EXHIBIT 10.1: AMENDMENT TO STOCK PURCHASE AGREEMENT
Published on November 25, 2009
EXHIBIT
10.1
AMENDMENT
TO COMMON STOCK PURCHASE AGREEMENT
THIS AMENDMENT TO COMMON STOCK PURCHASE
AGREEMENT (this “Amendment”), entered
into this 24th day of November, 2009, amends that certain Common Stock Purchase
Agreement (the “Original Agreement”),
dated October 1, 2009, by and between Commerce Court Small Cap Value Fund, Ltd.,
a business company incorporated under the laws of the British Virgin Islands
(the “Investor”), and
EMCORE Corporation, a corporation organized and existing under the laws of the
State of New Jersey (the “Company”).
WHEREAS,
the Company and the Investor are party to the Original Agreement;
WHEREAS,
under the terms of the Original Agreement, the Company and the Investor have
agreed to amend the Original Agreement as set forth herein;
AGREEMENT
NOW
THEREFORE, pursuant to Section 9.3 of the Original Agreement, and intending to
be legally bound, the parties hereto amend the Original Agreement as
follows:
1. Section 5.1(ii) of the
Original Agreement is amended by deleting the reference to “60 days” and
replacing it with “90 days.”
2.
Section 7.1 of the Original Agreement is amended by deleting the references to
“the 60th day” and replacing them with “ the 90th day.”
3. The
Original Agreement as amended by this Amendment is hereby ratified and
confirmed. The terms of this Amendment shall govern and control in
the event of any conflict between the terms of this Amendment and the terms of
(a) any correspondence, discussions or other oral arrangements, agreements or
understandings between the parties regarding the subject matter contained
herein, and/or (b) the Original Agreement. On a go-forward basis,
references to the “Agreement” shall mean references to the Original Agreement,
as modified by this Amendment.
4. The
provisions of ARTICLE IX of the Original Agreement shall apply to this
Amendment, mutatis
mutandis, as if such provisions were set forth herein (with such
non-substantive modifications to such provisions as are necessary to effectuate
the terms of this Amendment, without varying the substantive terms
hereof).
5.
Capitalized terms used and not otherwise defined herein have the meanings
assigned to them in the Original Agreement. This Amendment may be
executed in one or more counterparts, each of which will be deemed an original
copy of this Amendment and all of which, when taken together, will be deemed to
constitute one and the same agreement.
[Remainder of Page
Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned
have executed and adopted this Amendment to Common Stock Purchase Agreement as
of the date first set forth above.
EMCORE
CORPORATION:
|
|
By:
|
/s/ John M.
Markovich
|
|
|
Name:
John M. Markovich
|
|
|
Title:
Chief Financial Officer
|
COMMERCE
COURT SMALL CAP VALUE FUND, LTD.:
|
|
By:
|
/s/ Peter
Poole
|
|
|
Name:
Peter Poole
|
|
|
Title:
Director
|