REGISTRATION RIGHTS AGREEMENT
Published on December 22, 1997
BPH DRAFT
11/25/97
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REGISTRATION RIGHTS AGREEMENT
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December 5, 1997
TABLE OF CONTENTS
i.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of the 5th day
of December, 1997, by and among Emcore Corporation, a New Jersey corporation
("Emcore"), the persons or entities listed on Schedule A hereto, each of whom
is herein referred to as a "Holder", and MicroOptical Devices, Inc., a Delaware
corporation ("MODE").
RECITALS
WHEREAS, Emcore and MODE are parties to that certain
Agreement and Plan of Merger of even date herewith (the "Merger Agreement")
pursuant to which MODE will merge with and into Emcore;
WHEREAS, pursuant to the terms of the Merger Agreement and
in order to induce the Holders to consummate the transactions contemplated
thereby, Emcore has agreed to grant certain registration rights to the Holders
as herein set forth.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights. Emcore covenants and agrees
as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933,
as amended.
(b) The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by Emcore with the SEC.
(c) The term "Holder" means (i) the persons or entities
listed on Schedule A or (ii) any person owning or having the right to acquire
Registrable Securities or any assignee thereof in accordance with Section 1.13
hereof.
(d) The term "1934 Act" shall mean the Securities Exchange
Act of 1934, as amended.
(e) The term "register", "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance
with the Act, and the declaration or ordering of effectiveness of such
registration statement or document by the SEC.
(f) The term "Registrable Securities" means (i) such number
of shares of Common Stock of Emcore, issuable or issued to the Holders
pursuant to the Merger Agreement, set forth opposite the name of each Holder
on Schedule A hereto or (ii) any shares of Common Stock of Emcore issued as
(or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of the Emcore Common Stock referenced in
(i) above, excluding in all cases, however, any Registrable Securities sold by
a person in a transaction in which his rights under this Section 1 are not
assigned.
(g) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
(h) The term "SEC" shall mean the Securities and Exchange
Commission.
All defined terms used, and not otherwise defined herein,
shall have the meaning ascribed to such terms in the Merger Agreement.
1.2 Request for Registration.
(a) Subject to Section 1.14 below, in the event that Emcore
(i) has not filed a registration statement for the sale of its Common Stock
within ninety (90) days after the Closing Date and (ii) receives, at any time
thereafter, a written request from the Holders of the Registrable Securities
then outstanding that Emcore file a registration statement under the Act
covering the registration of at least 35% of the Registrable Securities then
outstanding, then Emcore shall (i) within ten (10) days of the receipt
thereof, give written notice of such request to all Holders and (ii) effect as
soon as practicable, and in any event within 90 days of the receipt of such
request, the registration under the Act of all Registrable Securities which
the Holders request to be registered, subject to the limitations of subsection
1.2(b), within twenty (20) days of the mailing of such notice by Emcore in
accordance with Section 2.5.
(b) If the Holders initiating request hereunder (the
"Initiating Holders") intend to distribute the Registrable Securities covered
by their request by means of an underwriting, they shall so advise Emcore as a
part of their request made pursuant to subsection 1.2(a) and the Company shall
include such information in the written notice referred to in subsection
1.2(a). The underwriter will be selected by Emcore and shall be reasonably
acceptable to a majority in interest of the Holders. In such event, the right
of any Holder to include his Registrable Securities in such registration shall
be conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's
2.
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting
shall (together with Emcore as provided in subsection 1.4(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Section 1.2, if the underwriter advises the Holders in writing that marketing
factors require a limitation of the number of shares to be underwritten, then
the Initiating Holders shall so advise all Holders of Registrable Securities
which would otherwise be underwritten pursuant hereto, and the number of
shares of Registrable Securities that may be included in the underwriting
shall be allocated among all Holders thereof, including the Initiating
Holders, in proportion (as nearly as practicable) to the amount of Registrable
Securities owned by each Holder.
(c) Notwithstanding the foregoing, if Emcore shall furnish
to Holders requesting a registration statement pursuant to this Section 1.2, a
certificate signed by the Chief Executive Officer of Emcore stating that in
the good faith judgment of the Board of Directors of Emcore, it would be
detrimental to Emcore and its shareholders for such registration statement to
be filed and it is therefore essential to defer the filing of such
registration statement, Emcore shall have the right to defer taking action
with respect to such filing for a period of not more than 120 days after
receipt of the request of the Holders; provided, however, that Emcore may not
utilize this right more than once in any twelve-month period.
(d) In addition, Emcore shall not be obligated to effect, or
to take any action to effect, any registration pursuant to this Section 1.2:
(i) After Emcore has effected one
registration pursuant to this Section 1.2 and such registration has been
declared or ordered effective;
(ii) During the period starting with the date
sixty (60) days prior to Emcore's good faith estimate of the date of filing
of, and ending on a date one hundred eighty (180) days after the effective
date of, a registration subject to Section 1.3 hereof; provided that Emcore is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
(iii) If the Holders propose to dispose of
shares of Registrable Securities that may be immediately registered on Form
S-3 pursuant to a request made pursuant to Section 1.11 below.
1.3 Emcore Registration. Subject to Section 1.14 below, if
(but without any obligation to do so) Emcore proposes to register (including
for this purpose a registration effected by Emcore for shareholders other than
the Holders) any of its stock or other securities under the Act in connection
with the public offering of such securities solely for cash (other than a
registration relating solely to the sale of securities to participants in an
Emcore stock plan, a registration on any form which does not include
substantially the same
3.
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities or a registration in which the
only Common Stock being registered is Common Stock issuable upon conversion of
debt securities which are also being registered), Emcore shall, at such time,
promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing of
such notice by Emcore in accordance with Section 2.5, Emcore shall, subject to
the provisions of Section 1.8, cause to be registered under the Act all of the
Registrable Securities that each such Holder has requested to be registered.
1.4 Obligations of Emcore. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, Emcore
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder,
keep such registration statement effective for a period of up to one hundred
twenty (120) days or until the distribution contemplated in the Registration
Statement has been completed; provided, however, that (i) such 120-day period
shall be extended for a period of time equal to the period the Holder refrains
from selling any securities included in such registration at the request of an
underwriter of Common Stock (or other securities) of Emcore; and (ii) in the
case of any registration of Registrable Securities on Form S-3 which are
intended to be offered on a continuous or delayed basis, such 120-day period
shall be extended, if necessary, to keep the registration statement effective
until all such Registrable Securities are sold, provided that Rule 415, or any
successor rule under the Act, permits an offering on a continuous or delayed
basis, and provided further that applicable rules under the Act governing the
obligation to file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (I) includes any prospectus required by Section
10(a)(3) of the Act or (II) reflects facts or events representing a material
or fundamental change in the information set forth in the registration
statement, the incorporation by reference of information required to be
included in (I) and (II) above to be contained in periodic reports filed
pursuant to Section 13 or 15(d) of the 1934 Act in the registration statement.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Act with respect to the disposition of all securities
covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities owned
by them.
4.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities
or Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders; provided that Emcore shall not be required in connection therewith or
as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by Emcore are then listed.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for
all such Registrable Securities, in each case not later than the effective
date of such registration.
(i) Cause the Registration Statement to include in the plan
of distribution (and other relevant sections) the names of the distributees or
transferees of any Holders that are limited partnerships or limited liability
companies provided in writing to Emcore so as to permit such transferees and
distributees to make sales pursuant to such registration statement.
1.5 Furnish Information. It shall be a condition precedent
to the obligations of Emcore to take any action pursuant to this Section 1
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to Emcore such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such
Holder's Registrable Securities.
1.6 Expenses of Demand Registration. Emcore shall bear and
pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to a registration
pursuant to Section 1.2 for each Holder (which right may be assigned as
provided in Section 1.13), including (without limitation) all registration,
filing, and qualification fees, printers, legal and accounting fees relating
or apportionable
5.
thereto, but excluding underwriting discounts and commissions relating to
Registrable Securities.
1.7 Expenses of Emcore Registration. Emcore shall bear and
pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as
provided in Section 1.13), including (without limitation) all registration,
filing, and qualification fees, printers, legal and accounting fees relating
or apportionable thereto, but excluding underwriting discounts and commissions
relating to Registrable Securities.
1.8 Underwriting Requirements. In connection with any
offering involving an underwriting of shares of Emcore's capital stock, Emcore
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the
underwriting as agreed upon between Emcore and the underwriters selected by
it, and then only in such quantity as the underwriters determine in their sole
discretion will not, jeopardize the success of the offering by Emcore. If the
total amount of securities, including Registrable Securities, requested by
shareholders to be included in such offering exceeds the amount of securities
sold other than by Emcore that the underwriters determine in their sole
discretion is compatible with the success of the offering, then Emcore shall
be required to include in the offering only that number of such securities,
including Registrable Securities, which the underwriters determine in their
sole discretion will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the Holders according
to the total amount of securities entitled to be included therein owned by
each Holder or in such other proportions as shall mutually be agreed to by
such Holders.
1.9 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable
Securities are included in a registration statement under this Section 1:
(a) To the extent permitted by law, Emcore will indemnify
and hold harmless each Holder, any underwriter (as defined in the Act) for
such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Act or the 1934 Act, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Act, or the 1934 Act, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto, (ii) the omission or alleged omission to state therein
a material fact
6.
required to be stated therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by Emcore of the Act,
the 1934 Act or any rule or regulation promulgated under the Act or the 1934
Act; and Emcore will pay to each such Holder, underwriter or controlling
person any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
subsection 1.10(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, or action if such settlement is effected
without the consent of Emcore, nor shall Emcore be liable in any such case for
any such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and
in conformity with written information furnished expressly for use in
connection with such registration by any such Holder, underwriter or
controlling person.
(b) To the extent permitted by law, each Holder will
indemnify and hold harmless Emcore, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls Emcore within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Act or the 1934 Act to the extent and
only to the extent such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation that occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration, and each such
Holder will pay any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this subsection 1.10(b), in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
subsection 1.10(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided, that, in no event shall any indemnity under this
subsection 1.10(b) exceed the gross proceeds from the offering received by
such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.10,
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 the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified
7.
party and any other party represented by such counsel in such proceeding. The
failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if prejudicial to its
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 1.10, but the omission
so to deliver written notice to the indemnifying party will not relieve it of
any liability that it may have to any indemnified party otherwise than under
this Section 1.10.
(d) If the indemnification provided for in this Section 1.10
is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage, or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
that resulted in such loss, liability, claim, damage, or expense as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by the indemnifying party or by the indemnified party
and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission, provided that,
in no event shall the amount contributed by any Holder under this subsection
1.10(d) exceed the gross proceeds from the offering received by such Holder.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of Emcore and Holders under this Section
1.10 shall survive the completion of any offering of Registrable Securities in
a registration statement under this Section 1, and otherwise.
1.11 Form S-3 Registration. Subject to Section 1.14 below,
in case Emcore shall receive from any Holder or Holders a written request or
requests that Emcore effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, Emcore will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other
Holders; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and
8.
distribution of all or such portion of such Holder's or Holders' Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other Holder or Holders joining in such
request as are specified in a written request given within 15 days after
receipt of such written notice from Emcore; provided, however, that Emcore
shall not be obligated to effect any such registration, qualification or
compliance, pursuant to this section 1.11: (1) if Form S-3 is not available
for such offering by the Holders; (2) if the Holders, together with the
holders of any other securities of Emcore entitled to inclusion in such
registration, propose to sell Registrable Securities and such other securities
(if any) at an aggregate price to the public (net of any underwriters'
discounts or commissions) of less than $10,000,000; (3) if Emcore shall
furnish to the Holders a certificate signed by the President of Emcore stating
that in the good faith judgment of the Board of Directors of Emcore, it would
be seriously detrimental to Emcore and its shareholders for such Form S-3
Registration to be effected at such time, in which event Emcore shall have the
right to defer the filing of the Form S-3 registration statement for a period
of not more than 90 days after receipt of the request of the Holder or Holders
under this Section 1.11; provided, however, that Emcore shall not utilize this
right more than once in any twelve month period; (4) if Emcore has, within the
twelve (12) month period preceding the date of such request, already effected
one registration on Form S-3 for the Holders pursuant to this Section 1.11; or
(5) in any particular jurisdiction in which Emcore would be required to
qualify to do business or to execute a general consent to service of process
in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, Emcore shall file a
registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after receipt
of the request or requests of the Holders. All expenses incurred in connection
with a registration requested pursuant to Section 1.12, including (without
limitation) all registration, filing, qualification, printer's and accounting
fees and the reasonable fees and disbursements of counsel for the selling
Holder or Holders and counsel for Emcore, shall be borne pro rata by the
Holder or Holders participating in the Form S-3 Registration. Registrations
effected pursuant to this Section 1.12 shall not be counted as demands for
registration or registrations effected pursuant to Sections 1.2 or 1.3,
respectively.
1.12 Assignment of Registration Rights. The rights to cause
Emcore to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee
or assignee of such securities, provided: (a) Emcore is furnished with prior
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned;
(b) such transferee or assignee agrees in writing to be bound by and subject
to the terms and conditions of this Agreement, including without limitation
the provisions of Section 1.13 below; and (c) such assignment shall be
effective only if immediately following such transfer the further disposition
of such securities by the transferee or assignee is restricted under the Act.
9.
1.13 "Market Stand-Off" Agreement. Each Holder hereby agrees
that, during the period of duration specified by Emcore and an underwriter of
common stock or other securities of Emcore, following the effective date of a
registration statement of Emcore filed under the Act, it shall not, to the
extent requested by Emcore and such underwriter, directly or indirectly sell,
offer to sell, contract to sell (including, without limitation, any short
sale), grant any option to purchase or otherwise transfer or dispose of (other
than to donees who agree to be similarly bound) any securities of Emcore held
by it at any time during such period except common stock included in such
registration; provided, however, that such market stand-off time period shall
not exceed (180) days and all officers and directors of the Company enter into
similar agreements.
In order to enforce the foregoing covenant, Emcore may
impose stop-transfer instructions with respect to the Registrable Securities
of each Holder (and the shares or securities of every other person subject to
the foregoing restriction) until the end of such period.
1.14 Limitation on Registration. Emcore shall have no
obligation to register any Registrable Securities under Sections 1.2, 1.3 or
1.11 of this Agreement in excess of 730,000 shares of Registrable Securities.
In the event that the number of shares of Registrable Securities to be
registered exceeds 730,000 shares of Registrable Securities, then the number
of shares of Registrable Securities to be registered pursuant to this
Agreement shall be allocated among all participating Holders as follows: (i)
all participating Holders holding Registrable Securities that prior to the
consummation of the transactions contemplated by the Merger Agreement were
evidenced by shares of MODE common stock shall be entitled to include all of
the Registrable Securities held by such Holders in any such registration and
(ii) participating Holders holding Registrable Securities that prior to the
consummation of the transactions contemplated by the Merger Agreement were
evidenced by shares of MODE preferred stock shall be entitled to include such
number of shares of Registrable Securities as are permissible hereunder in
proportion (as nearly as practicable) to the amount of Registrable Securities
owned by each such participating Holder.
1.15 Termination of Registration Rights. The right of any
Holder to request registration or inclusion in any registration pursuant to
Section 1 shall terminate if (i) Emcore has registered 730,000 shares of
Registrable Securities or (ii) all shares of Registrable Securities held by
such Holder may immediately be sold under Rule 144 during any 90-day period.
2. Miscellaneous.
2.1 Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties
(including transferees of any shares of Registrable Securities). Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any
10.
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
2.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of New York as applied to agreements
among New York residents entered into and to be performed entirely within New
York.
2.3 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.4 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.5 Notices. Unless otherwise provided, any notice required
or permitted under this Agreement shall be given in writing and shall be
deemed effectively given upon personal delivery to the party to be notified or
upon deposit with the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or at such other
address as such party may designate by ten (10) days' advance written notice
to the other parties.
2.6 Expenses. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
2.7 Amendments and Waivers. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of Emcore and the holders of a
majority of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Registrable Securities then outstanding, each future holder of
all such Registrable Securities, and Emcore.
2.8 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms.
11.
2.9 Aggregation of Stock. All shares of Registrable
Securities held or acquired by affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
2.10 Entire Agreement; Amendment; Waiver. This Agreement
(including the Exhibits hereto, if any) constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof. This Agreement shall supersede all prior agreements with
regard to the subjects hereof and thereof in their entirety, including,
without limitation, the registration rights contained in that certain Amended
and Restated Registration Rights Agreement, dated July 16, 1996 by and among
MODE, the Existing Stockholders (as defined therein) and the Purchasers (as
defined therein), as amended, which prior agreements shall be null, void and
of no further force or effect as of the date hereof.
12.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
EMCORE CORPORATION
By: /s/ Reuben F. Richards, Jr.
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Reuben F. Richards, Jr., President
Address: 394 Elizabeth Ave.
Somerset, New Jersey 08873
HOLDERS
By:
------------------------------------
Address:
------------------------------------
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MICROOPTICAL DEVICES, INC.
By: /s/ Robert Bryan
------------------------------------
Name:
Title:
Address: 5601-C Midway Park Place, N.E.
Albuquerque, New Mexico 87109
13.
SCHEDULE A
NUMBER
OF SHARES
OF NUMBER
NAME EMCORE COMMON STOCK OF SHARES
OF ISSUED TO SUCH OF REGISTRABLE
HOLDER HOLDER SECURITIES
- ------ ------ ----------
Richard L. Hardison 2,658 665
Robert Bryan 225,987 56,497
Thomas M. Brennan 225,987 56,497
William B. Patton, Jr. 86,850 21,713
ARCH Venture Fund II, L.P. 329,701 309,762
AM Fund I, L.P. 104,034 104,034
Murphree New Mexico 173,391 173,391
Investors I, L.C.
AMP, Inc. 184,951 184,951
Shelby Private Placement 46,238 46,238
Group (MODE), LLC
Falcon Technology 23,118 23,118
Partners II., L.P.
Harvey B. Cash 5,779 5,779
BDM International, Inc. 26,586 6,647
Clinton W. Bybee 26,586 6,647
- ------------------------- --------- -------
Totals 1,461,866 995,939
14.