JDS UNIPHASE CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement"), dated July 6, 1999, is by
and among JDS Uniphase Corporation, a Delaware corporation (the "Company"), JDS
Uniphase Canada Ltd., a corporation organized under the laws of Canada
("Exchangeco"), and FEJ Holding Inc. and FEJ Sales Inc. (each an "Investor"),
each a corporation organized under the laws of the Northwest Territories and a
wholly-owned subsidiary of The Furukawa Electric Co., Ltd.
RECITALS:
A. The Investors hold an aggregate of 37,359,670 non-voting exchangeable
shares ("Exchangeable Shares") of Exchangeco. Each Exchangeable Share is
exchangeable by its terms into one share of the $.001 par value per share common
stock of the Company ("Common Stock").
B. The Furukawa Electric Co., Ltd., Exchangeco, JDS FITEL Inc. and the Company
are parties to a Support Agreement, dated as of January 28, 1999, as amended and
restated as of April 29, 1999 (the "Support Agreement"), pursuant to which The
Furukawa Electric Co., Ltd. agreed, among other things, to support that certain
plan of arrangement, whereby, among other things, Exchangeco acquired a portion
of the outstanding capital of JDS FITEL Inc. and issued the Exchangeable Shares
to the Investors.
C. The Furukawa Electric Co., Ltd. has caused the Investors to execute and
deliver this Agreement.
D. As consideration for The Furukawa Electric Co., Ltd.'s execution and
delivery of the Support Agreement and its obligations contained therein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and Exchangeco wish to grant the Investors
certain rights under the Securities Laws (as herein defined) with respect to the
shares of Common Stock and/or Exchangeable Shares held by the Investors.
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NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1.
REGISTRATION RIGHTS
1.1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the
following respective meanings:
A. "CANADIAN PROSPECTUS" shall mean a prospectus (including a short form
prospectus) prepared in accordance with applicable Canadian Securities
Laws for the purposes of qualifying securities for distribution or
distribution to the public, as the case may be, in any province or
territory of Canada.
B. "CANADIAN SECURITIES LAW" shall mean statutes and regulations
applicable to the trading of securities in any province or territory
of Canada including applicable rules, policy statements and blanket
rulings and orders promulgated by Canadian securities regulatory
authorities.
C. "COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
D. "COMMON STOCK MARKET VALUE" shall mean, at any date set forth herein,
the product of (i) the average of the closing sale prices on the
NASDAQ National Market (or any other national securities exchange upon
which the Common Stock is listed, from time to time) of one share of
Common Stock over the ten (10) trading days ending on the trading day
immediately prior to such date; and (ii) the number of shares of
Registrable Common Stock (as hereinafter defined) held by a Holder or
Holders to be registered on behalf of such Holder or Holders, as the
case may be.
E. "EXCHANGEABLE SHARE MARKET VALUE" shall mean, at any date set forth
herein, the product of (i) the average of the closing sale prices on
the TSE (or any other Canadian securities exchange upon which the
Exchangeable Shares are listed, from time to time) of one Exchangeable
Share over the ten (10) trading days ending on the trading day
immediately prior to such date; and (ii) the number of Registrable
Exchangeable Shares (as hereinafter defined) held by a Holder or
Holders to be registered on behalf of such Holder or Holders, as the
case may be.
F. "HOLDER" shall mean (i) an Investor; and (ii) any person or entity
holding Registrable Securities (as herein defined) to whom the rights
under this Section 1 have been transferred by an Investor in
accordance with Section 1.10 hereof.
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G. "INITIATING HOLDERS" shall mean any Holders who in the aggregate hold
greater than 25% of the Registrable Securities from time to time.
H. "PHILIPS" shall mean Koninklijke Philips Electronics N.V., a company
duly established under the laws of The Netherlands, together with its
successors and assigns.
I. "PHILIPS DEMAND REGISTRATION" shall mean any registration filed by the
Company at the request of Philips pursuant to Section 2.2 of the
Philips Stockholder Agreement.
J. "PHILIPS REGISTRABLE SECURITIES" shall mean Registrable Securities (as
defined in the Philips Stockholder Agreement).
K. "PHILIPS STOCKHOLDER AGREEMENT" shall mean that certain Stockholder
Agreement, dated as of June 9, 1998, between the Company and Philips.
L. The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement
in compliance with the Securities Act and the declaration or ordering
of the effectiveness of such registration statement. In addition,
unless inconsistent with the context: (i) the term "REGISTRATION" and
any references to the act of registering include the qualification
under Canadian Securities Laws of a Canadian Prospectus in respect of
a distribution or distribution to the public, as the case may be, of
securities; (ii) the term "REGISTERED" as applied to any securities
includes a distribution or distribution to the public, as the case may
be, of securities so qualified; (iii) the terms "REGISTRATION
STATEMENT" includes a Canadian Prospectus; (iv) any references to a
registration statement having become effective, or similar references,
shall include a Canadian Prospectus for which a final receipt has been
obtained from the relevant Canadian securities regulatory authorities;
and (v) the provisions of this Agreement shall be applied, MUTATIS
MUTANDIS, to any proposed distribution of securities hereunder in any
province or territory of Canada or to which the prospectus
requirements under any of the Canadian Securities Laws shall otherwise
apply.
M. "REGISTRABLE SECURITIES" means (i) the Exchangeable Shares held by an
Investor as of the date hereof and any securities of Exchangeco issued
or issuable in respect of the Exchangeable Shares upon any stock
split, stock dividend, recapitalization or similar event, or any
securities of Exchangeco otherwise issuable in respect of the
Exchangeable Shares held by an Investor as of the date hereof; and
(ii) any shares of Common Stock for which such Exchangeable Shares
have been exchanged pursuant to the Voting and Exchange Trust
Agreement, and any shares of Common Stock of the Company issued or
issuable in respect of such Common Stock upon any stock split, stock
dividend, recapitalization, or similar event, or any shares of Common
Stock otherwise issuable with respect to such shares of Common Stock;
provided, however, that shares of Common Stock or other
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securities shall only be treated as Registrable Securities for the
purposes of a registration under the Securities Act if and so long
as they have not been (A) sold to or through a broker, dealer or
underwriter in a public distribution or a public securities
transaction, or (B) sold (or available for sale) to the public
pursuant to an effective registration statement or Rule 144
promulgated under the Securities Act or sold in a private
transaction in which the transferor's rights under Section 1 of
this Agreement are not assigned.
N. "REGISTRATION EXPENSES" shall mean all expenses (other than Selling
Expenses), except as otherwise stated below, incurred by Exchangeco or
the Company in complying with Sections 1.2, 1.3 and 1.4 hereof,
including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of
counsel for Exchangeco or the Company, blue sky fees and expenses, the
expenses of any special audits, incident to or required by such
registration, and reasonable fees and disbursements of a single
special counsel for the Holders.
O. "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the
relevant time.
P. "SECURITIES EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, or any similar federal statute and the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the relevant time.
Q. "SECURITIES LAWS" shall mean the Securities Act, the Exchange Act and
the Canadian Securities Laws.
R. "SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities
registered by the Holders.
S. "TSE" shall mean The Toronto Stock Exchange.
T. "VOTING AND EXCHANGE TRUST AGREEMENT" shall mean that certain Voting
and Exchange Trust Agreement dated as of the date hereof among the
Company, Exchangeco and the Trustee (as defined therein).
1.2. REQUESTED REGISTRATION.
A. REQUEST FOR REGISTRATION OF COMMON STOCK. Notwithstanding any other
provision contained in this Agreement, with respect to Registrable
Common Stock (as defined below), the Initiating Holders shall only be
entitled to request a registration, qualification or compliance in
respect of such shares in the United States. In case the Company
shall receive from Initiating Holders a written request that the
Company effect any registration, qualification or compliance in the
United States with respect to shares of Common Stock constituting
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Registrable Securities (such shares to be hereinafter referred to as
"Registrable Common Stock") with a Common Stock Market Value of not
less than U.S.$60,000,000, the Company will:
1. within thirty (30) days give written notice of the proposed
registration, qualification or compliance to all other Holders; and
2. as soon as practicable, subject to the limitations and conditions set
forth in this Agreement, use reasonable best efforts to effect such
registration, qualification or compliance (including, without
limitation, appropriate qualification under applicable blue sky or
other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and any other governmental
requirements or regulations) so requested and as would permit or
facilitate the sale and distribution of all or such portion of such
Registrable Common Stock as are specified in such request, together
with all or such portion of the Registrable Common Stock of any Holder
or Holders and the Common Stock of other holders of Common Stock with
rights to do so joining in such request as are specified in a written
request received by the Company within twenty (20) days after receipt
of such written notice from the Company.
B. REQUEST FOR REGISTRATION OF EXCHANGE SHARES. Notwithstanding any
other provision contained in this Agreement, with respect to the
Registrable Exchangeable Shares (as defined below), the Initiating
Holders shall only be entitled to request a registration,
qualification or compliance in respect of such shares in the provinces
and territories of Canada. In case the Company shall receive from
Initiating Holders a written request that Exchangeco effect any
registration, qualification or compliance with respect to Exchangeable
Shares constituting Registrable Securities (such shares to be
hereinafter referred to as "Registrable Exchangeable Shares") with a
Exchangeable Share Market Value of not less than Cdn.$90,000,000, the
Company will:
1. within thirty (30) days give written notice of the proposed
registration, qualification or compliance to all other Holders;
and
2. as soon as practicable, subject to the limitations and
conditions set forth in this Agreement, use reasonable best
efforts to cause Exchangeco to effect such registration,
qualification or compliance under Canadian Securities Law so
as to permit or facilitate the sale and distribution in the
provinces and territories of Canada of all or such portion of
such Registrable Exchangeable Shares as are specified in such
request, together with all or such portion of the Registrable
Exchangeable Shares of any Holder or Holders and the Common
Stock of other holders of Common Stock with rights to do so
joining in such request as are specified in a written request
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received by the Company within twenty (20) days after receipt
of such written notice from the Company.
C. LIMITATION. Notwithstanding the foregoing, neither the Company nor
Exchangeco shall be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Section
1.2:
1. In any particular jurisdiction in which the Company or
Exchangeco, as applicable, would be required to execute a
general consent to service of process in effecting such
registration, qualification or compliance unless the Company
or Exchangeco, as applicable, is already subject to service in
such jurisdiction and except as may be required by the
Securities Laws.
2. After the Company and/or Exchangeco have effected an aggregate
of five (5) such registrations between them pursuant to
Sections 1.2(A) and 1.2(B), and such registrations have been
declared or ordered effective; provided however, that if the
request for a registration is subsequently withdrawn at the
request of the Holders of a number of shares of Registrable
Securities such that there are not enough Holders of
Registrable Securities intending to participate in the
registration sufficient to request such a registration (the
"Requesting Holders"), then such Requesting Holders shall, at
such Requesting Holders' option, either (i) be required to pay
all Registration Expenses, or (ii) lose one of their five (5)
rights to cause the Company or Exchangeco to effect a
registration under this Section 1.2; and provided, further,
however, that if the requested registration is withdrawn and
at the time of such withdrawal the Requesting Holders have
learned of a material adverse change in the condition,
business or prospects of the Company from that known to the
Requesting Holders at the time of their request and have
withdrawn the request with reasonable promptness following
disclosure by the Company of such material adverse change,
then the Requesting Holders shall not be required to pay any
of such Registration Expenses and shall retain their rights
pursuant to Section 1.2; and provided, further, however, that
if the Initiating Holders request contemporaneous
registrations of Registrable Common Stock and Registrable
Exchangeable Shares pursuant to Sections 1.2(A) and (B), and
the offerings pursuant to such registrations are completed on
or about the same date, such registrations shall be treated as
one (1) registration for the purposes of this Section
1.2(C)(2).
3. If the Company or Exchangeco has, within the twelve (12) month
period preceding the date of the receipt of the registration
request, already effected one (1) registration pursuant to
this Section 1.2.
4. If the Company shall furnish to such Holders a certificate
signed by the President of the Company stating that in the
good faith judgment of the
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Board of Directors of the Company it would be seriously
detrimental to the Company or its stockholders for a
registration statement of the Company or Exchangeco to be
filed in the near future, then the Company's and Exchangeco's
obligations to register, qualify or comply under this Section
1.2 shall be deferred for one or more periods, aggregating not
more than sixty (60) days in any twelve (12) month period.
5. If the Initiating Holders propose to dispose of shares of
Registrable Common Stock that may be immediately registered on
Form S-3 pursuant to a request made pursuant to Section 1.4
below.
Subject to the foregoing clauses (1) through (5), the Company or
Exchangeco, as applicable, shall file a registration statement
covering the Registrable Securities so requested to be registered as
soon as practicable after receipt of the request or requests of the
Initiating Holders.
D. UNDERWRITING. If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of a firm
commitment underwritten offering, they shall so advise the Company as
part of their request made pursuant to this Section 1.2, and the
Company shall so advise the Holders as part of the notice given
pursuant to Section 1.2(A)(1) or Section 1.2(B)(1), as applicable.
The Initiating Holders shall designate any underwriter or underwriters
to be retained in connection with any registration pursuant to this
Section 1.2, which underwriters shall be reasonably acceptable to the
Company. In such event, the right of any Holder to registration
pursuant to Section 1.2 shall be conditioned upon such Holder's
participation in the underwriting arrangements required by this
Section 1.2, and the inclusion of such Holder's Registrable Securities
in the underwriting to the extent requested shall be limited to the
extent provided herein.
The Company or Exchangeco, as applicable, shall (together with all
Holders proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in customary form
with the managing underwriter selected for such underwriting by a
majority in interest of the Initiating Holders, but subject to the
Company's or Exchangeco's, as applicable, reasonable approval.
Notwithstanding any other provision of this Section 1.2, if the
managing underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten (including Registrable Securities), then the Company or
Exchangeco, as applicable, shall so advise all holders of Registrable
Securities and the number of shares of Registrable Securities that may
be included in the registration and underwriting shall be allocated
among all Holders in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by such Holders at
the time of filing the registration statement; provided, however,
that, the number of shares of Registrable Securities held by the
Initiating Holders to be included in such
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underwriting and registration shall not be reduced unless all other
securities of the Company (including any Philips Registrable
Securities) or Exchangeco, as applicable, are first entirely
excluded from the underwriting and registration. If a limitation
on the number of shares to be included in such registration shall
still be required after giving effect to the limitation in the
preceding sentence, the Company or Exchangeco, as applicable, shall
so advise the Holders, and the number of shares that may be
included in the underwriting shall be allocated to the Holders, in
proportion, as nearly as practicable, to the respective amounts of
Registrable Securities then held by Holders requesting to have
shares included in the registration statement; and provided, that,
if, as a result of exclusions by the underwriter or underwriters
pursuant to this Section 1.2(D), less than fifty percent (50%) of
the aggregate shares of Registrable Securities registered in such
offering shall be for the account of Holders, then such
registration shall not be treated as an exercise of one of the five
(5) registration rights of Holders pursuant to this Section 1.2.
No Registrable Securities excluded from the underwriting by reason
of the underwriter's marketing limitation shall be included in such
registration. To facilitate the allocation of shares in accordance
with the above provisions, the Company or Exchangeco, as
applicable, or the underwriters may round the number of shares
allocated to any Holder to the nearest one hundred (100) shares.
If any Holder of Registrable Securities disapproves of the terms of
the underwriting, such person may elect to withdraw therefrom by
written notice to the Company or Exchangeco, as applicable, the
managing underwriter and the Initiating Holders. The Registrable
Securities so withdrawn shall also be withdrawn from registration, and
such Registrable Securities shall not be transferred in a public
distribution prior to ninety (90) days after the effective date of
such registration, or such other shorter period of time as the
underwriters may require.
1.3. COMPANY OR EXCHANGECO REGISTRATION.
A. NOTICE OF REGISTRATION. If at any time or from time to time the
Company or Exchangeco, as applicable, shall determine to register any
of its securities or to proceed with any proposed distribution or
distribution to the public thereof, as the case may be, either for its
own account or the account of a security holder or holders, other than
(i) a registration relating solely to employee benefit plans, (ii) a
registration relating solely to a Commission Rule 145 transaction, in
the case of a Company registration, (iii) a registration on Form S-4
(or equivalent form), in the case of a Company registration, or (iv) a
registration in which the only Common Stock or Exchangeable Shares
being registered are Common Stock or Exchangeable Shares,
respectively, issuable upon conversion of convertible debt securities
which are also being registered, the Company will:
1. promptly give to each Holder written notice thereof, and
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2. in the case of a Company registration of Common Stock, include
in such registration (and any related qualification under blue
sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Common Stock specified
in a written request or requests, made within twenty (20) days
after receipt of such written notice from the Company, by any
Holder; and in the case of an Exchangeco registration of
Exchangeable Shares, use reasonable best efforts to cause
Exchangeco to include in such registration (and any related
qualification or other compliance), and in any underwriting
involved therein, all the Registrable Exchangeable Shares
specified in a written request or requests, made within twenty
(20) days after receipt of such written notice from the
Company, by any Holder.
B. UNDERWRITING. If the registration of which the Company gives notice
is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice
given pursuant to Section 1.3(A)(1). In such event, the right of any
Holder to registration pursuant to Section 1.3 shall be conditioned
upon such Holder's participation in such underwriting and the
inclusion of Registrable Common Stock, in the case of a Company
offering of Common Stock, or Registrable Exchangeable Shares, in the
case of an Exchangeco offering of Exchangeable Shares, to the extent
provided herein.
All Holders proposing to distribute their securities through such
underwriting shall (together with the Company or Exchangeco, as the
case may be, and the other holders distributing their securities
through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such
underwriting by the Company or Exchangeco, as the case may be;
provided, however, that no Holder participating in such underwriting
shall be required to make any representation or warranty except with
respect to such Holder and its intended method of distribution, and
that the liability of such Holder shall be limited to an amount equal
to the net proceeds from such underwriting received by such Holder.
Notwithstanding any other provision of this Agreement, if the managing
underwriter advises the Company or Exchangeco, as the case may be,
that marketing factors require a limitation of the number of shares to
be underwritten, then the underwriter may exclude some or all
Registrable Securities from such registration and underwriting;
provided, however, that, subject to the next sentence, any such
limitation or "cutback" shall be (i) first applied to all shares
proposed to be sold in such offering (other than for the account of
the Company or Exchangeco, as the case may be), which are not
Registrable Securities or Philips Registrable Securities; (ii) then
applied to the Registrable Securities of Holders and Philips
Registrable Securities, if applicable. In the event that the number
of shares of Registrable Securities and Philips Registrable
Securities, if applicable, to be included in a registration shall be
limited pursuant to the foregoing, the Company or Exchangeco, as the
case may be, shall so advise all Holders and Philips, if applicable,
and the number of shares of Registrable Securities and Philips
Registrable Securities, if applicable, that may
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be included in the registration and underwriting shall be allocated
among all Holders and Philips, if applicable, in proportion, as
nearly as practicable, to the respective amounts of Registrable
Securities and Philips Registrable Securities, if applicable,
requested to be included. Notwithstanding the preceding sentence,
if such registration is a Philips Demand Registration, no Philips
Registrable Securities shall be excluded from such registration
pursuant to any underwriter limitation or cutback unless and until
all Registrable Securities have been so excluded from such
registration. No Registrable Securities excluded from the
underwriting by reason of the underwriters marketing limitation
shall be included in such registration. To facilitate the
allocation of shares in accordance with the above provisions, the
Company or Exchangeco, as the case may be, or the underwriters may
round the number of shares allocated to any Holder to the nearest
one hundred (100) shares.
If any Holder disapproves of the terms of any such underwriting, it
may elect to withdraw therefrom by written notice to the Company or
Exchangeco, as the case may be, and the managing underwriter. Any
securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration, and shall not be transferred in a
public distribution prior to one hundred and twenty (120) days after
the effective date of the registration statement relating thereto, or
such other shorter period of time as the underwriters may require.
If by the withdrawal of such Registrable Securities a greater number
of Registrable Securities held by other Holders may be included in
such registration (up to the maximum of any limitation then imposed by
the underwriter), then the Company or Exchangeco, as the case may be,
shall offer to all Holders, if any, whose shares have been excluded
from the registration by the terms of this Section 1.3(B), the right
to include additional Registrable Securities in the same proportion
used in determining the underwriter limitation in this Section 1.3(B)
up to the limitation then imposed by the underwriter.
C. RIGHT TO TERMINATE REGISTRATION. The Company or Exchangeco, as the
case may be, shall have the right to terminate or withdraw any
registration initiated by it under this Section 1.3 prior to the
effectiveness of such registration whether or not any Holder has
elected to include securities in such registration. The Registration
Expenses of such withdrawn registration shall be borne by the Company
or Exchangeco, as the case may be, in accordance with Section 1.5
hereof.
1.4. REGISTRATION ON FORM S-3, ETC.
A. If any Holder or Holders request that the Company file a registration
statement on Form S-3 (or any successor form to Form S-3) for a public
offering of shares of Registrable Common Stock and the Company is a
registrant entitled to use Form S-3, or any similar short form
registration statement, to register the Registrable Common Stock for
such an offering, the Company shall use its
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reasonable best efforts, as soon as practicable, to cause such
Registrable Common Stock to be registered for the offering on such
form and to cause such Registrable Common Stock to be qualified in
such United States jurisdictions as such Holder or Holders may
reasonably request.
If any Holder or Holders request that the Company use reasonable best
efforts to cause Exchangeco to file a short form Canadian Prospectus
for a public offering of Registrable Exchangeable Shares and
Exchangeco is entitled to use a short form Canadian Prospectus, or any
similar short form registration statement, to register the Registrable
Exchangeable Shares for such an offering, Exchangeco shall use its
reasonable best efforts, as soon as practicable, to cause such
Registrable Exchangeable Shares to be registered pursuant to such
short form Canadian Prospectus or other short form registration
statement and to cause such Registrable Exchangeable Shares to be
qualified for distribution or distribution to the public, as the case
may be, in such Canadian jurisdictions as such Holder or Holders may
reasonably request.
If the Company is to bear the expenses of a registration pursuant to
the terms of Section 1.5, the Company shall inform other Holders of
the proposed registration and offer them the opportunity to
participate. The substantive provisions of Section 1.3(B) shall be
applicable to each registration initiated under this Section 1.4.
B. Notwithstanding the foregoing, neither the Company nor Exchangeco, as
the case may be, shall be obligated to take any action pursuant to
this Section 1.4: (i) with respect to Registrable Common Stock, to
the extent Form S-3 (or any successor or similar form) is not
available for such offering by the Holders; (ii) with respect to
Registrable Exchangeable Shares, to the extent Exchangeco is not
entitled to use a short form Canadian Prospectus (or any successor or
similar form) to qualify such securities for distribution or
distribution to the public, as the case may be; (iii) if the Holders
propose to sell Registrable Common Stock with a Common Stock Market
Value of less than U.S.$5,000,000 or Registrable Exchangeable Shares
with an Exchangeable Share Market Value of less than Cdn.$7,500,000,
as the case may be; (iv) if the Company has, within the twelve (12)
month period preceding the date of such request, already effected one
(1) registration on Form S-3 for the Holders pursuant to this Section
1.4 or Exchangeco has already effected one (1) registration pursuant
to a short form Canadian Prospectus (or any similar or successor form)
pursuant to this Section 1.4; (v) in any particular jurisdiction in
which the Company or Exchangeco, as the case may be, would be required
to execute a general consent to service of process in effecting such
registration, qualification or compliance unless the Company or
Exchangeco, as the case may be, is already subject to service in such
jurisdiction and except as may be required by the Securities Laws; or
(vi) if the Company shall furnish to such Holder a certificate signed
by the President of the Company stating that in the good faith
judgment of the Board of Directors it would be seriously
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detrimental to the Company, Exchangeco or their shareholders for
registration statements to be filed in the near future, then the
Company's and Exchangeco's obligation to use their reasonable best
efforts to file a registration statement shall be deferred for one
or more periods, aggregating not more than sixty (60) days in any
twelve (12) month period.
C. Notwithstanding Sections 1.4(A) and 1.4(B), if any Holder or Holders
request Exchangeco to file a short form Canadian prospectus for a
public offering of Registrable Exchangeable Shares on a "bought deal"
basis (as such expression is generally used in Canadian Securities
Laws) and Exchangeco is entitled to use a short form Canadian
Prospectus to register Registrable Exchangeable Shares for such an
offering, Exchangeco shall use its reasonable best efforts to cause
such Registrable Exchangeable Shares to be registered for the offering
on such basis (including within the time frames specified for a bought
deal under Canadian Securities Laws) and to cause such Registrable
Exchangeable Shares to be qualified in such jurisdictions of Canada as
such Holder or Holders may reasonably request. Neither the Company
nor Exchangeco shall inform other Holders of the proposed
registration, nor shall they offer them any opportunity to
participate. The Holder or Holders shall designate the underwriter or
underwriters to be retained in connection with such registration,
which underwriters shall be reasonably acceptable to the Company and
Exchangeco. Exchangeco shall (together with the Holders proposing to
distribute their securities through such underwriting) enter into an
underwriting agreement in customary form for a bought deal with the
underwriters selected for such registration by the Holder or Holders,
but subject to Exchangeco's reasonable approval.
D. For greater certainty, a request for registration pursuant to Section
1.4(C) shall also constitute a request for registration pursuant to
Section 1.2 for the purposes of determining whether the Holders have
extinguished their rights to request five (5) registrations from the
Company and Exchangeco.
1.5. EXPENSES OF REGISTRATION.
Except as otherwise expressly set forth herein, all Registration
Expenses incurred in connection with all registrations requested pursuant to
Sections 1.2 and 1.3 shall be borne by the Company; provided, however, that with
respect to any sale of Registrable Exchangeable Shares pursuant to a Canadian
Prospectus, each Holder shall pay its pro rata share of the Registration
Expenses to the extent that such expenses are required to be paid by the Holders
under Canadian Securities Laws. All Registration Expenses incurred in
connection with registrations requested pursuant to Section 1.4, the reasonably
anticipated aggregate price to the public of which, net of underwriting
discounts and commissions, would exceed U.S.$2,500,000, shall be borne by the
Company; provided, however, that with respect to any sale of Registrable
Exchangeable Shares pursuant to a Canadian Prospectus, each Holder shall pay its
pro rata share of the Registration Expenses to the extent that such expenses are
required to be paid by the Holders under Canadian Securities Laws; and further
provided, however, that the Company shall
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not be required to bear the expenses of more than one such registration in
any twelve (12) month period. All Selling Expenses relating to securities
registered on behalf of Holders shall be borne by the Holders of such
securities pro rata on the basis of the number of shares so registered. If
the Holders are required to pay the Registration Expenses in connection with
a registration of Registrable Common Stock, such expenses shall be borne by
the Holders of securities (including Registrable Securities) requesting such
registration in proportion to the number of shares for which registration was
requested and such Holders shall not forfeit any right pursuant to Section
1.2 to request a registration.
1.6. REGISTRATION PROCEDURES.
In the case of each registration, qualification or compliance effected
by the Company or Exchangeco, as the case may be, pursuant to this Section 1,
the Company or Exchangeco, as the case may be, will keep each Holder advised in
writing as to the initiation of each registration, qualification and compliance
and as to the completion thereof. At its expense the Company or Exchangeco, as
the case may be, will:
A. Prepare and file with the Commission or Canadian securities regulatory
authorities, as applicable, a registration statement, and including
amendments and supplements, with respect to such securities and use
its reasonable best efforts to cause such registration statement to
become and remain effective for at least the earlier of one hundred
eighty (180) days (or two (2) years, if such registration is pursuant
to Section 1.4(A) or (B)), and the date on which the distribution
described in the registration statement has been completed;
B. Furnish to the Holders participating in such registration and to the
underwriters of the securities being registered such reasonable number
of copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as such Holders or underwriters
may reasonably request in order to facilitate the public offering of
such securities;
C. Use its reasonable best efforts to register and qualify the
Registrable Common Stock covered by a Company registration statement
under such other securities or blue sky laws of such United States
jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions;
D. In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriters of such offering; each
Holder participating in such underwriting shall also enter into and
perform its obligations under such an agreement;
E. Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a registration statement
relating thereto is required to
-14-
be delivered under the Securities Laws, of the happening of any
event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing;
F. Furnish, at the request of any Holder requesting registration of
Registrable Securities, on the date that such Registrable Securities
are delivered to the underwriters for sale, if such securities are
being sold through underwriters, or, if such securities are not being
sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion,
dated as of such date, of the counsel representing the Company or
Exchangeco, as the case may be, for the purposes of such registration,
in form and substance as is customarily given to underwriters in
underwritten public offering and reasonably satisfactory to a majority
in interest of the Holders requesting registration, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Securities; (ii) a "comfort" letter dated as of such date,
from the independent certified public accountants of the Company or
Exchangeco, as the case may be, in form and substance as is
customarily given by independent certified public accountants to
underwriters in an underwritten public offering and reasonably
satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities; and (iii)
if a Canadian Prospectus is filed in the Province of Quebec, opinions
of Quebec counsel and of the auditors representing the Company and
Exchangeco for the purposes of such registration relating to
translation into the French language of the applicable registration
statement, in form and substance as is customarily given to
underwriters in an underwritten public offering and reasonably
satisfactory to a majority in interest of Holders requesting
registration, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities; and
G. Upon the execution of confidentiality agreements in form and substance
satisfactory to the Company, make available for inspection of any
Holder participating in a registration and any attorney, accountant or
other professional retained by any such Holder or underwriter
(collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company and/or
Exchangeco, as applicable, (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any
Inspectors in connection with such registration statement. Records
that the Company determines, in good faith, to be confidential and
that it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such Records
is necessary to avoid or correct a misstatement or omission in such
registration statement, or (ii) the release of such Records is ordered
pursuant to a subpoena or other order
-15-
from a court of competent jurisdiction or from the Commission or any
Canadian securities regulatory authority.
1.7. INDEMNIFICATION.
A. The Company will indemnify each Holder, each of its officers and
directors and partners, and each person controlling such Holder within
the meaning of Section 15 of the Securities Act, with respect to which
registration, qualification or compliance has been effected pursuant
to this Agreement, and each underwriter, if any, and each person who
controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages and
liabilities (or actions in respect thereof), including any of the
foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on 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, or any violation by the Company or Exchangeco, as the case
may be, of the Securities Laws, state securities law or any rule or
regulation promulgated under the such laws applicable to the Company
or Exchangeco, as the case may be, and relating to action or inaction
required of the Company or Exchangeco, as the case may be, in
connection with any such registration, qualification or compliance,
and will reimburse each such Holder, each of its officers and
directors, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred, as such expenses are
incurred, in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any
such claim, loss, damage, liability or expense arises out of or is
based on any untrue statement or omision or alleged untrue statement
or omission in a registration statement or prospectus made in reliance
upon and in conformity with written information furnished to the
Company by a Holder or underwriter specifically for use therein.
B. Each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company
or Exchangeco, as applicable, each of its directors and officers, each
underwriter, if any, of the Company's or Exchangeco's securities
covered by such a registration statement, each person who controls the
Company or Exchangeco, as applicable, or such underwriter within the
meaning of Section 15 of the Securities Act, and each other such
Holder, each of its officers and directors and each person controlling
such Holder within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on
-16-
any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus,
offering circular or other document, or 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,
and will reimburse the Company or Exchangeco, as applicable, such
Holders, such directors, officers, underwriters or control persons
for any legal or any other expenses reasonably incurred, as such
expenses are incurred, in connection with investigating or
defending any such claim, loss, damage, liability or action, in
each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus,
offering circular or other document in reliance upon and in
conformity with written information furnished to the Company or
Exchangeco, as applicable, by such Holder specifically for use
therein; provided, however, that the indemnity agreement contained
in this Section 1.7(B) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if
such settlement is effected without the consent of each Holder,
which consent shall not be unreasonably withheld. Notwithstanding
the foregoing, the liability of each Holder under this Section
1.7(B) shall be limited in an amount equal to the net proceeds of
the public offering received by such Holder; provided, however,
such limitation shall not apply in the case of willful fraud by
such Holder.
C. Each party entitled to indemnification under this Section 1.7 (the
"Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting
therefrom, provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or litigation, shall be approved by
the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense
at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Agreement unless
the failure to give such notice is materially prejudicial to an
Indemnifying Party's ability to defend such action, in which case the
Indemnifying Party shall be relieved of its obligations under this
Section 1.7 to the extent of such prejudice, and provided further that
the Indemnifying Party shall pay the fees and costs of separate
counsel for the Indemnified Party should a situation arise where there
are actual or potential differing interests between the Indemnifying
Party and Indemnified Party. No claim may be settled without the
consent of the Indemnifying Party (which consent shall not be
unreasonably withheld). No Indemnifying Party, in the defense of any
such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional
-17-
term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such
claim or litigation.
D. If the indemnification provided for in this Section 1.7 is held by a
court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage, or expense
referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such
loss, liability, claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on
the one hand and of the Indemnified Party on the other in connection
with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant
equitable considerations. The relative fault of the Indemnifying
Party and of the Indemnified Party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified
Party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or
omission, provided however, that, in any such case, (A) no such Holder
will be required to contribute any amount in excess of the public
offering price of all such Registrable Securities offered and sold by
such Holder pursuant to such registration statement; and (B) no person
or entity guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
E. The obligations under this Section 1.7 shall survive the completion of
any offering of Registrable Securities in a registration statement
under this Section 1 and otherwise.
1.8. INFORMATION BY HOLDERS.
The Holder or Holders of Registrable Securities included in any
registration shall furnish to the Company or Exchangeco, as applicable, such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company or
Exchangeco, as applicable, may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Section 1.
1.9. RULE 144 REPORTING.
With a view to making available the benefits of certain rules and
regulations of the Commission that may at any time permit the sale of the
Registrable Common Stock to the public without registration, the Company agrees
to:
-18-
A. Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all
times after the effective date that the Company becomes subject to the
reporting requirements of the Securities Act or the Securities
Exchange Act;
B. File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the
Securities Exchange Act;
C. Furnish to Holders of Registrable Common Stock forthwith upon request
a written statement by the Company as to its compliance with the
reporting requirements of Rule 144, and of the Securities Act and the
Securities Exchange Act, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the
Company as a Holder may reasonably request in availing itself of any
rule or regulation of the Commission allowing a Holder to sell any
such securities without registration; and
D. The Company shall not take any action or fail to take any action which
could reasonably impair the ability of the Company to perform its
obligations pursuant to this Section 1.9.
E. Take such action as is necessary to enable the Holders to utilize
Form S-3 for the sale of Registrable Common Stock.
1.10. TRANSFER OF REGISTRATION RIGHTS.
The rights and obligations granted to each Investor under this
Agreement may be assigned (but only with all related obligations) to any person
or entity who acquires at least 100,000 shares of Registrable Securities that
have not been sold to the public (other than an acquisition pursuant to an open
market purchase), provided that the Company is given written notice of such
assignment prior to such assignment, and that the transferee agrees in writing
to be bound by and subject to the terms and conditions of this Agreement,
including, without limitation, Section 1.11 below, and the Support Agreement.
1.11. STANDOFF AGREEMENT.
Each Holder hereby agrees that, during the period of duration
specified by the Company and an underwriter of Common Stock or Exchangeable
Shares or other securities of the Company or Exchangeco, following the effective
date of a registration statement of the Company or Exchangeco, as the case may
be, filed under the Securities Laws, it shall not, to the extent requested by
the Company or Exchangeco, as the case may be, and such underwriter, nor shall
it announce an intention to, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) any securities of the Company or Exchangeco held by
it at any time during such period except Common Stock or
-19-
Exchangeable Shares included in such registration; provided, however, that such
market stand-off time period shall not exceed 180 days.
In order to enforce the foregoing covenant, the Company or Exchangeco,
as the case may be, may impose stop-transfer instructions with respect to the
Registrable Securities of each Holder (and the shares or securities of every
other person subject to the foregoing restriction) until the end of such period.
Notwithstanding the foregoing, the obligations described in this
Section 1.11 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to a Commission Rule 145
transaction on Form S-4 or similar forms which may be promulgated in the future.
1.12. TERMINATION.
The rights to cause the Company or Exchangeco to register securities
granted to each Investor and any person or entity to whom rights under Section 1
have been transferred by each Investor in accordance with Section 1.10 shall
expire upon the earlier of ten (10) years or, for a particular Holder of
Registrable Securities, at such time as such holder owns securities constituting
less than one percent (1.0%) of the outstanding capital stock of the Company
(assuming all outstanding Exchangeable Shares have been exchanged for shares of
Common Stock) and is able to dispose of all such securities in one three-month
period pursuant to Rule 144.
ARTICLE 2.
MISCELLANEOUS
2.1. AMENDMENTS.
Any provision of this Agreement may be amended, waived or modified
upon the written consent of the (i) the Company; (ii) Exchangeco; and (iii) the
Holders of a majority of the outstanding Registrable Securities. Any amendment
or waiver effected in accordance with this Section 2.1 shall be binding upon
each holder of any Registrable Securities then outstanding, each future holder
of all such Registrable Securities, the Company and Exchangeco.
2.2. GOVERNING LAW.
This Agreement shall be governed in all respects by the laws of the
State of Delaware as such laws are applied to agreements between Delaware
residents entered into and to be performed entirely within Delaware.
-20-
2.3. SUCCESSORS AND ASSIGNS.
Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto.
2.4. ENTIRE AGREEMENT.
This Agreement constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof.
2.5. NOTICES, ETC.
All notices and other communications which may or are required to be
given pursuant to any provision of this Agreement shall be given or made in
writing and shall be deemed to be validly given if served personally or by
confirmed telecopy, in each case addressed (i) if to either Investor, at the
Investor's address, as shown on EXHIBIT A hereto, or at such other address as
such Investor shall have furnished to the Company and Exchangeco in writing,
with a copy to Xxxxxxx, Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx, Xxxxxx M5B 2M6, Attention: Xxxxxxx Xxxxxx, or (ii) if to any
other holder of any shares subject to this Agreement, at such address as such
holder shall have furnished to the Company and Exchangeco in writing, or, until
any such holder so furnishes an address to the Company and Exchangeco, then to
and at the address of the last holder of such shares who has so furnished an
address to the Company and Exchangeco, or (iii) if to the Company and
Exchangeco, one copy should be sent to the Company's principal place of business
and addressed to the attention of the Corporate Secretary, or at such other
address as the Company shall have furnished to the Investors, with a copy to
Xxxxxxxx & Xxxxxxxx LLP, 1290 Avenue of the Americas, Xxx Xxxx, Xxx Xxxx,
X.X.X., 00000, Attention: Xxxx X. Xxxxxx.
The date of receipt of any such notice shall be deemed to be the date
of delivery or telecopying thereof.
2.6. SEVERABILITY OF THIS AGREEMENT.
If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by any rule or law, or public policy, all other
conditions and provisions of this 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 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 extent possible.
-21-
2.7. TITLES AND SUBTITLES.
The titles of the paragraphs and subparagraphs of this Agreement are
for convenience of reference only and are not to be considered in construing
this Agreement.
2.8. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
2.9. DELAYS OR OMISSIONS.
It is agreed that no delay or omission to exercise any right, power or
remedy accruing to any party to this Agreement, upon any breach or default of
another party to this Agreement, shall impair any such right, power or remedy,
nor shall it be construed to be a waiver of any such breach or default, or any
acquiescence therein, or of any similar breach or default thereafter occurring;
nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character by
any party to this Agreement of any breach or default under this Agreement, or
any waiver by such party of any provisions or conditions of this Agreement must
be in writing and shall be effective only to the extent specifically set forth
in writing and that all remedies, either under this Agreement, or by law or
otherwise, shall be cumulative and not alternative.
2.10. STOCK SPLITS.
All references to the number of shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend, recapitalization or other
change in the capital stock which may be made by the Company or Exchangeco after
the date hereof.
2.11. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants that (a) it has obtained the
necessary written consent pursuant to Section 2.13 of the Philips Stockholder
Agreement and the execution and delivery of this Agreement would not be in
breach of the Philips Stockholder Agreement or any other agreement entitling a
person to require the Company to register any shares of the Company's capital
stock held by such person, and (b) the terms and conditions of the registration
rights granted pursuant to this Agreement are substantially equivalent to those
set forth in the Philips Stockholder Agreement.
-22-
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first written above.
JDS UNIPHASE CORPORATION
------------------------------
(Signature)
By:
Title:
JDS UNIPHASE CANADA LTD.
------------------------------
(Signature)
By:
Title:
FEJ HOLDING INC.
------------------------------
(Signature)
By:
Title:
FEJ SALES INC.
------------------------------
(Signature)
By:
Title:
EXHIBIT A
INVESTORS' ADDRESSES
FEJ Holding Inc.
c/o The Furukawa Electric Co., Ltd.
0-0 Xxxxxxxxxx 0-Xxxxx
Xxxxxxx-Xx, Xxxxx 000-0000
Xxxxx
Fax: 000 00 0 0000-0000
Attention: Hideo Sakura
FEJ Sales Inc.
c/o The Furukawa Electric Co., Ltd.
0-0 Xxxxxxxxxx 0-Xxxxx
Xxxxxxx-Xx, Xxxxx 000-0000
Xxxxx
Fax: 000 00 0 0000-0000
Attenion: Hideo Sakura
