Exhibit 10.29
THE SECURITIES REPRESENTED HEREBY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED
UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE
144 UNDER SUCH ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL
FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE
COMPANY STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR
HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SUCH ACT.
CONVERTIBLE PROMISSORY NOTE
Finisar
Corporation, a Delaware corporation (the “ Company
”), for value received, promises to pay to Steven Bucher
(“ Holder ”) the principal sum of One Million
Dollars ($1,000,000.00), together with interest on the outstanding
principal balance of this Note at the rate of three and thirty-five
one-hundredths percent (3.35%) per anum. This Note is issued
pursuant to that Agreement and Plan of Merger dated April 7,
2005 by and among the Company, I-Robot Acquisition Corp., I-TECH
CORP. and the Holder (the “ Merger Agreement
”).
1.
Definitions . As used in this Note, the following terms
shall have the definitions ascribed to them below:
1.1.
“ Commission ” means the United States
Securities and Exchange Commission.
1.2.
“ Common Stock ” means the common stock, $0.001
par value, of the Company, and any securities into which such
common stock may hereafter be classified.
1.3.
“ Conversion Event ” has the meaning set forth
in Section 3.1 below.
1.4.
“ Conversion Shares ” has the meaning set forth
in Section 3.2 below.
1.5.
“ Deferred Amounts ” has the meaning set forth
in Section 2.1 below.
1.6.
“ Escrow Agreement ” means the Escrow Agreement
dated April 8, 2005, by and among the Company, Holder and U.S.
Bank Trust National Association (the “ Escrow Agent
”).
1.7.
“ Maturity Date ” means April 8,
2006.
1.8.
“ Rule 144 ” means Rule 144
promulgated by the Commission under the Securities Act as in effect
from time to time.
1.9.
“ Securities Act ” means the Securities Act of
1933, as amended.
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1.10.
“ Share Price ” means the average closing
trading price per share of the Common Stock on the Nasdaq National
Market (“ NNM ”) for the three (3) Trading
Days ending on the date preceding the applicable Conversion
Event.
1.11.
“ Trading Day ” means a day on which trading
occurs on the NNM (or any successor thereto).
2.
Payment .
2.1.
Payment . The entire outstanding balance of, and accrued but
unpaid interest on, this Convertible Promissory Note (the “
Note ”) shall be due and payable, if not converted
prior thereto pursuant to Section 3 below, on the Maturity
Date; provided, however, if a Finisar Group Indemnitee (as such
term is defined in the Escrow Agreement) provides notice to the
Holder and the Escrow Agent of a claim for indemnification pursuant
to Section 4.1 of the Escrow Agreement, then the Company may,
in its sole discretion, defer payments under this Note in an amount
equal to the Indemnification Claim or Claims (as such term is
defined in the Escrow Agreement) that have not been resolved at the
Maturity Date (the “ Deferred Amounts ”). Within
five (5) business days following the date on which the Company
and the Holder agree or the arbitrator under Section 11 of the
Escrow Agreement determines that a Finisar Group Indemnitee is
entitled to recover an amount with respect to the Indemnification
Claim or Claims (the “ Resolved Amount ”), such
Resolved Amount shall be offset without further action or notice
against the Deferred Amounts. If the Resolved Amount is less than
the Deferred Amounts, the Company shall pay the remaining principal
balance on this Note (after offset of the Resolved Amount) to the
Holder within five (5) business days after the date on which
the offset is applied. The Company shall have the right at any time
and without premium or penalty to prepay this Note, in whole or in
part, in lieu of conversion pursuant to Section 3 below, on or
prior to the Maturity Date.
2.2.
Interest . The Company shall pay interest to the Holder on
the outstanding principal balance of this Note at the rate of three
and thirty-five one-hundredths percent (3.35%) per annum, which
shall be payable at the Company’s option in (a) cash or
(b) additional shares of Common Stock if this Note is
converted pursuant to Section 3 below. Payment of the interest
in cash shall be made on the Maturity Date and payment of the
interest in shares of Common Stock shall be made on the date(s) for
delivery of certificates representing the Conversion Shares
provided for in Section 3.3. Interest shall be calculated on
the basis of a 365-day year and shall accrue daily commencing on
the date hereof.
2.3.
Currency . All payments shall be in lawful money of the
United States of America.
3.
Conversion . This Note shall convert into Common Stock as
follows:
3.1.
Conversion Events . The Company may elect to convert all or
a part of the principal balance outstanding under this Note into
that number of shares of Common Stock determined in accordance with
Section 3.2 below at any time after the four (4) month
anniversary of the date that the Registration Statement (as defined
in the Merger Agreement) filed by the Company with the Commission
was declared effective and provided that the Holder
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may actually sell all of the
Conversion Shares issuable on such date without violation of the
volume limitations of Rule 144(e) (the “ Conversion
Event ”); provided, however, that the Company will
convert at least $157,000 of the outstanding principal amount of
this Note on or before December 1, 2005. Simultaneously with
each election by the Company to convert all or a portion of the
principal amount of this Note pursuant to this Section 3.1 or
any required conversion under this Section 3.1, the Company
shall provide notice to the Holder and the Escrow Agent of such
election to convert. If requested by the Holder, the Company
will
