voting
EXHIBIT 4.2
VOTING AND EXCHANGE TRUST AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 6th day of July, 1999.
B E T W E E N:
JDS UNIPHASE CANADA LTD.,
a corporation existing under the laws of Canada,
(hereinafter referred to as "Exchangeco"),
OF THE FIRST PART,
- and -
JDS UNIPHASE CORPORATION,
a corporation existing under the laws of the State of
Delaware, (hereinafter referred to as "JDS Uniphase"),
OF THE SECOND PART,
- and -
CIBC MELLON TRUST COMPANY, a trust company
incorporated under the laws of Canada, (hereinafter
referred to as "Trustee"),
OF THE THIRD PART.
WHEREAS pursuant to a merger agreement (the "Merger Agreement")
dated as of January 28, 1999 and amended and restated as of April 29,
1999 among Uniphase Corporation, Exchangeco and JDS FITEL Inc. ("JDS")
and the plan of arrangement (the "Plan of Arrangement") contemplated by
the Merger Agreement, Exchangeco has issued Class B non-voting preference
shares ("Class B Non-Voting Preference Shares") to certain direct or
indirect holders of common shares of JDS;
AND WHEREAS pursuant to the Merger Agreement and the Plan of
Arrangement, Exchangeco is to issue exchangeable shares ("Exchangeable
Shares") to certain holders of Class B Non-Voting Preference Shares in
exchange for such Class B Non-Voting Preference Shares;
AND WHEREAS pursuant to the Merger Agreement and the Plan of
Arrangement and coincident with and as part of the issue of Exchangeable
Shares to certain holders of Class B Non-Voting Preference Shares, JDS
Uniphase and Exchangeco are to execute a voting and exchange trust
agreement substantially in the form of this trust agreement;
NOW THEREFORE in consideration of the respective covenants and
agreements provided in this trust agreement and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto covenant and agree as follows:
ARTICLE 1.
DEFINITIONS AND INTERPRETATION
1.1. Definitions
In this trust agreement, the following terms shall have the
following meanings:
"Affiliate" of any person means any other person directly or
indirectly controlling, controlled by, or under control with, that
person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under
common control with"), as applied to any person, means the
possession by another person, directly or indirectly, of the power
to direct or cause the direction of the management and policies of
that first mentioned person, whether through the ownership of
voting securities, by contract or otherwise.
"Arrangement" means the arrangement involving, among others, JDS
and its shareholders contemplated by the Plan of Arrangement.
"Automatic Exchange Rights" means the benefit of the obligation of
JDS Uniphase to effect the automatic exchange of JDS Uniphase
Common Shares for Exchangeable Shares pursuant to section 5.12.
"Beneficiaries" means the registered holders from time to time of
Exchangeable Shares, other than JDS Uniphase and JDS Uniphase
Affiliates.
"Beneficiary Votes" has the meaning ascribed thereto in
section 4.2.
"Business Day" means any day on which commercial banks are open for
business in Xxx Xxxx, Xxx Xxxx xxx Xxxxxxx, Xxxxxxx, other than a
Saturday, a Sunday or a day observed as a holiday in Toronto,
Ontario under the laws of the province of Ontario or the federal
laws of Canada or in New York, New York under the laws of the State
of New York or the federal laws of the United States of America.
"Canadian Dollar Equivalent" means, in respect of an amount
expressed in a currency other than Canadian dollars (the "Foreign
Currency Amount") at any date, the product obtained by multiplying
(a) the Foreign Currency Amount by (b) the noon spot exchange rate
on such date for such foreign currency expressed in Canadian
dollars as reported by the Bank of Canada or, in the event such
spot exchange rate is not available, such exchange rate on such
date for such foreign currency expressed in Canadian dollars as may
be deemed by the Board of Directors of JDS Uniphase to be
appropriate for such purpose.
"Current Market Price" means, in respect of a JDS Uniphase Common
Share on any date, the Canadian Dollar Equivalent of the average of
the closing bid and ask prices of JDS Uniphase Common Shares during
a period of 20 consecutive trading days ending not more than three
trading days before such date on NASDAQ, or, if the JDS Uniphase
Common Shares are not then quoted on NASDAQ, on such other stock
exchange or automated quotation system on which the JDS Uniphase
Common Shares are listed or quoted, as the case may be, as may be
selected by the Board of Directors of JDS Uniphase for such
purpose; provided however, that if in the opinion of the Board of
Directors of JDS Uniphase the public distribution or trading
activity of JDS Uniphase Common Shares during such period does not
create a market which reflects the fair market value of a JDS
Uniphase Common Share, then the Current Market Price of a JDS
Uniphase Common Share shall be determined by the Board of Directors
of JDS Uniphase, in good faith and in its sole discretion, and
provided further that any such selection, opinion or determination
by the Board of Directors of JDS Uniphase shall be conclusive and
binding.
"Exchange Right" has the meaning ascribed thereto in section 5.1.
"Exchangeable Shares" means the non-voting exchangeable shares in
the capital of Exchangeco.
"Indemnified Parties" has the meaning ascribed thereto in section
9.1.
"Insolvency Event" means the institution by Exchangeco of any
proceeding to be adjudicated a bankrupt or insolvent or to be wound
up, or the consent of Exchangeco to the institution of bankruptcy,
insolvency or winding-up proceedings against it, or the filing of a
petition, answer or consent seeking dissolution or winding-up under
any bankruptcy, insolvency or analogous laws, including without
limitation the Companies Creditors' Arrangement Act (Canada) and
the Bankruptcy and Insolvency Act (Canada), and the failure by
Exchangeco to contest in good faith any such proceedings commenced
in respect of Exchangeco within 30 days of becoming aware thereof,
or the consent by Exchangeco to the filing of any such petition or
to the appointment of a receiver, or the making by Exchangeco of a
general assignment for the benefit of creditors, or the admission
in writing by Exchangeco of its inability to pay its debts
generally as they become due, or Exchangeco not being permitted,
pursuant to solvency requirements of applicable law, to redeem any
Retracted Shares pursuant to section 6.6 of the Share Provisions.
"JDS Uniphase Affiliates" means Affiliates of JDS Uniphase.
"JDS Uniphase Common Share" means a share of common stock, par
value U.S. $0.001, in the capital of Uniphase.
"JDS Uniphase Consent" has the meaning ascribed thereto in section 4.2.
"JDS Uniphase Meeting" has the meaning ascribed thereto in section 4.2.
"JDS Uniphase Nova Scotia" means JDS Uniphase Nova Scotia Company,
an unlimited company existing under the laws of Nova Scotia, and
being a wholly-owned subsidiary of JDS Uniphase.
"JDS Uniphase Special Voting Share" means the one share of special
voting stock of JDS Uniphase, par value U.S.$0.001, which entitles
the holder of record of such share to a number of votes at meetings
of holders of JDS Uniphase Common Shares equal to the number of
Exchangeable Shares outstanding from time to time (other than
Exchangeable Shares held by JDS Uniphase and JDS Uniphase
Affiliates), which share is to be issued to, deposited with, and
voted by, the Trustee as described herein.
"JDS Uniphase Successor" has the meaning ascribed thereto in
section 11.1(a).
"Liquidation Call Right" has the meaning ascribed thereto in the
Plan of Arrangement.
"Liquidation Event" has the meaning ascribed thereto in
section 5.12(b).
"Liquidation Event Effective Date" has the meaning ascribed thereto
in section 5.12(c).
"List" has the meaning ascribed thereto in section 4.6.
"Officer's Certificate" means, with respect to JDS Uniphase or
Exchangeco, as the case may be, a certificate signed by any one
director or officer of JDS Uniphase or Exchangeco, as the case may
be.
"person" includes an individual, partnership, corporation, company,
unincorporated syndicate or organization, trust, trustee, executor,
administrator and other legal representative.
"Plan of Arrangement" means the plan of arrangement providing for
the Arrangement.
"Redemption Call Right" has the meaning ascribed thereto in the
Plan of Arrangement.
"Retracted Shares" has the meaning ascribed thereto in section 5.7.
"Retraction Call Right" has the meaning ascribed thereto in the
Share Provisions.
"Share Provisions" means the rights, privileges, restrictions and
conditions attaching to the Exchangeable Shares.
"Support Agreement" means that certain support agreement made as of
even date herewith between Exchangeco, Uniphase Nova Scotia and JDS
Uniphase.
"Trust" means the trust created by this trust agreement.
"Trust Estate" means the JDS Uniphase Special Voting Share, any
other securities, the Exchange Right, the Automatic Exchange Rights
and any money or other property which may be held by the Trustee
from time to time pursuant to this trust agreement.
"Trustee" means CIBC Mellon Trust Company and, subject to the
provisions of Article 10, includes any successor trustee.
"Voting Rights" means the voting rights attached to the JDS
Uniphase Special Voting Share.
1.2. Interpretation Not Affected by Headings, etc.
The division of this trust agreement into Articles, sections and
other portions and the insertion of headings are for convenience of
reference only and should not affect the construction or interpretation
of this trust agreement. Unless otherwise indicated, all references to an
"Article" or "section" followed by a number and/or a letter refer to the
specified Article or section of this trust agreement. The terms "this
trust agreement", "hereof", "herein" and "hereunder" and similar
expressions refer to this trust agreement and not to any particular
Article, section or other portion hereof and include any agreement or
instrument supplementary or ancillary hereto.
1.3. Number, Gender, etc.
Words importing the singular number only shall include the plural
and vice versa. Words importing any gender shall include all genders.
1.4. Date for any Action
If any date on which any action is required to be taken under this
trust agreement is not a Business Day, such action shall be required to
be taken on the next succeeding Business Day.
ARTICLE 2.
PURPOSE OF AGREEMENT
2.1. Establishment of Trust
The purpose of this trust agreement is to create the Trust for the
benefit of the Beneficiaries, as herein provided. The Trustee will hold
the JDS Uniphase Special Voting Share in order to enable the Trustee to
execute the Voting Rights and will hold the Exchange Right and the
Automatic Exchange Rights in order to enable the Trustee to exercise such
rights, in each case as trustee for and on behalf of the Beneficiaries as
provided in this trust agreement.
ARTICLE 3.
JDS UNIPHASE SPECIAL VOTING SHARE
3.1. Issue and Ownership of the JDS Uniphase Special Voting Share
JDS Uniphase hereby issues to and deposits with the Trustee, the
JDS Uniphase Special Voting Share to be hereafter held of record by the
Trustee as trustee for and on behalf of, and for the use and benefit of,
the Beneficiaries and in accordance with the provisions of this trust
agreement. JDS Uniphase hereby acknowledges receipt from the Trustee as
trustee for and on behalf of the Beneficiaries of good and valuable
consideration (and the adequacy thereof) for the issuance of the JDS
Uniphase Special Voting Share by JDS Uniphase to the Trustee. During the
term of the Trust and subject to the terms and conditions of this trust
agreement, the Trustee shall possess and be vested with full legal
ownership of the JDS Uniphase Special Voting Share and shall be entitled
to exercise all of the rights and powers of an owner with respect to the
JDS Uniphase Special Voting Share provided that the Trustee shall:
(a) hold the JDS Uniphase Special Voting Share and the legal
title thereto as trustee solely for the use and benefit of
the Beneficiaries in accordance with the provisions of this
trust agreement; and
(b) except as specifically authorized by this trust agreement,
have no power or authority to sell, transfer, vote or
otherwise deal in or with the JDS Uniphase Special Voting
Share and the JDS Uniphase Special Voting Share shall not be
used or disposed of by the Trustee for any purpose other than
the purposes for which this Trust is created pursuant to this
trust agreement.
3.2. Legended Share Certificates
Exchangeco will cause each certificate representing Exchangeable
Shares to bear an appropriate legend notifying the Beneficiaries of their
right to instruct the Trustee with respect to the exercise of the Voting
Rights in respect of the Exchangeable Shares of the Beneficiaries.
3.3. Safe Keeping of Certificate
The certificate representing the JDS Uniphase Special Voting Share
shall at all times be held in safe keeping by the Trustee or its duly
authorized agent.
ARTICLE 4.
EXERCISE OF VOTING RIGHTS
4.1. Voting Rights
The Trustee, as the holder of record of the JDS Uniphase Special
Voting Share, shall be entitled to all of the Voting Rights, including
the right to vote in person or by proxy the JDS Uniphase Special Voting
Share on any matters, questions, proposals or propositions whatsoever
that may properly come before the shareholders of JDS Uniphase at a JDS
Uniphase Meeting or in connection with a JDS Uniphase Consent. The Voting
Rights shall be and remain vested in and exercised by the Trustee.
Subject to section 7.15:
(a) the Trustee shall exercise the Voting Rights only on the
basis of instructions received pursuant to this Article 4
from Beneficiaries entitled to instruct the Trustee as to the
voting thereof at the time at which the JDS Uniphase Meeting
is held or a JDS Uniphase Consent is sought; and
(b) to the extent that no instructions are received from a
Beneficiary with respect to the Voting Rights to which such
Beneficiary is entitled, the Trustee shall not exercise or
permit the exercise of such Voting Rights.
4.2. Number of Votes
With respect to all meetings of shareholders of JDS Uniphase at
which holders of JDS Uniphase Common Shares are entitled to vote (each, a
"JDS Uniphase Meeting") and with respect to all written consents sought
by JDS Uniphase from its shareholders including the holders of JDS
Uniphase Common Shares (each, a "JDS Uniphase Consent"), each Beneficiary
shall be entitled to instruct the Trustee to cast and exercise one of the
votes comprised in the Voting Rights for each Exchangeable Share owned of
record by such Beneficiary on the record date established by JDS Uniphase
or by applicable law for such JDS Uniphase Meeting or JDS Uniphase
Consent, as the case may be (the "Beneficiary Votes"), in respect of each
matter, question, proposal or proposition to be voted on at such JDS
Uniphase Meeting or in connection with such JDS Uniphase Consent.
4.3. Mailings to Shareholders
With respect to each JDS Uniphase Meeting and JDS Uniphase Consent,
the Trustee shall use its reasonable efforts to mail or cause to be
mailed (or otherwise communicate in the same manner as JDS Uniphase
utilizes in communications to holders of JDS Uniphase Common Shares,
subject to the Trustee being advised in writing of that method and its
ability to provide that method of communication) to each of the
Beneficiaries named in the List referred to in section 4.6, such mailing
or communication to commence on the same day as the mailing or notice (or
other communication) with respect thereto is commenced by JDS Uniphase to
its shareholders:
(a) a copy of such notice, together with any related materials to
be provided to shareholders of JDS Uniphase;
(b) a statement that such Beneficiary is entitled to instruct the
Trustee as to the exercise of the Beneficiary Votes with
respect to such JDS Uniphase Meeting or JDS Uniphase Consent
or, pursuant to section 4.7, to attend such JDS Uniphase
Meeting and to exercise personally the Beneficiary Votes
thereat;
(c) a statement as to the manner in which such instructions may
be given to the Trustee, including an express indication that
instructions may be given to the Trustee to give:
(i) a proxy to such Beneficiary or his designee to exercise
personally the Beneficiary Votes; or
(ii) a proxy to a designated agent or other representative
of the management of JDS Uniphase to exercise such
Beneficiary Votes;
(d) a statement that if no such instructions are received from
the Beneficiary, the Beneficiary Votes to which such
Beneficiary is entitled will not be exercised;
(e) a form of direction whereby the Beneficiary may so direct and
instruct the Trustee as contemplated herein; and
(f) a statement of the time and date by which such instructions
must be received by the Trustee in order to be binding upon
it, which in the case of a JDS Uniphase Meeting shall not be
earlier than the close of business on the second Business Day
prior to such meeting, and of the method for revoking or
amending such instructions.
The materials referred to above are to be provided to the Trustee by JDS
Uniphase.
For the purpose of determining Beneficiary Votes to which a
Beneficiary is entitled in respect of any JDS Uniphase Meeting or JDS
Uniphase Consent, the number of Exchangeable Shares owned of record by
the Beneficiary shall be determined at the close of business on the
record date established by JDS Uniphase or by applicable law for purposes
of determining shareholders entitled to vote at such JDS Uniphase
Meeting. JDS Uniphase will notify the Trustee of any decision of the
Board of Directors of JDS Uniphase with respect to the calling of any JDS
Uniphase Meeting and shall provide all necessary information and
materials to the Trustee in each case promptly and in any event in
sufficient time to enable the Trustee to perform its obligations
contemplated by this section 4.3.
4.4. Copies of Shareholder Information
JDS Uniphase will deliver to the Trustee copies of all proxy
materials (including notices of JDS Uniphase Meetings, but excluding
proxies to vote JDS Uniphase Common Shares), information statements,
reports (including without limitation, all interim and annual financial
statements) and other written communications that, in each case, are to
be distributed from time to time to holders of JDS Uniphase Common Shares
in sufficient quantities and in sufficient time so as to enable the
Trustee to send those materials to each Beneficiary at the same time as
such materials are first sent to holders of JDS Uniphase Common Shares.
The Trustee will mail or otherwise send to each Beneficiary, at the
expense of JDS Uniphase, copies of all such materials (and all materials
specifically directed to the Beneficiaries or to the Trustee for the
benefit of the Beneficiaries by JDS Uniphase) received by the Trustee
from JDS Uniphase contemporaneously with the sending of such materials to
holders of JDS Uniphase Common Shares. The Trustee will also make
available for inspection by any Beneficiary at the Trustee's principal
office in the City of Toronto all proxy materials, information
statements, reports and other written communications that are:
(a) received by the Trustee as the registered holder of the JDS
Uniphase Special Voting Share and made available by JDS
Uniphase generally to the holders of JDS Uniphase Common
Shares; or
(b) specifically directed to the Beneficiaries or to the Trustee
for the benefit of the Beneficiaries by JDS Uniphase.
4.5. Other Materials
As soon as reasonably practicable after receipt by JDS Uniphase or
shareholders of JDS Uniphase (if such receipt is known by JDS Uniphase)
of any material sent or given by or on behalf of a third party to holders
of JDS Uniphase Common Shares generally, including without limitation,
dissident proxy and information circulars (and related information and
material) and tender and exchange offer circulars (and related
information and material), JDS Uniphase shall use its reasonable efforts
to obtain and deliver to the Trustee copies thereof in sufficient
quantities so as to enable the Trustee to forward such material (unless
the same has been provided directly to Beneficiaries by such third party)
to each Beneficiary as soon as possible thereafter. As soon as
reasonably practicable after receipt thereof, the Trustee will mail or
otherwise send to each Beneficiary, at the expense of JDS Uniphase,
copies of all such materials received by the Trustee from JDS Uniphase.
The Trustee will also make available for inspection by any Beneficiary at
the Trustee's principal office in the City of Toronto copies of all such
materials.
4.6. List of Persons Entitled to Vote
Exchangeco shall, (a) prior to each annual, general and special JDS
Uniphase Meeting or the seeking of any JDS Uniphase Consent and
(b) forthwith upon each request made at any time by the Trustee in
writing, prepare or cause to be prepared a list (a "List") of the names
and addresses of the Beneficiaries arranged in alphabetical order and
showing the number of Exchangeable Shares held of record by each such
Beneficiary, in each case at the close of business on the date specified
by the Trustee in such request or, in the case of a List prepared in
connection with a JDS Uniphase Meeting or a JDS Uniphase Consent, at the
close of business on the record date established by JDS Uniphase or
pursuant to applicable law for determining the holders of JDS Uniphase
Common Shares entitled to receive notice of and/or to vote at such JDS
Uniphase Meeting or to give consent in connection with such JDS Uniphase
Consent. Each such List shall be delivered to the Trustee promptly after
receipt by Exchangeco of such request or the record date for such meeting
or seeking of consent, as the case may be, and in any event within
sufficient time to enable the Trustee to perform its obligations under
this trust agreement. JDS Uniphase agrees to give Exchangeco written
notice (with a copy to the Trustee) of the calling of any JDS Uniphase
Meeting or the seeking of any JDS Uniphase Consent, together with the
record dates therefor, sufficiently prior to the date of the calling of
such meeting or seeking of such consent so as to enable Exchangeco to
perform its obligations under this section 4.6.
4.7. Entitlement to Direct Votes
Any Beneficiary named in a List prepared in connection with any JDS
Uniphase Meeting or JDS Uniphase Consent will be entitled (a) to instruct
the Trustee in the manner described in section 4.3 with respect to the
exercise of the Beneficiary Votes to which such Beneficiary is entitled
or (b) to attend such meeting and personally exercise thereat, as the
proxy of the Trustee, the Beneficiary Votes to which such Beneficiary is
entitled.
4.8. Voting by Trustee, and Attendance of Trustee Representative at
Meeting
(a) In connection with each JDS Uniphase Meeting and JDS Uniphase
Consent, the Trustee shall exercise, either in person or by
proxy, in accordance with the instructions received from a
Beneficiary pursuant to section 4.3, the Beneficiary Votes as
to which such Beneficiary is entitled to direct the vote (or
any lesser number thereof as may be set forth in the
instructions); provided, however, that such written
instructions are received by the Trustee from the Beneficiary
prior to the time and date fixed by the Trustee for receipt
of such instructions in the notice given by the Trustee to
the Beneficiary pursuant to section 4.3.
(b) The Trustee shall cause a representative who is empowered by
it to sign and deliver, on behalf of the Trustee, proxies for
Voting Rights to attend each JDS Uniphase Meeting. Upon
submission by a Beneficiary (or its designee) of
identification satisfactory to the Trustee's representative,
and at the Beneficiary's request, such representative shall
sign and deliver to such Beneficiary (or its designee) a
proxy to exercise personally the Beneficiary Votes as to
which such Beneficiary is otherwise entitled hereunder to
direct the vote, if such Beneficiary either (i) has not
previously given the Trustee instructions pursuant to
section 4.3 in respect of such meeting or (ii) submits to
such representative written revocation of any such previous
instructions. At such meeting, the Beneficiary exercising
such Beneficiary Votes shall have the same rights as the
Trustee to speak at the meeting in favour of any matter,
question, proposal or proposition, to vote by way of ballot
at the meeting in respect of any matter, question, proposal
or proposition, and to vote at such meeting by way of a show
of hands in respect of any matter, question or proposition.
4.9. Distribution of Written Materials
Any written materials distributed by the Trustee pursuant to this
trust agreement shall be sent by mail (or otherwise communicated in the
same manner as JDS Uniphase utilizes in communications to holders of JDS
Uniphase Common Shares subject to the Trustee being advised in writing of
that method of communication and its ability to provide that method of
communication) to each Beneficiary at its address as shown on the books
of Exchangeco. Exchangeco shall provide or cause to be provided to the
Trustee for this purpose, on a timely basis and without charge or other
expense:
(a) a current List; and
(b) upon the request of the Trustee, mailing labels to enable the
Trustee to carry out its duties under this trust agreement.
4.10. Termination of Voting Rights
All of the rights of a Beneficiary with respect to the Beneficiary
Votes exercisable in respect of the Exchangeable Shares held by such
Beneficiary, including the right to instruct the Trustee as to the voting
of or to vote personally such Beneficiary Votes, shall be deemed to be
surrendered by the Beneficiary to JDS Uniphase or JDS Uniphase Nova
Scotia, as the case may be, and such Beneficiary Votes and the Voting
Rights represented thereby shall cease immediately upon the delivery by
such holder to the Trustee of the certificates representing such
Exchangeable Shares in connection with the exercise by the Beneficiary of
the Exchange Right or the occurrence of the automatic exchange of
Exchangeable Shares for JDS Uniphase Common Shares, as specified in
Article 5 (unless, in either case, JDS Uniphase shall not have delivered
the requisite JDS Uniphase Common Shares issuable in exchange therefor to
the Trustee for delivery to the Beneficiaries), or upon the redemption of
Exchangeable Shares pursuant to Article 6 or 7 of the Share Provisions,
or upon the effective date of the liquidation, dissolution or winding-up
of Exchangeco pursuant to Article 5 of the Share Provisions, or upon the
purchase of Exchangeable Shares from the holder thereof by JDS Uniphase
Nova Scotia pursuant to the exercise by JDS Uniphase Nova Scotia of the
Retraction Call Right, the Redemption Call Right or the Liquidation Call
Right.
ARTICLE 5.
EXCHANGE RIGHT AND AUTOMATIC EXCHANGE
5.1. Grant and Ownership of the Exchange Right
JDS Uniphase hereby grants to the Trustee as trustee for and on
behalf of, and for the use and benefit of, the Beneficiaries the right
(the "Exchange Right"), upon the occurrence and during the continuance of
an Insolvency Event, to require JDS Uniphase to purchase from each or any
Beneficiary all or any part of the Exchangeable Shares held by the
Beneficiary and the Automatic Exchange Rights, all in accordance with the
provisions of this trust agreement. JDS Uniphase hereby acknowledges
receipt from the Trustee as trustee for and on behalf of the
Beneficiaries of good and valuable consideration (and the adequacy
thereof) for the grant of the Exchange Right and the Automatic Exchange
Rights by JDS Uniphase to the Trustee. During the term of the Trust and
subject to the terms and conditions of this trust agreement, the Trustee
shall possess and be vested with full legal ownership of the Exchange
Right and the Automatic Exchange Rights and shall be entitled to exercise
all of the rights and powers of an owner with respect to the Exchange
Right and the Automatic Exchange Rights, provided that the Trustee shall:
(a) hold the Exchange Right and the Automatic Exchange Rights and
the legal title thereto as trustee solely for the use and
benefit of the Beneficiaries in accordance with the
provisions of this trust agreement; and
(b) except as specifically authorized by this trust agreement,
have no power or authority to exercise or otherwise deal in
or with the Exchange Right or the Automatic Exchange Rights,
and the Trustee shall not exercise any such rights for any
purpose other than the purposes for which the Trust is
created pursuant to this trust agreement.
5.2. Legended Share Certificates
Exchangeco will cause each certificate representing Exchangeable
Shares to bear an appropriate legend notifying the Beneficiaries of:
(a) their right to instruct the Trustee with respect to the
exercise of the Exchange Right in respect of the Exchangeable
Shares held by a Beneficiary; and
(b) the Automatic Exchange Rights.
5.3. General Exercise of Exchange Right
The Exchange Right shall be and remain vested in and exercisable by
the Trustee. Subject to section 7.15, the Trustee shall exercise the
Exchange Right only on the basis of instructions received pursuant to
this Article 5 from Beneficiaries entitled to instruct the Trustee as to
the exercise thereof. To the extent that no instructions are received
from a Beneficiary with respect to the Exchange Right, the Trustee shall
not exercise or permit the exercise of the Exchange Right.
5.4. Purchase Price
The total purchase price payable by JDS Uniphase for each
Exchangeable Share to be purchased by JDS Uniphase under the Exchange
Right shall be an amount per share equal to (a) the Current Market Price
of a JDS Uniphase Common Share on the last Business Day prior to the day
of closing of the purchase and sale of such Exchangeable Share under the
Exchange Right, which shall be satisfied in full by JDS Uniphase causing
to be sent to such holder one JDS Uniphase Common Share, plus (b) to the
extent not paid by Exchangeco, an additional amount equivalent to the
full amount of all declared and unpaid dividends on each such
Exchangeable Share held by such holder on any dividend record date which
occurred prior to the closing of the purchase and sale. In connection
with each exercise of the Exchange Right, JDS Uniphase shall provide to
the Trustee an Officer's Certificate setting forth the calculation of the
purchase price for each Exchangeable Share. The total purchase price for
each such Exchangeable Share so purchased may be satisfied only by JDS
Uniphase issuing and delivering or causing to be delivered to the
Trustee, on behalf of the relevant Beneficiary, one JDS Uniphase Common
Share and on the applicable payment date a cheque for the balance, if
any, of the purchase price without interest (but less any amounts
withheld pursuant to section 5.13).
5.5. Exercise Instructions
Subject to the terms and conditions herein set forth, a Beneficiary
shall be entitled, upon the occurrence and during the continuance of an
Insolvency Event, to instruct the Trustee to exercise the Exchange Right
with respect to all or any part of the Exchangeable Shares registered in
the name of such Beneficiary on the books of Exchangeco. To cause the
exercise of the Exchange Right by the Trustee, the Beneficiary shall
deliver to the Trustee, in person or by mail, at its principal office in
Toronto, Ontario or at such other places in Canada as the Trustee may
from time to time designate by written notice to the Beneficiaries, the
certificates representing the Exchangeable Shares which such Beneficiary
desires JDS Uniphase to purchase, duly endorsed in blank for transfer,
and accompanied by such other documents and instruments as may be
required to effect a transfer of Exchangeable Shares under the Canada
Business Corporations Act and the by-laws of Exchangeco and such
additional documents and instruments as the Trustee, JDS Uniphase or
Exchangeco may reasonably require together with (a) a duly completed form
of notice of exercise of the Exchange Right, contained on the reverse of
or attached to the Exchangeable Share certificates, stating (i) that the
Beneficiary thereby instructs the Trustee to exercise the Exchange Right
so as to require JDS Uniphase to purchase from the Beneficiary the number
of Exchangeable Shares specified therein, (ii) that such Beneficiary has
good title to and owns all such Exchangeable Shares to be acquired by JDS
Uniphase free and clear of all liens, claims, security interests, adverse
claims and encumbrances, (iii) the names in which the certificates
representing JDS Uniphase Common Shares issuable in connection with the
exercise of the Exchange Right are to be issued, and (iv) the names and
addresses of the persons to whom such new certificates should be
delivered; and (b) payment (or evidence satisfactory to the Trustee,
Exchangeco and JDS Uniphase of payment) of the taxes (if any) payable as
contemplated by section 5.8 of this trust agreement. If only a part of
the Exchangeable Shares represented by any certificate or certificates
delivered to the Trustee are to be purchased by JDS Uniphase under the
Exchange Right, a new certificate for the balance of such Exchangeable
Shares shall be issued to the holder at the expense of Exchangeco.
5.6. Delivery of JDS Uniphase Common Shares; Effect of Exercise
Promptly after receipt of the certificates representing the
Exchangeable Shares which the Beneficiary desires JDS Uniphase to
purchase under the Exchange Right, together with such documents and
instruments of transfer and a duly completed form of notice of exercise
of the Exchange Right (and payment of taxes, if any, payable as
contemplated by section 5.8 or evidence thereof), duly endorsed for
transfer to JDS Uniphase, the Trustee shall notify JDS Uniphase and
Exchangeco of its receipt of the same, which notice to JDS Uniphase and
Exchangeco shall constitute exercise of the Exchange Right by the Trustee
on behalf of the holder of such Exchangeable Shares, and JDS Uniphase
shall promptly thereafter deliver or cause to be delivered to the
Trustee, for delivery to the Beneficiary of such Exchangeable Shares (or
to such other persons, if any, properly designated by such Beneficiary)
the number of JDS Uniphase Common Shares issuable in connection with the
exercise of the Exchange Right, and on the applicable payment date
cheques for the balance, if any, of the total purchase price therefor
without interest (but less any amounts withheld pursuant to
section 5.13); provided, however, that no such delivery shall be made
unless and until the Beneficiary requesting the same shall have paid (or
provided evidence satisfactory to the Trustee, Exchangeco and JDS
Uniphase of the payment of) the taxes (if any) payable as contemplated by
section 5.8 of this trust agreement. Immediately upon the giving of
notice by the Trustee to JDS Uniphase and Exchangeco of the exercise of
the Exchange Right as provided in this section 5.6, the closing of the
transaction of purchase and sale contemplated by the Exchange Right shall
be deemed to have occurred and the holder of such Exchangeable Shares
shall be deemed to have transferred to JDS Uniphase all of such holder's
right, title and interest in and to such Exchangeable Shares and the
related interest in the Trust Estate and shall cease to be a holder of
such Exchangeable Shares and shall not be entitled to exercise any of the
rights of a holder in respect thereof, other than the right to receive
his proportionate part of the total purchase price therefor (together
with a cheque for the balance, if any, of the total purchase price
therefor without interest), unless the requisite number of JDS Uniphase
Common Shares is not allotted, issued and delivered by JDS Uniphase to
the Trustee within five Business Days of the date of the giving of such
notice by the Trustee, in which case the rights of the Beneficiary shall
remain unaffected until such JDS Uniphase Common Shares are so allotted,
issued and delivered by JDS Uniphase and any such cheque is delivered and
paid. Upon delivery by JDS Uniphase to the Trustee of such JDS Uniphase
Common Shares, the Trustee shall deliver such JDS Uniphase Common Shares
to such Beneficiary (or to such other persons, if any, properly
designated by such Beneficiary). Concurrently with such Beneficiary
ceasing to be a holder of Exchangeable Shares, the Beneficiary shall be
considered and deemed for all purposes to be the holder of the JDS
Uniphase Common Shares delivered to it pursuant to the Exchange Right.
5.7. Exercise of Exchange Right Subsequent to Retraction
In the event that a Beneficiary has exercised its right under
Article 6 of the Share Provisions to require Exchangeco to redeem any or
all of the Exchangeable Shares held by the Beneficiary (the "Retracted
Shares") and is notified by Exchangeco pursuant to section 6.6 of the
Share Provisions that Exchangeco will not be permitted as a result of
solvency requirements of applicable law to redeem all such Retracted
Shares, and provided that JDS Uniphase Nova Scotia shall not have
exercised the Retraction Call Right with respect to the Retracted Shares
and that the Beneficiary has not revoked the retraction request delivered
by the Beneficiary to Exchangeco pursuant to section 6.1 of the Share
Provisions, the retraction request will constitute and will be deemed to
constitute notice from the Beneficiary to the Trustee instructing the
Trustee to exercise the Exchange Right with respect to those Retracted
Shares that Exchangeco is unable to redeem. In any such event, Exchangeco
hereby agrees with the Trustee and in favour of the Beneficiary to
immediately notify the Trustee of such prohibition against Exchangeco
redeeming all of the Retracted Shares and to promptly forward or cause to
be forwarded to the Trustee all relevant materials delivered by the
Beneficiary to Exchangeco or to the transfer agent of the Exchangeable
Shares (including without limitation, a copy of the retraction request
delivered pursuant to section 6.1 of the Share Provisions) in connection
with such proposed redemption of the Retracted Shares and the Trustee
will thereupon exercise the Exchange Right with respect to the Retracted
Shares that Exchangeco is not permitted to redeem and will require JDS
Uniphase to purchase such shares in accordance with the provisions of
this Article 5.
5.8. Stamp or Other Transfer Taxes
Upon any sale of Exchangeable Shares to JDS Uniphase pursuant to
the Exchange Right or the Automatic Exchange Rights, the share
certificate or certificates representing JDS Uniphase Common Shares to be
delivered in connection with the payment of the total purchase price
therefor shall be issued in the name of the Beneficiary of the
Exchangeable Shares so sold or in such names as such Beneficiary may
otherwise direct in writing without charge to the holder of the
Exchangeable Shares so sold; provided, however, that such Beneficiary
(a) shall pay (and none of JDS Uniphase, Exchangeco or the Trustee shall
be required to pay) any documentary, stamp, transfer or other taxes that
may be payable in respect of any transfer involved in the issuance or
delivery of such shares to a person other than such Beneficiary or
(b) shall have evidenced to the satisfaction of the Trustee, JDS Uniphase
and Exchangeco that such taxes, if any, have been paid.
5.9. Notice of Insolvency Event
As soon as practicable following the occurrence of an Insolvency
Event or any event that with the giving of notice or the passage of time
or both would be an Insolvency Event, Exchangeco and JDS Uniphase shall
give written notice thereof to the Trustee. As soon as practicable
following the receipt of notice from Exchangeco or JDS Uniphase of the
occurrence of an Insolvency Event, or upon the Trustee becoming aware of
an Insolvency Event, the Trustee will mail to each Beneficiary, at the
expense of JDS Uniphase, a notice of such Insolvency Event in the form
provided by JDS Uniphase, which notice shall contain a brief statement of
the rights of the Beneficiaries with respect to the Exchange Right.
5.10. Qualification of JDS Uniphase Common Shares
JDS Uniphase covenants that if any JDS Uniphase Common Shares to be
issued and delivered pursuant to the Exchange Right or the Automatic
Exchange Rights require registration or qualification with or approval of
or the filing of any document, including any prospectus or similar
document, or the taking of any proceeding with or the obtaining of any
order, ruling or consent from any governmental or regulatory authority
under any Canadian or United States federal, provincial or state law or
regulation or pursuant to the rules and regulations of any regulatory
authority or the fulfilment of any other Canadian or United States
federal, provincial or state legal requirement before such shares may be
issued and delivered by JDS Uniphase to the initial holder thereof or in
order that such shares may be freely traded thereafter (other than any
restrictions of general application on transfer by reason of a holder
being a "control person" of JDS Uniphase for purposes of Canadian
provincial securities law or an "affiliate" of JDS Uniphase for purposes
of United States federal or state securities law), JDS Uniphase will in
good faith expeditiously take all such actions and do all such things as
are necessary or desirable to cause such JDS Uniphase Common Shares to be
and remain duly registered, qualified or approved. JDS Uniphase will in
good faith expeditiously take all such actions and do all such things as
are reasonably necessary or desirable to cause all JDS Uniphase Common
Shares to be delivered pursuant to the Exchange Right or the Automatic
Exchange Rights to be listed, quoted or posted for trading on all stock
exchanges and quotation systems on which outstanding JDS Uniphase Common
Shares have been listed by JDS Uniphase and remain listed and are quoted
or posted for trading at such time.
5.11. JDS Uniphase Common Shares
JDS Uniphase hereby represents, warrants and covenants that the JDS
Uniphase Common Shares issuable as described herein will be duly
authorized and validly issued as fully paid and non-assessable and shall
be free and clear of any lien, claim or encumbrance.
5.12. Automatic Exchange on Liquidation of JDS Uniphase
(a) JDS Uniphase will give the Trustee written notice of each of
the following events at the time set forth below:
(i) in the event of any determination by the Board of
Directors of JDS Uniphase to institute voluntary
liquidation, dissolution or winding-up proceedings with
respect to JDS Uniphase or to effect any other
distribution of assets of JDS Uniphase among its
shareholders for the purpose of winding up its affairs,
at least 60 days prior to the proposed effective date
of such liquidation, dissolution, winding-up or other
distribution; and
(ii) as soon as practicable following the earlier of
(A) receipt by JDS Uniphase of notice of, and (B) JDS
Uniphase otherwise becoming aware of, any threatened or
instituted claim, suit, petition or other proceedings
with respect to the involuntary liquidation,
dissolution or winding-up of JDS Uniphase or to effect
any other distribution of assets of JDS Uniphase among
its shareholders for the purpose of winding up its
affairs, in each case where JDS Uniphase has failed to
contest in good faith any such proceeding commenced in
respect of JDS Uniphase within 30 days of becoming
aware thereof.
(b) As soon as practicable following receipt by the Trustee from
JDS Uniphase of notice of any event (a "Liquidation Event")
contemplated by section 5.12(a)(i) or 5.12(a)(ii) above, the
Trustee will give notice thereof to the Beneficiaries. Such
notice shall be provided by JDS Uniphase to the Trustee and
shall include a brief description of the automatic exchange
of Exchangeable Shares for JDS Uniphase Common Shares
provided for in section 5.12(c).
(c) In order that the Beneficiaries will be able to participate
on a pro rata basis with the holders of JDS Uniphase Common
Shares in the distribution of assets of JDS Uniphase in
connection with a Liquidation Event, on the fifth Business
Day prior to the effective date (the "Liquidation Event
Effective Date") of a Liquidation Event all of the then
outstanding Exchangeable Shares shall be automatically
exchanged for JDS Uniphase Common Shares. To effect such
automatic exchange, JDS Uniphase shall purchase on the fifth
Business Day prior to the Liquidation Event Effective Date
each Exchangeable Share then outstanding and held by
Beneficiaries, and each Beneficiary shall sell the
Exchangeable Shares held by it at such time, for a total
purchase price per share equal to (a) the Current Market
Price of a JDS Uniphase Common Share on the fifth Business
Day prior to the Liquidation Event Effective Date, which
shall be satisfied in full by JDS Uniphase issuing to the
Beneficiary one JDS Uniphase Common Share, and (b) to the
extent not paid by Exchangeco, an additional amount
equivalent to the full amount of all declared and unpaid
dividends on each such Exchangeable Share held by such holder
on any dividend record date which occurred prior to the date
of the exchange. In connection with such automatic
exchange, JDS Uniphase shall provide to the Trustee an
Officer's Certificate setting forth the calculation of the
purchase price for each Exchangeable Share.
(d) On the fifth Business Day prior to the Liquidation Event
Effective Date, the closing of the transaction of purchase
and sale contemplated by the automatic exchange of
Exchangeable Shares for JDS Uniphase Common Shares shall be
deemed to have occurred, and each Beneficiary shall be deemed
to have transferred to JDS Uniphase all of the Beneficiary's
right, title and interest in and to such Beneficiary's
Exchangeable Shares and the related interest in the Trust
Estate and shall cease to be a holder of such Exchangeable
Shares and JDS Uniphase shall issue to the Beneficiary the
JDS Uniphase Common Shares issuable upon the automatic
exchange of Exchangeable Shares for JDS Uniphase Common
Shares and on the applicable payment date shall deliver to
the Trustee for delivery to the Beneficiary a cheque for the
balance, if any, of the total purchase price for such
Exchangeable Shares without interest but less any amounts
withheld pursuant to section 5.13. Concurrently with such
Beneficiary ceasing to be a holder of Exchangeable Shares,
the Beneficiary shall be considered and deemed for all
purposes to be the holder of the JDS Uniphase Common Shares
issued pursuant to the automatic exchange of Exchangeable
Shares for JDS Uniphase Common Shares and the certificates
held by the Beneficiary previously representing the
Exchangeable Shares exchanged by the Beneficiary with JDS
Uniphase pursuant to such automatic exchange shall thereafter
be deemed to represent JDS Uniphase Common Shares issued to
the Beneficiary by JDS Uniphase pursuant to such automatic
exchange. Upon the request of a Beneficiary and the surrender
by the Beneficiary of Exchangeable Share certificates deemed
to represent JDS Uniphase Common Shares, duly endorsed in
blank and accompanied by such instruments of transfer as JDS
Uniphase may reasonably require, JDS Uniphase shall deliver
or cause to be delivered to the Beneficiary certificates
representing JDS Uniphase Common Shares of which the
Beneficiary is the holder.
5.13. Withholding Rights
JDS Uniphase, Exchangeco and the Trustee shall be entitled to
deduct and withhold from any consideration otherwise payable under this
trust agreement to any holder of Exchangeable Shares or JDS Uniphase
Common Shares such amounts as JDS Uniphase, Exchangeco or the Trustee is
required or permitted to deduct and withhold with respect to such payment
under the Income Tax Act (Canada), the United States Internal Revenue
Code of 1986 or any provision of provincial, state, local or foreign tax
law, in each case as amended or succeeded. To the extent that amounts are
so withheld, such withheld amounts shall be treated for all purposes as
having been paid to the holder of the shares in respect of which such
deduction and withholding was made, provided that such withheld amounts
are actually remitted to the appropriate taxing authority. To the extent
that the amounts so required or permitted to be deducted or withheld from
any payment to a holder exceeds the cash portion of the consideration
otherwise payable to the holder, JDS Uniphase, Exchangeco and the Trustee
are hereby authorized to sell or otherwise dispose of such portion of the
consideration as is necessary to provide sufficient funds to JDS
Uniphase, Exchangeco or the Trustee, as the case may be, to enable it to
comply with such deduction or withholding requirements and JDS Uniphase,
Exchangeco or the Trustee shall notify the holder thereof and remit to
such holder any unapplied balance of the net proceeds of such sale. JDS
Uniphase represents and warrants that, based upon facts currently known
to it, it has no current intention, as at the date of this trust
agreement, to deduct or withhold from any dividend paid to holders of
Exchangeable Shares any amounts under the United States Internal Revenue
Code of 1986.
ARTICLE 6.
RESTRICTIONS ON ISSUE OF JDS UNIPHASE SPECIAL VOTING STOCK
6.1. Issue of Additional Shares
During the term of this trust agreement, JDS Uniphase will not,
without the consent of the holders at the relevant time of Exchangeable
Shares, given in accordance with section 10.2 of the Share Provisions,
issue any shares of its special voting stock in addition to the JDS
Uniphase Special Voting Share.
ARTICLE 7.
CONCERNING THE TRUSTEE
7.1. Powers and Duties of the Trustee
The rights, powers, duties and authorities of the Trustee under
this trust agreement, in its capacity as Trustee of the Trust, shall
include:
(a) receipt and deposit of the JDS Uniphase Special Voting Share
from JDS Uniphase as Trustee for and on behalf of the
Beneficiaries in accordance with the provisions of this trust
agreement;
(b) granting proxies and distributing materials to Beneficiaries
as provided in this trust agreement;
(c) voting the Beneficiary Votes in accordance with the
provisions of this trust agreement;
(d) receiving the grant of the Exchange Right and the Automatic
Exchange Rights from JDS Uniphase as Trustee for and on
behalf of the Beneficiaries in accordance with the provisions
of this trust agreement;
(e) exercising the Exchange Right and enforcing the benefit of
the Automatic Exchange Rights, in each case in accordance
with the provisions of this trust agreement, and in
connection therewith receiving from Beneficiaries
Exchangeable Shares and other requisite documents and
distributing to such Beneficiaries JDS Uniphase Common Shares
and cheques, if any, to which such Beneficiaries are entitled
upon the exercise of the Exchange Right or pursuant to the
Automatic Exchange Rights, as the case may be;
(f) holding title to the Trust Estate;
(g) investing any moneys forming, from time to time, a part of
the Trust Estate as provided in this trust agreement;
(h) taking action at the direction of a Beneficiary or
Beneficiaries to enforce the obligations of JDS Uniphase and
Exchangeco under this trust agreement; and
(i) taking such other actions and doing such other things as are
specifically provided in this trust agreement.
In the exercise of such rights, powers, duties and authorities the
Trustee shall have (and is granted) such incidental and additional
rights, powers, duties and authority not in conflict with any of the
provisions of this trust agreement as the Trustee, acting in good faith
and in the reasonable exercise of its discretion, may deem necessary,
appropriate or desirable to effect the purpose of the Trust. Any exercise
of such discretionary rights, powers, duties and authorities by the
Trustee shall be final, conclusive and binding upon all persons.
The Trustee in exercising its rights, powers, duties and
authorities hereunder shall act honestly and in good faith and with a
view to the best interests of the Beneficiaries and shall exercise the
care, diligence and skill that a reasonably prudent trustee would
exercise in comparable circumstances.
7.2. No Conflict of Interest
The Trustee represents to JDS Uniphase and Exchangeco that at the
date of execution and delivery of this trust agreement there exists no
material conflict of interest in the role of the Trustee as a fiduciary
hereunder and the role of the Trustee in any other capacity. The Trustee
shall, within 90 days after it becomes aware that such material conflict
of interest exists, either eliminate such material conflict of interest
or resign in the manner and with the effect specified in Article 10. If,
notwithstanding the foregoing provisions of this section 7.2, the Trustee
has such a material conflict of interest, the validity and enforceability
of this trust agreement shall not be affected in any manner whatsoever by
reason only of the existence of such material conflict of interest. If
the Trustee contravenes the foregoing provisions of this section 7.2, any
interested party may apply to the Ontario Superior Court of Justice for
an order that the Trustee be replaced as Trustee hereunder.
7.3. Dealings with Transfer Agents, Registrars, etc.
JDS Uniphase and Exchangeco irrevocably authorize the Trustee, from
time to time, to:
(a) consult, communicate and otherwise deal with the respective
registrars and transfer agents, and with any such subsequent
registrar or transfer agent, of the Exchangeable Shares and
JDS Uniphase Common Shares; and
(b) requisition, from time to time, (i) from any such registrar
or transfer agent any information readily available from the
records maintained by it which the Trustee may reasonably
require for the discharge of its duties and responsibilities
under this trust agreement and (ii) from the transfer agent
of JDS Uniphase Common Shares, and any subsequent transfer
agent of such shares, the share certificates issuable upon
the exercise from time to time of the Exchange Right and
pursuant to the Automatic Exchange Rights in the manner
specified in Article 5 hereof.
JDS Uniphase and Exchangeco irrevocably authorize their respective
registrars and transfer agents to comply with all such requests. JDS
Uniphase covenants that it will supply its transfer agent with duly
executed share certificates for the purpose of completing the exercise
from time to time of the Exchange Right and the Automatic Exchange Rights
in each case pursuant to Article 5 hereof.
7.4. Books and Records
The Trustee shall keep available for inspection by JDS Uniphase and
Exchangeco at the Trustee's principal office in Toronto, Ontario correct
and complete books and records of account relating to the Trust created
by this trust agreement, including without limitation, all relevant data
relating to mailings and instructions to and from Beneficiaries and all
transactions pursuant to the Exchange Right and the Automatic Exchange
Rights. On or before September 30, 2000 and on or before September 30 in
every year thereafter, so long as the JDS Uniphase Special Voting Share
is on deposit with the Trustee, the Trustee shall transmit to JDS
Uniphase and Exchangeco a brief report, dated as of the preceding June
30, with respect to:
(a) the property and funds comprising the Trust Estate as of that date;
(b) the number of exercises of the Exchange Right, if any, and
the aggregate number of Exchangeable Shares received by the
Trustee on behalf of Beneficiaries in consideration of the
issuance by JDS Uniphase of JDS Uniphase Common Shares in
connection with the Exchange Right, during the fiscal year
ended on such June 30; and
(c) any action taken by the Trustee in the performance of its
duties under this trust agreement which it had not previously
reported.
7.5. Income Tax Returns and Reports
The Trustee shall, to the extent necessary, prepare and file or
cause to be prepared and filed on behalf of the Trust appropriate United
States and Canadian income tax returns and any other returns or reports
as may be required by applicable law or pursuant to the rules and
regulations of any securities exchange or other trading system through
which the Exchangeable Shares are traded and in connection therewith may
obtain the advice of and assistance from such experts as the Trustee may
reasonably consider necessary or advisable. If requested by the Trustee,
JDS Uniphase shall retain such experts for providing such advice or
assistance to the Trustee.
7.6. Indemnification Prior to Certain Actions by Trustee
The Trustee shall exercise any or all of the rights, duties, powers
or authorities vested in it by this trust agreement at the request, order
or direction of any Beneficiary upon such Beneficiary furnishing to the
Trustee reasonable funding, security or indemnity against the costs,
expenses and liabilities which may be incurred by the Trustee therein or
thereby, provided that no Beneficiary shall be obligated to furnish to
the Trustee any such funding, security or indemnity in connection with
the exercise by the Trustee of any of its rights, duties, powers and
authorities with respect to the JDS Uniphase Special Voting Share
pursuant to Article 4, subject to section 7.15, and with respect to the
Exchange Right pursuant to Article 5, subject to section 7.15, and with
respect to the Automatic Exchange Rights pursuant to Article 5, subject
to section 7.15.
None of the provisions contained in this trust agreement shall
require the Trustee to expend or risk its own funds or otherwise incur
financial liability in the exercise of any of its rights, powers, duties,
or authorities unless funded, given security or indemnified as aforesaid.
7.7. Action of Beneficiaries
No Beneficiary shall have the right to institute any action, suit
or proceeding or to exercise any other remedy authorized by this trust
agreement for the purpose of enforcing any of its rights or for the
execution of any trust or power hereunder unless the Beneficiary has
requested the Trustee to take or institute such action, suit or
proceeding and furnished the Trustee with the funds, security or
indemnity referred to in section 7.6 and the Trustee shall have failed to
act within a reasonable time thereafter. In such case, but not otherwise,
the Beneficiary shall be entitled to take proceedings in any court of
competent jurisdiction such as the Trustee might have taken; it being
understood and intended that no one or more Beneficiaries shall have any
right in any manner whatsoever to affect, disturb or prejudice the rights
hereby created by any such action, or to enforce any right hereunder or
the Voting Rights, the Exchange Rights or the Automatic Exchange Rights,
except subject to the conditions and in the manner herein provided, and
that all powers and trusts hereunder shall be exercised and all
proceedings at law shall be instituted, had and maintained by the
Trustee, except only as herein provided, and in any event for the equal
benefit of all Beneficiaries.
7.8. Reliance Upon Declarations
The Trustee shall not be considered to be in contravention of any
its rights, powers, duties and authorities hereunder if, when required,
it acts and relies in good faith upon statutory declarations,
certificates, opinions, Lists, mailing labels, reports or other papers or
documents furnished pursuant to the provisions hereof or required by the
Trustee to be furnished to it in the exercise of its rights, powers,
duties and authorities hereunder if such statutory declarations,
certificates, opinions, Lists, mailing labels, reports or other papers or
documents comply with the provisions of section 7.9, if applicable, and
with any other applicable provisions of this trust agreement.
7.9. Evidence and Authority to Trustee
JDS Uniphase and/or Exchangeco shall furnish to the Trustee
evidence of compliance with the conditions provided for in this trust
agreement relating to any action or step required or permitted to be
taken by JDS Uniphase and/or Exchangeco or the Trustee under this trust
agreement or as a result of any obligation imposed under this trust
agreement, including, without limitation, in respect of the Voting Rights
or the Exchange Right or the Automatic Exchange Rights and the taking of
any other action to be taken by the Trustee at the request of or on the
application of JDS Uniphase and/or Exchangeco promptly if and when:
(a) such evidence is required by any other section of this trust
agreement to be furnished to the Trustee in accordance with
the terms of this section 7.9; or
(b) the Trustee, in the exercise of its rights, powers, duties
and authorities under this trust agreement, gives JDS
Uniphase and/or Exchangeco written notice requiring it to
furnish such evidence in relation to any particular action or
obligation specified in such notice.
Such evidence shall consist of an Officer's Certificate of JDS
Uniphase and/or Exchangeco or a statutory declaration or a certificate
made by persons entitled to sign an Officer's Certificate stating that
any such condition has been complied with in accordance with the terms of
this trust agreement.
Whenever such evidence relates to a matter other than the Voting
Rights or the Exchange Right or the Automatic Exchange Rights or the
taking of any other action to be taken by the Trustee at the request or
on the application of JDS Uniphase and/or Exchangeco, and except as
otherwise specifically provided herein, such evidence may consist of a
report or opinion of any solicitor, attorney, auditor, accountant,
appraiser, valuer, engineer or other expert or any other person whose
qualifications give authority to a statement made by him, provided that
if such report or opinion is furnished by a director, officer or employee
of JDS Uniphase and/or Exchangeco it shall be in the form of an Officer's
Certificate or a statutory declaration.
Each statutory declaration, Officer's Certificate, opinion or
report furnished to the Trustee as evidence of compliance with a
condition provided for in this trust agreement shall include a statement
by the person giving the evidence:
(a) declaring that he has read and understands the provisions of
this trust agreement relating to the condition in question;
(b) describing the nature and scope of the examination or
investigation upon which he based the statutory declaration,
certificate, statement or opinion; and
(c) declaring that he has made such examination or investigation
as he believes is necessary to enable him to make the
statements or give the opinions contained or expressed
therein.
7.10. Experts, Advisers and Agents
The Trustee may:
(a) in relation to these presents act and rely on the opinion or
advice of or information obtained from or prepared by any
solicitor, attorney, auditor, accountant, appraiser, valuer,
engineer or other expert, whether retained by the Trustee or
by JDS Uniphase and/or Exchangeco or otherwise, and may
retain or employ such assistants as may be necessary to the
proper discharge of its powers and duties and determination
of its rights hereunder and may pay proper and reasonable
compensation for all such legal and other advice or
assistance as aforesaid; and
(b) retain or employ such agents and other assistants as it may
reasonably require for the proper determination and discharge
of its powers and duties hereunder, and may pay reasonable
remuneration for all services performed for it (and shall be
entitled to receive reasonable remuneration for all services
performed by it) in the discharge of the trusts hereof and
compensation for all disbursements, costs and expenses made
or incurred by it in the discharge of its duties hereunder
and in the management of the Trust.
7.11. Investment of Moneys Held by Trustee
Unless otherwise provided in this trust agreement, any moneys held
by or on behalf of the Trustee which under the terms of this trust
agreement may or ought to be invested or which may be on deposit with the
Trustee or which may be in the hands of the Trustee may be invested and
reinvested in the name or under the control of the Trustee in securities
stated to mature within two years after their purchase by the Trustee,
and the Trustee shall so invest such moneys on the written direction of
Exchangeco. Pending the investment of any moneys as hereinbefore
provided, such moneys may be deposited in the name of the Trustee in any
chartered bank in Canada or, with the consent of Exchangeco, in the
deposit department of the Trustee or any other chartered bank, loan or
trust company authorized to accept deposits under the laws of Canada or
any province thereof at the rate of interest then current on similar
deposits.
7.12. Trustee Not Required to Give Security
The Trustee shall not be required to give any bond or security in
respect of the execution of the trusts, rights, duties, powers and
authorities of this trust agreement or otherwise in respect of the
premises.
7.13. Trustee Not Bound to Act on Request
Except as in this trust agreement otherwise specifically provided,
the Trustee shall not be bound to act in accordance with any direction or
request of JDS Uniphase and/or Exchangeco or of the directors thereof
until a duly authenticated copy of the instrument or resolution
containing such direction or request shall have been delivered to the
Trustee, and the Trustee shall be empowered to act and rely upon any such
copy purporting to be authenticated and believed by the Trustee to be
genuine.
7.14. Authority to Carry on Business
The Trustee represents to JDS Uniphase and Exchangeco that at the
date of execution and delivery by it of this trust agreement it is
authorized to carry on the business of a trust company in each of the
Provinces of Canada but if, notwithstanding the provisions of this
section 7.14, it ceases to be so authorized to carry on business, the
validity and enforceability of this trust agreement and the Voting
Rights, the Exchange Right and the Automatic Exchange Rights shall not be
affected in any manner whatsoever by reason only of such event but the
Trustee shall, within 90 days after ceasing to be authorized to carry on
the business of a trust company in any Province of Canada, either become
so authorized or resign in the manner and with the effect specified in
Article 10.
7.15. Conflicting Claims
If conflicting claims or demands are made or asserted with respect
to any interest of any Beneficiary in any Exchangeable Shares, including
any disagreement between the heirs, representatives, successors or
assigns succeeding to all or any part of the interest of any Beneficiary
in any Exchangeable Shares, resulting in conflicting claims or demands
being made in connection with such interest, then the Trustee shall be
entitled, at its sole discretion, to refuse to recognize or to comply
with any such claims or demands. In so refusing, the Trustee may elect
not to exercise any Voting Rights, Exchange Rights or Automatic Exchange
Rights subject to such conflicting claims or demands and, in so doing,
the Trustee shall not be or become liable to any person on account of
such election or its failure or refusal to comply with any such
conflicting claims or demands. The Trustee shall be entitled to continue
to refrain from acting and to refuse to act until:
(a) the rights of all adverse claimants with respect to the
Voting Rights, Exchange Right or Automatic Exchange Rights
subject to such conflicting claims or demands have been
adjudicated by a final judgment of a court of competent
jurisdiction and all rights of appeal have expired; or
(b) all differences with respect to the Voting Rights, Exchange
Right or Automatic Exchange Rights subject to such
conflicting claims or demands have been conclusively settled
by a valid written agreement binding on all such adverse
claimants, and the Trustee shall have been furnished with an
executed copy of such agreement certified to be in full force
and effect.
If the Trustee elects to recognize any claim or comply with any
demand made by any such adverse claimant, it may in its discretion
require such claimant to furnish such surety bond or other security
satisfactory to the Trustee as it shall deem appropriate to fully
indemnify it as between all conflicting claims or demands.
7.16. Acceptance of Trust
The Trustee hereby accepts the Trust created and provided for by
and in this trust agreement and agrees to perform the same upon the terms
and conditions herein set forth and to hold all rights, privileges and
benefits conferred hereby and by law in trust for the various persons who
shall from time to time be Beneficiaries, subject to all the terms and
conditions herein set forth.
ARTICLE 8.
COMPENSATION
8.1. Fees and Expenses of the Trustee
JDS Uniphase and Exchangeco jointly and severally agree to pay the
Trustee reasonable compensation for all of the services rendered by it
under this trust agreement and will reimburse the Trustee for all
reasonable expenses (including but not limited to taxes other than taxes
based on the net income of the Trustee, compensation paid to experts and
advisers, and travel expenses) and disbursements, including the cost and
expense of any suit or litigation of any character and any proceedings
before any governmental agency reasonably incurred by the Trustee in
connection with its duties under this trust agreement; provided that JDS
Uniphase and Exchangeco shall have no obligation to reimburse the Trustee
for any expenses or disbursements paid, incurred or suffered by the
Trustee in any suit or litigation in which the Trustee is determined to
have acted in bad faith or with negligence, recklessness or wilful
misconduct.
ARTICLE 9.
INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1. Indemnification of the Trustee
JDS Uniphase and Exchangeco jointly and severally agree to
indemnify and hold harmless the Trustee and each of its directors,
officers, employees and agents appointed and acting in accordance with
this trust agreement (collectively, the "Indemnified Parties") against
all claims, losses, damages, reasonable costs, penalties, fines and
reasonable expenses (including reasonable expenses of the Trustee's legal
counsel) which, without fraud, negligence, recklessness, wilful
misconduct or bad faith on the part of such Indemnified Party, may be
paid, incurred or suffered by the Indemnified Party by reason or as a
result of the Trustee's acceptance or administration of the Trust, its
compliance with its duties set forth in this trust agreement, or any
written or oral instruction (to be confirmed in writing) delivered to the
Trustee by JDS Uniphase or Exchangeco pursuant hereto.
In no case shall JDS Uniphase or Exchangeco be liable under this
indemnity for any claim against any of the Indemnified Parties unless JDS
Uniphase and Exchangeco shall be notified by the Trustee of the written
assertion of a claim or of any action commenced against the Indemnified
Parties, promptly after any of the Indemnified Parties shall have
received any such written assertion of a claim or shall have been served
with a summons or other first legal process giving information as to the
nature and basis of the claim. Subject to (ii) below, JDS Uniphase and
Exchangeco shall be entitled to participate at their own expense in the
defence and, if JDS Uniphase and Exchangeco so elect at any time after
receipt of such notice, either of them may assume the defence of any suit
brought to enforce any such claim. The Trustee shall have the right to
employ separate counsel in any such suit and participate in the defence
thereof but the fees and expenses of such counsel shall be at the expense
of the Trustee unless: (i) the employment of such counsel has been
authorized by JDS Uniphase or Exchangeco, such authorization not to be
unreasonably withheld; or (ii) the named parties to any such suit include
both the Trustee and JDS Uniphase or Exchangeco and the Trustee shall
have been advised by counsel acceptable to JDS Uniphase or Exchangeco
that there may be one or more legal defences available to the Trustee
that are different from or in addition to those available to JDS Uniphase
or Exchangeco and that, in the judgment of such counsel, would present a
conflict of interest were a joint representation to be undertaken (in
which case JDS Uniphase and Exchangeco shall not have the right to assume
the defence of such suit on behalf of the Trustee but shall be liable to
pay the reasonable fees and expenses of counsel for the Trustee). This
indemnity shall survive the resignation or removal of the Trustee and the
termination of the Trust.
9.2. Limitation of Liability
The Trustee shall not be held liable for any loss which may occur
by reason of depreciation of the value of any part of the Trust Estate or
any loss incurred on any investment of funds pursuant to this trust
agreement, except to the extent that such loss is attributable to the
fraud, negligence, recklessness, wilful misconduct or bad faith on the
part of the Trustee.
ARTICLE 10.
CHANGE OF TRUSTEE
10.1. Resignation
The Trustee, or any trustee hereafter appointed, may at any time
resign by giving written notice of such resignation to JDS Uniphase and
Exchangeco specifying the date on which it desires to resign, provided
that such notice shall not be given less than one month before such
desired resignation date, unless JDS Uniphase and Exchangeco otherwise
agree, and provided further that such resignation shall not take effect
until the date of the appointment of a successor trustee and the
acceptance of such appointment by the successor trustee. Upon receiving
such notice of resignation, JDS Uniphase and Exchangeco shall promptly
appoint a successor trustee by written instrument in duplicate, one copy
of which shall be delivered to the resigning trustee and one copy to the
successor trustee. Failing appointment of a successor trustee by JDS
Uniphase and Exchangeco, a successor trustee may be appointed by an order
of the Ontario Superior Court of Justice upon application of one or more
parties hereto. Should the retiring trustee apply for the appointment of
a successor trustee by an order of the Ontario Superior of Justice it
shall be at the joint and several expense of JDS Uniphase and Exchangeco.
10.2. Removal
The Trustee, or any trustee hereafter appointed, may (provided a
successor trustee is appointed) be removed at any time on not less than
30 days' prior notice by written instrument executed by JDS Uniphase and
Exchangeco, in duplicate, one copy of which shall be delivered to the
trustee so removed and one copy to the successor trustee.
10.3. Successor Trustee
Any successor trustee appointed as provided under this trust
agreement shall execute, acknowledge and deliver to JDS Uniphase and
Exchangeco and to its predecessor trustee an instrument accepting such
appointment. Thereupon the resignation or removal of the predecessor
trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor under this trust
agreement, with the like effect as if originally named as trustee in this
trust agreement. However, on the written request of JDS Uniphase and
Exchangeco or of the successor trustee, the trustee ceasing to act shall,
upon payment of any amounts then due it pursuant to the provisions of
this trust agreement, execute and deliver an instrument transferring to
such successor trustee all the rights and powers of the trustee so
ceasing to act. Upon the request of any such successor trustee, JDS
Uniphase, Exchangeco and such predecessor trustee shall execute any and
all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers.
10.4. Notice of Successor Trustee
Upon acceptance of appointment by a successor trustee as provided
herein, JDS Uniphase and Exchangeco shall cause to be mailed notice of
the succession of such trustee hereunder to each Beneficiary specified in
a List. If JDS Uniphase or Exchangeco shall fail to cause such notice to
be mailed within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at
the expense of JDS Uniphase and Exchangeco.
ARTICLE 11.
JDS UNIPHASE SUCCESSORS
11.1. Certain Requirements in Respect of Combination, etc.
JDS Uniphase shall not consummate any transaction (whether by way
of reconstruction, reorganization, consolidation, merger, transfer, sale,
lease or otherwise) whereby all or substantially all of its undertaking,
property and assets would become the property of any other person or, in
the case of a merger, of the continuing corporation resulting therefrom
unless, but may do so if:
(a) such other person or continuing corporation (herein called
the "JDS Uniphase Successor"), by operation of law, becomes,
without more, bound by the terms and provisions of this trust
agreement or, if not so bound, executes, prior to or
contemporaneously with the consummation of such transaction,
a trust agreement supplemental hereto and such other
instruments (if any) as are satisfactory to the Trustee,
acting reasonably, and in the opinion of legal counsel to the
Trustee are reasonably necessary or advisable to evidence the
assumption by the JDS Uniphase Successor of liability for all
moneys payable and property deliverable hereunder and the
covenant of such JDS Uniphase Successor to pay and deliver or
cause to be delivered the same and its agreement to observe
and perform all the covenants and obligations of JDS Uniphase
under this trust agreement; and
(b) such transaction shall, to the satisfaction of the Trustee,
acting reasonably, and in the opinion of legal counsel to the
Trustee, be upon such terms and conditions as substantially
to preserve and not to impair in any material respect any of
the rights, duties, powers and authorities of the Trustee or
of the Beneficiaries hereunder.
11.2. Vesting of Powers in Successor
Whenever the conditions of section 11.1 have been duly observed and
performed, the Trustee and, if required by section 11.1, JDS Uniphase
Successor and Exchangeco shall execute and deliver the supplemental trust
agreement provided for in Article 12 and thereupon JDS Uniphase Successor
shall possess and from time to time may exercise each and every right and
power of JDS Uniphase under this trust agreement in the name of JDS
Uniphase or otherwise and any act or proceeding by any provision of this
trust agreement required to be done or performed by the Board of
Directors of JDS Uniphase or any officers of JDS Uniphase may be done and
performed with like force and effect by the directors or officers of such
JDS Uniphase Successor.
11.3. Wholly-Owned Subsidiaries
Nothing herein shall be construed as preventing the amalgamation or
merger of any wholly-owned direct or indirect subsidiary of JDS Uniphase
with or into JDS Uniphase or the winding-up, liquidation or dissolution
of any wholly-owned subsidiary of JDS Uniphase provided that all of the
assets of such subsidiary are transferred to JDS Uniphase or another
wholly-owned direct or indirect subsidiary of JDS Uniphase and any such
transactions are expressly permitted by this Article 11.
ARTICLE 12.
AMENDMENTS AND SUPPLEMENTAL TRUST AGREEMENTS
12.1. Amendments, Modifications, etc.
This trust agreement may not be amended or modified except by an
agreement in writing executed by JDS Uniphase, Exchangeco and the Trustee
and approved by the Beneficiaries in accordance with section 10.2 of the
Share Provisions.
12.2. Ministerial Amendments
Notwithstanding the provisions of section 12.1, the parties to this
trust agreement may in writing, at any time and from time to time,
without the approval of the Beneficiaries, amend or modify this trust
agreement for the purposes of:
(a) adding to the covenants of any or all parties hereto for the
protection of the Beneficiaries hereunder provided that the
Board of Directors of each of Exchangeco and JDS Uniphase
shall be of the good faith opinion that such additions will
not be prejudicial to the rights or interests of the
Beneficiaries;
(b) making such amendments or modifications not inconsistent with
this trust agreement as may be necessary or desirable with
respect to matters or questions which, in the good faith
opinion of the Board of Directors of each of JDS Uniphase and
Exchangeco and in the opinion of counsel to the Trustee,
having in mind the best interests of the Beneficiaries, it
may be expedient to make, provided that such Boards of
Directors shall be of the opinion that such amendments and
modifications will not be prejudicial to the interests of the
Beneficiaries; or
(c) making such changes or corrections which, on the advice of
counsel to JDS Uniphase, Exchangeco and the Trustee, are
required for the purpose of curing or correcting any
ambiguity or defect or inconsistent provision or clerical
omission or mistake or manifest error, provided that the
Board of Directors of each of JDS Uniphase and Exchangeco
shall be of the opinion that such changes or corrections will
not be prejudicial to the rights and interests of the
Beneficiaries.
12.3. Meeting to Consider Amendments
Exchangeco, at the request of JDS Uniphase, shall call a meeting or
meetings of the Beneficiaries for the purpose of considering any proposed
amendment or modification requiring approval pursuant hereto. Any such
meeting or meetings shall be called and held in accordance with the by-
laws of Exchangeco, the Share Provisions and all applicable laws.
12.4. Changes in Capital of JDS Uniphase and Exchangeco
At all times after the occurrence of any event contemplated
pursuant to section 2.7 or 2.8 of the Support Agreement or otherwise, as
a result of which either JDS Uniphase Common Shares or the Exchangeable
Shares or both are in any way changed, this trust agreement shall
forthwith be amended and modified as necessary in order that it shall
apply with full force and effect, mutatis mutandis, to all new securities
into which JDS Uniphase Common Shares or the Exchangeable Shares or both
are so changed and the parties hereto shall execute and deliver a
supplemental trust agreement giving effect to and evidencing such
necessary amendments and modifications.
12.5. Execution of Supplemental Trust Agreements
No amendment to or modification or waiver of any of the provisions
of this trust agreement otherwise permitted hereunder shall be effective
unless made in writing and signed by all of the parties hereto. From time
to time Exchangeco (when authorized by a resolution of its Board of
Directors), JDS Uniphase (when authorized by a resolution of its Board of
Directors) and the Trustee may, subject to the provisions of these
presents, and they shall, when so directed by these presents, execute and
deliver by their proper officers, trust agreements or other instruments
supplemental hereto, which thereafter shall form part hereof, for any one
or more of the following purposes:
(a) evidencing the succession of JDS Uniphase Successors and the
covenants of and obligations assumed by each such JDS
Uniphase Successor in accordance with the provisions of
Article 11 and the successors of any successor trustee in
accordance with the provisions of Article 10;
(b) making any additions to, deletions from or alterations of the
provisions of this trust agreement or the Voting Rights, the
Exchange Right or the Automatic Exchange Rights which, in the
opinion of the Trustee relying on the advice of counsel, will
not be prejudicial to the interests of the Beneficiaries or
are, in the opinion of counsel to the Trustee, necessary or
advisable in order to incorporate, reflect or comply with any
legislation the provisions of which apply to JDS Uniphase,
Exchangeco, the Trustee or this trust agreement; and
(c) for any other purposes not inconsistent with the provisions
of this trust agreement, including without limitation, to
make or evidence any amendment or modification to this trust
agreement as contemplated hereby, provided that, in the
opinion of the Trustee relying on the advice of counsel, the
rights of the Trustee and Beneficiaries will not be
prejudiced thereby.
ARTICLE 13.
TERMINATION
13.1. Term
The Trust created by this trust agreement shall continue until the
earliest to occur of the following events:
(a) no outstanding Exchangeable Shares are held by a Beneficiary
(other than JDS Uniphase and its Affiliates);
(b) each of JDS Uniphase and Exchangeco elects in writing to
terminate the Trust and such termination is approved by the
Beneficiaries in accordance with section 10.2 of the Share
Provisions; and
(c) 21 years from the date of this trust agreement.
13.2. Survival of Agreement
This trust agreement shall survive any termination of the Trust and
shall continue until there are no Exchangeable Shares outstanding held by
a Beneficiary; provided, however, that the provisions of Articles 8 and 9
shall survive any such termination of this trust agreement.
ARTICLE 14.
GENERAL
14.1. Severability
If any term or other provision of this trust agreement is invalid,
illegal or incapable of being enforced by any rule or law, or public
policy, all other conditions and provisions of this trust agreement
shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is
not affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this trust agreement so as to effect the original intent
of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest
extent possible.
14.2. Enurement
This trust agreement shall be binding upon and enure to the benefit
of the parties hereto and their respective successors and permitted
assigns and to the benefit of the Beneficiaries.
14.3. Notices to Parties
All notices and other communications between the parties hereunder
shall be in writing and shall be deemed to have been given if delivered
personally or by confirmed telecopy to the parties at the following
addresses (or at such other address for such party as shall be specified
in like notice):
(a) if to Exchangeco:
JDS Uniphase Canada Ltd.
c/o JDS Uniphase Corporation
000 Xxxxxxxxx Xxxxxxx
Xxx Xxxx, XX
X.X.X. 00000
Attention: Senior Vice President, Business
Development
Telecopier No.: (000) 000-0000
(b) if to JDS Uniphase:
JDS Uniphase Corporation
c/o JDS Uniphase Corporation
000 Xxxxxxxxx Xxxxxxx
Xxx Xxxx, XX
X.X.X. 00000
Attention: Senior Vice President, Business
Development
Telecopier No.: (000) 000-0000
(c) if to the Trustee:
CIBC Mellon Trust Company
000 Xxx Xxxxxx
X.X. Xxx 0
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: AVP, Client Services
Telecopier No.: (000) 000-0000
Any notice or other communication given personally shall be deemed
to have been given and received upon delivery thereof and if given by
telecopy shall be deemed to have been given and received on the date of
receipt thereof unless such day is not a Business Day in which case it
shall be deemed to have been given and received upon the immediately
following Business Day.
14.4. Notice to Beneficiaries
Any and all notices to be given and any documents to be sent to any
Beneficiaries may be given or sent to the address of such Beneficiary
shown on the register of holders of Exchangeable Shares in any manner
permitted by the by-laws of Exchangeco from time to time in force in
respect of notices to shareholders and shall be deemed to be received (if
given or sent in such manner) at the time specified in such by-laws, the
provisions of which by-laws shall apply mutatis mutandis to notices or
documents as aforesaid sent to such Beneficiaries.
14.5. Counterparts
This trust agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
14.6. Jurisdiction
This trust agreement shall be construed and enforced in accordance
with the laws of the Province of Ontario and the laws of Canada
applicable therein.
14.7. Attornment
JDS Uniphase agrees that any action or proceeding arising out of or
relating to this trust agreement may be instituted in the courts of
Ontario, waives any objection which it may have now or hereafter to the
venue of any such action or proceeding, irrevocably submits to the
jurisdiction of the said courts in any such action or proceeding, agrees
to be bound by any judgment of the said courts and agrees not to seek,
and hereby waives, any review of the merits of any such judgment by the
court of any other jurisdiction and hereby appoints Exchangeco at its
registered office in the Province of Ontario as JDS Uniphase's attorney
for service of process.
IN WITNESS WHEREOF the parties hereto have caused this trust
agreement to be duly executed as of the date first above written.
JDS UNIPHASE CANADA LTD.
By:
Name:
Title:
JDS UNIPHASE CORPORATION
By:
Name:
Title:
CIBC MELLON TRUST COMPANY
By:
Name:
Title:
By:
Name:
Title:
