FORM OF LETTER OF TRANSMITTAL
Published on November 19, 2008
Exhibit
(a)(3)
EMCORE
CORPORATION
OFFER
TO AMEND ELIGIBLE OPTIONS
FORM
OF LETTER OF TRANSMITTAL
THE
OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 11:59 P.M.,
MOUNTAIN
TIME, ON DECEMBER 17, 2008, UNLESS THE OFFER IS EXTENDED.
Name:
Important:
Read the remainder of this Letter of Transmittal before
completing, signing and delivering this Letter of Transmittal.
The
chart below provides information regarding the date of grant for each Eligible
Option, the exercise price per share currently in effect for each Eligible
Option, the fair market value per share of EMCORE common stock on that date,
each Eligible Option Granted and the number of shares of EMCORE’s common stock
underlying each Eligible Option.
Indicate
your decision to tender your Eligible Option(s) identified below for amendment
by checking the “Amend This Eligible Option” box. If you do not want
to tender one or more of your Eligible Options for amendment, check the “Do Not
Amend This Eligible Option” box for each Eligible Option you choose not to
tender. If you do not clearly mark the “Amend This Eligible Option”
box with respect to an Eligible Option, your election with respect to that
Eligible Option will default to “Do Not Amend This Eligible
Option.” In that event, such Eligible Option will not be amended, and
you will not become entitled to the special Cash Payment payable with respect to
that Eligible Option. In addition, you will be solely responsible for
any taxes, penalties or interest you may incur under Section 409A (or similar
state tax laws).
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Date
of Grant
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Current
Exercise
Price
Per
Share
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Fair
Market
Value
Per
Share
on
Date
of Grant
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Eligible
Options Granted
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Number
of Shares Underlying Eligible Options
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Amend
This
Eligible
Option
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Do
Not
Amend
This
Eligible
Option
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Agreement
to Terms of the Offer
To: EMCORE
CORPORATION
By
checking the “Amend This Eligible Option” box in the table on the first page of
this Letter of Transmittal, I understand and agree to all of the
following:
1. I hereby
tender my Eligible Option(s) identified on the first page of this Letter of
Transmittal to EMCORE Corporation, a New Jersey corporation (“EMCORE”),
for amendment in accordance with the terms set forth set forth in (a) the Offer
to Amend Eligible Options dated November 19, 2008 (the “Offer to
Amend”), of which I hereby acknowledge receipt, and (b) this Letter of
Transmittal. Each tendered Eligible Option will be amended on
December 18, 2008, or, if the Offer is extended, the first business day
following the extended Expiration Date (as defined below) of the
Offer. The date on which the tendered Eligible Options are amended
will constitute the “Amendment
Date.” All capitalized terms used but not defined in this
Letter of Transmittal have the meaning assigned to them in the Offer to
Amend.
2. The Offer
is currently set to expire at 11:59 p.m., Mountain time, on December17, 2008
(the “Expiration
Date”), unless EMCORE, in its discretion, extends the period of time
during which the Offer will remain open. In such event, the term
“Expiration
Date” will mean the latest time and date at which the Offer, as so
extended, expires.
3. The
exercise price of each of my tendered Eligible Option(s) will be amended on the
Amendment Date to an exercise price per share equal to the Fair Market Value (as
defined below) per share of EMCORE common stock on the date of grant of the
Eligible Option. The new exercise price per share will be designated
the “Adjusted Exercise
Price.” The option as so amended with the Adjusted Exercise
Price will be designated an “Amended
Option.” Except for the Adjusted Exercise Price, the terms and
provisions of each Amended Option will be the same as currently in effect for
that Eligible Option. The “Fair Market
Value” per share of our common stock on any date means the closing price
per share of our common stock on that date on The NASDAQ Global
Market.
4. I will
become entitled to receive from EMCORE a special cash payment (the “Cash
Payment”) with respect to my Eligible Options that are amended to
increase their exercise prices pursuant to the Offer. The amount of
the Cash Payment payable with respect to each Eligible Option that is amended to
increase the exercise price to the Adjusted Exercise Price will be determined by
multiplying (1) the amount by which the Adjusted Exercise Price exceeds the
exercise price per share currently in effect for that Eligible Option by
(2) the number of shares of our common stock purchasable under that
Eligible Option at the Adjusted Exercise Price. The Cash Payment will
be paid on the first regular payroll date after January 1, 2009. Under
applicable Internal Revenue Service regulations, the Cash Payment may not be
made in the same year as the Amendment Date. The Cash Payment, when
made, will be subject to all applicable withholding taxes required to be
withheld by EMCORE
5. If I
cease to be employed by EMCORE after I tender my Eligible Option(s) but before
EMCORE amends such option(s), my Eligible Options will not be amended, and I
will not be entitled to receive the Cash Payment.
6. I may
withdraw my tendered Eligible Options at any time before the Expiration Date of
the Offer. If EMCORE extends the Offer beyond that time, I may
withdraw my tendered Eligible Options at any time until the extended Expiration
Date of the Offer. In addition, unless EMCORE accepts and amends my
Eligible Options before 12:00 midnight, Mountain Time, on January 16, 2009 (the
40th
business day after the commencement date of the Offer), I may withdraw my
tendered Eligible Options at any time prior to EMCORE’s acceptance of such
Eligible Options for amendment.
7. The
tender of my Eligible Option(s) pursuant to the procedure described in Section 4
of the Offer to Amend and the instructions to this Letter of Transmittal will
constitute my acceptance of all of the terms and conditions of the
Offer. Acceptance by EMCORE of my tendered Eligible Option(s) for
amendment pursuant to the Offer will constitute a binding agreement between
EMCORE and me upon the terms and subject to the conditions of the
Offer.
8. I am the
registered holder of the Eligible Option(s) tendered hereby, and my name and
other information appearing on the first page of this Letter of Transmittal are
true and correct.
9. I am not
required to accept the Offer. If I choose not to accept the Offer to
amend my Eligible Options and take no other action to bring those options into
compliance with Section 409A of the Internal Revenue Code of 1986, as amended
(“Section
409A”), then I may be subject to the adverse tax consequences under
Section 409A (and similar state tax laws) in the manner discussed in the Offer
to Amend. I will be solely responsible for any taxes, penalties or
interest I may incur under Section 409A (and similar state tax
laws). In addition, if my Eligible Options are not amended pursuant
to the Offer, I will not become eligible to receive the Cash
Payment.
10. EMCORE
cannot give me tax, financial or legal advice with respect to the Offer and has
advised me to consult with my personal tax, financial or legal advisors to
determine the tax or other consequences of accepting or declining the
Offer.
11. Under
certain circumstances set forth in the Offer to Amend, EMCORE may terminate or
amend the Offer and postpone its acceptance and amendment of the tendered
Eligible Options. Should the Eligible Option(s) tendered herewith not
be accepted for amendment, such option(s) will be returned to me promptly
following the expiration or termination of the Offer.
12. I hereby
acknowledge that I have read the following documents related to the
Offer:
|
·
|
Offer
to Amend Eligible Options;
|
|
·
|
Instructions
to this Letter of Transmittal; and
|
|
·
|
Stock
Option Amendment and Cash Payment
Agreement.
|
13. I
understand that I must fully complete and sign this Letter of Transmittal and
timely deliver it to EMCORE in accordance with the Offer to Amend and the
Instructions to this Letter of Transmittal prior to the Expiration
Date.
14. I further
understand that I will receive a confirmation of the receipt of my Letter of
Transmittal or Withdrawal Form within two business days after you receive my
Letter of Transmittal or Withdrawal Form. If I have not received a
confirmation within this time period, I understand that is my responsibility to
contact t Keith Kosco, Chief Legal Officer and Corporate Secretary, at (505)
332-5044 or Keith_Kosco@EMCORE.com to confirm that EMCORE has received my
submissions.
I
understand that neither EMCORE nor the EMCORE board of directors is making any
recommendation as to whether I should tender my Eligible Option(s) for
amendment, and that I must make my own decision whether to tender my Eligible
Option(s), after taking into account my own personal circumstances and
preferences. I understand that the Amended Option(s) resulting from
the amendment of my tendered Eligible Option(s) may decline in value and may be
“out-of-the-money” when I decide to exercise such option(s). I
further understand that past and current market prices of EMCORE common stock
may provide little or no basis for predicting what the market price of EMCORE
common stock will be when EMCORE amends my tendered option(s) or at any other
time in the future.
SIGNATURE
Employee
Name: _______________________________
E-mail
Address: ________________________________
Signature ______________________________________ Date ____________________
Please
read the instructions on the following pages of this Letter of Transmittal and
then check the appropriate boxes on the first page, sign and date the signature
block above, and return this entire Letter of Transmittal and any other required
documents before 11:59 p.m., Mountain Time, on December 17, 2008 by facsimile,
hand delivery, regular mail, overnight courier or e-mail as
follows:
|
By
Facsimile:
|
(626)
293-3646
|
|
By
Hand Delivery, Regular Mail or Overnight Courier:
|
EMCORE
Corporation
10420
Research Road SE
Albuquerque,
NM 87123
Attn:
Keith Kosco
|
|
By
E-mail:
|
Keith_Kosco@EMCORE
.com
|
Delivery
of this Letter of Transmittal and other required documents by any other means is
not permitted.
DELIVERY
OF THIS LETTER OF TRANSMITTAL IN ANY WAY OTHER THAN AS DESCRIBED ABOVE AND IN
THE INSTRUCTIONS BELOW WILL NOT CONSTITUTE A VALID DELIVERY OF THIS LETTER OF
TRANSMITTAL.
EMCORE
CORPORATION
INSTRUCTIONS
FORMING
PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Delivery of Letter of
Transmittal. To tender one or more of your Eligible Options
for amendment pursuant to the Offer, you must properly complete and sign your
Letter of Transmittal and timely deliver your Letter of Transmittal and any
other required documents to EMCORE by facsimile, hand delivery, regular mail,
overnight courier or e-mail as follows:
|
By
Facsimile:
|
(626)
293-3646
|
|
By
Hand Delivery, Regular Mail or Overnight Courier:
|
EMCORE
Corporation
10420
Research Road SE
Albuquerque,
NM 87123
Attn:
Keith Kosco
|
|
By
E-mail:
|
Keith_Kosco@EMCORE
.com
|
EMCORE
must receive your properly completed and signed Letter of Transmittal and other
required documents before 11:59 p.m., Mountain Time, on December 17,
2008.
You may
withdraw your tendered Eligible Options at any time before the Expiration Date
of the Offer. If EMCORE extends the Offer beyond that time, you may
withdraw your tendered Eligible Options at any time until the extended
Expiration Date of the Offer. In addition, unless EMCORE accepts and
amends your Eligible Options before 12:00 midnight, Mountain Time, on January
16, 2009 (the 40th
business day after the commencement date of the Offer), you may withdraw your
tendered Eligible Options at any time prior to our acceptance of such Eligible
Options for amendment. To validly withdraw your tendered Eligible
Options, you must deliver to EMCORE by facsimile, hand delivery, regular mail,
overnight courier or e-mail a properly completed and signed Withdrawal Form with
the required information while you still have the right to withdraw your
tendered Eligible Options as follows:
|
By
Facsimile:
|
(626)
293-3646
|
|
By
Hand Delivery, Regular Mail or Overnight Courier:
|
EMCORE
Corporation
10420
Research Road SE
Albuquerque,
NM 87123
Attn:
Keith Kosco
|
|
By
E-mail:
|
Keith_Kosco@EMCORE.com
|
To obtain
a copy of a Withdrawal Form, please contact Keith Kosco, Chief Legal Officer and
Corporate Secretary, at (505) 332-5044 or
Keith_Kosco@EMCORE.com. EMCORE must receive your properly completed
and signed Withdrawal Form and other required documents before 11:59 p.m.,
Mountain Time, on December 17, 2008. If EMCORE extends the Offer
beyond that time, EMCORE must receive your properly completed and signed
Withdrawal Form and other required documents before the extended Expiration Date
of the Offer.
Delivery
of this Letter of Transmittal, Withdrawal Form and other required documents by
any other means is not permitted.
The
method of delivery of all documents, including this Letter of Transmittal,
Withdrawal Form and any other required documents, is at the election and risk of
the tendering Eligible Optionee. EMCORE recommends that you keep a
copy of your Letter of Transmittal and Withdrawal Form. In all cases,
you should allow sufficient time to ensure timely delivery.
EMCORE
intends to send an “Acknowledgement of Receipt” within two business days after
EMCORE receives your Letter of Transmittal or Withdrawal Form. If you
have not received an Acknowledgement of Receipt within this time period, you
should confirm that EMCORE has received your submissions by contacting Keith
Kosco, Chief Legal Officer and Corporate Secretary, at (505) 332-5044 or
Keith_Kosco@EMCORE.com. If EMCORE does not have a record of receipt
of your submissions, EMCORE may request that you show it evidence of those
submissions. EMCORE recommends that you keep a copy of your
submissions and proof of delivery, facsimile confirmation or other transmittal
confirmation in case EMCORE asks you for evidence of timely
submission.
EMCORE
will not accept any alternative, conditional or contingent
tenders. All persons tendering Eligible Options will, by completing
and signing this Letter of Transmittal, waive any right to receive any notice of
the acceptance of their tender, except as provided for in the
Offer.
2. Tenders. To tender
your Eligible Options pursuant to the Offer, you must complete the first page of
this Letter of Transmittal and follow the procedures described in Instruction
1. If you decide to tender a particular Eligible Option, you must
tender that entire Eligible Option to increase the exercise price to the
Adjusted Exercise Price for all shares subject to that Eligible
Option. If you hold more than one Eligible Option, then you may elect
to tender one or more of those options and retain the remaining
options.
3. Signatures on this Letter of
Transmittal. Except in accordance with the next sentence, this Letter of
Transmittal must be executed by the Eligible Option holder. If the
signature is by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or any other person acting in a fiduciary or
representative capacity, the signer’s full title and proper evidence
satisfactory to EMCORE of the authority of that person to act in that capacity
must be indicated on this Letter of Transmittal.
Requests for Assistance or
Additional Copies. Any questions or requests for assistance,
as well as requests for additional copies of the Offer to Amend, this Letter of
Transmittal, the Withdrawal Form or the Stock Option Amendment and Cash Payment
Agreement, may be directed to Keith Kosco, Chief Legal Officer and Corporate
Secretary, at (505) 332-5044 or Keith_Kosco@EMCORE.com. Copies will
be furnished promptly at EMCORE’s expense.
4. Irregularities. EMCORE
will determine, in its sole discretion, all questions as to the form of
documents and the validity, form and eligibility (including time of receipt) of
tenders of Eligible Options pursuant to the Offer. EMCORE will also
decide, in its sole discretion, all questions as to (a) the Adjusted
Exercise Price to be in effect under each Amended Option, (b) the number of
shares of our common stock purchasable under the Amended Option at the Adjusted
Exercise Price and (c) the amount of the
Cash Payment payable with respect to each Amended Option. EMCORE
reserves the right to reject any or all tenders of Eligible Options that it
determines do not comply with the terms and conditions of the Offer, are not in
proper form or are unlawful to accept. Otherwise, EMCORE intends to
accept and amend all Eligible Options that are properly tendered and not validly
withdrawn. EMCORE also reserves the right to waive any of the
conditions of the Offer or any defect or irregularity in any tender of Eligible
Options with respect to any particular Eligible Option or any particular
Eligible Optionee. No tender of Eligible Options will be deemed to
have been properly made until all defects or irregularities have been cured by
the tendering Eligible Optionee or waived by EMCORE.
Unless
waived, any defects or irregularities in connection with the tender of an
Eligible Option must be cured within such time as EMCORE shall
determine. Neither EMCORE nor any other person is or will be
obligated to give notice of any defects or irregularities in this Letter of
Transmittal, nor will anyone incur any liability for failure to give any such
notice. If the table on the first page of this Letter of Transmittal
includes only a portion of an outstanding Eligible Option, then EMCORE will not
accept the tendered Eligible Option or portion for amendment, but EMCORE does
intend to accept for amendment any properly tendered and not validly withdrawn
Eligible Option set forth in that table.
5. Important Tax
Information. You should refer to Sections 2 and 15 of the
Offer to Amend and the information under the heading “Certain Risks Related to
Participating in This Offer” in the Offer to Amend, which contain important U.S.
federal tax information concerning the Offer. You are strongly
encouraged to consult with your personal tax, financial and legal advisors to
determine the tax and other consequences of your participation in the
Offer.
6. Copies. You should
print and retain a copy of your Letter of Transmittal, after you have completed
and signed it, for your records.
IMPORTANT:
THIS LETTER OF TRANSMITTAL MUST BE RECEIVED BY EMCORE BY 11:59 P.M., MOUNTAIN
TIME, ON THE EXPIRATION DATE.