i) each document filed
pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the
Prospectus (except for the financial statements and financial schedules and other financial data
included therein, as to which we express no opinion) appeared on its face to be appropriately
responsive as of its filing date in all material respects to the requirements of the Exchange Act
and the applicable rules and regulations of the Commission thereunder, and (ii) the Registration
Statement and the Prospectus (except for the financial statements and financial schedules and other
financial data included therein, as to which we express no opinion) appear on their face to be
appropriately responsive in all material respects to the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder, and (B) no facts have come to our
attention that would lead us to believe that (i) the Registration Statement or the prospectus
included therein (other than the financial statements and financial schedules and other financial
data included therein or omitted therefrom, as to which we express no view), as of the time such
Registration Statement became effective and when amended or deemed to be amended pursuant to Rule
430B, contained any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not misleading, (ii) the
Time of Sale Prospectus (other than the financial statements and financial schedules and other
financial data included therein or omitted therefrom, as to which we express no view), as of the
date of the Underwriting Agreement, contained or contains any untrue statement of a material fact
or omitted or omits 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, or (iii) the Prospectus
(other than the financial statements and financial schedules and other financial data included
therein or omitted therefrom, as to which we express no view), as of its date and the date hereof,
contained or contains any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of circumstances under which they
were made, not misleading.
EXHIBIT C
Form of Malaysian Counsel Opinion
Dear Sirs,
FINISAR MALAYSIA SDN BHD (Company No.538677-A) (the “Company”)
This opinion is being delivered to you at the request of Finisar Corporation pursuant to Section
5(f) of the Underwriting Agreement (as defined below). We understand that Finisar Corporation, a
corporation established in Delaware, USA (the “Issuer”), proposes to issue and sell to:
Credit Suisse Securities (USA) LLC (the “Underwriter”), a total aggregate of 4,140,000
shares of the Common Stock, $0.001 par value per share of Finisar Corporation, comprising
3,600,000 shares of the Common Stock (the “Firm Shares”) and an additional 540,000 shares of the
Common Stock (the “Additional Shares”) pursuant to an underwriting agreement dated 20 December
2010 (the “Underwriting Agreement”) entered into between Finisar Corporation and the Underwriter
(the “Transaction”).
| 1. | For the purposes of the Transaction above, we have acted as Malaysian legal counsel for Finisar Malaysia Sdn Bhd (Company No. 538677-A), a wholly owned subsidiary of the Issuer, in connection with the matters set out under paragraph 5 below, under the laws of Malaysia. | |
| 2. | This opinion is limited to the laws of Malaysia of general application published and in effect on the date of this opinion, as currently applied by the courts of Malaysia, and is given on the basis that it will be governed by and construed (including all terms used in it) in accordance with the laws of Malaysia. We have made no investigation of, and do not express or imply any views on, the laws of any country other than Malaysia. | |
| 3. | For the purpose of rendering this opinion, we have examined: |
| (a) | A certified true copy of the Memorandum and Articles of Association of the Company (the “M&A”) (which is enclosed herewith as Appendix I); | ||
| (b) | A certified true copy of the Certificate of Incorporation of Private Company (Form 9) of the Company dated 8 February 2001 (which is enclosed herewith as Appendix II); | ||
| (c) | A certified true copy of each Return of Allotment of Shares (Form 24) dated 13 February 2001, 22 June 2001, 11 February 2003 and 9 September 2004, respectively (collectively, the “Forms 24”) (which are enclosed herewith as Appendix III); | ||
| (d) | A certified true extract of the Members’ Register of the Company setting out the issuance of the 2 subscriber shares to the initial subscribers to the Memorandum of Association, and each acquisition by the Issuer of shares in the Company (the “Members’ Register”) (which is enclosed herewith as Appendix IV); |
| (e) | A certified true copy of a Notice of Situation of Registered Office and Office Hours and Particulars of Change (Form 44) dated 16 March 2007 (which is enclosed herewith as Appendix V); | ||
| (f) | A certified true copy of a Return Giving Particulars in Register of Directors, Managers & Secretaries and Changes of Particulars (Form 49) dated 7 September 2007 (which is enclosed herewith as Appendix VI); | ||
| (g) | A certified true copy of the Annual Return of the Company dated 8 October 2009 (the “Annual Return”) (which is enclosed herewith as Appendix VII); | ||
| (h) | An original letter dated [ Ÿ ] December 2010 from the Company confirming that its issued share capital is fully paid-up (“Confirmation on Share Capital”) (a copy of which is enclosed herewith as Appendix VIII); | ||
| (i) | An original certificate dated [ Ÿ ] December 2010 signed by 2 directors of the Company confirming inter alia that no legal proceedings have been commenced against it, no action threatened for its liquidation nor have any of its business licences been suspended or cancelled (the “Certificate”) (a copy of which is enclosed herewith as Appendix IX); | ||
| (j) | A certified true copy of the minutes of each shareholders’ meeting held on 21 June 2001, 10 February 2003 and 8 September 2004, respectively (collectively, the “Shareholders’ Resolutions”) (each of which are enclosed herewith as Appendix X); | ||
| (k) | A certified true copy of each circular Board resolution dated 8 February 2001, 22 June 2001, 10 February 2003 and 8 September 2004, respectively (collectively, the “Board Resolutions”) (each of which are enclosed herewith as Appendix XI); | ||
| (l) | the results of a company search on the Company at the Companies Commission of Malaysia dated [ Ÿ ] December 2010 based on documents registered with the Companies Commission as at 13 October 2009 (a copy of which is enclosed herewith as Appendix XII); and | ||
| (m) | the results of a winding-up search on the Company made with the Director General of Insolvency on [ Ÿ ] December 2010 (a copy of which is enclosed as Appendix XIII). |
| The Shareholders’ Resolutions and the Board Resolutions shall hereinafter collectively, be referred to as the “Resolutions”. We have no knowledge of the day-to-day operations of the Company and, except to the extent expressly set forth herein, have not undertaken any independent investigation or inquiry into the Company’s affairs or business. Except as stated in this paragraph 3, we |
| have not examined any other documents and have not made any other enquiries concerning the Company. The documents as set out in this paragraph 3 are documents of a type which we would ordinarily request and rely on, in giving our opinion under paragraph 5 below. |
Assumptions
| 4. | For the purpose of this opinion, we have assumed: |
| (a) | that each of the Confirmation on Share Capital and the Certificate has been duly authorized, executed and delivered by or on behalf of the Company. | ||
| (b) | the correctness of all facts stated in the Confirmation on Share Capital and the Certificate. | ||
| (c) | that none of the Company’s signatories to each of the Confirmation on Share Capital and the Certificate has signed the said documents by reason or in consequence (whether wholly or in part) of fraud, mistake, duress, undue influence, misrepresentation or any other similar act, matter or thing which would or might vitiate or prejudicially affect the Underwriting Agreement or otherwise entitle any party to avoid, rescind or have rectified the Underwriting Agreement or any of its obligations under the Underwriting Agreement and/or in connection with the Transaction. | ||
| (d) | the genuineness of all seals and signatures on all documents and the completeness, and the conformity to original documents, of all copies and specimens submitted to us and that any document submitted to us and any authorisation referred to in this opinion continues in full force and effect. | ||
| (e) | that the copy of the Company’s M&A, submitted to us is up to date and incorporates all amendments made thereto. | ||
| (f) | that neither the Underwriter nor any of its officers or employees has notice (or would, on making reasonable enquiry, become aware) of any matter which would adversely affect the validity or regularity of the documents set out under paragraph 3 above. | ||
| (g) | that all other documents or agreements referred to in the documents set out under paragraph 3 above, and which may affect the legality, validity and enforceability of the latter, are themselves legal, valid and enforceable. | ||
| (h) | that the Firm Shares and the Additional Shares (collectively, the “Securities”) fall within the definition of “securities” under the Capital Markets and Services Xxx 0000 (“CMSA”), and either: |
| (i) | Finisar Corporation will not make available, offer for subscription or purchase, or issue an invitation to subscribe for or purchase, the Securities in Malaysia; or |
| (ii) | if Finisar Corporation or the Underwriter do make available, offer for subscription or purchase, or issue an invitation to subscribe for, or purchase the Securities in Malaysia, such offer or invitation will fall within any one or more of the categories of transactions under Schedule 5 to the CMSA, and will constitute an excluded offer or excluded invitation under Schedule 6 or Section 229(1)(b) of the CMSA and an excluded issue under Schedule 7 or Section 230(1)(b) of the CMSA. |
Opinion
| 5. | Based on the documents referred to in paragraph 3 and the assumptions in paragraph 4 above and subject to the qualification in paragraph 6 below and to any matters not disclosed to us, we are of the opinion that: |
| (a) | based on the company search conducted on the Company at the Companies Commission of Malaysia on [ Ÿ ] December 2010, the Company is duly incorporated under the Companies Act, 1965 of Malaysia and is validly existing as a private company with limited liability under the laws of Malaysia. | ||
| (b) | based on the M&A, the Company has the power and capacity to conduct the business it ordinarily conducts; | ||
| (c) | based on the M&A, the Forms 24, the Members’ Register, the Confirmation on Share Capital, the results of the company search conducted on [ Ÿ ] December 2010 (referred to in paragraph 5(a) above), the Annual Return and the Resolutions, respectively: |
| (i) | the Company has a total issued share capital of RM133,000,000-00; | ||
| (ii) | the issued share capital is comprised of 133,000,000 ordinary shares of RM1.00 each in the Company (the “Issued Shares”); | ||
| (iii) | the Issued Shares are fully paid-up; | ||
| (iv) | the issuance of the Issued Shares by the Company on: |
| a. | 8 February 2001 was duly authorized by a Board resolution passed on 8 February 2001, the relevant Form 24 dated 13 February 2001 was duly lodged with the Companies Commission on 21 February 2001 in accordance with Section 54 of the Companies Xxx 0000 and the corresponding entry made on the Members’ Register; | ||
| b. | 22 June 2001 was duly authorized by a shareholders’ resolution passed on 21 June 2001 and a circular Board |
| resolution dated 22 June 2001, the relevant Form 24 dated 22 June 2001 was duly lodged with the Companies Commission on 2 July 2001 in accordance with Section 54 of the Companies Xxx 0000 and the corresponding entry made on the Members’ Register; | |||
| c. | 10 February 2003 was duly authorized by a shareholders’ resolution passed on 10 February 2003 and a circular Board resolution dated 10 February 2003, the relevant Form 24 dated 11 February 2003 was duly lodged with the Companies Commission on 13 February 2003 in accordance with Section 54 of the Companies Xxx 0000 and the corresponding entry made on the Members’ Register; and | ||
| d. | 8 September 2004 was duly authorized by a shareholders’ resolution passed on 8 September 2004 and a circular Board resolution dated 8 September 2004, the relevant Form 24 dated 9 September 2004 was duly lodged with the Companies Commission on 10 September 2004 in accordance with Section 54 of the Companies Xxx 0000 and the corresponding entry made on the Members’ Register, |
| and based on the documents enumerated at paragraphs 5(c)(iv)a. to 5(c)(iv)d. above, the issuance of the Issued Shares was duly authorized and the Issued Shares were validly issued. | |||
| (v) | Finisar Corporation holds all the Issued Shares and is the sole shareholder of the Company. |
| (d) | based on the winding up search dated [ Ÿ ] December 2010 conducted with the Director General of Insolvency, no winding-up order has been made against the Company as at the date of the search. Based on such winding-up search and the Certificate, the Company has not taken any action nor have any steps been taken or legal or administrative proceedings been commenced or threatened for the winding-up, dissolution or liquidation of the Company or for the suspension, withdrawal, revocation or cancellation of any of its business licences. | ||
| (e) | Finisar Corporation is not required to obtain the consent of the Securities Commission of Malaysia prior to issuing and selling the Securities to the Underwriter nor required to register a prospectus in relation to the Securities with the Securities Commission of Malaysia prior to such issue. |
Qualification
| 6. | In addition, this opinion is subject to the following qualification: |
| (a) | that there may be a significant delay between the lodging of documents and the subsequent entry of information from those |
| documents, on the registers maintained with the Companies Commission. The official searches will also not reveal whether or not a winding-up petition has been presented. Notice of a winding-up order made or resolution passed or receiver or manager appointed may not be filed with the Companies Commission immediately and there may be a significant delay between the filing of such notice and its subsequent entry on the register at the Companies Commission. |
Reliance
| 7. | This opinion is given for the sole benefit of the Underwriter. | |
| 8. | This opinion may not be disclosed to anyone else, except that it may be disclosed as required by law or regulation or to any professional adviser, but only on the express basis that they may not rely on it. | |
| 9. | This opinion is not to be quoted or referred to in any public document or filed with anyone without our written consent. |
