SUPPORT AGREEMENT
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THIS AGREEMENT amended and restated as of the 29th day of April, 1999.
A M O N G:
UNIPHASE CORPORATION,
a corporation existing under the laws of the State of
Delaware (hereinafter referred to as "Uniphase")
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3506967 CANADA INC.,
a corporation existing under the laws of Canada
(hereinafter referred to as "Exchangeco")
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THE FURUKAWA ELECTRIC CO., LTD.,
a corporation existing under the laws of Japan
(hereinafter referred to as "Furukawa")
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JDS FITEL INC.,
a corporation existing under the laws of Canada
(hereinafter referred to as "JDS")
RECITALS:
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1. Uniphase and its wholly-owned subsidiary, Exchangeco,
(collectively, the "Uniphase Parties") propose to enter into an amended and
restated merger agreement (the "Merger Agreement") with JDS substantially in
the form attached hereto as Schedule C under which, among other things and as
more particularly described in the Merger Agreement, Exchangeco would issue
Class B non-voting preference shares ("Class B Non-Voting Preference Shares")
to certain direct or indirect holders of common shares of JDS under a plan of
arrangement (the "Arrangement") under the CANADA BUSINESS CORPORATIONS ACT
("CBCA"). Pursuant to the Arrangement, Exchangeco and 3025244 Nova Scotia
Company would then acquire all of the outstanding Class B Non-Voting
Preference Shares and the holders of Class B Non-Voting Preference Shares
would receive Exchangeable Shares of Exchangeco or common shares of Uniphase.
2. This Agreement sets out the terms and conditions of the
agreement of Furukawa (i) to support the Arrangement, including any
Alternative Transaction (as defined in section 2.3)
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contemplated thereby; (ii) to vote the JDS Common Shares owned by Furukawa in
favour of the Arrangement and any Alternative Transaction; (iii) to certain
matters relating to its ownership of Uniphase Common Shares for a period of
10 years following the Effective Date of the Arrangement; and (iv) to abide
by the restrictions and covenants set forth herein.
3. Furukawa acknowledges that the Uniphase Parties would not enter
into the Merger Agreement but for the execution and delivery of this
Agreement by Furukawa.
ARTICLE 1.
DEFINITIONS
1.1. As used herein, the term "JDS Common Shares" means the common shares
of JDS as constituted at the date hereof and includes any other voting
securities of JDS that may result from a reclassification, conversion,
consolidation, subdivision or exchange of, or distribution or dividend on,
such shares. As used herein, the term "Uniphase Common Shares" means the
Exchangeable Shares of Exchangeco, the shares of common stock, US$0.001 par
value, of Uniphase and any other voting securities of Uniphase which are
entitled to vote generally in the election of directors of Uniphase. As used
herein, the term "FCo Group" means Furukawa and all Affiliates of Furukawa.
As used herein, the term "Affiliate" of any Person means any other Person
directly or indirectly controlling, controlled by, or under common control
of, 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. Other
capitalized terms which are not defined in this Agreement have the meaning
ascribed to such terms in the Merger Agreement.
ARTICLE 2.
COMMITMENT IN FAVOUR OF THE ARRANGEMENT
2.1. NON-SOLICITATION. Furukawa irrevocably covenants and agrees in favour
of the Uniphase Parties that Furukawa will not directly or indirectly solicit
or initiate (including by way of furnishing information or entering into any
form of agreement or arrangement) any inquiries or proposals regarding any
merger, amalgamation, take-over bid, sale of material assets (or any lease,
long-term supply agreement or other arrangement having the same economic
effect as a sale) or material sale of shares or rights or interests therein
or thereto (other than as contemplated by section 2.8) or similar
transactions involving JDS or any material subsidiary of JDS, or a proposal
to do so, other than with the Uniphase Parties (each, an "Inconsistent
Transaction"). Furukawa shall promptly notify JDS and Uniphase in writing of
any proposal of which Furukawa becomes aware for an Inconsistent Transaction
and of any request in connection with such a proposal for non-public
information relating to JDS or any of its material subsidiaries and of all
the relevant details relating to such a proposal. JDS acknowledges and
agrees to such notice being provided by Furukawa.
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2.2. VOTING. Subject to section 2.9:
(a) Furukawa irrevocably covenants and agrees in favour of the
Uniphase Parties to vote or to cause to be voted the JDS Common
Shares (including shares owned as of January 28, 1999, whether
held directly or indirectly, and including shares acquired at
any time prior to the Meeting (as defined below)) owned by the
FCo Group (collectively, the "Furukawa Shares") in favour of
the Arrangement at any special meeting or meetings or
adjournment or adjournments thereof of holders of JDS Common
Shares to be held to consider the Arrangement (the "Meeting"),
including in connection with any separate vote of any sub-group
of shareholders that may be required to be taken and of which
sub-group any member of the FCo Group forms a part. Furukawa
irrevocably covenants and agrees in favour of the Uniphase
Parties that (i) no later than five days prior to the date of
the Meeting it shall deliver or cause to be delivered to JDS a
duly executed proxy or proxies in favour of management of JDS
voting in favour of the Arrangement and (ii) such proxy or
proxies will not be revoked.
(b) Furukawa irrevocably covenants and agrees in favour of the
Uniphase Parties to vote or to cause to be voted the Furukawa
Shares against any Inconsistent Transaction proposal at any
meeting of shareholders of JDS.
2.3. CHANGE IN NATURE OF TRANSACTION. Subject to Section 2.9, Furukawa
irrevocably covenants and agrees in favour of the Uniphase Parties that if
the Uniphase Parties and their counsel and JDS and its counsel mutually agree
that it is necessary or desirable to proceed with another form of transaction
whereby Uniphase or any of its Affiliates would effectively acquire 100% of
the JDS Common Shares on economic terms and other terms and conditions
(including, without limitation, tax treatment) and having consequences to
Furukawa which, in relation to JDS and Furukawa, in the sole determination of
Furukawa acting reasonably, are substantially equivalent to those
contemplated by the Merger Agreement (an "Alternative Transaction"), the FCo
Group will support the completion of such Alternative Transaction in the same
manner as the Arrangement.
2.4. MEETING OF SHAREHOLDERS. Subject to section 2.9, if an Alternative
Transaction involves a meeting or meetings of holders of shares of JDS,
Furukawa irrevocably covenants and agrees in favour of the Uniphase Parties
to vote the Furukawa Shares or to cause the Furukawa Shares to be voted in
favour of any matters necessary or ancillary to the completion of the
transactions contemplated by the Alternative Transaction in the same manner,
MUTATIS MUTANDIS, as that referred to in section 2.2(a).
2.5. CHANGES OF REFERENCES. In the event of any proposed Alternative
Transaction, the references in this Agreement to "Arrangement" shall be
changed to "Alternative Transaction" and all terms, covenants, conditions,
representations and warranties of this Agreement shall be and shall be deemed
to have been made in the context of the Alternative Transaction. All
references to the "Effective Date" herein shall also refer to the date of
closing of the transactions contemplated by the Alternative Transaction.
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2.6. NO DISSENT. Furukawa covenants that it will not nor will any other
member of the FCo Group exercise any rights of dissent provided under section
190 of the CBCA or the Interim Order or otherwise in connection with the
Arrangement, any Alternative Transaction or any other corporate transaction
considered at the JDS Meeting in connection therewith.
2.7. TRANSFER OF SHARES. Furukawa irrevocably covenants and agrees in
favour of the Uniphase Parties that the FCo Group will not prior to the
Effective Time transfer or assign or agree to transfer or assign any of the
Furukawa Shares, whether pursuant to an Inconsistent Transaction or
otherwise, without the prior consent of Uniphase, which consent shall not be
unreasonably withheld if it is sought for BONA FIDE tax planning purposes and
does not materially prejudice, directly or indirectly, the Uniphase Parties
or completion of the Arrangement.
2.8. PERMITTED TRANSFER OF SHARES. Notwithstanding section 2.7, the FCo
Group may at any time and from time to time prior to the Effective Time
transfer or assign or agree to transfer or assign Furukawa Shares in the
following circumstances, without the prior consent of Uniphase:
(a) the FCo Group may transfer or assign Furukawa Shares to any
other member of the FCo Group provided that such member agrees
in writing, in form and substance reasonably satisfactory to
Uniphase, to be bound by this Agreement; and
(b) the FCo Group may transfer or assign up to 14% of the Furukawa
Shares, provided that it retains the right to vote or cause to
be voted such shares in connection with the Arrangement by
obtaining an irrevocable proxy from any transferee or assignee
or by obtaining the written agreement of the transferee or
assignee, in form and substance reasonably satisfactory to
Uniphase, to be bound by sections 2.2, 2.3, 2.4, 2.6, 2.7 and
2.8 of this Agreement.
2.9. CONDITIONS PRECEDENT. The obligations of Furukawa to support the
Arrangement and to perform its obligations contemplated by sections 2.2,
2.3, 2.4 and 2.6 shall be subject to fulfillment of the following conditions
(which are for the FCo Group's exclusive benefit and may be waived by
Furukawa on behalf of the FCo Group and which, if not satisfied or waived,
will relieve the FCo Group of any obligations under sections 2.2, 2.3, 2.4
and 2.6):
(a) there shall not be in force any order or decree of a
Governmental Entity restraining or enjoining Furukawa from
performing its obligations contemplated by sections 2.2, 2.3,
2.4 and 2.6 and there shall be no proceeding of a judicial or
administrative nature or otherwise, in progress or threatened
that relates to or results from the transactions or actions
contemplated by this Agreement or the Merger Agreement that
would, if successful, result in an order or ruling that would
preclude Furukawa from performing its obligations contemplated
by sections 2.2, 2.3, 2.4 and 2.6 in accordance with the terms
hereof;
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(b) on the date of the Meeting, Osler, ▇▇▇▇▇▇ & Harcourt shall have
delivered an opinion letter addressed to Furukawa or its
Affiliates substantially in the form attached hereto as
Schedule A;
(c) as of the date of the Meeting, the Japanese taxation
authorities shall have continued to confirm orally to
representatives of Furukawa, in a form satisfactory to Furukawa
acting reasonably, that the conversion of the JDS Common Shares
into Class B Non-Voting Preference Shares and the exchange
thereof for Exchangeable Shares and the Ancillary Rights (as
defined in Schedule A hereto) will occur on a tax-free basis
under the taxation Laws of Japan;
(d) prior to the date of the Meeting, JDS shall have obtained an
opinion from an independent valuer that the fair market value
of (i) the Ancillary Rights, (ii) all the overriding call
rights as such expression is generally used in transactions
involving exchangeable shares, and (iii) the rights provided to
Furukawa pursuant to section 6.2 of this Agreement are nominal,
in a form satisfactory for Furukawa, acting reasonably; and
(e) on the date of the Meeting, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have
delivered an opinion letter addressed to Uniphase, in form and
substance reasonably satisfactory to Uniphase and Furukawa and
upon which Furukawa and its Affiliates shall be entitled to
rely, substantially to the effect that, among other things:
(i) it is more likely than not that the transactions
contemplated by the Arrangement will be considered a
taxable asset acquisition and not a tax-free
reorganization or incorporation for the purposes of
United States federal income tax law;
(ii) it is more likely than not that Amalco will be able to
obtain a stepped-up cost basis on the assets of JDS upon
the Arrangement taking effect which will result in
depreciation and amortization deductions that will
reduce for United States federal income tax law purposes
the earnings and profits of Amalco for purposes of (1)
computing the amount of taxable dividends received by
Uniphase when such earnings and profits are distributed
to Uniphase, and (2) making foreign tax credit
calculations; and
(iii) neither Uniphase nor any of its Affiliates will be
subject to any penalties under United States income tax
law as a consequence of adopting the filing positions
set out in sections 2.9(e)(i) and (ii) above.
2.10. CONDITIONS PRECEDENT TO CLOSING. Furukawa shall have the right, subject
to section 2.11, to notify JDS and Uniphase that it is terminating this
Agreement (and Uniphase and JDS acknowledge and agree that in such instance, the
Merger Agreement is automatically terminated) if the following conditions
precedent have not been fulfilled (which are for the FCo Group's exclusive
benefit and may be waived by Furukawa on behalf of the FCo Group):
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(a) on the Effective Date, Osler, ▇▇▇▇▇▇ & Harcourt shall have
delivered an opinion letter addressed to Furukawa or its
Affiliates substantially in the form attached hereto as
Schedule A;
(b) as of the Effective Date, the Japanese taxation authorities
shall have continued to confirm orally to representatives of
Furukawa, in a form satisfactory to Furukawa acting reasonably,
that the conversion of the JDS Common Shares into Class B
Non-Voting Preference Shares and the exchange thereof for
Exchangeable Shares and the Ancillary Rights will occur on a
tax-free basis under the taxation Laws of Japan;
(c) on or prior to the Effective Date a Registration Rights
Agreement substantially in the form attached hereto as Schedule
B shall have been executed by Uniphase and Exchangeco, amended
as required if the Exchangeable Shares are to be held by more
than one Affiliate of Furukawa on the Effective Date;
(d) on or prior to the Effective Date, the Uniphase Rights
Agreement shall have been amended in a form satisfactory to
Furukawa, acting reasonably, such amendments to include
provisions providing that (i) FCo Group will not be an
"Acquiring Person" as a result of the acquisition of Uniphase
Common Shares pursuant to the Merger Agreement; (ii) so long as
FCo Group owns 5% or more of the outstanding Uniphase Common
Shares, the definition of "Acquiring Person" in the Rights
Agreement shall not be amended without the prior written
consent of Furukawa, and (iii) any member of the FCo Group may
acquire, directly or indirectly, the shares or assets of any
Person that owns Uniphase Common Shares, without causing any
member of the FCo Group to become an "Acquiring Person",
provided that the FCo Group agrees to sell such Uniphase Common
Shares within 180 days of the completion of the acquisition;
(e) on the Effective Date, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have
delivered an opinion letter addressed to Uniphase substantially
in the form of the opinion letter required by section 2.9(e)
and upon which Furukawa and its Affiliates shall be entitled to
rely; and
(f) on or prior to the Effective Date, professional fees (both
accounting and legal) incurred by Furukawa in assessing
Alternative Transactions shall have been reimbursed to Furukawa
by Uniphase or JDS.
2.11. JAPANESE TAXATION AUTHORITY. With respect to the conditions set out
in sections 2.9(c) and 2.10(b) above, Furukawa covenants and agrees that it
will (i) inform Uniphase and JDS forthwith if the Japanese taxation
authorities affirmatively discontinue to confirm at any time that such
conversion and exchange will occur on a tax-free basis under the taxation
Laws of Japan, (ii) use its reasonable efforts to ensure that the Japanese
taxation authorities continue to confirm that such conversion and exchange
will occur on a tax-free basis under the taxation Laws of Japan, and (iii)
not take any steps or actions intentionally or willfully designed to
encourage
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the Japanese taxation authorities affirmatively to discontinue to confirm
that such conversion and exchange will occur on a tax-free basis under the
taxation Laws of Japan.
In the event that the Japanese taxation authorities
affirmatively discontinue to confirm that the conversion and exchange will
occur on a tax-free basis under the taxation Laws of Japan at any time prior
to the Effective Time, the parties agree, if requested in writing by either
Uniphase or JDS, to negotiate in good faith for a period of thirty (30) days
as to the structure of any Alternative Transaction that would cause the
conditions set out in section 2.9(c) and/or section 2.10(b), as the case may
be, to be satisfied, in the sole determination of Furukawa acting reasonably,
as of the date of the Meeting and/or the Effective Date, as the case may be.
2.12. NOMINEE DIRECTORS. For greater certainty, nothing in this Article 2
shall in any way restrict or prevent any director, officer, employee,
representative or agent of Furukawa who is a director of JDS from discharging
his or her fiduciary duties to JDS and its shareholders.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES OF FURUKAWA. Furukawa hereby
represents and warrants to the Uniphase Parties that:
(a) INCORPORATION AND AUTHORIZATION. It is a corporation duly
incorporated and validly existing under the laws of its
jurisdiction of incorporation; it has all necessary power,
authority, capacity and right, and has received all requisite
approvals to enter into this Agreement and this Agreement has
been duly executed and delivered by Furukawa and constitutes a
legal, valid and binding agreement enforceable by the Uniphase
Parties against Furukawa in accordance with its terms subject,
however, to limitations with respect to enforcement imposed by
law in connection with bankruptcy or similar proceedings, the
equitable power of the court to stay proceedings before them
and the execution of judgments and to the extent that equitable
remedies such as specific performance and injunction are in the
discretion of the court from which they are sought.
(b) OWNERSHIP OF SHARES. As of January 28, 1999, Furukawa was the
sole beneficial owner of 40,489,670 JDS Common Shares; the
Furukawa Shares constituted all of the JDS Common Shares owned
or controlled, directly or indirectly by Furukawa as of January
28, 1999; Furukawa has the exclusive right to dispose of the
Furukawa Shares under the Arrangement, subject to the transfer
or assignment of any Furukawa Shares in accordance with
sections 2.7 and 2.8; and Furukawa is not a party to, bound or
affected by or subject to, any charter or by-law provision,
statute, regulation, judgment, order, decree or law which would
be violated, contravened, breached by, or under which default
would occur as a result of the execution and delivery of this
Agreement or the consummation of any of the transactions
provided for in this Agreement subject only to making necessary
filings with or giving notifications to any governmental,
administrative or regulatory authority having jurisdiction.
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(c) GOOD TITLE. Furukawa has, and subject to the transfer or
assignment of any Furukawa Shares in accordance with sections
2.7 and 2.8 will have at the Effective Time, good and
marketable title to the Furukawa Shares, free and clear of any
and all mortgages, liens, charges, restrictions, security
interests, adverse claims, pledges, encumbrances and demands or
rights of others of any nature or kind whatsoever.
(d) NO AGREEMENTS. No Person, firm or corporation has any
agreement or option, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming an agreement or
option, for the purchase, acquisition, or transfer from
Furukawa or its subsidiaries of any of the Furukawa Shares or
any interest therein or right thereto, except pursuant to this
Agreement and in connection with a transfer or assignment of
any Furukawa Shares in accordance with section 2.8.
(e) VOTING. Furukawa has not previously granted or agreed to grant
any ongoing proxy in respect of the Furukawa Shares or entered
into any voting trust, vote pooling or other agreement with
respect to the right to vote, call meetings of shareholders or
give consents or approvals of any kind as to the Furukawa
Shares.
(f) CONSENTS. No consent, waiver, approval, authorization,
exemption, registration, license or declaration of or by, or
filing with, or notification to any Governmental Entity, is
required to be made or obtained by Furukawa in connection with
(i) the execution and delivery by Furukawa and enforcement
against Furukawa of this Agreement; or (ii) the consummation of
any transactions by Furukawa provided for herein.
(g) NON-ARM'S LENGTH TRANSACTIONS. There does not exist any
guarantee or any agreement, understanding or commitment giving
rise to any guarantee on the part of JDS to Furukawa or any
Affiliates of Furukawa (or any associates or insiders of any of
the foregoing) and there are no loans to or investments in
Furukawa or any Affiliates of Furukawa (or any associates or
insiders of any of the foregoing) by JDS or any of its
subsidiaries or associates.
3.2. REPRESENTATIONS AND WARRANTIES OF UNIPHASE. Uniphase hereby
represents and warrants to Furukawa that:
(a) INCORPORATION AND AUTHORIZATION. It is a corporation duly
incorporated and validly existing under the laws of its
jurisdiction of incorporation; it has all necessary power,
authority, capacity and right, and has received all requisite
approvals to enter into this Agreement and this Agreement has
been duly executed and delivered by Uniphase and constitutes a
legal, valid and binding agreement enforceable by Furukawa
against Uniphase in accordance with its terms subject, however,
to limitations with respect to enforcement imposed by law in
connection with bankruptcy or similar proceedings, the
equitable power of the court to stay proceedings before them
and the execution of judgments and to the extent that
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equitable remedies such as specific performance and injunction
are in the discretion of the court from which they are sought.
(b) CONFLICTS. Uniphase is not a party to, bound or affected by or
subject to, any charter or by-law provision, statute,
regulation, judgment, order, decree or Laws which would be
violated, contravened, breached by, or under which default
would occur as a result of the execution and delivery of this
Agreement or the consummation of any of the transactions
provided for in this Agreement subject only to making necessary
filings with or giving notifications to any governmental,
administrative or regulatory authority having jurisdiction.
(c) CONSENTS. No consent, waiver, approval, authorization,
exemption, registration, license or declaration of or by, or
filing with, or notification to any Governmental Entity, is
required to be made or obtained by Uniphase in connection with
(i) the execution and delivery by Uniphase and enforcement
against Uniphase of this Agreement; or (ii) the consummation of
any transactions by Uniphase provided for herein.
3.3. SURVIVAL. The representations and warranties of Furukawa and Uniphase
in this Agreement shall survive the execution and delivery of this Agreement
and shall survive the completion of the Arrangement for a period of one year
from the Effective Date.
ARTICLE 4.
COVENANTS OF FURUKAWA FOLLOWING THE ARRANGEMENT
4.1. RESTRICTIONS ON TRANSFER. The FCo Group shall not, without the prior
written consent of Uniphase, directly or indirectly, offer, sell or transfer
Uniphase Common Shares representing 10% or more of the total combined voting
power of the then outstanding Uniphase Common Shares to any one Person that
is a Uniphase Competitor (as defined below) or a Hostile Purchaser (as
defined below).
4.2. CERTAIN DEFINITIONS. For the purpose of section 4.1: "Uniphase
Competitor" means at any time a Person that is described as a competitor of
Uniphase in the most recent Form 10-K or any subsequent filing of Uniphase
made by Uniphase with the SEC pursuant to the 1933 Act or the 1934 Act and
"Hostile Purchaser" means any Person, directly or indirectly through
Affiliates, that has either (i) previously sought to acquire a controlling
interest in a publicly traded corporation (being 50% of the total combined
voting power) through a hostile tender offer or other structure not approved
by the board of directors of the target publicly traded corporation and that
Uniphase reasonably determines, based upon credible external information,
intends to make such a hostile bid to acquire such a controlling interest in
Uniphase; or (ii) publicly disclosed an intention to acquire, directly or
indirectly, Uniphase Common Shares representing more than 50% of the total
combined voting power of Uniphase Common Shares then outstanding.
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ARTICLE 5.
CONFIDENTIALITY
5.1. MUTUAL NON-DISCLOSURE. Furukawa and Uniphase acknowledge and agree
that the business of Furukawa is or will be competitive with certain aspects
of the business of the Uniphase Parties after the Arrangement is completed
and that, subject to section 5.2, competitively sensitive or confidential
information ("Confidential Information") relating to the business of the
Uniphase Parties will not be disclosed or made available to Furukawa, other
members of the FCo Group or any of their respective directors, officers,
employees, agents or representatives (collectively the "Furukawa
Representatives").
5.2. FINANCIAL INFORMATION. Uniphase acknowledges and agrees that, in
order for Furukawa to prepare its financial statements (including the notes
thereto) and Tax Returns, it will require certain information from Uniphase,
including Confidential Information. Uniphase agrees on its own behalf and on
behalf of its subsidiaries (including, without limitation, Exchangeco), that:
(a) it will make available on a timely basis to Furukawa and its
accountants and auditors any information, including
Confidential Information, that Furukawa requires to prepare any
of its financial statements (including the notes thereto) or
Tax Returns,
(b) it will make available on a timely basis to Furukawa any of
Uniphase's officers, employees, agents (including its
accountants and auditors) or representatives that Furukawa
reasonably requests in order to assist Furukawa in
understanding and analyzing the information provided, and
(c) it consents to the disclosure by Furukawa of any information,
including Confidential Information, that Furukawa is required
by applicable Laws or accounting principles to include in any
of its financial statements (including the notes thereto) or
Tax Returns or to disclose to any Governmental Entity.
5.3. FURUKAWA NON-DISCLOSURE. Except to the extent provided in section
5.2, Furukawa agrees on its own behalf, and agrees it will cause the Furukawa
Representatives:
(a) not to use or allow the use for any purpose of any portion of
the Confidential Information, or notes, summaries or other
material prepared and derived from the Confidential Information
(the "Notes");
(b) not to disclose or allow disclosure to others of any portion of
the Confidential Information or the Notes;
(c) not to disclose or allow disclosure that the Confidential
Information has been made available to Furukawa or that
Furukawa has received any portion of the Confidential
Information; and
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(d) not to make or allow to be made copies of or otherwise
reproduce the Confidential Information or any part thereof.
Furukawa agrees that it will take all steps reasonably necessary to ensure
that access to the Confidential Information is denied to any of the Furukawa
Representatives who are directly involved in the day-to-day operation of that
portion of its business which competes with the Business.
5.4. EXCEPTION. The provisions of section 5.3 shall not apply to such
portions of the Confidential Information that:
5.4.1. are or become generally available to the public otherwise than
as a result of disclosure, directly or indirectly, by Furukawa or a
Furukawa Representative; or
5.4.2. become available to Furukawa on a non-confidential basis from a
source other than the Uniphase Parties or a Representative thereof
provided that such source is not to the knowledge of Furukawa, upon
reasonable inquiry, prohibited from transmitting the Confidential
Information by a contractual, legal or fiduciary obligation; or
5.4.3. were known to Furukawa or were in its possession on a
non-confidential basis prior to being disclosed to it by the Uniphase
Parties or by someone on their behalf; or
5.4.4. are required by applicable Laws or court order to be disclosed.
5.5. NOTICE. In the event that Furukawa is required by law to disclose any
portion of the Confidential Information or the Notes, Furukawa shall, if
permitted by law, provide Uniphase with prompt written notice of such
requirement so that Uniphase may either seek an appropriate court order which
would have the effect of relieving Furukawa of the requirement to disclose or
else waive Furukawa's compliance with the provisions of this Agreement. If,
however, Furukawa is legally obliged, in the reasonable opinion of its
counsel, to disclose Confidential Information or the Notes or else become
liable for contempt or suffer some other penalty, Furukawa may disclose such
information without liability to Uniphase under this Agreement provided that
Furukawa will disclose only that portion of the Confidential Information
which it is so legally obliged to disclose and will exercise its reasonable
efforts to obtain a protective order or other assurance that such
Confidential Information will be kept confidential.
5.6. SURVIVAL. The provisions of this Article 5 shall survive the
termination of this Agreement.
ARTICLE 6.
GENERAL
6.1. TERM OF AGREEMENT.
(a) In the event the Merger Agreement is terminated by JDS, the
Uniphase Parties or by the mutual agreement of the Uniphase
Parties and JDS, this Agreement shall
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automatically terminate at 11:59 p.m. (Toronto time) on the
date of termination of the Merger Agreement (for greater
certainty, termination of the Merger Agreement for this purpose
is without reference to any payment obligations under Article 9
thereof).
(b) If there is a determination by the JDS Board of Directors at
the conclusion of the process set out in sections 5.4 and 5.5
of the Merger Agreement that an Acquisition Proposal
constitutes a Superior Transaction, Furukawa may terminate this
Agreement by notice to the Uniphase Parties.
(c) If the Effective Date does not occur on or prior to September
30, 1999, then this Agreement shall terminate, provided that
the parties hereto may mutually agree to extend such date.
(d) After the Effective Date unless terminated earlier, this
Agreement shall automatically terminate on the date which is 10
years after the Effective Date. Either Furukawa or Uniphase
may terminate this Agreement at any time by notice in writing
to the other party if (i) the members of the FCo Group shall
own, in the aggregate, Uniphase Common Shares representing more
than 50% of the total combined voting power of all outstanding
Uniphase Common Shares, or (ii) the members of the FCo Group
own, in the aggregate, Uniphase Common Shares representing less
than 10% of the total combined voting power of all outstanding
Uniphase Common Shares.
6.2. EXCHANGEABLE SHARES. Uniphase and Exchangeco covenant and agree that,
(a) notwithstanding the terms of the rights, privileges,
restrictions and conditions attaching to the Exchangeable
Shares of Exchangeco (the "Share Terms"), the Redemption Date
(as defined in section 1.1 of the Share Terms) shall not be
established by the Board of Directors of Exchangeco as any date
earlier than March 31, 2014 without the prior written consent
of Furukawa, and
(b) Exchangeco will not voluntarily initiate, or consent to the
initiation of, the liquidation, dissolution or winding up of
Exchangeco or other distribution of its assets among its
shareholders for the purpose of winding-up its affairs without
the prior written consent of Furukawa,
provided that these restrictions shall not apply, if at any time, Furukawa
owns fewer than 992,372 Exchangeable Shares. The provisions of this section
6.2 shall survive the termination of this Agreement.
6.3. MEETINGS WITH SENIOR MANAGEMENT. Uniphase covenants and agrees that
it will cause senior members of Uniphase to meet in Tokyo, Japan with members
of management of Furukawa on a quarterly basis to report upon, and discuss,
the business, affairs, operations, financial results and prospects of
Uniphase; provided that nothing in this section shall require such senior
members of management to disclose any Confidential Information.
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6.4. TIME OF THE ESSENCE. Time shall be of the essence of this Agreement.
6.5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein and each of the parties attorns to the
non-exclusive jurisdiction of the Province of Ontario for all purposes hereof.
6.6. INJUNCTIONS. Each of Furukawa and Uniphase recognizes and
acknowledges that a breach by it of any of its covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which each party would not have an adequate remedy at law for money damages
and, therefore, each party agrees that in the event of such a breach by it,
the other party shall be entitled to the remedy of specific performance of
such covenant or agreement and to injunctive and other equitable relief in
addition to any other remedy to which they may be entitled at law or in
equity.
6.7. SHARE CERTIFICATES. If requested in writing by Uniphase, Furukawa
shall present or cause to be presented promptly all certificates representing
Uniphase Common Shares owned at any time following the Effective Date by
members of the FCo Group, for the placement thereon as long as such Uniphase
Common Shares are subject to the restrictions contained in this Agreement of
the following legend;
The securities represented by this certificate are subject to
the provisions of an Agreement amended and restated as of April
29, 1999, among The Furukawa Electric Co., Ltd., Uniphase
Corporation, JDS FITEL Inc. and 3506967 Canada Inc. and may not
be sold or transferred except in accordance therewith. A copy
of such Agreement is on file at the office of the Corporate
Secretary of Uniphase Corporation.
The Company may enter a stop transfer order with the transfer
agent or agents of Uniphase Common Shares against the transfer of Uniphase
Common Shares owned by the FCo Group except in compliance with the
requirements of this Agreement. Uniphase agrees to remove promptly any stop
transfer order with respect to, and issue promptly unlegended certificates in
substitution for, certificates for any Uniphase Common Shares that are no
longer subject to the restrictions contained in this Agreement.
6.8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which shall constitute one and the same Agreement.
6.9. CONSULTATION. Uniphase and JDS acknowledge that Furukawa shall have
the right to review and suggest changes to any news release or public
statement relating to the Arrangement or Alternative Transaction which
specifically names Furukawa or refers to this Agreement, a reasonable period
of time, in the circumstances, prior to the making or release thereof, and
that, subject to applicable Laws no such press release or public statement
shall be made without the prior consent of Furukawa, such consent not to be
unreasonably withheld.
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6.10. INTERPRETATION NOT AFFECTED BY HEADINGS, ETC. The division of this
Agreement into Articles, sections, and other portions and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation hereof. 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 Agreement. The terms "this
Agreement", "hereof", "herein" and "hereunder" and similar expressions refer
to this Agreement and not to any particular Article, section or other portion
hereof and include any agreement or instrument supplementary or ancillary
hereto.
6.11. NUMBER, ETC. Unless the context otherwise requires, words importing
the singular shall include the plural and VICE VERSA and words importing any
gender shall include all genders.
6.12. DATE FOR ANY ACTION. In the event that any date on which any action
is required to be taken hereunder by any of the parties hereto is not a
Business Day, such action shall be required to be taken on the next
succeeding day which is a Business Day.
6.13. INVALIDITY OF PROVISIONS. 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 fullest extent possible.
6.14. NOTICES. 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 to the particular
party at:
6.14.1. If to Furukawa:
▇-▇ ▇▇▇▇▇▇▇▇▇▇
▇-▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇,
▇▇▇▇▇, ▇▇▇-▇▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, General Manager
Telecopier No.: ▇▇-▇-▇▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
6.14.2. If to Uniphase or to Exchangeco:
Uniphase Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S.A.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President, Business Development
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
6.14.3. If to JDS:
JDS FITEL Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Konstantin Kotzeff,
Vice President, Legal Affairs & Corporate Secretary
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address of which any party may, from time to time, advise
the other parties by notice in writing given in accordance with the
foregoing. The date of receipt of any such notice shall be deemed to be the
date of delivery or telecopying thereof.
6.15. ASSIGNMENT. No party hereto may assign its rights under this
Agreement.
6.16. BINDING EFFECT. This Agreement shall be binding upon and shall enure
to the benefit of the parties hereto and their respective successors.
6.17. WAIVER AND MODIFICATION. Furukawa and the Uniphase Parties may waive
or consent to the modification of, in whole or in part, any inaccuracy of any
representation or warranty made to them hereunder or in any document to be
delivered pursuant hereto and may waive or consent to the modification of any
of the covenants herein contained for their respective benefit or waive or
consent to the modification of any of the obligations of the other parties
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hereto. Any waiver or consent to the modification of any of the provisions
of this Agreement, to be effective, must be in writing executed by the party
granting such waiver or consent. No waiver of any provisions of this
Agreement shall constitute a waiver of any other provision nor shall any such
waiver constitute a continuous waiver unless otherwise expressly provided.
[INTENTIONALLY LEFT BLANK]
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6.18. FURTHER ASSURANCES. Each party hereto shall, from time to time, and
at all times hereafter, at the request of the other parties hereto, but
without further consideration, do all such further acts and execute and
deliver all such further documents and instruments as shall be reasonably
required in order to fully perform and carry out the terms and intent hereof.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement as of the date first written above.
UNIPHASE CORPORATION
by:__________________________________
__________________________________
3506967 CANADA INC.
by:__________________________________
__________________________________
THE FURUKAWA ELECTRIC CO., LTD.
by:__________________________________
__________________________________
JDS FITEL INC.
by:__________________________________
__________________________________