exv10w64






Exhibit 10.64




03/09

Israel Grant




FINISAR CORPORATION

RESTRICTED STOCK UNIT ISSUANCE AGREEMENT

102 CAPITAL GAINS TRACK GRANT




     RECITALS


A. This Agreement applies only to persons who are subject to taxation by the State of Israel with
respect to Awards.



B. The Board has adopted the Plan and the Appendix — Israeli Taxpayers to the Plan (the
“Appendix”) for the purpose of attracting and retaining the services of selected employees who
provide services to a Participating Company.



C. The Participant is to render valuable services to a Participating Company and the Board has
approved the award of restricted stock units to the Participant pursuant to this Agreement.



D. Capitalized terms not otherwise defined herein shall have the meaning assigned to them in the
Plan or in the Appendix.




     NOW, THEREFORE, it is hereby agreed as follows:



          1. Grant of Restricted Stock Units. The Company hereby awards to the Participant, as
of the Award Date, an award of 102 Capital Gains Track Grant (the “Award”) of restricted stock
units under the Plan and the Appendix. Each restricted stock unit represents the right to receive
one share of Common Stock on the vesting date of that unit. The number of shares of Common Stock
subject to the awarded restricted stock units, the applicable vesting schedule for the restricted
stock units and the underlying shares, the dates on which those vested shares shall be issued and
the remaining terms and conditions governing the Award shall be as set forth in this Agreement.




          2. The Award shall be held by the Trustee and any shares under the Award shall be issued on
the Participant’s behalf to the Trustee under the provisions of the 102 Capital Gains Track and
will be held by the Trustee for the period stated in Section 102 and the Rules.




AWARD SUMMARY




	 	 	 
	Award Date:

	 	__________________
	Participant:

	 	__________________
	Number of Shares 

	 	*** shares of Common Stock (the “Shares”)
	Subject to Award:
	 	 
	Vesting Schedule: 

	 	The Participant shall vest with respect to the
Shares as follows: *********** (the “Vesting
Schedule”). The Shares may vest on an
accelerated basis prior to these vesting dates
in accordance with the provisions of
Paragraphs 3 and 4 of this Agreement. In no
event shall any Shares vest after the date of
the Participant’s termination of Service.






 









 






	 	 	 
	Issuance Dates:

	 	Each Share in which the Participant vests in
accordance with the foregoing Vesting Schedule
shall be issued on the date (the “Issuance
Date”) on which that Share so vests or as soon
thereafter as administratively practicable,
but in no event later than
********************.






          3. Limited Transferability. Prior to actual receipt of the Shares which vest and
become issuable hereunder, and subject to the Required Holding Period, the Participant may not
transfer any interest in the Award or the underlying Shares. Any Shares which vest hereunder but
which otherwise remain unissued at the time of the Participant’s death may be transferred pursuant
to the provisions of the Participant’s will or the laws of descent and distribution, subject to
receiving a written consent by the transferee to pay any amounts payable in connection with the
Shares according to the provisions of the Plan and the Appendix and otherwise abide by all the
terms of the Plan.




          4. Cessation of Service.




               (a) Except to the extent otherwise provided in Paragraph 3(b) below, should the Participant
cease Service for any reason prior to vesting in one or more Shares subject to this Award, then the
Award will be immediately cancelled with respect to those unvested Shares, and the number of
restricted stock units will be reduced accordingly. The Participant shall thereupon cease to have
any right or entitlement to receive any Shares under those cancelled units.



               (b) Should the Participant cease Service as a result of a Termination After Change in Control,
then the Participant shall immediately, upon the date of such cessation, fully vest in the Award.
The Shares subject to those vested units will be issued on the Issuance Date triggered by the
termination.



          5. Change in Control.




               (a) Any restricted stock units subject to this Award at the time of a Change in Control may be
assumed by the surviving, continuing, successor or purchasing corporation or parent thereof (the
“Acquiring Corporation”) or substituted with a substantially equivalent award for the Acquiring
Corporation’s stock. In the event the restricted stock units are not to be so assumed or
substituted, then the Participant shall fully vest in the Award immediately prior to the effective
date of the Change in Control. The Shares subject to those vested units will be issued on the
Issuance Date triggered by the Change in Control.



               (b) In the event this Award is assumed, the Restricted Stock Units subject to the Award shall
be adjusted immediately after the consummation of the Change in Control so as to apply to the
number and class of securities into which the Shares subject to those units immediately prior to
the Change in Control would have been converted in consummation of that Change in Control had those
Shares actually been issued and outstanding at that time.



               (c) This Agreement shall not in any way affect the right of the Company to adjust, reclassify,
reorganize or otherwise change its capital or business structure or



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to merge, consolidate, dissolve, liquidate or sell or transfer all or any part of its business
or assets.




          6. Adjustment in Shares. In the event of any stock dividend, stock split, reverse
stock split, recapitalization, combination, reclassification, or other similar change in the
capital structure of the Company, appropriate adjustments shall be made to the total number and/or
class of securities issuable pursuant to this Award. The adjustments shall be made by the Board in
such manner as the Board deems appropriate and such adjustments shall be final, binding and
conclusive.




          7. Issuance of Shares of Common Stock.




               (a) On the Issuance Date or as soon thereafter as practicable, the Company shall issue to the
Trustee on behalf of the Participant a certificate (which may be in electronic form) for the number
of shares of Common Stock underlying the restricted stock units which vest under the Award on such
date.



               (b) At the earlier of the time the Award or the vested Shares are sold or withdrawn from the
Trustee, the Company shall withhold from payroll and any other amounts payable to the Participant
any sums required to satisfy the withholding obligations of the Participating Company Group, if
any, which arise in connection with the Award.



               (c) In no event will any fractional shares be issued.



               (d) The holder of this Award shall not have any stockholder rights, including voting or
dividend rights, with respect to the Shares subject to the Award until the Trustee on behalf of the
Participant becomes the record holder of those Shares following their actual issuance.



          8. Compliance with Laws and Regulations.




               (a) The issuance of shares of Common Stock pursuant to the Award shall be subject to
compliance by the Company and the Participant with all applicable requirements of law relating
thereto and with all applicable regulations of any stock exchange (or the NASDAQ Stock Market, if
applicable) on which the Common Stock may be listed for trading at the time of such issuance.



               (b) The inability of the Company to obtain approval from any regulatory body having authority
deemed by the Company to be necessary to the lawful issuance of any Common Stock hereby shall
relieve the Company of any liability with respect to the non-issuance of the Common Stock as to
which such approval shall not have been obtained. The Company, however, shall use its best efforts
to obtain all such approvals.



          9. Successors and Assigns. Except to the extent otherwise provided in this Agreement,
the provisions of this Agreement shall inure to the benefit of, and be binding upon, the Company
and its successors and assigns and the Participant, the Participant’s assigns, the



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legal representatives, heirs and legatees of the Participant’s estate and any beneficiaries of
the Award designated by the Participant.




          10. Notices. Any notice required to be given or delivered to the Company under the
terms of this Agreement shall be in writing and addressed to the Company at its principal corporate
offices. Any notice required to be given or delivered to the Trustee shall be in writing and
addressed to the Trustee at its principal corporate offices. Any notice required to be given or
delivered to the Participant shall be in writing and addressed to the Participant at the address
indicated below Participant’s signature line on this Agreement. All notices shall be deemed
effective upon personal delivery or upon deposit in the U.S. mail, postage prepaid and properly
addressed to the party to be notified.




          11. Construction. This Agreement and the Award evidenced hereby are made and granted
pursuant to the Plan and the Appendix and are in all respects limited by and subject to the terms
of the Plan and the Appendix. All decisions of the Board with respect to any question or issue
arising under the Plan, the Appendix or this Agreement shall be conclusive and binding on all
persons having an interest in the Award.




          12. Governing Law. The interpretation, performance and enforcement of this Agreement
shall be governed by the laws of the State of Israel.




          13. Employment at Will. Except as may otherwise be set forth in the Participant’s
employment agreement, nothing in this Agreement, the Plan or in the Appendix shall confer upon the
Participant any right to continue in service for any period of specific duration or interfere with
or otherwise restrict in any way the rights of the Company (or any Parent Corporation or Subsidiary
Corporation employing or retaining the Participant) or of the Participant, which rights are hereby
expressly reserved by each, to terminate the Participant’s service at any time for any reason, with
or without cause, subject to compliance with local law and the terms of any employment agreement.




          14. Income Taxation. The Award is intended to be a 102 Capital Gains Track Grant.
The Participant hereby acknowledges and agrees as follows:




               (a) The Participant understands the provisions of Section 102 and the applicable tax track of
this grant.



               (b) The Participant agrees to the terms and conditions of the Trust Agreement.



               (c) Subject to the provisions of Section 102, the Participant confirms that the Participant
shall not sell nor transfer the Award or the Shares from the Trustee until the end of the Required
Holding Period.



               (d) If the Participant sells or withdraws the shares of Common Stock from the Trust before the
end of the Required Holding Period as defined in Section 102 (“Violation”), either (A) the
Participant shall reimburse the Company within three (3) days of its



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demand for the employer portion of the payment by the Company to the National Insurance
Institute plus linkage and interest in accordance with the law, as well as any other expense that
the Company shall bear as a result of the said Violation or (B) the Participant agrees that the
Company may, in its sole discretion, deduct such amounts directly from any amounts to be paid to
the Participant as a result of his or her disposition of the Shares.




               (e) The Participant understands that this grant is conditioned upon the receipt of all
required approvals from the tax authorities.



               (f) All tax consequences under any applicable law which may arise from the grant of the Award,
from the holding or sale of the Shares by or on behalf of the Participant, shall be borne solely by
the Participant. The Participant shall indemnify the Company and/or Affiliate and/or Trustee, as
the case may be, and hold them harmless, against and from any liability for any such tax or any
penalty, interest or indexing. 



          15. Nature of Grant; No Entitlement; No Claim for Compensation. In accepting the
grant of this Award for the number of Shares as specified above, the Participant acknowledges the
following:




               (a) The Plan and the Appendix are established voluntarily by the Company, it is discretionary
in nature and may be modified, amended, suspended or terminated by the Company at any time.



               (b) The grant of this Award is voluntary and occasional and does not create any contractual or
other right to receive future grants of awards, or benefits in lieu of awards, even if awards have
been granted repeatedly in the past.



               (c) All decisions with respect to future awards, if any, will be at the sole discretion of the
Board.



               (d) The Participant is voluntarily participating in the Plan.



               (e) This Award is an extraordinary item that does not constitute compensation of any kind for
services of any kind rendered to a Participating Company (including, as applicable, the
Participant’s employer) and which is outside the scope of the Participant’s employment contract, if
any.



               (f) This Award is not part of the Participant’s normal or expected compensation or salary for
any purpose, including, but not limited to, calculating any severance, resignation, termination,
redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits
or similar payments.



               (g) In the event that the Participant’s employer is not the Company, the grant of the Award
will not be interpreted to form an employment contract or relationship with the Company and,
furthermore, the grant of the Award will not be interpreted to form an



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employment contract with the Participant’s employer or any Parent Corporation or Subsidiary
Corporation.




               (h) The future value of the underlying Shares is unknown and cannot be predicted with
certainty.



               (i) In consideration of the grant of this Award, no claim or entitlement to compensation or
damages shall arise from termination of the Award or diminution in value of the Award or any of the
Shares issuable under the Award from termination of the Participant’s employment by the Company or
the Participant’s employer, as applicable (and for any reason whatsoever and whether or not in
breach of contract or local labor laws), and the Participant irrevocably releases the Participant’s
employer, the Company and its Parent Corporations and Subsidiary Corporations, as applicable, from
any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a
court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant
shall be deemed to have irrevocably waived his or her entitlement to pursue such claim.



          16. Data Privacy.




               (a) The Participant hereby explicitly and unambiguously consents to the collection, use and
transfer, in electronic or other form, of the Participant’s personal data as described in this
Agreement by and among, as applicable, the Company and its Parent Corporations and Subsidiary
Corporations for the exclusive purpose of implementing, administering and managing the
Participant’s participation in the Plan.



               (b) The Participant understands that the Company and its Parent Corporations and Subsidiary
Corporations, as applicable, hold certain personal information about the Participant regarding his
or her employment, the nature and amount of the Participant’s compensation and the fact and
conditions of the Participant’s participation in the Plan, including, but not limited to, the
Participant’s name, home address and telephone number, date of birth, social insurance number or
other identification number, salary, nationality, job title, any shares of stock or directorships
held in the Company and its Parent Corporations and Subsidiary Corporations, details of all
options, awards or any other entitlement to shares of stock awarded, canceled, exercised, vested,
unvested or outstanding in the Participant’s favor, for the purpose of implementing, administering
and managing the Plan (the “Data”). The Participant understands that the Data may be transferred
to the Trustee and any third parties assisting in the implementation, administration and management
of the Plan, that these recipients may be located in the Participant’s country, or elsewhere, and
that the recipient’s country may have different data privacy laws and protections than the
Participant’s country. The Participant understands that the Participant may request a list with
the names and addresses of any potential recipients of the Data by contacting his or her local
human resources representative. The Participant authorizes the recipients to receive, possess,
use, retain and transfer the Data, in electronic or other form, for the purposes of implementing,
administering and managing the Participant’s participation in the Plan, including any requisite
transfer of such Data as may be required to a broker or other third party. The



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Participant understands that the Data will be held only as long as is necessary to implement,
administer and manage the Participant’s participation in the Plan. The Participant understands
that he or she may, at any time, view the Data, request additional information about the storage
and processing of the Data, require any necessary amendments to the Data or refuse or withdraw the
consents herein, in any case without cost, by contacting in writing the Participant’s local human
resources representative. The Participant understands, however, that refusing or withdrawing his
or her consent may affect the Participant’s ability to participate in the Plan. For more
information on the consequences of refusal to consent or withdrawal of consent, the Participant
understands that the Participant may contact his or her local human resources representative.




          17. Electronic Delivery. The Company may deliver any documents related to the Award,
the Plan, the Appendix or future awards that may be granted under the Plan or the Appendix by
electronic means. Such means of electronic delivery include, but do not necessarily include, the
delivery of a link to a Company intranet or the internet site of a third party involved in
administering the Plan, the Appendix, the delivery of the documents via e-mail or such other means
of electronic delivery specified by the Company. The Participant hereby acknowledges that the
Participant has read this provision and consents to the electronic delivery of the documents. The
Participant acknowledges that the Participant may receive from the Company a paper copy of any
documents delivered electronically at no cost to the Participant by contacting the Company by
telephone or in writing. The Participant further acknowledges that the Participant will be
provided with a paper copy of any documents if the attempted electronic delivery of such documents
fails. Similarly, the Participant understands that the Participant must provide the Company with a
paper copy of any documents if the attempted electronic delivery of such documents fails.




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     IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first indicated
above.



	 	 	 	 	 
	 	FINISAR CORPORATION

 	 
	 	By:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	PARTICIPANT

 	 
	 	Signature: 	 	 
	 	 	Name:  	 	 
	 	 	Address: 	 	 
	 	 	 	 	 
	 






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APPENDIX A




DEFINITIONS



The following definitions shall be in effect under the Agreement:




          A. Agreement shall mean this Restricted Stock Unit Issuance Agreement.




          B. Award shall mean the award of restricted stock units made to the Participant
pursuant to the terms of the Agreement.




          C. Award Date shall mean the date the restricted stock units are awarded to the
Participant pursuant to the Agreement and shall be the date indicated in Paragraph 1 of the
Agreement.




          D. Board shall mean the Company’s Board of Directors and any committee of the Board
appointed to administer the Plan.




          E. Cause shall mean any of the following: (i) the Participant’s theft, dishonesty, or
falsification of any Participating Company documents or records; (ii) the Participant’s improper
use or disclosure of a Participating Company’s confidential or proprietary information; (iii) any
action by the Participant which has a detrimental effect on a Participating Company’s reputation or
business; (iv) the Participant’s failure or inability to perform any reasonable assigned duties
after written notice from a Participating Company of, and a reasonable opportunity to cure, such
failure or inability; (v) any material breach by the Participant of any employment agreement
between the Participant and a Participating Company, which breach is not cured pursuant to the
terms of such agreement; or (vi) the Participant’s conviction (including any plea of guilty or nolo
contendere) of any criminal act which impairs the Participant’s ability to perform his or her
duties with a Participating Company.




          F. Change in Control shall mean an Ownership Change Event or a series of related
Ownership Change Events (collectively, a “Transaction”) wherein the stockholders of the Company
immediately 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 securities of the
Company or, in the case of a sale, exchange or transfer of all or substantially all of the assets
of the Company, the corporation or other business entity to which the assets of the Company were
transferred (the “Transferee”), 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 securities of one or more corporations or other business entities which, as
a result of the Transaction, own the Company or the Transferee, as the case may be, either directly
or through one or more subsidiary corporations or other business entities. The Board shall have
the right to determine whether multiple sales or exchanges of the voting securities of the Company
or multiple Ownership Change Events are related, and its determination shall be final, binding and
conclusive.




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          G. Code shall mean the Internal Revenue Code of 1986, as amended.




          H. Common Stock shall mean shares of the Company’s common stock.




          I. Company shall mean Finisar Corporation, a Delaware corporation, and any successor
corporation.




          J. Director shall mean a member of the Board or of the board of directors of any other
Participating Company.




          K. Employee shall mean any person treated as an employee (including an officer or a
Director who is also treated as an employee) in the records of a Participating Company; provided,
however, that neither service as a Director nor payment of a director’s fee shall be sufficient to
constitute employment for purposes of the Plan.




          L. Exchange Act shall mean the Securities Exchange Act of 1934, as amended.




          M. Fair Market Value per share of Common Stock, as of any date, shall mean the value
of a share of Common Stock as determined by the Board, in its discretion, or by the Company, in its
discretion, if such determination is expressly allocated to the Company herein, subject to the
following:





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




          (ii) If, on such date, the Common Stock is not listed on a national or regional
securities exchange or market system, the Fair Market Value of a share of Common
Stock shall be as determined by the Board in good faith without regard to any
restriction other than a restriction which, by its terms, will never lapse.



          N. Good Reason shall mean any one or more of the following that occurs without the
Participant’s consent:





          (i) a material diminution in the Participant’s authorities, duties, or
responsibilities compared to the Participant’s authorities, duties or



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responsibilities with the Participating Company Group immediately prior to the
date of the Change in Control;




          (ii) a material change in the location of the principle place of the
Participant’s Service (for this purpose a location that is more than fifty (50)
miles from the Participant’s principal place of Service immediately prior to the
date of the Change in Control shall be deemed to be material); or




          (iii) a material reduction by the Participating Company Group of the
Participant’s base salary in effect immediately prior to the date of the Change in
Control (unless reductions comparable in amount and duration are concurrently made
for all other employees of the Participating Company Group with responsibilities,
organizational level and title comparable to the Participant’s);



     provided, however, that none of the events specified above shall constitute grounds for Good
Reason unless the Participant shall have notified the Participating Company employing the
Participant in writing describing the event which constitutes grounds for Good Reason within sixty
(60) days following the occurrence of such event and the Participating Company shall have failed to
cure such event within thirty (30) days after the Participating Company’s receipt of such written
notice in which case the Participant’s employment shall terminate upon expiration of such thirty
(30)-day cure period.



          O. 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.




          P. Parent Corporation shall mean any present or future “parent corporation” of the
Company as defined in Section 424(e) of the Code.




          Q. Participant shall mean the person to whom the Award is made pursuant to the
Agreement.




          R. Participating Company shall mean the Company or any Parent Corporation or
Subsidiary Corporation.




          S. Participating Company Group shall mean, at any point in time, all corporations
collectively which are then Participating Companies.




          T. Plan shall mean the Company’s 2005 Stock Incentive Plan.




          U. Service shall mean the Participant’s employment or service with the Participating
Company Group, whether in the capacity of an Employee or a Director. The Participant’s Service
shall not be deemed to have terminated merely because of a change in the capacity in which the
Participant renders Service to the Participating Company Group or a



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change in the Participating Company for which the Participant renders such Service, provided
that there is no interruption or termination of the Participant’s Service. Furthermore, the
Participant’s Service with the Participating Company Group shall not be deemed to have terminated
if the Participant takes any military leave, sick leave, or other bona fide leave of absence
approved by the Company. Notwithstanding the foregoing, unless otherwise designated by the Company
or required by law, a leave of absence shall not be treated as Service for purposes of determining
the Participant’s vested Shares. The Participant’s Service shall be deemed to have terminated
either upon an actual termination of Service or upon the corporation for which the Participant
performs Service ceasing to be a Participating Company. The Participant’s period of Service shall
not include any period of notice of termination of employment, whether expressed or implied, and
shall be determined solely by this Agreement and without reference to any other agreement, written
or oral, including the Participant’s contract of employment. Subject to the foregoing, the
Company, in its discretion, shall determine whether the Participant’s Service has terminated and
the effective date of such termination.




          V. Subsidiary Corporation shall mean any present or future “subsidiary corporation” of
the Company as defined in Section 424(f) of the Code.




          W. Termination After Change in Control shall mean either of the following events
occurring upon or within twelve (12) months after a Change in Control:





          (i) termination by the Participating Company Group of the Participant’s Service
for any reason other than for Cause; or




          (ii) the Participant’s resignation for Good Reason from all capacities in which
the Participant is then rendering Service.


Notwithstanding any provision herein to the contrary, Termination After Change in Control shall not
include any termination of the Participant’s Service with the Participating Company Group which (1)
is for Cause; (2) is a result of the Participant’s death or disability; (3) is a result of the
Participant’s voluntary termination of Service other than for Good Reason; or (4) occurs prior to
the effectiveness of a Change in Control.





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