exv10w67








    Exhibit 10.67



 




    FINISAR
    CORPORATION

    2009 EMPLOYEE STOCK PURCHASE PLAN



 




    1.  Establishment
    and Purpose of Plan.



 



    1.1  Establishment.  The Finisar
    Corporation 2009 Employee Stock Purchase Plan (the
    “Plan”) was adopted by the Board on
    September 9, 2009 and shall become effective upon approval
    by the stockholders of the Company at the 2009 Annual Meeting.



 



    1.2  Purpose.  The purpose of the
    Plan is to advance the interests of Company and its stockholders
    by providing an incentive to attract, retain and reward Eligible
    Employees of the Participating Company Group and by motivating
    such persons to contribute to the growth and profitability of
    the Participating Company Group. The Plan provides such Eligible
    Employees with an opportunity to acquire a proprietary interest
    in the Company through the purchase of Stock. The Company
    intends that the Plan qualify as an “employee stock
    purchase plan” under Section 423 of the Code
    (including any amendments or replacements of such section), and
    the Plan shall be so construed.



 




    2.  Definitions
    and Construction.



 



    2.1  Definitions.  Any term not
    expressly defined in the Plan but defined for purposes of
    Section 423 of the Code shall have the same definition
    herein. Whenever used herein, the following terms shall have
    their respective meanings set forth below:



 



    (a) “Board” means the Board of
    Directors of the Company. If one or more Committees have been
    appointed by the Board to administer the Plan, “Board”
    also means such Committee(s).



 



    (b) “Code” means the Internal
    Revenue Code of 1986, as amended, and any applicable regulations
    promulgated thereunder.



 



    (c) “Committee” means a committee
    of the Board duly appointed to administer the Plan and having
    such powers as specified by the Board. Unless the powers of the
    Committee have been specifically limited, the Committee shall
    have all of the powers of the Board granted herein, including,
    without limitation, the power to amend or terminate the Plan at
    any time, subject to the terms of the Plan and any applicable
    limitations imposed by law.



 



    (d) “Company” means Finisar
    Corporation, a Delaware corporation, or any successor
    corporation thereto.



 



    (e) “Compensation” means, with
    respect to any Offering Period, base wages or salary, overtime
    pay, bonuses, commissions, shift differentials, payments for
    paid time off, payments in lieu of notice, and any of such
    compensation deferred under any program or plan established by a
    Participating Company, including, without limitation, pursuant
    to Section 401(k) or Section 125 of the Code.
    Compensation shall be limited to amounts actually payable in
    cash directly to the Participant or deferred by the Participant
    during the Offering Period. However, notwithstanding the
    foregoing, Compensation shall not include sign-on bonuses,
    profit sharing, payments pursuant to a severance agreement,
    termination pay, moving allowances, relocation payments, expense
    reimbursements, the cost of employee benefits paid by a
    Participating Company, tuition reimbursements, imputed income
    arising under any benefit program, contributions made by a
    Participating Company under any employee benefit plan, income
    directly or indirectly received pursuant to the Plan or any
    other stock purchase or stock option plan, or any other
    compensation not included above.



 



    (f) “Eligible Employee” means an
    Employee who meets the requirements set forth in Section 5
    for eligibility to participate in the Plan.



 



    (g) “Employee” means a person
    treated as an employee of a Participating Company for purposes
    of Section 423 of the Code. A Participant shall be deemed
    to have ceased to be an Employee either upon an actual
    termination of employment or upon the corporation employing the
    Participant ceasing to be a Participating




    

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    Company. For purposes of the Plan, an individual shall not be
    deemed to have ceased to be an Employee while on any military
    leave, sick leave, or other bona fide leave of absence approved
    by the Company of ninety (90) days or less. If an
    individual’s leave of absence exceeds ninety
    (90) days, the individual shall be deemed to have ceased to
    be an Employee on the ninety-first (91st) day of such leave
    unless the individual’s right to reemployment with the
    Participating Company Group is guaranteed either by statute or
    by contract. The Company shall determine in good faith and in
    the exercise of its discretion whether an individual has become
    or has ceased to be an Employee and the effective date of such
    individual’s employment or termination of employment, as
    the case may be. All such determinations by the Company shall be
    final, binding and conclusive, notwithstanding that the Company
    or any governmental agency subsequently makes a contrary
    determination.



 



    (h) “Fair Market Value” means, as
    of any date:



 



    (i) If the Stock is then listed on a national or regional
    securities exchange or market system or is regularly quoted by a
    recognized securities dealer, the closing sale price of a share
    of Stock (or the mean of the closing bid and asked prices if the
    Stock is so quoted instead) as quoted on the Nasdaq National
    Market, the Nasdaq SmallCap Market or such other national or
    regional securities exchange or market system constituting the
    primary market for the Stock, or by such recognized securities
    dealer, as reported in The Wall Street Journal or such
    other source as the Company deems reliable. If the relevant date
    does not fall on a day on which the Stock has traded on such
    securities exchange or market system or has been quoted by such
    securities dealer, the date on which the Fair Market Value is
    established shall be the last day on which the Stock was so
    traded or quoted prior to the relevant date, or such other
    appropriate day as determined by the Board, in its discretion.



 



    (ii) If, on the relevant date, the Stock is not then listed
    on a national or regional securities exchange or market system
    or regularly quoted by a recognized securities dealer, the Fair
    Market Value of a share of Stock shall be as determined in good
    faith by the Board.



 



    (i) “International Plan” means the
    Finisar Corporation 2009 International Employee Stock Purchase
    Plan.



 



    (j) “Offering” means an offering of
    Stock as provided in Section 6.



 



    (k) “Offering Date” means, for any
    Offering, the first day of the Offering Period.



 



    (l) “Offering Period” means a
    period established in accordance with Section 6.1.



 



    (m) “Parent Corporation” means any
    present or future “parent corporation” of the Company,
    as defined in Section 424(e) of the Code.



 



    (n) “Participant” means an Eligible
    Employee who has become a participant in an Offering Period in
    accordance with Section 7 and remains a participant in
    accordance with the Plan.



 



    (o) “Participating Company” means
    the Company or any Parent Corporation or Subsidiary Corporation
    designated by the Board as a corporation the Employees of which
    may, if Eligible Employees, participate in the Plan. The Board
    shall have the sole and absolute discretion to determine from
    time to time which Parent Corporations or Subsidiary
    Corporations shall be Participating Companies.



 



    (p) “Participating Company Group”
    means, at any point in time, the Company and all other
    corporations collectively which are then Participating Companies.



 



    (q) “Purchase Date” means, for any
    Purchase Period, the last day of such period.



 



    (r) “Purchase Period” means a
    period established in accordance with Section 6.2.



 



    (s) “Purchase Price” means the
    price at which a share of Stock may be purchased under the Plan,
    as determined in accordance with Section 9.



 



    (t) “Purchase Right” means an
    option granted to a Participant pursuant to the Plan to purchase
    such shares of Stock as provided in Section 8, which the
    Participant may or may not exercise during the Offering




    

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    Period in which such option is outstanding. Such option arises
    from the right of a Participant to withdraw any accumulated
    payroll deductions of the Participant not previously applied to
    the purchase of Stock under the Plan and to terminate
    participation in the Plan at any time during an Offering Period.



 



    (u) “Stock” means the common stock
    of the Company, as adjusted from time to time in accordance with
    Section 4.2.



 



    (v) “Subscription Agreement” means
    a written agreement in such form as specified by the Company,
    stating an Employee’s election to participate in the Plan
    and authorizing payroll deductions under the Plan from the
    Employee’s Compensation.



 



    (w) “Subscription Date” means the
    last business day prior to the Offering Date of an Offering
    Period or such earlier date as the Company shall establish.



 



    (x) “Subsidiary Corporation” means
    any present or future “subsidiary corporation” of the
    Company, as defined in Section 424(f) of the Code.



 



    2.2  Construction.  Captions and
    titles contained herein are for convenience only and shall not
    affect the meaning or interpretation of any provision of the
    Plan. Except when otherwise indicated by the context, the
    singular shall include the plural and the plural shall include
    the singular. Use of the term “or” is not intended to
    be exclusive, unless the context clearly requires otherwise.



 




    3.  Administration.



 



    3.1  Administration by the
    Board.  The Plan shall be administered by the
    Board. All questions of interpretation of the Plan, of any form
    of agreement or other document employed by the Company in the
    administration of the Plan, or of any Purchase Right shall be
    determined by the Board and shall be final and binding upon all
    persons having an interest in the Plan or the Purchase Right.
    Subject to the provisions of the Plan, the Board shall determine
    all of the relevant terms and conditions of Purchase Rights;
    provided, however, that all Participants granted Purchase Rights
    pursuant to an Offering shall have the same rights and
    privileges within the meaning of Section 423(b)(5) of the
    Code. All expenses incurred in connection with the
    administration of the Plan shall be paid by the Company.



 



    3.2  Authority of Officers.  Any
    officer of the Company shall have the authority to act on behalf
    of the Company with respect to any matter, right, obligation,
    determination or election that is the responsibility of or that
    is allocated to the Company herein, provided that the officer
    has apparent authority with respect to such matter, right,
    obligation, determination or election.



 



    3.3  Policies and Procedures Established by the
    Company.  The Company may, from time to time,
    consistent with the Plan and the requirements of
    Section 423 of the Code, establish, change or terminate
    such rules, guidelines, policies, procedures, limitations, or
    adjustments as deemed advisable by the Company, in its
    discretion, for the proper administration of the Plan,
    including, without limitation, (a) a minimum payroll
    deduction amount required for participation in an Offering,
    (b) a limitation on the frequency or number of changes
    permitted in the rate of payroll deduction during an Offering,
    (c) an exchange ratio applicable to amounts withheld in a
    currency other than United States dollars, (d) a payroll
    deduction greater than or less than the amount designated by a
    Participant in order to adjust for the Company’s delay or
    mistake in processing a Subscription Agreement or in otherwise
    effecting a Participant’s election under the Plan or as
    advisable to comply with the requirements of Section 423 of
    the Code, and (e) determination of the date and manner by
    which the Fair Market Value of a share of Stock is determined
    for purposes of administration of the Plan.



 



    3.4  Indemnification.  In addition to
    such other rights of indemnification as they may have as members
    of the Board or officers or employees of the Participating
    Company Group, members of the Board and any officers or
    employees of the Participating Company Group to whom authority
    to act for the Board or the Company is delegated shall be
    indemnified by the Company against all reasonable expenses,
    including attorneys’ fees, actually and necessarily
    incurred in connection with the defense of any action, suit or
    proceeding, or in connection with any appeal therein, to which
    they or any of them may be a party by reason of any action taken
    or failure to act under or in connection with the Plan, or any
    right granted hereunder, and against all amounts paid by them in
    settlement thereof




    

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    (provided such settlement is approved by independent legal
    counsel selected by the Company) or paid by them in satisfaction
    of a judgment in any such action, suit or proceeding, except in
    relation to matters as to which it shall be adjudged in such
    action, suit or proceeding that such person is liable for gross
    negligence, bad faith or intentional misconduct in duties;
    provided, however, that within sixty (60) days after the
    institution of such action, suit or proceeding, such person
    shall offer to the Company, in writing, the opportunity at its
    own expense to handle and defend the same.



 




    4.  Shares
    Subject to Plan.



 



    4.1  Maximum Number of Shares
    Issuable.  Subject to adjustment as provided in
    Section 4.2, the maximum aggregate number of shares of
    Stock that may be issued under the Plan and the International
    Plan shall be twenty million (20,000,000), cumulatively
    increased on May 1 of each year commencing on May 1, 2010
    and ending May 1, 2015 by one million (1,000,000) shares
    (the “Annual Increase”), and shall
    consist of authorized but unissued or reacquired shares of
    Stock, or any combination thereof. Any shares issued under the
    Plan shall reduce on a share-for-share basis the number of
    shares of Stock available for subsequent issuance under the
    International Plan. If an outstanding Purchase Right for any
    reason expires or is terminated or canceled, the shares of Stock
    allocable to the unexercised portion of that Purchase Right
    shall again be available for issuance under the Plan.



 



    4.2  Adjustments for Changes in Capital
    Structure.  In the event of any stock dividend,
    stock split, reverse stock split, recapitalization, combination,
    reclassification or similar change in the capital structure of
    the Company, or in the event of any merger (including a merger
    effected for the purpose of changing the Company’s
    domicile), sale of assets or other reorganization in which the
    Company is a party, appropriate adjustments shall be made in the
    number and class of shares available for issuance in the
    aggregate under the Plan and the International Plan, the Annual
    Increase and each Purchase Right, and in the Purchase Price. If
    a majority of the shares of the same class as the shares subject
    to outstanding Purchase Rights are exchanged for, converted
    into, or otherwise become (whether or not pursuant to an
    Ownership Change Event) shares of another corporation (the
    “New Shares”), the Board may
    unilaterally amend the outstanding Purchase Rights to provide
    that such Purchase Rights are exercisable for New Shares. In the
    event of any such amendment, the number of shares subject to,
    and the Purchase Price of, the outstanding Purchase Rights shall
    be adjusted in a fair and equitable manner, as determined by the
    Board, in its discretion. Notwithstanding the foregoing, any
    fractional share resulting from an adjustment pursuant to this
    Section 4.2 shall be rounded down to the nearest whole
    number, and in no event may the Purchase Price be decreased to
    an amount less than the par value, if any, of the stock subject
    to the Purchase Right. The adjustments determined by the Board
    pursuant to this Section 4.2 shall be made in such a manner
    to prevent the dilution or enlargement of benefits under the
    Plan and the outstanding Purchase Rights thereunder, and such
    adjustments shall be final, binding and conclusive.



 




    5.  Eligibility.



 



    5.1  Employees Eligible to
    Participate.  Each Employee of a Participating
    Company is eligible to participate in the Plan and shall be
    deemed an Eligible Employee, except any Employee who is either:
    (a) customarily employed by the Participating Company Group
    for twenty (20) hours or less per week or
    (b) customarily employed by the Participating Company Group
    for not more than five (5) months in any calendar year.



 



    5.2  Exclusion of Certain
    Stockholders.  Notwithstanding any provision of
    the Plan to the contrary, no Employee shall be granted a
    Purchase Right under the Plan if, immediately after such grant,
    the Employee would own or hold options to purchase stock of the
    Company or of any Parent Corporation or Subsidiary Corporation
    possessing five percent (5%) or more of the total combined
    voting power or value of all classes of stock of such
    corporation, as determined in accordance with
    Section 423(b)(3) of the Code. For purposes of this
    Section 5.2, the attribution rules of Section 424(d)
    of the Code shall apply in determining the stock ownership of
    such Employee.



 




    6.  Offerings.



 



    6.1  Offering Periods.  Except as
    otherwise set forth below, the Plan shall be implemented by two
    series of Offerings. One series shall be of sequential Offerings
    of approximately twelve (12) months duration or such other




    

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    duration as the Board shall determine (an “Annual
    Offering Period”). The second series shall be of
    Offerings of approximately six (6) months duration or such
    other duration as the Board shall determine (a
    “Half-Year Offering Period”). Annual
    Offering Periods shall commence on or about December 16 of each
    year and end on or about the first December 15 occurring
    thereafter. The first Annual Offering Period shall commence on
    December 16, 2009 and end on December 15, 2010.
    Half-Year Offering Periods shall commence on or about June 16 of
    each year and end on or about the first December 15 occurring
    thereafter. Notwithstanding the foregoing, the Board may
    establish a different duration for one or more Offering Periods
    or different commencing or ending dates for such Offering
    Periods; provided, however, that no Offering Period may have a
    duration exceeding twenty-seven (27) months. If the first
    or last day of an Offering Period is not a day on which the
    national securities exchanges or Nasdaq Stock Market are open
    for trading, the Company shall specify the trading day that will
    be deemed the first or last day, as the case may be, of the
    Offering Period.



 



    6.2  Purchase Periods.  Each Annual
    Offering Period shall consist of two (2) consecutive
    Purchase Periods of approximately six (6) months duration,
    or such other number or duration as the Board determines. A
    Purchase Period commencing on or about December 16 shall end on
    or about the next June 15, and a Purchase Period commencing
    on or about June 16 shall end on or about the next
    December 15. Each Half-Year Offering Period shall consist
    of a single Purchase Period of approximately six (6) months
    duration coterminous with such Offering Period. Notwithstanding
    the foregoing, the Board may establish a different duration for
    one or more Purchase Periods or different commencing or ending
    dates for such Purchase Periods. If the first or last day of a
    Purchase Period is not a day on which the national securities
    exchanges or Nasdaq Stock Market are open for trading, the
    Company shall specify the trading day that will be deemed the
    first or last day, as the case may be, of the Purchase Period.



 




    7.  Participation
    in the Plan.



 



    7.1  Initial Participation.  An
    Eligible Employee may become a Participant in an Offering Period
    by delivering a properly completed Subscription Agreement to the
    office designated by the Company not later than the close of
    business for such office on the Subscription Date established by
    the Company for that Offering Period. An Eligible Employee who
    does not deliver a properly completed Subscription Agreement to
    the Company’s designated office on or before the
    Subscription Date for an Offering Period shall not participate
    in the Plan for that Offering Period or for any subsequent
    Offering Period unless the Eligible Employee subsequently
    delivers a properly completed Subscription Agreement to the
    appropriate office of the Company on or before the Subscription
    Date for such subsequent Offering Period. An Employee who
    becomes an Eligible Employee after the Offering Date of an
    Offering Period shall not be eligible to participate in that
    Offering Period but may participate in any subsequent Offering
    Period provided the Employee is still an Eligible Employee as of
    the Offering Date of such subsequent Offering Period.



 



    7.2  Continued Participation.  A
    Participant shall automatically participate in the next Offering
    Period commencing immediately after the final Purchase Date of
    each Offering Period in which the Participant participates
    provided that the Participant remains an Eligible Employee on
    the Offering Date of the new Offering Period and has not either
    (a) withdrawn from the Plan pursuant to Section 13.1
    or (b) terminated employment as provided in
    Section 14. A Participant who may automatically participate
    in a subsequent Offering Period, as provided in this Section, is
    not required to deliver any additional Subscription Agreement
    for the subsequent Offering Period in order to continue
    participation in the Plan. However, a Participant may deliver a
    new Subscription Agreement for a subsequent Offering Period in
    accordance with the procedures set forth in Section 7.1 if
    the Participant desires to change any of the elections contained
    in the Participant’s then effective Subscription Agreement.



 




    8.  Right
    to Purchase Shares.



 



    8.1  Grant of Purchase Right.  Except
    as set forth below, on the Offering Date of each Offering
    Period, each Participant in that Offering Period shall be
    granted automatically a Purchase Right determined as follows:



 



    (a) Annual Offering Period.  Each
    Purchase Right granted on the Offering Date of an Annual
    Offering Period shall consist of an option to purchase that
    number of whole shares of Stock determined by dividing
    Twenty-Five Thousand Dollars ($25,000) by the Fair Market Value
    of a share of Stock on the Offering Date.




    

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    (b) Half-Year Offering
    Period.  Each Purchase Right granted on the
    Offering Date of a Half-Year Offering Period shall consist of an
    option to purchase that number of whole shares of Stock
    determined by dividing Twelve Thousand Five Hundred Dollars
    ($12,500) by the Fair Market Value of a share of Stock on the
    Offering Date.



 



    8.2  Pro Rata Adjustment of Purchase
    Right.  If the Board establishes an Offering
    Period of any duration other than twelve months or six months,
    then the number of shares of Stock subject to each Purchase
    Right granted on the Offering Date of such Offering Period shall
    be determined as provided in Section 8.1, except that the
    applicable dollar amount shall be determined by multiplying
    $2,083.33 by the number of months (rounded to the nearest whole
    month) in the Offering Period and rounding to the nearest whole
    dollar.



 



    8.3  Calendar Year Purchase
    Limitation.  Notwithstanding any provision of the
    Plan to the contrary, no Participant shall be granted a Purchase
    Right which permits his or her right to purchase shares of Stock
    under the Plan to accrue at a rate which, when aggregated with
    such Participant’s rights to purchase shares under all
    other employee stock purchase plans of a Participating Company
    intended to meet the requirements of Section 423 of the
    Code, exceeds Twenty-Five Thousand Dollars ($25,000) in Fair
    Market Value (or such other limit, if any, as may be imposed by
    the Code) for each calendar year in which such Purchase Right is
    outstanding at any time. For purposes of the preceding sentence,
    the Fair Market Value of shares purchased during a given
    Offering Period shall be determined as of the Offering Date for
    such Offering Period. The limitation described in this Section
    shall be applied in conformance with applicable regulations
    under Section 423(b)(8) of the Code.



 



    8.4  Maximum Number of Shares Purchasable by All
    Participants.  Notwithstanding any provision of
    the Plan to the contrary, the maximum number of shares
    purchasable in total by all Participants in this Plan and the
    International Plan on any one Purchase Date shall not exceed
    one-half of one percent (0.5%) of that number of shares of Stock
    outstanding on the immediately preceding May 1 of the calendar
    year in which such Purchase Date occurs. However, the Board
    shall have the discretionary authority, exercisable prior to the
    start of any Offering Period, to increase or decrease the
    limitation to be in effect for the number of shares purchasable
    in total by all Participants on each Purchase Date during that
    Offering Period.



 




    9.  Purchase
    Price.



 



    The Purchase Price at which each share of Stock may be acquired
    in an Offering Period upon the exercise of all or any portion of
    a Purchase Right shall be established by the Board; provided,
    however, that the Purchase Price on each Purchase Date shall not
    be less than eighty-five percent (85%) of the lesser of
    (a) the Fair Market Value of a share of Stock on the
    Offering Date of the Offering Period or (b) the Fair Market
    Value of a share of Stock on the Purchase Date. Unless otherwise
    provided by the Board prior to the commencement of an Offering
    Period, the Purchase Price on each Purchase Date during that
    Offering Period shall be eighty-five percent (85%) of the lesser
    of (a) the Fair Market Value of a share of Stock on the
    Offering Date of the Offering Period, or (b) the Fair
    Market Value of a share of Stock on the Purchase Date.



 




    10.  Accumulation
    of Purchase Price through Payroll Deduction.



 



    Shares of Stock acquired pursuant to the exercise of all or any
    portion of a Purchase Right may be paid for only by means of
    payroll deductions from the Participant’s Compensation
    accumulated during the Offering Period for which such Purchase
    Right was granted, subject to the following:



 



    10.1  Amount of Payroll
    Deductions.  Except as otherwise provided herein,
    the amount to be deducted under the Plan from a
    Participant’s Compensation on each payday during an
    Offering Period shall be determined by the Participant’s
    Subscription Agreement. The Subscription Agreement shall set
    forth the percentage of the Participant’s Compensation to
    be deducted on each payday during an Offering Period in whole
    percentages of not less than one percent (1%) (except as a
    result of an election pursuant to Section 10.3 to stop
    payroll deductions) or more than twenty percent (20%); provided,
    however, that in no event may a Participant’s payroll
    deductions on any payday for the purchase of shares under the
    Plan and all other employee stock purchase plans of a
    Participating Company intended to meet the requirements of
    Section 423 of the Code exceed twenty percent (20%) of the
    Participant’s Compensation on such payday. The Board may
    change the foregoing limits on payroll deductions effective as
    of any Offering Date.




    

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    10.2  Commencement of Payroll
    Deductions.  Payroll deductions shall commence on
    the first payday following the Offering Date and shall continue
    to the end of the Offering Period unless sooner altered or
    terminated as provided herein.



 



    10.3  Election to Change or Stop Payroll
    Deductions.  During an Offering Period, a
    Participant may elect to increase or decrease the rate of or to
    stop deductions from his or her Compensation by delivering to
    the Company’s designated office an amended Subscription
    Agreement authorizing such change on or before the Change Notice
    Date, as defined below. A Participant who elects, effective
    following the first payday of an Offering Period, to decrease
    the rate of his or her payroll deductions to zero percent (0%)
    shall nevertheless remain a Participant in the current Offering
    Period unless such Participant withdraws from the Plan as
    provided in Section 13.1. The “Change Notice
    Date” shall be the day immediately prior to the
    beginning of the first pay period for which such election is to
    be effective, unless a different date is established by the
    Company and announced to the Participants.



 



    10.4  Administrative Suspension of Payroll
    Deductions.  The Company may, in its sole
    discretion, suspend a Participant’s payroll deductions
    under the Plan as the Company deems advisable to avoid
    accumulating payroll deductions in excess of the amount that
    could reasonably be anticipated to purchase the maximum number
    of shares of Stock permitted (a) under the
    Participant’s Purchase Right or (b) during a calendar
    year under the limit set forth in Section 8.3. Payroll
    deductions shall be resumed at the rate specified in the
    Participant’s then effective Subscription Agreement at the
    beginning, respectively, of (a) the next Offering Period,
    provided that the individual is a Participant in such Offering
    Period or (b) the next Purchase Period the Purchase Date of
    which falls in the following calendar year, unless the
    Participant has either withdrawn from the Plan as provided in
    Section 13.1 or has ceased to be an Eligible Employee.



 



    10.5  Participant
    Accounts.  Individual bookkeeping accounts shall
    be maintained for each Participant. All payroll deductions from
    a Participant’s Compensation shall be credited to such
    Participant’s Plan account and shall be deposited with the
    general funds of the Company. All payroll deductions received or
    held by the Company may be used by the Company for any corporate
    purpose.



 



    10.6  No Interest Paid.  Interest
    shall not be paid on sums deducted from a Participant’s
    Compensation pursuant to the Plan.



 



    10.7  Voluntary Withdrawal from Plan
    Account.  A Participant may withdraw all or any
    portion of the payroll deductions credited to his or her Plan
    account and not previously applied toward the purchase of Stock
    by delivering to the Company’s designated office a written
    notice on a form provided by the Company for such purpose. A
    Participant who withdraws the entire remaining balance credited
    to his or her Plan account shall be deemed to have withdrawn
    from the Plan in accordance with Section 13.1. Amounts
    withdrawn shall be returned to the Participant as soon as
    practicable after the Company’s receipt of the notice of
    withdrawal and may not be applied to the purchase of shares in
    any Offering under the Plan. The Company may from time to time
    establish or change limitations on the frequency of withdrawals
    permitted under this Section, establish a minimum dollar amount
    that must be retained in the Participant’s Plan account, or
    terminate the withdrawal right provided by this Section.



 




    11.  Purchase
    of Shares.



 



    11.1  Exercise of Purchase Right.  On
    each Purchase Date of an Offering Period, each Participant who
    has not withdrawn from the Plan and whose participation in the
    Offering has not otherwise terminated before such Purchase Date
    shall automatically acquire pursuant to the exercise of the
    Participant’s Purchase Right the number of whole shares of
    Stock determined by dividing (a) the total amount of the
    Participant’s payroll deductions accumulated in the
    Participant’s Plan account during the Offering Period and
    not previously applied toward the purchase of Stock by
    (b) the Purchase Price. However, in no event shall the
    number of shares purchased by the Participant during an Offering
    Period exceed the number of shares subject to the
    Participant’s Purchase Right. No shares of Stock shall be
    purchased on a Purchase Date on behalf of a Participant whose
    participation in the Offering or the Plan has terminated before
    such Purchase Date.



 



    11.2  Pro Rata Allocation of
    Shares.  If the number of shares of Stock which
    might be purchased by all Participants in the Plan on a Purchase
    Date exceeds the number of shares of Stock available in the Plan
    as provided




    

    7








 






    in Section 4.1 or the maximum number of shares purchasable
    in total by all Participants in the Plan and the International
    Plan on any one Purchase Date as provided in Section 8.4,
    the Company shall make a pro rata allocation of the remaining
    shares in as uniform a manner as practicable and as the Company
    determines to be equitable. Any fractional share resulting from
    such pro rata allocation to any Participant shall be disregarded.



 



    11.3  Delivery of Certificates.  As
    soon as practicable after each Purchase Date, the Company shall
    arrange the delivery to each Participant of a certificate
    representing the shares acquired by the Participant on such
    Purchase Date; provided that the Company may deliver such shares
    to a broker designated by the Company that will hold such shares
    for the benefit of the Participant. Shares to be delivered to a
    Participant under the Plan shall be registered in the name of
    the Participant, or, if requested by the Participant, in the
    name of the Participant and his or her spouse, or, if
    applicable, in the names of the heirs of the Participant.



 



    11.4  Return of Cash Balance.  Any
    cash balance remaining in a Participant’s Plan account
    following any Purchase Date shall be refunded to the Participant
    as soon as practicable after such Purchase Date. However, if the
    cash balance to be returned to a Participant pursuant to the
    preceding sentence is less than the amount that would have been
    necessary to purchase an additional whole share of Stock on such
    Purchase Date, the Company may retain the cash balance in the
    Participant’s Plan account to be applied toward the
    purchase of shares of Stock in the subsequent Purchase Period or
    Offering Period, as the case may be.



 



    11.5  Tax Withholding.  At the time a
    Participant’s Purchase Right is exercised, in whole or in
    part, or at the time a Participant disposes of some or all of
    the shares of Stock he or she acquires under the Plan, the
    Participant shall make adequate provision for the federal,
    state, local and foreign tax withholding obligations, if any, of
    the Participating Company Group which arise upon exercise of the
    Purchase Right or upon such disposition of shares, respectively.
    The Participating Company Group may, but shall not be obligated
    to, withhold from the Participant’s compensation the amount
    necessary to meet such withholding obligations.



 



    11.6  Expiration of Purchase
    Right.  Any portion of a Participant’s
    Purchase Right remaining unexercised after the end of the
    Offering Period to which the Purchase Right relates shall expire
    immediately upon the end of the Offering Period.



 



    11.7  Provision of Reports and Stockholder
    Information to Participants. Each Participant who has
    exercised all or part of his or her Purchase Right shall
    receive, as soon as practicable after the Purchase Date, a
    report of such Participant’s Plan account setting forth the
    total payroll deductions accumulated prior to such exercise, the
    number of shares of Stock purchased, the Purchase Price for such
    shares, the date of purchase and the cash balance, if any,
    remaining immediately after such purchase that is to be refunded
    or retained in the Participant’s Plan account pursuant to
    Section 11.4. The report required by this Section may be
    delivered in such form and by such means, including by
    electronic transmission, as the Company may determine. In
    addition, each Participant shall be provided information
    concerning the Company equivalent to that information provided
    generally to the Company’s common stockholders.



 




    12.  ESPP
    Brokerage
    Account.  
    



 



    12.1  The Company may require that the shares
    purchased on behalf of each Participant shall be deposited
    directly into a brokerage account which the Company shall
    establish for the Participant at a Company-designated brokerage
    firm. The account will be known as the ESPP Brokerage Account.
    The following policies and procedures shall be in place for any
    shares deposited into the Participant’s ESPP Broker Account
    until those shares have been held for the requisite period
    necessary to avoid a disqualifying disposition under the federal
    tax laws. Accordingly, the shares must be held in the ESPP
    Brokerage Account until the later of the following two periods:
    (i) the end of the two (2)-year period measured from the
    start date of the Offering Period in which the shares were
    purchased and (ii) the end of the one (1)-year measured
    from the actual Purchase Date of those shares.



 



    12.2  The deposited shares shall not be transferable
    (either electronically or in certificate form) from the ESPP
    Brokerage Account until the required holding period for those
    shares is satisfied. Such limitation shall apply both to
    transfers to different accounts with the same ESPP broker and to
    transfers to other brokerage firms. Any shares held for the
    required holding period may be transferred (either
    electronically or in certificate form) to other accounts or to
    other brokerage firms.




    

    8








 






    12.3  The foregoing procedures shall not in any
    way limit when the Participant may sell his or her
    shares.  Those procedures are designed solely
    to assure that any sale of shares prior to the satisfaction of
    the required holding period is made through the ESPP Brokerage
    Account. In addition, the Participant may request a stock
    certificate or share transfer from his or her ESPP Brokerage
    Account prior to the satisfaction of the required holding period
    should the Participant wish to make a gift of any shares held in
    that account. However, shares may not be transferred (either
    electronically or in certificate form) from the ESPP Brokerage
    Account for use as collateral for a loan, unless those shares
    have been held for the required holding period.



 



    12.4  To the extent the Board requires that shares be
    deposited in the ESPP Brokerage Account, the foregoing
    procedures shall apply to all shares purchased by the
    Participant under the Plan, whether or not the Participant
    continues to be an Employee.



 




    13.  Withdrawal
    from Offering or Plan.



 



    13.1  Voluntary Withdrawal.  A
    Participant may withdraw from the Plan or any Offering by
    signing and delivering to the Company’s designated office a
    written notice of withdrawal on a form provided by the Company
    for this purpose. Such withdrawal may be elected at any time
    prior to the end of an Offering Period; provided, however, that
    if a Participant withdraws from the Plan or an Offering after a
    Purchase Date, the withdrawal shall not affect shares of Stock
    acquired by the Participant on such Purchase Date. A Participant
    who voluntarily withdraws from the Plan or an Offering is
    prohibited from resuming participation in the Plan in the same
    Offering from which he or she withdrew, but may participate in
    any subsequent Offering by again satisfying the requirements of
    Sections 5 and 7.1. The Company may impose, from time to
    time, a requirement that the notice of withdrawal be on file
    with the Company’s designated office for a reasonable
    period prior to the effectiveness of the Participant’s
    withdrawal.



 



    13.2  Return of Payroll
    Deductions.  Upon a Participant’s voluntary
    withdrawal from the Plan or an Offering pursuant to
    Section 13.1, the Participant’s accumulated payroll
    deductions which have not been applied toward the purchase of
    shares shall be refunded to the Participant as soon as
    practicable after the withdrawal, without the payment of any
    interest, and the Participant’s interest in the Plan or the
    Offering, as applicable, shall terminate. Such accumulated
    payroll deductions to be refunded in accordance with this
    Section may not be applied to any other Offering under the Plan.



 




    14.  Termination
    of Employment or Eligibility.



 



    Upon a Participant’s ceasing, prior to a Purchase Date, to
    be an Employee of the Participating Company Group for any
    reason, including retirement, disability or death, or upon the
    failure of a Participant to remain an Eligible Employee, the
    Participant’s participation in the Plan shall terminate
    immediately. In such event, the Participant’s accumulated
    payroll deductions which have not been applied toward the
    purchase of shares shall, as soon as practicable, be returned to
    the Participant or, in the case of the Participant’s death,
    to the Participant’s beneficiary designated in accordance
    with Section 21, if any, or legal representative, and all
    of the Participant’s rights under the Plan shall terminate.
    Interest shall not be paid on sums returned pursuant to this
    Section 14. A Participant whose participation has been so
    terminated may again become eligible to participate in the Plan
    by satisfying the requirements of Sections 5 and 7.1.



 




    15.  Change
    in Control.



 



    15.1  Definitions.



 



    (a) An “Ownership Change
    Event”  shall be deemed to have occurred
    if any of the following occurs with respect to the Company:
    (i) the direct or indirect sale or exchange in a single or
    series of related transactions by the stockholders of the
    Company of more than fifty percent (50%) of the voting stock of
    the Company; (ii) a merger or consolidation in which the
    Company is a party; (iii) the sale, exchange, or transfer
    of all or substantially all of the assets of the Company; or
    (iv) a liquidation or dissolution of the Company.



 



    (b) A “Change in
    Control”  shall mean an Ownership Change
    Event or a series of related Ownership Change Events
    (collectively, the “Transaction”)
    wherein the stockholders of the Company immediately




    

    9








 






    before the Transaction do not retain immediately after the
    Transaction, in substantially the same proportions as their
    ownership of shares of the Company’s voting stock
    immediately before the Transaction, direct or indirect
    beneficial ownership of more than fifty percent (50%) of the
    total combined voting power of the outstanding voting stock of
    the Company or the corporation or corporations to which the
    assets of the Company were transferred (the
    “Transferee Corporation(s)”), as the
    case may be. For purposes of the preceding sentence, indirect
    beneficial ownership shall include, without limitation, an
    interest resulting from ownership of the voting stock of one or
    more corporations which, as a result of the Transaction, own the
    Company or the Transferee Corporation(s), as the case may be,
    either directly or through one or more subsidiary corporations.
    The Board shall have the right to determine whether multiple
    sales or exchanges of the voting stock of the Company or
    multiple Ownership Change Events are related, and its
    determination shall be final, binding and conclusive.



 



    15.2  Effect of Change in Control on Purchase
    Rights.  In the event of a Change in Control, the
    surviving, continuing, successor, or purchasing corporation or
    parent corporation thereof, as the case may be (the
    “Acquiring Corporation”), may assume the
    Company’s rights and obligations under the Plan. If the
    Acquiring Corporation elects not to assume the Company’s
    rights and obligations under outstanding Purchase Rights, the
    Purchase Date of the then current Purchase Period shall be
    accelerated to a date before the date of the Change in Control
    specified by the Board, but the number of shares of Stock
    subject to outstanding Purchase Rights shall not be adjusted.
    All Purchase Rights which are neither assumed by the Acquiring
    Corporation in connection with the Change in Control nor
    exercised as of the date of the Change in Control shall
    terminate and cease to be outstanding effective as of the date
    of the Change in Control.



 




    16.  Nontransferability
    of Purchase Rights.



 



    Neither payroll deductions credited to a Participant’s Plan
    account nor a Participant’s Purchase Right may be assigned,
    transferred, pledged or otherwise disposed of in any manner
    other than as provided by the Plan or by will or the laws of
    descent and distribution. (A beneficiary designation pursuant to
    Section 21 shall not be treated as a disposition for this
    purpose.) Any such attempted assignment, transfer, pledge or
    other disposition shall be without effect, except that the
    Company may treat such act as an election to withdraw from the
    Plan as provided in Section 13.1. A Purchase Right shall be
    exercisable during the lifetime of the Participant only by the
    Participant.



 




    17.  Compliance
    with Securities Law.



 



    The issuance of shares under the Plan shall be subject to
    compliance with all applicable requirements of federal, state
    and foreign law with respect to such securities. A Purchase
    Right may not be exercised if the issuance of shares upon such
    exercise would constitute a violation of any applicable federal,
    state or foreign securities laws or other law or regulations or
    the requirements of any securities exchange or market system
    upon which the Stock may then be listed. In addition, no
    Purchase Right may be exercised unless (a) a registration
    statement under the Securities Act of 1933, as amended, shall at
    the time of exercise of the Purchase Right be in effect with
    respect to the shares issuable upon exercise of the Purchase
    Right, or (b) in the opinion of legal counsel to the
    Company, the shares issuable upon exercise of the Purchase Right
    may be issued in accordance with the terms of an applicable
    exemption from the registration requirements of said Act. The
    inability of the Company to obtain from any regulatory body
    having jurisdiction the authority, if any, deemed by the
    Company’s legal counsel to be necessary to the lawful
    issuance and sale of any shares under the Plan shall relieve the
    Company of any liability in respect of the failure to issue or
    sell such shares as to which such requisite authority shall not
    have been obtained. As a condition to the exercise of a Purchase
    Right, the Company may require the Participant to satisfy any
    qualifications that may be necessary or appropriate, to evidence
    compliance with any applicable law or regulation, and to make
    any representation or warranty with respect thereto as may be
    requested by the Company.



 




    18.  Rights
    as a Stockholder and Employee.



 



    A Participant shall have no rights as a stockholder by virtue of
    the Participant’s participation in the Plan until the date
    of the issuance of a certificate for the shares purchased
    pursuant to the exercise of the Participant’s Purchase
    Right (as evidenced by the appropriate entry on the books of the
    Company or of a duly authorized transfer agent of the Company).
    No adjustment shall be made for dividends, distributions or
    other rights for which the record date is




    

    10








 






    prior to the date such certificate is issued, except as provided
    in Section 4.2. Nothing herein shall confer upon a
    Participant any right to continue in the employ of the
    Participating Company Group or interfere in any way with any
    right of the Participating Company Group to terminate the
    Participant’s employment at any time.



 




    19.  Legends.



 



    The Company may at any time place legends or other identifying
    symbols referencing any applicable federal, state or foreign
    securities law restrictions or any provision convenient in the
    administration of the Plan on some or all of the certificates
    representing shares of Stock issued under the Plan. The
    Participant shall, at the request of the Company, promptly
    present to the Company any and all certificates representing
    shares acquired pursuant to a Purchase Right in the possession
    of the Participant in order to carry out the provisions of this
    Section. Unless otherwise specified by the Company, legends
    placed on such certificates may include but shall not be limited
    to the following:



 



    “THE SHARES EVIDENCED BY THIS CERTIFICATE WERE ISSUED BY
    THE CORPORATION TO THE REGISTERED HOLDER UPON THE PURCHASE OF
    SHARES UNDER AN EMPLOYEE STOCK PURCHASE PLAN AS DEFINED IN
    SECTION 423 OF THE INTERNAL REVENUE CODE OF 1986, AS
    AMENDED. THE TRANSFER AGENT FOR THE SHARES EVIDENCED HEREBY
    SHALL NOTIFY THE CORPORATION IMMEDIATELY OF ANY TRANSFER OF THE
    SHARES BY THE REGISTERED HOLDER HEREOF. THE REGISTERED HOLDER
    SHALL HOLD ALL SHARES PURCHASED UNDER THE PLAN IN THE REGISTERED
    HOLDER’S NAME (AND NOT IN THE NAME OF ANY NOMINEE).”



 




    20.  Notification
    of Disposition of Shares.



 



    To the extent the Company does not require that shares be
    deposited into an ESPP Brokerage Account pursuant to
    Section 12, the Company may require the Participant to give
    the Company prompt notice of any disposition of shares acquired
    by exercise of a Purchase Right. The Company may require that
    until such time as a Participant disposes of shares acquired
    upon exercise of a Purchase Right, the Participant shall hold
    all such shares in the Participant’s name (or, if elected
    by the Participant, in the name of the Participant and his or
    her spouse but not in the name of any nominee) until the later
    of two years after the date of grant of such Purchase Right or
    one year after the date of exercise of such Purchase Right. The
    Company may direct that the certificates evidencing shares
    acquired by exercise of a Purchase Right refer to such
    requirement to give prompt notice of disposition.



 




    21.  Designation
    of Beneficiary.



 



    21.1  Designation Procedure.  A
    Participant may file a written designation of a beneficiary who
    is to receive (a) shares and cash, if any, from the
    Participant’s Plan account if the Participant dies
    subsequent to a Purchase Date but prior to delivery to the
    Participant of such shares and cash or (b) cash, if any,
    from the Participant’s Plan account if the Participant dies
    prior to the exercise of the Participant’s Purchase Right.
    If a married Participant designates a beneficiary other than the
    Participant’s spouse, the effectiveness of such designation
    shall be subject to the consent of the Participant’s
    spouse. A Participant may change his or her beneficiary
    designation at any time by written notice to the Company.



 



    21.2  Absence of Beneficiary
    Designation.  If a Participant dies without an
    effective designation pursuant to Section 21.1 of a
    beneficiary who is living at the time of the Participant’s
    death, the Company shall deliver any shares or cash credited to
    the Participant’s Plan account to the Participant’s
    legal representative.



 




    22.  Notices.



 



    All notices or other communications by a Participant to the
    Company under or in connection with the Plan shall be deemed to
    have been duly given when received in the form specified by the
    Company at the location, or by the person, designated by the
    Company for the receipt thereof.




    

    11








 







    23.  Amendment
    or Termination of the Plan.



 



    23.1 The Board may at any time amend or terminate the Plan,
    except that (a) no such amendment or termination shall
    affect Purchase Rights previously granted under the Plan unless
    expressly provided by the Board and (b) no such amendment
    or termination may adversely affect a Purchase Right previously
    granted under the Plan without the consent of the Participant,
    except to the extent permitted by the Plan or as may be
    necessary to qualify the Plan as an employee stock purchase plan
    pursuant to Section 423 of the Code or to comply with any
    applicable law, regulation or rule. Any amendment to the Plan
    that would authorize the sale of more shares than are then
    authorized for issuance under the Plan or would change the
    definition of the corporations that may be designated by the
    Board as Participating Companies must be approved by the
    stockholders of the Company within twelve (12) months of
    the adoption of such amendment.



 



    23.2 Unless sooner terminated by the Board, the Plan shall
    terminate upon the earliest of (i) December 15, 2019,
    (ii) the date on which all shares available for issuance in
    the aggregate under the Plan and the International Plan shall
    have been sold pursuant to purchase rights exercised under the
    Plan and the International Plan or (iii) the date on which
    all Purchase Rights are exercised in connection with a Change in
    Control. No further purchase rights shall be granted or
    exercised, and no further payroll deductions shall be collected,
    under the Plan following such termination.



 



    IN WITNESS WHEREOF, the undersigned Secretary of the Company
    certifies that the foregoing sets forth the Finisar Corporation
    2009 Employee Stock Purchase Plan, subject to the approval of
    the stockholders at the 2009 Annual Meeting.



 



        








    Secretary




    

    12