Exhibit 10.17


 


THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH
RULE 144 UNDER SUCH ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY STATING THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.


 


AMENDED AND RESTATED CONVERTIBLE PROMISSORY NOTE


 


	
  $16,450,536

  	
   

  	
  March 21, 2008

  



 


Finisar
Corporation, a Delaware corporation (the “Company”), for value received,
promises and agrees to pay to Parviz Tayebati (“Holder”) the principal
sum of Sixteen Million Four Hundred Fifty Thousand Five Hundred and Thirty-six
Dollars ($16,450,536), together with interest on the outstanding principal
balance of this Amended and Restated Convertible Promissory Note (this “Note”)
at the rate of twelve percent (12.0%) per annum. This Note is issued pursuant
to that Purchase Agreement dated as of March 23, 2007 to which Company and
Holder are parties (the “Purchase Agreement”). This Note amends,
restates and replaces the Convertible Promissory Note ($15,592,926) dated as of
March 26, 2007 made by the Company to Holder (the “Prior Note”).
This Note is not intended to be and shall not be construed as a novation of the
indebtedness evidenced by the Prior Note.


 


1.                                       Definitions. As used in this Note, the following terms shall have the definitions
ascribed to them below:


 


1.1.          “Commission” means the United States Securities and Exchange Commission.


 


1.2.          “Common Stock” means the common stock, $0.001 par value, of the Company,
and any securities into which such common stock may hereafter be classified.


 


1.3.          “Conversion Shares” means any shares of Common Stock issued upon
the conversion, in whole or in part, of
this Note.


 


1.4.          “Maturity Date” shall be September 22, 2008.


 


1.5.          “Securities Act” means the Securities Act of 1933, as amended.


 


1.6.          “Trading Day”
means a day on which trading
occurs on the NNM (or any successor thereto).


 

















 


2.             Payments.


 


2.1.          Initial Payment. On March 26, 2008, the Company shall
pay to the Holder cash in the amount of Four Million Five Hundred Thirty Three
Thousand Six Hundred and Twelve Dollars ($4,533,612) (the “Initial Payment”).


 


2.2.          Second Payment. On June 20, 2008 (the “Second
Payment Date”), the Company shall pay to the Holder an amount equal to Five
Million Nine Fifty Eight Thousand Four Hundred and Sixty Two Dollars
($5,958,462), together with all accrued but unpaid interest on this Note
through such date (the “Second Payment”). The Company may make the
Second Payment in cash, shares of Common Stock, or a combination of cash and
shares of Common Stock, in the Company’s sole discretion; provided, however,
that there must then be an effective Registration Statement filed by the
Company with the Commission covering such shares of Common Stock; and provided
further, that all accrued interest shall be paid in cash. The maximum number of
shares of Common Stock which may be issued pursuant to the Second Payment shall
not exceed Three Million Four Hundred Thousand (3,400,000) shares. Subject to
the foregoing, in the event the Company elects to make all or a portion of the
Second Payment in shares of Common Stock, the Holder shall be entitled to
receive that number of shares of Common Stock equal to that portion of the
Second Payment which is to be converted into shares of Common Stock divided by
the average closing trading price per share of the Common Stock on the Nasdaq
National Market (“NNM”) for the five (5) Trading Days ending two (2) days
prior to the Second Payment Date.


 


2.3.          Final Payment. The remaining outstanding principal balance
of and all accrued but unpaid interest on this Note shall be due and payable on
the Maturity Date (the “Final Payment”). The Company may make the Final
Payment in cash, shares of Common Stock, or a combination of cash and shares of
Common Stock, in the Company’s sole discretion; provided, however, that there
must then be an effective Registration Statement filed by the Company with the
Commission covering such shares of Common Stock; and provided further, that all
accrued interest shall be paid in cash. The maximum number of shares of Common
Stock which may be issued pursuant to the Final Payment shall not exceed Three
Million Four Hundred Thousand (3,400,000) shares. Subject to the foregoing, in
the event the Company elects to make all or a portion of the Final Payment in
shares of Common Stock, the Holder shall be entitled to receive that number of
shares of Common Stock equal to that portion of the Final Payment which is to
be converted into shares of Common Stock divided by the average closing trading
price per share of the Common Stock on the NNM for the five (5) Trading
Days ending two (2) days prior to the Maturity Date.


 


2.4.          Prepayment. The Company shall have the right at any time and without premium or
penalty to prepay this Note, in whole or in part, in cash on or prior to the
Maturity Date.


 


2.5.          Interest. The Company shall pay interest to the Holder on the outstanding principal
balance of this Note at the rate of twelve percent (12.0%) per annum,
calculated on the basis of a 365-day year and shall accrue daily commencing on March 26,
2008.


 


2.6.          Currency. All payments shall be in lawful money of the United States of America.


 


2

















 


2.7.          Issuance of Conversion Shares. The Company shall, at its election, either (1) cause
a certificate or certificates representing the Conversion Shares to be issued
in the name of Holder and delivered to the Holder by nationally recognized
overnight delivery service within two (2) business days following any
conversion of all or a portion of this Note, or (2) cause an electronic
issuance of the Conversion Shares to the Holder by the DWAC (Deposit and
Withdrawal At Custodian) service.


 


2.8.          Fractional Shares. No fractional shares shall be issued upon
conversion of this Note and the value of any fractional shares issuable upon
such conversion shall be paid by the Company to the Holder in cash.


 


2.9.          Satisfaction of Obligations. Upon payment of the entire principal amount
of and accrued interest on this Note, whether in cash or in a combination of
cash and Conversion Shares in accordance with the provisions of this Section 2, the Company shall be forever released from all obligations and
liabilities hereunder.


 


3.             Default.


 


3.1.          Events of Default. The occurrence of either of the following
events shall constitute an “Event of Default” hereunder:


 


(a)           any failure by the Company to pay any amount payable in cash hereunder,
in accordance with the terms hereof, which default is not cured within ten (10) business
days following written notice thereof from the Holder; or


 


(b)           any failure by the Company to issue any securities issuable hereunder,
in accordance with the terms hereof.


 


3.2.          Remedies. During the continuance of an Event of Default, Holder shall have the
right to (i) accelerate the payment of the Remaining Principal Balance
hereunder, and (ii) enforce this Note by exercise of the rights and
remedies granted to it by applicable law. The Company shall pay all costs and
expenses, including, without limitation, reasonable attorneys’ fees and court
costs, incurred or expended by the Holder in enforcing or collecting this Note
as a result of an Event of Default or the protection or prescription of any
rights of Holder hereunder. The Company hereby waives demand, notice,
presentment, protest and notice of dishonor, diligence in collection and notice
of intent to accelerate maturity.


 


3.3.          Waiver; Cumulative Remedies. No course of dealing or any delay or failure
to exercise any right hereunder on the Holder’s part shall operate as a waiver
of such right or otherwise prejudice the Holder’s rights, powers or remedies.
No single or partial waiver by the Holder of any provision of this Note or of
any breach or default hereunder or of any right or remedy shall operate as a
waiver of any other provision, breach, default right or remedy or of the same
provision, breach, default, right or remedy on a future occasion. The Holder’s
rights and remedies are cumulative and are in addition to all rights and
remedies which the Holder may have in law or in equity or by statute or
otherwise; provided, however, that the Holder acknowledges that the
indemnification remedy provided in Section 9.4 of the Purchase Agreement
shall not be available to the Holder as a right or remedy for the Company’s
breach or default hereunder.


 


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4.           Amendments. This Note may not be amended or modified, nor may any of its terms be
waived, except by written instruments signed by the Company and the Holder and
then only to the extent set forth therein.


 


5.           Severability. If any provision of this Note is determined
to be invalid, illegal or unenforceable, in whole or in part, the validity,
legality and enforceability of any of the remaining provisions or portions of
this Note shall not in any way be affected or impaired thereby.


 


6.           Notices. Any notice or other communication required or desired to be given
hereunder shall be in the form and manner specified below, and shall be addressed
to the party to be notified as follows:


 


	
   

  	
   

  	
  If
  to Holder:

  	
   

  	
  Parviz
  Tayebati

  
	
   

  	
   

  	
   

  	
   

  	
  2
  Avery Street, 27E 

  Boston, MA 02111

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with
  copy to:

  	
   

  	
  Mintz,
  Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

  
	
   

  	
   

  	
   

  	
   

  	
  One
  Financial Center 

  Boston, MA 02111 

  Telecopy (617) 542-2241

  
	
   

  	
   

  	
   

  	
   

  	
  Attn:
  Stanley A. Twarog, Esq.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If
  to the Company:

  	
   

  	
  Finisar
  Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  1389
  Moffett Park Drive 

  Sunnyvale, CA 94089

  
	
   

  	
   

  	
   

  	
   

  	
  Attn:
  Chief Financial Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telecopy:

  	
   

  	
  (408)
  541-4154

  



 


or
to such other address as each party designates to the other by notice in the
manner herein prescribed. Notice shall be deemed given hereunder if (i) delivered
personally or otherwise actually received, (ii) sent by overnight delivery
service, (iii) mailed by first-class United States mail, postage prepaid,
registered or certified, with return receipt requested, or (iv) transmitted
by facsimile transmission (and confirmed by a copy delivered in accordance with
clauses (i), (ii) or
(iii). Notice mailed as provided in clause (iii) above shall be effective
upon the expiration of three (3) business days after its deposit in the
United States mail. Notice given in any other manner described in this section
shall be effective upon receipt by the addressee thereof; provided, however,
that if any notice is tendered to an addressee and delivery thereof is refused
by such addressee, such notice shall be effective upon such tender unless
expressly set forth in such notice.


 


7.           Replacement. Upon the Company’s receipt of reasonably satisfactory evidence of the
loss, theft, destruction or mutilation of this Note and (i) in the case of
any such loss theft or destruction, upon delivery of indemnity reasonably
satisfactory to the Company in form and amount, or (ii) in the case of any
such mutilation, upon surrender of this Note for cancellation, the Company, at
its expense, shall execute and deliver, in lieu thereof, a new Note.


 


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8.          Legal Fees. In the event of any
legal action to enforce the rights of the Holder or the Company, the party
prevailing in such action shall be entitled, in addition to such other relief
as may be granted, all reasonable costs and expenses, including reasonable
attorneys’ fees, incurred in such action.


 


9.          Assignment. Neither this Note nor
any of the rights, interests or obligations hereunder may be assigned, by
operation of law or otherwise, in whole or in part, by the Company, without the
prior written consent of the Holder, or by the Holder, without the prior
written consent of the Company, which consent shall not be unreasonably
withheld.


 


10.        No Rights as Stockholder. This Note, as such,
shall not entitle the Holder to any rights as a stockholder of the Company.


 


11.        Headings. The descriptive headings in this Note are
inserted for convenience only and do not constitute a part of this Note.


 


12.        Governing Law. The validity, meaning and effect of this
Note shall be determined in accordance with the laws of the State of Delaware,
without regard to principles of conflicts of law.


 


13.        Binding Effect. This Note shall be binding upon, and shall
inure to the benefit of, the Company and the Holder and their respective
successors and assigns.


 


14.        Time. Time is of the essence hereunder.


 


[SIGNATURE PAGE FOLLOWS]


 


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IN
WITNESS WHEREOF, the Company has duly caused this Note to be signed in its name
and on its behalf by its duly authorized officer as of the date hereinabove
written.


 


	
   

  	
  FINISAR
  CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jerry Rawls

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   Jerry Rawls

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  CEO

  
				



 


 


	
  AGREED
  AND ACCEPTED:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Parviz
  Tayebati

  	
   

  
	
  PARVIZ
  TAYEBATI

  	
   

  



 


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