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`SEC Filings
`8-K
`LUMENTUM HOLDINGS INC. filed this Form 8-K on 08/06/2015
`Entire Document
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`UNITED STATES
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`SECURITIES AND EXCHANGE COMMISSION
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`Washington, D.C. 20549
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`Form 8-K
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`CURRENT REPORT
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`Pursuant to Section 13 or 15(d) of the
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`Securities Exchange Act of 1934
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`Date of report (Date of earliest event reported): July 31, 2015
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`JDS UNIPHASE EXHIBIT 1037, P. 1
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
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`Lumentum Holdings Inc.
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`(Exact name of Registrant as specified in its charter)
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`Delaware
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`(State or Other Jurisdiction
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`of Incorporation)
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` 001-36861
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`(Commission
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`File Number)
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`400 North McCarthy Boulevard, Milpitas, CA
`(Address of Principal Executive Offices)
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` 47-3108385
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`(IRS Employer
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`Identification Number)
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` 95035
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`(408) 546-5483
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`(Registrant’s Telephone Number, Including Area Code)
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`Not Applicable
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`(Former Name or Former Address, if Changed Since Last Report)
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`Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
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`under any of the following provisions:
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` Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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` Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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` Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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` Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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`Item 1.01. Entry into a Material Definitive Agreement.
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`On July 31, 2015, Lumentum Holdings Inc. (“Lumentum”) entered into a series of agreements with Viavi Solutions Inc.
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`(“Viavi”), formerly JDS Uniphase Corporation, pursuant to which Viavi agreed to transfer its communications and commercial
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`JDS UNIPHASE EXHIBIT 1037, P. 2
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
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`optical products business and the WaveReady product lines (“CCOP”) to Lumentum (the “Separation”) and distribute 80.1% of the
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`outstanding common stock of Lumentum to Viavi stockholders (the “Distribution”). Lumentum was formed to hold Viavi’s CCOP
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`business and, as a result of the Distribution, is now an independent public company trading under the symbol “LITE” on The Nasdaq
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`Stock Market. The Distribution was made at 12:01 a.m., Eastern Daylight Time, on August 1, 2015 (the “Effective Time”) to Viavi’s
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`shareholders of record as of the close of business on July 27, 2015 (the “Record Date”), who received one share of Lumentum
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`common stock for every five shares of Viavi common stock held as of the close of business on the Record Date and not sold prior to
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`August 4, 2015, the ex-dividend date. In connection with the Separation and the Distribution, Lumentum entered into several
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`agreements with Viavi that govern the separation of the CCOP business and relationship of the parties prior to, at and following the
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`separation, including the following:
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`• Contribution Agreement;
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`• Membership Interest Transfer Agreement;
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`• Separation and Distribution Agreement;
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`• Stockholder’s and Registration Rights Agreement;
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`• Tax Matters Agreement;
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`• Employee Matters Agreement; and
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`• Intellectual Property Matters Agreement.
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`A summary of certain material features of the agreements can be found in the section entitled “Certain Relationships and
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`Related Party Transactions—Agreements with JDSU” in Lumentum’s Information Statement dated July 16, 2015 (the “Information
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`Statement”), which is attached hereto as Exhibit 99.1. The summary of the applicable agreements is incorporated by reference into
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`this Item 1.01 as if restated in full. This summary is qualified in its entirety by reference to the Contribution Agreement, Membership
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`Interest Transfer Agreement, Separation and Distribution Agreement, Stockholder’s and Registration Rights Agreement, Tax Matters
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`Agreement, Employee Matters Agreement and Intellectual Property Matters Agreement, which are included with this report as
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`Exhibits 2.1, 2.2, 2.3, 4.1, 10.1, 10.2 and 10.3, respectively, each of which is incorporated herein by reference.
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`Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers;
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`Compensatory Arrangements of Certain Officers.
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`Resignation and Appointment of Directors
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`As of the Effective Time, each of Brian Lillie, Harold Covert, Penelope Hersher, Martin Kaplan and Samuel Thomas were
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`elected as directors of Lumentum, and Rex Jackson, who had been serving as a member of the board of directors of Lumentum (the
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`JDS UNIPHASE EXHIBIT 1037, P. 3
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
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`“Board”), resigned as a director of Lumentum. Alan Lowe will remain on the Board and will continue to serve as a director of
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`Lumentum following the Distribution.
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`Biographical and compensation information on each of the directors elected to the Board, as well as Alan Lowe, can be found
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`in Lumentum’s Information Statement under the section entitled “Management—Board of Directors Following the Separation” and
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`for Mr. Lowe, under the section entitled “Management — Executive Officers Following the Separation”, and “Director
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`Compensation”, each of which is incorporated by reference into this Item 5.02.
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`As of the Effective Time:
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`• Mr. Covert , Mr. Kaplan and Mr. Lillie were appointed to serve as members of the Audit Committee of the Board, and
`Mr. Covert was appointed as Audit Committee chairperson;
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`• Mr. Covert, Ms. Herscher and Mr. Thomas were appointed to serve as members of the Compensation Committee of the
`Board, and Ms. Hersher was appointed as Compensation Committee chairperson;
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`• Ms. Herscher, Mr. Kaplan and Mr. Lillie were appointed to serve as members of the Governance Committee of the Board,
`and Mr. Kaplan was appointed as Governance Committee chairperson; and
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`• Mr. Kaplan was appointed to serve as Chairman of the Board.
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`Named Executive Officer Compensation
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`On August 2, 2015, the Board approved annual base salary and target cash incentive opportunities for Lumentum’s named
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`executive officers in the following amounts:
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`Named Executive Officer
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`Alan Lowe, Chief Executive Officer
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`Craig Cocchi, Senior Vice President, Operations
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`Vincent Retort, Senior Vice President, Research and
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`Development
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`2016 Base Salary ($)
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`2016 Target Incentive
`Opportunity (%)
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` 625,000
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` 100
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` 355,000
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` 60
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`%
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`%
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` 375,000
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` 60
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`%
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`On August 2, 2015, the Board also adopted a single cash incentive program for fiscal 2016 for the majority of its employees
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`globally, including its named executive officers (the “Bonus Plan”). Under the Bonus Plan, incentive bonuses are determined based
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`JDS UNIPHASE EXHIBIT 1037, P. 4
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
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`on annual operating income and revenue metrics, weighted 80% and 20% respectively. Annual operating income is measured semi-
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`annually and 50% of that metric may be paid after the first half of the fiscal year based on achievement during that period. Each
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`participant in the Bonus Plan is assigned a target incentive opportunity (“TIO”) equal to a percentage of his or her base salary. For
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`fiscal 2016, the assigned TIO for the named executive officers is set forth above. The actual cash incentive payments paid to each
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`employee under the Bonus Plan may range from 0% to 200% of each employee’s assigned TIO, depending on Lumentum’s
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`achievement of its annual operating income and revenue targets.
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`Alan Lowe Executive Employment Agreement
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`Effective as of the Effective Time, Alan Lowe, Lumentum’s Chief Executive Officer, Lumentum, and Lumentum Operations
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`LLC (the “LLC”) entered into an employment agreement governing his at-will employment as Chief Executive Officer of Lumentum
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`and the LLC. The employment agreement will have an initial term of three years and will automatically renew for successive one
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`year terms unless any party provides written notice of non-renewal at least 90 days prior to the end of the term. Non-renewal of the
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`employment agreement by Lumentum or the LLC will constitute termination of Mr. Lowe’s employment without “cause” (as
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`defined in the employment agreement) and will entitle Mr. Lowe to certain severance benefits, as described below. However, if a
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`“potential change in control date” (as defined in the employment agreement) occurs prior to the expiration of the employment
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`agreement, the employment agreement will remain in effect until the earliest of (i) the period that begins on the potential change in
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`control date and ends on the date that is 18 months following the consummation of a change in control or (ii) 12 months after the
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`potential change in control date if no change in control has been completed; provided, however, that in the event of a protracted
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`regulatory clearing process with respect to a potential change in control, such term shall be extended so long as Lumentum is
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`pursuing the potential change in control in good faith.
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`Under the employment agreement, Mr. Lowe’s annual base salary will be $625,000 and his annual target bonus is 100% of his
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`annual base salary. Mr. Lowe is eligible to participate in the employee benefit plans maintained by Lumentum or the LLC and
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`generally applicable to the senior executives of the LLC. Mr. Lowe also will be granted performance share units to acquire
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`Lumentum common stock with a value as of $750,000 (with the number of shares determined based on the conversion price) (the
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`“Lowe PSU”), which become earned and vested as follows: (i) 100% of the Lowe PSU will be earned based on achievement against
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`organic revenue growth target for fiscal 2016, and those earned Lowe PSUs will vest 1/3 per year on each of the first three
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`anniversaries of the grant date, subject to his continued employment or (ii) 50% of the Lowe PSU will be earned based on
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`achievement of the organic revenue growth rate for fiscal 2017 (and not fiscal 2016), and any earned Lowe PSUs will vest 1/2 per
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`each on each of the second and third anniversaries of the grant, subject to his continued employment. In addition, Mr. Lowe will be
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`granted restricted stock units of Lumentum common stock with a value of $3,100,000 (with the number of shares determined based
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`JDS UNIPHASE EXHIBIT 1037, P. 5
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
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`on the conversion price), which will vest as to 33% on the first anniversary of the grant date and quarterly thereafter for the
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`following two years, subject to his continued employment.
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`If Mr. Lowe’s employment is terminated without “cause” or Mr. Lowe resigns for “good reason,” or Mr. Lowe’s employment
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`terminates due to his death or disability, and such termination of employment occurs during a period beginning on a potential change
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`in control date and ending on the date that is 18 months following the consummation of a change in control (the “Coverage
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`Period”), Mr. Lowe will receive (subject to Mr. Lowe signing and not revoking a release of claims with Lumentum and the LLC that
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`become effective in accordance with the agreement): (i) a lump sum cash payment equal to 200% of his base salary for the year in
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`which his employment is terminated plus 200% of his target annual bonus for the year in which his employment was terminated,
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`(ii) vesting acceleration of 100% of any of Mr. Lowe’s outstanding Lumentum equity
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`awards (effective the later of the date of termination or the date of the consummation of the change in control), and (iii) a lump sum
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`cash payment equal to 24 multiplied by the monthly health insurance continuation premiums for the health, dental, and vision
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`insurance options in which Mr. Lowe and his eligible dependents are enrolled on the termination date.
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`If Mr. Lowe’s employment is terminated without “cause” or Mr. Lowe resigns for “good reason,” in either case, outside the
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`Coverage Period, Mr. Lowe will receive (subject to Mr. Lowe signing and not revoking a release of claims with Lumentum and the
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`LLC that become effective in accordance with the agreement): (i) a lump sum cash payment equal to 150% of his base salary for the
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`year in which his employment is terminated, (ii) acceleration of any of Mr. Lowe’s outstanding Lumentum equity awards such that
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`Mr. Lowe will be vested in the number of Lumentum equity awards that Mr. Lowe would have been vested in had Mr. Lowe
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`remained continuously employed for an additional 12 months, and (iii) a lump sum cash payment equal to 12 multiplied by the
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`monthly health insurance continuation premiums for the health, dental, and vision insurance options in which Mr. Lowe and his
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`eligible dependents are enrolled on the termination date.
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`The foregoing description of Mr. Lowe’s executive employment agreement does not purport to be complete and is qualified in
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`its entirety by reference to the full text of the agreement, which is attached hereto as Exhibit 10.4.
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`Change in Control and Severance Benefits Plan, as amended and restated
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`Effective as of August 2, 2015, the compensation committee of the Board amended the Change in Control Benefits Plan (the
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`“Severance Plan”), previously filed as Exhibit 10.5 to Lumentum’s Registration Statement on Form 10, to provide that in the event
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`an eligible executive’s employment is terminated without “cause” or the eligible executive resigns for “good reason,” in either case,
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`occurring outside the date beginning on the public announcement of an intent to consummate a change in control of Lumentum and
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`JDS UNIPHASE EXHIBIT 1037, P. 6
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
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`ending 12 months following the consummation of the change in control, the eligible executive will be entitled to receive (subject to
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`the executive signing and not revoking a release of claims that become effective in accordance with the Severance Plan)
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`(i) accelerated vesting any unvested Lumentum equity awards held at the time of termination as to the number of shares that
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`otherwise would vest over the 9-month period following the termination date, (ii) a lump sum payment (less applicable tax and other
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`withholdings) equal to 9 months of base salary, and (iii) reimbursement of COBRA premiums for the lesser of 9 months or the
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`maximum allowable COBRA period.
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`The foregoing description of the Severance Plan does not purport to be complete and is qualified in its entirety by reference to
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`the full text of the plan, which is attached hereto as Exhibit 10.5.
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`Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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`On August 1, 2015, Lumentum amended and restated its Certificate of Incorporation (the “Amended and Restated Certificate
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`of Incorporation”) and its Bylaws (the “Amended and Restated Bylaws”). A description of the material provisions of the Amended
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`and Restated Certificate of Incorporation and the Amended and Restated Bylaws can be found in Lumentum’s Information Statement
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`under the section entitled “Description of our Capital Stock,” which is incorporated by reference into this Item 5.03. The description
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`set forth in this Item 5.03 is qualified in its entirety by reference to the full text of the Amended and Restated Certificate of
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`Incorporation and the Amended and Restated Bylaws, which are attached hereto as Exhibits 3.1 and 3.2, respectively.
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`Item 5.05. Amendments to the Registrants Code of Ethics, or Waiver of a Provision of the Code of Ethics
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`In connection with the Distribution, Lumentum adopted a Code of Business Conduct effective as of immediately prior to the
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`Effective Time. A copy of Lumentum’s Code of Business Conduct is available under the Investor Relations section of Lumentum’s
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`website at www.lumentum.com.
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`Item 8.01. Other Events
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`On August 3, 2015, Lumentum issued a press release announcing the completion of the Distribution and the commencement of
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`Lumentum’s operations as an independent company. A copy of the press release is attached hereto as Exhibit 99.2.
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`Item 9.01. Financial Statements and Exhibits.
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`(d) Exhibits
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`The following exhibits are provided as part of this Form 8-K:
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`JDS UNIPHASE EXHIBIT 1037, P. 7
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
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`Exhibit No.
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`Description
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` 2.1
` 2.2
` 2.3
` 3.1
` 3.2
` 4.1
`10.1
`10.2
`10.3
`10.4
`10.5
`99.1
`99.2
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`Contribution Agreement
`Membership Interest Transfer Agreement
`Separation and Distribution Agreement
`Amended and Restated Certificate of Incorporation
`Amended and Restated Bylaws
`Stockholder’s and Registration Rights Agreement
`Tax Matters Agreement
`Employee Matters Agreement
`Intellectual Property Matters Agreement
`Employment Agreement for Alan Lowe
`Change in Control and Severance Benefits Plan
`Lumentum Information Statement
`Press Release
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`Signature
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`Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its
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`behalf by the undersigned hereunto duly authorized.
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`August 6, 2015
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` Lumentum Holdings Inc.
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`/s/ Aaron Tachibana
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` Aaron Tachibana
` Chief Financial Officer
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`Exhibit 2.1
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`CONTRIBUTION AGREEMENT
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`BY AND BETWEEN
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`JDS UNIPHASE CORPORATION
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`AND
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`JDS UNIPHASE EXHIBIT 1037, P. 8
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
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`

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`LUMENTUM OPERATIONS LLC
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`JULY 31, 2015
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`TABLE OF CONTENTS
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`ARTICLE I
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`DEFINITIONS
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`1.1
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`1.2
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`Certain Definitions
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`Other Terms
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`ARTICLE II
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`CONTRIBUTION
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`2.1
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`2.2
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`2.3
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`2.4
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`2.5
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`2.6
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`Transfer of Assets and Assumption of Liabilities
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`Lumentum Assets
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`Lumentum Liabilities
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`Transfer of Excluded Assets and Assumption of Excluded Liabilities Not Effected on or Prior to the
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`Contribution Date
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`Transfer of Lumentum Assets and Assumption of Lumentum Liabilities Not Effected on or Prior to the
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`Contribution Date
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`Novation of Lumentum Liabilities; Indemnification
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`JDS UNIPHASE EXHIBIT 1037, P. 9
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
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`2.7
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`Novation of Liabilities Other than Lumentum Liabilities; Indemnification
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`2.8
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`2.9
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`2.10
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`2.11
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`2.12
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`Treatment of Shared Contracts
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`Treatment of Corporate Contingent Liabilities
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`Bank Accounts
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`Cash Balances
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`Disclaimer of Representations and Warranties
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`ARTICLE III
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`CONSIDERATION; CLOSING
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`3.1
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`3.2
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`Consideration
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`Closing
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`ARTICLE IV
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`RELEASE, INDEMNIFICATION AND GUARANTEES
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`4.1
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`4.2
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`4.3
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`4.4
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`Release of Claims
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`General Indemnification by Lumentum
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`General Indemnification by JDSU
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`Contribution
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`JDS UNIPHASE EXHIBIT 1037, P. 10
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
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`4.5
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`Indemnification Obligations Net of Insurance Proceeds and Other Amounts
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`4.6
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`4.7
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`4.8
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`4.9
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`4.10
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`Procedures for Indemnification of Third Party Claims
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`Additional Matters
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`Remedies Cumulative
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`Survival of Indemnities
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`Guarantees
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`ARTICLE V
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`OTHER AGREEMENTS
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`5.1
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`5.2
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`5.3
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`5.4
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`5.5
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`5.6
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`Further Assurances
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`Confidentiality
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`Insurance Matters
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`Contribution Expenses
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`Litigation; Cooperation
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`Transaction Documents
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`ARTICLE VI
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`DISPUTE RESOLUTION
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`JDS UNIPHASE EXHIBIT 1037, P. 11
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
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`6.1
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`General Provisions
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`6.2
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`6.3
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`Consideration by Senior Executives
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`Mediation
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`-i-
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`TABLE OF CONTENTS
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`(continued)
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`ARTICLE VII
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`MISCELLANEOUS
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`7.1
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`7.2
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`7.3
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`7.4
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`7.5
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`7.6
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`7.7
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`7.8
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`Corporate Power; Facsimile Signatures
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`Governing Law; Submission to Jurisdiction; Waiver of Trial
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`Survival of Covenants
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`Waivers of Default
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`Force Majeure
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`Notices
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`Termination
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`Severability
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` 37
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` 37
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` 38
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` 38
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` 38
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` 38
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` 38
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` 39
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` 39
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`JDS UNIPHASE EXHIBIT 1037, P. 12
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
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`

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`7.9
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`Entire Agreement
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`Assignment; No Third-Party Beneficiaries
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`Public Announcements
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`Specific Performance
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`Amendment
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`Rules of Construction
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`Counterparts
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`7.10
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`7.11
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`7.12
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`7.13
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`7.14
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`7.15
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`EXHIBITS
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`A
`B
`C
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`Form of EMPLOYEE MATTERS AGREEMENT
`Form of INTELLECTUAL PROPERTY MATTERS AGREEMENT
`Form of OPERATING AGREEMENT
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`SCHEDULES
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` 40
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` 40
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` 40
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` 40
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` 40
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` 40
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` 41
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`-ii-
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`-iii-
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`SCHEDULE 1.1(11)(A)
`SCHEDULE 1.1(12)(A)
`SCHEDULE 1.1(28)
`SCHEDULE 1.1(29)
`SCHEDULE 1.1(30)
`SCHEDULE 1.1(34)
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`Corporate Contingent Assets
`Corporate Contingent Liabilities
`JDSU Businesses
`JDSU Applicable Percentage
`JDSU Group
`Lumentum Applicable Percentage
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`JDS UNIPHASE EXHIBIT 1037, P. 13
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
`
`

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`SCHEDULE 1.1(36)
`SCHEDULE 1.1(37)(A)(I)
`SCHEDULE 1.1(37)(B)(I)
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`SCHEDULE 1.1(37)(F)
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`SCHEDULE 1.1(39)
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`SCHEDULE 1.1(50)
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`SCHEDULE 2.2(A)(I)
`SCHEDULE 2.2(A)(VII)(A)
`SCHEDULE 2.2(A)(VII)(B)
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`SCHEDULE 2.2(B)(I)
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`SCHEDULE 2.2(B)(II)
`SCHEDULE 2.2(B)(VI)(A)
`SCHEDULE 2.2(B)(VI)(B)
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`SCHEDULE 2.3(A)(I)
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`SCHEDULE 2.3(B)(I)
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`SCHEDULE 2.8(A)
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`SCHEDULE 2.10(A)(I)
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`SCHEDULE 2.10(A)(II)
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`SCHEDULE 2.11(A)
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`SCHEDULE 4.2(D)
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`SCHEDULE 4.3(D)
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`SCHEDULE 4.10(A)
`SCHEDULE 4.10(A)(I)
`SCHEDULE 4.10(A)(II)
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`SCHEDULE 5.3(C)
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`SCHEDULE 5.5(A)
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`SCHEDULE 5.5(B)
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`SCHEDULE 6.1(A)
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`Lumentum Businesses
`Lumentum Customer, Distribution, Supply or Vendor Contracts
`Lumentum Joint Venture, License and Other Agreements
`Other Lumentum Contracts
`Lumentum Group
`Transfer Documents
`Lumentum Assets
`Lumentum Owned Real Property
`Lumentum Leased Real Property
`Excluded Assets
`Excluded Contracts
`Excluded Owned Real Property
`Excluded Leased Real Property
`Lumentum Liabilities
`Excluded Liabilities
`Shared Contracts
`Lumentum Accounts
`JDSU Accounts
`Lumentum Cash Balance Methodology
`Transaction Documents — Lumentum Indemnification
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`-iv-
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`Transaction Documents — JDSU Indemnification
`Surviving Guarantees
`Lumentum Guarantees
`JDSU Guarantees
`Lumentum Insurance Policies
`Assumed Actions
`Transferred Actions
`Transaction Documents Not Subject to Dispute Resolution Mechanisms
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`-v-
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`CONTRIBUTION AGREEMENT
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`This CONTRIBUTION AGREEMENT (this “Agreement”), dated as of July 31, 2015 (the “Contribution Date”), is by and between JDS
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`Uniphase Corporation, a Delaware corporation which is anticipated to be renamed Viavi Solutions, Inc. (“JDSU”), and Lumentum
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`JDS UNIPHASE EXHIBIT 1037, P. 14
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
`
`

`
`Operations LLC, a Delaware limited liability company (“Lumentum”). Certain terms used in this Agreement are defined
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`in Section 1.1.
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`RECITALS
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`WHEREAS, the Board of Directors of JDSU has determined that it is in the best interests of JDSU and its stockholders to
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`establish Lumentum and transfer certain assets and liabilities from JDSU to Lumentum; and
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`WHEREAS, the Board of Directors of JDSU and the Board of Directors of Lumentum have approved the transfer to Lumentum of
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`the Lumentum Assets and the assumption by Lumentum of the Lumentum Liabilities, all as more fully described in this Agreement
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`and the Transaction Documents; and
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`WHEREAS, in consideration for the transfer of the Lumentum Assets and assignment to Lumentum of the Lumentum Liabilities,
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`Lumentum shall issue 100% of the membership interests in Lumentum to JDSU as consideration (“Consideration”); and
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`NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, and for other good and
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`valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound
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`hereby, agree as follows:
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`Article I
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`DEFINITIONS
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`1.1 Certain Definitions. For purposes of this Agreement, the following terms have the meanings specified in this section:
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`(1) “Action” means any demand, action, claim, dispute, charge of discrimination, suit, countersuit, arbitration, inquiry,
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`subpoena, proceeding or investigation of any nature (whether criminal, civil, legislative, administrative, regulatory, prosecutorial or
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`otherwise) by or before any federal, state, local, foreign or international Governmental Authority or any arbitration or mediation
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`tribunal.
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`(2) “Affiliate” means, when used with respect to a specified Person, a Person that directly or indirectly, through one
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`(1) or more intermediaries, controls, is controlled by or is under common control with such specified Person. For the purpose of this
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`definition, “control” (including with correlative meanings, “controlled by” and “under common control with”), when used with
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`respect to any specified Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the
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`JDS UNIPHASE EXHIBIT 1037, P. 15
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
`
`

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`management and policies of such Person, whether through the ownership of voting securities or other interests, by Contract or
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`otherwise. It is expressly agreed that, from, at and after the Effective Time, for purposes of this Agreement and the Transaction
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`Documents, Lumentum shall not be deemed to be an Affiliate of any member of the JDSU Group, and no member of the JDSU
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`Group shall be deemed to be an Affiliate of any member of the Lumentum Group.
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`(3) “Applicable Percentage” shall mean, (i) as to JDSU, the JDSU Applicable Percentage, and (ii) as to Lumentum, the
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`Lumentum Applicable Percentage.
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`(4) “Approvals or Notifications” means any consents, waivers, approvals, permits or authorizations to be obtained from,
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`
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`notices, registrations or reports to be submitted to, or other filings to be made with, any third Person, including any Governmental
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`Authority.
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`(5) “Assets” means, with respect to any Person, the assets, properties, claims and rights (including goodwill) of such
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`Person, wherever located (including in the possession of vendors or other third Persons or elsewhere), of every kind, character and
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`description, whether real, personal or mixed, tangible, intangible or contingent, in each case whether or not recorded or reflected, or
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`required to be recorded or reflected, on the books and records or financial statements of such Person, including the following:
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`(a) all accounting and other books, records and files whether in paper, microfilm, microfiche, computer tape or
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`disc, magnetic tape, electronic or any other form;
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`(b) all apparatus, computers and other electronic data processing and communications equipment, electronic
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`storage equipment, fixtures, machinery, equipment, furniture, office equipment, tools, test devices, prototypes and models and other
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`tangible personal property;
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`(c) all inventories of materials, parts, raw materials, components, supplies, work-in-process and finished goods
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`and products;
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`(d) all interests in real property of whatever nature, including easements, whether as owner, mortgagee or holder
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`of a Security Interest in real property, lessor, sublessor, lessee, sublessee or otherwise;
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`(e) (i) all interests in any capital stock or other equity interests of any Subsidiary or any other Person, (ii) all
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`bonds, notes, debentures or other securities issued by any Subsidiary or any other Person, (iii) all loans, advances or other extensions
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`of credit or capital contributions to any Subsidiary or any other Person and (iv) all other investments in securities of any Person;
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`JDS UNIPHASE EXHIBIT 1037, P. 16
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
`
`

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`(f) all license agreements, leases of personal property, open purchase orders for raw materials, supplies, parts or
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`services and other Contracts;
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`(g) all deposits, letters of credit and performance and surety bonds;
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`(h) all written (including in electronic form) or oral technical information, data, specifications, research and
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`development information, engineering drawings and specifications, operating and maintenance manuals, and materials and analyses
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`prepared by consultants and other third Persons;
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`(i) all Intellectual Property Rights;
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`(j) all cost information, sales and pricing data, customer prospect lists, supplier records, customer and supplier
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`lists, customer and vendor data and drawings, correspondence and lists, product data and literature, artwork, design, development
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`and business process files and data, formulations and specifications, quality records and reports and other books, records, studies,
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`surveys, reports, plans and documents;
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`(k) all prepaid expenses, trade accounts and other accounts and notes receivable;
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`
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`2
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`(l) all rights under Contracts, all claims or rights against any Person, all rights in connection with any bids or
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`
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`offers and all claims, choses in action or similar rights, whether accrued or contingent;
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`(m) all rights under Insurance Policies, all rights to Insurance Proceeds and all other rights in the nature of
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`insurance, indemnification or contribution;
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`(n) all licenses, permits, approvals and authorizations which have been issued by any Governmental Authority or
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`other third Person;
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`arrangements.
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`(o) all cash or cash equivalents, bank accounts, lock boxes and other deposit arrangements; and
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`(p) all interest rate, currency, commodity or other swap, collar, cap or other hedging or similar agreements or
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`(6) “Benefit Plan” has the meaning set forth in the EMPLOYEE MATTERS AGREEMENT.
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`JDS UNIPHASE EXHIBIT 1037, P. 17
`JDS Uniphase v. Capella Phototonics; IPR2015-00731
`
`

`
`(7) “Business Technology” has the meaning set forth in INTELLECTUAL PROPERTY MATTERS AGREEMENT.
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`(8) “Code” means the Internal Revenue Code of 1986, as amended.
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`(9) “Contract” means any agreement, contract, obligation, indenture, instrument, lease, promise, arrangement,
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`commitment or undertaking (whether written or oral and whether express or implied).
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`(10) “Contribution” means the transfer by JDSU of the Lumentum Assets to Lumentum and the assumption of the
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`Lumentum Liabilities by Lumentum, and the transfer of the Excluded Assets by Lumentum to JDSU and the assignment of Excluded
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`Liabilities by Lumentum to JDSU, all as more fully described in this Agreement and the Transaction Documents.
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`(11) “Corporate Contingent Assets” means:
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`(a) any of the Assets set forth on SCHEDULE 1.1(11)(A); and
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`(b) any Assets relating to, arising from or involving a general corporate matter of JDSU or any of its Subsidiaries
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`(which were Subsidiaries prior to the Effective Time) arising or accrued at or prior to the Effective Time, including Insurance
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`Proceeds resulting from Insurance Policies in place at or prior to the Effective Time, other than any Asset that is (A) specified to be a
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`Lumentum Asset or an Excluded Asset, or (B) otherwise specifically allocated under this Agreement or any other Transaction
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`Document.
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`(12) “Corporate Contingent Liabilities” means:
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`(a) any of the Liabilities set forth on SCHEDULE 1.1(12)(A