EXHIBIT 10.2 - REGISTRATION RIGHTS AGREEMENT
Published on February 20, 2008
EXHIBIT
10.2
REGISTRATION
RIGHTS AGREEMENT
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is
dated as of February 15, 2008, and is by and among EMCORE Corporation, a
corporation organized under the laws of New Jersey, with its principal offices
at 10420 Research Road SE, Albuquerque, NM 87123 (the
“Company”), and the undersigned buyers (each, a
“Buyer”, and collectively, the
“Buyers”).
WHEREAS:
A. In
connection with the Securities Purchase Agreement by and among the parties
hereto of even date herewith (the “Securities Purchase
Agreement”), the Company has agreed, upon the terms and subject to the
conditions of the Securities Purchase Agreement, to issue and sell on the
date
hereof to each Buyer shares (the “Common Shares”) of the
Company’s common stock, no par value (the “Common Stock”) and
warrants (the “Warrants”) to acquire additional shares of
Common Stock (the shares of Common Stock issuable upon exercise of or otherwise
pursuant to the Warrants issued, collectively, the “Warrant
Shares”).
B. To
induce the Buyers to execute and deliver the Securities Purchase Agreement,
the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended, and the rules and regulations thereunder, or any
similar successor statute (collectively, the “1933 Act”), and
applicable state securities laws.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and each of the
Buyers
hereby agree as follows:
1. Definitions. Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Securities Purchase Agreement. As used in
this Agreement, the following terms shall have the following
meanings:
(a) “1934
Act” means the Securities Exchange Act of 1934, as
amended.
(b) “Business
Day” means any day other than Saturday, Sunday or any other day on
which commercial banks in the City of New York are authorized or required
by law
to remain closed.
(c) “Closing
Date” shall have the meaning set forth in the Securities Purchase
Agreement.
(d) “Effective
Date” means the date the Registration Statement has been declared
effective by the SEC.
(e) “Effectiveness
Deadline” means the date that is ninety (90) days after the Closing
Date (which shall be extended to one hundred twenty (120) days after the
Closing
Date if the Registration Statement is subject to SEC review).
(f) “Eligible
Market” means the American Stock Exchange, the New York Stock Exchange,
Inc., The NASDAQ Global Select Market, The NASDAQ Global Market or The NASDAQ
Capital Market.
(g) “Filing
Deadline” means the date that is thirty (30) days after the Closing
Date.
(h) “Investor”
means a Buyer or any transferee or assignee thereof to whom a Buyer assigns
its
rights under this Agreement and who agrees to become bound by the provisions
of
this Agreement in accordance with Section 9 and any transferee or assignee
thereof to whom a transferee or assignee assigns its rights under this Agreement
and who agrees to become bound by the provisions of this Agreement in accordance
with Section 9.
(i) “Person”
means an individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a government
or any department or agency thereof.
(j) “register”,
“registered” and “registration” refer to a
registration effected by preparing and filing one or more Registration
Statements (as defined below) in compliance with the 1933 Act and pursuant
to
Rule 415 and the declaration or ordering of effectiveness of such Registration
Statement(s) by the SEC.
(k) “Registrable
Securities” means (i) the Common Shares, (ii) the Warrant Shares, and
(iii) any shares of capital stock issued or issuable with respect to the
Common
Shares, the Warrants or the Warrant Shares as a result of any stock split,
stock
dividend, recapitalization, exchange or similar event or otherwise.
(l) “Registration Statement”
means a registration statement or registration statements of the
Company filed under the 1933 Act covering the Registrable
Securities.
(m) “Required
Holders” means the holders of at least 66% of the Registrable
Securities.
(n) “Required
Registration Amount” for the Registration Statement means the sum of
(i) the number of Common Shares issued pursuant to the Securities Purchase
Agreement and (ii) the number of Warrant Shares issued and issuable pursuant
to
the Warrants as of the trading day immediately preceding the applicable date
of
determination.
(o) “Rule
415” means Rule 415 promulgated under the 1933 Act or any successor
rule providing for offering securities on a continuous or delayed
basis.
(p) “SEC”
means the United States Securities and Exchange Commission.
2. Registration.
(a) Mandatory
Registration. The Buyers acknowledge that Form S-3 is not
available for the registration of their resale of the Common
Shares. The Company shall prepare, and, as soon as practicable but in
no event later than the Filing Deadline, file with the SEC the Registration
Statement on Form S-1 covering the resale of at least the number of shares
of
Common Stock equal to the Required Registration Amount determined as of the
date
the Registration Statement is initially filed with the SEC. The
Registration Statement shall contain (except if otherwise directed by the
Required Holders) “Selling Stockholders” and “Plan of
Distribution” sections in substantially the form attached hereto as
Exhibit B. The Company shall use its commercially reasonable
best efforts to have the Registration Statement declared effective by the
SEC as
soon as practicable, but in no event later than the Effectiveness
Deadline. No later than 9:30 a.m. Eastern Time on the first Business
Day following the Effective Date, the Company shall notify the Holders of
the
effectiveness of the Registration Statement (which notice shall be transmitted
to all Holders at approximately the same time) and, no later than the second
Business Day following the Effective Date, the Company shall file with the
SEC,
in accordance with Rule 424 under the 1933 Act, the final prospectus to be
used
in connection with sales pursuant to such Registration Statement.
(b) Legal
Counsel. Subject to Section 5 hereof, the Required Holders shall
have the right to select one legal counsel to review any registration pursuant
to this Section 2 (“Legal Counsel”), which shall be Schulte
Roth & Zabel LLP, or such counsel as thereafter designated by the Required
Holders. The Company and Legal Counsel shall reasonably cooperate
with each other in performing the Company’s obligations under this
Agreement.
(c) Sufficient
Number of Shares Registered. In the event the number of shares
available under a Registration Statement filed pursuant to Section 2(a) is
insufficient to cover all of the Registrable Securities, the Company shall
amend
the applicable Registration Statement, or file a new Registration Statement,
or
both, to register any unregistered portion of the Required Registration Amount
of Registrable Securities, determined as of the trading day immediately
preceding the date of the filing of such amendment or new Registration
Statement. The filing of the amendment or new Registration Statement,
as applicable, should occur as soon as practicable. The Company shall
use its commercially reasonable best efforts to cause such amendment and/or
new
Registration Statement to become effective as soon as practicable following
the
filing thereof. For purposes of the foregoing provision, the number
of shares available under a Registration Statement shall be deemed “insufficient
to cover all of the Registrable Securities” if at any time the number of shares
of Common Stock available for resale under the Registration Statement is
less
than the Required Registration Amount. The calculation set forth in
the foregoing sentence shall be made without regard to any limitations on
the
exercise of the warrants and such calculation shall assume that the Warrants
are
then exercisable into shares of Common Stock.
(d) Effect
of Failure to File and Obtain and Maintain Effectiveness of Registration
Statement. If (i) a Registration Statement covering all of the
Registrable Securities required to be covered thereby and required to be
filed
by the Company pursuant to this Agreement is (A) not filed with the SEC on
or
before the Filing Deadline (a “Filing Failure”) or (B) not
declared effective by the SEC on or before the Effectiveness Deadline (an
“Effectiveness Failure”); (ii) on any day after the Effective
Date sales of all of the Registrable Securities required to be included on
such
Registration Statement cannot be made (other than during an Allowable Grace
Period (as defined in Section 3(n)) pursuant to such Registration Statement
(including, without limitation, because of a failure to keep such Registration
Statement effective, failure to disclose such information as is necessary
for
sales to be made pursuant to such Registration Statement or failure to register
a sufficient number of shares of Common Stock or failure to maintain the
listing
of the Common Stock on an Eligible Market) (a “Maintenance
Failure”); or (iii) after the date six months following the Closing
Date, the Company fails to file with the SEC any required reports under Section
13 or 15(d) of the 1934 Act such that it is not in compliance with Rule
144(c)(1) as a result of which the Buyers are unable to sell Registrable
Securities without restriction under Rule 144 (or any successor thereto)
(a
“Current Public Information Default”) then, as liquidated
damages reflecting a reasonable approximation of the uncertain damages to
any
holder by reason of any such delay in or reduction of its ability to sell
the
underlying shares of Common Stock, the Company shall pay to each holder of
Registrable Securities relating to such Registration Statement an amount
in cash
equal to one (1) percent (1%) of the aggregate Purchase Price) (as such term
is
defined in the Securities Purchase Agreement) of such Investor’s Registrable
Securities included in such Registration Statement on each of the following
dates: (i) the day that a Filing Failure occurs and on every thirtieth day
(pro rated for shorter periods) thereafter until such Filing Failure is cured;
(ii) the day that an Effectiveness Failure occurs and on every thirtieth
day
(pro rated for shorter periods) thereafter until such Effectiveness Failure
is
cured; (iii) the initial day of a Maintenance Failure and on every thirtieth
day
(pro rated for shorter periods) thereafter until such Maintenance Failure
is
cured; and (iv) the day that a Current Public Information Default occurs
and on
every thirtieth day (pro rated for shorter periods) thereafter until such
Current Public Information Default is cured. The payments to which a
holder shall be entitled pursuant to this Section 2(e) are referred to herein
as
“Liquidated Damages.” Liquidated Damages shall be paid on the
earlier of (I) the last day of the calendar month during which such Liquidated
Damages are incurred and (II) the third Business Day after the event or failure
giving rise to the Liquidated Damages is cured. In the event the
Company fails to make Registration Delay Payments in a timely manner, such
Liquidated Damages shall bear simple interest at the rate of four (4) percent
(4%) per month (pro rated for shorter periods) until paid in
full. Notwithstanding anything to the contrary herein or in the
Securities Purchase Agreement, no Liquidated Damages shall be payable for
any
period after the expiration of the Registration Period (except in respect
of a
Current Public Information Default), and in no event shall the aggregate
amount
of Liquidated Damages (excluding Liquidated Damages in respect of Current
Public
Information Defaults) exceed, in the aggregate, ten (10) percent (10%) of
the
aggregate Purchase Price of the Common Shares.
(e) Allocation
of Registrable Securities. The initial number of Registrable
Securities included in any Registration Statement and each increase or decrease
in the number of Registrable Securities included therein shall be allocated
pro
rata among the Investors based on the number of Registrable Securities held
by
each Investor at the time the Registration Statement covering such initial
number of Registrable Securities or increase or decrease thereof is declared
effective by the SEC. In the event that an Investor sells or
otherwise transfers any of such Investor’s Registrable Securities, each
transferee shall be allocated a pro rata portion of the then remaining number
of
Registrable Securities included in such Registration Statement for such
transferor. Any shares of Common Stock included in a Registration
Statement and which remain allocated to any Person which ceases to hold any
Registrable Securities covered by such Registration Statement shall be allocated
to the remaining Investors, pro rata based on the number of Registrable
Securities then held by such Investors which are covered by such Registration
Statement. In no event shall the Company include any securities other
than Registrable Securities on any Registration Statement without the prior
written consent of the Required Holders.
3. Related
Obligations. At such time as the Company is obligated to file a
Registration Statement with the SEC pursuant to Section 2(a), 2(c) or 2(d),
the
Company will use its commercially reasonable best efforts to effect the
registration of the Registrable Securities in accordance with the intended
method of disposition thereof, and the Company and the Investors shall have
the
following obligations:
(a) 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. The Company shall keep each Registration
Statement effective pursuant to Rule 415 at all times until the earlier of
(i)
the first date as of which all Registrable Securities covered by such
Registration Statement may be sold without restriction pursuant to Rule 144
(or
any successor thereto) promulgated under the 1933 Act, or (ii) the date on
which
the Investors shall have sold all of the Registrable Securities covered by such
Registration Statement (the “Registration
Period”). The registration and maintenance obligations under
this Agreement shall automatically terminate at the end of the Registration
Period.
(b) The
Company shall (i) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement
and the
Rule 424 prospectus used in connection with such Registration Statement as
may
be necessary to keep such Registration Statement effective during the
Registration Period, and (ii) during such period, comply with the provisions
of
the 1933 Act with respect to the disposition of all Registrable Securities
covered by such Registration Statement until the end of the Registration
Period. In the case of amendments and supplements to a Registration
Statement that are required to be filed pursuant to this Agreement, including,
pursuant to this Section 3(b), by reason of the Company filing a report on
Form
10-Q, Form 10-K, Form 8-K or any other report or other document under the
Securities Exchange Act of 1934, as amended (each such document, a “1934
Act Report”), the Company shall file such amendments or supplements
with the SEC as soon as practicable after the 1934 Act Report is filed or
other
event occurred that created the requirement for the Company to amend or
supplement such Registration Statement.
(c) The
Company shall (A) permit Legal Counsel to review and comment upon (i) a
Registration Statement at least three (3) Business Days prior to its filing
with
the SEC and (ii) all amendments and supplements to all Registration Statements
(except for amendments and supplements filed solely to include information
contained in 1934 Act Reports) within a reasonable number of days prior to
their
filing with the SEC, and (B) not file any Registration Statement or amendment
or
supplement thereto in a form to which Legal Counsel reasonably
objects. The Company shall not submit a request for acceleration of
the effectiveness of a Registration Statement or any amendment or supplement
thereto without the prior approval of Legal Counsel, which consent shall
not be
unreasonably withheld. The Company shall furnish to Legal Counsel,
without charge, (i) copies of any correspondence from the SEC or the staff
of
the SEC to the Company or its representatives relating to any Registration
Statement, (ii) promptly after the same is prepared and filed with the SEC,
one
copy of any Registration Statement and any amendment(s) thereto, including
financial statements and schedules, all documents incorporated therein by
reference, if requested by an Investor or Legal Counsel, and all exhibits,
and
(iii) upon the effectiveness of any Registration Statement, one copy of the
prospectus included in such Registration Statement and all amendments and
supplements thereto. The Company shall reasonably cooperate with
Legal Counsel in performing the Company’s obligations pursuant to this Section
3.
(d) The
Company shall furnish to each Investor whose Registrable Securities are included
in any Registration Statement, without charge, to the extent requested by
an
Investor, (i) promptly after the same is prepared and filed with the SEC,
at
least one copy of such Registration Statement and any amendment(s) thereto,
including financial statements and schedules, all documents incorporated
therein
by reference, all exhibits and each preliminary prospectus, (ii) upon the
effectiveness of any Registration Statement, ten (10) copies of the prospectus
included in such Registration Statement and all amendments and supplements
thereto (or such other number of copies as such Investor may reasonably
request), and (iii) such other documents, including copies of any preliminary
or
final prospectus, as such Investor may reasonably request from time to time
in
order to facilitate the disposition of the Registrable Securities owned by
such
Investor.
(e) The
Company shall use its commercially reasonable best efforts to (i) register
and
qualify, unless an exemption from registration and qualification applies,
the
resale by Investors of the Registrable Securities covered by a Registration
Statement under such other securities or “Blue Sky” laws of all applicable
jurisdictions in the United States, (ii) prepare and file in those
jurisdictions, such amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be necessary
to
maintain the effectiveness thereof during the Registration Period, (iii)
take
such other actions as may be necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period, and
(iv)
take all other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions; provided, however,
that
the Company shall not be required in connection therewith or as a condition
thereto (x) to qualify to do business in any jurisdiction where it would
not
otherwise be required to qualify but for this Section 3(e), (y) subject itself
to taxation in any such jurisdiction, or (z) to file a consent to service
of
process in any such jurisdiction. The Company shall promptly notify
Legal Counsel and each Investor who holds Registrable Securities of the receipt
by the Company of any notification with respect to the suspension of the
registration or qualification of any of the Registrable Securities for sale
under the securities or “Blue Sky” laws of any jurisdiction in the United States
or its receipt of notice of the initiation or threatening of any proceeding
for
such purpose.
(f) The
Company shall notify Legal Counsel and each Investor in writing of the happening
of any event, as promptly as practicable after becoming aware of such event,
as
a result of which the prospectus included in a Registration Statement, as
then
in effect, includes an untrue statement of a material fact or omission to
state
a material fact necessary to make the statements therein, in the light of
the
circumstances under which they were made, not misleading (provided that in
no
event shall such notice contain any material, nonpublic information in addition
to that specifically required pursuant to this Section 3(f)), and, subject
to
Section 3(n), promptly prepare a supplement or amendment to such Registration
Statement to correct such untrue statement or omission, and, to the extent
requested by an Investor, deliver ten (10) copies of such supplement or
amendment to Legal Counsel and each Investor (or such other number of copies
as
Legal Counsel or such Investor may reasonably request). The Company
shall also promptly notify Legal Counsel and each Investor in writing (i)
when a
prospectus or any prospectus supplement or post-effective amendment has been
filed, and when a Registration Statement or any post-effective amendment
has
become effective (notification of such effectiveness may be delivered to
Legal
Counsel and each Investor by facsimile or email), (ii) of any request by
the SEC
for amendments or supplements to a Registration Statement or related prospectus
or related information, and (iii) of the Company’s reasonable determination that
a post-effective amendment to a Registration Statement would be
appropriate.
(g) The
Company shall use its commercially reasonable best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a
Registration Statement or the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction. If such an order
or suspension is issued, the Company shall use its commercially reasonable
best
efforts to obtain the withdrawal of such order or suspension as promptly
as
practicable, and to notify Legal Counsel and each Investor who holds Registrable
Securities being sold of the issuance of such order and the resolution thereof,
or its receipt of notice of the initiation or threat of any proceeding for
such
purpose.
(h) The
Company shall use its commercially reasonable best efforts to cause all of
the
Registrable Securities covered by a Registration Statement to be listed on
each
securities exchange on which securities of the same class or series issued
by
the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange or secure
designation and quotation of all the Registrable Securities covered by a
Registration Statement or an Eligible Market. The Company shall pay
all fees and expenses in connection with satisfying its obligation under
this
Section 3(h).
(i) The
Company shall cooperate with the Investors who hold Registrable Securities
being
offered and, to the extent applicable, facilitate the timely preparation
and
delivery of certificates (not bearing any restrictive legend) representing
the
Registrable Securities to be offered pursuant to a Registration Statement
and
enable such certificates to be in such denominations or amounts, as the case
may
be, as the Investors may reasonably request and registered in such names
as the
Investors may request.
(j) If
requested by an Investor, the Company shall (i) as soon as practicable,
incorporate in a prospectus supplement or post-effective amendment such
information as an Investor reasonably requests to be included therein relating
to the sale and distribution of Registrable Securities, including, without
limitation, information with respect to the number of Registrable Securities
being offered or sold, the purchase price being paid therefor and any other
terms of the offering of the Registrable Securities to be sold in such offering;
(ii) as soon as practicable, make all required filings of such prospectus
supplement or post-effective amendment after being notified of the matters
to be
incorporated in such prospectus supplement or post-effective amendment; and
(iii) as soon as practicable, supplement or make amendments to any Registration
Statement if reasonably requested by an Investor holding any Registrable
Securities.
(k) The
Company shall use its commercially reasonable best efforts to cause the
Registrable Securities covered by a Registration Statement to be registered
with
or approved by such other governmental agencies or authorities as may be
necessary to consummate the disposition of such Registrable
Securities. If required by the Financial Industry Regulatory
Authority, Inc. (“FINRA”), the Company shall effect a filing
with respect to the public offering contemplated by each Registration Statement
(an “Issuer Filing”) with the FINRA Corporate Financing
Department pursuant to NASD Rule 2710(b)(10)(A)(i) within one Business Day
of
the date that the Registration Statement is first filed with the SEC and
pay the
filing fee required by such Issuer Filing. The Company shall use
commercially reasonable best efforts to pursue the Issuer Filing until FINRA
issues a letter confirming that it does not object to the terms of the offering
contemplated by the Registration Statement as described in the Plan of
Distribution.
(l) The
Company shall make generally available to its security holders as soon as
practical, but in any event not later than ninety (90) days after the close
of
the period covered thereby, an earnings statement (in form complying with,
and
in the manner provided by, the provisions of Rule 158 under the 1933 Act)
covering a twelve-month period beginning not later than the first day of
the
Company’s fiscal quarter next following the effective date of a Registration
Statement.
(m) Within
two (2) Business Days after a Registration Statement which covers Registrable
Securities is ordered effective by the SEC, the Company shall deliver (and/or,
if required by the Company's transfer agent, cause its legal counsel to deliver)
to the transfer agent for such Registrable Securities (with copies to the
Investors whose Registrable Securities are included in such Registration
Statement) confirmation that such Registration Statement has been declared
effective by the SEC in the form attached hereto as Exhibit
A.
(n) Allowable
Grace Periods.
(i)
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Notwithstanding
anything in this Agreement to the contrary, upon (a) the issuance
by the
SEC of a stop order suspending the effectiveness of a Registration
Statement or the initiation of proceedings with respect to any
Registration Statement under Section 8(d) or 8(e) of the Securities
Act,
(b) the occurrence of any event or the existence of any fact (a
“Material Event”) as a result of which such Registration
Statement shall contain any untrue statement of a material fact
or omit to
state any material fact required to be stated therein or necessary
to make
the statements therein not misleading, or any Prospectus shall
contain any
untrue statement of a material fact or omit to state any material
fact
required to be stated therein or necessary to make the statements
therein,
in the light of the circumstances under which they were made, not
misleading, or (c) the occurrence or existence of any pending corporate
development that, in the reasonable discretion of the Company,
makes it
appropriate to suspend the availability of any Registration Statement
and
the related Prospectus, the Company shall (1) in the case of clause
(b)
above, as soon as, in the reasonable judgment of the Company, public
disclosure of such Material Event would not be prejudicial to or
contrary
to the interests of the Company or, if necessary to avoid unreasonable
burden or expense, as soon as reasonably practicable thereafter,
prepare
and file a post-effective amendment to such Registration Statement
or a
supplement to the related Prospectus so that such Registration
Statement
does not contain any untrue statement of a material fact or omit
to state
any material fact required to be stated therein or necessary to
make the
statements therein not misleading, and such Prospectus does not
contain
any untrue statement of a material fact or omit to state any material
fact
required to be stated therein or necessary to make the statements
therein,
in the light of the circumstances under which they were made, not
misleading, as thereafter delivered to purchasers of the
Registrable Securities being offered and sold thereunder, and,
in the case
of a post-effective amendment to a Registration Statement, subject
to the
first sentence of Section 3(n)(ii), use commercially reasonable
best
efforts to cause it to be declared effective as promptly as is
reasonably
practicable, and (2) give notice to Legal Counsel and the selling
Investors that the availability of the Registration Statement and
Prospectus is suspended (a “Deferral
Notice”). The Company shall also give a Deferral
Notice upon the beginning of any Compliance Grace Period (as defined
below) unless a Requested Grace Period (as defined below) is already
in
effect. Upon receipt of any Deferral Notice, each Investor
agrees not to sell any Registrable Securities pursuant to the Registration
Statement or Prospectus until such Investor has been advised in
writing by
the Company that the Registration Statement and Prospectus may
be
used.
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(ii)
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The
Company shall use commercially reasonable best efforts to ensure
that the
use of such Registration Statement and Prospectus may be resumed
(x) in
the case of clause (a) of Section 3(n)(i), as promptly as is practicable,
(y) in the case of clause (b) of Section 3(n)(i), as soon as, in
the
reasonable judgment of the Company, public disclosure of such Material
Event would not be prejudicial to or contrary to the interests
of the
Company or, if necessary to avoid unreasonable burden or expense,
as soon
as reasonably practicable thereafter, and (z) in the case of clause
(c) of
Section 3(n)(i), as soon as, in the reasonable discretion of the
Company,
such suspension is no longer appropriate. The period during
which the availability of a Registration Statement or Prospectus
is
suspended under the circumstances described in clauses (b) or (c)
of
Section 3(n)(i) above is referred to herein as a “Requested Grace
Period.” Any portion of a Requested Grace Period from
the filing of an amendment to a Registration Statement until the
declaration of effectiveness of such amendment by the SEC (so long
as the
Company continues to use commercially reasonable best efforts to
cause
such amendment to be declared effective as promptly as reasonably
practicable), is referred to herein as a “Necessary
Portion.”
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(iii)
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The
following periods are referred to herein as “Compliance Grace
Periods”: (a) any period during which Legal Counsel is
reviewing and commenting on a Registration Statement, Prospectus,
amendment or supplement as contemplated by Section 3(c), (b) any
period
during which the Company is engaged in compliance with Section
3(j)
following the request of an Investor, and (c) any period during
which the
Company is awaiting information or an executed document from one
or more
Investors following a request by the Company as contemplated by
Section
4(a). Requested Grace Periods and Compliance Grace Periods are
referred to collectively herein as “Allowable Grace
Periods.”
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(iv)
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The
aggregate duration of all Requested Grace Periods, excluding the
duration
of any Necessary Portions and any Compliance Grace Periods that
occur
during such Requested Grace Periods, shall not exceed 60 days in
any
12-month period. In order to enforce the covenants of the
Investors set forth in this Section 3(n), the Company may impose
stop
transfer instructions with respect to the Registrable Securities
of each
Investor until the end of each Allowable Grace
Period.
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(v)
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Notwithstanding
anything to the contrary, the Company shall cause its transfer
agent to
deliver unlegended shares of Common Stock to a transferee of an
Investor,
in accordance with the terms of the Securities Purchase Agreement,
in
connection with any sale of Registrable Securities with respect
to which
an Investor has entered into a contract for sale prior to the Company’s
giving of a Deferral Notice and for which the Investor has not
yet
settled, and deliver a copy of the prospectus included as part
of the
applicable Registration Statement (unless an exemption from such
prospectus delivery requirement
exists).
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(o) If
any
Investor is described in the Registration Statement as an underwriter, at
the
reasonable request of such Investor, the Company shall furnish to such Investor,
on the date of the effectiveness of the Registration Statement and thereafter
from time to time on such dates as an Investor may reasonably request (i)
a
letter, dated such date, from the Company’s independent certified public
accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the Investors, and (ii) an opinion, dated as of such date, of
counsel representing the Company for purposes of such Registration Statement,
in
form, scope and substance as is customarily given in an underwritten public
offering, addressed to the Investors; provided, however, the
disclosure found in the “Plan of Distribution” section attached hereto as
Exhibit B shall not give rise to any rights under this Section
3(o).
(p) If
any
Investor is described in the Registration Statement as an underwriter, the
Company shall make available for inspection by (i) such Investor, (ii) Legal
Counsel and (iii) one firm of accountants or other agents retained by the
Investors (collectively, the “Inspectors”), all pertinent
financial and other records, and pertinent corporate documents and properties
of
the Company (collectively, the “Records”), as shall be
reasonably deemed necessary by each Inspector, and cause the Company’s officers,
directors and employees to supply all information which any Inspector may
reasonably request; provided, however, that each Inspector
shall agree to hold in strict confidence and shall not make any disclosure
(except to an Investor) or use of any Record or other information which the
Company determines in good faith to be confidential, and of which determination
the Inspectors are so notified, unless (a) the disclosure of such Records
is
necessary to avoid or correct a misstatement or omission in any Registration
Statement or is otherwise required under the 1933 Act, (b) the release of
such
Records is ordered pursuant to a final, non-appealable subpoena or order
from a
court or government body of competent jurisdiction, or (c) the information
in
such Records has been made generally available to the public other than by
disclosure in violation of this Agreement; provided, further,
the disclosure found in the “Plan of Distribution” section attached hereto as
Exhibit B shall not give rise to any rights under this Section
3(p). Each Investor agrees that it shall, upon learning that
disclosure of such Records is sought in or by a court or governmental body
of
competent jurisdiction or through other means, give prompt notice to the
Company
and allow the Company, at its expense, to undertake appropriate action to
prevent disclosure of, or to obtain a protective order for, the Records deemed
confidential. Nothing herein (or in any other confidentiality
agreement between the Company and any Investor) shall be deemed to limit
the
Investors’ ability to sell Registrable Securities in a manner which is otherwise
consistent with applicable laws and regulations.
(q) The
Company shall hold in confidence and not make any disclosure of information
concerning an Investor provided to the Company unless (i) disclosure of such
information is necessary to comply with federal or state securities laws,
(ii)
the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release
of
such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available
to the
public other than by disclosure in violation of this Agreement or any other
agreement. The Company agrees that it shall, upon learning that
disclosure of such information concerning an Investor is sought in or by
a court
or governmental body of competent jurisdiction or through other means, give
prompt written notice to such Investor and allow such Investor, at the
Investor’s expense, to undertake appropriate action to prevent disclosure of, or
to obtain a protective order for, such information.
(r) Neither
the Company nor any Subsidiary or affiliate thereof shall identify any Buyer
as
an underwriter in any public disclosure or filing with the SEC or any Principal
Market (as defined in the Securities Purchase Agreement) or Eligible Market
and
any Buyer being deemed an underwriter by the SEC shall not relieve the Company
of any obligations it has under this Agreement or any other Transaction Document
(as defined in the Securities Purchase Agreement); provided,
however, that the foregoing shall not prohibit the Company from
including
the disclosure found in the "Plan of Distribution" section attached hereto
as
Exhibit B in the Registration Statement.
4. Other
Obligations of the Investors.
(a) At
least
three (3) Business Days prior to the first anticipated filing date of a
Registration Statement, the Company shall notify each Investor in writing
of the
information the Company requires from each such Investor if such Investor
elects
to have any of such Investor’s Registrable Securities included in such
Registration Statement. It shall be a condition precedent to the
obligations of the Company to complete the registration pursuant to this
Agreement with respect to the Registrable Securities of a particular Investor
that (i) such Investor furnish to the Company such information regarding
itself,
the Registrable Securities held by it and the intended method of disposition
of
the Registrable Securities held by it as shall be reasonably required to
effect
the effectiveness of the registration of such Registrable Securities, and
(ii)
the Investor execute such documents in connection with such registration
as the
Company may reasonably request.
(b) Each
Investor, by such Investor’s acceptance of the Registrable Securities, agrees to
cooperate with the Company as reasonably requested by the Company in connection
with the preparation and filing of any Registration Statement hereunder,
unless
such Investor has notified the Company in writing of such Investor’s election to
exclude all of such Investor’s Registrable Securities from such Registration
Statement.
(c) Each
Investor agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(g) or the first
sentence of 3(f), such Investor will immediately discontinue disposition
of
Registrable Securities pursuant to any Registration Statements covering such
Registrable Securities until such Investor’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(g) or the first
sentence of 3(f) or receipt of notice that no supplement or amendment is
required. Notwithstanding anything to the contrary, the Company shall
cause its transfer agent to deliver unlegended shares of Common Stock to
a
transferee of an Investor, in accordance with the terms of the Securities
Purchase Agreement, in connection with any sale of Registrable Securities
with
respect to which an Investor has entered into a contract for sale prior to
the
Company’s giving of notice of the happening of any event of the kind described
in Section 3(g) or the first sentence of 3(f), and for which the Investor
has
not yet settled.
(d) Each
Investor covenants and agrees that it will comply with the prospectus delivery
requirements of the 1933 Act as applicable to it or an exemption therefrom
in
connection with sales of Registrable Securities pursuant to the Registration
Statement.
5. Expenses
of Registration. All reasonable expenses, other than underwriting
discounts and commissions incurred in connection with registrations, filings
or
qualifications pursuant to Sections 2 and 3, including, without limitation,
all
registration, listing and qualifications fees, printers and accounting fees,
and
fees and disbursements of counsel for the Company, shall be paid by the
Company. Upon request and delivery of an invoice, the Company shall
also reimburse up to an aggregate of $10,000 of fees and disbursements of
Legal
Counsel incurred in connection with registration, filing or qualification
under
this Agreement.
6. Indemnification. In
the event any Registrable Securities are included in a Registration Statement
under this Agreement:
(a) To
the
fullest extent permitted by law, the Company will, and hereby does, indemnify,
hold harmless and defend each Investor, the directors, officers, members,
partners, employees, agents, representatives of, and each Person, if any,
who
controls any Investor within the meaning of the 1933 Act or the 1934 Act
(each,
an “Indemnified Person”), against any losses, claims, damages,
liabilities, judgments, fines, penalties, charges, costs, reasonable attorneys’
fees, amounts paid in settlement or expenses, joint or several, (collectively,
“Claims”) incurred in investigating, preparing or defending any
action, claim, suit, inquiry, proceeding, investigation or appeal taken from
the
foregoing by or before any court or governmental, administrative or other
regulatory agency, body or the SEC, whether pending or threatened, whether
or
not an indemnified party is or may be a party thereto (“Indemnified
Damages”), to which any of them may become subject insofar as such
Claims (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue statement or
alleged untrue statement of a material fact in a Registration Statement or
any
post-effective amendment thereto or in any filing made in connection with
the
qualification of the offering under the securities or other “blue sky” laws of
any jurisdiction in which Registrable Securities are offered (“Blue Sky
Filing”), or the omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein
not
misleading, (ii) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus if used prior to the
effective date of such Registration Statement, or contained in the final
prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in the light of the circumstances under which the statements therein
were made, not misleading, (iii) any violation or alleged violation by the
Company of the 1933 Act or any state securities law, or any rule or regulation
thereunder, relating to the offer or sale of the Registrable Securities pursuant
to a Registration Statement or (iv) any violation of this Agreement (the
matters
in the foregoing clauses (i) through (iv) being, collectively,
“Violations”). Subject to Section 6(c), the Company
shall reimburse the Indemnified Persons, promptly as such expenses are incurred
and are due and payable, for any legal fees or other reasonable expenses
incurred by them in connection with investigating or defending any such
Claim. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a): (i) shall not apply
to
a Claim by an Indemnified Person arising out of or based upon a Violation
which
occurs in reliance upon and in conformity with information furnished in writing
to the Company by such Indemnified Person for such Indemnified Person expressly
for use in connection with the preparation of the Registration Statement
or any
such amendment thereof or supplement thereto, and (ii) shall not apply to
amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of the Company, which consent shall not be
unreasonably withheld or delayed. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of
the
Indemnified Person and shall survive the transfer of the Registrable Securities
by the Investors pursuant to Section 9.
(b) In
connection with any Registration Statement in which an Investor is
participating, each such Investor agrees to severally and not jointly indemnify,
hold harmless and defend, to the same extent and in the same manner as is
set
forth in Section 6(a), the Company, each of its directors, each of its officers
who signs the Registration Statement and each Person, if any, who controls
the
Company within the meaning of the 1933 Act or the 1934 Act (each, an
“Indemnified Party”), against any Claim or Indemnified Damages
to which any of them may become subject, insofar as such Claim or Indemnified
Damages arise out of or are based upon any Violation, in each case to the
extent, and only to the extent, that such Violation occurs in reliance upon
and
in conformity with written information furnished to the Company by such Investor
expressly for use in connection with such Registration Statement; and, subject
to Section 6(c), such Investor will reimburse any legal or other expenses
reasonably incurred by an Indemnified Party in connection with investigating
or
defending any such Claim; provided, however, that the indemnity agreement
contained in this Section 6(b) and the agreement with respect to contribution
contained in Section 7 shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent of
such
Investor, which consent shall not be unreasonably withheld or delayed; provided,
further, however, that the Investor shall be liable under this Section 6(b)
for
only that amount of a Claim or Indemnified Damages as does not exceed the
net
proceeds to such Investor as a result of the sale of Registrable Securities
pursuant to such Registration Statement. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf
of
such Indemnified Party and shall survive the transfer of the Registrable
Securities by the Investors pursuant to Section 9.
(c) Promptly
after receipt by an Indemnified Person or Indemnified Party under this Section
6
of notice of the commencement of any action or proceeding (including any
governmental action or proceeding) involving a Claim, such Indemnified Person
or
Indemnified Party shall, if a Claim in respect thereof is to be made against
any
indemnifying party under this Section 6, deliver to the indemnifying party
a
written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party
so
desires, jointly with any other indemnifying party similarly noticed, to
assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as
the
case may be; provided, however, that an Indemnified Person or Indemnified
Party
shall have the right to retain its own counsel with the fees and expenses
of not
more than one counsel for all Indemnified Persons and Indemnified Parties
to be
paid by the indemnifying party, if, in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel of
the
Indemnified Person or Indemnified Party and the indemnifying party would
be
inappropriate due to actual or potential differing interests between such
Indemnified Person or Indemnified Party and any other party represented by
such
counsel in such proceeding. In the case of an Indemnified Person,
legal counsel referred to in the immediately preceding sentence shall be
selected by the Investors holding at least a majority in interest of the
Registrable Securities included in the Registration Statement to which the
Claim
relates. The Indemnified Party or Indemnified Person shall cooperate
fully with the indemnifying party in connection with any negotiation or defense
of any such action or Claim by the indemnifying party and shall furnish to
the
indemnifying party all information reasonably available to the Indemnified
Party
or Indemnified Person which relates to such action or Claim. The
indemnifying party shall keep the Indemnified Party or Indemnified Person
reasonably apprised as to the status of the defense or any settlement
negotiations with respect thereto. No indemnifying party shall be
liable for any settlement of any action, claim or proceeding effected without
its prior written consent; provided, however, that the indemnifying party
shall
not unreasonably withhold, delay or condition its consent. No
indemnifying party shall, without the prior written consent of the Indemnified
Party or Indemnified Person, consent to entry of any judgment or enter into
any
settlement or other compromise which (i) does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified
Party
or Indemnified Person of a release from all liability in respect to such
Claim
or litigation, or (ii) includes any admission as to fault on the part of
the
Indemnified Party. Following indemnification as provided for
hereunder, the indemnifying party shall be subrogated to all rights of the
Indemnified Party or Indemnified Person with respect to all third parties,
firms
or corporations relating to the matter for which indemnification has been
made. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action shall not
relieve such indemnifying party of any liability to the Indemnified Person
or
Indemnified Party under this Section 6, except to the extent that the
indemnifying party is prejudiced by such failure.
(d) The
indemnification required by this Section 6 shall be made by periodic payments
of
the amount thereof during the course of the investigation or defense, as
and
when bills are received or Indemnified Damages are incurred.
The
indemnity agreements contained herein shall be in addition to (i) any cause
of
action or similar right of the Indemnified Party or Indemnified Person against
the indemnifying party or others, and (ii) any liabilities the indemnifying
party may be subject to pursuant to the law.
7. Contribution. To
the extent any indemnification by an indemnifying party is prohibited or
limited
by law, the indemnifying party agrees to make the maximum contribution with
respect to any amounts for which it would otherwise be liable under Section
6 to
the fullest extent permitted by law; provided, however, that: (i) no Person
involved in the sale of Registrable Securities who is guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) in
connection with such sale shall be entitled to contribution from any Person
involved in such sale of Registrable Securities who was not guilty of fraudulent
misrepresentation; and (ii) contribution by any seller of Registrable Securities
shall be limited in amount to the amount of net proceeds received by such
seller
from the sale of such Registrable Securities pursuant to such Registration
Statement.
8. Reports
Under the 1934 Act. With a view to making available to the
Investors the benefits of Rule 144 promulgated under the 1933 Act or any
other
similar rule or regulation of the SEC that may at any time permit the Investors
to sell securities of the Company to the public without registration
(“Rule 144”), the Company agrees:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144;
(b) file
with
the SEC in a timely manner all reports and other documents required of the
Company under the 1933 Act and the 1934 Act so long as the Company remains
subject to such requirements and the filing of such reports and other documents
is required under the applicable provisions of Rule 144; and
(c) furnish
to each Investor so long as such Investor owns Registrable Securities, promptly
upon request, (i) a written statement by the Company that it has complied
with
the reporting requirements of Rule 144, the 1933 Act and the 1934 Act (provided
that is has so complied), (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company and (iii) such other information as may be reasonably requested to
permit the Investors to sell such securities without registration pursuant
to
Rule 144.
9. Assignment
of Registration Rights. The rights under this Agreement shall be
automatically assignable by the Investors to any transferee of all or any
portion of such Investor’s Registrable Securities if: (i) the Investor agrees in
writing with the transferee or assignee to assign such rights and a copy
of such
agreement is furnished to the Company within a reasonable time after such
assignment; (ii) the Company is, within a reasonable time after such transfer
or
assignment, furnished with written notice of the name and notice information
of
such transferee or assignee and the securities with respect to which such
registration rights are being transferred or assigned; (iii) immediately
following such transfer or assignment the further disposition of any such
securities by the transferee or assignee may not be made immediately under
Rule
144 without restriction or limitation; (iv) the transferee or assignee agrees
in
writing with the Company to be bound by all of the provisions contained herein
and provides its notice information for inclusion on the Schedule of Investors
attached hereto; and (v) such transfer shall have been made in accordance
with
the applicable requirements of the Securities Purchase Agreement and applicable
law.
10. Amendment
of Registration Rights. Provisions of this Agreement may be
amended and the observance thereof may be waived (either generally or in
a
particular instance and either retroactively or prospectively), with the
written
consent of the Company and the Required Holders. Any amendment or
waiver effected in accordance with the previous sentence shall be binding
upon
each Investor and the Company. In addition to the foregoing, any
Investor may waive the observance of provisions of this Agreement (either
generally or in a particular instance and either retroactively or prospectively)
with respect to itself. No such amendment shall be effective to the
extent that it applies to less than all of the holders of the Registrable
Securities. 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 this Agreement unless the same consideration
also is offered to all of the parties to this Agreement.
11. Miscellaneous.
(a) A
Person
is deemed to be a holder of Registrable Securities whenever such Person owns
of
record such Registrable Securities. If the Company receives
conflicting instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company shall act upon the
basis
of instructions, notice or election received from the record owner of such
Registrable Securities.
(b) Any
notices, consents, waivers or other communications required or permitted
to be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
transmission, when sent by facsimile, email or other form of electronic
communication (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or (iii)
one
(1) Business Day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the party to receive the
same. The addresses, facsimile numbers and email addresses for such
communications shall be:
If
to the
Company:
Emcore
Corporation
10420
Research Road SE
Albuquerque,
NM 87123
Telephone:
(505) 332-5000
Facsimile:
(505) 332-5038
Attention:
General Counsel
If
to the
Company’s legal counsel:
Jenner
& Block
919
Third
Avenue
37th
Floor
New
York,
New York 10022
Telephone:
1.212.891.1600
Facsimile:1.212.909.0820
Email:
tknapp@jenner.com
Attention: Tobias
L. Knapp
With
a
copy (for informational purposes) to:
Jones
Day
51
Louisiana Avenue, N.W.
Washington,
D.C. 20001-2113
Tel:
1.202.879.3939
Fax:
1.202.626.1700
Email: jwelch@jonesday.com
Attention:
John Welch
and
Jones
Day
1755
Embarcadero Road
Palo
Alto, CA 94303
Tel: (650)
739-3939
Fax: (650)
739-3900
Email: segillette@jonesday.com
Attention: Steve
Gillette
If
to
Legal Counsel:
Schulte
Roth & Zabel LLP
919
Third
Avenue
New
York,
NY 10022
Tel: 1.212.756.2000
Fax: 1.212.593.5955
Email: eleazer.klein@srz.com
Attention: Eleazer
N. Klein
If
to an
Investor, to its address, facsimile number or email address set forth on
the
Schedule of Investors attached hereto, or to such other address, facsimile
number and/or email address and/or to the attention of such other Person
as the
recipient party has specified by written notice given to each other party
five
(5) days prior to the effectiveness of such change. Notice shall be
deemed delivered pursuant to the procedures set forth in the Securities Purchase
Agreement.
(c) Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate
as a
waiver thereof.
(d) All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of
New
York, without giving effect to any choice of law or conflict of law provision
or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State
of
New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in The City of New York,
Borough of Manhattan, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of 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 to such party at the address for such
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. If any provision of this Agreement
shall be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT
IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION
OF ANY
DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT
OR
ANY TRANSACTION CONTEMPLATED HEREBY.
(e) This
Agreement, the other Transaction Documents (as defined in the Securities
Purchase Agreement) and the instruments referenced herein and therein constitute
the entire agreement among the parties hereto with respect to the subject
matter
hereof and thereof. There are no restrictions, promises, warranties
or undertakings, other than those set forth or referred to herein and
therein. This Agreement, the other Transaction Documents and the
instruments referenced herein and therein supersede all prior agreements
and
understandings among the parties hereto with respect to the subject matter
hereof and thereof.
(f) Subject
to the requirements of Section 9, this Agreement shall inure to the benefit
of
and be binding upon the permitted successors and assigns of each of the parties
hereto.
(g) The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(h) This
Agreement may be executed in identical counterparts, each of which shall
be
deemed an original but all of which shall constitute one and the same
agreement. This Agreement, once executed by a party, may be delivered
to the other party hereto by facsimile, email or other electronic transmission
of a copy of this Agreement bearing the signature of the party so delivering
this Agreement.
(i) Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as any other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
(j) All
consents and other determinations required to be made by the Investors pursuant
to this Agreement shall be made, unless otherwise specified in this Agreement,
by the Required Holders.
(k) 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.
(l) This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may
any
provision hereof be enforced by, any other Person.
(m) The
obligations of each Investor hereunder 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
hereunder. Nothing contained herein, and no action taken by any
Investor pursuant hereto, shall be deemed to constitute the Investor as,
and the
Company acknowledges that the Investors do not so constitute, 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,
and the Company will not assert any such claim with respect to such obligations
or the transactions contemplated herein.
*
* * * *
*
- -
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
COMPANY:
EMCORE
CORPORATION
By: /s/
Adam
Gushard
Name: Adam
Gushard
Title: Chief
Financial
Officer
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Polar
Securities Inc. for Altairis Offshore
|
By: /s/
Robyn
Schultz
|
Name: Robyn
Schultz
|
Title: VP,
Polar Securities Inc. (as IA for certain managed
accounts)
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Polar
Securities Inc.
for
Altairis Investments
L.P.
|
By: /s/
Robyn
Schultz
|
Name: Robyn
Schultz
|
Title: VP,
Polar Securities Inc. (as IA for certain managed
accounts)
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Polar
Securities Inc.
for
Altaris Offshore
Levered
|
By: /s/
Robyn
Schultz
|
Name: Robyn
Schultz
|
Title: VP,
Polar Securities Inc. (as IA for certain managed
accounts)
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
THE
QUERCUS
TRUST
|
By: /s/
David
Gelbaum
|
Name: David
Gelbaum
|
Title: Trustee
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Marathon
Global Equity Master Fund, Ltd.
|
By: /s/
Jamie
Raboy
|
Name: Jamie
Raboy
|
Title: Managing
Director
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
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
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
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
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
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
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
The
Tocqueville
Fund
|
By: /s/
Robert W. Kleinshmidt
|
Name: Robert
W.
Kleinshmidt
|
Title: Authorized
Portfolio Manager
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Tocqueville
Amerique
|
By: /s/
Robert W. Kleinshmidt
|
Name: Robert
W.
Kleinshmidt
|
Title: Authorized
Portfolio Manager
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
MONTBER,
S.A.
INCOME
|
By: /s/
Robert W. Kleinshmidt
|
Name: Robert
W.
Kleinshmidt
|
Title: Authorized
Portfolio Manager
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
THORN
LIMITED
|
By: /s/
Robert W. Kleinshmidt
|
Name: Robert
W.
Kleinshmidt
|
Title: Authorized
Portfolio Manager
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
KALUNBORG
LTD
BVI
|
By: /s/
Robert W. Kleinshmidt
|
Name: Robert
W.
Kleinshmidt
|
Title: Authorized
Portfolio Manager
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
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
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
ARDSLEY
PARTNERS FUND II, L.P.
|
By: /s/
Steve
Napoli
|
Name:Steve
Napoli
|
Title: Partner
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
ARDSLEY
PARTNERS INSTITUTIONAL FUND, L.P.
|
By: /s/
Steve
Napoli
|
Name:Steve
Napoli
|
Title: Partner
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
ARDSLEY
PARTNERS RENEWABLE FUND, L.P.
|
By: /s/
Steve
Napoli
|
Name:Steve
Napoli
|
Title: Partner
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
ARDSLEY
OFFSHORE FUND, LTD.
|
By: /s/
Steve
Napoli
|
Name:Steve
Napoli
|
Title: Agent
/ Advisor
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
ARDSLEY
RENEWABLE ENERGY OFFSHORE FUND, LTD.
|
By: /s/
Steve
Napoli
|
Name:Steve
Napoli
|
Title: Director
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
MARION
LYNTON
|
By: /s/
Steve
Napoli
|
Name:Steve
Napoli
|
Title: Agent
/ Advisor
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
HFR
HE ARDSLEY MASTER TRUST
|
By: /s/
Steve
Napoli
|
Name:Steve
Napoli
|
Title: Agent
/ Advisor
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
HUDSON
BAY OVERSEAS FUND LTD
|
By: /s/
Yoav
Roth
|
Name:Yoav
Roth
|
Title: Principal
& Portfolio Manager
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
HUDSON
BAY FUND
LTD
|
By: /s/
Yoav
Roth
|
Name:Yoav
Roth
|
Title: Principal
& Portfolio Manager
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Portside
Growth and Opportunity Fund
|
By: /s/
Jeff
Smith
|
Name:Jeff
Smith
|
Title: Authorized
Signatory
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
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)
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
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)
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Capital
Ventures
International
By: Heights
Capital Management, Inc.
its
authorized
agent
|
By: /s/
Michael
Spolan
|
Name:Michael
Spolan
|
Title: General
Counsel
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Iroquois
Masterfund,
Ltd.
|
By: /s/
John
Silverman
|
Name:John
Silverman
|
Title: Authorized
Signatory
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Kingdon
Associates
|
By: /s/
Alan
Winters
|
Name:Alan
Winters
|
Title: Chief
Operating
Officer
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
M.
Kingdon Offshore
Ltd.
|
By: /s/
Alan
Winters
|
Name:Alan
Winters
|
Title: Chief
Operating
Officer
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Kingdon
Family Partnership, L.P.
|
By: /s/
Alan
Winters
|
Name:Alan
Winters
|
Title: Chief
Operating
Officer
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
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
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
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
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Lagunitas
Partners
LP
|
By: /s/
Jon D.
Gruber
|
Name:Gruber
& McBaine Cap Mgmt.
|
Title: General
Partner
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Gruber
& McBaine International
|
By: /s/
Jon D.
Gruber
|
Name:Gruber
& McBaine Cap Mgmt.
|
Title: Investment
Advisor
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Jon
D. & Linda W. Gruber Trust
|
By: /s/
Jon D.
Gruber
|
Name:Jon
D.
Gruber
|
Title: Trustee
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
CaraCastle
Partners
|
By: /s/
Damien
Quinn
|
Name:Damien
Quinn
|
Title: Principal
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
MMCAP
Int’l Inc.
SPC
|
By: /s/
Ben
Cubitt
|
Name:Ben
Cubitt
|
Title: PM
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Cranshire
Capital,
L.P.
|
By: /s/
Mister D.
Kopine
|
Name:Mister
D.
Kopine
|
Title: President
– Downsview Capital
The
General
Partner
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Enable
Growth Partners
LP
|
By: /s/
Brendan
O’Neil
|
Name:Brendan
O’Neil
|
Title: President
& Chief Investment Officer
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
Name
of Investor:
Crestview
Capital Master,
LLC
By: Crestview
Capital Partners, LLC
Its
Sole Manager
|
By: /s/
Robert
Hoyt
|
Name:Robert
Hoyt
|
Title: Manager
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of tile date first written above.
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
|
SCHEDULE
OF INVESTORS
Investor
|
Registered
Holder
|
Shares
|
Warrants
|
Contact
Details and Mailing
|
||
Polar
Capital
|
840,000
|
147,000
|
||||
Altairis
Offshore
|
283,100
|
49,543
|
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
|
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
|
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
|
1835
Newport Blvd, A109
PMB
467
Costa
Mesa, CA 92627
(949)
631-6723
|
||
Marathon
|
Marathon
Global Equity Master Fund, Ltd.
|
600,000
|
105,000
|
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
|
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
|
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
|
UBS
O'Connor LLC
One
North Wacker Drive, 32nd floor
Chicago,
IL 60614
Attn:
Robert Murray
|
|||
Tocqueville
|
Tocqueville
Fund
|
225,000
|
39,375
|
Tocqueville
Asset Management
40
West 57th Street, 19th Floor
New
York, NY 10019
|
||
Tocqueville
Amerique
|
45,000
|
7,875
|
Tocqueville
Asset Management
40
West 57th Street, 19th Floor
New
York, NY 10019
|
|||
Montber
S.A. Income
|
190,000
|
33,250
|
Tocqueville
Asset Management
40
West 57th Street, 19th Floor
New
York, NY 10019
|
|||
Thorn
Limited
|
35,000
|
6,125
|
Tocqueville
Asset Management
40
West 57th Street, 19th Floor
New
York, NY 10019
|
|||
Kalunbourg
Limited
|
15,000
|
2,625
|
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
|
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
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
||
Ardsley
Partners Institutional Fund, LP
|
81,800
|
14,315
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
Ardsley
Partners Renewable Energy Fund, LP
|
68,300
|
11,953
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
Ardsley
Offshore Fund, Ltd
|
88,500
|
15,488
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
Ardsley
Renewable Energy Offshore Fund, Ltd
|
116,100
|
20,318
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
Marion
Lynton
|
3,200
|
560
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
HFR
HE Ardsley Master Trust
|
15,600
|
2,730
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
Hudson
Bay
|
Hudson
Bay Overseas Fund Ltd
|
545,600
|
95,480
|
120
Broadway, 40th floorNew York, NY 10271
|
||
Hudson
Bay Fund LP
|
334,400
|
58,520
|
120
Broadway, 40th floor
New
York, NY 10271
|
|||
Ramius
|
Portside
Growth & Opportunity Fund
|
480,000
|
84,000
|
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
|
Empire
Capital Management, LLC
One
Gorham Island, Suite 201
Westport,
CT 06880
203-454-1019
|
||
Empire
Capital Partners, Lp
|
144,600
|
25,305
|
Empire
Capital Management, LLC
One
Gorham Island, Suite 201
Westport,
CT 06880
203-454-1019
|
|||
Heights
|
Capital
Ventures International
|
300,000
|
52,500
|
Heights
Capital Management
101
California Street, Suite 3250
San
Francisco, CA 94111
|
||
Iroquois
|
Iroquois
Master Fund Ltd.
|
300,000
|
52,500
|
641
Lexinton Avenue, 35th floor
New
York, NY 10022
|
||
Kingdon
|
Kingdon
Associates
|
72,600
|
12,705
|
152
West 57th Street, 50th Floor
New
York, Ny 10019
|
||
M.
Kingdon Offshore Ltd.
|
217,350
|
38,036
|
152
West 57th Street, 50th Floor
New
York, Ny 10019
|
|||
Kingdon
Family Partnership, L.P.
|
10,050
|
125,625
|
||||
Interlachen
|
Investcorp
Interlachen Multi-Strategy Master Fund Limited
|
200,000
|
35,000
|
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
|
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
|
Gruber
& McBaine Capital Management
50
Osgood Place, PH
San
Francisco, CA 94133
|
||
Gruber
& McBaine International
|
7,000
|
1,225
|
Gruber
& McBaine Capital Management
50
Osgood Place, PH
San
Francisco, CA 94133
|
|||
Jon
D & Linda W Gruber Trust
|
56,000
|
9,800
|
Gruber
& McBaine Capital Management
50
Osgood Place, PH
San
Francisco, CA 94133
|
|||
Cara
Castle
|
Cara
Castle Partners
|
88,000
|
15,400
|
14
The Ridge
Plandome,
NY 11030
|
||
MM
Capital
|
MMCAP
Int'l Inc SPC
|
150,000
|
26,250
|
MMCAP
Int'l Inc SPC
90
Fort St, Box 32021
Grand
Cayman
Cayman
Islands
|
||
Cranshire
|
Cranshire
Capital, L.P.
|
120,000
|
21,000
|
3100
Dundee Road, Suite 703
NorthBreek,
IL
|
||
Enable
|
Enable
Growth Partners
|
100,000
|
17,500
|
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
|
95
Revere Drive, Suite A
Northbrook,
IL 60062
|
||
Rock
Hill Investment Management, LP
|
RHP
Master Fund, Ltd.
|
100,000
|
17,500
|
c/o
Rock Hill Investment Management, LP
Three
Bala Plaza - East, Suite 585
Bala
Cynwyd, PA 19004
|
EXHIBIT
A
FORM
OF NOTICE OF EFFECTIVENESS
OF
REGISTRATION STATEMENT
[ ]
[ ]
[ ]
Attention:
[ ]
Re: Emcore
Corporation
Ladies
and Gentlemen:
On
behalf
of Emcore Corporation, a corporation organized under the laws of New Jersey
(the
“Company”), I am writing in connection with that certain
Securities Purchase Agreement (the “Securities Purchase
Agreement”), entered into by and among the Company and the buyers named
therein (collectively, the “Holders”) pursuant to which the
Company issued to the Holders its shares of the Company’s Common Stock, par
value $0.0001 per share (the “Common Stock”) and Warrants (the
“Warrants”), which are exercisable into shares
of Common Stock
(the “Warrant Shares”). Pursuant to the Securities
Purchase Agreement, the Company also has entered into a Registration Rights
Agreement with the Holders (the “Registration Rights
Agreement”) pursuant to which the Company agreed, among other things,
to register the resale of the Registrable Securities (as defined in the
Registration Rights Agreement) under the Securities Act of 1933, as amended
(the
“1933 Act”). In connection with the Company’s
obligations under the Registration Rights Agreement, on ________________
___,
2008, the Company filed a Registration Statement on Form S-1 (File No.
333-__________) (the “Registration Statement”) with the
Securities and Exchange Commission (the “SEC”) relating to the
Registrable Securities which names each of the Holders as a selling stockholder
thereunder.
In
connection with the foregoing, I advise you that a member of the SEC’s staff has
advised the Company or its counsel by telephone that the SEC has entered
an
order declaring the Registration Statement effective under the 1933 Act at
[ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and the Company
has no knowledge, after telephonic inquiry by the Company or its counsel
of a
member of the SEC’s 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 SEC and the Registrable Securities are available for resale
under the 1933 Act pursuant to the Registration Statement.
This
letter shall serve as our standing instruction to you that the shares of
Common
Stock and Warrant Shares are freely transferable by the Holders pursuant
to the
Registration Statement. You need not require further letters from us
or our counsel to effect any future legend-free issuance or reissuance of
shares
of Common Stock to the Holders as contemplated by the Company’s Irrevocable
Transfer Agent Instructions dated ___________ ___, 2008, provided at the
time of
such reissuance, the Company has not otherwise notified you that the
Registration Statement is unavailable for the resale of the Registrable
Securities.
Very
truly yours,
EMCORE
CORPORATION
By:
CC: [LIST
NAMES OF HOLDERS]
Exhibit
A-
EXHIBIT
B
SELLING
STOCKHOLDERS
The
shares of common stock being offered by the selling stockholders are those
previously issued to the selling stockholders and those issuable to the selling
stockholders upon the exercise of the warrants. For additional
information regarding the issuances of common stock, see “Private Placement of
Common Shares and Warrants” above. We are registering the shares of
common stock in order to permit the selling stockholders to offer the shares
for
resale from time to time. Except for the ownership of the shares of
common stock and the warrants, the selling stockholders have not had any
material relationship with us within the past three years. [NOTE: this
sentence need not be included with respect to any transferee for which the
statement is not accurate.]
The
table
below lists the selling stockholders and other information regarding the
beneficial ownership of the shares of common stock by each of the selling
stockholders. The second column lists the number of shares of common
stock beneficially owned by each selling shareholder, based on its ownership
of
the shares of common stock and the warrants as of __________ ___, 2007, assuming
exercise of the warrants held by the selling stockholders on that date, without
regard to any limitations on exercise.
The
third
column lists the shares of common stock being offered by this prospectus
by the
selling stockholders. In accordance with the terms of the
registration rights agreement with the holders of the shares of common stock
and
the warrants, this prospectus generally covers the resale of the aggregate
number of shares of common stock equal to the number of shares of common
stock
issued and the shares of common stock issuable upon exercise of the related
warrants, determined as if the outstanding warrants were exercised, as
applicable, in full, in each case, as of the trading day immediately preceding
the date this registration statement was initially filed with the
SEC. The fourth column assumes the sale of all of the shares offered
by the selling stockholders pursuant to this prospectus. Under the
terms of the warrants, a selling stockholder may not exercise the warrants,
to
the extent such exercise would cause such selling stockholder, together with
its
affiliates, to beneficially own a number of shares of common stock which
would
exceed 4.99% of our then outstanding shares of common stock following such
exercise, excluding for purposes of such determination shares of common stock
issuable upon exercise of the warrants which have not been
exercised. The number of shares in the second column does not reflect
this limitation. The selling stockholders may sell all, some or none
of their shares in this offering. See “Plan of
Distribution.”
Name
of Selling Stockholder
|
Number
of Shares Owned Prior to Offering
|
Maximum
Number of Shares to be Sold Pursuant to this
Prospectus
|
Number
of Shares Owned After Offering
|
Exhibit
B-
PLAN
OF DISTRIBUTION
We
are
registering the shares of common stock previously issued and shares of common
stock issuable upon the exercise of the warrants to permit the resale of
these
shares of common stock by the holders of the common stock and warrants from
time
to time after the date of this prospectus. We will not receive any of
the proceeds from the sale by the selling stockholders of the shares of common
stock. We will bear all fees and expenses incident to our obligation
to register the shares of common stock.
The
selling stockholders may sell all or a portion of the shares of common stock
beneficially owned by them and offered hereby from time to time directly
or
through one or more underwriters, broker-dealers or agents. If the
shares of common stock are sold through underwriters or broker-dealers, the
selling stockholders will be responsible for underwriting discounts or
commissions or agent’s commissions. The shares of common stock may be
sold in one or more transactions at fixed prices, at prevailing market prices
at
the time of the sale, at varying prices determined at the time of sale, or
at
negotiated prices. These sales may be effected in transactions, which
may involve crosses or block transactions,
|
•
|
on
any national securities exchange or quotation service on which
the
securities may be listed or quoted at the time of
sale;
|
|
•
|
in
the over-the-counter market;
|
|
•
|
in
transactions otherwise than on these exchanges or systems or in
the
over-the-counter market;
|
|
•
|
through
the writing of options, whether such options are listed on an options
exchange or otherwise;
|
|
•
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involving
ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
|
|
•
|
involving
block trades in which the broker-dealer will attempt to sell the
shares as
agent but may position and resell a portion of the block as principal
to
facilitate the transaction;
|
|
•
|
involving
purchases by a broker-dealer as principal and resale by the broker-dealer
for its account;
|
|
•
|
involving
an exchange distribution in accordance with the rules of the applicable
exchange;
|
|
•
|
involving
privately negotiated transactions;
|
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•
|
involving
short sales;
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|
•
|
involving
sales pursuant to Rule 144;
|
|
•
|
in
connection with which broker-dealers may agree with the selling
stockholders to sell a specified number of such shares at a stipulated
price per share;
|
|
•
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involving
a combination of any such methods of sale;
and
|
|
•
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involving
any other method permitted pursuant to applicable
law.
|
If
the
selling stockholders effect such transactions by selling shares of common
stock
to or through underwriters, broker-dealers or agents, such underwriters,
broker-dealers or agents may receive commissions in the form of discounts,
concessions or commissions from the selling stockholders or commissions from
purchasers of the shares of common stock for whom they may act as agent or
to
whom they may sell as principal (which discounts, concessions or commissions
as
to particular underwriters, broker-dealers or agents may be in excess of
those
customary in the types of transactions involved). In connection with
sales of the shares of common stock or otherwise, the selling stockholders
may
enter into hedging transactions with broker-dealers, which may in turn engage
in
short sales of the shares of common stock in the course of hedging in positions
they assume. The selling stockholders may also sell shares of common
stock short and deliver shares of common stock covered by this prospectus
to
close out short positions and to return borrowed shares in connection with
such
short sales. The selling stockholders may also loan or pledge shares
of common stock to broker-dealers that in turn may sell such
shares.
The
selling stockholders may pledge or grant a security interest in some or all
of
the shares of common stock owned by them and, if they default in the performance
of their secured obligations, the pledgees or secured parties may offer and
sell
the shares of common stock from time to time pursuant to this prospectus
or any
amendment to this prospectus under Rule 424(b)(3) or other applicable provision
of the Securities Act of 1933, as amended, amending, if necessary, the list
of
selling stockholders to include the pledgee, transferee or other successors
in
interest as selling stockholders under this prospectus. The selling
stockholders also may transfer and donate the shares of common stock in other
circumstances in which case the transferees, donees, pledgees or other
successors in interest will be the selling beneficial owners for purposes
of
this prospectus.
The
selling stockholders and any broker-dealer participating in the distribution
of
the shares of common stock may be deemed to be “underwriters” within the meaning
of the Securities Act, and any commission paid, or any discounts or concessions
allowed to, any such broker-dealer may be deemed to be underwriting commissions
or discounts under the Securities Act. At the time a particular
offering of the shares of common stock is made, a prospectus supplement or
amendment, if required, will be distributed which will set forth the aggregate
amount of shares of common stock being offered and the terms of the offering,
including the name or names of any broker-dealers or agents, any discounts,
commissions and other terms constituting compensation from the selling
stockholders and any discounts, commissions or concessions allowed or reallowed
or paid to broker-dealers.
Under
the
securities laws of some states, the shares of common stock may be sold in
such
states only through registered or licensed brokers or dealers. In
addition, in some states the shares of common stock may not be sold unless
such
shares have been registered or qualified for sale in such state or an exemption
from registration or qualification is available and is complied
with.
There
can
be no assurance that any selling stockholder will sell any or all of the
shares
of common stock registered pursuant to the registration statement, of which
this
prospectus forms a part.
The
selling stockholders and any other person participating in such distribution
will be subject to applicable provisions of the Securities Exchange Act of
1934,
as amended, and the rules and regulations thereunder, including, without
limitation, Regulation M of the Exchange Act, which may limit the timing
of
purchases and sales of any of the shares of common stock by the selling
stockholders and any other participating person. Regulation M may
also restrict the ability of any person engaged in the distribution of the
shares of common stock to engage in market-making activities with respect
to the
shares of common stock. All of the foregoing may affect the
marketability of the shares of common stock and the ability of any person
or
entity to engage in market-making activities with respect to the shares of
common stock.
We
will
pay all expenses of the registration of the shares of common stock pursuant
to
the registration rights agreement, estimated to be $[ ] in total, including,
without limitation, Securities and Exchange Commission filing fees and expenses
of compliance with state securities or “Blue Sky” laws; provided, however, that
a selling stockholder will pay all underwriting discounts and selling
commissions, if any. We will indemnify the selling stockholders
against liabilities, including some liabilities under the Securities Act,
in
accordance with the registration rights agreements, or the selling stockholders
will be entitled to contribution. We may be indemnified by the
selling stockholders against civil liabilities, including liabilities under
the
Securities Act, that may arise from any written information furnished to us by
the selling stockholder specifically for use in this prospectus, in accordance
with the related registration rights agreement, or we may be entitled to
contribution.
Once
sold
under the registration statement, of which this prospectus forms a part,
the
shares of common stock will be freely tradable in the hands of persons other
than our affiliates.
Exhibit
B-