EMCORE CORP. FY'05 10-K EX-10.15 EXCHANGE AGREEMENT
Published on December 14, 2005
Exhibit
10.15
EXCHANGE
AGREEMENT
dated
as of November 10, 2005
by
and between
EMCORE
CORPORATION
and
ALEXANDRA
GLOBAL MASTER FUND LTD.
EMCORE
CORPORATION
EXCHANGE
AGREEMENT
TABLE
OF CONTENTS
1. Definitions.
2. Agreement
to Exchange; Exchange Value.
(a) Agreement
to Exchange.
(b) Closing.
3. Representations,
Warranties, Covenants, Etc. of the Holder.
(a) Ownership
of Securities.
(b) Authority.
(c) Investment
Representations.
(1) The
Holder Bears Economic Risk.
(2) Acquisition
for Own Account.
(3) Qualified
Institutional Buyer.
(4) The
Holder Can Protect Its Interest.
(5) Company
Information.
(6) Residence.
(7) Foreign
Investors.
(8) Transfer
Restrictions.
(d) Non−Affiliate
Status.
(e) Tax
Advice.
4. Representations,
Warranties, Covenants, Etc. of the Company.
(a) Organization
and Authority.
(b) Concerning
the Conversion Shares.
(c) Authorization
and Binding Obligations of the Agreement.
(d) Authorization
and Binding Obligations of the New Note Indenture.
(e) Authorization
and Binding Obligations of the New Notes.
(f) Non-contravention.
(g) Approvals,
Filings, Etc.
(h) Absence
of Certain Proceedings.
(i) Absence
of Brokers, Finders, Etc.
(j) Certain
Securities Law Matters.
(k) Trust
Indenture Act.
(l) No
Integrated Offering.
(m) No
Event
of Default.
5. Certain
Covenants.
(a) Covenants
by the Company.
(1) Exchange
with Holders of Other Debentures.
(2) Principal
Market Listing; Reporting Status.
(3) PORTAL
Eligibility.
(b) Settlement
of Interest on the Existing Notes.
6. Conditions
to the Company’s Obligation to Exchange.
7. Conditions
to the Holder’s Obligations to Exchange.
8. Indemnification
and Contribution.
(a) Indemnification.
(b) Contribution.
(c) Other
Rights.
9. Miscellaneous.
(a) Governing
Law.
(b) Headings.
(c) Severability.
(d) Notices.
(e) Counterparts.
(f) Entire
Agreement; Benefit.
(g) Waiver.
(h) Amendment.
(i) Best
Efforts.
(j) Further
Assurances.
(k) Expenses.
(l) Termination.
(m) Survival.
(n) Public
Statements, Press Releases, Etc.
(o) Construction.
ANNEXES
ANNEX
I
Form
of
Opinion of Holder Counsel to be Delivered on the Closing Date
ANNEX
II Form
of
Opinion of Company Counsel to be Delivered on the Closing Date
ANNEX
III Form
of Opinion of
General Counsel to be Delivered on the Closing Date
EXCHANGE
AGREEMENT
THIS
EXCHANGE AGREEMENT,
dated as
of November 10, 2005 (this “Agreement”), by and between EMCORE
CORPORATION,
a New
Jersey corporation (the “Company”), and ALEXANDRA
GLOBAL MASTER FUND LTD., a
British
Virgin Islands international business company (the “Holder”).
W I T N E S S E T H:
WHEREAS,
the
Holder currently holds beneficial interests in an aggregate of $14,425,000
principal amount of Existing Notes (such capitalized term and all other
capitalized terms used in this Agreement having the meanings provided in
Section
1);
WHEREAS,
upon
the terms and subject to the conditions of this Agreement, the Holder wishes
to
exchange the Existing Notes with the Company for New Notes, and the Company
wishes to issue New Notes to the Holder in exchange for the Existing Notes;
and
WHEREAS,
the
parties hereto intend that the New Notes to be issued in exchange for the
Existing Notes be exempt from registration pursuant to Section 4(2) of the
1933
Act and Rule 506 of Regulation D thereunder;
NOW
THEREFORE,
in
consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) As
used
in this Agreement, the terms “Agreement”, “Company” and “Holder” shall have the
respective meanings assigned to such terms in the introductory paragraph
of this
Agreement.
(b) All
the
agreements or instruments herein defined shall mean such agreements or
instruments as the same may from time to time be supplemented or amended
or the
terms thereof waived or modified to the extent permitted by, and in accordance
with, the terms thereof and of this Agreement.
(c) The
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms
defined):
“Claims”
means any losses, claims, damages, liabilities or expenses (joint or several),
incurred by a Person.
“Closing
Date” means 12:00 noon, New York City time, on November 16, 2005 or such other
mutually agreed to time.
“Common
Stock” means the Common Stock, no par value per share, of the
Company.
“Common
Stock Equivalents” means any warrant, option, subscription or purchase right
with respect to shares of Common Stock, any security convertible into,
exchangeable for, or otherwise entitling the holder thereof to acquire, shares
of Common Stock or any warrant, option, subscription or purchase right with
respect to any such convertible, exchangeable or other security.
“Conversion
Shares” means the shares of Common Stock issuable or issued upon conversion of
the New Notes.
“DTC”
means The Depository Trust Company.
“Excess
Interest Payment” shall have the meaning provided in Section 5(b).
“Existing
Notes” means $14,425,000.00 aggregate principal amount of the Company’s 5%
Convertible Subordinated Debentures due May 15, 2006, owned
by
the Holder and registered in the name of the Holder or its nominee.
“Existing
Note Indenture” means the Indenture, dated as of May 7, 2001, between the
Company and Wilmington Trust Company, as Trustee, relating to the Company’s 5%
Convertible Subordinated Debentures due May 15, 2006.
“Indemnified
Person” means the Holder and each of its affiliates
and their respective officers, directors, stockholders and members and each
Person who controls the Holder within the meaning of the 1933 Act or the
1934
Act.
“Interest
Payment” shall have the meaning provided in Section 5(b).
“NASD”
means the National Association of Securities Dealers, Inc.
“New
Note
Indenture” means the Indenture, dated as of November 16, 2005, between the
Company and Deutsche Bank Trust Company Americas, as Trustee, relating to
the
New Notes.
“New
Notes” means the $16,580,460 aggregate principal amount of the Company’s 5%
Convertible Senior Subordinated Notes due 2011 in substantially the form
set
forth in the New Note Indenture.
“1934
Act” means the Securities Exchange Act of 1934, as amended.
“1939
Act” means the Trust Indenture Act of 1939, as amended.
“1933
Act” means the Securities Act of 1933, as amended.
“Person”
means any natural person, corporation, partnership, limited liability company,
trust, incorporated organization, unincorporated association, or similar
entity
or any government, governmental agency or political subdivision.
“PORTAL”
means the Private Offerings, Resales and Trading through Automated Linkages
system of the NASD.
“Principal
Market” means the Nasdaq National Market or such other U.S. market or exchange
which is the principal market on which the Common Stock is then listed for
trading.
“Rule
144” means Rule 144 under the 1933 Act or any other similar rule or regulation
of the SEC that may at any time provide a “safe harbor” exemption from
registration under the 1933 Act so as to permit a holder of any securities
to
sell securities of the Company to the public without registration under the
1933
Act.
“Rule
144A” means Rule 144A as promulgated under the 1933 Act.
“SEC”
means the Securities and Exchange Commission.
“SEC
Reports” means all annual reports, quarterly reports, proxy statements and other
reports filed by the Company under the 1934 Act, in each case as filed with
the
SEC and including the information and documents (other than exhibits)
incorporated therein by reference.
“Subsidiary”
means any corporation or other entity of which a majority of the capital
stock
or other ownership interests having ordinary voting power to elect a majority
of
the board of directors or other persons performing similar functions are
at the
time directly or indirectly owned by the Company.
“Trading
Day” means a day on which the Principal Market is open for the general trading
of securities.
“Transaction
Documents” means this Agreement, the New Note Indenture and the New
Notes.
“Trustee”
shall have the meaning provided in the New Note Indenture.
“Violation”
means
any
violation or alleged violation by the Company of the 1933 Act, the 1934 Act,
any
state securities law or any rule or regulation under the 1933 Act, the 1934
Act
or any state securities law, or
any
breach or alleged breach by any Person other than the Holder of any
representation, warranty, covenant, agreement or other term of this
Agreement.
2. Agreement
to Exchange; Exchange Value.
(a) Agreement
to Exchange.
Upon
the
terms and subject to the conditions of this Agreement,
(1) the
Holder agrees to sell, assign, transfer and deliver the Existing Notes to
the
Company in exchange for the issuance by the Company to the Holder of the
New
Notes; and
(2) the
Company agrees to issue to the Holder the New Notes in exchange for the Existing
Notes.
The
Company agrees to cancel the Existing Notes in full immediately after the
closing.
(b) Closing.
The
closing of the exchange provided for in Section 2(a) shall occur on the Closing
Date at the Law Offices of Brian W. Pusch, Penthouse Suite, 29 West 57th
Street,
New York, New York. At the closing, upon the terms and subject to the conditions
of this Agreement, (1) the Company shall deliver to the Trustee, against
evidence of cancellation of the Holders’ beneficial interest in the Existing
Notes, one or more permanent global securities, registered in the name of
Cede
& Co., as nominee for DTC, and (2) the Holder shall cancel its beneficial
interest in the Existing Notes and deliver to the Company evidence that such
beneficial interest has been cancelled on records maintained in book-entry
form
by DTC and its participants. The Holders’ beneficial interests in the New Notes
will be shown on records maintained in book-entry form by DTC and its
participants.
3. Representations,
Warranties, Covenants, Etc. of the Holder.
The
Holder represents and warrants to, and covenants and agrees with, the Company
as
follows:
(a) Ownership
of Securities.
The
Holder has all right, title and interest in its beneficial interest in the
Existing Notes, and has not endorsed, assigned, sold, transferred or otherwise
in any manner disposed of the Holder’s beneficial interest in the Existing Notes
or any interest therein. No person or entity other than the Holder has any
interest in the Holder’s beneficial interest in the Existing Notes.
(b) Authority.
The
execution, delivery and performance by the Holder of this Agreement are within
the powers of the Holder and have been duly authorized by all necessary action
on the part of the Holder. This Agreement constitutes a valid and binding
agreement of the Holder, enforceable against the Holder in accordance with
its
terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors’ rights generally and general principles of
equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(c) Investment
Representations.
The
Holder understands that the New Notes and Conversion Shares have not been
registered under the 1933 Act and that the Company has no intention of
registering the New Notes or the Conversion Shares under the 1933 Act. The
Holder also understands that the New Notes and Conversion Shares are being
offered and sold pursuant to an exemption from registration contained in
the
1933 Act based in part upon the Holder’s representations contained in the
Agreement. The Holder hereby represents and warrants as follows:
(1) The
Holder Bears Economic Risk.
The
Holder has substantial experience in evaluating and investing in private
placement transactions of securities in companies similar to the Company
so that
it is capable of evaluating the merits and risks of its investment in the
Company and has the capacity to protect its own interests. The Holder must
bear
the economic risk of this investment indefinitely unless the New Notes and
the
Conversion Shares are registered pursuant to the Securities Act, or an exemption
from registration is available. The Holder also understands that there is
no
assurance that any exemption from registration under the Securities Act will
be
available and that, even if available, such exemption may not allow the Holder
to transfer all or any portion of the New Notes and the Conversion Shares
under
the circumstances, in the amounts or at the times the Holder might
propose.
(2) Acquisition
for Own Account.
The
Holder is acquiring the New Notes and Conversion Shares for the Holder’s own
account.
(3) Qualified
Institutional Buyer.
The
Holder represents that it is a qualified institutional buyer as defined in
Rule
144A.
(4) The
Holder Can Protect Its Interest.
The
Holder represents that by reason of its, or of its management’s, business or
financial experience, the Holder has the capacity to protect its own interests
in connection with the transactions contemplated in this Agreement. Further,
the
Holder is aware of no publication of any advertisement in connection with
the
transactions contemplated in this Agreement.
(5) Company
Information.
The
Holder has had an opportunity to discuss the Company’s business, management and
financial affairs with directors, officers and management of the Company
and has
had the opportunity to review the Company’s operations and facilities. The
Holder has also had the opportunity to ask questions of and receive answers
from, the Company and its management regarding the terms and conditions of
this
investment.
(6) Residence.
The
office or offices of the Holder in which its investment decision was made
is
located at the address or addresses of the Holder set forth on the signature
page.
(7) Foreign
Investors.
If
the
Holder is not a United States person (as defined by Section 7701(a)(30) of
the
Internal Revenue Code of 1986, as amended), the Holder hereby represents
that it
has satisfied itself as to the full observance of the laws of its jurisdiction
in connection with any invitation to subscribe for the New Notes and Conversion
Shares or any use of this Agreement, including (i) the legal requirements
within
its jurisdiction for the exchange of the New Notes and Conversion Shares
for the
Existing Notes, (ii) any foreign exchange restrictions applicable to such
exchange, (iii) any government or other consents that may need to be obtained,
and (iv) the income tax and other tax consequences, if any, that may be relevant
to the purchase, holding, redemption, sale or transfer of the New Notes and
Conversion Shares. The exchange of New Notes and Conversion Shares for the
Existing Notes and the continued ownership by the Holder of the New Notes
and
Conversion Shares will not violate any applicable securities or other laws
of
the Holder’s jurisdiction.
(8) Transfer
Restrictions.
The
Holder understands that the New Notes and Conversion Shares are being offered
in
a transaction not involving any public offering in the United States within
the
meaning of the 1933 Act, that the New Notes and Conversion Shares will not
be
registered under the 1933 Act and agrees that (A) if in the future it decides
to
offer, resell, pledge or otherwise transfer any of the New Notes and Conversion
Shares, it shall offer, resell, pledge or otherwise transfer such New Notes
and
Conversion Shares only (i) in the United States to a person whom the seller
reasonably believes is a qualified institutional buyer in a transaction meeting
the requirements of Rule 144A, (ii) outside the United States in an offshore
transaction complying with the provisions of Rule 904 under the 1933 Act,
(iii)
pursuant to an exemption from registration under the 1933 Act provided by
Rule
144 (if available), or (iv) pursuant to an effective registration statement
under the 1933 Act, in each of cases (i) through (iv) in accordance with
any
applicable securities laws of any States of the United States, and (B) the
Holder will notify any subsequent purchaser of the New Notes and Conversion
Shares from it of the resale restrictions referred to in (A) above. The Holder
acknowledges and agrees that the New Notes and Conversion Shares shall be
subject to restrictions on transfer as set forth in the New Note Indenture.
The
Company acknowledges that a transfer in circumstances covered by the opinion
contemplated in Section 6(c) will meet the requirements of clause (iii) of
the
second preceding sentence; provided,
however,
that the
Company may require a confirmation of the opinion contemplated by Section
6(c)
at the time of a particular transfer which confirmation the Holder may provide
from the counsel who rendered the opinion or the opinion of other counsel
to the
Holder reasonably acceptable to the Company.
(d) Non−Affiliate
Status.
The
Holder is not an “affiliate” (as that term is defined under Rule 144(a) of the
1933 Act and Rule 13e-3 of the 1934 Act of the Company. To the best of the
Holder’s knowledge, the Holder did not acquire its beneficial interest in the
Existing Notes from an “affiliate” of the Company.
(e) Tax
Advice.
The
Holder has had the opportunity to review with its own tax advisors the U.S.
Federal, state, local and foreign tax consequences of the transactions
contemplated by this Agreement. With respect to such tax matters, the Holder
has
relied and relies solely on such advisors and not on any statements or
representations of the Company or any of its agents, written or oral. The
Holder
understands that it (and not the Company or any of its agents) shall be
responsible for its own tax liability that may arise as a result of the
transactions contemplated by this Agreement.
4. Representations,
Warranties, Covenants, Etc. of the Company.
The
Company represents and warrants to the Holder that the following matters
are
true and correct on the date of execution and delivery of this Agreement,
will
be true and correct on the Closing Date and the Company covenants and agrees
with the Holder as follows:
(a) Organization
and Authority.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of New Jersey and has all requisite corporate
power
and authority (i) to own, lease and operate its properties and to carry on
its
business as described in the SEC Reports and as currently conducted, and
(ii) to
execute, deliver and perform its obligations under the Transaction Documents
and
to consummate the transactions contemplated hereby and thereby.
(b) Concerning
the Conversion Shares.
The
Conversion Shares have been duly and validly authorized and when issued upon
conversion of the New Notes will be duly and validly issued, fully paid and
non-assessable. The holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights to subscribe for the
Conversion Shares. The Common Stock is listed for trading on the Principal
Market and (1) the Company and the Common Stock meet the criteria for continued
listing and trading on the Principal Market; (2) the Company has not been
notified since December 31, 2003 of any failure or potential failure to meet
the
criteria for continued listing and trading on the Principal Market; and (3)
no
suspension of trading in the Common Stock is in effect. The Company knows
of no
reason that the Conversion Shares will not be eligible for listing on the
Principal Market.
(c) Authorization
and Binding Obligations of the Agreement.
This
Agreement has been duly authorized, executed and delivered by the Company
and
(assuming due authorization, execution and delivery by the Holder) constitutes
a
legally valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, subject to the effect of any bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in
effect relating to or affecting creditors’ rights generally and general
principles of equity, regardless of whether such enforceability is considered
in
a proceeding in equity or at law.
(d) Authorization
and Binding Obligations of the New Note Indenture.
The
New
Note Indenture has been duly authorized by the Company, and when the New
Note
Indenture is duly executed and delivered by the Company (assuming due
authorization, execution and delivery of the New Note Indenture by the Trustee)
will constitute a legally valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, subject to the effect of
any
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or
hereafter in effect relating to or affecting creditors’ rights generally and
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(e) Authorization
and Binding Obligations of the New Notes.
The
New
Notes have been duly authorized by the Company, and when the New Notes are
executed, authenticated and issued in accordance with the terms of the Indenture
and subject to the terms and conditions set forth herein delivered pursuant
to
this Agreement at the Closing (assuming due authentication of the New Notes
by
the Trustee), such New Notes will constitute legally valid and binding
obligations of the Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, subject to
the
effect of any bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting creditors’
rights generally and general principles of equity, regardless of whether
such
enforceability is considered in a proceeding in equity or at law.
(f) Non-contravention.
The
execution and delivery of the Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated herein and therein
do not and will not, with or without the giving of notice or the lapse of
time,
or both, (i) result in any violation of any provision of the certificate
of
incorporation or by-laws or similar instruments of the Company or any
Subsidiary, (ii) conflict with or result in a breach by the Company or any
Subsidiary of any of the terms or provisions of, or constitute a default
under,
or result in the modification of, or result in the creation or imposition
of any
lien, security interest, charge or encumbrance upon any of the properties
or
assets of the Company pursuant to, any indenture, mortgage, deed of trust
or
other agreement or instrument to which the Company or any Subsidiary is a
party
or by which the Company or any Subsidiary or any of their respective properties
or assets are bound or affected which would have a material adverse effect
on
the business, properties, or results of operations of the Company and the
Subsidiaries, taken as a whole, (iii) violate or contravene any applicable
law,
rule or regulation or any applicable decree, judgment or order of any court,
United States federal or state regulatory body, administrative agency or
other
governmental body having jurisdiction over the Company or any Subsidiary
or any
of their respective properties or assets which would have a material adverse
effect on the business, properties, or results of operations of the Company
and
the Subsidiaries, taken as a whole, or (iv) have any material adverse effect
on
any permit, certification, registration, approval, consent, license or franchise
necessary for the Company or any Subsidiary to own or lease and operate any
of
its properties and to conduct any of its business or the ability of the Company
or any Subsidiary to make use thereof.
(g) Approvals,
Filings, Etc.
No
authorization, approval or consent of, or filing with, any court, governmental
body, regulatory agency, self-regulatory organization, or stock exchange
or
market or the stockholders of the Company is required to be obtained or made
by
the Company or any Subsidiary in connection with the execution, delivery
and
performance of this Agreement and the New Note Indenture and the issuance
of the
New Notes as contemplated by this Agreement and the issuance of the Conversion
Shares upon conversion of the New Notes other than notification by the Company
to the Principal Market with respect to the listing of the Conversion
Shares.
(h) Absence
of Certain Proceedings.
Except
as
disclosed in the SEC Reports, there are no legal or governmental proceedings
pending to which the Company or any of its Subsidiaries is a party or of
which
any of their respective properties or assets is the subject which, if determined
adversely to the Company, might reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated by the
Transaction Documents or the performance by the Company of its obligations
under
the Transaction Documents and, to the Company’s knowledge, no such proceedings
are threatened or contemplated by governmental authorities or, except as
set
forth or contemplated in the SEC Reports, threatened by others.
(i) Absence
of Brokers, Finders, Etc.
No
broker, finder, or similar Person is entitled to any commission, fee, or
other
compensation by reason of the transactions contemplated by this
Agreement.
(j) Certain
Securities Law Matters.
Assuming
the accuracy of the representations and warranties of the Holder contained
in
Section 3 hereto, the New Notes may be issued to the Holder pursuant to this
Agreement without registration under the 1933 Act by virtue of Section 4(2)
of
the 1933 Act and Rule 506 of Regulation D thereunder. The Company acknowledges
that, for purposes of Rule 144, the Holder will be entitled to tack the holding
period of the Existing Notes determined in accordance with Rule 144, and
“no-action letters” from the Division of Corporation Finance of the SEC relating
thereto, to the holding period of the New Notes and the Conversion Shares
and,
so long as (x) the aggregate period during which the Existing Notes and the
New
Notes and the Conversion Shares as so determined are held is at least two
years
and (y) at the time of determination the Holder is not and has not for the
preceding three months been an “affiliate” (as such term is defined in Rule 144)
of the Company, the New Notes and the Conversion Shares may be sold pursuant
to
Rule 144(k). The Company agrees not to take a position contrary thereto in
determining whether a transfer of the New Notes is permissible under Rule
144
unless the SEC or its staff by rule or interpretation changes its rules and
interpretations thereof in effect on the date of this Agreement or such rules
or
interpretations are held invalid or incorrect by a court of competent
jurisdiction or are altered as a result of legislative actions.
(k) Trust
Indenture Act.
The
New
Notes may be offered and issued to the Holder without the qualification of
the
New Note Indenture under the 1939 Act in reliance on the exemption contained
in
Section 304(b) of the 1939 Act.
(l) No
Integrated Offering.
Neither
the Company nor any affiliate (as defined in Rule 501(b) of Regulation D
under
the 1933 Act) of the Company has taken or will take any action to sell, offer
for sale, solicit offers to buy or otherwise negotiate in respect of, any
security (as defined in the 1933 Act) which is or will be integrated with
the
exchange of the New Notes for the Existing Notes in a manner that would require
the registration under the 1933 Act of the New Notes.
(m) No
Event of Default.
No
event
has occurred nor has any circumstance arisen which, had the New Notes been
outstanding as of December 31, 2004, would constitute a default or an Event
of
Default (as such term is defined in the Indenture).
5. Certain
Covenants.
(a) Covenants
by the Company.
(1) Exchange
with Holders of Other Debentures.
For
a
period of 90 days after the Closing Date the Company will not enter into
any
agreement with any other holder of the Company’s 5% Convertible Subordinated
Debentures due May 15, 2006 to exchange, repurchase, retire, repay or otherwise
acquire any of such debentures (other than by payment when due at maturity)
upon
terms more favorable to such holder than the terms set forth in this Agreement,
without the prior written consent of the Holder; provided, however that nothing
in this Agreement shall restrict the Company’s ability to redeem such notes
pursuant to the terms of the indenture by which they are governed.
(2) Principal
Market Listing; Reporting Status.
So
long
as the Holder beneficially owns any of the Conversion Shares, the Company
shall
(x) use its commercially reasonable best efforts to maintain the listing
of the
Common Stock on the Nasdaq National Market, and (y) timely file all reports
required to be filed with the SEC pursuant to Section 13 or 15(d) of the
1934
Act, and the Company shall not terminate its status as an issuer required
to
file reports under the 1934 Act even if the 1934 Act or the rules and
regulations thereunder would permit such termination.
(3) PORTAL
Eligibility.
In
the
event the New Notes are not eligible for trading on PORTAL at or prior to
the
Closing Date, the Company shall use its commercially reasonable best efforts
to
cause the New Notes to be eligible for trading on PORTAL as promptly as
practicable following the Closing Date.
(b) Settlement
of Interest on the Existing Notes.
The
parties hereby agree that the Holder shall receive a payment of unpaid and
accrued interest with respect to the Existing Notes (the “Interest Payment”) at
the Closing Date. The parties hereby agree that the payment of the Interest
Payment shall be deemed to satisfy any and all obligations by the Company
to pay
accrued and unpaid interest on the Existing Notes. In the event that the
Holder
shall receive any payments at the closing on the Closing Date or thereafter
which include the payment of interest accrued on or after the Closing Date
(an
“Excess Interest Payment”), the Holder shall immediately remit to the Company in
immediately available funds an amount equal to such Excess Interest
Payment.
6. Conditions
to the Company’s Obligation to Exchange.
The
Holder understands that the Company’s obligation to issue to the Holder the New
Notes in exchange for the Existing Notes on the Closing Date is conditioned
upon
satisfaction of the following conditions precedent on or before the Closing
Date
(any or all of which may be waived by the Company in its sole
discretion):
(a) On
the
Closing Date, no legal action, suit or proceeding shall be pending or threatened
which seeks to restrain or prohibit the transactions contemplated by this
Agreement;
(b) The
representations and warranties of the Holder contained in this Agreement
shall
have been true and correct on the date of this Agreement and on the Closing
Date
as if made on the Closing Date and on or before the Closing Date the Holder
shall have performed all covenants and agreements of the Holder required
to be
performed by the Holder on or before the Closing Date; and
(c) On
the
Closing Date, the Company shall have received the opinion of the Law Offices
of
Brian W. Pusch, dated the Closing Date, addressed to the Company, in form,
scope
and substance reasonably satisfactory to the Company, substantially in the
form
of Annex I
to this
Agreement, and
(d) The
Trustee shall have executed the New Note Indenture and the New Note Indenture
shall be in full force and effect.
7. Conditions
to the Holder’s Obligations to Exchange.
The
Company understands that the Holder’s obligation to exchange Existing Notes for
the New Notes on the Closing Date is conditioned upon satisfaction of the
following conditions precedent on or before the Closing Date (any or all
of
which may be waived by the Holder in its sole discretion):
(a) On
the
Closing Date, no legal action, suit or proceeding shall be pending or threatened
which seeks to restrain or prohibit the transactions contemplated by this
Agreement;
(b) The
representations and warranties of the Company contained in this Agreement
shall
have been true and correct on the date of this Agreement and shall be true
and
correct on the Closing Date as if given on and as of the Closing Date (except
for representations given as of a specific date, which representations shall
be
true and correct as of such date), and on or before the Closing Date the
Company
shall have performed all covenants and agreements of the Company contained
herein required to be performed by the Company on or before the Closing
Date;
(c) No
Event
of Default under and as defined in the Existing Note Indenture or event which,
with the giving of notice or the passage of time, or both, would constitute
an
Event of Default under and as defined in the Existing Notes shall have occurred
and be continuing;
(d) The
Company shall have delivered to the Holder a certificate, dated the Closing
Date, duly executed by its Chief Executive Officer or Chief Financial Officer
to
the effect set forth in subparagraphs (a), (b), and (c) of this Section
7;
(e) The
Company shall have delivered to the Holder a certificate, dated the Closing
Date, of the Secretary of the Company certifying (A) the Certificate of
Incorporation and By-Laws of the Company as in effect on the Closing Date,
(B)
all resolutions of the Board of Directors (and committees thereof) of the
Company relating to this Agreement and the transactions contemplated hereby
and
(C) such other matters as reasonably requested by the Holder;
(f) On
the
Closing Date, the Holder shall have received opinions of Jenner & Block LLP
and Howard W. Brodie, Esq., dated the Closing Date, addressed to the Holder,
in
form, scope and substance reasonably satisfactory to the Holder, substantially
in the form of Annex II
and
Annex III,
respectively, to this Agreement;
(g) The
Company and the Trustee shall have executed the New Note Indenture and the
New
Note Indenture shall be in full force and effect and the New Notes shall
have
been duly authenticated by the Trustee;
(h) On
the
Closing Date (1) trading in securities on the Nasdaq National Market shall
not
have been suspended or materially limited and (2) a general moratorium on
commercial banking activities in the State of New York shall not have been
declared by either federal or state authorities; and
(i) The
Company shall have used its commercially reasonable best efforts to cause
the
New Notes to be eligible for trading on PORTAL.
8. Indemnification
and Contribution.
(a) Indemnification.
(1) To
the
extent not prohibited by applicable law, the Company will indemnify and hold
harmless each Indemnified Person against any Claims to which any of them
may
become subject, insofar as such Claims (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
any
Violation or any of the transactions contemplated by this Agreement; provided
that the Company shall not be liable under this provision to the extent that
such Claims resulted from the gross negligence or willful misconduct of the
Indemnified Person. The Company shall reimburse each such Indemnified Person,
promptly as such expenses are incurred and are due and payable, for any
documented reasonable legal fees or other documented and reasonable expenses
incurred by them in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 8(a) shall not apply to amounts paid
in
settlement of any Claim if such settlement is effected without the prior
written
consent of the Company, which consent shall not be unreasonably
withheld.
(2) Promptly
after receipt by an Indemnified Person under this Section 8(a) of notice
of the
commencement of any action (including any governmental action), such Indemnified
Person shall, if a Claim in respect thereof is to be made against the Company
under this Section 8(a), deliver to the Company a notice of the commencement
thereof and the Company shall have the right to participate in, and, to the
extent the Company so desires, to assume control of the defense thereof with
counsel reasonably satisfactory to the Indemnified Person; provided,
however,
that an
Indemnified Person shall have the right to retain its own counsel with the
fees
and expenses to be paid by the Company, if, in the reasonable opinion of
counsel
retained by the Company, the representation by such counsel of the Indemnified
Person and the Company would be inappropriate due to actual or potential
differing interests between such Indemnified Person and any other party
represented by such counsel in such proceeding; provided
further, however,
that the
Company shall not be responsible for the fees and expenses of more than one
separate counsel for all Indemnified Persons hereunder and one separate counsel
in each jurisdiction in which a Claim is pending or threatened. The failure
to
deliver notice to the Company within a reasonable time of the commencement
of
any such action shall not relieve the Company of any liability to the
Indemnified Person under this Section 8(a), except to the extent that the
Company is prejudiced in its ability to defend such action. The indemnification
required by this Section 8(a) shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as such expense,
loss, damage or liability is incurred and is due and payable.
(b) Contribution.
To
the
extent any indemnification by the Company as set forth in Section 8(a) above
is
applicable by its terms but is prohibited or limited by law, the Company
agrees
to make the maximum contribution with respect to any amounts for which it
would
otherwise be liable under Section 8(a) to the fullest extent permitted by
law.
In determining the amount of contribution to which the respective parties
are
entitled, there shall be considered the relative fault of each party, the
parties’ relative knowledge of and access to information concerning the matter
with respect to which the Claim was asserted, the opportunity to correct
and
prevent any statement or omission and any other equitable considerations
appropriate under the circumstances; provided,
however,
that (a)
no contribution shall be made under circumstances where the maker would not
have
been liable for indemnification under the fault standards set forth in Section
8(a) and (b) no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from
any other Person who was not guilty of such fraudulent
misrepresentation.
(c) Other
Rights.
The
indemnification and contribution provided in this Section shall be in addition
to any other rights and remedies available at law or in equity.
9. Miscellaneous.
(a) Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK.
(b) Headings.
The
headings, captions and footers of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
(c) Severability.
If
any
provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement or the validity or
enforceability of this Agreement in any other jurisdiction.
(d) Notices.
Any
notices required or permitted to be given under the terms of this Agreement
shall be in writing and shall be sent by mail, personal delivery, by telephone
line facsimile transmission or courier and shall be effective five days after
being placed in the mail, if mailed, or upon receipt, if delivered personally,
by telephone line facsimile transmission or by courier, in each case addressed
to a party at such party’s address (or telephone line facsimile transmission
number) shown in the introductory paragraph or on the signature page of this
Agreement or such other address (or telephone line facsimile transmission
number) as a party shall have provided by notice to the other party in
accordance with this provision. In the case of any notice to the Company,
such
notice shall be addressed to the Company at its address (or telephone line
facsimile transmission number) shown on the signature page hereto, Attention:
Chief Legal Officer, with a copy addressed to John E. Welch, Jenner & Block,
LLP, 601 Thirteenth Street, NW, Suite 1200 South, Washington, DC 20005
(facsimile transmission number (202) 661-4980), and in the case of any notice
to
the Holder, such notice shall be addressed to the Holder at its address (or
telephone line facsimile transmission number) shown on the signature page
hereto
and a copy shall be given to: Law Offices of Brian W Pusch, Penthouse Suite,
29
West 57th Street, New York, New York 10019 (telephone line facsimile
transmission number (212) 980-7055).
(e) Counterparts.
This
Agreement may be executed in counterparts and by the parties hereto on separate
counterparts, each of which shall be deemed to be an original but all of
which
together shall constitute one and the same instrument. A telephone line
facsimile transmission of this Agreement bearing a signature on behalf of
a
party hereto shall be legal and binding on such party. Although this Agreement
is dated as of the date first set forth above, the actual date of execution
and
delivery of this Agreement by each party is the date set forth below such
party’s signature on the signature page hereof. Any reference in this Agreement
or in any of the documents executed and delivered by the parties hereto in
connection herewith to (1) the date of execution and delivery of this Agreement
by the Holder shall be deemed a reference to the date set forth below the
Holder’s signature on the signature page hereof, (2) the date of execution and
delivery of this Agreement by the Company shall be deemed a reference to
the
date set forth below the Company’s signature on the signature page hereof and
(3) the date of execution and delivery of this Agreement, or the date of
execution and delivery of this Agreement by the Holder and the Company, shall
be
deemed a reference to the later of the dates set forth below the signatures
of
the parties on the signature page hereof.
(f) Entire
Agreement; Benefit.
This
Agreement, the New Note Indenture and the New Notes and the other documents
contemplated hereby and thereby constitute the entire agreement between the
parties hereto with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings, whether written or oral,
between the parties hereto with respect to the subject matter hereof and
thereof. There are no restrictions, promises, warranties, or undertakings,
other
than those set forth or referred to herein and therein. This Agreement and
the
terms and provisions hereof are for the sole benefit of only the Company,
the
Holder and their respective successors and permitted assigns and in no event
shall the Holder have any liability to any stockholder or creditor of the
Company or any other Person (other than the Company) in any way relating
to or
arising from this Agreement or the transactions contemplated
hereby.
(g) Waiver.
Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, or course of dealing
between the parties, shall not operate as a waiver thereof or an amendment
hereof, nor shall any single or partial exercise of any such right or power,
or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or exercise of any other right
or
power.
(h) Amendment.
No
amendment, modification, waiver, discharge or termination of any provision
of
this Agreement nor consent to any departure by the Holder or the Company
therefrom shall in any event be effective unless the same shall be in writing
and signed by the party to be charged with enforcement, and then shall be
effective only in the specific instance and for the purpose for which given.
No
course of dealing between the parties hereto shall operate as an amendment
of
this Agreement.
(i) Best
Efforts.
Each
of
the parties shall use its best efforts timely to satisfy each of the conditions
to the other party’s obligations set forth in Section 6 or 7, as the case may
be, of this Agreement on or before the Closing Date.
(j) Further
Assurances.
Each
party to this Agreement will perform any and all acts and execute any and
all
documents as may be necessary and proper under the circumstances in order
to
accomplish the intents and purposes of this Agreement and to carry out its
provisions.
(k) Expenses.
The
Company and the Holder shall each be responsible for its own expenses
(including, without limitation, the legal fees and expenses of its counsel)
incurred by them in connection with the negotiation and execution of, and
closing under, this Agreement and of the transactions contemplated
hereby.
(l) Termination.
This
Agreement may be terminated:
(1) By
the
Holder at or after the Closing Date if any condition set forth in Section
7 has
not been satisfied by the Closing Date (other than as a result of any failure
on
the part of the Holder to comply with or perform any covenant or obligation
of
the Holder set forth in this Agreement);
(2) By
the
Company at or after the Closing Date if any condition set forth in Section
6 has
not been satisfied by the Closing Date (other than as a result of any failure
on
the part of the Company to comply with or perform any covenant or obligation
of
the Company set forth in this Agreement);
(3) By
the
Holder if the closing shall not have occurred on a Closing Date on or before
December 30, 2005, other than solely by reason of a breach of this Agreement
by
the Holder; or
(4) By
mutual
consent of the Holder and the Company.
If
the
Holder wishes to terminate this Agreement pursuant to Section 9(l)(1) or
(3),
the Holder shall deliver to the Company a written notice stating that the
Holder
is terminating this Agreement and setting forth a brief description of the
basis
on which the Holder is termination this Agreement. If the Company wishes
to
terminate this Agreement pursuant to Section 9(l)(2), the Company shall deliver
to the Holder a written notice stating that the Company is terminating this
Agreement and setting forth a brief description of the basis on which the
Company is terminating this Agreement.
If
this
Agreement is terminated pursuant to Section 9(l), this Agreement shall be
of no
further force or effect (and, except as provided in this paragraph, there
shall
be no liability or obligation hereunder on the part of any of the parties
hereto
or their respective officers, directors, stockholders or affiliates); provided,
however, that Section 9, including without limitation, this Section 9(l),
shall
survive the termination of this Agreement and shall remain in full force
and
effect, and the termination of this Agreement shall not relieve any party
from
any liability for any willful breach of any representation, warranty or covenant
contained in this Agreement
(m) Survival.
The
respective representations, warranties, covenants and agreements of the Company
and the Holder contained in this Agreement and the documents delivered in
connection with this Agreement shall survive the execution and delivery of
this
Agreement and the closing hereunder, and shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of
the
Holder or any Person controlling or acting on behalf of the Holder or by
the
Company or any Person controlling or acting on behalf of the
Company.
(n) Public
Statements, Press Releases, Etc.
The
Company and the Holder shall have the right to approve before issuance any
press
releases or any other public statements with respect to the transactions
contemplated hereby; provided, however, that the Company shall be entitled,
without the prior approval of the Holder, to make any press release or other
public disclosure with respect to such transactions as is required by applicable
law and regulations, including the 1934 Act and the rules and regulations
promulgated thereunder.
(o) Construction.
The
language used in this Agreement will be deemed to be the language chosen
by the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party.
[Signature
Page Follows]
IN
WITNESS WHEREOF,
the
parties have caused this Agreement to be duly executed by their respective
officers or other representatives thereunto duly authorized as of the date
first
set forth above and on the dates set forth below their respective
signatures.
EMCORE
CORPORATION
By:
/s/ Howard Brodie
Name:
Howard Brodie
Title:
Executive Vice President
Address:
145
Belmont Drive
Somerset,
New Jersey 08873
Facsimile
No.: (732) 271-9686
Date: November
10,
2005
ALEXANDRA
GLOBAL MASTER
FUND
LTD.
|
By:
|
ALEXANDRA
INVESTMENT MANAGEMENT,
LLC,
|
as
Investment Advisor
By:
/s/ M. Filimonov
Mikhail
Filimonov
Chairman
and
Chief Executive Officer
Address:
c/o
Alexandra Investment Management,
LLC
767
Third
Avenue
39th
Floor
New
York,
New York 10017
Facsimile
No.: (212) 301-1810
Date: November
11, 2005
ANNEX
I
[LETTERHEAD
- Law Offices of Brian W Pusch]
November
__, 2005
Emcore
Corporation
145
Belmont Drive
Somerset,
New Jersey 08873
ALEXANDRA
GLOBAL MASTER FUND LTD.
Emcore
Corporation
Ladies
and Gentlemen:
We
are
special counsel for Alexandra Global Master Fund Ltd., a British Virgin Islands
international business company ("Alexandra"), in connection with the exchange
of
$14,425,000.00 aggregate principal amount of 5% Convertible Subordinate
Debentures due May 15, 2006 (the “5% Debentures”) of Emcore Corporation, a New
Jersey corporation (the “Company”), for $16,580,460.00 aggregate principal
amount of 5% Senior Subordinated Convertible Notes due 2011 of the Company
(the
“Notes”) pursuant to the terms of an Exchange Agreement, dated as of November
,
2005,
by and between the Company and Alexandra (the “Exchange Agreement”). The 5%
Debentures are, and the Notes will be, convertible into shares of Common
Stock,
no par value per share, of the Company (the “Common Stock”).
In
connection with this opinion, we have examined the Exchange Agreement, the
form
of the 5% Debentures, the Indenture, dated as of May 7, 2001, between the
Company and Wilmington Trust Company, as Trustee, relating to the 5% Debentures,
the form of the Notes, the Indenture, dated as of November 14, 2005, between
the
Company and Deutsche Bank Trust Company, as Trustee, relating to the Notes
(the
“Note Indenture”) and relied on originals or copies, certified or otherwise
identified to our satisfaction, of such records, documents, agreements or
other
instruments of Alexandra, orders, rulings and certificates of public officials,
officers and representatives of Alexandra and Alexandra Investment Management,
LLC, a Delaware limited liability company (“AIM”) that serves as Alexandra’s
investment adviser, and such other persons, have made such investigations
of
law, and have discussed with representatives of Alexandra and AIM such questions
of fact, as we have deemed proper and necessary as a basis for the opinions
hereinafter expressed. As to certain questions of fact we have relied, without
independent verification, on information provided to us by Alexandra and
AIM.
We
have
assumed the genuineness of all signatures appearing on the documents furnished
to or reviewed by us and we have also assumed that any person purporting
to
execute any document in a representative capacity is a duly authorized
representative of the person for whom such person executed such document.
We
have also assumed, without verification, that the representations and warranties
of Alexandra and the Company contained in the Exchange Agreement are true
and
correct.
On
the
basis of the foregoing and in reliance thereon, we are of the opinion
that:
1. For
purposes of Rule 144 (“Rule 144”) under the Securities Act of 1933, as amended
(the “1933 Act”), Alexandra’s holding period for the 5% Debentures began on the
later of the date the 5% Debentures were (i) issued by the Company or (ii)
sold
by an “affiliate” of the Company, as the term “affiliate” is defined for
purposes of Rule 144;
2. After
Alexandra exchanges the 5% Debentures for the Notes pursuant to the Exchange
Agreement, Alexandra may tack its holding period of the 5% Debentures to
its
holding period of the Notes for purposes of Rule 144;
3. After
any
conversion of any of the Notes into shares (the “Conversions Shares”) of Common
Stock in accordance with the terms of the Notes and the Note Indenture,
Alexandra may tack its holding period of the Notes, determined as stated
in our
opinion in the immediately preceding paragraph 2, to its holding period of
such
Conversion Shares for purposes of Rule 144;
4. After
any
sale of any of the Notes by Alexandra to a person (a “Transferee”) who is not an
“affiliate” of the Company, as the term “affiliate” is defined for purposes of
Rule 144, in a transaction not involving a public offering, such Transferee
may
tack Alexandra’s holding period of such Notes, determined as stated in our
opinion in the preceding paragraph 2, to such Transferee’s holding period of
such Notes for purposes of Rule 144;
5. After
any
conversion of such Notes by such Transferee into Conversion Shares in accordance
with the terms of the Notes and the Note Indenture following a sale by Alexandra
of such Notes to such Transferee in a transaction not involving a public
offering, such Transferee may tack its holding period of the Notes, determined
as stated in our opinion in the immediately preceding paragraph 4, to its
holding period of such Conversion Shares for purposes of Rule 144;
and
6. Alexandra
may sell the Notes and the Conversion Shares without registration of the
Notes
or the Conversion Shares under the 1933 Act.
We
are
admitted to practice in the State of New York and no opinion is expressed
herein
on any laws other than the federal laws of the United States. This opinion
is
rendered solely for the benefit of the Company, Alexandra and AIM and may
not be
relied upon for any other purpose or by any other person.
Very
truly yours,
Brian
W.
Pusch
BWP:to
ANNEX
II
[LETTERHEAD
- Jenner & Block LLP]
November
[__], 2005
Alexandra
Global Master Fund Ltd.
c/o
Alexandra Investment Management, LLC
767
Third
Avenue, 39th Floor
New
York,
New York 10017
Ladies
and Gentlemen:
We
are
issuing this letter in our capacity as special counsel for EMCORE Corporation
(the “Company”) in response to the requirement of Section 7(f) of the Exchange
Agreement dated November [__], 2005 (the “Exchange Agreement”) by and between
the Company and Alexandra Global Master Fund Ltd (the “Holder”) relating to the
exchange of the $14,425,000 aggregate principal amount of the Company’s
outstanding Convertible Subordinated Notes due 2006 (the “Existing 2006 Notes”)
for $16,580,460 aggregate principal amount of the Company’s newly issued
Convertible Senior Subordinated Notes due 2011 (the “New 2011 Notes”). Every
term which is defined or given a special meaning in the Exchange Agreement
and
which is not given a different meaning in this letter has the same meaning
whenever it is used in this letter as the meaning it is given in the Exchange
Agreement.
In
connection with the preparation of this letter, we have among other things
read:
(a) the
Indenture dated as of May 7, 2001 by and between the Company and Wilmington
Trust Company as trustee;
(b) the
Indenture (the “New 2011 Notes Indenture”), dated as of [_______], 2005 by and
between the Company and Deutsche Bank Trust Company Americas as trustee (the
“Trustee”);
(c) the
Exchange Agreement;
(d) a
specimen of the Existing 2006 Notes;
(e) a
specimen of the New 2011 Notes;
(f) copy
of
the resolutions of the Board of Directors of the Company adopted on October
[__], 2005;
(g) a
certificate of the Secretary of the Company dated the date hereof and delivered
to us in connection with this opinion; and
(h) copies
of
all certificates and other documents delivered today in connection with the
consummation of the Exchange Offer.
Subject
to the assumptions, qualifications and limitations which are identified in
this
letter, and subject to compliance by the Holder with its representations
and
warranties set forth in Section 3(c) of the Exchange Agreement and by the
Company with its representations and warranties set forth in Section 4(l)
of the
Exchange Agreement, it is not necessary in connection with the sale and delivery
of the New 2011 Notes to the Holder in the manner contemplated by the Exchange
Agreement to register the New 2011 Notes under the Securities Act of 1933,
as
amended, it being understood that no opinion is expressed as to any subsequent
resales of the New 2011 Notes.
**********
Except
for the activities described in the immediately preceding section of this
letter, we have not undertaken any investigation to determine the facts upon
which the advice in this letter is based.
We
have
assumed for purposes of this letter: each document we have reviewed for purposes
of this letter is accurate and complete, each such document that is an original
is authentic, each such document that is a copy conforms to an authentic
original, and all signatures on each such document are genuine; that the
Exchange Agreement and every other agreement we have examined for purposes
of
this letter constitutes a valid and binding obligation of each party to that
document and that each such party has satisfied all legal requirements that
are
applicable to such party to the extent necessary to entitle such party to
enforce such agreement (except that we make no such assumption with respect
to
the Company); and that you have acted in good faith and without notice of
any
fact which has caused you to reach any conclusion contrary to any of the
advice
provided in this letter. We have also made other assumptions which we believe
to
be appropriate for purposes of this letter.
In
preparing this letter we have relied without independent verification upon:
(i)
factual information represented to be true in the Exchange Agreement, in
the
other documents specifically identified at the beginning of this letter as
having been read by us and in the certificates and other documents executed
by
the Company and delivered to you or to the Trustee under the New 2011 Notes
Indenture; (ii) factual information provided to us by the Company or its
representatives; and (iii) factual information we have obtained from such
other
sources as we have deemed reasonable. We have assumed that there has been
no
relevant change or development between the dates as of which the information
cited in the preceding sentence was given and the date of this letter and
that
the information upon which we have relied is accurate and does not omit
disclosures necessary to prevent such information from being misleading.
We
confirm that we do not have knowledge that has caused us to conclude that
our
reliance and assumptions cited in the two immediately preceding paragraphs
are
unwarranted. Whenever this letter provides advice about (or based upon) our
knowledge of any particular information or about any information which has
or
has not come to our attention such advice is based entirely on the conscious
awareness at the time this letter is delivered on the date it bears by the
lawyers with Jenner & Block LLP at that time who spent substantial time
representing the Company in connection with the transactions contemplated
by the
Exchange Agreement.
Our
advice on every legal issue addressed in this letter is based exclusively
on the
federal laws of the United States that are, in our experience, generally
applicable to transactions of the nature contemplated in the Exchange Agreement,
and represents our opinion as to how that issue would be resolved were it
to be
considered by the highest court in the jurisdiction which enacted such law.
Our
opinions are limited to the specific issues addressed. None of the opinions
or
other advice contained in this letter considers or covers any foreign or
state
securities (or “blue sky”) laws or regulations. This letter does not cover any
other laws, statutes, governmental rules or regulations or decisions which
in
our experience are not usually considered for or covered by opinions like
those
contained in this letter or are not generally applicable to transactions
of the
kind covered by the Exchange Agreement.
This
letter speaks as of the time of its delivery on the date it bears. We do
not
assume any obligation to provide you with any subsequent opinion or advice
by
reason of any fact about which we did not have knowledge at that time, by
reason
of any change subsequent to that time in any law, other governmental requirement
or interpretation thereof covered by any of our opinions or advice, or for
any
other reason.
This
letter may be relied upon by the Holder only for the purpose served by the
provision in the Exchange Agreement cited in the initial paragraph of this
letter in response to which it has been delivered. Without our written consent:
(i) no person other than the Holder may rely on this letter for any purpose;
(ii) this letter may not be cited or quoted in any financial statement,
prospectus, private placement memorandum or other similar document; (iii)
this
letter may not be cited or quoted in any other document or communication
which
could encourage reliance upon this letter by any person or for any purpose
excluded by the restrictions in this paragraph; and (iv) copies of this letter
may not be furnished to anyone for purposes of encouraging such reliance.
Sincerely,
Jenner
& Block LLP
ANNEX
III
[EMCORE
Corporation Letterhead]
November
[__], 2005
Alexandra
Global Master Fund Ltd.
c/o
Alexandra Investment Management, LLC
767
Third
Avenue, 39th Floor
New
York,
New York 10017
Ladies
and Gentlemen:
I
am
issuing this letter in my capacity as Vice President and General Counsel
of
EMCORE Corporation (the “Company”) in response to the requirement of Section
7(f) of the Exchange Agreement dated [__________], 2005 (the “Exchange
Agreement”) by and between the Company and Alexandra Global Master Fund Ltd (the
“Holder”) relating to the exchange of the $14,425,000 aggregate principal amount
of the Company’s outstanding Convertible Subordinated Notes due 2006 (the
“Existing 2006 Notes”) held by the Holder for $16,580,460 aggregate principal
amount of the Company’s newly issued Convertible Senior Subordinated Notes due
2011 (the “New 2011 Notes”). Every term which is defined or given a special
meaning in the Exchange Agreement and which is not given a different meaning
in
this letter has the same meaning whenever it is used in this letter as the
meaning it is given in the Exchange Agreement.
In
connection with the preparation of this letter, I or others under my supervision
have among other things read:
(a) the
Indenture (the “New2011 Notes Indenture”), dated as of [_______], 2005 by and
between the Company and Deutsche Bank Trust Company Americas as trustee (the
“Trustee”);
(b) the
Exchange Agreement;
(c) a
specimen of the New 2011 Notes;
(d) copy
of
the resolutions of the Board of Directors of the Company adopted on October
[__], 2005;
(e) a
copy of
the restated certificate of incorporation of the Company certified as of
a
recent date by the Secretary of State of New Jersey;
(f) a
copy of
the by-laws of the Company; and
(g) copies
of
all certificates and other documents delivered today in connection with the
consummation of the Exchange Offer.
Subject
to the assumptions, qualifications and limitations which are identified in
this
letter, it is my opinion that:
(i) The
Company has been duly organized and is validly existing as a corporation
in good
standing under the laws of the State of New Jersey;
(ii) The
Conversion Shares have been duly and validly authorized and reserved for
issuance upon conversion of the New Notes by all necessary corporate action
and
are free of preemptive rights; all Conversion Shares, when so issued and
delivered upon such conversion in accordance with the terms of the New 2011
Notes Indenture, will be duly and validly authorized and issued, fully paid
and
nonassessable;
(iii) The
execution, delivery and performance of the Exchange Agreement and the New
2011
Notes Indenture and the issuance of the New Notes and the Conversion Shares
and
the consummation of the transactions contemplated thereby do not result in
any
violation of the provisions of the certificate of incorporation or bylaws
of the
Company or any statute or any order, rule or regulation known to us of any
court
or governmental agency or body having jurisdiction over the Company or any
of
the properties or assets of the Company; and, except as may be required by
the
securities or “blue sky” laws of any state of the United States in connection
with the issuance of the New Notes, no consent, approval, authorization or
order
of, or filing or registration with, any such court or governmental agency
or
body is required for the execution, delivery and performance of the Exchange
Agreement and the New Note Indenture by the Company and the issuance of the
New
Notes and the Conversion Shares and the consummation of the transactions
contemplated thereby;
(iv) The
Company has all necessary corporate power and authority to execute and deliver
each of the Transaction Documents to which it is a party and to perform its
obligations thereunder and to issue and deliver the New Notes and the Conversion
Shares to the Holder;
(v) The
Exchange Agreement has been duly authorized, executed and delivered by the
Company;
(vi) The
New
2011 Notes Indenture has been duly authorized, executed and delivered by
the
Company and, assuming due authorization, execution and delivery thereof by
the
Trustee, constitutes a legally valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, subject to
the
effect of any bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting creditors’
rights generally and general principles of equity, regardless of whether
such
enforceability is considered in a proceeding in equity or at law;
and
(vii) The
New
Notes have been duly authorized by the Company and when executed, issued
and
authenticated in accordance with terms of the New 2011 Notes Indenture and
delivered to the Holder in exchange for the Existing Notes, will constitute
legally valid and binding obligations of the Company, entitled to the benefits
of the Indenture and enforceable against the Company in accordance with their
terms, subject to the effect of any bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to or
affecting creditors’ rights generally and general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law
*********
Except
for the activities described in the immediately preceding section of this
letter, I have not undertaken any investigation to determine the facts upon
which the advice in this letter is based.
I
have
assumed for purposes of this letter: each document I have reviewed for purposes
of this letter is accurate and complete, each such document that is an original
is authentic, each such document that is a copy conforms to an authentic
original, and all signatures on each such document are genuine; and that
you
have acted in good faith and without notice of any fact which has caused
you to
reach any conclusion contrary to any of the advice provided in this letter.
I
have also made other assumptions which I believe to be appropriate for purposes
of this letter.
I
confirm
that I do not have knowledge that has caused me to conclude that my reliance
and
assumptions cited in the immediately preceding paragraph are unwarranted.
Whenever this letter provides advice about (or based upon) my knowledge of
any
particular information or about any information which has or has not come
to my
attention such advice is based entirely on the conscious awareness at the
time
this letter is delivered on the date it bears.
My
advice
on every legal issue addressed in this letter is based exclusively on the
federal securities laws of the United States of America, and the laws of
the
State of New York and the New Jersey Business Corporation Act. My opinion
is
limited to the specific issues addressed. Neither the opinion nor other advice
contained in this letter considers or covers any foreign or state securities
(or
“blue sky”) laws or regulations. This letter does not cover any other laws,
statutes, governmental rules or regulations or decisions which in my experience
are not usually considered for or covered by opinions like those contained
in
this letter or are not generally applicable to transactions of the kind covered
by the Exchange Agreement.
This
letter speaks as of the time of its delivery on the date it bears. I do not
assume any obligation to provide you with any subsequent opinion or advice
by
reason of any fact about which I did not have knowledge at that time, by
reason
of any change subsequent to that time in any law, other governmental requirement
or interpretation thereof covered by any of my opinions or advice, or for
any
other reason.
This
letter may be relied upon by the Holder only for the purpose served by the
provision in the Exchange Agreement cited in the initial paragraph of this
letter in response to which it has been delivered. Without my written consent:
(i) no person other than the Holder may rely on this letter for any purpose;
(ii) this letter may not be cited or quoted in any financial statement,
prospectus, private placement memorandum or other similar document; (iii)
this
letter may not be cited or quoted in any other document or communication
which
could encourage reliance upon this letter by any person or for any purpose
excluded by the restrictions in this paragraph; and (iv) copies of this letter
may not be furnished to anyone for purposes of encouraging such reliance;
provided, however, that this opinion may be relied upon by Deutsche Bank
Trust
Company Americas in its capacity as Trustee under the New 2011 Notes Indenture.
Sincerely,
Howard
W.
Brodie, Esq.