EXHIBIT 10.1 - SECURITIES PURCHASE AGREEMENT
Published on February 20, 2008
EXHIBIT
10.1
SECURITIES
PURCHASE AGREEMENT
THIS
SECURITIES PURCHASE AGREEMENT (this “Agreement”),
dated as of February 15, 2008, by and among EMCORE Corporation, a New Jersey
corporation with headquarters located at 10420 Research Road, SE, Albuquerque,
New Mexico 87123 (the “Company”), and each
investor identified on the signature pages hereto (individually, an
“Investor” and collectively, the
“Investors”).
BACKGROUND
A. The
Company and each Investor are executing and delivering this Agreement in
reliance upon the exemption from registration afforded by Section 4(2) of
the Securities Act of 1933, (the “Securities Act”), and
Rule 506 of Regulation D (“Regulation D”) as promulgated
by the United States Securities and Exchange Commission (the
“SEC”) under the Securities Act.
B. Each
Investor, severally and not jointly, wishes to purchase, and the Company
wishes
to sell, upon the terms and conditions stated in this Agreement, (i) that
aggregate number of shares of the common stock, no par value, of the Company
(the “Common Stock”), set forth on such Investor’s signature
page to this Agreement (which aggregate amount for all Investors together
shall
be 8,000,000 shares of Common Stock and shall collectively be referred to
herein
as the “Common Shares”) and (ii) warrants, in substantially the
form attached hereto as Exhibit A (the “Warrants”) to
acquire up to that number of additional shares of Common Stock set forth
opposite such Investor’s name on the Schedule of Investors (the shares of Common
Stock issuable upon exercise of or otherwise pursuant to the Warrants issued
to
the Investors, collectively, the “Warrant
Shares”).
C. The
Common Shares, the Warrants and the Warrant Shares issued or issuable pursuant
to this Agreement are collectively are referred to herein as the
“Securities.”
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of
which
are hereby acknowledged, the Company and the Investors agree as
follows:
ARTICLE
I
DEFINITIONS
1.1 Definitions. In
addition to the terms defined elsewhere in this Agreement, the following
terms
have the meanings indicated:
“Affiliate”
means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with
a
Person, as such terms are used in and construed under Rule 144 under the
Securities Act; provided, however, the term Affiliate shall
not include WorldWater & Solar Technologies Corporation.
“Agent”
has the meaning set forth in Section 3.1(l).
“Agreement”
has the meaning set forth in the Preamble.
“Approved
Stock Plan” means any employee benefit plan which has been approved by
the Board of Directors of the Company, pursuant to which the Company's
securities may be issued to, or for the benefit of, any employee, officer
or
director for services provided to the Company.
“Business
Day” means any day other than Saturday, Sunday, any day which shall be
a federal legal holiday in the United States or any day on which banking
institutions in The State of New York are authorized or required by law or
other
governmental action to close.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to
Section 2.1.
“Closing
Date” means the date and time of the Closing and shall be on such date
as is mutually agreed to by the Company and each Investor.
“Closing
Price” means, for any date, the closing price per share of the Common
Stock for such date (or, if not a Trading Day, the nearest preceding date
that
is a Trading Day) on the primary Eligible Market or exchange or quotation
system
on which the Common Stock is then listed or quoted.
“Company”
has the meaning set forth in the Preamble.
“Common
Shares” has the meaning set forth in the Preamble.
“Common
Stock” has the meaning set forth in the Preamble.
“Contingent
Obligation” has the meaning set forth in Section
3.1(aa).
“Convertible
Securities” means any stock or securities (other than Options) directly
or indirectly convertible into or exercisable or exchangeable for Common
Stock.
“Disclosure
Materials” has the meaning set forth in
Section 3.1(g).
“Effective
Date” means the date that the Registration Statement is first declared
effective by the SEC.
“8-K
Filing” has the meaning set forth in Section 4.5.
“Eligible
Market” means any of the New York Stock Exchange, the American Stock
Exchange, the NASDAQ Global Select Market, the NASDAQ Global Market, the
NASDAQ
Capital Market or OTC Bulletin Board.
“Environmental
Laws” has the meaning set forth in Section 3.1(dd).
“Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
“Excluded
Investors” means Jefferies & Company, Inc.
“Excluded
Securities” means any Common Stock or other securities of the Company
issued or issuable: (i) in connection with any Approved Stock Plan; (ii)
upon
exercise of the Warrants; (iii) in connection with any strategic acquisition
or
transaction by the Company, whether through an acquisition of stock or a
merger
of any business, assets or technologies, provided that (A) the primary purpose
is not to raise equity capital and (B) if in connection with the financing
of
such strategic acquisition or transaction, substantially all of the proceeds
raised in connection with the issuance of Common Stock or other securities
of
the Company are used to pay consideration in or related to
such strategic acquisition, for expenses related to such
strategic acquisition and for working capital
requirements related to such strategic acquisition, and
all of the Common Stock or other securities of the Company
issued in connection with such strategic acquisition or transaction
is subject to Restrictions on Transfer until the Trigger Date; and
(iv) upon exercise of any Options or Convertible Securities which are
outstanding on the day immediately preceding the date hereof, provided that
the
terms of such Options or Convertible Securities are not amended, modified
or
changed on or after the date hereof.
“GAAP”
has the meaning set forth in Section 3.1(g).
“Hazardous
Materials” has the meaning set forth in Section
3.1(dd).
“Indebtedness”
has the meaning set forth in Section 3.1(aa).
“Insolvent”
has the meaning set forth in Section 3.1(h).
“Intellectual
Property Rights” has the meaning set forth in
Section 3.1(t).
“Investor”
has the meaning set forth in the Preamble.
“Lien”
means any lien, charge, claim, security interest, encumbrance, right of first
refusal or other restriction.
“Losses”
means any and all losses, claims, damages, liabilities, settlement costs
and
expenses, including, without limitation, reasonable attorneys’
fees.
“Material
Adverse Effect” means (i) an adverse effect on the legality, validity
or enforceability of any Transaction Document on the Company other than as
a
result of a change in law or regulation following the date of this Agreement,
(ii) a material adverse effect on the results of operations, assets, business
or
financial condition of the Company and the Subsidiaries taken as a whole
on a
consolidated basis or (iii) material and adverse impairment of the
Company’s ability to perform on a timely basis its obligations under any of the
Transaction Documents, provided, that none of the following alone shall be
deemed, in and of itself, to constitute a Material Adverse
Effect: (A) a change in the market price or trading volume of the
Common Stock or (B) changes in general economic conditions or changes affecting
the industry in which the Company operates generally (as opposed to
Company-specific changes) so long as such changes do not have a disproportionate
effect on the Company and its Subsidiaries taken as a whole.
“Material
Permits” has the meaning set forth in
Section 3.1(v).
“Options”
means any outstanding rights, warrants or options to subscribe for or purchase
Common Stock or Convertible Securities.
“Person”
has the meaning set forth in Section 3.1(aa).
“Placement
Agents” means Jefferies & Co, Inc., Lazard Freres & Co. LLC,
Canaccord Adams Inc., Merriman Curhan Ford & Co.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without
limitation, a partial proceeding, such as a deposition), whether commenced
or
threatened in writing.
“Prospectus”
means the prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted
from a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Registration Statement,
and
all other amendments and supplements to the Prospectus including post-effective
amendments of the Registration Statement, and all material incorporated by
reference or deemed to be incorporated by reference in such
Prospectus.
“Registrable
Securities” means the Common Shares and the Warrant Shares issued or
issuable pursuant to the Transaction Documents, together with any securities
issued or issuable upon any stock split, dividend or other distribution,
recapitalization or similar event with respect to the foregoing.
“Registration
Rights Agreement” means the Registration Rights Agreement by and among
the parties hereto of even date herewith in the form attached hereto as
Exhibit E.
“Registration
Statement” means each registration statement required to be filed
pursuant to the Registration Rights Agreement, including (in each case) the
Prospectus, amendments and supplements to such registration statement including
pre- and post-effective amendments, all exhibits thereto, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
“Regulation
D” has the meaning set forth in the Preamble.
“Restrictions
on Transfer” means restrictions on the sale, offers to sell, contract
or agreements to sell, hypothecate, pledge, grant any option to purchase,
make
any "short sale" or otherwise dispose of or agree to dispose of, directly
or
indirectly, any securities of the Company, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Securities and Exchange Act of 1934, as
amended
and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder with respect to any securities of the Company owned
directly by the undersigned (including holding as a custodian) or with respect
to which the undersigned has beneficial ownership within the rules and
regulations of the Securities and Exchange Commission, in each case, or (ii)
enter into any swap or other arrangement that transfers to another, in whole
or
in part, any of the economic consequences of ownership of any securities
of the
Company. "Short sales" for purposes of the preceding definition shall
have the meaning as defined in Rule 200 of Regulation SHO adopted under the
Exchange Act and all types of direct and indirect stock pledges, forward
sale
contracts, options, puts, calls, short sales, swaps and similar arrangements
(including on a total return basis), and sales and other transactions through
non-US broker-dealers or foreign regulated brokers having the effect of hedging
the securities of the Company.
“Rule 144,”
“Rule 415,” and “Rule 424” means
Rule 144, Rule 415 and Rule 424, respectively, promulgated by the
SEC pursuant to the Securities Act, as such rules may be amended from time
to
time, or any similar rule or regulation hereafter adopted by the SEC having
substantially the same effect as such rule.
“SEC”
has the meaning set forth in the Preamble.
“SEC
Reports” has the meaning set forth in
Section 3.1(g).
“Securities”
has the meaning set forth in the Preamble.
“Securities
Act” has the meaning set forth in the Preamble.
“Shares”
means shares of the Company’s Common Stock.
“Short
Sales” has the meaning set forth in Section 3.2(h).
“Subsidiary”
means the following subsidiaries of the Company: (i) Corona Optical Systems,
Inc., a Delaware corporation, (ii) Opticomm Corporation, a Delaware corporation,
and (iii) EMCORE Solar Power, Inc., a Delaware corporation.
“Trading
Day” means (i) a day on which the Common Stock is traded on a Trading
Market (other than the OTC Bulletin Board), or (ii) if the Common Stock is
not
listed or quoted on a Trading Market (other than the OTC Bulletin Board),
a day
on which the Common Stock is traded in the over-the-counter market, as reported
by the OTC Bulletin Board, or (iii) if the Common Stock is not listed or
quoted
on any Trading Market, a day on which the Common Stock is quoted in the
over-the-counter market as reported by the Pink Sheets LLC (or any similar
organization or agency succeeding to its functions of reporting prices);
provided, that in the event that the Common Stock is not listed or
quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day shall
mean a
Business Day.
“Trading
Market” means whichever of the New York Stock Exchange, the American
Stock Exchange, the NASDAQ Global Select Market, the NASDAQ Global Market,
the
NASDAQ Capital Market or OTC Bulletin Board on which the Common Stock is
listed
or quoted for trading on the date in question.
“Transaction”
has the meaning set forth in Section 3.2(h).
“Transaction
Documents” means this Agreement, including the schedules, annexes and
exhibits attached hereto, the Registration Rights Agreement, Warrants and
the
Transfer Agent Instructions and each of the other agreements or instruments
entered into or executed by the parties hereto in connection with the
transactions contemplated by this Agreement.
“Transfer
Agent” means American Stock Transfer & Trust Company, or any
successor transfer agent for the Company.
“Transfer
Agent Instructions” means, with respect to the Company, the Company
Transfer Agent Instructions, in substantially the form of Exhibit D,
executed by the Company and delivered to and acknowledged in writing by the
Transfer Agent.
“Warrants”
has the meaning set forth in the Preamble.
“Warrant
Shares” has the meaning set forth in the Preamble.
ARTICLE
II
PURCHASE
AND SALE
2.1 Closing. Subject
to the terms and conditions set forth in this Agreement, at the Closing the
Company shall issue and sell to each Investor, and each Investor shall,
severally and not jointly, purchase from the Company, such number of Common
Shares and Warrants for the price set forth on such Investor’s signature page to
this Agreement. The date and time of the Closing and shall be 11:00
a.m., New York City Time, on the Closing Date. The Closing shall take
place at the offices of the Company’s Counsel.
2.2 Closing
Deliveries.
(a) At
the
Closing, the Company shall deliver or cause to be delivered to each Investor
the
following:
(i) a
copy of
the Company’s irrevocable instructions to the Transfer Agent instructing the
Transfer Agent to deliver, on an expedited basis, one or more stock
certificates, free and clear of all restrictive and other legends (except
as
expressly provided in Section 4.1(b) hereof), evidencing such number
of Common Shares set forth on such Investor’s signature page to this Agreement,
registered in the name of such Investor;
(ii) a
Warrant, issued in the name of such Investor, pursuant to which such Investor
shall have the right to acquire such number of Warrant Shares set forth on
such
Investor’s signature page to this Agreement;
(iii) duly
executed Transfer Agent Instructions acknowledged by the Company’s transfer
agent;
(iv) a
legal
opinion of Jones Day, in the form of Exhibit C-1, executed by such
counsel and delivered to the Investors;
(v) a
legal
opinion of Dillon, Bitar & Luther, L.L.C., in the form of Exhibit
C-2, executed by such counsel and delivered to the Investors;
(vi) a
certificate of the Secretary of the Company, dated as of the Closing Date,
(a) certifying the resolutions adopted by the Board of Directors of the
Company approving the transactions contemplated by this Agreement and the
other
Transaction Documents and the issuance of the Securities, (b) certifying
the current versions of the certificate of incorporation, as amended and
by-laws
of the Company and (c) certifying as to the signatures and authority of
persons signing the Transaction Documents and related documents on behalf
of the
Company;
(vii) a
certificate of the Chief Executive Officer, Chief Operating Officer or Chief
Financial Officer of the Company, dated as of the Closing Date, certifying
to
the fulfillment of the conditions specified in Section 5.1;
and
(viii) reimbursement
of legal fees of Hudson Bay (an Investor) or its designee(s) for its costs
and
expenses incurred in connection with the transactions contemplated by the
Transaction Documents (including, without limitation, legal fees and
disbursements in connection therewith, negotiation, preparation and execution
of
the Transaction Documents and due diligence in connection therewith) up to
a
maximum amount of $30,000, which amount, may be withheld by such Investor
from
its aggregate purchase price at the Closing.
(b) At
the
Closing, each Investor shall deliver or cause to be delivered to the Company
the
following:
(i) the
purchase price set forth on such Investor’s signature page to this Agreement in
United States dollars and in immediately available funds, by wire transfer
to an
account designated in writing to such Investor by the Company for such purpose
(except, with respect to the Hudson Bay, the purchase price shall be net
of
legal fees as provided in Section 2.2(a)(vii); and
(ii) a
completed and executed Investor Signature Page to this Agreement;
(iii) a
completed version of the Stock Certificate Questionnaire attached hereto
as
Exhibit B-1;
(iv) a
completed and executed version of the Registration Statement Questionnaire
and
Acknowledgement attached hereto as Exhibit B-2; and
(v) a
completed and executed version of the Investor Certificate attached hereto
as
Exhibit B-3.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
(a) Subsidiaries. The
Company does not have any "significant subsidiaries" (within the meaning
of Rule
1-02(w) of Regulation S-X under the Securities Act, as such regulation is
in
effect on the date hereof) other than the Subsidiaries. The Company
owns or controls, directly or indirectly, all of the capital stock or comparable
equity interests of each Subsidiary free and clear of any Lien, and all issued
and outstanding shares of capital stock or comparable equity interest of
each
Subsidiary are validly issued and are fully paid, non-assessable and free
of
preemptive and similar rights.
(b) Organization
and Qualification. The Company and each Subsidiary is an entity
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, as applicable, with the
requisite legal authority to own and use its properties and assets and to
carry
on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation of any of the provisions of its certificate or
articles of incorporation, bylaws or other organizational or charter documents,
as applicable. The Company and each Subsidiary is duly qualified to
do business and is in good standing as a foreign corporation or other entity
in
each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure
to be
so qualified or in good standing, as the case may be, would not, individually
or
in the aggregate, have or reasonably be expected to result in a Material
Adverse
Effect.
(c) Authorization;
Enforcement. The Company has the requisite corporate authority to
enter into and to consummate the transactions contemplated by each of the
Transaction Documents to which it is a party and otherwise to carry out its
obligations hereunder and thereunder. The execution and delivery of
each of the Transaction Documents to which it is a party by the Company and
the
consummation by it of the transactions contemplated hereby and thereby
including, without limitation, the issuance of the Common Shares, the
reservation for issuance and the issuance of the Warrant Shares issuable
upon
exercise of the Warrants, have been duly authorized by all necessary corporate
action on the part of the Company and no further consent or action is required
by the Company, its Board of Directors or its stockholders. Each of
the Transaction Documents to which it is a party has been (or upon delivery
will
be) duly executed by the Company and is, or when delivered in accordance
with
the terms hereof, will constitute, the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except
(i)
as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or
other
equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
(d) No
Conflicts; Consents. The execution, delivery and performance of
the Transaction Documents to which it is a party by the Company and the
consummation by the Company of the transactions contemplated hereby and thereby
do not, and will not, (i) conflict with or violate any provision of the
Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws
or other organizational or charter documents, as applicable, (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time
or
both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of
time
or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding
to
which the Company or any Subsidiary is a party or by which any property or
asset
of the Company or any Subsidiary is bound, or affected, except to the extent
that such conflict, default, termination, amendment, acceleration or
cancellation right would not reasonably be expected to have a Material Adverse
Effect, or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or any Subsidiary is subject (including, assuming
the accuracy of the representations and warranties of the Investors set forth
in
Section 3.2 hereof, federal and state securities laws and regulations and
the rules and regulations of any self-regulatory organization to which the
Company or its securities are subject, including all applicable Trading
Markets), or by which any property or asset of the Company or any Subsidiary
is
bound or affected, except to the extent that such violation would not have
or
reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any of its Subsidiaries is required
to obtain any consent, authorization or order of, or make any filing or
registration with, any court, governmental agency or any regulatory or
self-regulatory agency or any other Person in order for it to execute, deliver
or perform any of its obligations at the Closing under or contemplated by
the
Transaction Documents, including without limitation the issuance of the
Securities, in each case in accordance with the terms hereof or thereof,
except
for the following consents, authorizations, orders, filings and registrations
(none of which is required to be filed or obtained before the Closing): (i)
the
filing of a listing application for the Warrant Shares with the Trading Market,
which shall be done pursuant to the rules of the Trading Market, (ii) the
filing
of a Form D with the SEC and any applicable state securities authorities
and
(iii) the filing of a Form 8-K with the SEC announcing the entry into the
Transaction Documents and the issuance of the Securities. The Company
and its Subsidiaries are unaware of any facts or circumstances that would
reasonably be expected to prevent the Company from obtaining or effecting
any of
the registration, application or filings pursuant to the preceding
sentence. The Company is not in violation of the listing requirements
of the Trading Market and has no knowledge of any facts that would reasonably
be
expected to lead to delisting or suspension of the Common Stock in the
foreseeable future. The issuance by the Company of the Securities
shall not have the effect of delisting or suspending the Common Stock from
the
Trading Market.
(e) The
Securities. The Securities (including the Warrant Shares) are
duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens, except for customary and required
restrictions on transfer, and will not be subject to preemptive or similar
rights of stockholders (other than those imposed by the
Investors). The Company has reserved from its duly authorized capital
stock the maximum number of shares of Common Stock issuable upon exercise
of the
Warrants.
(f) Capitalization. The
aggregate number of shares and type of all authorized, issued and outstanding
classes of capital stock, options and other securities of the Company (whether
or not presently convertible into or exercisable or exchangeable for shares
of
capital stock of the Company) is set forth in Schedule 3.1(f)
hereto. All outstanding shares of capital stock are duly authorized,
validly issued, fully paid and nonassessable and have been issued in compliance
in all material respects with all applicable securities laws. Except
as disclosed in Schedule 3.1(f) hereto, the Company did not have
outstanding at February 14, 2007 any other Options, script
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into or
exercisable or exchangeable for, or entered into any agreement giving any
Person
any right to subscribe for or acquire, any shares of Common Stock, or securities
or rights convertible or exchangeable into shares of Common
Stock. Except as set forth on Schedule 3.1(f) hereto, and
except for customary adjustments as a result of stock dividends, stock splits,
combinations of shares, reorganizations, recapitalizations, reclassifications
or
other similar events, there are no anti-dilution or price adjustment provisions
contained in any security issued by the Company (or in any agreement providing
rights to security holders) and the issuance and sale of the Securities will
not
obligate the Company to issue shares of Common Stock or other securities
to any
Person (other than the Investors) and will not result in a right of any holder
of securities to adjust the exercise, conversion, exchange or reset price
under
such securities. To the knowledge of the Company, except as disclosed
in the SEC Reports and any Schedules 13D or 13G filed with the SEC pursuant
to
Rule 13d-1 of the Exchange Act by reporting persons or in Schedule 3.1(f)
hereto, no Person or group of related Persons beneficially owns (as determined
pursuant to Rule 13d-3 under the Exchange Act), or has the right to acquire,
by
agreement with or by obligation binding upon the Company, beneficial ownership
of in excess of 5% of the outstanding Common Stock.
(g) SEC
Reports; Financial Statements. Except as set forth on Schedule
3.1(g) hereto, the Company has filed all reports required to be filed by it
under the Exchange Act, including pursuant to Section 13(a) or 15(d)
thereof, for the 12 months preceding the date hereof on a timely basis or
has
received a valid extension of such time of filing and has filed any such
SEC
Reports prior to the expiration of any such extension and has filed all reports
required to be filed by it under the Exchange Act with respect to the twelve
(12) months preceding the date of this Agreement, including pursuant to
Section 13(a) or 15(d) thereof, for the two years preceding the
date hereof. Such reports required to be filed by the Company under
the Exchange Act, including pursuant to Section 13(a) or 15(d)
thereof, together with any materials filed by the Company under the Exchange
Act
during the twelve (12) months preceding the date of this Agreement, whether
or
not any such reports were required being collectively referred to herein
as the
“SEC Reports” and, together with this Agreement and the
Schedules to this Agreement, the “Disclosure
Materials”. As of their respective dates (or, if amended or
superseded by a filing prior to the Closing Date, then on the date of such
filing), the SEC Reports filed by the Company complied in all material respects
with the requirements of the Securities Act and the Exchange Act and the
rules
and regulations of the SEC promulgated thereunder, and none of the SEC Reports,
when filed (or, if amended or superseded by a filing prior to the Closing
Date,
then on the date of such filing) by the Company, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Reports comply in
all
material respects with applicable accounting requirements and the rules and
regulations of the SEC with respect thereto as in effect at the time of filing
(or, if amended or superseded by a filing prior to the Closing Date, then
on the
date of such filing). Such financial statements have been prepared in
accordance with United States generally accepted accounting principles applied
on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements, the notes
thereto and except that unaudited financial statements may not contain all
footnotes required by GAAP or may be condensed or summary statements, and
fairly
present in all material respects the consolidated financial position of the
Company and its consolidated subsidiaries as of and for the dates thereof
and
the results of operations and cash flows for the periods then ended, subject,
in
the case of unaudited statements, to normal, year-end audit
adjustments. All material agreements to which the Company or any
Subsidiary is a party or to which the property or assets of the Company or
any
Subsidiary are subject are included as part of or identified in the SEC Reports,
to the extent such agreements are required to be included or identified pursuant
to the rules and regulations of the SEC.
(h) Material
Changes; Undisclosed Events, Liabilities or Developments;
Solvency. Since the date of the latest audited financial
statements included within the SEC Reports, except as disclosed in the SEC
Reports or in Schedule 3.1(h) hereto, (i) there has been no event,
occurrence or development that, individually or in the aggregate, has had
or
that would result in a Material Adverse Effect, (ii) the Company has not
incurred any material liabilities other than (A) trade payables and accrued
expenses incurred in the ordinary course of business consistent with past
practice and (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or required to be disclosed in filings
made with the SEC, (iii) the Company has not altered its method of
accounting or changed its auditors, except as disclosed in its SEC Reports,
(iv) the Company has not declared or made any dividend or distribution of
cash or other property to its stockholders, in their capacities as such,
or
purchased, redeemed or made any agreements to purchase or redeem any shares
of
its capital stock, and (v) the Company has not issued any equity securities
to any officer, director or Affiliate, except pursuant to existing Company
stock-based plans. The Company has not taken any steps to seek
protection pursuant to any bankruptcy law nor does the Company have any
knowledge or reason to believe that its creditors intend to initiate involuntary
bankruptcy proceedings or any actual knowledge of any fact which would
reasonably lead a creditor to do so. The Company is not as of the
date hereof, and after giving effect to the transactions contemplated hereby
to
occur on the Closing Date, will not be Insolvent (as defined
below). For purposes of this Section 3.1(h),
“Insolvent” means (i) the present fair saleable value of the
Company’s assets is less than the amount required to pay the Company’s total
Indebtedness (as defined in Section 3.1(aa)), (ii) the Company is unable
to pay its debts and liabilities, subordinated, contingent or otherwise,
as such
debts and liabilities become absolute and matured, (iii) the Company intends
to
incur or believes that it will incur debts that would be beyond its ability
to
pay as such debts mature or (iv) the Company has unreasonably small capital
with
which to conduct the business in which it is engaged as such business is
now
conducted and is proposed to be conducted.
(i) Absence
of Litigation. Except as disclosed in the SEC Reports, there is
no action, suit, claim, or Proceeding, or, to the Company’s knowledge, inquiry
or investigation, before or by any court, public board, government agency,
self-regulatory organization or body pending or, to the knowledge of the
Company, threatened against or affecting the Company or any Subsidiary that
would, individually or in the aggregate, have or be reasonably likely to
result
in a Material Adverse Effect.
(j) Compliance. Except
as would not, individually or in the aggregate, have or be reasonably likely
to
result in a Material Adverse Effect, (i) neither the Company nor any
Subsidiary is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would
result in a default by the Company or any Subsidiary under), nor has the
Company
or any Subsidiary received written notice of a claim that it is in default
under
or that it is in violation of, any indenture, loan or credit agreement or
any
other agreement or instrument to which it is a party or by which it or any
of
its properties is bound (whether or not such default or violation has been
waived), (ii) neither the Company nor any Subsidiary is in violation of any
order of any court, arbitrator or governmental body, or (iii) neither the
Company nor any Subsidiary is or has been in violation of any statute, rule
or
regulation of any governmental authority.
(k) Title
to Assets. Neither the Company nor any Subsidiary owns real
property. The Company and each Subsidiary has good and marketable
title in all personal property owned by them that is material to the business
of
the Company and each Subsidiary, in each case free and clear of all Liens,
except for Liens that do not, individually or in the aggregate, have or be
reasonably likely to result in a Material Adverse Effect. Any real
property and facilities held under lease by the Company or any Subsidiary
is
held by it under valid, subsisting and enforceable leases of which the Company
and each Subsidiary is in material compliance.
(l) No
General Solicitation; Placement Agent’s Fees. Neither the
Company, nor any of its Affiliates, nor any Person acting on its or their
behalf, has engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D) in connection with the offer or sale
of the Securities. The Company shall be responsible for the payment
of any placement agent’s fees, financial advisory fees, or brokers’ commission
(other than for persons engaged by any Investor or its investment advisor)
relating to or arising out of the issuance of the Securities pursuant to
this
Agreement. The Company acknowledges that is has engaged Jefferies
& Company, Inc. as its exclusive placement agent (the
“Agent”) in connection with the sale of the
Securities. Other than the Agent, the Company has not engaged any
placement agent or other agent in connection with the sale of the
Securities.
(m) Private
Placement; Investment Company; U.S. Real Property Holding
Corporation. Neither the Company nor any of its Affiliates nor,
any Person acting on the Company’s behalf has, directly or indirectly, at any
time within the past six months, made any offer or sale of any security or
solicitation of any offer to buy any security under circumstances that would
(i) eliminate the availability of the exemption from registration under
Regulation D under the Securities Act in connection with the offer and sale
by the Company of the Securities as contemplated hereby or (ii) cause the
offering of the Securities pursuant to the Transaction Documents to be
integrated with prior offerings by the Company for purposes of any applicable
law, regulation or stockholder approval provisions, including, without
limitation, under the rules and regulations of any Trading
Market. Assuming the accuracy of the representations and warranties
of the Investors set forth in Section 3.2, no registration under the
Securities Act is required for the offer and sale of the Securities by the
Company to the Investors as contemplated hereby. The sale and issuance of
the
Securities hereunder does not contravene the rules and regulations of any
Trading Market on which the Common Stock is listed or quoted. The
Company is not required to be registered as an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
(n) Listing
and Maintenance Requirements. Except as set forth on Schedule
3.1(o) hereto, the Company has not, in the twelve months preceding the date
hereof, received notice (written or oral) from any Trading Market on which
the
Common Stock is or has been listed or quoted to the effect that the Company
is
not in compliance with the listing or maintenance requirements of such Trading
Market. The Company is, and has no reason to believe that it will not
in the foreseeable future continue to be, in compliance with all such listing
and maintenance requirements.
(o) Registration
Rights. None of the execution of this Agreement or the issuance
of the Securities as contemplated by this Agreement give rise to any rights
(including “piggy-back” registration rights) to have any securities of the
Company registered with the SEC or any other governmental authority that
have
not expired or been satisfied or waived, other than pursuant to the Registration
Rights Agreement.
(p) Application
of Takeover Protections. The Company and its Board of Directors
have taken all necessary action, if any, to render inapplicable any control
share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or other similar anti-takeover provision under
the
Company’s charter documents or the laws of its state of incorporation that is or
could become applicable to any of the Investors as a result of the Investors
and
the Company fulfilling their obligations or exercising their rights under
the
Transaction Documents, including, without limitation, as a result of the
Company’s issuance of the Securities and the Investors’ ownership of the
Securities.
(q) Disclosure. [Intentionally
Omitted]
(r) Acknowledgment
Regarding Investors’ Purchase of Securities. Based upon the
assumption that the transactions contemplated by this Agreement are consummated
in all material respects in conformity with the Transaction Documents, the
Company acknowledges and agrees that each of the Investors (other than Excluded
Investors) is acting solely in the capacity of an arm’s length purchaser with
respect to the Transaction Documents and the transactions contemplated hereby
and thereby. The Company further acknowledges that no Investor (other
than Excluded Investors) is acting as a financial advisor or fiduciary of
the
Company (or in any similar capacity) with respect to this Agreement and the
transactions contemplated hereby and any advice given by any Investor (other
than Excluded Investors) or any of their respective representatives or agents
in
connection with the Transaction Documents and the transactions contemplated
hereby and thereby is merely incidental to the Investors’ purchase of the
Securities. The Company further represents to each Investor that the
Company’s decision to enter into this Agreement has been based solely on the
independent evaluation of the transactions contemplated hereby by the Company
and its advisors and representatives.
(s) Patents
and Trademarks. The Company and each Subsidiary owns, or
possesses adequate rights or licenses to use, all trademarks, trade names,
service marks, service mark registrations, service names, patents, patent
rights, copyrights, inventions, licenses, approvals, governmental
authorizations, trade secrets and other intellectual property rights
(“Intellectual Property Rights”) necessary to conduct their
respective businesses as now conducted. None of the Company’s or any
Subsidiary’s Intellectual Property Rights have expired or terminated, or are
expected to expire or terminate within three years from the date of this
Agreement. The Company does not have any knowledge of any
infringement by the Company or any Subsidiary of Intellectual Property Rights
of
others. Except as disclosed in the SEC Reports, there is no claim,
action or proceeding being made or brought, or to the knowledge of the Company,
being threatened, against the Company or any Subsidiary regarding its
Intellectual Property Rights.
(t) Insurance. The
Company and each Subsidiary is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses and locations in which the Company and each
Subsidiary is engaged.
(u) Regulatory
Permits. The Company and each Subsidiary possesses all
certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their
respective businesses as presently conducted and described in the SEC Reports
(“Material Permits”), except where the failure to possess such
permits would not, individually or in the aggregate, have or reasonably be
expected to result in a Material Adverse Effect, and neither the Company
nor any
Subsidiary has received any written notice of proceedings relating to the
revocation or modification of any Material Permit.
(v) Transactions
With Affiliates and Employees. Except as set forth or
incorporated by reference in the Company’s SEC Reports, none of the officers,
directors or employees of the Company is presently a party to any transaction
with the Company that would be required to be reported on Form 10-K by Item
12
thereof pursuant to Regulation SK Item 404(a) (other than for ordinary course
services as employees, officers or directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by,
providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any such officer, director or employee or,
to the
Company’s knowledge, any corporation, partnership, trust or other entity in
which any such officer, director, or employee has a substantial interest
or is
an officer, director, trustee or partner.
(w) Internal
Accounting Controls. The Company and each Subsidiary maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset
accountability, (iii) access to assets is permitted only in accordance with
management’s general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(x) Sarbanes-Oxley
Act. The Company is in compliance in all material respects with applicable
requirements of the Sarbanes-Oxley Act of 2002 and applicable rules and
regulations promulgated by the SEC thereunder, except where such noncompliance
would not have, individually or in the aggregate, a Material Adverse
Effect.
(y) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary nor, to
the knowledge of the Company, any director, officer, agent or employee acting
on
behalf of the Company or any Subsidiary has, in the course of its actions
for,
or on behalf of, the Company (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity; (ii) made any direct or indirect unlawful payment to
any
foreign or domestic government official or employee or to any foreign or
domestic political parties or campaigns from corporate funds; (iii) violated
or
is in violation in any material respect of any provision of the U.S. Foreign
Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment to
any
foreign or domestic government official or employee.
(z) Indebtedness. Except
as disclosed in the SEC Reports, neither the Company nor any Subsidiary (i)
has
any outstanding Indebtedness (as defined below), (ii) is in violation of
any
term of and is not in default under any contract, agreement or instrument
relating to any Indebtedness, except where such violations and defaults would
not result, individually or in the aggregate, in a Material Adverse Effect,
and
(iii) is a party to any contract, agreement or instrument relating to any
Indebtedness, the performance of which, in the judgment of the Company’s
officers, has or is expected to have a Material Adverse Effect. For
purposes of this Agreement: (x) “Indebtedness” of
any Person means, without duplication (A) all indebtedness for borrowed
money, (B) all obligations issued, undertaken or assumed as the deferred
purchase price of property or services (other than trade payables entered
into
in the ordinary course of business), (C) all reimbursement or payment
obligations with respect to letters of credit, surety bonds and other similar
instruments, (D) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses, (E) all indebtedness
created or arising under any conditional sale or other title retention
agreement, or incurred as financing, in either case with respect to any property
or assets acquired with the proceeds of such indebtedness (even though the
rights and remedies of the seller or bank under such agreement in the event
of
default are limited to repossession or sale of such property), (F) all monetary
obligations under any leasing or similar arrangement which, in connection
with
generally accepted accounting principles, consistently applied for the periods
covered thereby, is classified as a capital lease, (G) all indebtedness
referred to in clauses (A) through (F) above secured by (or for which the
holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any mortgage, lien, pledge, charge, security interest or other
encumbrance upon or in any property or assets (including accounts and contract
rights) owned by any Person, even though the Person which owns such assets
or
property has not assumed or become liable for the payment of such indebtedness,
and (H) all Contingent Obligations in respect of indebtedness or obligations
of
others of the kinds referred to in clauses (A) through (G) above; (y)
“Contingent Obligation” means, as to any Person, any direct or
indirect liability, contingent or otherwise, of that Person with respect
to any
indebtedness, lease, dividend or other obligation of another Person if the
primary purpose or intent of the Person incurring such liability, or the
primary
effect thereof, is to provide assurance to the obligee of such liability
that
such liability will be paid or discharged, or that any agreements relating
thereto will be complied with, or that the holders of such liability will
be
protected (in whole or in part) against loss with respect thereto; and (z)
“Person” means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization, a government or any department or agency thereof and any other
legal entity.
(aa) Employee
Relations. Neither the Company nor any Subsidiary is a party to
any collective bargaining agreement or employs any member of a
union. Except as disclosed in the SEC Reports, during the period
covered by the SEC Reports, no executive officer of the Company has notified
the
Company or any Subsidiary that such officer intends to leave the Company
or a
Subsidiary, as applicable, or otherwise terminate such officer’s employment with
the Company or a Subsidiary, as applicable. To the knowledge of the
Company, no executive officer of the Company is in violation of any material
term of any employment contract, confidentiality, disclosure or proprietary
information agreement, non-competition agreement, or any other contract or
agreement or any restrictive covenant, and the continued employment of each
such
executive officer does not subject the Company or any Subsidiary to any
liability with respect to any of the foregoing matters.
(bb) Labor
Matters. The
Company and each Subsidiary is in compliance in all material respects with
all
federal, state, local and foreign laws and regulations respecting labor,
employment and employment practices and benefits, terms and conditions of
employment and wages and hours, except where failure to be in compliance
would
not, either individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect.
(cc) Environmental
Laws. The Company and each Subsidiary (i) is in compliance in all
material respects with any and all Environmental Laws (as hereinafter defined),
(ii) has received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses
and
(iii) is in compliance in all material respects with all terms and conditions
of
any such permit, license or approval where, in each of the foregoing clauses
(i), (ii) and (iii), the failure to so comply would be reasonably expected
to
have, individually or in the aggregate, a Material Adverse
Effect. The term “Environmental Laws” means all
federal, state, local or foreign laws relating to pollution or protection
of
human health or the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata), including,
without limitation, laws relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, or toxic or
hazardous substances or wastes (collectively, “Hazardous
Materials”) into the environment, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials, as well as all authorizations,
codes, decrees, demands or demand letters, injunctions, judgments, licenses,
notices or notice letters, orders, permits, plans or regulations issued,
entered, promulgated or approved thereunder.
(dd) Subsidiary
Rights. The Company or one of its Subsidiaries has the
unrestricted right to vote, and (subject to limitations imposed by applicable
law) to receive dividends and distributions on, all capital securities of
its
Subsidiaries as owned by the Company or such Subsidiary.
(ee) Tax
Status. The Company and each Subsidiary (i) has made or filed all
foreign, federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject, (ii) has
paid
all taxes and other governmental assessments and charges that are material
in
amount, shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and (iii) has set aside on its
books
provision reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount claimed to be
due by the taxing authority of any jurisdiction, and the officers of the
Company
know of no basis for any such claim.
(ff) Disclosure. The
Company confirms that neither it nor any other Person acting on its behalf
has
provided any of the Investors or their agents or counsel with any information
that constitutes or could constitute material, nonpublic information other
than
information relating to the sale of the Common Shares and Warrants which
will be
made public upon issuance of the press release required pursuant to this
Agreement which shall contain such information. The Company
understands and confirms that each of the Investors will rely on the foregoing
representations in effecting transactions in securities of the
Company. The Disclosure Materials and the PowerPoint presentation
provided to the Investors regarding the Company, when read together in their
entirety, do not contain any untrue statement of a material fact or omit
to
state any material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not
misleading. Except for the transactions contemplated by this
Agreement, no event or circumstance has occurred or information exists with
respect to the Company or any of its Subsidiaries or its or their business,
properties, prospects, operations or financial conditions, which, under
applicable law, rule or regulation, requires public disclosure or announcement
by the Company but which has not been so publicly announced or
disclosed. The Company acknowledges and agrees that no Investor makes
or has made any representations or warranties with respect to the transactions
contemplated hereby other than those set forth in the Transaction
Documents.
(gg) Manipulation
of Price. In connection with the sale of the Common Shares, the
Company has not, and to its knowledge no one acting on its behalf has, (i)
taken, directly or indirectly, any action designed to cause or to result,
or
that could reasonably be expected to cause or result, in the stabilization
or
manipulation of the price of any security of the Company to facilitate the
sale
or resale of any of the Securities, (ii) sold, bid for, purchased, or paid
any
compensation, other than compensation paid to the Placement Agents, for
soliciting purchases of, any of the Securities, or (iii) paid or agreed to
pay
to any person, other than the Placement Agents, any compensation for soliciting
another to purchase any other securities of the Company.
(hh) No
Additional Agreements. The Company does not have any agreement or
understanding with any Investor with respect to the transactions contemplated
by
the Transaction Documents other than as specified in this
Agreement.
3.2 Representations
and Warranties of the Investors. Each Investor hereby, as to
itself only and for no other Investor, represents and warrants to the Company
as
follows:
(a) Organization;
Authority. Such Investor is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with the requisite corporate, partnership or other power and
authority to enter into and to consummate the transactions contemplated by
the
Transaction Documents and otherwise to carry out its obligations hereunder
and
thereunder. The purchase by such Investor of the Securities hereunder
and the consummation of the transactions contemplated by the Transaction
Documents have been duly authorized by all necessary corporate, partnership
or
other action on the part of such Investor. This Agreement and the
Transaction Documents to which such Investor is a party or has or will execute
have been duly executed and delivered by such Investor and constitutes the
valid
and binding obligation of such Investor, enforceable against it in accordance
with its terms, except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of
general application affecting enforcement of creditors’ rights generally, (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable
law.
(b) No
Public Sale or Distribution. Such Investor is (i) acquiring
the Common Shares and the Warrants and (ii) upon exercise of the Warrants
will acquire the Warrant Shares issuable upon exercise thereof, in the ordinary
course of business for its own account and not with a view towards, or for
resale in connection with, the public sale or distribution thereof, except
pursuant to sales registered under the Securities Act or under an exemption
from
such registration and in compliance with applicable federal and state securities
laws, and such Investor does not have a present arrangement to effect any
distribution of the Securities to or through any person or entity;
provided, however, that by making the representations herein, such
Investor does not agree to hold any of the Securities for any minimum or
other
specific term and reserves the right to dispose of the Securities at any
time in
accordance with or pursuant to a registration statement or an exemption under
the Securities Act.
(c) Investor
Status. At the time such Investor was offered the Securities, it
was, at the date hereof it is, and on the date which it exercises any Warrants
it will be an “accredited investor” as defined in Rule 501(a) under the
Securities Act or a “qualified institutional buyer” as defined in Rule 144A(a)
under the Securities Act. Such Investor is not a registered broker
dealer registered under Section 15(a) of the Exchange Act, or a member of
the
Financial Industry Regulatory Authority, Inc. (“FINRA”) or an
entity engaged in the business of being a broker dealer. Except as
otherwise disclosed in writing to the Company on Exhibit B-2 (attached
hereto) on or prior to the date of this Agreement, such Investor is not
affiliated with any broker dealer registered under Section 15(a) of the Exchange
Act, or a member of the FINRA or an entity engaged in the business of being
a
broker dealer.
(d) General
Solicitation. Such Investor is not purchasing the Securities as a
result of any advertisement, article, notice or other communication regarding
the Securities published in any newspaper, magazine or similar media, broadcast
over television or radio, disseminated over the Internet or presented at
any
seminar or any other general solicitation or general advertisement.
(e) Experience
of Such Investor. Such Investor, either alone or together with
its representatives has such knowledge, sophistication and experience in
business and financial matters so as to be capable of evaluating the merits
and
risks of the prospective investment in the Securities, and has so evaluated
the
merits and risks of such investment. Such Investor understands that
it must bear the economic risk of this investment in the Securities
indefinitely, and is able to bear such risk and is able to afford a complete
loss of such investment.
(f) Access
to Information. Such Investor acknowledges that it has reviewed
the Disclosure Materials and has been afforded: (i) the
opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of the Company concerning the terms and conditions
of the offering of the Securities and the merits and risks of investing in
the
Securities; (ii) access to information (other than material non-public
information) about the Company and each Subsidiary and its financial condition,
results of operations, business, properties, management and prospects sufficient
to enable it to evaluate its investment; and (iii) the opportunity to
obtain such additional information that the Company possesses or can acquire
without unreasonable effort or expense that is necessary to make an informed
investment decision with respect to the investment. Neither such
inquiries nor any other investigation conducted by or on behalf of such Investor
or its representatives or counsel shall modify, amend or affect such Investor’s
right to rely on the truth, accuracy and completeness of the Disclosure
Materials and the Company’s representations and warranties contained in the
Transaction Documents. Such Investor acknowledges receipt of copies
of the SEC Reports.
(g) No
Governmental Review. Such Investor understands that no United
States federal or state agency or any other government or governmental agency
has passed on or made any recommendation or endorsement of the Securities
or the
fairness or suitability of the investment in the Securities nor have such
authorities passed upon or endorsed the merits of the offering of the
Securities.
(h) No
Conflicts. The execution, delivery and performance by such
Investor of this Agreement and the consummation by such Investor of the
transactions contemplated hereby will not (i) result in a violation of the
organizational documents of such Investor or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which such Investor is a party, or (iii) result in a
violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws) applicable to such Investor, except in
the
case of clauses (ii) and (iii) above, for such that are not material and
do not
otherwise affect the ability of such Investor to consummate the transactions
contemplated hereby or perform its obligations hereunder.
(i) Prohibited
Transactions; Confidentiality. No Investor, directly or
indirectly, and no Person acting on behalf of or pursuant to any understanding
with any Investor, has engaged in any purchases or sales of the securities
of
the Company, including derivatives (such purchases or sales, a
“Transaction”) (including, without limitation, any Short Sales
involving any of the Company’s securities) since the time that such Investor was
first contacted by the Company, the Agent or any other Person regarding an
investment in the Company. For purposes of clarification,
"Transaction" shall not include the location and/or reservation of borrowable
shares of Common Stock. Such Investor covenants that neither it nor
any Person acting on its behalf or pursuant to any understanding with such
Investor will engage, directly or indirectly, in any Transactions in the
securities of the Company (including Short Sales) prior to the time the
transactions contemplated by this Agreement are publicly
disclosed. “Short Sales” include, without
limitation, all “short sales” as defined in Rule 200
promulgated under Regulation SHO under the Exchange Act and all types of
direct
and indirect stock pledges, forward sale contracts, options, puts, calls,
short
sales, swaps, derivatives and similar arrangements (including on a total
return
basis), and sales and other transactions through non-U.S. broker-dealers
or
foreign regulated brokers; provided, however, that "short sales" shall not
include the location and/or reservation of borrowable shares of Common
Stock. Notwithstanding the foregoing, in the case of an Investor that
is a multi-managed investment vehicle whereby separate portfolio managers
manage
separate portions of such Investor's assets and the portfolio managers have
no
knowledge of the investment decisions made by the portfolio managers managing
other portions of such Investor's assets, the representation set forth above
shall only apply with respect to the portion of assets managed by the portfolio
manager that had or has knowledge of the transactions contemplated
herein.
(j) No
Legal, Tax or Investment Advice. Such Investor understands that
nothing in this Agreement or any other materials presented by or on behalf
of
the Company to the Investor in connection with the purchase of the Securities
constitutes legal, tax or investment advice. Such Investor has
consulted such legal, tax and investment advisors as it, in its sole discretion,
has deemed necessary or appropriate in connection with its purchase of the
Securities. Such Investor understands that the Agent has acted solely
as the agent of the Company in this placement of the Securities, and that
the
Agent makes no representation or warranty with regard to the merits of this
transaction or as to the accuracy of any information such Investor may have
received in connection therewith. Such Investor acknowledges that he
has not relied on any information or advice furnished by or on behalf of
the
Agent.
(k) Reliance
on Exemptions. Such Investor understands that the Securities are
being offered and sold to it in reliance on specific exemptions from the
registration requirements of United States federal and state securities laws
and
that the Company is relying in part upon the truth and accuracy of, and such
Investor’s compliance with, the representations, warranties, agreements,
acknowledgments and understandings of such Investor set forth herein and
in the
other Transaction Documents in order to determine the availability of such
exemptions and the eligibility of such Investor to acquire the
Securities.
(l) Residency. Such
Investor is a resident of that jurisdiction specified below its address on
the
Schedule of Investors.
(m) Transfer
or Resale. Such Investor understands that: (i) the Securities
have not been and are not being registered under the Securities Act or any
state
securities laws, and may not be offered for sale, sold, assigned or transferred
unless (A) subsequently registered thereunder, (B) such Investor shall have
delivered to the Company an opinion of counsel, in a form reasonably acceptable
to the Company, to the effect that such Securities to be sold, assigned or
transferred may be sold, assigned or transferred pursuant to an exemption
from
such registration, or (C) such Investor provides the Company with reasonable
assurance that such Securities can be sold, assigned or transferred pursuant
to
Rule 144 promulgated under the Securities Act (or a successor rule thereto);
(ii) any sale of the Securities made in reliance on Rule 144 may be made
only in
accordance with the terms of Rule 144 and further, if Rule 144 is not
applicable, any resale of the Securities under circumstances in which the
seller
(or the Person through whom the sale is made) may be deemed to be an underwriter
(as that term is defined in the Securities Act) may require compliance with
some
other exemption under the Securities Act or the rules and regulations of
the SEC
thereunder; and (iii) except as set forth in the Registration Rights Agreement,
neither the Company nor any other Person is under any obligation to register
the
Securities under the Securities Act or any state securities laws or to comply
with the terms and conditions of any exemption thereunder. The
Securities may be pledged in connection with a bona fide margin account or
other
loan or financing arrangement secured by the Securities and such pledge of
Securities shall not be deemed to be a transfer, sale or assignment of the
Securities hereunder, and no Investor effecting a pledge of Securities shall
be
required to provide the Company with any notice thereof or otherwise make
any
delivery to the Company pursuant to this Agreement or any other Transaction
Document.
(n) Legends. Such
Investor understands that the certificates or other instruments representing
the
Common Shares and the Warrants and, until such time as the resale of the
Common
Shares and the Warrant Shares has been registered under the Securities Act
as
contemplated by the Registration Rights Agreement, the stock certificates
representing the Warrant Shares, except as set forth below, shall bear any
legend as required by the “blue sky” laws of any state and a restrictive legend
in substantially the following form (and a stop-transfer order may be placed
against transfer of such stock certificates):
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933,
AS
AMENDED, OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT AND APPLICABLE STATE SECURITIES
LAWS
OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID
ACT.. THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL
INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE
SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
Such
Investor understands that the legend set forth above shall be removed and
the
Company shall issue a certificate without such legend to the holder of the
Securities upon which it is stamped or issue to such holder by electronic
delivery at the applicable balance account at The Depository Trust Company
("DTC"), if, unless otherwise required by state securities
laws, (i) such Securities are registered for resale under the Securities
Act,
(ii) in connection with a sale, assignment or other transfer, such holder
provides the Company with an opinion of a law firm reasonably acceptable
to the
Company, in a form reasonably acceptable to the Company, to the effect that
such
sale, assignment or transfer of the Securities may be made without registration
under the applicable requirements of the Securities Act, or (iii) such holder
provides the Company with reasonable assurance that the Securities can be
sold,
assigned or transferred pursuant to Rule 144. The Company shall be
responsible for the fees of its transfer agent and all DTC fees associated
with
such issuance.
ARTICLE
IV
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Investors covenant that the Securities will only be disposed of pursuant
to an
effective registration statement under, and in compliance with the requirements
of, the Securities Act or pursuant to an available exemption from the
registration requirements of the Securities Act, and in compliance with any
applicable state securities laws. In connection with any transfer of
Securities other than pursuant to an effective registration statement or
to the
Company, or any transfer of Securities pursuant to Rule 144(k) (or any portion
of Rule 144 after February 15, 2008), the Company may require the transferor
to
provide to the Company an opinion of counsel selected by the transferor,
the
form and substance of which opinion shall be reasonably satisfactory to the
Company, to the effect that such transfer does not require registration under
the Securities Act. Notwithstanding the foregoing, the Company hereby
consents to and agrees to register on the books of the Company and with its
Transfer Agent, without any such legal opinion, except to the extent that
the
transfer agent requests such legal opinion, any transfer of Securities by
an
Investor to an Affiliate of such Investor, provided that the transferee
certifies to the Company that it is an “accredited investor” as defined in Rule
501(a) under the Securities Act and provided that such Affiliate does not
request any removal of any existing legends on any certificate evidencing
the
Securities.
(b) The
Investors agree to the imprinting, until no longer required by this
Section 4.1(b), of the following legend on any certificate
evidencing any of the Securities:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT (I) IN THE ABSENCE OF (A)
AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT OF
1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE
FORM,
THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT AND APPLICABLE STATE SECURITIES
LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID
ACT.. THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL
INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE
501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH
SECURITIES.
Certificates
evidencing the Common Shares and the Warrant Shares shall not be required
to
contain such legend or any other legend (i) while a registration statement
(including the Registration Statement) covering the resale of the Common
Shares
and the Warrant Shares is effective under the Securities Act, (ii) following
any
sale of such Securities pursuant to Rule 144 if the holder provides the Company
with a legal opinion (and the documents upon which the legal opinion is based)
reasonably acceptable to the Company to the effect that the Securities can
be
sold under Rule 144, (iii) if the Securities are eligible for sale under
Rule
144(k) (or any portion of Rule 144 after February 15, 2008), or (iv) if the
holder provides the Company with a legal opinion (and the documents upon
which
the legal opinion is based) reasonably acceptable to the Company to the effect
that the legend is not required under applicable requirements of the Securities
Act (including controlling judicial interpretations and pronouncements issued
by
the Staff of the SEC). The Company covenants and agrees
that restrictive legends shall be removed and the Company shall issue a
certificate without such legend to the holder of the Securities upon which
it is
stamped or issue to such holder by electronic delivery at the applicable
balance
account at DTC, if, unless otherwise required by state securities laws, (i)
if
such Securities are registered for resale under the Securities Act, (ii)
in
connection with a sale, assignment or other transfer, such holder provides
the
Company with an opinion of a law firm reasonably acceptable to the Company,
in a
form reasonably acceptable to the Company, to the effect that such sale,
assignment or transfer of the Securities may be made without registration
under
the applicable requirements of the Securities Act, or (iii) such holder provides
the Company with reasonable assurance that the Securities can be sold, assigned
or transferred pursuant to Rule 144. The Company shall be responsible
for the fees of its transfer agent and all DTC fees associated with such
issuance. The Company shall cause its counsel to issue the legal
opinion included in the Transfer Agent Instructions to the Transfer Agent
on the
Effective Date. Following the Effective Date and provided the
registration statement referred to in clause (i) above is then in effect,
or at
such earlier time as a legend is no longer required for certain Securities,
the
Company will no later than five Trading Days following the delivery by an
Investor to the Company or the Transfer Agent (if delivery is made to the
Transfer Agent a copy shall be contemporaneously delivered to the Company)
of
(i) a legended certificate representing such Securities (and, in the case
of a
requested transfer, endorsed or with stock powers attached, signatures
guaranteed, and otherwise in form necessary to affect transfer), and (ii)
an
opinion of counsel to the extent required by Section 4.1(a), deliver or
cause to be delivered to such Investor a certificate representing such
Securities that is free from all restrictive and other legends. The
Company may not make any notation on its records or give instructions to
the
Transfer Agent that expand the restrictions on transfer set forth in this
Section.
If
within
three Trading Days after receipt by the Company or its Transfer Agent of
a
legended certificate and the other documents as specified in Clauses (i)
and
(ii) of the paragraph immediately above, the Company shall fail to cause
to be
issued and delivered to such Investor a certificate representing such Securities
that is free from all restrictive and other legends, and if on or after such
Trading Day the Investor purchases (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by the Investor
of
shares of Common Stock that the Investor anticipated receiving from the Company
without any restrictive legend (the “Covering Shares”), then
the Company shall, within three Trading Days after the Investor’s request, pay
cash to the Investor in an amount equal to the excess (if any) of the Investor’s
total purchase price (including brokerage commissions, if any) for the Covering
Shares, over the product of (A) the number of Covering Shares, times (B)
the
closing bid price on the date of delivery of such certificate and the other
documents as specified in Clauses (i) and (ii) of the paragraph immediately
above.
(c) The
Company will not object to and shall permit (except as prohibited by law)
an
Investor to pledge or grant a security interest in some or all of the Securities
in connection with a bona fide margin agreement with a registered broker-dealer
or grant a security interest in some or all of the Securities to a financial
institution that is an “accredited investor” as defined in Rule 501(a) under the
Securities Act and who agrees to be bound by the provisions of this Agreement,
and if required under the terms of such arrangement, the Company will not
object
to and shall permit (except as prohibited by law) such Investor to transfer
pledged or secured Securities to the pledgees or secured
parties. Except as required by law, such a pledge or transfer would
not be subject to approval of the Company, no legal opinion of the pledgee,
secured party or pledgor shall be required in connection therewith (but such
legal opinion shall be required in connection with a subsequent transfer
or
foreclosure following default by the Purchaser transferee of the pledge),
and no
notice shall be required of such pledge. Each Investor acknowledges
that the Company shall not be responsible for any pledges relating to, or
the
grant of any security interest in, any of the Securities or for any agreement,
understanding or arrangement between any Investor and its pledgee or secured
party. At the appropriate Investor’s expense, the Company will
execute and deliver such reasonable documentation as a pledgee or secured
party
of Securities may reasonably request in connection with a pledge or transfer
of
the Securities, including the preparation and filing of any required prospectus
supplement under Rule 424(b)(3) of the Securities Act or other applicable
provision of the Securities Act to appropriately amend the list of Selling
Stockholders thereunder. Provided that the Company is in compliance with
the
terms of this Section 4.1(c), the Company’s indemnification obligations
pursuant to Section 7.18 shall not extend to any Proceeding or Losses
arising out of or related to this Section 4.1(c).
4.2 Furnishing
of Information. Until the date that any Investor owning Common
Shares or Warrant Shares may sell all of them under Rule 144(k) (or Rule
144
after February 15, 2008) of the Securities Act (or any successor provision),
the
Company covenants to use its commercially reasonable best efforts to timely
file
(or obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date hereof
pursuant to the Exchange Act. The Company further covenants that it
will take such further action as any holder of Securities may reasonably
request
to satisfy the provisions of this Section 4.2. The Company
shall submit to the SEC, as soon as practicable (but in no event later than
three (3) Business Days) after the Company learns that no review of a particular
Registration Statement will be made by the staff of the SEC or that the staff
has no further comments on a particular Registration Statement, as the case
may
be, a request for acceleration of effectiveness of such Registration Statement
to a time and date not later than two (2) Business Days after the submission
of
such request.
4.3 Integration. The
Company shall not, and shall use its commercially reasonable best efforts
to
ensure that no Affiliate thereof shall, sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or
sale of the Securities in a manner that would require the registration under
the
Securities Act of the sale of the Securities to the Investors or that would
be
integrated with the offer or sale of the Securities for purposes of the rules
and regulations of any Trading Market.
4.4 Securities
Laws Disclosure; Publicity. The Company shall issue a press
release disclosing all material terms of the transactions contemplated hereby
at
or before 9:00 a.m., New York time, on February 15, 2008. Within two
business days of the date hereof, the Company shall file a Current Report
on
Form 8-K with the SEC (the “8-K Filing”) describing the terms
of the transactions contemplated by the Transaction Documents and including
as
exhibits to such Current Report on Form 8-K the material Transaction Documents
and the form of Warrants, in the form required by the Exchange
Act. Thereafter, the Company shall timely file any filings and
notices required by the SEC or applicable law with respect to the transactions
contemplated hereby. Except as herein provided or in connection with
the filing of the 8-K Filing or Registration Statement, neither the Company
nor
any Subsidiary shall publicly disclose the name of any Investor, or include
the
name of any Investor in any press release without the prior written consent
of
such Investor (which consent shall not be unreasonably withheld or delayed),
unless otherwise required by law, regulatory authority or Trading
Market. No Investor will be in possession of material non-public
information received from the Company or any Person acting on its behalf
that is
not disclosed in the press release referenced above and neither the Company
nor
any Subsidiary shall, and shall cause each of their respective officers,
directors, employees and agents not to, provide any Investor with any material
nonpublic information regarding the Company or any Subsidiary from and after
the
issuance of the above referenced press release without the express written
consent of such Investor.
4.5 Use
of
Proceeds. The Company intends to use the net proceeds from the
sale of the Securities to purchase the telecommunications assets of Intel
Corp.’s optical platform division, future potential acquisitions, working
capital and general corporate purposes. The Company also may use a
portion of the net proceeds, currently intended for general corporate purposes,
to acquire or invest in technologies, products or services that complement
its
business, although the Company has no present plans or commitments and is
not
currently engaged in any material negotiations with respect to these types
of
transactions. Pending these uses, the Company intends to invest the
net proceeds from this offering in short-term, interest-bearing,
investment-grade securities, or as otherwise pursuant to the Company’s customary
investment policies.
4.6 Additional
Registration Statements. From the date hereof and until the date
that is forty-five (45) calendar days after the earlier of (i) the Effective
Date and (ii) the last day of the Registration Period (each as defined in
the
Registration Rights Agreement) (the "Trigger Date"), the Company shall not
file
a registration statement under the 1933 Act (other than on Form S-8) relating
to
securities that are not the Securities.
4.7 Additional
Issuances. From the date hereof until the Trigger Date, other
than Excluded Securities, the Company will not, directly or indirectly, offer,
sell, grant any option to purchase, or otherwise dispose of (or announce
any
offer, sale, grant or any option to purchase or other disposition of) any
of its
or its Subsidiaries' equity or equity equivalent securities, including without
limitation any debt, preferred stock or other instrument or security that
is, at
any time during its life and under any circumstances, convertible into or
exchangeable or exercisable for shares of Common Stock, Options or Convertible
Securities.
ARTICLE
V
CONDITIONS
5.1 Conditions
Precedent to the Obligations of the Investors. The obligation of
each Investor to acquire Securities at the Closing is subject to the
satisfaction or waiver by such Investor, at or before the Closing, of each
of
the following conditions:
(a) Representations
and Warranties. The representations and warranties of the Company
contained herein shall be true and correct in all material respects as of
the
date when made and as of the Closing as though made on and as of such date
(except for those representations and warranties that speak as of a specific
date, which shall be true and correct as of such specified date);
and
(b) Performance. The
Company and each other Investor shall have performed, satisfied and complied
in
all material respects with all covenants, agreements and conditions required
by
the Transaction Documents to be performed, satisfied or complied with by
it at
or prior to the Closing.
(c) No
Suspensions of Trading in Common Stock; Listing. Trading in the Common Stock
shall not have been suspended by the SEC or any Trading Market (except for
any
suspensions of trading of not more than one Trading Day solely to permit
dissemination of material information regarding the Company) at any time
since
the date of execution of this Agreement, and the Common Stock shall have
been at
all times since such date listed for trading on a Trading Market.
(d) Absence
of Litigation. No action, suit or proceeding by or before any court or any
governmental body or authority, against the Company or any Subsidiary or
pertaining to the transactions contemplated by this Agreement or their
consummation, shall have been instituted on or before the Closing Date, which
action, suit or proceeding would, if determined adversely, have a Material
Adverse Effect.
(e) Approvals. The
Company shall have obtained all governmental, regulatory or third party consents
and approvals, if any, necessary for the sale of the Securities.
(f) Deliverables. The
Company shall have executed each of the Transaction Documents to which it
is a
party and delivered the same to the Company. The Company shall have
delivered to the Investors those items required by Section
2.2(a).
(g) Management
Lock-up Agreements. The Company shall have delivered to the
Investors the lock-up agreements in the forms of Exhibit F hereof,
executed by Reuben F. Richards, Hong Hou, Adam Gushard, John Iannelli and
Keith
Kosco (the "Lock-Up Agreements").
(h) Aggregate
Purchase Price. The aggregate purchase price for all Securities
shall not exceed $100,000,000.00.
5.2 Conditions
Precedent to the Obligations of the Company. The obligation of
the Company to sell the Securities at the Closing is subject to the satisfaction
or waiver by the Company, at or before the Closing, of each of the following
conditions:
(a) Representations
and Warranties. The representations and warranties of the
Investors contained herein shall be true and correct in all material respects
as
of the date when made and as of the Closing Date as though made on and as
of
such date (except for those representations and warranties that speak as
of a
specific date, which shall be true and correct as of such specified date);
and
(b) Performance. The
Investors shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by the Investors at
or
prior to the Closing.
(c) Deliverables. The
Investors shall have executed each of the Transaction Documents to which
it is a
party and delivered the same to the Company. The Investors shall have
delivered to the Company those items required by Section
2.2(b).
ARTICLE
VI
INTENTIONALLY
OMITTED
ARTICLE
VII
MISCELLANEOUS
7.1 Termination. This
Agreement may be terminated by the Company or any Investor, by written notice
to
the other parties, if the Closing has not been consummated by the fifth Trading
Day following the date of this Agreement; provided that no such termination
will
affect the right of any party to sue for any breach by the other party (or
parties).
7.2 Fees
and Expenses. Except as expressly set forth in the Transaction
Documents to the contrary, each party shall pay the fees and expenses of
its
advisers, counsel, accountants and other experts, if any, and all other expenses
incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of this Agreement. The Company shall pay all
Transfer Agent fees, stamp taxes and other taxes and duties levied in connection
with the sale and issuance of the applicable Securities.
7.3 Entire
Agreement. The Transaction Documents, together with the Exhibits,
Annexes and Schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements
and
understandings, oral or written, with respect to such matters, which the
parties
acknowledge have been merged into such documents, exhibits and
schedules. At or after the Closing, and without further
consideration, the Company and the Investors will execute and deliver to
the
Investors such further documents as may be reasonably requested in order
to give
practical effect to the intention of the parties under the Transaction
Documents.
7.4 Notices. Any
and all notices or other communications or deliveries required or permitted
to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission and electronic or
mechanical confirmation of receipt, if such notice or communication is delivered
via facsimile or email at the facsimile number or email address specified
in
this Section prior to 6:30 p.m. (New York City time) on a Trading Day,
(b) the next Trading Day after the date of transmission and electronic or
mechanical confirmation of receipt, if such notice or communication is delivered
via facsimile or email at the facsimile number or email address specified
in
this Section on a day that is not a Trading Day or later than 6:30 p.m. (New
York City time) on any Trading Day, (c) the Trading Day following the date
of deposit with a nationally recognized overnight courier service, or
(d) upon actual receipt by the party to whom such notice is required to be
given. The addresses, facsimile numbers and email addresses for such
notices and communications are those set forth on the signature pages hereof,
or
such other address or facsimile number as may be designated in writing
hereafter, in the same manner, by any such Person. In addition, a
copy (solely for informational purposes) of any notice required to be delivered
to any Investor shall be delivered to the following address:
Schulte
Roth & Zabel LLP
919
Third
Avenue
New
York,
New York 10022
Telephone: (212)
756-2000
Facsimile: (212)
593-5955
E-Mail: eleazer.klein@srz.com
Attention: Eleazer
N. Klein, Esq.
7.5 Amendments;
Waivers. No provision of this Agreement may be waived or amended
except in a written instrument signed, in the case of an amendment, by the
Company and each of the Investors or, in the case of a waiver, by the party
against whom enforcement of any such waiver is sought. No waiver of
any default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver
of
any subsequent default or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of any party to exercise
any
right hereunder in any manner impair the exercise of any such
right. No amendment shall be effective to the extent that it applies
to less than all of the holders of the applicable Securities then
outstanding. No consideration (other than the reimbursement of legal
fees) shall be offered or paid to any Person to amend or consent to a waiver
or
modification of any provision of any of the Transaction Documents unless
the
same consideration also is offered to all of the parties to the Transaction
Documents or holders of the Warrants, as the case may be. The Company
has not, directly or indirectly, made any agreements with any Investors relating
to the terms or conditions of the transactions contemplated by the Transaction
Documents except as set forth in the Transaction Documents. Without
limiting the foregoing, the Company confirms that, except as set forth in
this
Agreement, no Investor has made any commitment or promise or has any other
obligation to provide any financing to the Company or otherwise.
7.6 Construction. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. 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.
7.7 Successors
and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Investors;
provided, however this Agreement shall be assigned to any
corporation or association into which the Company may be merged or converted
or
with which it may be consolidated, or any corporation, association or other
similar entity resulting from any merger, conversion or consolidation to
which
the Company shall be a party without the execution or filing of any paper
with
any partner hereto or any further act on the part of any of the parties to
this
Agreement except where an instrument of transfer or assignment is required
by
law to effect such succession, anything herein to the contrary
notwithstanding. Any Investor may assign its rights under this
Agreement to any Person to whom such Investor assigns or transfers any
Securities, provided (i) such transferor agrees in writing with the transferee
or assignee to assign such rights, and a copy of such agreement is furnished
to
the Company after such assignment, (ii) the Company is furnished with written
notice of the name and address of such transferee or assignee and (iii) such
transferee agrees in writing to be bound, with respect to the transferred
Securities, by the provisions hereof that apply to the
“Investors.”
7.8 No
Third-Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
7.9 Governing
Law; Venue; Waiver of Jury Trial. THE CORPORATE LAWS OF THE STATE
OF NEW JERSEY SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE
COMPANY AND ITS STOCKHOLDERS. ALL QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT
SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW
YORK. THE COMPANY AND INVESTORS HEREBY IRREVOCABLY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE
CITY
OF NEW YORK, BOROUGH OF MANHATTAN FOR THE ADJUDICATION OF ANY DISPUTE BROUGHT
BY
THE COMPANY OR ANY INVESTOR HEREUNDER, IN CONNECTION HEREWITH OR WITH ANY
TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT
TO
THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY
WAIVE, AND AGREE NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING BROUGHT
BY THE
COMPANY OR ANY INVESTOR, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF ANY SUCH COURT, OR THAT SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF
PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR
OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS
IN
EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE
SHALL
CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY
ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. THE
COMPANY AND INVESTORS HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
7.10 Survival. Unless
this Agreement is terminated under Section 7.1, the representations and
warranties, agreements and covenants contained herein shall survive the Closing
Date. Each Investor shall be responsible solely for its own
representations, warranties, agreements and covenants hereunder.
7.11 Execution. This
Agreement may be executed in two or more counterparts, all of which when
taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered
to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or email attachment, such signature shall create a
valid
and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such facsimile or
email-attached signature page were an original thereof.
7.12 Severability. If
any provision of this Agreement is held to be invalid or unenforceable in
any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and
the
parties will attempt to agree upon a valid and enforceable provision that
is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
7.13 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary
contained in (and without limiting any similar provisions of) the Transaction
Documents, whenever any Investor exercises a right, election, demand or option
owed to such Investor by the Company under a Transaction Document and the
Company does not timely perform its related obligations within the periods
therein provided, then, prior to the performance by the Company of the Company’s
related obligation, such Investor may rescind or withdraw, in its sole
discretion from time to time upon written notice to the Company, any relevant
notice, demand or election in whole or in part without prejudice to its future
actions and rights.
7.14 Replacement
of Securities. If any certificate or instrument evidencing any
Securities is mutilated, lost, stolen or destroyed, the Company shall issue
or
cause to be issued in exchange and substitution for and upon cancellation
thereof, or in lieu of and substitution therefor, a new certificate or
instrument, but only upon receipt of evidence reasonably satisfactory to
the
Company of such loss, theft or destruction and the execution by the holder
thereof of a customary lost certificate affidavit of that fact and an agreement
to indemnify and hold harmless the Company for any losses in connection
therewith. The applicants for a new certificate or instrument under
such circumstances shall also pay any reasonable third-party costs associated
with the issuance of such replacement Securities.
7.15 Remedies. In
addition to being entitled to exercise all rights provided herein or granted
by
law, including recovery of damages, each of the Investors and the Company
will
be entitled to seek specific performance under the Transaction
Documents. The parties agree that monetary damages may not be
adequate compensation for any loss incurred by reason of any breach of
obligations described in the foregoing sentence and hereby agree to waive
in any
action for specific performance of any such obligation (other than in connection
with any action for a temporary restraining order) the defense that a remedy
at
law would be adequate.
7.16 Payment
Set Aside. To the extent that the Company makes a payment or
payments to any Investor hereunder or any Investor enforces or exercises
its
rights hereunder, and such payment or payments or the proceeds of such
enforcement or exercise or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside, recovered from, disgorged
by or are required to be refunded, repaid or otherwise restored to the Company
by a trustee, receiver or any other person under any law (including, without
limitation, any bankruptcy law, state or federal law, common law or equitable
cause of action), then to the extent of any such restoration the obligation
or
part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
7.17 Adjustments
in Share Numbers and Prices. In the event of any stock split,
subdivision, dividend or distribution payable in shares of Common Stock (or
other securities or rights convertible into, or entitling the holder thereof
to
receive directly or indirectly shares of Common Stock), combination or other
similar recapitalization or event occurring after the date hereof, each
reference in any Transaction Document to a number of shares or a price per
share
shall be amended to appropriately account for such event.
7.18 Indemnification. In
consideration of each Investor's execution and delivery of the Transaction
Documents and acquiring the Securities thereunder and in addition to all
of the
Company's other obligations under the Transaction Documents, the Company
shall
defend, protect, indemnify and hold harmless each Investor and each other
holder
of the Securities and all of their stockholders, partners, members, officers,
directors, employees and direct or indirect investors and any of the foregoing
Persons' agents or other representatives (including, without limitation,
those
retained in connection with the transactions contemplated by this Agreement)
(collectively, the "Indemnitees") from and against any and all
actions, causes of action, suits, claims, losses, costs, penalties, fees,
liabilities and damages, and expenses in connection therewith (irrespective
of
whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys' fees and disbursements
(the "Indemnified Liabilities"), incurred by any Indemnitee as
a result of, or arising out of, or relating to (a) any misrepresentation
or
breach of any representation or warranty made by the Company in the Transaction
Documents or (b) any breach of any covenant, agreement or obligation of the
Company contained in the Transaction Documents. To the extent that
the foregoing undertaking by the Company may be unenforceable for any reason,
the Company shall make the maximum contribution to the payment and satisfaction
of each of the Indemnified Liabilities that is permissible under applicable
law. Except as otherwise set forth herein, the mechanics and
procedures with respect to the rights and obligations under this Section
7.18
shall be the same as those set forth in the Registration Rights
Agreement.
7.19 Independent
Nature of Investors’ Obligations and Rights. The obligations of
each Investor under any Transaction Document are several and not joint with
the
obligations of any other Investor, and no Investor shall be responsible in
any
way for the performance of the obligations of any other Investor under any
Transaction Documents. The decision of each Investor to purchase
Securities pursuant to this Agreement has been made by such Investor
independently of any other Investor and independently of any information,
materials, statements or opinions as to the business, affairs, operations,
assets, properties, liabilities, results of operations, condition (financial
or
otherwise) or prospects of the Company which may have been made or given
by any
other Investor or by any agent or employee of any other Investor, and no
Investor or any of its agents or employees shall have any liability to any
other
Investor (or any other person) relating to or arising from any such information,
materials, statements or opinions. Nothing contained herein or in any
Transaction Document, and no action taken by any Investor pursuant thereto,
shall be deemed to constitute the Investors as a partnership, an association,
a
joint venture or any other kind of entity, or create a presumption that the
Investors are in any way acting in concert or as a group with respect to
such
obligations or the transactions contemplated by the Transaction
Document. Each Investor acknowledges that no other Investor has acted
as agent for such Investor in connection with making its investment hereunder
and that no other Investor will be acting as agent of such Investor in
connection with monitoring its investment hereunder. Each Investor
shall be entitled to independently protect and enforce its rights, including
without limitation the rights arising out of this Agreement or out of the
other
Transaction Documents, and it shall not be necessary for any other Investor
to
be joined as an additional party in any Proceeding for such
purpose.
[SIGNATURE
PAGES TO FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories
as of
the date first indicated above.
|
EMCORE
CORPORATION
|
|
By: /s/
Adam Gushard
|
|
Name: Adam
Gushard
|
|
Title: Chief
Financial Officer
|
|
Address
for Notice:
|
|
10420
Research Road, SE
|
|
Albuquerque,
New Mexico 87123
|
|
Facsimile
No.: (505) 332-5000
|
|
Telephone
No.: (505) 332-5038
|
|
Attn:
|
|
With
a copy to:
|
|
Jones
Day
|
|
1755
Embarcadero Road
|
|
Palo
Alto, CA 94303
|
|
Facsimile
No.: (650) 739-3900
|
|
Telephone
No.: (650) 739-3997
|
|
Attn: Steve
Gillette
|
|
and
|
|
Jones
Day
|
|
51
Louisiana Avenue, NW
|
|
Washington,
D.C. 20001
|
|
Facsimile
No.: (201) 626-1700
|
|
Telephone
No.: (202) 879-3483
|
|
Attn: John
Welch
|
SPA
COMPANY SIGNATURE PAGE
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Polar
Securities
Inc.
|
|
By: /s/
Robyn
Schultz
|
|
Name: Robyn
Schultz
|
|
Title: VP,
Polar Securities Inc. (as IA for
certain
managed
accounts)
|
|
Address:372
Bay St., 21st
Fl Toronto, ON
M5R2W9
|
|
Telephone
No.: 416-367-4364
|
|
Facsimile
No.: 416-367-0567
|
|
Email
Address: rschultz@polarsec.com
|
|
Number
of
Shares: 283,100
|
|
Aggregate
Purchase Price: $3,538,750
|
|
Number
of
Warrants: 49,543
|
|
|
Delivery
Instructions (if different than
above):
|
|
|
BMO
Nesbitt Burns Inc.
|
|
|
Account
Reference: 402-20080, Altairis
Offshore
|
|
|
1
First Canadian Place, 35th
Floor
|
|
|
Toronto,
ON M5X 1H3
|
|
|
Attn: Jennifer
Scotland, 416-359-4972
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Polar
Securities
Inc.
|
|
By: /s/
Robyn
Schultz
|
|
Name: Robyn
Schultz
|
|
Title: VP,
Polar Securities Inc. (as IA for
certain
managed
accounts)
|
|
Address:372
Bay St., 21st
Fl Toronto, ON
M5R2W9
|
|
Telephone
No.: 416-367-4364
|
|
Facsimile
No.: 416-367-0567
|
|
Email
Address: rschultz@polarsec.com
|
|
Number
of
Shares: 54,000
|
|
Aggregate
Purchase Price: $680,000
|
|
Number
of
Warrants: 9,520
|
|
|
Delivery
Instructions (if different than
above):
|
|
|
BMO
Nesbitt Burns Inc.
|
|
|
Account
Reference: 402-20055, Altairis Investments
L.P.
|
|
|
1
First Canadian Place, 35th
Floor
|
|
|
Toronto,
ON M5X 1H3
|
|
|
Attn: Jennifer
Scotland, 416-359-4972
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Polar
Securities
Inc.
|
|
By: /s/
Robyn
Schultz
|
|
Name: Robyn
Schultz
|
|
Title: VP,
Polar Securities Inc. (as IA for
certain
managed
accounts)
|
|
Address:372
Bay St., 21st
Fl Toronto, ON
M5R2W9
|
|
Telephone
No.: 416-367-4364
|
|
Facsimile
No.: 416-367-0567
|
|
Email
Address: rschultz@polarsec.com
|
|
Number
of
Shares: 502,500
|
|
Aggregate
Purchase Price: $6,281,250
|
|
Number
of
Warrants: 87,938
|
|
|
Delivery
Instructions (if different than
above):
|
|
|
BMO
Nesbitt Burns Inc.
|
|
|
Account
Reference: 402-20486, Altairis Offshore
Levered
|
|
|
1
First Canadian Place, 35th
Floor
|
|
|
Toronto,
ON M5X 1H3
|
|
|
Attn: Jennifer
Scotland, 416-359-4972
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
THE
QUERCUS
TRUST
|
|
By: /s/
David
Gelbaum
|
|
Name: David
Gelbaum
|
|
Title: Trustee
|
|
Address:1835
Newport Blvd., A109PMB 467
Costa
Mesa,
CA 92627
|
|
Telephone
No.: 949-646-3784
|
|
Facsimile
No.: 949-631-6723
|
|
Email
Address: xaixai@pacbell.net
|
|
Number
of
Shares: 752,000
|
|
Number
of
Warrants: 131,600
|
|
Aggregate
Purchase Price: $9,400,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 14, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Marathon
Global Equity Master Fund, Ltd.
|
|
By: /s/
Jamie
Raboy
|
|
Name: Jamie
Raboy
|
|
Title: Managing
Director
|
|
Address:461
5th
Avenue, 10th
Fl,
New
York,
NY 10017
|
|
Telephone
No.: 212-381-4422
|
|
Facsimile
No.: 212-381-0012
|
|
Email
Address: seichenstein@marathonfund.com
|
|
Number
of
Shares: 600,000
|
|
Number
of
Warrants: 105,000
|
|
Aggregate
Purchase Price: $7,500,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o: Goldman
Sachs & Co.
|
|
|
Address: 30
Hudson Street, Jersey City,
NJ 07302
|
|
Telephone
No. :212-357-2468
|
|
Facsimile
No.:
|
212-428-9370
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
UBS
O’Connor LLC F/B/O:
O’Connor
Pipes Corporate Strategies Master Limited
|
|
By: /s/
Andrew
Martin
|
|
Name: Andrew
Martin
|
|
Title: Managing
Director
|
|
Address:UBS
O’Connor LLCOne North Wacker Drive
32nd
Floor
Chicago,
Illinois 60614
Attn: Robert
Murray
|
|
Telephone
No.: 312-525-6247
|
|
Facsimile
No.: 3112-252-6271
|
|
Email
Address: DL-ubsoc-corpact@ubs.com
|
|
Number
of
Shares: 336,000
|
|
Number
of
Warrants: 58,800
|
|
Aggregate
Purchase Price: $4,200,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
UBS
O’Connor LLC F/B/O:
O’Connor
Global Convertible Arbitrage II Master Limited
|
|
By: /s/
Andrew
Martin
|
|
Name: Andrew
Martin
|
|
Title: Managing
Director
|
|
Address:UBS
O’Connor LLCOne North Wacker Drive
32nd
Floor
Chicago,
Illinois 60614
Attn: Robert
Murray
|
|
Telephone
No.: 312-525-6247
|
|
Facsimile
No.: 312-525-6271
|
|
Email
Address: DL-ubsoc-corpact@ubs.com
|
|
Number
of
Shares: 210,560
|
|
Number
of
Warrants: 36,848
|
|
Aggregate
Purchase Price: $2,632,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
UBS
O’Connor LLC F/B/O:
O’Connor
Global Convertible Arbitrage II Master Limited
|
|
By: /s/
Andrew
Martin
|
|
Name: Andrew
Martin
|
|
Title: Managing
Director
|
|
Address:UBS
O’Connor LLCOne North Wacker Drive
32nd
Floor
Chicago,
Illinois 60614
Attn: Robert
Murray
|
|
Telephone
No.: 312-525-6247
|
|
Facsimile
No.: 312-525-6271
|
|
Email
Address: DL-ubsoc-corpact@ubs.com
|
|
Number
of
Shares: 13,440
|
|
Number
of
Warrants: 2,352
|
|
Aggregate
Purchase Price: $168,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
The
Tocqueville
Fund
|
|
By: /s/
Robert W. Kleinshmidt
|
|
Name: Robert
W.
Kleinshmidt
|
|
Title: Authorized
Portfolio Manager
|
|
Address:40
W. 57th
St. 19th
Floor
New
York,
NY 10019
|
|
Telephone
No.: (212) 698-0849
|
|
Facsimile
No.: (212)
262-0154
|
|
Email
Address: RWK@tocqueville.com
|
|
Number
of
Shares: 225,000
|
|
Aggregate
Purchase Price: $2,812,500
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o: Tocqueville
Asset Mgmt.
|
|
Address: 40
W. 57th
St., 19th
Fl.
|
|
New
York, NY 10019
|
|
Telephone
No.: (212) 698-0849
|
|
Facsimile
No.:
|
(212)
262-0154
|
|
|
Other
Special Instructions: Tax ID:
13-6878714
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Tocqueville
Amerique
|
|
By: /s/
Robert W. Kleinshmidt
|
|
Name: Robert
W.
Kleinshmidt
|
|
Title: Authorized
Portfolio Manager
|
|
Address:EIFB
6.
ave de
Provence 75441 Paris
FRANCE
|
|
Telephone
No.: (212)
698-0849
|
|
Facsimile
No.: (212)
262-0154
|
|
Email
Address: RWK@tocqueville.com
|
|
Number
of
Shares: 45,000
|
|
Aggregate
Purchase Price: $562,500
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o: Tocqueville
Asset Mgmt.
|
|
Address: 40
W. 57th
St., 19th
Fl.
|
|
New
York, NY 10019
|
|
Telephone
No.: (212) 698-0849
|
|
Facsimile
No.:
|
(212)
262-0154
|
|
Other
Special Instructions: Tax ID: n/a
(foreign)
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
MONTBER,
S.A.
INCOME
|
|
By: /s/
Robert W. Kleinshmidt
|
|
Name: Robert
W.
Kleinshmidt
|
|
Title: Authorized
Portfolio Manager
|
|
Address:c/o
The Bank of Bermuda
6.
Front
Street Hamilton HM11
Bermuda
|
|
Telephone
No.: (212)
698-0849
|
|
Facsimile
No.: (212) 262-0154
|
|
Email
Address: RWK@tocqueville.com
|
|
Number
of
Shares: 190,000
|
|
Aggregate
Purchase Price: $2,375,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o: Tocqueville
Asset Mgmt.
|
|
Address: 40
W. 57th
St., 19th
Fl.
|
|
New
York, NY 10019
|
|
Telephone
No.: (212) 698-0849
|
|
Facsimile
No.:
|
(212)
262-0154
|
|
Other
Special Instructions: Tax ID: n/a
(foreign)
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
THORN
LIMITED
|
|
By: /s/
Robert W. Kleinshmidt
|
|
Name: Robert
W.
Kleinshmidt
|
|
Title: Authorized
Portfolio Manager
|
|
Address:c/o
Lepercq Corp. Mgmt.
P.O.
Box HM
2363 Hamilton HM
JX
Bermuda
|
|
Telephone
No.: (212)
698-0849
|
|
Facsimile
No.: (212)
262-0154
|
|
Email
Address: RWK@tocqueville.com
|
|
Number
of
Shares: 35,000
|
|
Aggregate
Purchase Price: $437,500
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o: Tocqueville
Asset Mgmt.
|
|
Address: 40
W. 57th
St., 19th
Fl.
|
|
New
York, NY 10019
|
|
Telephone
No.: (212) 698-0849
|
|
Facsimile
No.:
|
(212)
262-0154
|
|
Other
Special Instructions: Tax ID: n/a
(foreign)
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
KALUNBORG
LTD
BVI
|
|
By: /s/
Robert W. Kleinshmidt
|
|
Name: Robert
W.
Kleinshmidt
|
|
Title: Authorized
Portfolio Manager
|
|
Address:c/o
CODAN TRUST CO.
Richmond
House
12
Par La Ville
Road
Hamilton
HM
JX
Bermuda
|
|
Telephone
No.: (212)
698-0849
|
|
Facsimile
No.: (212) 262-0154
|
|
Email
Address: RWK@tocqueville.com
|
|
Number
of
Shares: 15,000
|
|
Aggregate
Purchase Price: $187,500
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o: Tocqueville
Asset Mgmt.
|
|
Address: 40
W. 57th
St., 19th
Fl.
|
|
New
York, NY 10019
|
|
Telephone
No.: (212) 698-0849
|
|
Facsimile
No.:
|
(212)
262-0154
|
|
Other
Special Instructions: Tax ID: n/a
(foreign)
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
HIGHBRIDGE
INTERNATIONAL LLC
By: Highbridge
Capital Management, LLC
Its: Trading
Manager
|
|
By: /s/
Adam J.
Chill
|
|
Name:Adam
J.
Chill
|
|
Title: Managing
Director
|
|
Address:Highbridge
Capital Management, LLC
9
West 57th
Street,
27th
Floor
New
York,
NY 10019
Attn: Ari
J.
Storch/Adam J. Chill
|
|
Telephone
No.: 212-287-4720
|
|
Facsimile
No.: 212-751-0755
|
|
Email
Address: ari.storch@highbridge.com
adam.chill@highbridge.com
|
|
Number
of
Shares: 500,000
|
|
Number
of
Warrants: 87,500
|
|
Aggregate
Purchase Price: $6,250,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o: Bear
Stearns
|
|
Address: 1
Matratech Center, 20th
Floor
|
|
Brooklyn,
NY 11201
|
|
Telephone
No.: 212-272-3915
|
|
Facsimile
No.:
|
|
Other
Special Instructions: Attn: Elanna
Bradley
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
ARDSLEY
PARTNERS FUND II, L.P.
|
|
By: /s/
Steve
Napoli
|
|
Name:Steve
Napoli
|
|
Title: Partner
|
|
Address:
262 Harbor
Drive
4th
Floor
Stamford,
CT 06902
|
|
Telephone
No.: 203-355-0700
|
|
Facsimile
No.: 203-355-0715
|
|
Email
Address: steve@adrsley.com
|
|
Number
of
Shares: 126,500
|
|
Number
of
Warrants: 22,138
|
|
Aggregate
Purchase Price: $1,581,250
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o: Ardsley
Partners
|
|
Address:
|
262
Harbor Drive, 4th Floor
|
|
Stamford,
CT 06902
|
|
Telephone
No.: 203-355-0700
|
|
Facsimile
No.: 203-355-0715
|
|
Other
Special Instructions: n/a
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
ARDSLEY
PARTNERS INSTITUTIONAL FUND, L.P.
|
|
By: /s/
Steve
Napoli
|
|
Name:Steve
Napoli
|
|
Title: Partner
|
|
Address: 262
Harbor
Drive
4th
Floor
Stamford,
CT 06902
|
|
Telephone
No.: 203-355-0700
|
|
Facsimile
No.: 203-355-0715
|
|
Email
Address: steve@adrsley.com
|
|
Number
of
Shares: 81,800
|
|
Number
of
Warrants: 14,315
|
|
Aggregate
Purchase Price: $1,022,500
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o: Ardsley
Partners
|
|
Address:
|
262
Harbor Drive, 4th Floor
|
|
Stamford,
CT 06902
|
|
Telephone
No.: 203-355-0700
|
|
Facsimile
No.: 203-355-0715
|
|
Other
Special Instructions: n/a
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
ARDSLEY
PARTNERS RENEWABLE FUND, L.P.
|
|
By: /s/
Steve
Napoli
|
|
Name:Steve
Napoli
|
|
Title: Partner
|
|
Address: 262
Harbor
Drive
4th Floor
Stamford,
CT 06902
|
|
Telephone
No.: 203-355-0700
|
|
Facsimile
No.: 203-355-0715
|
|
Email
Address: steve@adrsley.com
|
|
Number
of
Shares: 68,300
|
|
Number
of
Warrants: 11,953
|
|
Aggregate
Purchase Price: $853,750
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o: Ardsley
Partners
|
|
Address:
|
262
Harbor Drive, 4th Floor
|
|
Stamford,
CT 06902
|
|
Telephone
No.: 203-355-0700
|
|
Facsimile
No.: 203-355-0715
|
|
Other
Special Instructions: n/a
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
ARDSLEY
OFFSHORE FUND, LTD.
|
|
By: /s/
Steve
Napoli
|
|
Name:Steve
Napoli
|
|
Title: Agent
/ Advisor
|
|
Address: 262
Harbor
Drive
4th
Floor
Stamford,
CT 06902
|
|
Telephone
No.: 203-355-0700
|
|
Facsimile
No.: 203-355-0715
|
|
Email
Address: steve@adrsley.com
|
|
Number
of
Shares: 88,500
|
|
Number
of
Warrants: 15,488
|
|
Aggregate
Purchase Price: $1,106,250
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o: Ardsley
Partners
|
|
Address:
|
262
Harbor Drive, 4th Floor
|
|
Stamford,
CT 06902
|
|
Telephone
No.: 203-355-0700
|
|
Facsimile
No.: 203-355-0715
|
|
Other
Special Instructions: n/a
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
ARDSLEY
RENEWABLE ENERGY OFFSHORE FUND, LTD.
|
|
By: /s/
Steve
Napoli
|
|
Name:Steve
Napoli
|
|
Title: Director
|
|
Address:
262 Harbor
Drive
4th
Floor
Stamford,
CT 06902
|
|
Telephone
No.: 203-355-0700
|
|
Facsimile
No.: 203-355-0715
|
|
Email
Address: steve@adrsley.com
|
|
Number
of
Shares: 116,100
|
|
Number
of
Warrants: 20,318
|
|
Aggregate
Purchase Price: $1,451,250
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o: Ardsley
Partners
|
|
Address:
|
262
Harbor Drive, 4th Floor
|
|
Stamford,
CT 06902
|
|
Telephone
No.: 203-355-0700
|
|
Facsimile
No.: 203-355-0715
|
|
Other
Special Instructions: n/a
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
MARION
LYNTON
|
|
By: /s/
Steve
Napoli
|
|
Name:Steve
Napoli
|
|
Title: Agent
/ Advisor
|
|
Address: 262
Harbor
Drive
4th
Floor
Stamford,
CT 06902
|
|
Telephone
No.: 203-355-0700
|
|
Facsimile
No.: 203-355-0715
|
|
Email
Address: steve@adrsley.com
|
|
Number
of
Shares: 3,200
|
|
Number
of
Warrants: 560
|
|
Aggregate
Purchase Price: $40,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o: Ardsley
Partners
|
|
Address:
|
262
Harbor Drive, 4th Floor
|
|
Stamford,
CT 06902
|
|
Telephone
No.: 203-355-0700
|
|
Facsimile
No.: 203-355-0715
|
|
Other
Special Instructions: n/a
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
HFR
HE ARDSLEY MASTER TRUST
|
|
By: /s/
Steve
Napoli
|
|
Name:Steve
Napoli
|
|
Title: Agent
/ Advisor
|
|
Address:
262 Harbor
Drive
4th
Floor
Stamford,
CT 06902
|
|
Telephone
No.: 203-355-0700
|
|
Facsimile
No.: 203-355-0715
|
|
Email
Address: steve@adrsley.com
|
|
Number
of
Shares: 15,600
|
|
Number
of
Warrants: 2,730
|
|
Aggregate
Purchase Price: $195,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o: Ardsley
Partners
|
|
Address:
|
262
Harbor Drive, 4th Floor
|
|
Stamford,
CT 06902
|
|
Telephone
No.: 203-355-0700
|
|
Facsimile
No.: 203-355-0715
|
|
Other
Special Instructions: n/a
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
HUDSON
BAY OVERSEAS FUND LTD
|
|
By: /s/
Yoav
Roth
|
|
Name:Yoav
Roth
|
|
Title: Principal
& Portfolio Manager
|
|
Address:
120 Broadway, 40th
Floor
New
York,
NY 10271
|
|
Telephone
No.: 212-571-1244
|
|
Facsimile
No.: 212-571-1279
|
|
Email
Address: investments@hudsonbaycapital.com
|
|
Number
of
Shares: 545,600
|
|
Number
of
Warrants: 95,480
|
|
Aggregate
Purchase Price: $6,820,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
HUDSON
BAY FUND
LTD
|
|
By: /s/
Yoav
Roth
|
|
Name:Yoav
Roth
|
|
Title: Principal
& Portfolio Manager
|
|
Address:
120 Broadway, 40th
Floor
New
York,
NY 10271
|
|
Telephone
No.: 212-571-1244
|
|
Facsimile
No.: 212-571-1279
|
|
Email
Address: investments@hudsonbaycapital.com
|
|
Number
of
Shares: 334,400
|
|
Number
of
Warrants: 58,520
|
|
Aggregate
Purchase Price: $4,180,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Portside
Growth and Opportunity Fund
|
|
By: /s/
Jeff
Smith
|
|
Name:Jeff
Smith
|
|
Title: Authorized
Signatory
|
|
Address:
Portside
Growth and Opportunity
Fund
c/o
Ramius Capital
Group
666
Third Avenue, 26th
Floor
New
York,
NY 10271
|
|
Telephone
No.: (212)
845-7955
|
|
Facsimile
No.: (212)
201-4802
|
|
Email
Address: jsmith@ramius.com
olittman@raimus.com
|
|
Number
of
Shares: 480,000
|
|
Number
of
Warrants: 84,000
|
|
Aggregate
Purchase Price: $6,000,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
|
Address: **PLEASE
SEE ATTACHED FOR DELIVERY
INSTRUCTIONS**
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Empire
Capital Partners,
LTD
|
|
By: /s/
Peter J.
Richards
|
|
Name:Peter
J.
Richards
|
|
Title: Managing
Member of Empire Capital Management, LLC (investment manager to
Empire
Capital Partners, LTD)
|
|
Address:
One Gorham Island, Suite 201
Westport,
CT 06880 USA
|
|
Telephone
No.: 203-454-1019
|
|
Facsimile
No.:
203-454-1539
|
|
Email
Address: pjr@empirecapital.com
|
|
Number
of
Shares: 144,600
|
|
Number
of
Warrants: 25,305
|
|
Aggregate
Purchase Price: $1,807,500
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Empire
Capital Partners,
LP
|
|
By: /s/
Peter J.
Richards
|
|
Name:Peter
J.
Richards
|
|
Title: Managing
Member of Empire Capital Management, LLC (investment manager to
Empire
Capital Partners, LP)
|
|
Address:
One Gorham Island, Suite 201
Westport,
CT 06880 USA
|
|
Telephone
No.: 203-454-1019
|
|
Facsimile
No.: 203-454-1539
|
|
Email
Address: pjr@empirecapital.com
|
|
Number
of
Shares: 155,400
|
|
Number
of
Warrants: 27,195
|
|
Aggregate
Purchase Price: $1,942,500
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 14, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Capital
Ventures
International
By: Heights
Capital Management, Inc.
its
authorized
agent
|
|
By: /s/
Michael
Spolan
|
|
Name:Michael
Spolan
|
|
Title: General
Counsel
|
|
Address:
c/o Heights Capital Management
101
California Street, Suite
3250
San
Francisco,
CA 94111
|
|
Telephone
No.: 415-403-6500
|
|
Facsimile
No.: 415-403-6525
|
|
Email
Address: Martin.Kobinger@sig.com
|
|
Number
of
Shares: 300,000
|
|
Number
of
Warrants: 52,500
|
|
Aggregate
Purchase Price: $3,750,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Iroquois
Masterfund,
Ltd.
|
|
By: /s/
John
Silverman
|
|
Name:John
Silverman
|
|
Title: Authorized
Signatory
|
|
Address:
641 Leigh
Ave.,
New
York,
NY 10023
|
|
Telephone
No.: 212-924-3000
|
|
Facsimile
No.:
|
|
Email
Address: JSilverman@____.com
|
|
Number
of
Shares: 300,000
|
|
Number
of
Warrants: 52,500
|
|
Aggregate
Purchase Price: $3,750,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Kingdon
Associates
|
|
By: /s/
Alan
Winters
|
|
Name:Alan
Winters
|
|
Title: Chief
Operating
Officer
|
|
Address:
152 West 57th
Street,
50th
Floor
New
York,
NY 10019
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Email
Address:
|
|
Number
of
Shares: 72,600
|
|
Number
of
Warrants: 12,705
|
|
Aggregate
Purchase Price: $907,500
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
|
Other
Special Instructions: Attn: Alfred
Barbagallo
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
M.
Kingdon Offshore
Ltd.
|
|
By: /s/
Alan
Winters
|
|
Name:Alan
Winters
|
|
Title: Chief
Operating
Officer
|
|
Address:
152 West 57th
Street,
50th
Floor
New
York,
NY 10019
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Email
Address:
|
|
Number
of
Shares: 217,350
|
|
Number
of
Warrants: 38,036
|
|
Aggregate
Purchase Price: $2,716,875
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Kingdon
Family Partnership, L.P.
|
|
By: /s/
Alan
Winters
|
|
Name:Alan
Winters
|
|
Title: Chief
Operating
Officer
|
|
Address: 152
West 57th
Street, 50th
Floor
New
York,
NY 10019
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Email
Address:
|
|
Number
of
Shares: 10,050
|
|
Number
of
Warrants: 1,759
|
|
Aggregate
Purchase Price: $125,625
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Investcorp
Interlachen Multi-Strategy
Master
Fund
Limited
By: Interlachen
Capital Group
LP,
Authorized
Signatory
|
|
By: /s/
Gregg T.
Colburn
|
|
Name:Gregg
T.
Colburn
|
|
Title: Authorized
Signatory
|
|
Address:
Interlachen Capital Group LP
800
Nicollet Mall, Suite
2500
Minneapolis,
MN 55402
|
|
Telephone
No.: 612-659-4407 or 612-659-4450
|
|
Facsimile
No.: 612-659-4457 or 612-659-4401
|
|
Email
Address: gcolburn@interlachencapital.com
AND
legal@interlachencapital.com
|
|
Number
of
Shares: 200,000
|
|
Number
of
Warrants: 35,000
|
|
Aggregate
Purchase Price: $2,500,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:Goldman
Sachs & Co.
|
|
ATTN: Steve
Grandstrand
|
|
Address: One
New York Plaza
|
|
New
York, NY 10004
|
|
Telephone
No.: 212-357-7171
|
|
Facsimile
No.:
|
212-357-0413
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
CD
Investment Partners,
Ltd.:
By: Carpe
Diem Capital Management LLC
Its: Investment
Advisor
|
|
By: /s/
John
Ziegelman
|
|
Name:John
Ziegelman
|
|
Title: President
|
|
Address:
111 South Wacker Drive, Suite 3950
Chicago,
IL 60606
|
|
Telephone
No.: 312-803-5010
|
|
Facsimile
No.: 312-803-5017
|
|
Email
Address: john@cdcapital.com
|
|
Number
of
Shares: 160,000
|
|
Number
of
Warrants: 28,000
|
|
Aggregate
Purchase Price: $2,000,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o: Goldman
Sachs & Co.
|
|
Address: One
New York Plaza, 48th
Floor
|
|
New
York, NY 10004
|
|
Telephone
No.: 212-357-7172
|
|
Facsimile
No.:
|
212-428-5806
|
|
|
Other
Special Instructions: Deliver all original
certificates
|
|
|
and
Warrant to Goldman with a copy to the
Purchaser
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Lagunitas
Partners
LP
|
|
By: /s/
Jon D.
Gruber
|
|
Name:Gruber
& McBaine Cap Mgmt.
|
|
Title: General
Partner
|
|
Address:
Gruber & McGaine Cap Mgmt.
50
Osgood Place –
P4
San
Francisco,
CA 94133
|
|
Telephone
No.: 415-782-2606
|
|
Facsimile
No.: 415-981-6434
|
|
Email
Address: chris@gmcm.com
|
|
Number
of
Shares: 97,000
|
|
Number
of
Warrants: 16,975
|
|
Aggregate
Purchase Price: $1,272,500
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Gruber
& McBaine International
|
|
By: /s/
Jon D.
Gruber
|
|
Name:Gruber
& McBaine Cap Mgmt.
|
|
Title: Investment
Advisor
|
|
Address:
Gruber & McGaine Cap Mgmt.
50
Osgood Place –
P4
San
Francisco,
CA 94133
|
|
Telephone
No.: 415-782-2606
|
|
Facsimile
No.: 415-981-6434
|
|
Email
Address: chris@gmcm.com
|
|
Number
of
Shares: 7,000
|
|
Number
of
Warrants: 1,225
|
|
Aggregate
Purchase Price: $87,500
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Jon
D. & Linda W. Gruber Trust
|
|
By: /s/
Jon D.
Gruber
|
|
Name:Jon
D.
Gruber
|
|
Title: Trustee
|
|
Address:
Gruber & McGaine Cap Mgmt.
50
Osgood Place –
P4
San
Francisco,
CA 94133
|
|
Telephone
No.: 415-782-2606
|
|
Facsimile
No.: 415-981-6434
|
|
Email
Address: chris@gmcm.com
|
|
Number
of
Shares: 56,000
|
|
Number
of
Warrants: 9,800
|
|
Aggregate
Purchase Price: $700,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
CaraCastle
Partners
|
|
By: /s/
Damien
Quinn
|
|
Name:Damien
Quinn
|
|
Title: Principal
|
|
Address:
14 The
Ridge
Plandome,
NY 11030
|
|
Telephone
No.: (212)
619-0222
|
|
Facsimile
No.: (212)
619-0244
|
|
Email
Address: DQuinn@CaraCastle.com
|
|
Number
of
Shares: 88,000
|
|
Number
of
Warrants: 15,400
|
|
Aggregate
Purchase Price: $1,100,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
MMCAP
Int’l Inc.
SPC
|
|
By: /s/
Ben
Cubitt
|
|
Name:Ben
Cubitt
|
|
Title: PM
|
|
Address:
90 Fort St., Box 32021
Grand
Cayman,
|
|
Telephone
No.: 416-408-0998
|
|
Facsimile
No.: 416-352-7553
|
|
Email
Address: bcubitt@hamcap.ky
|
|
Number
of
Shares: 150,000
|
|
Number
of
Warrants: 26,250
|
|
Aggregate
Purchase Price: $1,875,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:MMCAP
Int’l Inc. SPC
|
|
Address:
161 Bay St., 5th
Fl.
|
|
Toronto
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
|
Other
Special Instructions: Ask for Chris
Smith
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Cranshire
Capital,
L.P.
|
|
By: /s/
Mister D.
Kopine
|
|
Name:Mister
D.
Kopine
|
|
Title: President
– Downsview Capital
The
General
Partner
|
|
Address:
3100 Dundee Road, Suite 703
Northbrook,
IL 60062
|
|
Telephone
No.: 847-562-4030
|
|
Facsimile
No.: 847-562-4031
|
|
Email
Address: MKopine@crenshirecapital.com
|
|
Number
of
Shares: 120,000
|
|
Number
of
Warrants: 21,000
|
|
Aggregate
Purchase Price: $1,500,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Enable
Growth Partners
LP
|
|
By: /s/
Brendan
O’Neil
|
|
Name:Brendan
O’Neil
|
|
Title: President
& Chief Investment Officer
|
|
Address:
One Ferry Building, Suite 255
San
Francisco,
CA 94111
|
|
Telephone
No.: 415-677-1578
|
|
Facsimile
No.: 415-677-1580
|
|
Email
Address: boneil@enablecapital.com
|
|
Number
of
Shares: 100,000
|
|
Number
of
Warrants: 17,500
|
|
Aggregate
Purchase Price: $1,250,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
Crestview
Capital Master,
LLC
By: Crestview
Capital Partners, LLC
Its
Sole Manager
|
|
By: /s/
Robert
Hoyt
|
|
Name:Robert
Hoyt
|
|
Title: Manager
|
|
Address:
95 Revere
Drive
Suite
A
Northbrook,
IL 60062
|
|
Telephone
No.: (847) 559-0060
|
|
Facsimile
No.: (847) 559-5807
|
|
Email
Address: adam@crestviewcap.com
|
|
Number
of
Shares: 100,000
|
|
Number
of
Warrants: 17,500
|
|
Aggregate
Purchase Price: $1,250,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase
Agreement”) by and among EMCORE Corporation and the Investors (as
defined therein), as to the number of shares of Common Stock set forth below,
and authorizes this signature page to be attached to the Purchase Agreement
or
counterparts thereof.
|
Name
of Investor:
RHP
Master Fund,
Ltd.
By: Rock
Hill Investment Management, L.P.
By: RHP
General Partner, LLC
|
|
By: /s/
Keith
Marlowe
|
|
Name:Keith
Marlowe
|
|
Title: Director
|
|
Address:
c/o
Rock Hill Investment Management, LP
Three
Bala Plaza – East, Suite 585
Bala
Cynwyd,
PA 19004
|
|
Telephone
No.: 610-949-9700
|
|
Facsimile
No.: 610-676-9600
|
|
Email
Address: kmarlowe@rockhillfunds.com
|
|
Number
of
Shares: 100,000
|
|
Number
of
Warrants: 17,500
|
|
Aggregate
Purchase Price: $1,250,000
|
|
|
Delivery
Instructions (if different than
above):
|
|
c/o:
|
|
Address:
|
|
|
|
Telephone
No.:
|
|
Facsimile
No.:
|
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
Exhibit A
FORM
OF WARRANT
[See
Attached]
Exhibit B
INSTRUCTION
SHEET FOR INVESTOR
(to
be
read in conjunction with the entire Securities Purchase Agreement)
|
A.
|
Complete
the following items in the Securities Purchase
Agreement:
|
|
|
1.
|
Complete
and execute the Investor Signature Page. The Agreement must be
executed by an individual authorized to bind the
Investor.
|
|
|
2.
|
Exhibit
B-1 - Stock Certificate Questionnaire:
|
|
|
Provide
the information requested by the Stock Certificate
Questionnaire;
|
||
|
3.
|
Exhibit
B-2 - Registration Statement Questionnaire:
|
|
|
Provide
the information requested by the Registration Statement
Questionnaire.
|
||
|
4.
|
Exhibit
B-3 - Investor Certificate:
|
|
|
Provide
the information requested by the Investor Certificate.
|
||
|
5.
|
Return,
via facsimile, the signed Securities Purchase Agreement including
the
properly completed Exhibits B-1 through B-3, to:
|
|
|
Facsimile:
|
||
|
Telephone:
|
||
|
Attn:
|
||
|
6.
|
After
completing instruction number five (5) above, deliver the original
signed
Securities Purchase Agreement including the properly completed
Exhibits
B-1 through B-3 to:
|
|
|
Address:
|
||
|
B.
|
Instructions
regarding the wire transfer of funds for the purchase of the Securities
will be telecopied to the Investor by the Company at a later
date.
|
|
Exhibit
B-1
EMCORE
CORPORATION
STOCK
CERTIFICATE QUESTIONNAIRE
|
Please
provide us with the following information:
|
||
|
1.
|
The
exact name that the Securities are to be registered in (this is
the name
that will appear on the stock and warrant certificate(s)). You
may use a nominee name if appropriate:
|
|
|
2.
|
The
relationship between the Investor of the Securities and the Registered
Holder listed in response to item 1 above:
|
|
|
3.
|
The
mailing address, telephone and telecopy number and email address
of the
Registered Holder listed in response to item 1 above:
|
|
|
4.
|
The
Tax Identification Number of the Registered Holder listed in response
to
item 1 above:
|
Exhibit
B-2
EMCORE
CORPORATION
REGISTRATION
STATEMENT QUESTIONNAIRE
In
connection with the Registration Statement, please provide us with the following
information regarding the Investor.
1. Please
state your organization’s name exactly as it should appear in the Registration
Statement:
Except
as
set forth below, your organization does not hold any equity securities of
theCompany on behalf of another person or entity.
State
any
exceptions here:
If
the
Investor is not a natural person, please identify the natural person or persons
who willhave voting and investment control over the Securities owned by the
Investor:
2. Address
of your organization:
Telephone: __________________________
Fax: ________________________________
Contact
Person: _______________________
3. Have
you or your organization had any position, office or other material relationship
within the past three years with the Company or its
affiliates? (Include any relationships involving you or any of your
affiliates, officers, directors, or principal equity holders (5% or more)
that
has held any position or office or has had any other material relationship
with
the Company (or its predecessors or affiliates) during the past three
years.)
_______ Yes _______ No
If
yes,
please indicate the nature of any such relationship below:
4. Are
you the beneficial owner of any other securities of the
Company? (Include any equity securities that you beneficially own or
have a right to acquire within 60 days after the date hereof, and as to which
you have sole voting power, shared voting power, sole investment power or
shared
investment power.)
_______ Yes _______ No
If
yes,
please describe the nature and amount of such ownership as of a recent
date.
5. Except
as set forth below, you wish that all the shares of the Company’s common stock
beneficially owned by you or that you have the right to acquire from the
Company
be offered for your account in the Registration Statement.
State
any exceptions here:
6. Have
you made or are you aware of any arrangements relating to the public
distribution of the Common Shares or Warrant Shares pursuant to the Registration
Statement?
_______ Yes _______ No
If
yes,
please describe the nature and amount of such arrangements.
7. FINRA
Matters
(a) State
below whether (i) you or any associate or affiliate of yours
are a member of the FINRA, a controlling shareholder of an
FINRA member, a person associated with a member, a
direct or indirect affiliate of a member, or an
underwriter or related person with respect to the proposed offering;
(ii) you or any associate or affiliate of yours owns any stock
or other securities of any FINRA member not purchased in the open
market; or (iii) you or any associate or affiliate of yours
has made any outstanding subordinated loans to any FINRA member. If you
are a general or limited partnership, a no answer asserts that no such
relationship exists for you as well as for each of your general or limited
partners.
|
Yes:
__________
|
No:
__________
|
If
“yes,” please identify the FINRA member and describe
your relationship, including, in the case of a general or limited partner,
the
name of the partner:
If
you
answer “no” to Question 7(a), you need not respond to Question
7(b).
(b) State
below whether you or any associate or affiliate of yours has
been an underwriter, or a controlling person or member of any
investment banking or brokerage firm which has been or might be an underwriter
for securities of the Corporation or any affiliate thereof including,
but not limited to, the common stock now being registered.
|
Yes:
__________
|
No:
__________
|
If
“yes,” please identify the FINRA member and describe
your relationship, including, in the case of a general or limited partner,
the
name of the partner.
ACKNOWLEDGEMENT
The
agrees to provide the Company and the Company’s counsel any and all such further
information regarding the undersigned promptly upon request in connection
with
the preparation, filing, amending, and supplementing of the Registration
Statement (or any prospectus contained therein). The undersigned
hereby consents to the use of all such information in the Registration
Statement.
The
undersigned understands and acknowledges that the Company will rely on the
information set forth herein for purposes of the preparation and filing of
the
Registration Statement.
The
undersigned understands that the undersigned may be subject to serious civil
and
criminal liabilities if the information provided by the undersigned hereunder
for use in the Registration Statement, when it becomes effective, either
contains an untrue statement of a material fact or omits to state a material
fact required to be stated in the Registration Statement or necessary to
make
the statements in the Registration Statement not misleading. The
undersigned represents and warrants that all information it provides to the
Company and its counsel is currently materially accurate and complete, and
agrees during the Effectiveness Period and any additional period in which
the
undersigned is making sales of Shares under and pursuant to the Registration
Statement, to promptly notify the Company of any misstatement of a material
fact
with respect to such information provided by the undersigned hereunder in
the
Registration Statement, and of the omission of any material fact necessary
to
make such statements not misleading.
Dated: __________
|
______________________________
|
|
Name
|
|
______________________________
|
|
Signature
|
|
______________________________
|
|
Name
and Title of Signatory
|
Exhibit
B-3
EMCORE
CORPORATION
CERTIFICATE
FOR CORPORATE, PARTNERSHIP, LIMITED LIABILITY COMPANY,
TRUST,
FOUNDATION AND JOINT INVESTORS
If
the
Investor is a corporation, partnership, limited liability company, trust,
pension plan, foundation, joint Investor (other than a married couple) or
other
entity, an authorized officer, partner, or trustee must complete, date and
sign
this Certificate.
CERTIFICATE
The
undersigned certifies that the representations and responses below are true
and
accurate:
(a) The
Investor has been duly formed and is validly existing and has full power
and
authority to invest in the Company. The person signing on behalf of
the undersigned has the authority to execute and deliver the Securities Purchase
Agreement on behalf of the Investor and to take other actions with respect
thereto.
(b) Indicate
the form of entity of the undersigned:
____ Limited
Partnership
____ General
Partnership
____ Limited
Liability Company
____ Corporation
____ Revocable
Trust (identify each grantor and indicate under what circumstances the trust
is
revocable by the grantor):
(Continue
on a separate piece of paper, if necessary.)
____ Other
type of Trust (indicate type of trust and, for trusts other than pension
trusts,
name the grantors and beneficiaries):
(Continue
on a separate piece of paper, if necessary.)
____ Other
form of organization (indicate form of organization ().
(c) Indicate
the approximate date the undersigned entity was formed:.
(d) In
order for the Company to offer and sell the Securities in conformance with
state
and federal securities laws, the following information must be obtained
regarding your investor status. Please initial each category
applicable to you as an investor in the Company.
|
___
|
1.
|
A
bank as defined in Section 3(a)(2) of the Securities Act, or any
savings
and loan association or other institution as defined in Section
3(a)(5)(A)
of the Securities Act whether acting in its individual or fiduciary
capacity;
|
|
___
|
2.
|
A
broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934;
|
|
___
|
3.
|
An
insurance company as defined in Section 2(13) of the Securities
Act;
|
|
___
|
4.
|
An
investment company registered under the Investment Company Act
of 1940 or
a business development company as defined in Section 2(a)(48) of
that
Act;
|
|
___
|
5.
|
A
Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958;
|
|
___
|
6.
|
A
plan established and maintained by a state, its political subdivisions,
or
any agency or instrumentality of a state or its political subdivisions,
for the benefit of its employees, if such plan has total assets
in excess
of $5,000,000;
|
|
___
|
7.
|
An
employee benefit plan within the meaning of the Employee Retirement
Income
Security Act of 1974, if the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of such Act, which is either a
bank, savings and loan association, insurance company, or registered
investment advisor, or if the employee benefit plan has total assets
in
excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited
investors;
|
|
___
|
8.
|
A
private business development company as defined in Section 202(a)(22)
of the Investment Advisers Act of 1940;
|
|
___
|
9.
|
Any
partnership or corporation or any organization described in
Section 501(c)(3) of the Internal Revenue Code or similar business
trust, not formed for the specific purpose of acquiring the Shares,
with
total assets in excess of $5,000,000;
|
|
___
|
10.
|
A
trust, with total assets in excess of $5,000,000, not formed for
the
specific purpose of acquiring the Shares, whose purchase is directed
by a
sophisticated person as described in Rule 506(b)(2)(ii) of the
Exchange Act;
|
|
___
|
11.
|
An
entity in which all of the equity owners qualify under any of the
above
subparagraphs. If the undersigned belongs to this investor
category only, list the equity owners of the undersigned, and the
investor
category which each such equity owner satisfies:
(Continue
on a separate piece of paper, if necessary.)
|
Please
set forth in the space provided below the (i) states, if any, in the U.S.
in which you maintained your principal office during the past two years and
the
dates during which you maintained your office in each state, (ii) state(s),
if any, in which you are incorporated or otherwise organized and
(iii) state(s), if any, in which you pay income taxes.
|
Dated:__________________________,
2008
|
|
Print
Name of Investor
|
|
Name:
|
|
Title:
|
|
(Signature
and title of authorized officer, partner or
trustee)
|
Exhibit C-1
OPINION
OF JONES DAY
We
have
acted as special counsel for Emcore Corporation, a New Jersey corporation
(the
“Company”), in connection with the purchase from the Company by the several
purchasers named in Schedule A attached hereto (collectively, the
“Purchasers”) of common stock, no par value, of the Company (the “Common Stock”)
and warrants to acquire additional shares of Common Stock, pursuant to the
Stock
Purchase Agreement dated as of February 15, 2008 (the “Stock Purchase
Agreement”), by and among the Company and the Purchasers. This letter
is furnished to the Purchasers pursuant to Section 2.2(a)(iii) of the Stock
Purchase Agreement. Except as otherwise defined herein, terms used in
this letter are used as defined in the Stock Purchase Agreement.
In
connection with the opinions expressed herein, we have examined such documents,
records and matters of law as we have deemed relevant or necessary for purposes
of such opinions. Based on the foregoing, and subject to the further
limitations, qualifications and assumptions set forth herein, we are of the
opinion that:
|
1.
|
Assuming
that (a) the Company is a corporation existing and in good standing
under
the laws of State of New Jersey and (b) the Stock Purchase Agreement
and
the Registration Rights Agreement dated as of February 15, 2008
(the
“Registration Rights Agreement”) by and among the Company and the
Purchasers (i) have been (A) authorized by all necessary corporate
action
of the Company and (B) executed and delivered by the Company under
the
laws of the State of New Jersey and (ii) do not violate the laws
of the
State of New Jersey, each of the Stock Purchase Agreement and the
Registration Rights Agreement constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance with
its
terms.
|
|
2.
|
No
consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required in connection
with
the execution, delivery or performance of the Stock Purchase Agreement
and
the Registration Rights Agreement by the Company, or in connection
with
the issuance or sale of the Common Stock and the Warrants by the
Company
to the Purchasers, except as may be required under (i) state securities
or
blue sky laws or (ii) the Securities Act of 1933 (the “Securities Act”) or
the Securities Exchange Act of
1934.
|
|
3.
|
The
execution, delivery and performance of the Stock Purchase Agreement
and
the Registration Rights Agreement by the Company, the issuance
and sale of
the Common Stock and the Warrants by the Company and compliance
with the
terms and provisions of the Stock Purchase Agreement and the Registration
Rights Agreement by the Company will not violate any law or regulation
known to us to be generally applicable to transactions of this
type, or
any order or decree of any court, arbitrator or governmental agency
that
is binding upon the Company or its property (this opinion being
limited to (i) those orders and decrees identified on
Exhibit A attached hereto, and (ii) in that we express no
opinion with respect to any violation not readily ascertainable
from the
face of any such order or decree).
|
|
4.
|
It
is not necessary in connection with the offer and sale of the Common
Stock
and the Warrants to the Purchasers under the Stock Purchase Agreement
to
register the Common Stock or the Warrants under the Securities
Act.
|
|
5.
|
The
Company is not required to register as an “investment company,” as such
term is defined in the Investment Company Act of
1940.
|
The
opinions set forth above are subject to the following limitations,
qualifications and assumptions:
We
have
assumed, for purposes of the opinions expressed herein, the legal capacity
of
all natural persons executing documents, the genuineness of all signatures,
the
authenticity of original and certified documents and the conformity to original
or certified copies of all copies submitted to us as conformed or reproduction
copies. For the purposes of the opinions expressed herein, we also
have assumed that each of the Purchasers has authorized, executed and delivered
the documents to which each of them is a party and that each of such documents
is the valid, binding and enforceable obligation of each of the
Purchasers.
As
to
facts material to the opinions and assumptions expressed herein, we have,
with
your consent, relied upon oral or written statements and representations
of
officers and other representatives of the Company and others, including the
representations and warranties of the Company in the Stock Purchase
Agreement. We have not independently verified such
matters.
Our
opinions set forth in paragraph 1 above with respect to the enforceability
of
the documents referred to in such opinions are subject to: (i) bankruptcy,
insolvency, reorganization, fraudulent transfer and fraudulent conveyance,
voidable preference, moratorium or other similar laws, and related regulations
and judicial doctrines from time to time in effect, relating to or affecting
creditors’ rights and remedies generally; (ii) the effect of general principles
of equity, whether enforcement is considered in a proceeding in equity or
at law
(including the possible unavailability of specific performance or injunctive
relief), concepts of materiality, good faith and fair dealing and the discretion
of the court before which any proceeding may be brought; (iii) the qualification
that we express no opinion as to the validity, binding effect or enforceability
of any provision in any document or security (A) relating to indemnification,
contribution or exculpation that may be violative of the public policy
underlying any law, rule or regulation (including any federal or state
securities law, rule or regulation) or (B) that imposes payment obligations
at a
rate or in an amount that a court would determine in the circumstances under
applicable law to be commercially unreasonable or a penalty or a forfeiture;
and
(iv) the qualification that to the extent any opinion relates to the
enforceability of the choice of New York law and choice of New York forum
provisions of the documents or securities referred to therein, our opinion
is
rendered in reliance upon N.Y. Gen. Oblig. Law §§ 5-1401, 5-1402 (McKinney 2001)
and N.Y. C.P.L.R. 327(b) (McKinney 2001), and that such enforceability may
be
limited by public policy considerations.
With
respect to our opinions in paragraph 3 above, we express no opinion as to
state
securities or “blue sky” laws.
In
rendering the opinions set forth in paragraph 4 above, we have assumed: (i)
that
the offer and sale of the Common Stock and the Warrants will be conducted
solely
in the manner contemplated by the Stock Purchase Agreement; and (ii) the
accuracy and completeness of the respective representations and warranties
of
the Company and the Purchasers and compliance with their respective covenants
and agreements as set forth in the Stock Purchase Agreement.
The
opinions expressed herein are limited to (i) the federal securities laws
of the
United States of America and (ii) the laws of the State of New York, in each
case as currently in effect, and we express no opinion as to the effect of
the
laws of any other jurisdiction on the opinions expressed herein.
We
express no opinion as to the compliance or noncompliance, or the effect of
the
compliance or noncompliance, of each of the addressees or any other person
or
entity with any state or federal laws or regulations applicable to each of
them
by reason of their status as or affiliation with a federally insured depository
institution. Our opinions are limited to those expressly set forth
herein, and we express no opinions by implication.
This
letter is furnished by us to you solely for the benefit of the Purchasers
and
solely with respect to the purchase of the Common Stock and Warrants from
the
Company by the Purchasers, upon the understanding that we are not hereby
assuming any professional responsibility to any other person whatsoever,
and
that this letter is not to be used, circulated, quoted or otherwise referred
to
for any other purpose.
|
C-2- |
Exhibit C-2
OPINION
OF DILLON, BITAR & LUTHER, L.L.C.
The
opinion of Dillon, Bitar & Luther, L.L.C. shall be substantially in the form
of the following paragraph and subject to customary exceptions and
qualifications.
1. The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of New Jersey, with corporate power
and
authority to own, lease and operate its properties and to conduct its business
as described in the Public Fillings and to enter into and perform its
obligations under this Agreement.
2. The
Company has all necessary corporate power and authority to execute and deliver
the Transaction Documents, to perform its obligations thereunder to issue
the
Notes and to consummate the other Transactions.
3. Each
of the Stock Purchase Agreement and Registration Rights Agreement has been
duly
authorized, executed and delivered by the Company and constitutes a valid
and
binding agreement of the Company, enforceable against the Company in accordance
with its terms.
4. The
Company has all necessary power and authority to execute, issue and deliver
the
Warrants; the Warrants have been duly authorized for issuance and sale by
the
Company, will be in the form contemplated by the Warrant and, when executed,
countersigned and issued in accordance with the terms of the Warrant and
delivered to and paid for by the Purchasers pursuant to the Purchase Agreements,
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
5. The
Company has all necessary power and authority to issue and deliver the Warrant
Shares; the Warrant Shares have been duly reserved for issuance by the Company
provided that such opinion may be based solely on the number of Warrant Shares
issuable as of the Closing Date, without regard to the anti-dilution provisions
of the Warrants, and, assuming any additional Warrant Shares which are issuable
based on such anti-dilution provisions have been duly reserved for issuance
by
the Company, Warrant Shares, when issued in accordance with the Warrant,
will be
validly issued, fully paid and nonassessable; and such Warrant Shares will
be
issued in compliance with federal and state securities laws.
6. The
Company has all necessary power and authority to issue and deliver the shares
of
Common Stock; the shares of Common Stock have been duly authorized, and,
when
duly issued and delivered to holders of the Common Stock, the Common Stock
will
be duly and validly issued, fully paid and nonassessable and will be issued
in
compliance with federal and state securities laws.
7. The
execution and delivery of the Transaction Documents by the Company, the
performance by the Company of its obligations thereunder (other than performance
by the Company of its obligations under the indemnification sections of such
agreements, as to which no opinion need be rendered), including the issuance
and
sale of the Securities and the issuance of the Warrant Shares upon conversion
of
the Warrants (i) will not result in any violation of the provisions of the
charter or by-laws of the Company or any subsidiary; (ii) will not
result in any violation of any federal or New Jersey law or, to the best
knowledge of such counsel any administrative regulation or administrative
or
court decree, applicable to the Company or any of its subsidiaries; or (iii)
will not require any consent, approval, authorization or other order of,
or
registration or filing with, any court or other governmental or regulatory
authority or agency, except (i) with respect to the transactions contemplated
by
the Resale Registration Rights Agreement as may be required under the Securities
Act and the Exchange Act, (ii) as required by the state securities or “blue sky”
laws and (iii) for such consents, approvals, authorizations, orders, filings
or
registrations which have been obtained or made.
|
C-2- |
Exhibit D
COMPANY
TRANSFER AGENT INSTRUCTIONS
[COMPANY
TRANSFER AGENT]
[ADDRESS]
Attention: [_________],
Account Representative
Ladies
and Gentlemen:
Reference
is made to that certain Securities Purchase Agreement, dated as of [January
__],
2008 (the “Agreement”), by and among EMCORE Corporation (the
“Company”), and the investors named on the Schedule
of
Investors attached thereto (collectively, the “Holders”),
pursuant to which the Company is issuing to the Holders shares (the
“Common Shares”) of Common Stock of the Company, no par value
(the “Common Stock”), and Warrants (the
“Warrants”), which are exercisable into shares
of Common
Stock.
In
connection with the consummation of the transactions contemplated by the
Agreement, this letter shall serve as our irrevocable authorization and
direction to you:
(i) to
issue an aggregate of _______ shares of our Common Stock in the names and
denominations set forth on Annex I attached hereto. The certificates should
bear
the legend set forth on Annex II attached hereto and “stop
transfer” instructions should be placed against their subsequent
transfer. Kindly deliver the certificates to the respective delivery
addresses set forth on Annex I via hand delivery or overnight
courier. We confirm that these shares will be validly issued, fully
paid and non-assessable upon issuance; and
(ii) to
issue (provided that you are the transfer agent of the Company at such time)
certificates for shares of Common Stock upon transfer or resale of the Common
Shares and receipt by you of certificate(s) for the Common Shares so transferred
or sold (duly endorsed or accompanied by stock powers duly endorsed, in each
case with signatures guaranteed and otherwise in form eligible for
transfer).
(iii) to
issue (provided that you are the transfer agent of the Company at such time)
shares of Common Stock upon the exercise of the Warrants (the “Warrant
Shares”) to or upon the order of a Holder from time to time upon
delivery to you of a properly completed and duly executed Exercise Notice,
in
the form attached hereto as Annex II, which has been acknowledged by the
Company as indicated by the signature of a duly authorized officer of the
Company thereon.
You
acknowledge and agree that so long as you have previously received
(a) written confirmation from the Company’s legal counsel that either
(i) a registration statement covering resales of the Common Shares and the
Warrant Shares has been declared effective by the Securities and Exchange
Commission (the “SEC”) under the Securities Act of 1933, as
amended (the “Securities Act”), or (ii) the Common Shares
and the Warrant Shares are eligible for sale in conformity with Rule 144(k)
(or
Rule 144 after February 15, 2008) under the Securities Act
(“Rule 144”) and (b) if applicable, a copy of such
registration statement, then, unless otherwise required by law, within three
(3) business days of your receipt of certificates representing the Common
Shares and the Warrant Shares, you shall issue the certificates representing
the
Common Shares and the Warrant Shares to the Holders or their transferees,
as the
case may be, registered in the names of such Holders or transferees, as the
case
may be, and such certificates shall not bear any legend restricting transfer
of
the Common Shares and the Warrant Shares thereby and should not be subject
to
any stop-transfer restriction. Any certificates tendered for transfer
shall be endorsed or with stock powers attached, signatures guaranteed, and
otherwise in form necessary to affect transfer.
A
form of
written confirmation from the Company’s outside legal counsel that a
registration statement covering resales of the Common Shares and the Warrant
Shares has been declared effective by the SEC under the Securities Act is
attached hereto as Annex III.
Please
be
advised that the Holders are relying upon this letter as an inducement to
enter
into the Agreement and, accordingly, each Holder is a third party beneficiary
to
these instructions.
Please
execute this letter in the space indicated to acknowledge your agreement
to act
in accordance with these instructions. Should you have any questions
concerning this matter, please contact our counsel, [____________], Esq.,
at
[(___) ___-____].
|
Very
truly yours,
|
|
|
EMCORE
CORPORATION
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
THE
FOREGOING INSTRUCTIONS ARE
|
|
|
ACKNOWLEDGED
AND AGREED TO
|
|
|
this
___ day of February, 2008
|
|
|
[COMPANY
TRANSFER AGENT]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Enclosures
|
D- |
Exhibit
E
FORM
OF LOCK-UP AGREEMENT
February
__, 2008
Emcore
Corporation
10420
Research Road, SE
Albuquerque,
new Mexico 87123
|
|
Re: EMCORE
Corporation – Lock-Up
Agreement
|
Dear
Sirs:
This
Lock-Up Agreement is being
delivered to you in connection with the Securities Purchase Agreement (the
"Purchase Agreement"), dated as of February __, 2008 by and
among EMCORE Corporation (the "Company") and the investors
party thereto (the "Buyers"), with respect to the issuance of
(i) shares of the Company's common stock, no par value per share (the
"Common Stock") and (ii) warrants which will be exercisable to
purchase shares of Common Stock. Capitalized terms used herein and
not otherwise defined herein shall have the respective meanings set forth
in the
Purchase Agreement. This Lock-Up Agreement is one of a series of
Lock-Up Agreements being executed and delivered on the date hereof by the
executive officers of the Company (i.e. Reuben Richards, Hong Hou, Adam Gushard,
Keith Kosco and John Iannelli) (collectively, the “Lock-Up
Agreements”)
In
order to induce the Buyers to enter
into the Purchase Agreement, the undersigned agrees that, commencing on the
date
hereof and ending on the date that is thirty (30) calendar days after the
earlier of (i) the Effective Date and (ii) the last day of the Registration
Period (the "Lock-Up Period"), the undersigned will not (i)
sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant
any
option to purchase, make any short sale or otherwise dispose of or agree
to
dispose of, directly or indirectly, any securities of the Company, or establish
or increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Securities and Exchange
Act of
1934, as amended and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder with respect to any securities of the Company
owned directly by the undersigned (including holding as a custodian) or with
respect to which the undersigned has beneficial ownership within the rules
and
regulations of the Securities and Exchange Commission, in each case, or (ii)
enter into any swap or other arrangement that transfers to another, in whole
or
in part, any of the economic consequences of ownership of any securities
of the
Company, owned directly by the undersigned (including holding as a custodian)
or
with respect to which the undersigned has beneficial ownership within the
rules
and regulations of the Securities and Exchange Commission, whether any such
transaction is to be settled by delivery of such securities, in cash or
otherwise, (collectively, the "Undersigned’s
Shares").
The
foregoing restriction is expressly
agreed to preclude the undersigned or any affiliate of the undersigned from
engaging in any hedging or other transaction which is designed to or which
reasonably could be expected to lead to or result in a sale or disposition
of
the Undersigned’s Shares even if the Undersigned’s Shares would be disposed of
by someone other than the undersigned. Such prohibited hedging or
other transactions would include, without limitation, any short sale or any
purchase, sale or grant of any right (including, without limitation, any
put or
call option) with respect to any of the Undersigned’s Shares or with respect to
any security that includes, relates to, or derives any significant part of
its
value from the Undersigned’s Shares.
Notwithstanding
the foregoing, the
undersigned may transfer the Undersigned’s Shares (i) as a bona fide
gift or gifts, provided that the donee or donees thereof agree to be bound
in
writing by the restrictions set forth herein or (ii) to any trust for the
direct
or indirect benefit of the undersigned or the immediate family of the
undersigned, provided that the trustee of the trust agrees to be bound in
writing by the restrictions set forth herein, and provided further that any
such
transfer shall not involve a disposition for value. For purposes of
this Lock-Up Agreement, “immediate family” shall mean any relationship by blood,
marriage or adoption, not more remote than first cousin. The
undersigned now has, and, except as contemplated by clauses (i) and (ii)
above,
for the duration of this Lock-Up Agreement will have, good and marketable
title
to the Undersigned’s Shares, free and clear of all liens, encumbrances, and
claims whatsoever. The undersigned also agrees and consents to the
entry of stop transfer instructions with the Company’s transfer agent and
registrar against the transfer of the Undersigned’s Shares except in compliance
with the foregoing restrictions. Further, the following shall not be
subject to this Lock-Up Agreement: (i) [Richards only]
an aggregate of up to 100,000 of the Undersigned’s Shares issued upon the
exercise of stock options outstanding on the date hereof, and (ii) the portion
of an aggregate of 200,000 shares of the Company’s common stock for all Lock-Up
Agreements allocated to the undersigned by action of the Board of Directors
of
the Company.
Nothing
contained in this letter
agreement shall restrict, or be deemed to restrict, the undersigned from
entering into any plan adopted and established pursuant to Rule 10b5-1 under
the
Securities Exchange Act of 1934, as amended, so long as no transactions in
the
Company’s securities occur pursuant to such plan prior to the expiration of the
Lock-Up Period.
The
undersigned understands and agrees
that this Lock-Up Agreement is irrevocable and shall be binding upon the
undersigned’s heirs, legal representatives, successors, and
assigns.
This
Lock-Up Agreement may be executed
in two counterparts, each of which shall be deemed an original but both of
which
shall be considered one and the same instrument.
This
Lock-Up Agreement will be governed
by and construed in accordance with the laws of the State of New York, without
giving effect to any choice of law or conflicting provision or rule (whether
of
the State of New York, or any other jurisdiction) that would cause the laws
of
any jurisdiction other than the State of New York to be applied. In
furtherance of the foregoing, the internal laws of the State of New York
will
control the interpretation and construction of this Lock-Up Agreement, even
if
under such jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
The
Company hereby appoints
[______________________________], as its agent for service of process in
New
York. The undersigned hereby appoints
[______________________________], as its agent for service of process in
New
York.
|
|
Very
truly yours,
|
|
|
______________________________
|
|
|
Exact
Name of Stockholder
|
|
|
______________________________
|
|
|
Authorized
Signature
|
|
|
______________________________
|
|
|
Title
|
|
|
Agreed
to and Acknowledged:
|
|
|
EMCORE
CORPORATION
|
|
|
By: _______________________
|
|
|
Name:
|
|
|
Title:
|
|
D- |
ANNEX
I
SCHEDULE
OF INVESTORS
|
Investor
|
Registered
Holder
|
Shares
|
Warrants
|
Purchase
Price
|
Contact
Details and Mailing
|
||
|
Polar
Capital
|
840,000
|
147,000
|
$
10,500,000
|
||||
|
Altairis
Offshore
|
283,100
|
49,543
|
$3,538,750
|
BMO
Nesbitt Burns Inc
Account
Reference: 402-20080, Altairis Offshore
1
First Canadian Place, 35th Floor
Toronto,
ON M5X 1H3
Attn:
Jennifer Scotland, 416-359-4972
|
|||
|
Altairis
Investments, LP
|
54,400
|
9,520
|
$680,000
|
BMO
Nesbitt Burns Inc
Account
Reference: 402-20055, Altairis Offshore
1
First Canadian Place, 35th Floor
Toronto,
ON M5X 1H3
Attn:
Jennifer Scotland, 416-359-4972
|
|||
|
Altairis
Offshore Levered
|
502,500
|
87,938
|
$6,281,250
|
BMO
Nesbitt Burns Inc
Account
Reference: 402-20486, Altairis Offshore
1
First Canadian Place, 35th Floor
Toronto,
ON M5X 1H3
Attn:
Jennifer Scotland, 416-359-4972
|
|||
|
Quercus
Trust
|
The
Quercus Trust
|
752,000
|
131,600
|
9,400,000
|
1835
Newport Blvd, A109
PMB
467
Costa
Mesa, CA 92627
(949)
631-6723
|
||
|
Marathon
|
Marathon
Global Equity Master Fund, Ltd.
|
600,000
|
105,000
|
7,500,000
|
Goldman,
Sachs & Co.
30
Hudson Street
Jersey
City, NJ 07302
212-381-4422
|
||
|
UBS
O'Connor
|
UBS
O'Connor LLC F/B/O: O'Connor Pipes Corporate Strategies Master
Limited
|
336,000
|
58,800
|
4,200,000
|
UBS
O'Connor LLC
One
North Wacker Drive, 32nd floor
Chicago,
IL 60614
Attn:
Robert Murray
|
||
|
UBS
O'Connor LLC F/B/O: O'Connor Global Convertible Arbitrage Master
Limited
|
210,560
|
36,848
|
2,632,000
|
UBS
O'Connor LLC
One
North Wacker Drive, 32nd floor
Chicago,
IL 60614
Attn:
Robert Murray
|
|||
|
UBS
O'Connor LLC F/B/O: O'Connor Global Convertible Arbitrage II Master
Limited
|
13,440
|
2,352
|
168,000
|
UBS
O'Connor LLC
One
North Wacker Drive, 32nd floor
Chicago,
IL 60614
Attn:
Robert Murray
|
|||
|
Tocqueville
|
Tocqueville
Fund
|
225,000
|
39,375
|
2,812,500
|
Tocqueville
Asset Management
40
West 57th Street, 19th Floor
New
York, NY 10019
|
||
|
Tocqueville
Amerique
|
45,000
|
7,875
|
562,500
|
Tocqueville
Asset Management
40
West 57th Street, 19th Floor
New
York, NY 10019
|
|||
|
Montber
S.A. Income
|
190,000
|
33,250
|
2,375,000
|
Tocqueville
Asset Management
40
West 57th Street, 19th Floor
New
York, NY 10019
|
|||
|
Thorn
Limited
|
35,000
|
6,125
|
437,500
|
Tocqueville
Asset Management
40
West 57th Street, 19th Floor
New
York, NY 10019
|
|||
|
Kalunbourg
Limited
|
15,000
|
2,625
|
187,500
|
Tocqueville
Asset Management
40
West 57th Street, 19th Floor
New
York, NY 10019
|
|||
|
Highbridge
|
Highbridge
International LLC, by: Highbridge Capital Management LLC, its trading
manager
|
500,000
|
87,500
|
6,250,000
|
Bear
Stearms
1
Metrotech Center, 20th Floor
Brooklyn,
NY 11201
212-272-3915
Attn:
Elanna Bradley
|
||
|
Ardsley
|
Ardsley
Partners Fund II, LP
|
126,500
|
22,138
|
1,581,250
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
||
|
Ardsley
Partners Institutional Fund, LP
|
81,800
|
14,315
|
1,022,500
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
|
Ardsley
Partners Renewable Energy Fund, LP
|
68,300
|
11,953
|
853,750
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
|
Ardsley
Offshore Fund, Ltd
|
88,500
|
15,488
|
1,106,250
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
|
Ardsley
Renewable Energy Offshore Fund, Ltd
|
116,100
|
20,318
|
1,451,250
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
|
Marion
Lynton
|
3,200
|
560
|
40,000
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
|
HFR
HE Ardsley Master Trust
|
15,600
|
2,730
|
195,000
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
|
Hudson
Bay
|
Hudson
Bay Overseas Fund Ltd
|
545,600
|
95,480
|
6,820,000
|
120
Broadway, 40th floorNew York, NY 10271
|
||
|
Hudson
Bay Fund LP
|
334,400
|
58,520
|
4,180,000
|
120
Broadway, 40th floor
New
York, NY 10271
|
|||
|
Ramius
|
Portside
Growth & Opportunity Fund
|
480,000
|
84,000
|
6,000,000
|
David
Larrauri
Account
Manager
Prime
Brokerage
Global
Equity Finance
CITIGROUP
GLOBAL MARKETS INC.
390
Greenwich Street, 3rd floor
New
York, NY 10013
Tel
212-723-5902
|
||
|
Empire
|
Empire
Capital Partners, Ltd
|
155,400
|
27,195
|
1,942,500
|
Empire
Capital Management, LLC
One
Gorham Island, Suite 201
Westport,
CT 06880
203-454-1019
|
||
|
Empire
Capital Partners, Lp
|
144,600
|
25,305
|
1,807,500
|
Empire
Capital Management, LLC
One
Gorham Island, Suite 201
Westport,
CT 06880
203-454-1019
|
|||
|
Heights
|
Capital
Ventures International
|
300,000
|
52,500
|
3,750,000
|
Heights
Capital Management
101
California Street, Suite 3250
San
Francisco, CA 94111
|
||
|
Iroquois
|
Iroquois
Master Fund Ltd.
|
300,000
|
52,500
|
3,750,000
|
641
Lexinton Avenue, 35th floor
New
York, NY 10022
|
||
|
Kingdon
|
Kingdon
Associates
|
72,600
|
12,705
|
907,500
|
152
West 57th Street, 50th Floor
New
York, Ny 10019
|
||
|
M.
Kingdon Offshore Ltd.
|
217,350
|
38,036
|
2,716,875
|
152
West 57th Street, 50th Floor
New
York, Ny 10019
|
|||
|
Kingdon
Family Partnership, L.P.
|
10,050
|
1,759
|
125,625
|
152
West 57th Street, 50th Floor
New
York, Ny 10019
|
|||
|
Interlachen
|
Investcorp
Interlachen Multi-Strategy Master Fund Limited
|
200,000
|
35,000
|
2,500,000
|
Interlachen
Capital Group LP
800
Nicolet Mall, Suite 2500
Minneapolis,
MN 55402
|
||
|
CD
Capital
|
Carpe
Diem Capital Management LLC, c/o Goldman Sachs & Co
|
160,000
|
28,000
|
2,000,000
|
Purchaser:
Carpe
Diem Capital Management LLC
111
South Wacker Drive, Suite 3950
Chicago,
IL 60606
Tel
:312-803-5010
Goldman,
Sachs & Co
One
New York Plaza, 48th Floor
New
York, NY 10004
Tel:
212-357-7172
Fax:
212-428-5806
|
||
|
Gruber
|
Lagunitas
Partners LP
|
97,000
|
16,975
|
1,212,500
|
Gruber
& McBaine Capital Management
50
Osgood Place, PH
San
Francisco, CA 94133
|
||
|
Gruber
& McBaine International
|
7,000
|
1,225
|
87,500
|
Gruber
& McBaine Capital Management
50
Osgood Place, PH
San
Francisco, CA 94133
|
|||
|
Jon
D & Linda W Gruber Trust
|
56,000
|
9,800
|
700,000
|
Gruber
& McBaine Capital Management
50
Osgood Place, PH
San
Francisco, CA 94133
|
|||
|
Cara
Castle
|
Cara
Castle Partners
|
88,000
|
15,400
|
1,100,000
|
14
The Ridge
Plandome,
NY 11030
|
||
|
MM
Capital
|
MMCAP
Int'l Inc SPC
|
150,000
|
26,250
|
1,875,000
|
MMCAP
Int'l Inc SPC
90
Fort St, Box 32021
Grand
Cayman
Cayman
Islands
|
||
|
Cranshire
|
Cranshire
Capital, L.P.
|
120,000
|
21,000
|
1,500,000
|
3100
Dundee Road, Suite 703
NorthBreek,
IL
|
||
|
Enable
|
Enable
Growth Partners
|
100,000
|
17,500
|
1,250,000
|
One
Ferry Building, Suite 255
San
Francisco, CA 94111
|
||
|
Crestview
|
Crestview
Capital Master, LLC
By:
Crestview Capital Partners, LLC, its Sole Manager
|
100,000
|
17,500
|
1,250,000
|
95
Revere Drive, Suite A
Northbrook,
IL 60062
|
||
|
Rock
Hill Investment Management, LP
|
RHP
Master Fund, Ltd.
|
100,000
|
17,500
|
1,250,000
|
c/o
Rock Hill Investment Management, LP
Three
Bala Plaza - East, Suite 585
Bala
Cynwyd, PA 19004
|
||
|
D- |
ANNEX
II
FORM
OF
EXERCISE NOTICE
(To
be
executed by the Holder to exercise the right to purchase shares of Common
Stock
under the foregoing Warrant)
To: EMCORE
Corporation
The
undersigned is the Holder of Warrant No. _______ (the
“Warrant”) issued by EMCORE Corporation, a New Jersey
corporation (the “Company”). Capitalized terms used
herein and not otherwise defined have the respective meanings set forth in
the
Warrant.
(1) The
Warrant is currently exercisable to purchase a total of ______________ Warrant
Shares.
(2) The
undersigned Holder hereby exercises its right to purchase _________________
Warrant Shares pursuant to the Warrant.
(3) The
Holder intends that payment of the Exercise Price shall be made as (check
one):
|
____
|
“Cash
Exercise” under Section 10
|
|
____
|
“Cashless
Exercise” under Section 10
|
(4) If
the holder has elected a Cash Exercise, the holder shall pay the sum of
$____________ to the Company in accordance with the terms of the
Warrant.
(5) Pursuant
to this exercise, the Company shall deliver to the holder _______________
Warrant Shares in accordance with the terms of the Warrant.
(6) Following
this exercise, the Warrant shall be exercisable to purchase a total of
______________ Warrant Shares.
|
Dated: ,
|
Name
of Holder:
|
||
|
(Print)
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
(Signature
must conform in all respects to name of holder as specified on
the face of
the Warrant)
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ACKNOWLEDGED
AND AGREED TO
|
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|
this
___ day of ___________, 200_
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EMCORE
CORPORATION
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By:
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|
Name:
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|
Title:
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D- |
ANNEX
III
FORM
OF
NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT
[COMPANY
TRANSFER AGENT]
[ADDRESS]
Attention: [_________],
Account Representative
Re: EMCORE
Corporation
Ladies
and Gentlemen:
We
are
counsel to EMCORE Corporation, a New Jersey corporation (the
“Company”), and have represented the Company in connection with
that certain Securities Purchase Agreement, dated as of January __, 2008
(the
“Securities Purchase Agreement”), entered into by and among the
Company and the buyers named therein (collectively, the
“Purchasers”) pursuant to which the Company issued to the
Purchasers shares of Common Stock of the Company, no par value (the
“Common Shares”) and Warrants (the
“Warrants”), which are exercisable into shares
of Common Stock
(the “Warrant Shares”). Pursuant to the Securities
Purchase Agreement, the Company agreed to register the resale of the Common
Shares and the Warrant Shares (collectively, the “Registrable
Securities”) under the Securities Act of 1933, as amended (the
“Securities Act”). In connection with the Company’s obligations
under the Securities Purchase Agreement,
on
, 2008, the Company filed a Registration Statement on Form S-3 (File
No. 333-
) (the “Registration Statement”) with the Securities and
Exchange Commission (the “Commission”) relating to the
Registrable Securities which names each of the Purchasers as a selling
shareholder thereunder.
In
connection with the foregoing, we advise you that a member of the SEC’s staff
has advised us by telephone that the SEC has entered an order declaring the
Registration Statement effective under the Securities Act at
[a.m.][p.m.]
on
, 2008, and we have no knowledge, after telephonic inquiry of a member of
the
staff, that any stop order suspending its effectiveness has been issued or
that
any proceedings for that purpose are pending before, or threatened by, the
Commission and the Registrable Securities are available for resale under
the
Securities Act pursuant to the Registration Statement.
This
letter shall serve as our standing notice to you that the Common Shares and
the
Warrant Shares may be freely transferred by the Purchasers pursuant to the
Registration Statement so long as the Holders certify they will comply with
the
plan of distribution description in connection with sales or transfers of
the
Common Shares and the Warrant Shares set forth in the Registration Statement
and
with the prospectus delivery requirements of the Securities Act, to the extent
such delivery requirement are applicable. You need not require further letters
from us to effect any future legend-free issuance or reissuance of shares
of the
Common Shares and the Warrant Shares to the Purchasers or the transferees
of the
Purchasers, as the case may be, as contemplated by the Company’s Irrevocable
Transfer Agent Instructions dated
, 2008.
|
D- |
Schedule
3.1(f)
CAPITALIZATION
As
of
February 14, 2008.
Preferred
Stock, $0.0001 par: 5,882,000 shares authorized, no shares
outstanding.
Common
Stock, no par value: 100,000,000 shares authorized,
64,321,018 shares issued and 64,460,503 shares outstanding.
Options:
5,314,414 outstanding; 3,759,653 vested and expected to vest; 2,324,953
exercisable.
Convertible
Subordinated Notes: $1,669,000 outstanding.
Schedule
3.1(g)
SEC
REPORTS
|
1.
|
Annual
Report on Form 10-K for the fiscal year ended September 30,
2006.
|
|
2.
|
Quarterly
Report on Form 10-Q for the quarterly period ended December 31,
2006.
|
|
3.
|
Quarterly
Report on Form 10-Q for the quarterly period ended March 31,
2007.
|
|
4.
|
Quarterly
Report on Form 10-Q for the quarterly period ended June 30,
2007.
|
Schedule
3.1(h)
MATERIAL
CHANGES
None.
Schedule
3.1(n)
LISTING
AND MAINTENANCE REQUIREMENTS
|
1.
|
NASDAQ
Staff Determination letter dated December 18, 2006 regarding failure
to
file annual report on Form 10-K for the fiscal year ended September
30,
2006.
|
|
2.
|
NASDAQ
Staff Determination letter dated February 13, 2007, regarding failure
to
comply with NASDAQ Marketplace Rule 4310(c)(14) for failure to
file
quarterly report on Form 10-Q for the quarterly period ended December
31,
2006. Similar NASDAQ Staff Determination letters were received
for failure to file quarterly reports on Form 10-Q for the quarterly
periods ended March 31, 2007 and June 30,
2007.
|
|
3.
|
NASDAQ
Staff Determination letter dated October 2, 2007 regarding failure
to
comply with NASDAQ Marketplace Rules 4350(e) and 4350(g) because
the
Company did not hold an annual meeting of stockholders within twelve
months after the Company’s fiscal year
end.
|
|
4.
|
Letter
from NASDAQ Listing and Hearing Review Council dated October 5,
2007
allowing the Company until December 4, 2007 to demonstrate compliance
with
all of the listing requirements of the NASDAQ Global Market
System.
|
|
5.
|
Letter
from NASDAQ Listing Qualifications Panel dated December 12, 2007
stating it had determined that the Company has complied with all
continued
listing standards for listing on the NASDAQ Global
Market.
|