SC 13D/A: Schedule filed to report acquisition of beneficial ownership of 5% or more of a class of equity securities
Published on March 6, 2008
CUSIP No.
290846104
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
13D
(Amendment
No. 3)
Under
the Securities Exchange Act of 1934
EMCORE
Corp.
(Name of
Issuer)Common
Stock, no par value
(Title of
Class of Securities)290846104
(CUSIP
Number)Kathryn
Klinedinst, Esq.
Greenberg
Glusker Fields Claman & Machtinger LLP
1900
Avenue of the Stars, Suite 2100
Los
Angeles, CA 90067
(310)
201-7576
(Name,
Address and Telephone Number of Person Authorized to Receive Notices
and
Communications)
February
15, 2008
(Date of
Event which Requires Filing of this Statement)
If the
reporting person has previously filed a statement on Schedule 13G to report the
acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box / /.
NOTE:
Schedules filed in paper format shall include a signed original and five copies
of the schedule, including all exhibits. See Section 240.13d-7(b) for other
parties to whom copies are to be sent.
* The
remainder of this cover page shall be filled out for a reporting person’s
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The
information required on the remainder of this cover page shall not be deemed to
be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934
(“Act”) or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP
No. 290846104
(1)
|
Name of Reporting Person
S.S. or I.R.S. Identification No. of Above
Person
David Gelbaum, Trustee, The Quercus
Trust
|
|||
(2) | Check the Appropriate Box if a Member of a Group (See Instructions) |
(A) /X/
(B) /
/
|
||
(3)
|
SEC
Use Only
|
|||
(4) |
Source of Funds (See Instructions)
PF
|
|||
(5)
|
Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) | / / | ||
(6)
|
Citizenship or Place of Organization
U.S.
|
|||
(7)
|
Sole
Voting Power
-0-
|
|||
Number of Shares | ||||
Beneficially Owned |
(8)
|
Shared Voting Power
6,266,727
|
||
by Each Reporting | ||||
Person With |
(9)
|
Sole Dispositive Power
-0-
|
||
(10)
|
Shared
Dispositive Power
6,266,727
|
|||
(11)
|
Aggregate
Amount Beneficially Owned by Each Reporting Person
6,266,727
|
|||
(12)
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) | / / | ||
(13)
|
Percent
of Class Represented by Amount in Row (11)
9.6%(1)
|
|||
(14)
|
Type
of Reporting Person (See Instructions)
IN
|
______________
(1) Based
on 65,028,010 shares of Common Stock outstanding, calculated in accordance with
Rule 13D.
2
CUSIP
No. 290846104
(1)
|
Name of Reporting Person
S.S. or I.R.S. Identification No. of Above
Person
Monica Chavez Gelbaum, Trustee, The Quercus
Trust
|
|||
(2) | Check the Appropriate Box if a Member of a Group (See Instructions) |
(A) /X/
(B) /
/
|
||
(3)
|
SEC
Use Only
|
|||
(4) |
Source of Funds (See Instructions)
PF
|
|||
(5)
|
Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) | / / | ||
(6)
|
Citizenship or Place of Organization
U.S.
|
|||
(7)
|
Sole
Voting Power
-0-
|
|||
Number of Shares | ||||
Beneficially Owned |
(8)
|
Shared Voting Power
6,266,727
|
||
by Each Reporting | ||||
Person With |
(9)
|
Sole Dispositive Power
-0-
|
||
(10)
|
Shared
Dispositive Power
6,266,727
|
|||
(11)
|
Aggregate
Amount Beneficially Owned by Each Reporting Person
6,266,727
|
|||
(12)
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) | / / | ||
(13)
|
Percent
of Class Represented by Amount in Row (11)
9.6%(1)
|
|||
(14)
|
Type
of Reporting Person (See Instructions)
IN
|
______________
(1) Based
on 65,028,010 shares of Common Stock outstanding, calculated in accordance with
Rule 13D.
3
CUSIP
No. 290846104
(1)
|
Name of Reporting Person
S.S. or I.R.S. Identification No. of Above
Person
The Quercus Trust
|
|||
(2) | Check the Appropriate Box if a Member of a Group (See Instructions) |
(A) /X/
(B) /
/
|
||
(3)
|
SEC
Use Only
|
|||
(4) |
Source of Funds (See Instructions)
PF
|
|||
(5)
|
Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) | / / | ||
(6)
|
Citizenship or Place of Organization
U.S.
|
|||
(7)
|
Sole
Voting Power
-0-
|
|||
Number of Shares | ||||
Beneficially Owned |
(8)
|
Shared Voting Power
6,266,727
|
||
by Each Reporting | ||||
Person With |
(9)
|
Sole Dispositive Power
-0-
|
||
(10)
|
Shared
Dispositive Power
6,266,727
|
|||
(11)
|
Aggregate
Amount Beneficially Owned by Each Reporting Person
6,266,727
|
|||
(12)
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) | / / | ||
(13)
|
Percent
of Class Represented by Amount in Row (11)
9.6%(1)
|
|||
(14)
|
Type
of Reporting Person (See Instructions)
OO
|
_____________
(1) Based
on 65,028,010 shares of Common Stock outstanding, calculated in accordance with
Rule 13D.
4
CUSIP
No. 290846104
Item
1.
This
Amendment No. 3 to Schedule 13D (this “Amendment No. 3”) amends and restates,
where indicated, the statement on Schedule 13D relating to the Common Stock of
the Issuer filed by The Quercus Trust, David Gelbaum and Monica Chavez Gelbaum
(the “Reporting Persons”) with the Securities and Exchange Commission on August
3, 2007 (the “Initial Schedule 13D”), as amended by Amendment No. 1 to Schedule
13D filed on August 24, 2007 and Amendment No. 2 to Schedule 13D filed on
October 5, 2007. Capitalized terms used in this Amendment No. 3 but
not otherwise defined herein have the meanings given to them in the Initial
Schedule 13D or prior amendments thereto.
This
Amendment No. 3 is being made to disclose the acquisition of additional
securities of the Issuer. Except as otherwise set forth herein, this
Amendment No. 3 does not modify any of the information previously reported by
the reporting persons in the Initial Schedule 13D or prior amendments
thereto.
Item
5. Interest in Securities of the
Issuer
(a) As
of the date of this Amendment No. 3, each reporting person beneficially owns
6,266,727 shares of Common Stock, which are held of record by the
Trust.
(b) Each
of David Gelbaum and Monica Chavez Gelbaum, acting alone, has the power to
exercise voting and investment control over the shares of Common Stock owned by
the Trust.
(c) Since
October 5, 2007, the Trust has sold shares of Common Stock in brokered
transactions as follows:
Date
|
Number of
Shares
|
Price Per
Share
|
2/7/2008
|
-300,000
|
$ 14.1698
|
In addition, pursuant to the Securities
Purchase Agreement dated 2/15/2008, a copy of which is attached hereto as
Exhibit B and incorporated herein by reference, the Reporting Persons purchased
from Issuer, for a total purchase price of $9,400,000, 752,000 shares of Common
Stock at $12.50 per share and warrants to purchase up to 131,600 shares of
Common Stock with an exercise price of $15.06, a form of Warrant is attached
hereto as Exhibit C and incorporated herein by reference.
In connection therewith, Issuer entered
into a Registration Rights Agreement dated 2/15/2008, pursuant to which it
agreed to register for resale the shares of Common Stock issued under this
transaction and shares of Common Stock to be issued upon exercise of
warrants. A copy of the Registration Rights Agreement is attached
hereto as Exhibit D and incorporated herein by reference.
(d) Not
applicable.
(e) Not
applicable.
Item
6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the Issuer
Pursuant
to the Power of Attorney filed as Exhibit “B” to Amendment No. 1, David Gelbaum
has been appointed as Monica Chavez Gelbaum’s Attorney-In-Fact.
5
CUSIP
No. 290846104
Item
7. Material to Be Filed as Exhibits
Exhibit
A: Agreement Regarding Joint Filing of Amendment No. 3 to Schedule
13D.
Exhibit
B: Securities Purchase Agreement dated 2/15/2008
Exhibit
C: Form of Warrant to Purchase Common Stock
Exhibit
D: Registration Rights Agreement dated
2/15/2008
6
CUSIP
No. 290846104
SIGNATURE
After
reasonable inquiry and to the best of its knowledge and belief, each of the
undersigned certifies that the information set forth in this statement is true,
complete and correct and agrees that this statement may be filed jointly with
the other undersigned parties.
Dated:
March 5, 2008
|
/s/
David Gelbaum
|
David
Gelbaum, Co-Trustee of The Quercus Trust
|
|
/s/
David Gelbaum, Attorney-In-Fact for Monica Chavez
Gelbaum
|
|
Monica
Chavez Gelbaum, Co-Trustee of The Quercus Trust
|
|
/s/
David Gelbaum
|
|
The
Quercus Trust, David Gelbaum, Co-Trustee of The Quercus
Trust
|
7
CUSIP
No. 390846104
Exhibit
A
Agreement Regarding Joint
Filing of Amendment No. 3 to Schedule 13D
The
undersigned agree that the Amendment No. 3 to the Schedule 13D with respect to
the Common Stock of EMCORE Corp. is a joint filing being made on their
behalf.
Dated:
March 5, 2008
|
/s/
David Gelbaum
|
David
Gelbaum, Co-Trustee of The Quercus Trust
|
|
/s/
David Gelbaum, Attorney-In-Fact for Monica Chavez
Gelbaum
|
|
Monica
Chavez Gelbaum, Co-Trustee of The Quercus Trust
|
|
/s/
David Gelbaum
|
|
The
Quercus Trust, David Gelbaum, Co-Trustee of The Quercus
Trust
|
A-1
CUSIP
No. 390846104
Exhibit B
SECURITIES PURCHASE
AGREEMENT
THIS SECURITIES PURCHASE
AGREEMENT (this “Agreement”), dated as of
February 15, 2008, by and among EMCORE Corporation, a New Jersey corporation
with headquarters located at 10420 Research Road, SE, Albuquerque, New Mexico
87123 (the “Company”),
and each investor identified on the signature pages hereto
(individually, an “Investor” and collectively,
the “Investors”).
BACKGROUND
A.
The Company and each Investor are executing and delivering this Agreement in
reliance upon the exemption from registration afforded by Section 4(2) of
the Securities Act of 1933, (the “Securities Act”), and
Rule 506 of Regulation D (“Regulation D”) as promulgated
by the United States Securities and Exchange Commission (the “SEC”) under the Securities
Act.
B. Each
Investor, severally and not jointly, wishes to purchase, and the Company wishes
to sell, upon the terms and conditions stated in this Agreement, (i) that
aggregate number of shares of the common stock, no par value, of the Company
(the “Common Stock”),
set forth on such Investor’s signature page to this Agreement (which aggregate
amount for all Investors together shall be 8,000,000 shares of Common Stock and
shall collectively be referred to herein as the “Common Shares”) and (ii)
warrants, in substantially the form attached hereto as Exhibit A (the “Warrants”) to acquire up to
that number of additional shares of Common Stock set forth opposite such
Investor’s name on the Schedule of Investors (the shares of Common Stock
issuable upon exercise of or otherwise pursuant to the Warrants issued to the
Investors, collectively, the “Warrant Shares”).
C. The
Common Shares, the Warrants and the Warrant Shares issued or issuable pursuant
to this Agreement are collectively are referred to herein as the “Securities.”
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and the Investors agree as
follows:
ARTICLE
I
DEFINITIONS
1.1 Definitions. In
addition to the terms defined elsewhere in this Agreement, the following terms
have the meanings indicated:
“Affiliate” means any Person
that, directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such terms are used
in and construed under Rule 144 under the Securities Act; provided, however, the term Affiliate
shall not include WorldWater & Solar Technologies Corporation.
“Agent” has the meaning set
forth in Section
3.1(l).
“Agreement” has the meaning set
forth in the Preamble.
“Approved Stock Plan” means any
employee benefit plan which has been approved by the Board of Directors of the
Company, pursuant to which the Company's securities may be issued to, or for the
benefit of, any employee, officer or director for services provided to the
Company.
“Business Day” means any day
other than Saturday, Sunday, any day which shall be a federal legal holiday in
the United States or any day on which banking institutions in The State of New
York are authorized or required by law or other governmental action to
close.
“Closing” means the closing of
the purchase and sale of the Securities pursuant to Section 2.1.
“Closing Date” means the date
and time of the Closing and shall be on such date as is mutually agreed to by
the Company and each Investor.
“Closing Price” means, for any
date, the closing price per share of the Common Stock for such date (or, if not
a Trading Day, the nearest preceding date that is a Trading Day) on the primary
Eligible Market or exchange or quotation system on which the Common Stock is
then listed or quoted.
“Company” has the meaning set
forth in the Preamble.
“Common Shares” has the meaning
set forth in the Preamble.
B-1
“Common Stock” has the meaning
set forth in the Preamble.
“Contingent Obligation” has the
meaning set forth in Section
3.1(aa).
“Convertible Securities” means
any stock or securities (other than Options) directly or indirectly convertible
into or exercisable or exchangeable for Common Stock.
“Disclosure Materials” has the
meaning set forth in Section 3.1(g).
“Effective Date” means the date
that the Registration Statement is first declared effective by the
SEC.
“8-K Filing” has the meaning
set forth in Section
4.5.
“Eligible Market” means any of the
New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Select
Market, the NASDAQ Global Market, the NASDAQ Capital Market or OTC Bulletin
Board.
“Environmental Laws” has the
meaning set forth in Section
3.1(dd).
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Excluded Investors” means
Jefferies & Company, Inc.
“Excluded Securities” means any
Common Stock or other securities of the Company issued or issuable: (i) in
connection with any Approved Stock Plan; (ii) upon exercise of the Warrants;
(iii) in connection with any strategic acquisition or transaction by the
Company, whether through an acquisition of stock or a merger of any business,
assets or technologies, provided that (A) the primary purpose is not to raise
equity capital and (B) if in connection with the financing of such strategic
acquisition or transaction, substantially all of the proceeds raised in
connection with the issuance of Common Stock or other securities of the Company
are used to pay consideration in or related to such
strategic acquisition, for expenses related to such
strategic acquisition and for working capital
requirements related to such strategic acquisition, and
all of the Common Stock or other securities of the Company
issued in connection with such strategic acquisition or transaction
is subject to Restrictions on Transfer until the Trigger Date; and
(iv) upon exercise of any Options or Convertible Securities which are
outstanding on the day immediately preceding the date hereof, provided that the
terms of such Options or Convertible Securities are not amended, modified or
changed on or after the date hereof.
“GAAP” has the meaning set
forth in Section
3.1(g).
“Hazardous Materials” has the
meaning set forth in Section
3.1(dd).
“Indebtedness” has the meaning
set forth in Section
3.1(aa).
“Insolvent” has the meaning set
forth in Section
3.1(h).
“Intellectual Property Rights”
has the meaning set forth in Section 3.1(t).
“Investor” has the meaning set
forth in the Preamble.
“Lien” means any lien, charge,
claim, security interest, encumbrance, right of first refusal or other
restriction.
“Losses” means any and all
losses, claims, damages, liabilities, settlement costs and expenses, including,
without limitation, reasonable attorneys’ fees.
“Material Adverse Effect” means
(i) an adverse effect on the legality, validity or enforceability of any
Transaction Document on the Company other than as a result of a change in law or
regulation following the date of this Agreement, (ii) a material adverse effect
on the results of operations, assets, business or financial condition of the
Company and the Subsidiaries taken as a whole on a consolidated basis or
(iii) material and adverse impairment of the Company’s ability to perform
on a timely basis its obligations under any of the Transaction Documents,
provided, that none of the following alone shall be deemed, in and of itself, to
constitute a Material Adverse Effect: (A) a change in the market
price or trading volume of the Common Stock or (B) changes in general economic
conditions or changes affecting the industry in which the Company operates
generally (as opposed to Company-specific changes) so long as such changes do
not have a disproportionate effect on the Company and its Subsidiaries taken as
a whole.
“Material Permits” has the
meaning set forth in Section 3.1(v).
“Options” means any outstanding
rights, warrants or options to subscribe for or purchase Common Stock or
Convertible Securities.
B-2
“Person” has the meaning set
forth in Section 3.1(aa).
“Placement Agents” means
Jefferies & Co, Inc., Lazard Freres & Co. LLC, Canaccord Adams Inc.,
Merriman Curhan Ford & Co.
“Proceeding” means an action,
claim, suit, investigation or proceeding (including, without limitation, a
partial proceeding, such as a deposition), whether commenced or threatened in
writing.
“Prospectus” means the
prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Registration Statement, and
all other amendments and supplements to the Prospectus including post-effective
amendments of the Registration Statement, and all material incorporated by
reference or deemed to be incorporated by reference in such
Prospectus.
“Registrable Securities” means
the Common Shares and the Warrant Shares issued or issuable pursuant to the
Transaction Documents, together with any securities issued or issuable upon any
stock split, dividend or other distribution, recapitalization or similar event
with respect to the foregoing.
“Registration Rights Agreement”
means the Registration Rights Agreement by and among the parties hereto of even
date herewith in the form attached hereto as Exhibit
E.
“Registration Statement” means
each registration statement required to be filed pursuant to the Registration
Rights Agreement, including (in each case) the Prospectus, amendments and
supplements to such registration statement including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference in such registration
statement.
“Regulation D” has the meaning
set forth in the Preamble.
“Restrictions on Transfer”
means restrictions on the sale, offers to sell, contract or agreements to sell,
hypothecate, pledge, grant any option to purchase, make any "short sale" or
otherwise dispose of or agree to dispose of, directly or indirectly, any
securities of the Company, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section
16 of the Securities and Exchange Act of 1934, as amended and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder
with respect to any securities of the Company owned directly by the undersigned
(including holding as a custodian) or with respect to which the undersigned has
beneficial ownership within the rules and regulations of the Securities and
Exchange Commission, in each case, or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of any securities of the Company. "Short
sales" for purposes of the preceding definition shall have the meaning as
defined in Rule 200 of Regulation SHO adopted under the Exchange Act and all
types of direct and indirect stock pledges, forward sale contracts, options,
puts, calls, short sales, swaps and similar arrangements (including on a total
return basis), and sales and other transactions through non-US broker-dealers or
foreign regulated brokers having the effect of hedging the securities of the
Company.
“Rule 144,” “Rule 415,” and “Rule 424” means
Rule 144, Rule 415 and Rule 424, respectively, promulgated by the
SEC pursuant to the Securities Act, as such rules may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC having
substantially the same effect as such rule.
“SEC” has the meaning set forth
in the Preamble.
“SEC Reports” has the meaning
set forth in Section 3.1(g).
“Securities” has the meaning
set forth in the Preamble.
“Securities Act” has the
meaning set forth in the Preamble.
“Shares” means shares of the
Company’s Common Stock.
“Short Sales” has the meaning
set forth in Section
3.2(h).
“Subsidiary” means the
following subsidiaries of the Company: (i) Corona Optical Systems, Inc., a
Delaware corporation, (ii) Opticomm Corporation, a Delaware corporation, and
(iii) EMCORE Solar Power, Inc., a Delaware corporation.
“Trading Day” means (i) a day
on which the Common Stock is traded on a Trading Market (other than the OTC
Bulletin Board), or (ii) if the Common Stock is not listed or quoted on a
Trading Market (other than the OTC Bulletin Board), a day on which the Common
Stock is traded in the over-the-counter market, as reported by the OTC Bulletin
Board, or (iii) if the Common Stock is not listed or quoted on any Trading
Market, a day on which the Common Stock is quoted in the over-the-counter market
as reported by the Pink Sheets LLC (or any similar organization or agency
succeeding to its functions of reporting prices); provided, that in the event
that the Common Stock is not listed or quoted as set forth in (i), (ii) and
(iii) hereof, then Trading Day shall mean a Business Day.
“Trading Market” means
whichever of the New York Stock Exchange, the American Stock Exchange, the
NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market
or OTC Bulletin Board on which the Common Stock is listed or quoted for trading
on the date in question.
B-3
“Transaction” has the meaning
set forth in Section
3.2(h).
“Transaction Documents” means
this Agreement, including the schedules, annexes and exhibits attached hereto,
the Registration Rights Agreement, Warrants and the Transfer Agent Instructions
and each of the other agreements or instruments entered into or executed by the
parties hereto in connection with the transactions contemplated by this
Agreement.
“Transfer Agent” means American
Stock Transfer & Trust Company, or any successor transfer agent for the
Company.
“Transfer Agent Instructions”
means, with respect to the Company, the Company Transfer Agent Instructions, in
substantially the form of Exhibit D,
executed by the Company and delivered to and acknowledged in writing by the
Transfer Agent.
“Warrants” has the meaning set
forth in the Preamble.
“Warrant Shares” has the
meaning set forth in the Preamble.
ARTICLE
II
PURCHASE
AND SALE
2.1 Closing. Subject
to the terms and conditions set forth in this Agreement, at the Closing the
Company shall issue and sell to each Investor, and each Investor shall,
severally and not jointly, purchase from the Company, such number of Common
Shares and Warrants for the price set forth on such Investor’s signature page to
this Agreement. The date and time of the Closing and shall be 11:00
a.m., New York City Time, on the Closing Date. The Closing shall take
place at the offices of the Company’s Counsel.
2.2 Closing
Deliveries.
(a) At the
Closing, the Company shall deliver or cause to be delivered to each Investor the
following:
(i) a copy of
the Company’s irrevocable instructions to the Transfer Agent instructing the
Transfer Agent to deliver, on an expedited basis, one or more stock
certificates, free and clear of all restrictive and other legends (except as
expressly provided in Section 4.1(b)
hereof), evidencing such number of Common Shares set forth on such Investor’s
signature page to this Agreement, registered in the name of such
Investor;
(ii) a
Warrant, issued in the name of such Investor, pursuant to which such Investor
shall have the right to acquire such number of Warrant Shares set forth on such
Investor’s signature page to this Agreement;
(iii) duly
executed Transfer Agent Instructions acknowledged by the Company’s transfer
agent;
(iv) a legal
opinion of Jones Day, in the form of Exhibit C-1,
executed by such counsel and delivered to the Investors;
(v) a legal
opinion of Dillon, Bitar & Luther, L.L.C., in the form of Exhibit C-2, executed
by such counsel and delivered to the Investors;
(vi) a
certificate of the Secretary of the Company, dated as of the Closing Date,
(a) certifying the resolutions adopted by the Board of Directors of the
Company approving the transactions contemplated by this Agreement and the other
Transaction Documents and the issuance of the Securities, (b) certifying
the current versions of the certificate of incorporation, as amended and by-laws
of the Company and (c) certifying as to the signatures and authority of
persons signing the Transaction Documents and related documents on behalf of the
Company;
(vii) a
certificate of the Chief Executive Officer, Chief Operating Officer or Chief
Financial Officer of the Company, dated as of the Closing Date, certifying to
the fulfillment of the conditions specified in Section 5.1;
and
(viii) reimbursement
of legal fees of Hudson Bay (an Investor) or its designee(s) for its costs and
expenses incurred in connection with the transactions contemplated by the
Transaction Documents (including, without limitation, legal fees and
disbursements in connection therewith, negotiation, preparation and execution of
the Transaction Documents and due diligence in connection therewith) up to a
maximum amount of $30,000, which amount, may be withheld by such Investor from
its aggregate purchase price at the Closing.
(b) At the
Closing, each Investor shall deliver or cause to be delivered to the Company the
following:
B-4
(i) the
purchase price set forth on such Investor’s signature page to this Agreement in
United States dollars and in immediately available funds, by wire transfer to an
account designated in writing to such Investor by the Company for such purpose
(except, with respect to the Hudson Bay, the purchase price shall be net of
legal fees as provided in Section 2.2(a)(vii); and
(ii) a
completed and executed Investor Signature Page to this Agreement;
(iii) a
completed version of the Stock Certificate Questionnaire attached hereto as
Exhibit
B-1;
(iv) a
completed and executed version of the Registration Statement Questionnaire and
Acknowledgement attached hereto as Exhibit B-2;
and
(v) a
completed and executed version of the Investor Certificate attached hereto as
Exhibit
B-3.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
(a) Subsidiaries. The
Company does not have any "significant subsidiaries" (within the meaning of Rule
1-02(w) of Regulation S-X under the Securities Act, as such regulation is in
effect on the date hereof) other than the Subsidiaries. The Company
owns or controls, directly or indirectly, all of the capital stock or comparable
equity interests of each Subsidiary free and clear of any Lien, and all issued
and outstanding shares of capital stock or comparable equity interest of each
Subsidiary are validly issued and are fully paid, non-assessable and free of
preemptive and similar rights.
(b) Organization and
Qualification. The Company and each Subsidiary is an entity
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, as applicable, with the
requisite legal authority to own and use its properties and assets and to carry
on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation of any of the provisions of its certificate or
articles of incorporation, bylaws or other organizational or charter documents,
as applicable. The Company and each Subsidiary is duly qualified to
do business and is in good standing as a foreign corporation or other entity in
each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be
so qualified or in good standing, as the case may be, would not, individually or
in the aggregate, have or reasonably be expected to result in a Material Adverse
Effect.
(c) Authorization;
Enforcement. The Company has the requisite corporate authority
to enter into and to consummate the transactions contemplated by each of the
Transaction Documents to which it is a party and otherwise to carry out its
obligations hereunder and thereunder. The execution and delivery of
each of the Transaction Documents to which it is a party by the Company and the
consummation by it of the transactions contemplated hereby and thereby
including, without limitation, the issuance of the Common Shares, the
reservation for issuance and the issuance of the Warrant Shares issuable upon
exercise of the Warrants, have been duly authorized by all necessary corporate
action on the part of the Company and no further consent or action is required
by the Company, its Board of Directors or its stockholders. Each of
the Transaction Documents to which it is a party has been (or upon delivery will
be) duly executed by the Company and is, or when delivered in accordance with
the terms hereof, will constitute, the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except (i)
as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
(d) No Conflicts;
Consents. The execution, delivery and performance of the
Transaction Documents to which it is a party by the Company and the consummation
by the Company of the transactions contemplated hereby and thereby do not, and
will not, (i) conflict with or violate any provision of the Company’s or
any Subsidiary’s certificate or articles of incorporation, bylaws or other
organizational or charter documents, as applicable, (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to
which the Company or any Subsidiary is a party or by which any property or asset
of the Company or any Subsidiary is bound, or affected, except to the extent
that such conflict, default, termination, amendment, acceleration or
cancellation right would not reasonably be expected to have a Material Adverse
Effect, or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or any Subsidiary is subject (including, assuming
the accuracy of the representations and warranties of the Investors set forth in
Section 3.2
hereof, federal and state securities laws and regulations and the rules and
regulations of any self-regulatory organization to which the Company or its
securities are subject, including all applicable Trading Markets), or by which
any property or asset of the Company or any Subsidiary is bound or affected,
except to the extent that such violation would not have or reasonably be
expected to result in a Material Adverse Effect. Neither the Company
nor any of its Subsidiaries is required to obtain any consent, authorization or
order of, or make any filing or registration with, any court, governmental
agency or any regulatory or self-regulatory agency or any other Person in order
for it to execute, deliver or perform any of its obligations at the Closing
under or contemplated by the Transaction Documents, including without limitation
the issuance of the Securities, in each case in accordance with the terms hereof
or thereof, except for the following consents, authorizations, orders, filings
and registrations (none of which is required to be filed or obtained before the
Closing): (i) the filing of a listing application for the Warrant Shares with
the Trading Market, which shall be done pursuant to the rules of the Trading
Market, (ii) the filing of a Form D with the SEC and any applicable state
securities authorities and (iii) the filing of a Form 8-K with the SEC
announcing the entry into the Transaction Documents and the issuance of the
Securities. The Company and its Subsidiaries are unaware of any facts
or circumstances that would reasonably be expected to prevent the Company from
obtaining or effecting any of the registration, application or filings pursuant
to the preceding sentence. The Company is not in violation of the
listing requirements of the Trading Market and has no knowledge of any facts
that would reasonably be expected to lead to delisting or suspension of the
Common Stock in the foreseeable future. The issuance by the Company
of the Securities shall not have the effect of delisting or suspending the
Common Stock from the Trading Market.
B-5
(e) The
Securities. The Securities (including the Warrant Shares) are
duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens, except for customary and required
restrictions on transfer, and will not be subject to preemptive or similar
rights of stockholders (other than those imposed by the
Investors). The Company has reserved from its duly authorized capital
stock the maximum number of shares of Common Stock issuable upon exercise of the
Warrants.
(f) Capitalization. The
aggregate number of shares and type of all authorized, issued and outstanding
classes of capital stock, options and other securities of the Company (whether
or not presently convertible into or exercisable or exchangeable for shares of
capital stock of the Company) is set forth in Schedule 3.1(f)
hereto. All outstanding shares of capital stock are duly authorized,
validly issued, fully paid and nonassessable and have been issued in compliance
in all material respects with all applicable securities laws. Except
as disclosed in Schedule 3.1(f)
hereto, the Company did not have outstanding at February 14, 2007 any other Options,
script rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into or
exercisable or exchangeable for, or entered into any agreement giving any Person
any right to subscribe for or acquire, any shares of Common Stock, or securities
or rights convertible or exchangeable into shares of Common
Stock. Except as set forth on Schedule 3.1(f)
hereto, and except for customary adjustments as a result of stock dividends,
stock splits, combinations of shares, reorganizations, recapitalizations,
reclassifications or other similar events, there are no anti-dilution or price
adjustment provisions contained in any security issued by the Company (or in any
agreement providing rights to security holders) and the issuance and sale of the
Securities will not obligate the Company to issue shares of Common Stock or
other securities to any Person (other than the Investors) and will not result in
a right of any holder of securities to adjust the exercise, conversion, exchange
or reset price under such securities. To the knowledge of the
Company, except as disclosed in the SEC Reports and any Schedules 13D or 13G
filed with the SEC pursuant to Rule 13d-1 of the Exchange Act by reporting
persons or in Schedule
3.1(f) hereto, no Person or group of related Persons beneficially owns
(as determined pursuant to Rule 13d-3 under the Exchange Act), or has the right
to acquire, by agreement with or by obligation binding upon the Company,
beneficial ownership of in excess of 5% of the outstanding Common
Stock.
(g) SEC Reports; Financial
Statements. Except as set forth on Schedule 3.1(g)
hereto, the Company has filed all reports required to be filed by it under the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
12 months preceding the date hereof on a timely basis or has received a valid
extension of such time of filing and has filed any such SEC Reports prior to the
expiration of any such extension and has filed all reports required to be filed
by it under the Exchange Act with respect to the twelve (12) months preceding
the date of this Agreement, including pursuant to Section 13(a) or
15(d) thereof,
for the two years preceding the date hereof. Such reports required to
be filed by the Company under the Exchange Act, including pursuant to Section 13(a) or
15(d) thereof,
together with any materials filed by the Company under the Exchange Act during
the twelve (12) months preceding the date of this Agreement, whether or not any
such reports were required being collectively referred to herein as the “SEC Reports” and, together
with this Agreement and the Schedules to this Agreement, the “Disclosure
Materials”. As of their respective dates (or, if amended or
superseded by a filing prior to the Closing Date, then on the date of such
filing), the SEC Reports filed by the Company complied in all material respects
with the requirements of the Securities Act and the Exchange Act and the rules
and regulations of the SEC promulgated thereunder, and none of the SEC Reports,
when filed (or, if amended or superseded by a filing prior to the Closing Date,
then on the date of such filing) by the Company, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Reports comply in all
material respects with applicable accounting requirements and the rules and
regulations of the SEC with respect thereto as in effect at the time of filing
(or, if amended or superseded by a filing prior to the Closing Date, then on the
date of such filing). Such financial statements have been prepared in
accordance with United States generally accepted accounting principles applied
on a consistent basis during the periods involved (“GAAP”), except as may be
otherwise specified in such financial statements, the notes thereto and except
that unaudited financial statements may not contain all footnotes required by
GAAP or may be condensed or summary statements, and fairly present in all
material respects the consolidated financial position of the Company and its
consolidated subsidiaries as of and for the dates thereof and the results of
operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, year-end audit adjustments. All
material agreements to which the Company or any Subsidiary is a party or to
which the property or assets of the Company or any Subsidiary are subject are
included as part of or identified in the SEC Reports, to the extent such
agreements are required to be included or identified pursuant to the rules and
regulations of the SEC.
(h) Material Changes;
Undisclosed Events, Liabilities or Developments;
Solvency. Since the date of the latest audited financial
statements included within the SEC Reports, except as disclosed in the SEC
Reports or in Schedule
3.1(h) hereto, (i) there has been no event, occurrence or
development that, individually or in the aggregate, has had or that would result
in a Material Adverse Effect, (ii) the Company has not incurred any
material liabilities other than (A) trade payables and accrued expenses
incurred in the ordinary course of business consistent with past practice and
(B) liabilities not required to be reflected in the Company’s financial
statements pursuant to GAAP or required to be disclosed in filings made with the
SEC, (iii) the Company has not altered its method of accounting or changed
its auditors, except as disclosed in its SEC Reports, (iv) the Company has
not declared or made any dividend or distribution of cash or other property to
its stockholders, in their capacities as such, or purchased, redeemed or made
any agreements to purchase or redeem any shares of its capital stock, and
(v) the Company has not issued any equity securities to any officer,
director or Affiliate, except pursuant to existing Company stock-based
plans. The Company has not taken any steps to seek protection
pursuant to any bankruptcy law nor does the Company have any knowledge or reason
to believe that its creditors intend to initiate involuntary bankruptcy
proceedings or any actual knowledge of any fact which would reasonably lead a
creditor to do so. The Company is not as of the date hereof, and
after giving effect to the transactions contemplated hereby to occur on the
Closing Date, will not be Insolvent (as defined below). For purposes
of this Section
3.1(h), “Insolvent” means (i) the
present fair saleable value of the Company’s assets is less than the amount
required to pay the Company’s total Indebtedness (as defined in Section 3.1(aa)),
(ii) the Company is unable to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured, (iii) the Company intends to incur or believes that it will incur debts
that would be beyond its ability to pay as such debts mature or (iv) the Company
has unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be
conducted.
(i) Absence of
Litigation. Except as disclosed in the SEC Reports, there is
no action, suit, claim, or Proceeding, or, to the Company’s knowledge, inquiry
or investigation, before or by any court, public board, government agency,
self-regulatory organization or body pending or, to the knowledge of the
Company, threatened against or affecting the Company or any Subsidiary that
would, individually or in the aggregate, have or be reasonably likely to result
in a Material Adverse Effect.
B-6
(j) Compliance. Except
as would not, individually or in the aggregate, have or be reasonably likely to
result in a Material Adverse Effect, (i) neither the Company nor any
Subsidiary is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would
result in a default by the Company or any Subsidiary under), nor has the Company
or any Subsidiary received written notice of a claim that it is in default under
or that it is in violation of, any indenture, loan or credit agreement or any
other agreement or instrument to which it is a party or by which it or any of
its properties is bound (whether or not such default or violation has been
waived), (ii) neither the Company nor any Subsidiary is in violation of any
order of any court, arbitrator or governmental body, or (iii) neither the
Company nor any Subsidiary is or has been in violation of any statute, rule or
regulation of any governmental authority.
(k) Title to
Assets. Neither the Company nor any Subsidiary owns real
property. The Company and each Subsidiary has good and marketable
title in all personal property owned by them that is material to the business of
the Company and each Subsidiary, in each case free and clear of all Liens,
except for Liens that do not, individually or in the aggregate, have or be
reasonably likely to result in a Material Adverse Effect. Any real
property and facilities held under lease by the Company or any Subsidiary is
held by it under valid, subsisting and enforceable leases of which the Company
and each Subsidiary is in material compliance.
(l) No General Solicitation;
Placement Agent’s Fees. Neither the Company, nor any of its
Affiliates, nor any Person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D) in connection with the offer or sale of the
Securities. The Company shall be responsible for the payment of any
placement agent’s fees, financial advisory fees, or brokers’ commission (other
than for persons engaged by any Investor or its investment advisor) relating to
or arising out of the issuance of the Securities pursuant to this
Agreement. The Company acknowledges that is has engaged Jefferies
& Company, Inc. as its exclusive placement agent (the “Agent”) in connection with the
sale of the Securities. Other than the Agent, the Company has not
engaged any placement agent or other agent in connection with the sale of the
Securities.
(m) Private Placement;
Investment Company; U.S. Real Property Holding
Corporation. Neither the Company nor any of its Affiliates
nor, any Person acting on the Company’s behalf has, directly or indirectly, at
any time within the past six months, made any offer or sale of any security or
solicitation of any offer to buy any security under circumstances that would
(i) eliminate the availability of the exemption from registration under
Regulation D under the Securities Act in connection with the offer and sale
by the Company of the Securities as contemplated hereby or (ii) cause the
offering of the Securities pursuant to the Transaction Documents to be
integrated with prior offerings by the Company for purposes of any applicable
law, regulation or stockholder approval provisions, including, without
limitation, under the rules and regulations of any Trading
Market. Assuming the accuracy of the representations and warranties
of the Investors set forth in Section 3.2, no
registration under the Securities Act is required for the offer and sale of the
Securities by the Company to the Investors as contemplated hereby. The sale and
issuance of the Securities hereunder does not contravene the rules and
regulations of any Trading Market on which the Common Stock is listed or
quoted. The Company is not required to be registered as an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended.
(n) Listing and Maintenance
Requirements. Except as set forth on Schedule 3.1(o)
hereto, the Company has not, in the twelve months preceding the date hereof,
received notice (written or oral) from any Trading Market on which the Common
Stock is or has been listed or quoted to the effect that the Company is not in
compliance with the listing or maintenance requirements of such Trading
Market. The Company is, and has no reason to believe that it will not
in the foreseeable future continue to be, in compliance with all such listing
and maintenance requirements.
(o) Registration
Rights. None of the execution of this Agreement or the
issuance of the Securities as contemplated by this Agreement give rise to any
rights (including “piggy-back” registration rights) to have any securities of
the Company registered with the SEC or any other governmental authority that
have not expired or been satisfied or waived, other than pursuant to the
Registration Rights Agreement.
(p) Application of Takeover
Protections. The Company and its Board of Directors have taken
all necessary action, if any, to render inapplicable any control share
acquisition, business combination, poison pill (including any distribution under
a rights agreement) or other similar anti-takeover provision under the Company’s
charter documents or the laws of its state of incorporation that is or could
become applicable to any of the Investors as a result of the Investors and the
Company fulfilling their obligations or exercising their rights under the
Transaction Documents, including, without limitation, as a result of the
Company’s issuance of the Securities and the Investors’ ownership of the
Securities.
(q) Disclosure. [Intentionally
Omitted]
(r) Acknowledgment Regarding
Investors’ Purchase of Securities. Based upon the assumption
that the transactions contemplated by this Agreement are consummated in all
material respects in conformity with the Transaction Documents, the Company
acknowledges and agrees that each of the Investors (other than Excluded
Investors) is acting solely in the capacity of an arm’s length purchaser with
respect to the Transaction Documents and the transactions contemplated hereby
and thereby. The Company further acknowledges that no Investor (other
than Excluded Investors) is acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to this Agreement and the
transactions contemplated hereby and any advice given by any Investor (other
than Excluded Investors) or any of their respective representatives or agents in
connection with the Transaction Documents and the transactions contemplated
hereby and thereby is merely incidental to the Investors’ purchase of the
Securities. The Company further represents to each Investor that the
Company’s decision to enter into this Agreement has been based solely on the
independent evaluation of the transactions contemplated hereby by the Company
and its advisors and representatives.
(s) Patents and
Trademarks. The Company and each Subsidiary owns, or possesses
adequate rights or licenses to use, all trademarks, trade names, service marks,
service mark registrations, service names, patents, patent rights, copyrights,
inventions, licenses, approvals, governmental authorizations, trade secrets and
other intellectual property rights (“Intellectual Property Rights”)
necessary to conduct their respective businesses as now
conducted. None of the Company’s or any Subsidiary’s Intellectual
Property Rights have expired or terminated, or are expected to expire or
terminate within three years from the date of this Agreement. The
Company does not have any knowledge of any infringement by the Company or any
Subsidiary of Intellectual Property Rights of others. Except as
disclosed in the SEC Reports, there is no claim, action or proceeding being made
or brought, or to the knowledge of the Company, being threatened, against the
Company or any Subsidiary regarding its Intellectual Property
Rights.
B-7
(t) Insurance. The
Company and each Subsidiary is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses and locations in which the Company and each
Subsidiary is engaged.
(u) Regulatory
Permits. The Company and each Subsidiary possesses all
certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their
respective businesses as presently conducted and described in the SEC Reports
(“Material Permits”),
except where the failure to possess such permits would not, individually or in
the aggregate, have or reasonably be expected to result in a Material Adverse
Effect, and neither the Company nor any Subsidiary has received any written
notice of proceedings relating to the revocation or modification of any Material
Permit.
(v) Transactions With Affiliates
and Employees. Except as set forth or incorporated by
reference in the Company’s SEC Reports, none of the officers, directors or
employees of the Company is presently a party to any transaction with the
Company that would be required to be reported on Form 10-K by Item 12 thereof
pursuant to Regulation SK Item 404(a) (other than for ordinary course services
as employees, officers or directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any such officer, director or employee or, to the Company’s
knowledge, any corporation, partnership, trust or other entity in which any such
officer, director, or employee has a substantial interest or is an officer,
director, trustee or partner.
(w) Internal Accounting
Controls. The Company and each Subsidiary maintains a system
of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or
specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management’s general or specific
authorization, and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(x) Sarbanes-Oxley Act.
The Company is in compliance in all material respects with applicable
requirements of the Sarbanes-Oxley Act of 2002 and applicable rules and
regulations promulgated by the SEC thereunder, except where such noncompliance
would not have, individually or in the aggregate, a Material Adverse
Effect.
(y) Foreign Corrupt
Practices. Neither the Company nor any Subsidiary nor, to the
knowledge of the Company, any director, officer, agent or employee acting on
behalf of the Company or any Subsidiary has, in the course of its actions for,
or on behalf of, the Company (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee or to any foreign or
domestic political parties or campaigns from corporate funds; (iii) violated or
is in violation in any material respect of any provision of the U.S. Foreign
Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment to any
foreign or domestic government official or employee.
(z) Indebtedness. Except
as disclosed in the SEC Reports, neither the Company nor any Subsidiary (i) has
any outstanding Indebtedness (as defined below), (ii) is in violation of any
term of and is not in default under any contract, agreement or instrument
relating to any Indebtedness, except where such violations and defaults would
not result, individually or in the aggregate, in a Material Adverse Effect, and
(iii) is a party to any contract, agreement or instrument relating to any
Indebtedness, the performance of which, in the judgment of the Company’s
officers, has or is expected to have a Material Adverse Effect. For
purposes of this Agreement: (x) “Indebtedness” of any Person
means, without duplication (A) all indebtedness for borrowed money, (B) all
obligations issued, undertaken or assumed as the deferred purchase price of
property or services (other than trade payables entered into in the ordinary
course of business), (C) all reimbursement or payment obligations with respect
to letters of credit, surety bonds and other similar instruments, (D) all
obligations evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the acquisition
of property, assets or businesses, (E) all indebtedness created or arising under
any conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to any property or assets acquired with
the proceeds of such indebtedness (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to
repossession or sale of such property), (F) all monetary obligations under any
leasing or similar arrangement which, in connection with generally accepted
accounting principles, consistently applied for the periods covered thereby, is
classified as a capital lease, (G) all indebtedness referred to in clauses
(A) through (F) above secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any mortgage,
lien, pledge, charge, security interest or other encumbrance upon or in any
property or assets (including accounts and contract rights) owned by any Person,
even though the Person which owns such assets or property has not assumed or
become liable for the payment of such indebtedness, and (H) all Contingent
Obligations in respect of indebtedness or obligations of others of the kinds
referred to in clauses (A) through (G) above; (y) “Contingent Obligation” means,
as to any Person, any direct or indirect liability, contingent or otherwise, of
that Person with respect to any indebtedness, lease, dividend or other
obligation of another Person if the primary purpose or intent of the Person
incurring such liability, or the primary effect thereof, is to provide assurance
to the obligee of such liability that such liability will be paid or discharged,
or that any agreements relating thereto will be complied with, or that the
holders of such liability will be protected (in whole or in part) against loss
with respect thereto; and (z) “Person” means an individual,
a limited liability company, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization, a government or any department or agency
thereof and any other legal entity.
(aa) Employee
Relations. Neither the Company nor any Subsidiary is a party
to any collective bargaining agreement or employs any member of a
union. Except as disclosed in the SEC Reports, during the period
covered by the SEC Reports, no executive officer of the Company has notified the
Company or any Subsidiary that such officer intends to leave the Company or a
Subsidiary, as applicable, or otherwise terminate such officer’s employment with
the Company or a Subsidiary, as applicable. To the knowledge of the
Company, no executive officer of the Company is in violation of any material
term of any employment contract, confidentiality, disclosure or proprietary
information agreement, non-competition agreement, or any other contract or
agreement or any restrictive covenant, and the continued employment of each such
executive officer does not subject the Company or any Subsidiary to any
liability with respect to any of the foregoing matters.
(bb) Labor
Matters. The Company and each Subsidiary is in compliance in
all material respects with all federal, state, local and foreign laws and
regulations respecting labor, employment and employment practices and benefits,
terms and conditions of employment and wages and hours, except where failure to
be in compliance would not, either individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.
B-8
(cc) Environmental
Laws. The Company and each Subsidiary (i) is in compliance in
all material respects with any and all Environmental Laws (as hereinafter
defined), (ii) has received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective
businesses and (iii) is in compliance in all material respects with all terms
and conditions of any such permit, license or approval where, in each of the
foregoing clauses (i), (ii) and (iii), the failure to so comply would be
reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect. The term “Environmental Laws” means all
federal, state, local or foreign laws relating to pollution or protection of
human health or the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata), including,
without limitation, laws relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, or toxic or
hazardous substances or wastes (collectively, “Hazardous Materials”) into
the environment, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials, as well as all authorizations, codes, decrees, demands or
demand letters, injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations issued, entered, promulgated or approved
thereunder.
(dd) Subsidiary
Rights. The Company or one of its Subsidiaries has the
unrestricted right to vote, and (subject to limitations imposed by applicable
law) to receive dividends and distributions on, all capital securities of its
Subsidiaries as owned by the Company or such Subsidiary.
(ee) Tax
Status. The Company and each Subsidiary (i) has made or filed
all foreign, federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject, (ii) has paid
all taxes and other governmental assessments and charges that are material in
amount, shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and (iii) has set aside on its books
provision reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount claimed to be
due by the taxing authority of any jurisdiction, and the officers of the Company
know of no basis for any such claim.
(ff) Disclosure. The
Company confirms that neither it nor any other Person acting on its behalf has
provided any of the Investors or their agents or counsel with any information
that constitutes or could constitute material, nonpublic information other than
information relating to the sale of the Common Shares and Warrants which will be
made public upon issuance of the press release required pursuant to this
Agreement which shall contain such information. The Company
understands and confirms that each of the Investors will rely on the foregoing
representations in effecting transactions in securities of the
Company. The Disclosure Materials and the PowerPoint presentation
provided to the Investors regarding the Company, when read together in their
entirety, do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not
misleading. Except for the transactions contemplated by this
Agreement, no event or circumstance has occurred or information exists with
respect to the Company or any of its Subsidiaries or its or their business,
properties, prospects, operations or financial conditions, which, under
applicable law, rule or regulation, requires public disclosure or announcement
by the Company but which has not been so publicly announced or
disclosed. The Company acknowledges and agrees that no Investor makes
or has made any representations or warranties with respect to the transactions
contemplated hereby other than those set forth in the Transaction
Documents.
(gg) Manipulation of
Price. In connection with the sale of the Common Shares, the
Company has not, and to its knowledge no one acting on its behalf has, (i)
taken, directly or indirectly, any action designed to cause or to result, or
that could reasonably be expected to cause or result, in the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any
compensation, other than compensation paid to the Placement Agents, for
soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay
to any person, other than the Placement Agents, any compensation for soliciting
another to purchase any other securities of the Company.
(hh) No Additional
Agreements. The Company does not have any agreement or
understanding with any Investor with respect to the transactions contemplated by
the Transaction Documents other than as specified in this
Agreement.
3.2 Representations and
Warranties of the Investors. Each Investor hereby, as to
itself only and for no other Investor, represents and warrants to the Company as
follows:
(a) Organization;
Authority. Such Investor is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with the requisite corporate, partnership or other power and
authority to enter into and to consummate the transactions contemplated by the
Transaction Documents and otherwise to carry out its obligations hereunder and
thereunder. The purchase by such Investor of the Securities hereunder
and the consummation of the transactions contemplated by the Transaction
Documents have been duly authorized by all necessary corporate, partnership or
other action on the part of such Investor. This Agreement and the
Transaction Documents to which such Investor is a party or has or will execute
have been duly executed and delivered by such Investor and constitutes the valid
and binding obligation of such Investor, enforceable against it in accordance
with its terms, except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors’ rights generally, (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable
law.
(b) No Public Sale or
Distribution. Such Investor is (i) acquiring the Common
Shares and the Warrants and (ii) upon exercise of the Warrants will acquire
the Warrant Shares issuable upon exercise thereof, in the ordinary course of
business for its own account and not with a view towards, or for resale in
connection with, the public sale or distribution thereof, except pursuant to
sales registered under the Securities Act or under an exemption from such
registration and in compliance with applicable federal and state securities
laws, and such Investor does not have a present arrangement to effect any
distribution of the Securities to or through any person or entity; provided, however, that by
making the representations herein, such Investor does not agree to hold any of
the Securities for any minimum or other specific term and reserves the right to
dispose of the Securities at any time in accordance with or pursuant to a
registration statement or an exemption under the Securities Act.
(c) Investor
Status. At the time such Investor was offered the Securities,
it was, at the date hereof it is, and on the date which it exercises any
Warrants it will be an “accredited investor” as defined in Rule 501(a) under the
Securities Act or a “qualified institutional buyer” as defined in Rule 144A(a)
under the Securities Act. Such Investor is not a registered broker
dealer registered under Section 15(a) of the Exchange Act, or a member of the
Financial Industry Regulatory Authority, Inc. (“FINRA”) or an entity engaged
in the business of being a broker dealer. Except as otherwise
disclosed in writing to the Company on Exhibit B-2 (attached
hereto) on or prior to the date of this Agreement, such Investor is not
affiliated with any broker dealer registered under Section 15(a) of the Exchange
Act, or a member of the FINRA or an entity engaged in the business of being a
broker dealer.
B-9
(d) General
Solicitation. Such Investor is not purchasing the Securities
as a result of any advertisement, article, notice or other communication
regarding the Securities published in any newspaper, magazine or similar media,
broadcast over television or radio, disseminated over the Internet or presented
at any seminar or any other general solicitation or general
advertisement.
(e) Experience of Such
Investor. Such Investor, either alone or together with its
representatives has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the merits and risks of
the prospective investment in the Securities, and has so evaluated the merits
and risks of such investment. Such Investor understands that it must
bear the economic risk of this investment in the Securities indefinitely, and is
able to bear such risk and is able to afford a complete loss of such
investment.
(f) Access to
Information. Such Investor acknowledges that it has reviewed
the Disclosure Materials and has been afforded: (i) the
opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of the Company concerning the terms and conditions
of the offering of the Securities and the merits and risks of investing in the
Securities; (ii) access to information (other than material non-public
information) about the Company and each Subsidiary and its financial condition,
results of operations, business, properties, management and prospects sufficient
to enable it to evaluate its investment; and (iii) the opportunity to
obtain such additional information that the Company possesses or can acquire
without unreasonable effort or expense that is necessary to make an informed
investment decision with respect to the investment. Neither such
inquiries nor any other investigation conducted by or on behalf of such Investor
or its representatives or counsel shall modify, amend or affect such Investor’s
right to rely on the truth, accuracy and completeness of the Disclosure
Materials and the Company’s representations and warranties contained in the
Transaction Documents. Such Investor acknowledges receipt of copies
of the SEC Reports.
(g) No Governmental
Review. Such Investor understands that no United States
federal or state agency or any other government or governmental agency has
passed on or made any recommendation or endorsement of the Securities or the
fairness or suitability of the investment in the Securities nor have such
authorities passed upon or endorsed the merits of the offering of the
Securities.
(h) No
Conflicts. The execution, delivery and performance by such
Investor of this Agreement and the consummation by such Investor of the
transactions contemplated hereby will not (i) result in a violation of the
organizational documents of such Investor or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which such Investor is a party, or (iii) result in a
violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws) applicable to such Investor, except in the
case of clauses (ii) and (iii) above, for such that are not material and do not
otherwise affect the ability of such Investor to consummate the transactions
contemplated hereby or perform its obligations hereunder.
(i) Prohibited Transactions;
Confidentiality. No Investor, directly or indirectly, and no
Person acting on behalf of or pursuant to any understanding with any Investor,
has engaged in any purchases or sales of the securities of the Company,
including derivatives (such purchases or sales, a “Transaction”) (including,
without limitation, any Short Sales involving any of the Company’s securities)
since the time that such Investor was first contacted by the Company, the Agent
or any other Person regarding an investment in the Company. For
purposes of clarification, "Transaction" shall not include the location and/or
reservation of borrowable shares of Common Stock. Such Investor
covenants that neither it nor any Person acting on its behalf or pursuant to any
understanding with such Investor will engage, directly or indirectly, in any
Transactions in the securities of the Company (including Short Sales) prior to
the time the transactions contemplated by this Agreement are publicly
disclosed. “Short
Sales” include, without limitation, all “short sales” as defined in
Rule 200 promulgated under Regulation SHO under the Exchange Act and all types
of direct and indirect stock pledges, forward sale contracts, options, puts,
calls, short sales, swaps, derivatives and similar arrangements (including on a
total return basis), and sales and other transactions through non-U.S.
broker-dealers or foreign regulated brokers; provided, however, that "short
sales" shall not include the location and/or reservation of borrowable shares of
Common Stock. Notwithstanding the foregoing, in the case of an
Investor that is a multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Investor's assets and the portfolio
managers have no knowledge of the investment decisions made by the portfolio
managers managing other portions of such Investor's assets, the representation
set forth above shall only apply with respect to the portion of assets managed
by the portfolio manager that had or has knowledge of the transactions
contemplated herein.
(j) No Legal, Tax or Investment
Advice. Such Investor understands that nothing in this
Agreement or any other materials presented by or on behalf of the Company to the
Investor in connection with the purchase of the Securities constitutes legal,
tax or investment advice. Such Investor has consulted such legal, tax
and investment advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of the Securities. Such
Investor understands that the Agent has acted solely as the agent of the Company
in this placement of the Securities, and that the Agent makes no representation
or warranty with regard to the merits of this transaction or as to the accuracy
of any information such Investor may have received in connection
therewith. Such Investor acknowledges that he has not relied on any
information or advice furnished by or on behalf of the Agent.
(k) Reliance on
Exemptions. Such Investor understands that the Securities are
being offered and sold to it in reliance on specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Company is relying in part upon the truth and accuracy of, and such
Investor’s compliance with, the representations, warranties, agreements,
acknowledgments and understandings of such Investor set forth herein and in the
other Transaction Documents in order to determine the availability of such
exemptions and the eligibility of such Investor to acquire the
Securities.
(l) Residency. Such
Investor is a resident of that jurisdiction specified below its address on the
Schedule of Investors.
B-10
(m) Transfer or
Resale. Such Investor understands that: (i) the Securities
have not been and are not being registered under the Securities Act or any state
securities laws, and may not be offered for sale, sold, assigned or transferred
unless (A) subsequently registered thereunder, (B) such Investor shall have
delivered to the Company an opinion of counsel, in a form reasonably acceptable
to the Company, to the effect that such Securities to be sold, assigned or
transferred may be sold, assigned or transferred pursuant to an exemption from
such registration, or (C) such Investor provides the Company with reasonable
assurance that such Securities can be sold, assigned or transferred pursuant to
Rule 144 promulgated under the Securities Act (or a successor rule thereto);
(ii) any sale of the Securities made in reliance on Rule 144 may be made only in
accordance with the terms of Rule 144 and further, if Rule 144 is not
applicable, any resale of the Securities under circumstances in which the seller
(or the Person through whom the sale is made) may be deemed to be an underwriter
(as that term is defined in the Securities Act) may require compliance with some
other exemption under the Securities Act or the rules and regulations of the SEC
thereunder; and (iii) except as set forth in the Registration Rights Agreement,
neither the Company nor any other Person is under any obligation to register the
Securities under the Securities Act or any state securities laws or to comply
with the terms and conditions of any exemption thereunder. The
Securities may be pledged in connection with a bona fide margin account or other
loan or financing arrangement secured by the Securities and such pledge of
Securities shall not be deemed to be a transfer, sale or assignment of the
Securities hereunder, and no Investor effecting a pledge of Securities shall be
required to provide the Company with any notice thereof or otherwise make any
delivery to the Company pursuant to this Agreement or any other Transaction
Document.
(n) Legends. Such
Investor understands that the certificates or other instruments representing the
Common Shares and the Warrants and, until such time as the resale of the Common
Shares and the Warrant Shares has been registered under the Securities Act as
contemplated by the Registration Rights Agreement, the stock certificates
representing the Warrant Shares, except as set forth below, shall bear any
legend as required by the “blue sky” laws of any state and a restrictive legend
in substantially the following form (and a stop-transfer order may be placed
against transfer of such stock certificates):
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
(I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL, IN A
GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR
RULE 144A UNDER SAID ACT.. THESE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR
OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS
DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH
SECURITIES.
Such
Investor understands that the legend set forth above shall be removed and the
Company shall issue a certificate without such legend to the holder of the
Securities upon which it is stamped or issue to such holder by electronic
delivery at the applicable balance account at The Depository Trust Company
("DTC"), if, unless
otherwise required by state securities laws, (i) such Securities are registered
for resale under the Securities Act, (ii) in connection with a sale, assignment
or other transfer, such holder provides the Company with an opinion of a law
firm reasonably acceptable to the Company, in a form reasonably acceptable to
the Company, to the effect that such sale, assignment or transfer of the
Securities may be made without registration under the applicable requirements of
the Securities Act, or (iii) such holder provides the Company with reasonable
assurance that the Securities can be sold, assigned or transferred pursuant to
Rule 144. The Company shall be responsible for the fees of its
transfer agent and all DTC fees associated with such issuance.
ARTICLE
IV
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Investors covenant that the Securities will only be disposed of pursuant to an
effective registration statement under, and in compliance with the requirements
of, the Securities Act or pursuant to an available exemption from the
registration requirements of the Securities Act, and in compliance with any
applicable state securities laws. In connection with any transfer of
Securities other than pursuant to an effective registration statement or to the
Company, or any transfer of Securities pursuant to Rule 144(k) (or any portion
of Rule 144 after February 15, 2008), the Company may require the transferor to
provide to the Company an opinion of counsel selected by the transferor, the
form and substance of which opinion shall be reasonably satisfactory to the
Company, to the effect that such transfer does not require registration under
the Securities Act. Notwithstanding the foregoing, the Company hereby
consents to and agrees to register on the books of the Company and with its
Transfer Agent, without any such legal opinion, except to the extent that the
transfer agent requests such legal opinion, any transfer of Securities by an
Investor to an Affiliate of such Investor, provided that the transferee
certifies to the Company that it is an “accredited investor” as defined in Rule
501(a) under the Securities Act and provided that such Affiliate does not
request any removal of any existing legends on any certificate evidencing the
Securities.
(b) The
Investors agree to the imprinting, until no longer required by this Section 4.1(b),
of the following legend on any certificate evidencing any of the
Securities:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF
COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER
SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO
RULE 144 OR RULE 144A UNDER SAID ACT.. THESE SECURITIES MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED
BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS
DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH
SECURITIES.
B-11
Certificates
evidencing the Common Shares and the Warrant Shares shall not be required to
contain such legend or any other legend (i) while a registration statement
(including the Registration Statement) covering the resale of the Common Shares
and the Warrant Shares is effective under the Securities Act, (ii) following any
sale of such Securities pursuant to Rule 144 if the holder provides the Company
with a legal opinion (and the documents upon which the legal opinion is based)
reasonably acceptable to the Company to the effect that the Securities can be
sold under Rule 144, (iii) if the Securities are eligible for sale under Rule
144(k) (or any portion of Rule 144 after February 15, 2008), or (iv) if the
holder provides the Company with a legal opinion (and the documents upon which
the legal opinion is based) reasonably acceptable to the Company to the effect
that the legend is not required under applicable requirements of the Securities
Act (including controlling judicial interpretations and pronouncements issued by
the Staff of the SEC). The Company covenants and agrees
that restrictive legends shall be removed and the Company shall issue a
certificate without such legend to the holder of the Securities upon which it is
stamped or issue to such holder by electronic delivery at the applicable balance
account at DTC, if, unless otherwise required by state securities laws, (i) if
such Securities are registered for resale under the Securities Act, (ii) in
connection with a sale, assignment or other transfer, such holder provides the
Company with an opinion of a law firm reasonably acceptable to the Company, in a
form reasonably acceptable to the Company, to the effect that such sale,
assignment or transfer of the Securities may be made without registration under
the applicable requirements of the Securities Act, or (iii) such holder provides
the Company with reasonable assurance that the Securities can be sold, assigned
or transferred pursuant to Rule 144. The Company shall be responsible
for the fees of its transfer agent and all DTC fees associated with such
issuance. The Company shall cause its counsel to issue the legal
opinion included in the Transfer Agent Instructions to the Transfer Agent on the
Effective Date. Following the Effective Date and provided the
registration statement referred to in clause (i) above is then in effect, or at
such earlier time as a legend is no longer required for certain Securities, the
Company will no later than five Trading Days following the delivery by an
Investor to the Company or the Transfer Agent (if delivery is made to the
Transfer Agent a copy shall be contemporaneously delivered to the Company) of
(i) a legended certificate representing such Securities (and, in the case of a
requested transfer, endorsed or with stock powers attached, signatures
guaranteed, and otherwise in form necessary to affect transfer), and (ii) an
opinion of counsel to the extent required by Section 4.1(a),
deliver or cause to be delivered to such Investor a certificate representing
such Securities that is free from all restrictive and other
legends. The Company may not make any notation on its records or give
instructions to the Transfer Agent that expand the restrictions on transfer set
forth in this Section.
If within
three Trading Days after receipt by the Company or its Transfer Agent of a
legended certificate and the other documents as specified in Clauses (i) and
(ii) of the paragraph immediately above, the Company shall fail to cause to be
issued and delivered to such Investor a certificate representing such Securities
that is free from all restrictive and other legends, and if on or after such
Trading Day the Investor purchases (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by the Investor of
shares of Common Stock that the Investor anticipated receiving from the Company
without any restrictive legend (the “Covering Shares”), then the
Company shall, within three Trading Days after the Investor’s request, pay cash
to the Investor in an amount equal to the excess (if any) of the Investor’s
total purchase price (including brokerage commissions, if any) for the Covering
Shares, over the product of (A) the number of Covering Shares, times (B) the
closing bid price on the date of delivery of such certificate and the other
documents as specified in Clauses (i) and (ii) of the paragraph immediately
above.
(c) The
Company will not object to and shall permit (except as prohibited by law) an
Investor to pledge or grant a security interest in some or all of the Securities
in connection with a bona fide margin agreement with a registered broker-dealer
or grant a security interest in some or all of the Securities to a financial
institution that is an “accredited investor” as defined in Rule 501(a) under the
Securities Act and who agrees to be bound by the provisions of this Agreement,
and if required under the terms of such arrangement, the Company will not object
to and shall permit (except as prohibited by law) such Investor to transfer
pledged or secured Securities to the pledgees or secured
parties. Except as required by law, such a pledge or transfer would
not be subject to approval of the Company, no legal opinion of the pledgee,
secured party or pledgor shall be required in connection therewith (but such
legal opinion shall be required in connection with a subsequent transfer or
foreclosure following default by the Purchaser transferee of the pledge), and no
notice shall be required of such pledge. Each Investor acknowledges
that the Company shall not be responsible for any pledges relating to, or the
grant of any security interest in, any of the Securities or for any agreement,
understanding or arrangement between any Investor and its pledgee or secured
party. At the appropriate Investor’s expense, the Company will
execute and deliver such reasonable documentation as a pledgee or secured party
of Securities may reasonably request in connection with a pledge or transfer of
the Securities, including the preparation and filing of any required prospectus
supplement under Rule 424(b)(3) of the Securities Act or other applicable
provision of the Securities Act to appropriately amend the list of Selling
Stockholders thereunder. Provided that the Company is in compliance with the
terms of this Section
4.1(c), the Company’s indemnification obligations pursuant to Section 7.18 shall
not extend to any Proceeding or Losses arising out of or related to this Section
4.1(c).
4.2 Furnishing of
Information. Until the date that any Investor owning Common
Shares or Warrant Shares may sell all of them under Rule 144(k) (or Rule 144
after February 15, 2008) of the Securities Act (or any successor provision), the
Company covenants to use its commercially reasonable best efforts to timely file
(or obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date hereof
pursuant to the Exchange Act. The Company further covenants that it
will take such further action as any holder of Securities may reasonably request
to satisfy the provisions of this Section
4.2. The Company shall submit to the SEC, as soon as
practicable (but in no event later than three (3) Business Days) after the
Company learns that no review of a particular Registration Statement will be
made by the staff of the SEC or that the staff has no further comments on a
particular Registration Statement, as the case may be, a request for
acceleration of effectiveness of such Registration Statement to a time and date
not later than two (2) Business Days after the submission of such
request.
4.3 Integration. The
Company shall not, and shall use its commercially reasonable best efforts to
ensure that no Affiliate thereof shall, sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or
sale of the Securities in a manner that would require the registration under the
Securities Act of the sale of the Securities to the Investors or that would be
integrated with the offer or sale of the Securities for purposes of the rules
and regulations of any Trading Market.
4.4 Securities Laws Disclosure;
Publicity. The Company shall issue a press release disclosing
all material terms of the transactions contemplated hereby at or before 9:00
a.m., New York time, on February 15, 2008. Within two business days
of the date hereof, the Company shall file a Current Report on Form 8-K with the
SEC (the “8-K Filing”)
describing the terms of the transactions contemplated by the Transaction
Documents and including as exhibits to such Current Report on Form 8-K the
material Transaction Documents and the form of Warrants, in the form required by
the Exchange Act. Thereafter, the Company shall timely file any
filings and notices required by the SEC or applicable law with respect to the
transactions contemplated hereby. Except as herein provided or in
connection with the filing of the 8-K Filing or Registration Statement, neither
the Company nor any Subsidiary shall publicly disclose the name of any Investor,
or include the name of any Investor in any press release without the prior
written consent of such Investor (which consent shall not be unreasonably
withheld or delayed), unless otherwise required by law, regulatory authority or
Trading Market. No Investor will be in possession of material
non-public information received from the Company or any Person acting on its
behalf that is not disclosed in the press release referenced above and neither
the Company nor any Subsidiary shall, and shall cause each of their respective
officers, directors, employees and agents not to, provide any Investor with any
material nonpublic information regarding the Company or any Subsidiary from and
after the issuance of the above referenced press release without the express
written consent of such Investor.
B-12
4.5 Use of
Proceeds. The Company intends to use the net proceeds from the
sale of the Securities to purchase the telecommunications assets of Intel
Corp.’s optical platform division, future potential acquisitions, working
capital and general corporate purposes. The Company also may use a
portion of the net proceeds, currently intended for general corporate purposes,
to acquire or invest in technologies, products or services that complement its
business, although the Company has no present plans or commitments and is not
currently engaged in any material negotiations with respect to these types of
transactions. Pending these uses, the Company intends to invest the
net proceeds from this offering in short-term, interest-bearing,
investment-grade securities, or as otherwise pursuant to the Company’s customary
investment policies.
4.6 Additional Registration
Statements. From the date hereof and until the date that is
forty-five (45) calendar days after the earlier of (i) the Effective Date and
(ii) the last day of the Registration Period (each as defined in the
Registration Rights Agreement) (the "Trigger Date"), the Company shall not file
a registration statement under the 1933 Act (other than on Form S-8) relating to
securities that are not the Securities.
4.7 Additional
Issuances. From the date hereof until the Trigger Date, other
than Excluded Securities, the Company will not, directly or indirectly, offer,
sell, grant any option to purchase, or otherwise dispose of (or announce any
offer, sale, grant or any option to purchase or other disposition of) any of its
or its Subsidiaries' equity or equity equivalent securities, including without
limitation any debt, preferred stock or other instrument or security that is, at
any time during its life and under any circumstances, convertible into or
exchangeable or exercisable for shares of Common Stock, Options or Convertible
Securities.
ARTICLE
V
CONDITIONS
5.1 Conditions Precedent to the
Obligations of the Investors. The obligation of each Investor
to acquire Securities at the Closing is subject to the satisfaction or waiver by
such Investor, at or before the Closing, of each of the following
conditions:
(a) Representations and
Warranties. The representations and warranties of the Company
contained herein shall be true and correct in all material respects as of the
date when made and as of the Closing as though made on and as of such date
(except for those representations and warranties that speak as of a specific
date, which shall be true and correct as of such specified date);
and
(b) Performance. The
Company and each other Investor shall have performed, satisfied and complied in
all material respects with all covenants, agreements and conditions required by
the Transaction Documents to be performed, satisfied or complied with by it at
or prior to the Closing.
(c) No Suspensions of Trading in
Common Stock; Listing. Trading in the Common Stock shall not have been
suspended by the SEC or any Trading Market (except for any suspensions of
trading of not more than one Trading Day solely to permit dissemination of
material information regarding the Company) at any time since the date of
execution of this Agreement, and the Common Stock shall have been at all times
since such date listed for trading on a Trading Market.
(d) Absence of
Litigation. No action, suit or proceeding by or before any court or any
governmental body or authority, against the Company or any Subsidiary or
pertaining to the transactions contemplated by this Agreement or their
consummation, shall have been instituted on or before the Closing Date, which
action, suit or proceeding would, if determined adversely, have a Material
Adverse Effect.
(e) Approvals. The
Company shall have obtained all governmental, regulatory or third party consents
and approvals, if any, necessary for the sale of the Securities.
(f) Deliverables. The
Company shall have executed each of the Transaction Documents to which it is a
party and delivered the same to the Company. The Company shall have
delivered to the Investors those items required by Section
2.2(a).
(g) Management Lock-up
Agreements. The Company shall have delivered to the Investors
the lock-up agreements in the forms of Exhibit F hereof,
executed by Reuben F. Richards, Hong Hou, Adam Gushard, John Iannelli and Keith
Kosco (the "Lock-Up
Agreements").
(h) Aggregate Purchase
Price. The aggregate purchase price for all Securities shall
not exceed $100,000,000.00.
5.2 Conditions Precedent to the
Obligations of the Company. The obligation of the Company to
sell the Securities at the Closing is subject to the satisfaction or waiver by
the Company, at or before the Closing, of each of the following
conditions:
(a) Representations and
Warranties. The representations and warranties of the
Investors contained herein shall be true and correct in all material respects as
of the date when made and as of the Closing Date as though made on and as of
such date (except for those representations and warranties that speak as of a
specific date, which shall be true and correct as of such specified date);
and
(b) Performance. The
Investors shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by the Investors at or
prior to the Closing.
(c) Deliverables. The
Investors shall have executed each of the Transaction Documents to which it is a
party and delivered the same to the Company. The Investors shall have
delivered to the Company those items required by Section
2.2(b).
B-13
ARTICLE
VI
INTENTIONALLY
OMITTED
ARTICLE
VII
MISCELLANEOUS
7.1 Termination. This
Agreement may be terminated by the Company or any Investor, by written notice to
the other parties, if the Closing has not been consummated by the fifth Trading
Day following the date of this Agreement; provided that no such termination will
affect the right of any party to sue for any breach by the other party (or
parties).
7.2 Fees and
Expenses. Except as expressly set forth in the Transaction
Documents to the contrary, each party shall pay the fees and expenses of its
advisers, counsel, accountants and other experts, if any, and all other expenses
incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of this Agreement. The Company shall pay all
Transfer Agent fees, stamp taxes and other taxes and duties levied in connection
with the sale and issuance of the applicable Securities.
7.3 Entire
Agreement. The Transaction Documents, together with the
Exhibits, Annexes and Schedules thereto, contain the entire understanding of the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect to such matters,
which the parties acknowledge have been merged into such documents, exhibits and
schedules. At or after the Closing, and without further
consideration, the Company and the Investors will execute and deliver to the
Investors such further documents as may be reasonably requested in order to give
practical effect to the intention of the parties under the Transaction
Documents.
7.4 Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission and electronic or
mechanical confirmation of receipt, if such notice or communication is delivered
via facsimile or email at the facsimile number or email address specified in
this Section prior to 6:30 p.m. (New York City time) on a Trading Day,
(b) the next Trading Day after the date of transmission and electronic or
mechanical confirmation of receipt, if such notice or communication is delivered
via facsimile or email at the facsimile number or email address specified in
this Section on a day that is not a Trading Day or later than 6:30 p.m. (New
York City time) on any Trading Day, (c) the Trading Day following the date
of deposit with a nationally recognized overnight courier service, or
(d) upon actual receipt by the party to whom such notice is required to be
given. The addresses, facsimile numbers and email addresses for such
notices and communications are those set forth on the signature pages hereof, or
such other address or facsimile number as may be designated in writing
hereafter, in the same manner, by any such Person. In addition, a
copy (solely for informational purposes) of any notice required to be delivered
to any Investor shall be delivered to the following address:
Schulte
Roth & Zabel LLP
919 Third
Avenue
New York,
New York 10022
Telephone: (212)
756-2000
Facsimile: (212)
593-5955
E-Mail: eleazer.klein@srz.com
Attention: Eleazer
N. Klein, Esq.
7.5 Amendments;
Waivers. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
the Company and each of the Investors or, in the case of a waiver, by the party
against whom enforcement of any such waiver is sought. No waiver of
any default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of
any subsequent default or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of any party to exercise any
right hereunder in any manner impair the exercise of any such
right. No amendment shall be effective to the extent that it applies
to less than all of the holders of the applicable Securities then
outstanding. No consideration (other than the reimbursement of legal
fees) shall be offered or paid to any Person to amend or consent to a waiver or
modification of any provision of any of the Transaction Documents unless the
same consideration also is offered to all of the parties to the Transaction
Documents or holders of the Warrants, as the case may be. The Company
has not, directly or indirectly, made any agreements with any Investors relating
to the terms or conditions of the transactions contemplated by the Transaction
Documents except as set forth in the Transaction Documents. Without
limiting the foregoing, the Company confirms that, except as set forth in this
Agreement, no Investor has made any commitment or promise or has any other
obligation to provide any financing to the Company or otherwise.
7.6 Construction. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party.
B-14
7.7 Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Investors; provided, however this Agreement shall
be assigned to any corporation or association into which the Company may be
merged or converted or with which it may be consolidated, or any corporation,
association or other similar entity resulting from any merger, conversion or
consolidation to which the Company shall be a party without the execution or
filing of any paper with any partner hereto or any further act on the part of
any of the parties to this Agreement except where an instrument of transfer or
assignment is required by law to effect such succession, anything herein to the
contrary notwithstanding. Any Investor may assign its rights under
this Agreement to any Person to whom such Investor assigns or transfers any
Securities, provided (i) such transferor agrees in writing with the transferee
or assignee to assign such rights, and a copy of such agreement is furnished to
the Company after such assignment, (ii) the Company is furnished with written
notice of the name and address of such transferee or assignee and (iii) such
transferee agrees in writing to be bound, with respect to the transferred
Securities, by the provisions hereof that apply to the “Investors.”
7.8 No Third-Party
Beneficiaries. This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any other
Person.
7.9 Governing Law; Venue; Waiver
of Jury Trial. THE CORPORATE LAWS OF THE STATE OF NEW JERSEY
SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS
STOCKHOLDERS. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY,
ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE
COMPANY AND INVESTORS HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE
JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK,
BOROUGH OF MANHATTAN FOR THE ADJUDICATION OF ANY DISPUTE BROUGHT BY THE COMPANY
OR ANY INVESTOR HEREUNDER, IN CONNECTION HEREWITH OR WITH ANY TRANSACTION
CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE
ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY WAIVE,
AND AGREE NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE COMPANY
OR ANY INVESTOR, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION
OF ANY SUCH COURT, OR THAT SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF
PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR
OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN
EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL
CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY
ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. THE
COMPANY AND INVESTORS HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
7.10 Survival. Unless
this Agreement is terminated under Section 7.1, the
representations and warranties, agreements and covenants contained herein shall
survive the Closing Date. Each Investor shall be responsible solely
for its own representations, warranties, agreements and covenants
hereunder.
7.11 Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or email attachment, such signature shall create a valid
and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such facsimile or
email-attached signature page were an original thereof.
7.12 Severability. If
any provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
7.13 Rescission and Withdrawal
Right. Notwithstanding anything to the contrary contained in
(and without limiting any similar provisions of) the Transaction Documents,
whenever any Investor exercises a right, election, demand or option owed to such
Investor by the Company under a Transaction Document and the Company does not
timely perform its related obligations within the periods therein provided,
then, prior to the performance by the Company of the Company’s related
obligation, such Investor may rescind or withdraw, in its sole discretion from
time to time upon written notice to the Company, any relevant notice, demand or
election in whole or in part without prejudice to its future actions and
rights.
7.14 Replacement of
Securities. If any certificate or instrument evidencing any
Securities is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
thereof, or in lieu of and substitution therefor, a new certificate or
instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and the execution by the holder
thereof of a customary lost certificate affidavit of that fact and an agreement
to indemnify and hold harmless the Company for any losses in connection
therewith. The applicants for a new certificate or instrument under
such circumstances shall also pay any reasonable third-party costs associated
with the issuance of such replacement Securities.
7.15 Remedies. In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, each of the Investors and the Company will
be entitled to seek specific performance under the Transaction
Documents. The parties agree that monetary damages may not be
adequate compensation for any loss incurred by reason of any breach of
obligations described in the foregoing sentence and hereby agree to waive in any
action for specific performance of any such obligation (other than in connection
with any action for a temporary restraining order) the defense that a remedy at
law would be adequate.
7.16 Payment Set
Aside. To the extent that the Company makes a payment or
payments to any Investor hereunder or any Investor enforces or exercises its
rights hereunder, and such payment or payments or the proceeds of such
enforcement or exercise or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside, recovered from, disgorged
by or are required to be refunded, repaid or otherwise restored to the Company
by a trustee, receiver or any other person under any law (including, without
limitation, any bankruptcy law, state or federal law, common law or equitable
cause of action), then to the extent of any such restoration the obligation or
part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
B-15
7.17 Adjustments in Share Numbers
and Prices. In the event of any stock split, subdivision,
dividend or distribution payable in shares of Common Stock (or other securities
or rights convertible into, or entitling the holder thereof to receive directly
or indirectly shares of Common Stock), combination or other similar
recapitalization or event occurring after the date hereof, each reference in any
Transaction Document to a number of shares or a price per share shall be amended
to appropriately account for such event.
7.18 Indemnification. In
consideration of each Investor's execution and delivery of the Transaction
Documents and acquiring the Securities thereunder and in addition to all of the
Company's other obligations under the Transaction Documents, the Company shall
defend, protect, indemnify and hold harmless each Investor and each other holder
of the Securities and all of their stockholders, partners, members, officers,
directors, employees and direct or indirect investors and any of the foregoing
Persons' agents or other representatives (including, without limitation, those
retained in connection with the transactions contemplated by this Agreement)
(collectively, the "Indemnitees") from and against
any and all actions, causes of action, suits, claims, losses, costs, penalties,
fees, liabilities and damages, and expenses in connection therewith
(irrespective of whether any such Indemnitee is a party to the action for which
indemnification hereunder is sought), and including reasonable attorneys' fees
and disbursements (the "Indemnified Liabilities"),
incurred by any Indemnitee as a result of, or arising out of, or relating to (a)
any misrepresentation or breach of any representation or warranty made by the
Company in the Transaction Documents or (b) any breach of any covenant,
agreement or obligation of the Company contained in the Transaction
Documents. To the extent that the foregoing undertaking by the
Company may be unenforceable for any reason, the Company shall make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities that is permissible under applicable law. Except as
otherwise set forth herein, the mechanics and procedures with respect to the
rights and obligations under this Section 7.18 shall be the same as those set
forth in the Registration Rights Agreement.
7.19 Independent Nature of
Investors’ Obligations and Rights. The obligations of each
Investor under any Transaction Document are several and not joint with the
obligations of any other Investor, and no Investor shall be responsible in any
way for the performance of the obligations of any other Investor under any
Transaction Documents. The decision of each Investor to purchase
Securities pursuant to this Agreement has been made by such Investor
independently of any other Investor and independently of any information,
materials, statements or opinions as to the business, affairs, operations,
assets, properties, liabilities, results of operations, condition (financial or
otherwise) or prospects of the Company which may have been made or given by any
other Investor or by any agent or employee of any other Investor, and no
Investor or any of its agents or employees shall have any liability to any other
Investor (or any other person) relating to or arising from any such information,
materials, statements or opinions. Nothing contained herein or in any
Transaction Document, and no action taken by any Investor pursuant thereto,
shall be deemed to constitute the Investors as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Investors are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction
Document. Each Investor acknowledges that no other Investor has acted
as agent for such Investor in connection with making its investment hereunder
and that no other Investor will be acting as agent of such Investor in
connection with monitoring its investment hereunder. Each Investor
shall be entitled to independently protect and enforce its rights, including
without limitation the rights arising out of this Agreement or out of the other
Transaction Documents, and it shall not be necessary for any other Investor to
be joined as an additional party in any Proceeding for such
purpose.
[SIGNATURE
PAGES TO FOLLOW]
B-16
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
EMCORE
CORPORATION
|
By: /s/
Adam Gushard
|
Name: Adam
Gushard
|
Title: Chief
Financial Officer
|
Address
for Notice:
|
10420
Research Road, SE
|
Albuquerque,
New Mexico 87123
|
Facsimile
No.: (505) 332-5000
|
Telephone
No.: (505) 332-5038
|
Attn:
|
With
a copy to:
|
Jones
Day
|
1755
Embarcadero Road
|
Palo
Alto, CA 94303
|
Facsimile
No.: (650) 739-3900
|
Telephone
No.: (650) 739-3997
|
Attn: Steve
Gillette
|
and
|
Jones
Day
|
51
Louisiana Avenue, NW
|
Washington,
D.C. 20001
|
Facsimile
No.: (201) 626-1700
|
Telephone
No.: (202) 879-3483
|
Attn: John
Welch
|
SPA
COMPANY SIGNATURE PAGE
B-17
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Polar
Securities
Inc.
|
By: /s/
Robyn
Schultz
|
Name: Robyn
Schultz
|
Title: VP,
Polar Securities Inc. (as IA for
certain managed
accounts)
|
Address:372
Bay St., 21st
Fl Toronto, ON
M5R2W9
|
Telephone
No.: 416-367-4364
|
Facsimile
No.: 416-367-0567
|
Email
Address: rschultz@polarsec.com
|
Number
of
Shares: 283,100
|
Aggregate
Purchase Price: $3,538,750
|
Number
of
Warrants: 49,543
|
|
Delivery
Instructions (if different than
above):
|
|
BMO
Nesbitt Burns Inc.
|
|
Account
Reference: 402-20080, Altairis
Offshore
|
|
1
First Canadian Place, 35th
Floor
|
|
Toronto,
ON M5X 1H3
|
|
Attn: Jennifer
Scotland, 416-359-4972
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-18
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Polar
Securities
Inc.
|
By: /s/
Robyn
Schultz
|
Name: Robyn
Schultz
|
Title: VP,
Polar Securities Inc. (as IA for
certain managed
accounts)
|
Address:372
Bay St., 21st
Fl Toronto, ON
M5R2W9
|
Telephone
No.: 416-367-4364
|
Facsimile
No.: 416-367-0567
|
Email
Address: rschultz@polarsec.com
|
Number
of
Shares: 54,000
|
Aggregate
Purchase Price: $680,000
|
Number
of
Warrants: 9,520
|
|
Delivery
Instructions (if different than
above):
|
|
BMO
Nesbitt Burns Inc.
|
|
Account
Reference: 402-20055, Altairis Investments
L.P.
|
|
1
First Canadian Place, 35th
Floor
|
|
Toronto,
ON M5X 1H3
|
|
Attn: Jennifer
Scotland, 416-359-4972
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-19
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Polar
Securities
Inc.
|
By: /s/
Robyn
Schultz
|
Name: Robyn
Schultz
|
Title: VP,
Polar Securities Inc. (as IA for
certain managed
accounts)
|
Address:372
Bay St., 21st
Fl Toronto, ON
M5R2W9
|
Telephone
No.: 416-367-4364
|
Facsimile
No.: 416-367-0567
|
Email
Address: rschultz@polarsec.com
|
Number
of
Shares: 502,500
|
Aggregate
Purchase Price: $6,281,250
|
Number
of
Warrants: 87,938
|
|
Delivery
Instructions (if different than
above):
|
|
BMO
Nesbitt Burns Inc.
|
|
Account
Reference: 402-20486, Altairis Offshore
Levered
|
|
1
First Canadian Place, 35th
Floor
|
|
Toronto,
ON M5X 1H3
|
|
Attn: Jennifer
Scotland, 416-359-4972
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-20
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
THE
QUERCUS
TRUST
|
By: /s/
David
Gelbaum
|
Name: David
Gelbaum
|
Title: Trustee
|
Address:1835
Newport Blvd., A109PMB 467
Costa Mesa,
CA 92627
|
Telephone
No.: 949-646-3784
|
Facsimile
No.: 949-631-6723
|
Email
Address: xaixai@pacbell.net
|
Number
of
Shares: 752,000
|
Number
of
Warrants: 131,600
|
Aggregate
Purchase Price: $9,400,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-21
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 14, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Marathon
Global Equity Master Fund, Ltd.
|
By: /s/
Jamie
Raboy
|
Name: Jamie
Raboy
|
Title: Managing
Director
|
Address:461
5th Avenue,
10th
Fl,
New York,
NY 10017
|
Telephone
No.: 212-381-4422
|
Facsimile
No.: 212-381-0012
|
Email
Address: seichenstein@marathonfund.com
|
Number
of
Shares: 600,000
|
Number
of
Warrants: 105,000
|
Aggregate
Purchase Price: $7,500,000
|
|
Delivery
Instructions (if different than
above):
|
c/o: Goldman Sachs &
Co.
|
|
Address: 30 Hudson Street,
Jersey City,
NJ 07302
|
Telephone
No. :212-357-2468
|
Facsimile
No.:
|
212-428-9370
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-22
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
UBS
O’Connor LLC F/B/O:
O’Connor
Pipes Corporate Strategies Master Limited
|
By: /s/
Andrew
Martin
|
Name: Andrew
Martin
|
Title: Managing
Director
|
Address:UBS
O’Connor LLCOne North Wacker Drive
32nd
Floor
Chicago,
Illinois 60614
Attn: Robert
Murray
|
Telephone
No.: 312-525-6247
|
Facsimile
No.: 3112-252-6271
|
Email
Address: DL-ubsoc-corpact@ubs.com
|
Number
of
Shares: 336,000
|
Number
of
Warrants: 58,800
|
Aggregate
Purchase Price: $4,200,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-23
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
UBS
O’Connor LLC F/B/O:
O’Connor
Global Convertible Arbitrage II Master Limited
|
By: /s/
Andrew
Martin
|
Name: Andrew
Martin
|
Title: Managing
Director
|
Address:UBS
O’Connor LLCOne North Wacker Drive
32nd
Floor
Chicago,
Illinois 60614
Attn: Robert
Murray
|
Telephone
No.: 312-525-6247
|
Facsimile
No.: 312-525-6271
|
Email
Address: DL-ubsoc-corpact@ubs.com
|
Number
of
Shares: 210,560
|
Number
of
Warrants: 36,848
|
Aggregate
Purchase Price: $2,632,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-24
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
UBS
O’Connor LLC F/B/O:
O’Connor
Global Convertible Arbitrage II Master Limited
|
By: /s/
Andrew
Martin
|
Name: Andrew
Martin
|
Title: Managing
Director
|
Address:UBS
O’Connor LLCOne North Wacker Drive
32nd
Floor
Chicago,
Illinois 60614
Attn: Robert
Murray
|
Telephone
No.: 312-525-6247
|
Facsimile
No.: 312-525-6271
|
Email
Address: DL-ubsoc-corpact@ubs.com
|
Number
of
Shares: 13,440
|
Number
of
Warrants: 2,352
|
Aggregate
Purchase Price: $168,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-25
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
The
Tocqueville
Fund
|
By: /s/
Robert W. Kleinshmidt
|
Name: Robert
W.
Kleinshmidt
|
Title: Authorized
Portfolio Manager
|
Address:40
W. 57th
St. 19th
Floor
New York,
NY 10019
|
Telephone
No.: (212) 698-0849
|
Facsimile
No.: (212)
262-0154
|
Email
Address: RWK@tocqueville.com
|
Number
of
Shares: 225,000
|
Aggregate
Purchase Price: $2,812,500
|
|
Delivery
Instructions (if different than
above):
|
c/o: Tocqueville Asset
Mgmt.
|
Address: 40 W. 57th St., 19th
Fl.
|
New York,
NY 10019
|
Telephone
No.: (212)
698-0849
|
Facsimile
No.:
|
(212)
262-0154
|
|
Other
Special Instructions: Tax ID:
13-6878714
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-26
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Tocqueville
Amerique
|
By: /s/
Robert W. Kleinshmidt
|
Name: Robert
W.
Kleinshmidt
|
Title: Authorized
Portfolio Manager
|
Address:EIFB
6. ave de
Provence 75441 Paris
FRANCE
|
Telephone
No.: (212)
698-0849
|
Facsimile
No.: (212)
262-0154
|
Email
Address: RWK@tocqueville.com
|
Number
of
Shares: 45,000
|
Aggregate
Purchase Price: $562,500
|
|
Delivery
Instructions (if different than
above):
|
c/o: Tocqueville Asset
Mgmt.
|
Address: 40 W. 57th St., 19th
Fl.
|
New York,
NY 10019
|
Telephone
No.: (212)
698-0849
|
Facsimile
No.:
|
(212)
262-0154
|
Other
Special Instructions: Tax ID: n/a
(foreign)
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-27
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
MONTBER,
S.A.
INCOME
|
By: /s/
Robert W. Kleinshmidt
|
Name: Robert
W.
Kleinshmidt
|
Title: Authorized
Portfolio Manager
|
Address:c/o
The Bank of Bermuda
6. Front
Street Hamilton HM11
Bermuda
|
Telephone
No.: (212)
698-0849
|
Facsimile
No.: (212) 262-0154
|
Email
Address: RWK@tocqueville.com
|
Number
of
Shares: 190,000
|
Aggregate
Purchase Price: $2,375,000
|
|
Delivery
Instructions (if different than
above):
|
c/o: Tocqueville Asset
Mgmt.
|
Address: 40 W. 57th St., 19th
Fl.
|
New York,
NY 10019
|
Telephone
No.: (212)
698-0849
|
Facsimile
No.:
|
(212)
262-0154
|
Other
Special Instructions: Tax ID: n/a
(foreign)
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-28
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
THORN
LIMITED
|
By: /s/
Robert W. Kleinshmidt
|
Name: Robert
W.
Kleinshmidt
|
Title: Authorized
Portfolio Manager
|
Address:c/o
Lepercq Corp. Mgmt.
P.O. Box HM
2363 Hamilton HM JX
Bermuda
|
Telephone
No.: (212)
698-0849
|
Facsimile
No.: (212)
262-0154
|
Email
Address: RWK@tocqueville.com
|
Number
of
Shares: 35,000
|
Aggregate
Purchase Price: $437,500
|
|
Delivery
Instructions (if different than
above):
|
c/o: Tocqueville Asset
Mgmt.
|
Address: 40 W. 57th St., 19th
Fl.
|
New York,
NY 10019
|
Telephone
No.: (212)
698-0849
|
Facsimile
No.:
|
(212)
262-0154
|
Other
Special Instructions: Tax ID: n/a
(foreign)
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-29
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 13, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
KALUNBORG
LTD
BVI
|
By: /s/
Robert W. Kleinshmidt
|
Name: Robert
W.
Kleinshmidt
|
Title: Authorized
Portfolio Manager
|
Address:c/o
CODAN TRUST CO.
Richmond
House
12 Par La Ville
Road
Hamilton HM
JX
Bermuda
|
Telephone
No.: (212)
698-0849
|
Facsimile
No.: (212) 262-0154
|
Email
Address: RWK@tocqueville.com
|
Number
of
Shares: 15,000
|
Aggregate
Purchase Price: $187,500
|
|
Delivery
Instructions (if different than
above):
|
c/o: Tocqueville Asset
Mgmt.
|
Address: 40 W. 57th St., 19th
Fl.
|
New York,
NY 10019
|
Telephone
No.: (212)
698-0849
|
Facsimile
No.:
|
(212)
262-0154
|
Other
Special Instructions: Tax ID: n/a
(foreign)
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-30
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
HIGHBRIDGE
INTERNATIONAL LLC
By: Highbridge
Capital Management, LLC
Its: Trading
Manager
|
By: /s/
Adam J.
Chill
|
Name:Adam
J.
Chill
|
Title: Managing
Director
|
Address:Highbridge
Capital Management, LLC
9 West 57th Street,
27th
Floor
New York,
NY 10019
Attn: Ari J.
Storch/Adam J. Chill
|
Telephone
No.: 212-287-4720
|
Facsimile
No.: 212-751-0755
|
Email
Address: ari.storch@highbridge.com
adam.chill@highbridge.com
|
Number
of
Shares: 500,000
|
Number
of
Warrants: 87,500
|
Aggregate
Purchase Price: $6,250,000
|
|
Delivery
Instructions (if different than
above):
|
c/o: Bear
Stearns
|
Address: 1 Matratech Center,
20th
Floor
|
Brooklyn,
NY 11201
|
Telephone
No.: 212-272-3915
|
Facsimile
No.:
|
Other
Special Instructions: Attn: Elanna
Bradley
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-31
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
ARDSLEY
PARTNERS FUND II, L.P.
|
By: /s/
Steve
Napoli
|
Name:Steve
Napoli
|
Title: Partner
|
Address:
262 Harbor
Drive
4th
Floor
Stamford,
CT 06902
|
Telephone
No.: 203-355-0700
|
Facsimile
No.: 203-355-0715
|
Email
Address: steve@adrsley.com
|
Number
of
Shares: 126,500
|
Number
of
Warrants: 22,138
|
Aggregate
Purchase Price: $1,581,250
|
|
Delivery
Instructions (if different than
above):
|
c/o: Ardsley
Partners
|
Address:
|
262
Harbor Drive, 4th Floor
|
Stamford,
CT 06902
|
Telephone
No.: 203-355-0700
|
Facsimile
No.: 203-355-0715
|
Other
Special Instructions: n/a
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-32
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
ARDSLEY
PARTNERS INSTITUTIONAL FUND, L.P.
|
By: /s/
Steve
Napoli
|
Name:Steve
Napoli
|
Title: Partner
|
Address: 262
Harbor
Drive
4th
Floor
Stamford,
CT 06902
|
Telephone
No.: 203-355-0700
|
Facsimile
No.: 203-355-0715
|
Email
Address: steve@adrsley.com
|
Number
of
Shares: 81,800
|
Number
of
Warrants: 14,315
|
Aggregate
Purchase Price: $1,022,500
|
|
Delivery
Instructions (if different than
above):
|
c/o: Ardsley
Partners
|
Address:
|
262
Harbor Drive, 4th Floor
|
Stamford,
CT 06902
|
Telephone
No.: 203-355-0700
|
Facsimile
No.: 203-355-0715
|
Other
Special Instructions: n/a
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-33
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
ARDSLEY
PARTNERS RENEWABLE FUND, L.P.
|
By: /s/
Steve
Napoli
|
Name:Steve
Napoli
|
Title: Partner
|
Address: 262
Harbor
Drive
4th Floor
Stamford,
CT 06902
|
Telephone
No.: 203-355-0700
|
Facsimile
No.: 203-355-0715
|
Email
Address: steve@adrsley.com
|
Number
of
Shares: 68,300
|
Number
of
Warrants: 11,953
|
Aggregate
Purchase Price: $853,750
|
|
Delivery
Instructions (if different than
above):
|
c/o: Ardsley
Partners
|
Address:
|
262
Harbor Drive, 4th Floor
|
Stamford,
CT 06902
|
Telephone
No.: 203-355-0700
|
Facsimile
No.: 203-355-0715
|
Other
Special Instructions: n/a
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-34
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
ARDSLEY
OFFSHORE FUND, LTD.
|
By: /s/
Steve
Napoli
|
Name:Steve
Napoli
|
Title: Agent
/ Advisor
|
Address: 262
Harbor
Drive
4th
Floor
Stamford,
CT 06902
|
Telephone
No.: 203-355-0700
|
Facsimile
No.: 203-355-0715
|
Email
Address: steve@adrsley.com
|
Number
of
Shares: 88,500
|
Number
of
Warrants: 15,488
|
Aggregate
Purchase Price: $1,106,250
|
|
Delivery
Instructions (if different than
above):
|
c/o: Ardsley
Partners
|
Address:
|
262
Harbor Drive, 4th Floor
|
Stamford,
CT 06902
|
Telephone
No.: 203-355-0700
|
Facsimile
No.: 203-355-0715
|
Other
Special Instructions: n/a
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-35
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
ARDSLEY
RENEWABLE ENERGY OFFSHORE FUND, LTD.
|
By: /s/
Steve
Napoli
|
Name:Steve
Napoli
|
Title: Director
|
Address:
262 Harbor
Drive
4th
Floor
Stamford,
CT 06902
|
Telephone
No.: 203-355-0700
|
Facsimile
No.: 203-355-0715
|
Email
Address: steve@adrsley.com
|
Number
of
Shares: 116,100
|
Number
of
Warrants: 20,318
|
Aggregate
Purchase Price: $1,451,250
|
|
Delivery
Instructions (if different than
above):
|
c/o: Ardsley
Partners
|
Address:
|
262
Harbor Drive, 4th Floor
|
Stamford,
CT 06902
|
Telephone
No.: 203-355-0700
|
Facsimile
No.: 203-355-0715
|
Other
Special Instructions: n/a
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-36
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
MARION
LYNTON
|
By: /s/
Steve
Napoli
|
Name:Steve
Napoli
|
Title: Agent
/ Advisor
|
Address: 262
Harbor
Drive
4th
Floor
Stamford,
CT 06902
|
Telephone
No.: 203-355-0700
|
Facsimile
No.: 203-355-0715
|
Email
Address: steve@adrsley.com
|
Number
of
Shares: 3,200
|
Number
of
Warrants: 560
|
Aggregate
Purchase Price: $40,000
|
|
Delivery
Instructions (if different than
above):
|
c/o: Ardsley
Partners
|
Address:
|
262
Harbor Drive, 4th Floor
|
Stamford,
CT 06902
|
Telephone
No.: 203-355-0700
|
Facsimile
No.: 203-355-0715
|
Other
Special Instructions: n/a
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-37
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
HFR
HE ARDSLEY MASTER TRUST
|
By: /s/
Steve
Napoli
|
Name:Steve
Napoli
|
Title: Agent
/ Advisor
|
Address:
262 Harbor
Drive
4th
Floor
Stamford,
CT 06902
|
Telephone
No.: 203-355-0700
|
Facsimile
No.: 203-355-0715
|
Email
Address: steve@adrsley.com
|
Number
of
Shares: 15,600
|
Number
of
Warrants: 2,730
|
Aggregate
Purchase Price: $195,000
|
|
Delivery
Instructions (if different than
above):
|
c/o: Ardsley
Partners
|
Address:
|
262
Harbor Drive, 4th Floor
|
Stamford,
CT 06902
|
Telephone
No.: 203-355-0700
|
Facsimile
No.: 203-355-0715
|
Other
Special Instructions: n/a
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-38
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
HUDSON
BAY OVERSEAS FUND LTD
|
By: /s/
Yoav
Roth
|
Name:Yoav
Roth
|
Title: Principal
& Portfolio Manager
|
Address:
120 Broadway, 40th
Floor
New York,
NY 10271
|
Telephone
No.: 212-571-1244
|
Facsimile
No.: 212-571-1279
|
Email
Address: investments@hudsonbaycapital.com
|
Number
of
Shares: 545,600
|
Number
of
Warrants: 95,480
|
Aggregate
Purchase Price: $6,820,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-39
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
HUDSON
BAY FUND
LTD
|
By: /s/
Yoav
Roth
|
Name:Yoav
Roth
|
Title: Principal
& Portfolio Manager
|
Address:
120 Broadway, 40th
Floor
New York,
NY 10271
|
Telephone
No.: 212-571-1244
|
Facsimile
No.: 212-571-1279
|
Email
Address: investments@hudsonbaycapital.com
|
Number
of
Shares: 334,400
|
Number
of
Warrants: 58,520
|
Aggregate
Purchase Price: $4,180,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-40
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Portside
Growth and Opportunity Fund
|
By: /s/
Jeff
Smith
|
Name:Jeff
Smith
|
Title: Authorized
Signatory
|
Address:
Portside Growth and Opportunity
Fund
c/o Ramius Capital
Group
666 Third Avenue, 26th
Floor
New York,
NY 10271
|
Telephone
No.: (212)
845-7955
|
Facsimile
No.: (212)
201-4802
|
Email
Address: jsmith@ramius.com
olittman@raimus.com
|
Number
of
Shares: 480,000
|
Number
of
Warrants: 84,000
|
Aggregate
Purchase Price: $6,000,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
|
Address: **PLEASE SEE ATTACHED
FOR DELIVERY INSTRUCTIONS**
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-41
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Empire
Capital Partners,
LTD
|
By: /s/
Peter J.
Richards
|
Name:Peter
J.
Richards
|
Title: Managing
Member of Empire Capital Management, LLC (investment manager to Empire
Capital Partners, LTD)
|
Address:
One Gorham Island, Suite 201
Westport,
CT 06880 USA
|
Telephone
No.: 203-454-1019
|
Facsimile
No.:
203-454-1539
|
Email
Address: pjr@empirecapital.com
|
Number
of
Shares: 144,600
|
Number
of
Warrants: 25,305
|
Aggregate
Purchase Price: $1,807,500
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-42
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Empire
Capital Partners,
LP
|
By: /s/
Peter J.
Richards
|
Name:Peter
J.
Richards
|
Title: Managing
Member of Empire Capital Management, LLC (investment manager to Empire
Capital Partners, LP)
|
Address:
One Gorham Island, Suite 201
Westport,
CT 06880 USA
|
Telephone
No.: 203-454-1019
|
Facsimile
No.: 203-454-1539
|
Email
Address: pjr@empirecapital.com
|
Number
of
Shares: 155,400
|
Number
of
Warrants: 27,195
|
Aggregate
Purchase Price: $1,942,500
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-43
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 14, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Capital
Ventures
International
By: Heights
Capital Management, Inc.
its
authorized
agent
|
By: /s/
Michael
Spolan
|
Name:Michael
Spolan
|
Title: General
Counsel
|
Address:
c/o Heights Capital Management
101 California Street, Suite
3250
San Francisco,
CA 94111
|
Telephone
No.: 415-403-6500
|
Facsimile
No.: 415-403-6525
|
Email
Address: Martin.Kobinger@sig.com
|
Number
of
Shares: 300,000
|
Number
of
Warrants: 52,500
|
Aggregate
Purchase Price: $3,750,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-44
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Iroquois
Masterfund,
Ltd.
|
By: /s/
John
Silverman
|
Name:John
Silverman
|
Title: Authorized
Signatory
|
Address:
641 Leigh
Ave.,
New York,
NY 10023
|
Telephone
No.: 212-924-3000
|
Facsimile
No.:
|
Email
Address: JSilverman@____.com
|
Number
of
Shares: 300,000
|
Number
of
Warrants: 52,500
|
Aggregate
Purchase Price: $3,750,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-45
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Kingdon
Associates
|
By: /s/
Alan
Winters
|
Name:Alan
Winters
|
Title: Chief
Operating
Officer
|
Address:
152 West 57th Street,
50th
Floor
New York,
NY 10019
|
Telephone
No.:
|
Facsimile
No.:
|
Email
Address:
|
Number
of
Shares: 72,600
|
Number
of
Warrants: 12,705
|
Aggregate
Purchase Price: $907,500
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
|
Other
Special Instructions: Attn: Alfred
Barbagallo
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-46
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
M.
Kingdon Offshore
Ltd.
|
By: /s/
Alan
Winters
|
Name:Alan
Winters
|
Title: Chief
Operating
Officer
|
Address:
152 West 57th Street,
50th
Floor
New York,
NY 10019
|
Telephone
No.:
|
Facsimile
No.:
|
Email
Address:
|
Number
of
Shares: 217,350
|
Number
of
Warrants: 38,036
|
Aggregate
Purchase Price: $2,716,875
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-47
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Kingdon
Family Partnership, L.P.
|
By: /s/
Alan
Winters
|
Name:Alan
Winters
|
Title: Chief
Operating
Officer
|
Address: 152
West 57th Street,
50th
Floor
New York,
NY 10019
|
Telephone
No.:
|
Facsimile
No.:
|
Email
Address:
|
Number
of
Shares: 10,050
|
Number
of
Warrants: 1,759
|
Aggregate
Purchase Price: $125,625
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-48
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Investcorp
Interlachen Multi-Strategy
Master
Fund
Limited
By: Interlachen
Capital Group
LP,
Authorized
Signatory
|
By: /s/
Gregg T.
Colburn
|
Name:Gregg
T.
Colburn
|
Title: Authorized
Signatory
|
Address:
Interlachen Capital Group LP
800 Nicollet Mall, Suite
2500
Minneapolis,
MN 55402
|
Telephone
No.: 612-659-4407 or 612-659-4450
|
Facsimile
No.: 612-659-4457 or 612-659-4401
|
Email
Address: gcolburn@interlachencapital.com
AND
legal@interlachencapital.com
|
Number
of
Shares: 200,000
|
Number
of
Warrants: 35,000
|
Aggregate
Purchase Price: $2,500,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:Goldman Sachs &
Co.
|
ATTN: Steve
Grandstrand
|
Address: One New York
Plaza
|
New York,
NY 10004
|
Telephone
No.: 212-357-7171
|
Facsimile
No.:
|
212-357-0413
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-49
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
CD
Investment Partners,
Ltd.:
By: Carpe
Diem Capital Management LLC
Its: Investment
Advisor
|
By: /s/
John
Ziegelman
|
Name:John
Ziegelman
|
Title: President
|
Address:
111 South Wacker Drive, Suite 3950
Chicago,
IL 60606
|
Telephone
No.: 312-803-5010
|
Facsimile
No.: 312-803-5017
|
Email
Address: john@cdcapital.com
|
Number
of
Shares: 160,000
|
Number
of
Warrants: 28,000
|
Aggregate
Purchase Price: $2,000,000
|
|
Delivery
Instructions (if different than
above):
|
c/o: Goldman Sachs &
Co.
|
Address: One New
York Plaza, 48th
Floor
|
New York,
NY 10004
|
Telephone
No.: 212-357-7172
|
Facsimile
No.:
|
212-428-5806
|
|
Other
Special Instructions: Deliver all original
certificates
|
|
and Warrant to Goldman
with a copy to the Purchaser
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-50
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Lagunitas
Partners
LP
|
By: /s/
Jon D.
Gruber
|
Name:Gruber
& McBaine Cap Mgmt.
|
Title: General
Partner
|
Address:
Gruber & McGaine Cap Mgmt.
50 Osgood Place –
P4
San Francisco,
CA 94133
|
Telephone
No.: 415-782-2606
|
Facsimile
No.: 415-981-6434
|
Email
Address: chris@gmcm.com
|
Number
of
Shares: 97,000
|
Number
of
Warrants: 16,975
|
Aggregate
Purchase Price: $1,272,500
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-51
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Gruber
& McBaine International
|
By: /s/
Jon D.
Gruber
|
Name:Gruber
& McBaine Cap Mgmt.
|
Title: Investment
Advisor
|
Address:
Gruber & McGaine Cap Mgmt.
50 Osgood Place –
P4
San Francisco,
CA 94133
|
Telephone
No.: 415-782-2606
|
Facsimile
No.: 415-981-6434
|
Email
Address: chris@gmcm.com
|
Number
of
Shares: 7,000
|
Number
of
Warrants: 1,225
|
Aggregate
Purchase Price: $87,500
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-52
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Jon
D. & Linda W. Gruber Trust
|
By: /s/
Jon D.
Gruber
|
Name:Jon
D.
Gruber
|
Title: Trustee
|
Address:
Gruber & McGaine Cap Mgmt.
50 Osgood Place –
P4
San Francisco,
CA 94133
|
Telephone
No.: 415-782-2606
|
Facsimile
No.: 415-981-6434
|
Email
Address: chris@gmcm.com
|
Number
of
Shares: 56,000
|
Number
of
Warrants: 9,800
|
Aggregate
Purchase Price: $700,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-53
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
CaraCastle
Partners
|
By: /s/
Damien
Quinn
|
Name:Damien
Quinn
|
Title: Principal
|
Address:
14 The
Ridge
Plandome,
NY 11030
|
Telephone
No.: (212)
619-0222
|
Facsimile
No.: (212)
619-0244
|
Email
Address: DQuinn@CaraCastle.com
|
Number
of
Shares: 88,000
|
Number
of
Warrants: 15,400
|
Aggregate
Purchase Price: $1,100,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-54
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
MMCAP
Int’l Inc.
SPC
|
By: /s/
Ben
Cubitt
|
Name:Ben
Cubitt
|
Title: PM
|
Address:
90 Fort St., Box 32021
Grand
Cayman,
|
Telephone
No.: 416-408-0998
|
Facsimile
No.: 416-352-7553
|
Email
Address: bcubitt@hamcap.ky
|
Number
of
Shares: 150,000
|
Number
of
Warrants: 26,250
|
Aggregate
Purchase Price: $1,875,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:MMCAP Int’l Inc.
SPC
|
Address:
161 Bay St.,
5th
Fl.
|
Toronto
|
Telephone
No.:
|
Facsimile
No.:
|
|
Other
Special Instructions: Ask for Chris
Smith
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-55
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Cranshire
Capital,
L.P.
|
By: /s/
Mister D.
Kopine
|
Name:Mister
D.
Kopine
|
Title: President
– Downsview Capital
The General
Partner
|
Address:
3100 Dundee Road, Suite 703
Northbrook,
IL 60062
|
Telephone
No.: 847-562-4030
|
Facsimile
No.: 847-562-4031
|
Email
Address: MKopine@crenshirecapital.com
|
Number
of
Shares: 120,000
|
Number
of
Warrants: 21,000
|
Aggregate
Purchase Price: $1,500,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-56
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Enable
Growth Partners
LP
|
By: /s/
Brendan
O’Neil
|
Name:Brendan
O’Neil
|
Title: President
& Chief Investment Officer
|
Address:
One Ferry Building, Suite 255
San Francisco,
CA 94111
|
Telephone
No.: 415-677-1578
|
Facsimile
No.: 415-677-1580
|
Email
Address: boneil@enablecapital.com
|
Number
of
Shares: 100,000
|
Number
of
Warrants: 17,500
|
Aggregate
Purchase Price: $1,250,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-57
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
Crestview
Capital Master,
LLC
By: Crestview
Capital Partners, LLC
Its
Sole Manager
|
By: /s/
Robert
Hoyt
|
Name:Robert
Hoyt
|
Title: Manager
|
Address:
95 Revere
Drive
Suite A
Northbrook,
IL 60062
|
Telephone
No.: (847) 559-0060
|
Facsimile
No.: (847) 559-5807
|
Email
Address: adam@crestviewcap.com
|
Number
of
Shares: 100,000
|
Number
of
Warrants: 17,500
|
Aggregate
Purchase Price: $1,250,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-58
Investor Signature
Page
By its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of February 15, 2008 (the “Purchase Agreement”) by and
among EMCORE Corporation and the Investors (as defined therein), as to the
number of shares of Common Stock set forth below, and authorizes this signature
page to be attached to the Purchase Agreement or counterparts
thereof.
Name
of Investor:
RHP
Master Fund,
Ltd.
By: Rock
Hill Investment Management, L.P.
By: RHP
General Partner, LLC
|
By: /s/
Keith
Marlowe
|
Name:Keith
Marlowe
|
Title: Director
|
Address:
c/o
Rock Hill Investment Management, LP
Three
Bala Plaza – East, Suite 585
Bala
Cynwyd,
PA 19004
|
Telephone
No.: 610-949-9700
|
Facsimile
No.: 610-676-9600
|
Email
Address: kmarlowe@rockhillfunds.com
|
Number
of
Shares: 100,000
|
Number
of
Warrants: 17,500
|
Aggregate
Purchase Price: $1,250,000
|
|
Delivery
Instructions (if different than
above):
|
c/o:
|
Address:
|
|
Telephone
No.:
|
Facsimile
No.:
|
Other
Special Instructions:
|
Exhibits:
A Form
of Warrant
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Company
Transfer Agent Instructions
E Form
of Registration Rights Agreement
F Form
of Lock-Up Agreement
B-59
Exhibit A
FORM OF WARRANT
[See Attached]
B-60
Exhibit B
INSTRUCTION SHEET FOR
INVESTOR
(to be
read in conjunction with the entire Securities Purchase Agreement)
A.
|
Complete
the following items in the Securities Purchase
Agreement:
|
|
1.
|
Complete
and execute the Investor Signature Page. The Agreement must be
executed by an individual authorized to bind the
Investor.
|
|
2.
|
Exhibit
B-1 - Stock Certificate Questionnaire:
|
|
Provide
the information requested by the Stock Certificate
Questionnaire;
|
||
3.
|
Exhibit
B-2 - Registration Statement Questionnaire:
|
|
Provide
the information requested by the Registration Statement
Questionnaire.
|
||
4.
|
Exhibit
B-3 - Investor Certificate:
|
|
Provide
the information requested by the Investor Certificate.
|
||
5.
|
Return,
via facsimile, the signed Securities Purchase Agreement including the
properly completed Exhibits B-1 through B-3, to:
|
|
Facsimile:
|
||
Telephone:
|
||
Attn:
|
||
6.
|
After
completing instruction number five (5) above, deliver the original signed
Securities Purchase Agreement including the properly completed Exhibits
B-1 through B-3 to:
|
|
Address:
|
||
B.
|
Instructions
regarding the wire transfer of funds for the purchase of the Securities
will be telecopied to the Investor by the Company at a later
date.
|
B-61
Exhibit B-1
EMCORE
CORPORATION
STOCK CERTIFICATE
QUESTIONNAIRE
Please
provide us with the following information:
|
||
1.
|
The
exact name that the Securities are to be registered in (this is the name
that will appear on the stock and warrant certificate(s)). You
may use a nominee name if appropriate:
|
|
2.
|
The
relationship between the Investor of the Securities and the Registered
Holder listed in response to item 1 above:
|
|
3.
|
The
mailing address, telephone and telecopy number and email address of the
Registered Holder listed in response to item 1 above:
|
|
4.
|
The
Tax Identification Number of the Registered Holder listed in response to
item 1 above:
|
B-62
Exhibit B-2
EMCORE
CORPORATION
REGISTRATION STATEMENT
QUESTIONNAIRE
In
connection with the Registration Statement, please provide us with the following
information regarding the Investor.
1. Please
state your organization’s name exactly as it should appear in the Registration
Statement:
Except as
set forth below, your organization does not hold any equity securities of
theCompany on behalf of another person or entity.
State any
exceptions here:
If the
Investor is not a natural person, please identify the natural person or persons
who willhave voting and investment control over the Securities owned by the
Investor:
2. Address
of your organization:
Telephone: __________________________
Fax: ________________________________
Contact
Person: _______________________
3. Have
you or your organization had any position, office or other material relationship
within the past three years with the Company or its
affiliates? (Include any relationships involving you or any of your
affiliates, officers, directors, or principal equity holders (5% or more) that
has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three
years.)
_______ Yes _______ No
If yes,
please indicate the nature of any such relationship below:
4. Are
you the beneficial owner of any other securities of the
Company? (Include any equity securities that you beneficially own or
have a right to acquire within 60 days after the date hereof, and as to which
you have sole voting power, shared voting power, sole investment power or shared
investment power.)
_______ Yes _______ No
If yes,
please describe the nature and amount of such ownership as of a recent
date.
B-63
5. Except
as set forth below, you wish that all the shares of the Company’s common stock
beneficially owned by you or that you have the right to acquire from the Company
be offered for your account in the Registration Statement.
State any exceptions here:
6. Have
you made or are you aware of any arrangements relating to the public
distribution of the Common Shares or Warrant Shares pursuant to the Registration
Statement?
_______ Yes _______ No
If yes,
please describe the nature and amount of such arrangements.
7. FINRA
Matters
(a) State
below whether (i) you or any associate or affiliate of yours are a
member of the FINRA, a
controlling shareholder
of an FINRA member, a
person associated with a member, a direct
or indirect affiliate
of a member, or an
underwriter or related
person with respect to the proposed offering; (ii) you or any associate or affiliate of yours owns any
stock or other securities of any FINRA member not purchased in the
open market; or (iii) you or any associate or affiliate of yours has made
any outstanding subordinated loans to any FINRA member. If you are a general
or limited partnership, a no answer asserts that no such relationship exists for
you as well as for each of your general or limited partners.
Yes:
__________
|
No:
__________
|
If “yes,” please identify the
FINRA member and
describe your relationship, including, in the case of a general or limited
partner, the name of the partner:
If you
answer “no” to Question
7(a), you need not respond to Question 7(b).
(b) State
below whether you or any associate or affiliate of yours has been
an underwriter, or a controlling person or member
of any investment banking or brokerage firm which has been or might be an
underwriter for securities of the Corporation or any affiliate thereof including,
but not limited to, the common stock now being registered.
Yes:
__________
|
No:
__________
|
If “yes,” please identify the
FINRA member and
describe your relationship, including, in the case of a general or limited
partner, the name of the partner.
B-64
ACKNOWLEDGEMENT
The
agrees to provide the Company and the Company’s counsel any and all such further
information regarding the undersigned promptly upon request in connection with
the preparation, filing, amending, and supplementing of the Registration
Statement (or any prospectus contained therein). The undersigned
hereby consents to the use of all such information in the Registration
Statement.
The
undersigned understands and acknowledges that the Company will rely on the
information set forth herein for purposes of the preparation and filing of the
Registration Statement.
The
undersigned understands that the undersigned may be subject to serious civil and
criminal liabilities if the information provided by the undersigned hereunder
for use in the Registration Statement, when it becomes effective, either
contains an untrue statement of a material fact or omits to state a material
fact required to be stated in the Registration Statement or necessary to make
the statements in the Registration Statement not misleading. The
undersigned represents and warrants that all information it provides to the
Company and its counsel is currently materially accurate and complete, and
agrees during the Effectiveness Period and any additional period in which the
undersigned is making sales of Shares under and pursuant to the Registration
Statement, to promptly notify the Company of any misstatement of a material fact
with respect to such information provided by the undersigned hereunder in the
Registration Statement, and of the omission of any material fact necessary to
make such statements not misleading.
Dated: __________
______________________________
|
Name
|
______________________________
|
Signature
|
______________________________
|
Name
and Title of Signatory
|
B-65
Exhibit B-3
EMCORE
CORPORATION
CERTIFICATE FOR CORPORATE,
PARTNERSHIP, LIMITED LIABILITY COMPANY,
TRUST, FOUNDATION AND JOINT
INVESTORS
If the
Investor is a corporation, partnership, limited liability company, trust,
pension plan, foundation, joint Investor (other than a married couple) or other
entity, an authorized officer, partner, or trustee must complete, date and sign
this Certificate.
CERTIFICATE
The
undersigned certifies that the representations and responses below are true and
accurate:
(a) The
Investor has been duly formed and is validly existing and has full power and
authority to invest in the Company. The person signing on behalf of
the undersigned has the authority to execute and deliver the Securities Purchase
Agreement on behalf of the Investor and to take other actions with respect
thereto.
(b) Indicate
the form of entity of the undersigned:
____ Limited
Partnership
____ General
Partnership
____ Limited
Liability Company
____ Corporation
____ Revocable
Trust (identify each grantor and indicate under what circumstances the trust is
revocable by the grantor):
(Continue
on a separate piece of paper, if necessary.)
____ Other
type of Trust (indicate type of trust and, for trusts other than pension trusts,
name the grantors and beneficiaries):
(Continue
on a separate piece of paper, if necessary.)
____ Other
form of organization (indicate form of organization ().
(c) Indicate
the approximate date the undersigned entity was formed:.
B-66
(d) In
order for the Company to offer and sell the Securities in conformance with state
and federal securities laws, the following information must be obtained
regarding your investor status. Please initial each category
applicable to you as an investor in the Company.
___
|
1.
|
A
bank as defined in Section 3(a)(2) of the Securities Act, or any savings
and loan association or other institution as defined in Section 3(a)(5)(A)
of the Securities Act whether acting in its individual or fiduciary
capacity;
|
___
|
2.
|
A
broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934;
|
___
|
3.
|
An
insurance company as defined in Section 2(13) of the Securities
Act;
|
___
|
4.
|
An
investment company registered under the Investment Company Act of 1940 or
a business development company as defined in Section 2(a)(48) of that
Act;
|
___
|
5.
|
A
Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958;
|
___
|
6.
|
A
plan established and maintained by a state, its political subdivisions, or
any agency or instrumentality of a state or its political subdivisions,
for the benefit of its employees, if such plan has total assets in excess
of $5,000,000;
|
___
|
7.
|
An
employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974, if the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of such Act, which is either a
bank, savings and loan association, insurance company, or registered
investment advisor, or if the employee benefit plan has total assets in
excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited
investors;
|
___
|
8.
|
A
private business development company as defined in Section 202(a)(22)
of the Investment Advisers Act of 1940;
|
___
|
9.
|
Any
partnership or corporation or any organization described in
Section 501(c)(3) of the Internal Revenue Code or similar business
trust, not formed for the specific purpose of acquiring the Shares, with
total assets in excess of $5,000,000;
|
___
|
10.
|
A
trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the Shares, whose purchase is directed by a
sophisticated person as described in Rule 506(b)(2)(ii) of the
Exchange Act;
|
___
|
11.
|
An
entity in which all of the equity owners qualify under any of the above
subparagraphs. If the undersigned belongs to this investor
category only, list the equity owners of the undersigned, and the investor
category which each such equity owner satisfies:
(Continue
on a separate piece of paper, if necessary.)
|
Please
set forth in the space provided below the (i) states, if any, in the U.S.
in which you maintained your principal office during the past two years and the
dates during which you maintained your office in each state, (ii) state(s),
if any, in which you are incorporated or otherwise organized and
(iii) state(s), if any, in which you pay income taxes.
Dated:__________________________,
2008
|
Print
Name of Investor
|
Name:
|
Title:
|
(Signature
and title of authorized officer, partner or
trustee)
|
B-67
Exhibit C-1
OPINION OF JONES
DAY
We have
acted as special counsel for Emcore Corporation, a New Jersey corporation (the
“Company”), in connection with the purchase from the Company by the several
purchasers named in Schedule A attached
hereto (collectively, the “Purchasers”) of common stock, no par value, of the
Company (the “Common Stock”) and warrants to acquire additional shares of Common
Stock, pursuant to the Stock Purchase Agreement dated as of February 15, 2008
(the “Stock Purchase Agreement”), by and among the Company and the
Purchasers. This letter is furnished to the Purchasers pursuant to
Section 2.2(a)(iii) of the Stock Purchase Agreement. Except as
otherwise defined herein, terms used in this letter are used as defined in the
Stock Purchase Agreement.
In
connection with the opinions expressed herein, we have examined such documents,
records and matters of law as we have deemed relevant or necessary for purposes
of such opinions. Based on the foregoing, and subject to the further
limitations, qualifications and assumptions set forth herein, we are of the
opinion that:
1.
|
Assuming
that (a) the Company is a corporation existing and in good standing under
the laws of State of New Jersey and (b) the Stock Purchase Agreement and
the Registration Rights Agreement dated as of February 15, 2008 (the
“Registration Rights Agreement”) by and among the Company and the
Purchasers (i) have been (A) authorized by all necessary corporate action
of the Company and (B) executed and delivered by the Company under the
laws of the State of New Jersey and (ii) do not violate the laws of the
State of New Jersey, each of the Stock Purchase Agreement and the
Registration Rights Agreement constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms.
|
2.
|
No
consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required in connection with
the execution, delivery or performance of the Stock Purchase Agreement and
the Registration Rights Agreement by the Company, or in connection with
the issuance or sale of the Common Stock and the Warrants by the Company
to the Purchasers, except as may be required under (i) state securities or
blue sky laws or (ii) the Securities Act of 1933 (the “Securities Act”) or
the Securities Exchange Act of
1934.
|
3.
|
The
execution, delivery and performance of the Stock Purchase Agreement and
the Registration Rights Agreement by the Company, the issuance and sale of
the Common Stock and the Warrants by the Company and compliance with the
terms and provisions of the Stock Purchase Agreement and the Registration
Rights Agreement by the Company will not violate any law or regulation
known to us to be generally applicable to transactions of this type, or
any order or decree of any court, arbitrator or governmental agency that
is binding upon the Company or its property (this opinion being
limited to (i) those orders and decrees identified on Exhibit A
attached hereto, and (ii) in that we express no opinion with respect to
any violation not readily ascertainable from the face of any such order or
decree).
|
4.
|
It
is not necessary in connection with the offer and sale of the Common Stock
and the Warrants to the Purchasers under the Stock Purchase Agreement to
register the Common Stock or the Warrants under the Securities
Act.
|
5.
|
The
Company is not required to register as an “investment company,” as such
term is defined in the Investment Company Act of
1940.
|
The
opinions set forth above are subject to the following limitations,
qualifications and assumptions:
We have
assumed, for purposes of the opinions expressed herein, the legal capacity of
all natural persons executing documents, the genuineness of all signatures, the
authenticity of original and certified documents and the conformity to original
or certified copies of all copies submitted to us as conformed or reproduction
copies. For the purposes of the opinions expressed herein, we also
have assumed that each of the Purchasers has authorized, executed and delivered
the documents to which each of them is a party and that each of such documents
is the valid, binding and enforceable obligation of each of the
Purchasers.
As to
facts material to the opinions and assumptions expressed herein, we have, with
your consent, relied upon oral or written statements and representations of
officers and other representatives of the Company and others, including the
representations and warranties of the Company in the Stock Purchase
Agreement. We have not independently verified such
matters.
B-68
Our
opinions set forth in paragraph 1 above with respect to the enforceability of
the documents referred to in such opinions are subject to: (i) bankruptcy,
insolvency, reorganization, fraudulent transfer and fraudulent conveyance,
voidable preference, moratorium or other similar laws, and related regulations
and judicial doctrines from time to time in effect, relating to or affecting
creditors’ rights and remedies generally; (ii) the effect of general principles
of equity, whether enforcement is considered in a proceeding in equity or at law
(including the possible unavailability of specific performance or injunctive
relief), concepts of materiality, good faith and fair dealing and the discretion
of the court before which any proceeding may be brought; (iii) the qualification
that we express no opinion as to the validity, binding effect or enforceability
of any provision in any document or security (A) relating to indemnification,
contribution or exculpation that may be violative of the public policy
underlying any law, rule or regulation (including any federal or state
securities law, rule or regulation) or (B) that imposes payment obligations at a
rate or in an amount that a court would determine in the circumstances under
applicable law to be commercially unreasonable or a penalty or a forfeiture; and
(iv) the qualification that to the extent any opinion relates to the
enforceability of the choice of New York law and choice of New York forum
provisions of the documents or securities referred to therein, our opinion is
rendered in reliance upon N.Y. Gen. Oblig. Law §§ 5-1401, 5-1402 (McKinney 2001)
and N.Y. C.P.L.R. 327(b) (McKinney 2001), and that such enforceability may be
limited by public policy considerations.
With
respect to our opinions in paragraph 3 above, we express no opinion as to state
securities or “blue sky” laws.
In
rendering the opinions set forth in paragraph 4 above, we have assumed: (i) that
the offer and sale of the Common Stock and the Warrants will be conducted solely
in the manner contemplated by the Stock Purchase Agreement; and (ii) the
accuracy and completeness of the respective representations and warranties of
the Company and the Purchasers and compliance with their respective covenants
and agreements as set forth in the Stock Purchase Agreement.
The
opinions expressed herein are limited to (i) the federal securities laws of the
United States of America and (ii) the laws of the State of New York, in each
case as currently in effect, and we express no opinion as to the effect of the
laws of any other jurisdiction on the opinions expressed herein.
We
express no opinion as to the compliance or noncompliance, or the effect of the
compliance or noncompliance, of each of the addressees or any other person or
entity with any state or federal laws or regulations applicable to each of them
by reason of their status as or affiliation with a federally insured depository
institution. Our opinions are limited to those expressly set forth
herein, and we express no opinions by implication.
This
letter is furnished by us to you solely for the benefit of the Purchasers and
solely with respect to the purchase of the Common Stock and Warrants from the
Company by the Purchasers, upon the understanding that we are not hereby
assuming any professional responsibility to any other person whatsoever, and
that this letter is not to be used, circulated, quoted or otherwise referred to
for any other purpose.
B-69
Exhibit C-2
OPINION OF DILLON, BITAR
& LUTHER, L.L.C.
The
opinion of Dillon, Bitar & Luther, L.L.C. shall be substantially in the form
of the following paragraph and subject to customary exceptions and
qualifications.
1. The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of New Jersey, with corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Public Fillings and to enter into and perform its
obligations under this Agreement.
2. The
Company has all necessary corporate power and authority to execute and deliver
the Transaction Documents, to perform its obligations thereunder to issue the
Notes and to consummate the other Transactions.
3. Each
of the Stock Purchase Agreement and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms.
4. The
Company has all necessary power and authority to execute, issue and deliver the
Warrants; the Warrants have been duly authorized for issuance and sale by the
Company, will be in the form contemplated by the Warrant and, when executed,
countersigned and issued in accordance with the terms of the Warrant and
delivered to and paid for by the Purchasers pursuant to the Purchase Agreements,
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
5. The
Company has all necessary power and authority to issue and deliver the Warrant
Shares; the Warrant Shares have been duly reserved for issuance by the Company
provided that such opinion may be based solely on the number of Warrant Shares
issuable as of the Closing Date, without regard to the anti-dilution provisions
of the Warrants, and, assuming any additional Warrant Shares which are issuable
based on such anti-dilution provisions have been duly reserved for issuance by
the Company, Warrant Shares, when issued in accordance with the Warrant, will be
validly issued, fully paid and nonassessable; and such Warrant Shares will be
issued in compliance with federal and state securities laws.
6. The
Company has all necessary power and authority to issue and deliver the shares of
Common Stock; the shares of Common Stock have been duly authorized, and, when
duly issued and delivered to holders of the Common Stock, the Common Stock will
be duly and validly issued, fully paid and nonassessable and will be issued in
compliance with federal and state securities laws.
7. The
execution and delivery of the Transaction Documents by the Company, the
performance by the Company of its obligations thereunder (other than performance
by the Company of its obligations under the indemnification sections of such
agreements, as to which no opinion need be rendered), including the issuance and
sale of the Securities and the issuance of the Warrant Shares upon conversion of
the Warrants (i) will not result in any violation of the provisions of the
charter or by-laws of the Company or any subsidiary; (ii) will not
result in any violation of any federal or New Jersey law or, to the best
knowledge of such counsel any administrative regulation or administrative or
court decree, applicable to the Company or any of its subsidiaries; or (iii)
will not require any consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or regulatory
authority or agency, except (i) with respect to the transactions contemplated by
the Resale Registration Rights Agreement as may be required under the Securities
Act and the Exchange Act, (ii) as required by the state securities or “blue sky”
laws and (iii) for such consents, approvals, authorizations, orders, filings or
registrations which have been obtained or made.
B-70
Exhibit D
COMPANY TRANSFER AGENT
INSTRUCTIONS
[COMPANY
TRANSFER AGENT]
[ADDRESS]
Attention: [_________],
Account Representative
Ladies
and Gentlemen:
Reference
is made to that certain Securities Purchase Agreement, dated as of [January __],
2008 (the “Agreement”),
by and among EMCORE Corporation (the “Company”), and the investors
named on the Schedule of Investors attached thereto (collectively, the “Holders”), pursuant to which
the Company is issuing to the Holders shares (the “Common Shares”) of Common
Stock of the Company, no par value (the “Common Stock”), and Warrants
(the “Warrants”), which
are exercisable into shares of Common Stock.
In
connection with the consummation of the transactions contemplated by the
Agreement, this letter shall serve as our irrevocable authorization and
direction to you:
(i) to
issue an aggregate of _______ shares of our Common Stock in the names and
denominations set forth on Annex I attached hereto. The certificates should bear
the legend set forth on Annex II attached hereto and “stop transfer” instructions
should be placed against their subsequent transfer. Kindly deliver
the certificates to the respective delivery addresses set forth on Annex I via
hand delivery or overnight courier. We confirm that these shares will
be validly issued, fully paid and non-assessable upon issuance; and
(ii) to
issue (provided that you are the transfer agent of the Company at such time)
certificates for shares of Common Stock upon transfer or resale of the Common
Shares and receipt by you of certificate(s) for the Common Shares so transferred
or sold (duly endorsed or accompanied by stock powers duly endorsed, in each
case with signatures guaranteed and otherwise in form eligible for
transfer).
(iii) to
issue (provided that you are the transfer agent of the Company at such time)
shares of Common Stock upon the exercise of the Warrants (the “Warrant Shares”) to or upon
the order of a Holder from time to time upon delivery to you of a properly
completed and duly executed Exercise Notice, in the form attached hereto as
Annex II, which
has been acknowledged by the Company as indicated by the signature of a duly
authorized officer of the Company thereon.
You
acknowledge and agree that so long as you have previously received
(a) written confirmation from the Company’s legal counsel that either
(i) a registration statement covering resales of the Common Shares and the
Warrant Shares has been declared effective by the Securities and Exchange
Commission (the “SEC”)
under the Securities Act of 1933, as amended (the “Securities Act”), or
(ii) the Common Shares and the Warrant Shares are eligible for sale in
conformity with Rule 144(k) (or Rule 144 after February 15, 2008) under the
Securities Act (“Rule 144”) and
(b) if applicable, a copy of such registration statement, then, unless
otherwise required by law, within three (3) business days of your receipt
of certificates representing the Common Shares and the Warrant Shares, you shall
issue the certificates representing the Common Shares and the Warrant Shares to
the Holders or their transferees, as the case may be, registered in the names of
such Holders or transferees, as the case may be, and such certificates shall not
bear any legend restricting transfer of the Common Shares and the Warrant Shares
thereby and should not be subject to any stop-transfer
restriction. Any certificates tendered for transfer shall be endorsed
or with stock powers attached, signatures guaranteed, and otherwise in form
necessary to affect transfer.
A form of
written confirmation from the Company’s outside legal counsel that a
registration statement covering resales of the Common Shares and the Warrant
Shares has been declared effective by the SEC under the Securities Act is
attached hereto as Annex III.
Please be
advised that the Holders are relying upon this letter as an inducement to enter
into the Agreement and, accordingly, each Holder is a third party beneficiary to
these instructions.
Please
execute this letter in the space indicated to acknowledge your agreement to act
in accordance with these instructions. Should you have any questions
concerning this matter, please contact our counsel, [____________], Esq., at
[(___) ___-____].
Very
truly yours,
|
|
EMCORE
CORPORATION
|
|
By:
|
|
Name:
|
|
Title:
|
|
THE
FOREGOING INSTRUCTIONS ARE
|
|
ACKNOWLEDGED
AND AGREED TO
|
|
this
___ day of February, 2008
|
|
[COMPANY TRANSFER
AGENT]
|
|
By:
|
|
Name:
|
|
Title:
|
Enclosures
B-71
Exhibit E
FORM OF LOCK-UP
AGREEMENT
February
__, 2008
Emcore
Corporation
10420
Research Road, SE
Albuquerque,
new Mexico 87123
|
Re: EMCORE Corporation
– Lock-Up
Agreement
|
Dear
Sirs:
This Lock-Up Agreement is being
delivered to you in connection with the Securities Purchase Agreement (the
"Purchase Agreement"),
dated as of February __, 2008 by and among EMCORE Corporation (the "Company") and the investors
party thereto (the "Buyers"), with respect to the
issuance of (i) shares of the Company's common stock, no par value per share
(the "Common Stock") and
(ii) warrants which will be exercisable to purchase shares of Common
Stock. Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the Purchase
Agreement. This Lock-Up Agreement is one of a series of Lock-Up
Agreements being executed and delivered on the date hereof by the executive
officers of the Company (i.e. Reuben Richards, Hong Hou, Adam Gushard, Keith
Kosco and John Iannelli) (collectively, the “Lock-Up
Agreements”)
In order to induce the Buyers to enter
into the Purchase Agreement, the undersigned agrees that, commencing on the date
hereof and ending on the date that is thirty (30) calendar days after the
earlier of (i) the Effective Date and (ii) the last day of the Registration
Period (the "Lock-Up
Period"), the undersigned will not (i) sell, offer to sell, contract or
agree to sell, hypothecate, pledge, grant any option to purchase, make any short
sale or otherwise dispose of or agree to dispose of, directly or indirectly, any
securities of the Company, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section
16 of the Securities and Exchange Act of 1934, as amended and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder
with respect to any securities of the Company owned directly by the undersigned
(including holding as a custodian) or with respect to which the undersigned has
beneficial ownership within the rules and regulations of the Securities and
Exchange Commission, in each case, or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of any securities of the Company, owned directly by
the undersigned (including holding as a custodian) or with respect to which the
undersigned has beneficial ownership within the rules and regulations of the
Securities and Exchange Commission, whether any such transaction is to be
settled by delivery of such securities, in cash or otherwise, (collectively, the
"Undersigned’s
Shares").
The foregoing restriction is expressly
agreed to preclude the undersigned or any affiliate of the undersigned from
engaging in any hedging or other transaction which is designed to or which
reasonably could be expected to lead to or result in a sale or disposition of
the Undersigned’s Shares even if the Undersigned’s Shares would be disposed of
by someone other than the undersigned. Such prohibited hedging or
other transactions would include, without limitation, any short sale or any
purchase, sale or grant of any right (including, without limitation, any put or
call option) with respect to any of the Undersigned’s Shares or with respect to
any security that includes, relates to, or derives any significant part of its
value from the Undersigned’s Shares.
Notwithstanding the foregoing, the
undersigned may transfer the Undersigned’s Shares (i) as a bona fide gift or gifts,
provided that the donee or donees thereof agree to be bound in writing by the
restrictions set forth herein or (ii) to any trust for the direct or indirect
benefit of the undersigned or the immediate family of the undersigned, provided
that the trustee of the trust agrees to be bound in writing by the restrictions
set forth herein, and provided further that any such transfer shall not involve
a disposition for value. For purposes of this Lock-Up Agreement,
“immediate family” shall mean any relationship by blood, marriage or adoption,
not more remote than first cousin. The undersigned now has, and,
except as contemplated by clauses (i) and (ii) above, for the duration of this
Lock-Up Agreement will have, good and marketable title to the Undersigned’s
Shares, free and clear of all liens, encumbrances, and claims
whatsoever. The undersigned also agrees and consents to the entry of
stop transfer instructions with the Company’s transfer agent and registrar
against the transfer of the Undersigned’s Shares except in compliance with the
foregoing restrictions. Further, the following shall not be subject
to this Lock-Up Agreement: (i) [Richards only] an
aggregate of up to 100,000 of the Undersigned’s Shares issued upon the exercise
of stock options outstanding on the date hereof, and (ii) the portion of an
aggregate of 200,000 shares of the Company’s common stock for all Lock-Up
Agreements allocated to the undersigned by action of the Board of Directors of
the Company.
Nothing contained in this letter
agreement shall restrict, or be deemed to restrict, the undersigned from
entering into any plan adopted and established pursuant to Rule 10b5-1 under the
Securities Exchange Act of 1934, as amended, so long as no transactions in the
Company’s securities occur pursuant to such plan prior to the expiration of the
Lock-Up Period.
The undersigned understands and agrees
that this Lock-Up Agreement is irrevocable and shall be binding upon the
undersigned’s heirs, legal representatives, successors, and
assigns.
This Lock-Up Agreement may be executed
in two counterparts, each of which shall be deemed an original but both of which
shall be considered one and the same instrument.
B-72
This Lock-Up Agreement will be governed
by and construed in accordance with the laws of the State of New York, without
giving effect to any choice of law or conflicting provision or rule (whether of
the State of New York, or any other jurisdiction) that would cause the laws of
any jurisdiction other than the State of New York to be applied. In
furtherance of the foregoing, the internal laws of the State of New York will
control the interpretation and construction of this Lock-Up Agreement, even if
under such jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
The Company hereby appoints
[______________________________], as its agent for service of process in New
York. The undersigned hereby appoints
[______________________________], as its agent for service of process in New
York.
|
Very
truly yours,
|
|
______________________________
|
|
Exact
Name of Stockholder
|
|
______________________________
|
|
Authorized
Signature
|
|
______________________________
|
|
Title
|
|
Agreed
to and Acknowledged:
|
|
EMCORE
CORPORATION
|
|
By: _______________________
|
|
Name:
|
|
Title:
|
B-73
ANNEX I
SCHEDULE
OF INVESTORS
Investor
|
Registered
Holder
|
Shares
|
Warrants
|
Purchase
Price
|
Contact Details and
Mailing
|
||
Polar
Capital
|
840,000
|
147,000
|
$
10,500,000
|
||||
Altairis
Offshore
|
283,100
|
49,543
|
$3,538,750
|
BMO
Nesbitt Burns Inc
Account
Reference: 402-20080, Altairis Offshore
1
First Canadian Place, 35th Floor
Toronto,
ON M5X 1H3
Attn:
Jennifer Scotland, 416-359-4972
|
|||
Altairis
Investments, LP
|
54,400
|
9,520
|
$680,000
|
BMO
Nesbitt Burns Inc
Account
Reference: 402-20055, Altairis Offshore
1
First Canadian Place, 35th Floor
Toronto,
ON M5X 1H3
Attn:
Jennifer Scotland, 416-359-4972
|
|||
Altairis
Offshore Levered
|
502,500
|
87,938
|
$6,281,250
|
BMO
Nesbitt Burns Inc
Account
Reference: 402-20486, Altairis Offshore
1
First Canadian Place, 35th Floor
Toronto,
ON M5X 1H3
Attn:
Jennifer Scotland, 416-359-4972
|
|||
Quercus
Trust
|
The
Quercus Trust
|
752,000
|
131,600
|
9,400,000
|
1835
Newport Blvd, A109
PMB
467
Costa
Mesa, CA 92627
(949)
631-6723
|
||
Marathon
|
Marathon
Global Equity Master Fund, Ltd.
|
600,000
|
105,000
|
7,500,000
|
Goldman,
Sachs & Co.
30
Hudson Street
Jersey
City, NJ 07302
212-381-4422
|
||
UBS
O'Connor
|
UBS
O'Connor LLC F/B/O: O'Connor Pipes Corporate Strategies Master
Limited
|
336,000
|
58,800
|
4,200,000
|
UBS
O'Connor LLC
One
North Wacker Drive, 32nd floor
Chicago,
IL 60614
Attn:
Robert Murray
|
||
UBS
O'Connor LLC F/B/O: O'Connor Global Convertible Arbitrage Master
Limited
|
210,560
|
36,848
|
2,632,000
|
UBS
O'Connor LLC
One
North Wacker Drive, 32nd floor
Chicago,
IL 60614
Attn:
Robert Murray
|
|||
UBS
O'Connor LLC F/B/O: O'Connor Global Convertible Arbitrage II Master
Limited
|
13,440
|
2,352
|
168,000
|
UBS
O'Connor LLC
One
North Wacker Drive, 32nd floor
Chicago,
IL 60614
Attn:
Robert Murray
|
|||
Tocqueville
|
Tocqueville
Fund
|
225,000
|
39,375
|
2,812,500
|
Tocqueville
Asset Management
40
West 57th Street, 19th Floor
New
York, NY 10019
|
||
Tocqueville
Amerique
|
45,000
|
7,875
|
562,500
|
Tocqueville
Asset Management
40
West 57th Street, 19th Floor
New
York, NY 10019
|
|||
Montber
S.A. Income
|
190,000
|
33,250
|
2,375,000
|
Tocqueville
Asset Management
40
West 57th Street, 19th Floor
New
York, NY 10019
|
|||
Thorn
Limited
|
35,000
|
6,125
|
437,500
|
Tocqueville
Asset Management
40
West 57th Street, 19th Floor
New
York, NY 10019
|
|||
Kalunbourg
Limited
|
15,000
|
2,625
|
187,500
|
Tocqueville
Asset Management
40
West 57th Street, 19th Floor
New
York, NY 10019
|
|||
Highbridge
|
Highbridge
International LLC, by: Highbridge Capital Management LLC, its trading
manager
|
500,000
|
87,500
|
6,250,000
|
Bear
Stearms
1
Metrotech Center, 20th Floor
Brooklyn,
NY 11201
212-272-3915
Attn:
Elanna Bradley
|
B-74
Ardsley
|
Ardsley
Partners Fund II, LP
|
126,500
|
22,138
|
1,581,250
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
||
Ardsley
Partners Institutional Fund, LP
|
81,800
|
14,315
|
1,022,500
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
Ardsley
Partners Renewable Energy Fund, LP
|
68,300
|
11,953
|
853,750
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
Ardsley
Offshore Fund, Ltd
|
88,500
|
15,488
|
1,106,250
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
Ardsley
Renewable Energy Offshore Fund, Ltd
|
116,100
|
20,318
|
1,451,250
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
Marion
Lynton
|
3,200
|
560
|
40,000
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
HFR
HE Ardsley Master Trust
|
15,600
|
2,730
|
195,000
|
262
Harbor Drive, 4th floor
Stamford,
CT 06902
|
|||
Hudson
Bay
|
Hudson
Bay Overseas Fund Ltd
|
545,600
|
95,480
|
6,820,000
|
120
Broadway, 40th floorNew York, NY 10271
|
||
Hudson
Bay Fund LP
|
334,400
|
58,520
|
4,180,000
|
120
Broadway, 40th floor
New
York, NY 10271
|
|||
Ramius
|
Portside
Growth & Opportunity Fund
|
480,000
|
84,000
|
6,000,000
|
David
Larrauri
Account
Manager
Prime
Brokerage
Global
Equity Finance
CITIGROUP
GLOBAL MARKETS INC.
390
Greenwich Street, 3rd floor
New
York, NY 10013
Tel
212-723-5902
|
||
Empire
|
Empire
Capital Partners, Ltd
|
155,400
|
27,195
|
1,942,500
|
Empire
Capital Management, LLC
One
Gorham Island, Suite 201
Westport,
CT 06880
203-454-1019
|
||
Empire
Capital Partners, Lp
|
144,600
|
25,305
|
1,807,500
|
Empire
Capital Management, LLC
One
Gorham Island, Suite 201
Westport,
CT 06880
203-454-1019
|
|||
Heights
|
Capital
Ventures International
|
300,000
|
52,500
|
3,750,000
|
Heights
Capital Management
101
California Street, Suite 3250
San
Francisco, CA 94111
|
||
Iroquois
|
Iroquois
Master Fund Ltd.
|
300,000
|
52,500
|
3,750,000
|
641
Lexinton Avenue, 35th floor
New
York, NY 10022
|
||
Kingdon
|
Kingdon
Associates
|
72,600
|
12,705
|
907,500
|
152
West 57th Street, 50th Floor
New
York, Ny 10019
|
||
M.
Kingdon Offshore Ltd.
|
217,350
|
38,036
|
2,716,875
|
152
West 57th Street, 50th Floor
New
York, Ny 10019
|
|||
Kingdon
Family Partnership, L.P.
|
10,050
|
1,759
|
125,625
|
152
West 57th Street, 50th Floor
New
York, Ny 10019
|
|||
Interlachen
|
Investcorp
Interlachen Multi-Strategy Master Fund Limited
|
200,000
|
35,000
|
2,500,000
|
Interlachen
Capital Group LP
800
Nicolet Mall, Suite 2500
Minneapolis,
MN 55402
|
B-75
CD
Capital
|
Carpe
Diem Capital Management LLC, c/o Goldman Sachs & Co
|
160,000
|
28,000
|
2,000,000
|
Purchaser:
Carpe
Diem Capital Management LLC
111
South Wacker Drive, Suite 3950
Chicago,
IL 60606
Tel
:312-803-5010
Goldman,
Sachs & Co
One
New York Plaza, 48th Floor
New
York, NY 10004
Tel:
212-357-7172
Fax:
212-428-5806
|
||
Gruber
|
Lagunitas
Partners LP
|
97,000
|
16,975
|
1,212,500
|
Gruber
& McBaine Capital Management
50
Osgood Place, PH
San
Francisco, CA 94133
|
||
Gruber
& McBaine International
|
7,000
|
1,225
|
87,500
|
Gruber
& McBaine Capital Management
50
Osgood Place, PH
San
Francisco, CA 94133
|
|||
Jon
D & Linda W Gruber Trust
|
56,000
|
9,800
|
700,000
|
Gruber
& McBaine Capital Management
50
Osgood Place, PH
San
Francisco, CA 94133
|
|||
Cara
Castle
|
Cara
Castle Partners
|
88,000
|
15,400
|
1,100,000
|
14
The Ridge
Plandome,
NY 11030
|
||
MM
Capital
|
MMCAP
Int'l Inc SPC
|
150,000
|
26,250
|
1,875,000
|
MMCAP
Int'l Inc SPC
90
Fort St, Box 32021
Grand
Cayman
Cayman
Islands
|
||
Cranshire
|
Cranshire
Capital, L.P.
|
120,000
|
21,000
|
1,500,000
|
3100
Dundee Road, Suite 703
NorthBreek,
IL
|
||
Enable
|
Enable
Growth Partners
|
100,000
|
17,500
|
1,250,000
|
One
Ferry Building, Suite 255
San
Francisco, CA 94111
|
||
Crestview
|
Crestview
Capital Master, LLC
By:
Crestview Capital Partners, LLC, its Sole Manager
|
100,000
|
17,500
|
1,250,000
|
95
Revere Drive, Suite A
Northbrook,
IL 60062
|
||
Rock Hill Investment
Management, LP
|
RHP
Master Fund, Ltd.
|
100,000
|
17,500
|
1,250,000
|
c/o
Rock Hill Investment Management, LP
Three
Bala Plaza - East, Suite 585
Bala
Cynwyd, PA 19004
|
B-76
ANNEX II
FORM OF
EXERCISE NOTICE
(To be
executed by the Holder to exercise the right to purchase shares of Common Stock
under the foregoing Warrant)
To: EMCORE
Corporation
The
undersigned is the Holder of Warrant No. _______ (the “Warrant”) issued by EMCORE
Corporation, a New Jersey corporation (the “Company”). Capitalized
terms used herein and not otherwise defined have the respective meanings set
forth in the Warrant.
(1) The
Warrant is currently exercisable to purchase a total of ______________ Warrant
Shares.
(2) The
undersigned Holder hereby exercises its right to purchase _________________
Warrant Shares pursuant to the Warrant.
(3) The
Holder intends that payment of the Exercise Price shall be made as (check
one):
____
|
“Cash
Exercise” under Section 10
|
____
|
“Cashless
Exercise” under Section 10
|
(4) If
the holder has elected a Cash Exercise, the holder shall pay the sum of
$____________ to the Company in accordance with the terms of the
Warrant.
(5) Pursuant
to this exercise, the Company shall deliver to the holder _______________
Warrant Shares in accordance with the terms of the Warrant.
(6) Following
this exercise, the Warrant shall be exercisable to purchase a total of
______________ Warrant Shares.
Dated: ,
|
Name
of Holder:
|
||
(Print)
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
(Signature
must conform in all respects to name of holder as specified on the face of
the Warrant)
|
|||
ACKNOWLEDGED
AND AGREED TO
|
|||
this
___ day of ___________, 200_
|
|||
EMCORE
CORPORATION
|
|||
By:
|
|||
Name:
|
|||
Title:
|
B-77
ANNEX
III
FORM OF
NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT
[COMPANY
TRANSFER AGENT]
[ADDRESS]
Attention: [_________],
Account Representative
Re: EMCORE
Corporation
Ladies
and Gentlemen:
We are
counsel to EMCORE Corporation, a New Jersey corporation (the “Company”), and have
represented the Company in connection with that certain Securities Purchase
Agreement, dated as of January __, 2008 (the “Securities Purchase
Agreement”), entered into by and among the Company and the buyers named
therein (collectively, the “Purchasers”) pursuant to which
the Company issued to the Purchasers shares of Common Stock of the Company, no
par value (the “Common
Shares”) and Warrants (the “Warrants”), which are
exercisable into shares of Common Stock (the “Warrant
Shares”). Pursuant to the Securities Purchase Agreement, the
Company agreed to register the resale of the Common Shares and the Warrant
Shares (collectively, the “Registrable Securities”) under
the Securities Act of 1933, as amended (the “Securities Act”). In
connection with the Company’s obligations under the Securities Purchase
Agreement, on
, 2008, the Company filed a Registration Statement on Form S-3 (File
No. 333-
) (the “Registration
Statement”) with the Securities and Exchange Commission (the “Commission”) relating to the
Registrable Securities which names each of the Purchasers as a selling
shareholder thereunder.
In
connection with the foregoing, we advise you that a member of the SEC’s staff
has advised us by telephone that the SEC has entered an order declaring the
Registration Statement effective under the Securities Act at [a.m.][p.m.]
on
, 2008, and we have no knowledge, after telephonic inquiry of a member of the
staff, that any stop order suspending its effectiveness has been issued or that
any proceedings for that purpose are pending before, or threatened by, the
Commission and the Registrable Securities are available for resale under the
Securities Act pursuant to the Registration Statement.
This
letter shall serve as our standing notice to you that the Common Shares and the
Warrant Shares may be freely transferred by the Purchasers pursuant to the
Registration Statement so long as the Holders certify they will comply with the
plan of distribution description in connection with sales or transfers of the
Common Shares and the Warrant Shares set forth in the Registration Statement and
with the prospectus delivery requirements of the Securities Act, to the extent
such delivery requirement are applicable. You need not require further letters
from us to effect any future legend-free issuance or reissuance of shares of the
Common Shares and the Warrant Shares to the Purchasers or the transferees of the
Purchasers, as the case may be, as contemplated by the Company’s Irrevocable
Transfer Agent Instructions dated
, 2008.
B-78
Schedule 3.1(f)
CAPITALIZATION
As of
February 14, 2008.
Preferred Stock, $0.0001
par: 5,882,000 shares authorized, no shares
outstanding.
Common Stock, no par
value: 100,000,000 shares authorized, 64,321,018 shares issued
and 64,460,503 shares outstanding.
Options: 5,314,414
outstanding; 3,759,653 vested and expected to vest; 2,324,953
exercisable.
Convertible Subordinated
Notes: $1,669,000 outstanding.
B-79
Schedule 3.1(g)
SEC
REPORTS
1.
|
Annual
Report on Form 10-K for the fiscal year ended September 30,
2006.
|
2.
|
Quarterly
Report on Form 10-Q for the quarterly period ended December 31,
2006.
|
3.
|
Quarterly
Report on Form 10-Q for the quarterly period ended March 31,
2007.
|
4.
|
Quarterly
Report on Form 10-Q for the quarterly period ended June 30,
2007.
|
B-80
Schedule 3.1(h)
MATERIAL
CHANGES
None.
B-81
Schedule 3.1(n)
LISTING AND MAINTENANCE
REQUIREMENTS
1.
|
NASDAQ
Staff Determination letter dated December 18, 2006 regarding failure to
file annual report on Form 10-K for the fiscal year ended September 30,
2006.
|
2.
|
NASDAQ
Staff Determination letter dated February 13, 2007, regarding failure to
comply with NASDAQ Marketplace Rule 4310(c)(14) for failure to file
quarterly report on Form 10-Q for the quarterly period ended December 31,
2006. Similar NASDAQ Staff Determination letters were received
for failure to file quarterly reports on Form 10-Q for the quarterly
periods ended March 31, 2007 and June 30,
2007.
|
3.
|
NASDAQ
Staff Determination letter dated October 2, 2007 regarding failure to
comply with NASDAQ Marketplace Rules 4350(e) and 4350(g) because the
Company did not hold an annual meeting of stockholders within twelve
months after the Company’s fiscal year
end.
|
4.
|
Letter
from NASDAQ Listing and Hearing Review Council dated October 5, 2007
allowing the Company until December 4, 2007 to demonstrate compliance with
all of the listing requirements of the NASDAQ Global Market
System.
|
5.
|
Letter
from NASDAQ Listing Qualifications Panel dated December 12, 2007
stating it had determined that the Company has complied with all continued
listing standards for listing on the NASDAQ Global
Market.
|
B-82
Exhibit
C
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
(I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT, OR (B) AN OPINION OF COUNSEL, IN A GENERALLY
ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT AND APPLICABLE
STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A
UNDER SAID ACT. THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A
BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A
FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)
UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
EMCORE
CORPORATION
WARRANT TO PURCHASE COMMON
STOCK
To Purchase [_______] Shares of
Common Stock
Date of
Issuance: February 19, 2008
VOID AFTER FEBRUARY 15,
2013
THIS
CERTIFIES THAT, for value received, [_________], or permitted registered assigns
(the “Holder”), is
entitled to subscribe for and purchase at the Exercise Price (defined below)
from Emcore Corporation, a New Jersey corporation (the “Company”) up to [_____] shares
of the Common Stock (as defined in Section 1 below), as
adjusted pursuant to the terms hereof. This warrant (the “Warrant”) is one of a series
of warrants issued by the Company as of the date hereof (collectively, the
“Company Warrants”)
pursuant to that certain Stock Purchase Agreement between the Company and the
Holder, dated as of February 15, 2008 (the “Stock Purchase
Agreement”).
1. DEFINITIONS. Capitalized
terms used herein but not otherwise defined herein shall have their respective
meanings as set forth in the Stock Purchase Agreement. As used
herein, the following terms shall have the following respective
meanings:
“Black Scholes Value” means the
value of this Warrant based on the Black and Scholes Option Pricing Model
obtained from the “OV” function on Bloomberg determined as of the day
immediately following the public announcement of the applicable Fundamental
Transaction and reflecting (i) a risk-free interest rate corresponding to the
U.S. Treasury rate for a period equal to the remaining term of this Warrant as
of such date of request and (ii) an expected volatility equal to the lesser of
50% and the 100 day volatility obtained from the HVT function on
Bloomberg.
“Bloomberg” means Bloomberg
Financial Markets.
“Business Day” means any day
other than Saturday, Sunday or other day on which commercial banks in The City
of New York are authorized or required by law to remain closed.
“Cash Percentage” means, in a
Partial Cash Transaction, the percentage of the fair market value (determined in
the manner described in the definition of “Closing Bid Price”) of the
consideration for which this Warrant is exercisable immediately following such
Partial Cash Transaction that is comprised of property (including cash) other
than the publicly traded Common Stock of such Successor Entity.
“Closing Bid Price” and “Closing Sale Price” means, for
any security as of any date, the last closing bid price and last closing trade
price, respectively, for such security on The Nasdaq Global Market (the “Principal Market”), as
reported by Bloomberg, or, if the Principal Market begins to operate on an
extended hours basis and does not designate the closing bid price or the closing
trade price, as the case may be, then the last bid price or last trade price,
respectively, of such security prior to 4:00:00 p.m., New York Time, as reported
by Bloomberg, or, if the Principal Market is not the principal securities
exchange or trading market for such security, the last closing bid price or last
trade price, respectively, of such security on the principal securities exchange
or trading market where such security is listed or traded as reported by
Bloomberg, or if the foregoing do not apply, the last closing bid price or last
trade price, respectively, of such security in the over-the-counter market on
the electronic bulletin board for such security as reported by Bloomberg, or, if
no closing bid price or last trade price, respectively, is reported for such
security by Bloomberg, the average of the bid prices, or the ask prices,
respectively, of any market makers for such security as reported in the “pink
sheets” by Pink Sheets LLC (formerly the National Quotation Bureau,
Inc.). If the Closing Bid Price or the Closing Sale Price cannot be
calculated for a security on a particular date on any of the foregoing bases,
the Closing Bid Price or the Closing Sale Price, as the case may be, of such
security on such date shall be the fair market value as mutually determined by
the Company and the Holder. If the Company and the Holder are unable
to agree upon the fair market value of such security, then such dispute shall be
resolved pursuant to Section
12. All such determinations shall be appropriately adjusted
for any stock dividend, stock split, stock combination or other similar
transaction during the applicable calculation period.
“Common Stock” means
(i) the Company’s shares of Common Stock, no par value per share, and
(ii) any share capital into which such Common Stock shall have been changed
or any share capital resulting from a reclassification of such Common
Stock.
“Eligible Market” means The New
York Stock Exchange, Inc., The NASDAQ Global Market, The NASDAQ Capital Market,
The American Stock Exchange, or The NASDAQ Global Select Market.
C-1
“Equity Conditions”
means: (i) on each day during the period beginning sixty (60) days
prior to the applicable date of determination and ending on and including the
applicable date of determination (the “Equity Conditions Measuring
Period”), all shares of Common Stock issued and issuable upon exercise of
the Warrants shall be eligible for sale pursuant to Rule 144 without restriction
or limitation including without the requirement to be subject to Rule 144(c)(1)
and without the need for registration under any applicable federal or state
securities laws; (ii) on each day during the Equity Conditions Measuring Period,
the Common Stock are designated for quotation on an Eligible Market and shall
not have been suspended from trading on such Eligible Market (other than
suspensions of not more than two (2) days and occurring prior to the applicable
date of determination due to business announcements by the Company) nor shall
proceedings for such delisting or suspension by such Eligible Market have been
commenced, threatened or pending either (A) in writing by such Eligible Market
or (B) by falling below the minimum listing maintenance requirements of such
Eligible Market; (iii) on each day during the Equity Conditions Measuring
Period, the Company shall have delivered Common Stock upon any exercise of the
Warrants to the Holders on a timely basis as set forth in Section 2 hereof;
(iv) any applicable Common Stock to be issued in connection with the event
requiring determination may be issued in full without violating the rules or
regulations of the applicable Eligible Market; (v) during the Equity Conditions
Measuring Period, the Company shall not have failed to timely make any payments
within five (5) Business Days of when such payment is due pursuant to any
Transaction Document (as defined in the Stock Purchase Agreement); (vi) during
the period beginning thirty (30) days prior to the applicable date of
determination and ending on and including the applicable date of determination,
there shall not have occurred the public announcement of a pending, proposed or
intended Fundamental Transaction which has not been abandoned, terminated or
consummated; (vii) the Company shall have no knowledge of any fact that would
cause all shares of Common Stock issued and issuable upon exercise of the
Warrants not to be eligible for sale pursuant to Rule 144 without restriction or
limitation including without the requirement to be subject to Rule 144(c)(1) and
without the need for registration under any applicable federal or state
securities laws; and (viii) during the Equity Conditions Measuring Period, the
Company otherwise shall have been in compliance with and shall not have breached
any provision, covenant, representation or warranty of any Transaction
Document.
“Equity Conditions Failure”
means that during the period commencing on the first Trading Day of the Optional
Exercise Measuring Period through the Optional Exercise Date, the Equity
Conditions have not been satisfied.
“Exercise Period” shall mean
the period commencing with the date hereof and ending on the Initial Termination
Date, unless terminated earlier pursuant to Section 2.6
hereof.
“Exercise Price” shall mean
$15.06 per share, subject to adjustment pursuant to Section 4
below.
“Exercise Shares” shall mean
the shares of Common Stock issuable upon exercise of this Warrant.
"Fundamental Transaction" means
that the Company shall directly or indirectly, in one or more related
transactions, (i) consolidate or merge with or into (whether or not the Company
is the surviving corporation) another Person, or (ii) sell, assign, transfer,
convey or otherwise dispose of all or substantially all of the properties or
assets of the Company to another Person, or (iii) allow another Person to make a
purchase, tender or exchange offer that is accepted by the holders of more than
the 50% of either the outstanding shares of Common Stock (not including any
shares of Common Stock held by the Person or Persons making or party to, or
associated or affiliated with the Persons making or party to, such purchase,
tender or exchange offer), or (iv) consummate a stock purchase agreement or
other business combination (including, without limitation, a reorganization,
recapitalization, spin-off or scheme of arrangement) with another Person whereby
such other Person acquires more than the 50% of the outstanding shares of Common
Stock (not including any shares of Common Stock held by the other Person or
other Persons making or party to, or associated or affiliated with the other
Persons making or party to, such stock purchase agreement or other business
combination), or (v) reorganize, recapitalize or reclassify its Common Stock, or
(vi) any "person" or "group" (as these terms are used for purposes of Sections
13(d) and 14(d) of the Exchange Act), become the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% of the
aggregate ordinary voting power represented by issued and outstanding Common
Stock. For the avoidance of doubt, and notwithstanding the foregoing,
the term “Fundamental Transaction” shall not include any Spin Off.
“Initial Termination Date”
shall mean 5:00 P.M. New York City time on February 15, 2013.
“Public Stock Transaction”
means a Fundamental Transaction in which (i) a Successor Entity that is a
publicly traded corporation whose stock is quoted or listed for trading on an
Eligible Market assumes this Warrant such that the Warrant shall be exercisable
for the publicly traded Common Stock of such Successor Entity, or (ii) a
Successor Entity that is a publicly traded corporation whose stock is quoted or
listed for trading on an Eligible Market assumes this Warrant such that the
Warrant shall be exercisable for consideration of which at least 90% of the fair
market value (determined in the manner described in the definition of “Closing
Bid Price”) is comprised of the publicly traded Common Stock of such Successor
Entity (any transaction described in this clause (ii), a “Partial Cash
Transaction”).
“Spin Off” means (i) the
contribution or transfer of assets by the Company to an affiliated entity in
anticipation of a distribution to the Company’s stockholders of shares or assets
such affiliated entity, (ii) any distribution referred to in clause (i) of this
definition, or (iii) any other transaction, however structured, which results in
one or more of the lines of business or divisions of the Company being
transferred to another entity which, immediately following such transaction or a
related distribution, is owned by the same stockholders as the Company, provided, that in the
case of any such transaction referred to in clause (i), (ii) or (iii), the
holders of the Company Warrants would receive an adjustment pursuant to Section 4 on account
of the property distributed or otherwise transferred to the Company’s
stockholders in such transaction.
"Successor Entity" means the
Person formed by, resulting from or surviving any Fundamental Transaction or the
Person with which such Fundamental Transaction shall have been entered
into.
“Trading Day” shall mean (a)
any day on which the Common Stock is listed or quoted and traded on its primary
trading market, (b) if the Common Stock is not then listed or quoted and traded
on any Eligible Market, then a day on which trading occurs on the OTC Bulletin
Board (or any successor thereto), or (c) if trading does not occur on the OTC
Bulletin Board (or any successor thereto), any Business Day.
C-2
“Weighted Average Price” means,
for any security as of any date, the dollar volume-weighted average price for
such security on the Principal Market during the period beginning at 9:30:01
a.m., New York Time (or such other time as the Principal Market publicly
announces is the official open of trading), and ending at 4:00:00 p.m., New York
Time (or such other time as the Principal Market publicly announces is the
official close of trading) as reported by Bloomberg through its “Volume at
Price” functions, or, if the foregoing does not apply, the dollar
volume-weighted average price of such security in the over-the-counter market on
the electronic bulletin board for such security during the period beginning at
9:30:01 a.m., New York Time (or such other time as such market publicly
announces is the official open of trading), and ending at 4:00:00 p.m., New York
Time (or such other time as such market publicly announces is the official close
of trading) as reported by Bloomberg, or, if no dollar volume-weighted average
price is reported for such security by Bloomberg for such hours, the average of
the highest closing bid price and the lowest closing ask price of any of the
market makers for such security as reported in the “pink sheets” by Pink Sheets
LLC (formerly the National Quotation Bureau, Inc.). If the Weighted
Average Price cannot be calculated for a security on a particular date on any of
the foregoing bases, the Weighted Average Price of such security on such date
shall be the fair market value as mutually determined by the Company and the
Holder. If the Company and the Holder are unable to agree upon the
fair market value of such security, then such dispute shall be resolved pursuant
to Section 12. All such determinations are to be appropriately
adjusted for any stock dividend, stock split, stock combination or other similar
transaction during the applicable calculation period.
2. EXERCISE OF
WARRANT.
2.1 General. The
rights represented by this Warrant may be exercised in whole or in part at any
time during the Exercise Period, by delivery of the following to the Company at
its address set forth on the signature page hereto (or at such other address as
it may designate by notice in writing to the Holder):
(A) an
executed Notice of Exercise in the form attached hereto; and
(B) payment
of the Exercise Price either (i) in cash or by check, (ii) cancellation of
indebtedness or (iii) pursuant to a cashless exercise as set forth in Section 2.1
below.
The
Holder shall not be required to deliver the original Warrant in order to effect
an exercise hereunder unless such exercise is an exercise of the Warrant in
full. Execution and delivery of the Notice of Exercise shall have the
same effect as cancellation of the original Warrant and issuance of a new
Warrant evidencing the right to purchase the remaining number of Exercise
Shares, if any.
The
Company shall (i) provided that the Company’s transfer agent (the “Transfer Agent”) is
participating in The Depository Trust Company (“DTC”) Fast Automated
Securities Transfer Program, upon the request of the Holder, credit such
aggregate number of shares of Common Stock to which the Holder is entitled
pursuant to such exercise to the Holder’s or its designee’s balance account with
DTC through its Deposit Withdrawal Agent Commission system, or (ii) if the
Transfer Agent is not participating in the DTC Fast Automated Securities
Transfer Program, issue and dispatch by overnight courier to the address
specified by the Holder in the Notice of Exercise, a certificate, registered in
the Company’s share register in the name of the Holder or its designee, for the
number of shares of Common Stock to which the Holder is entitled pursuant to
such exercise within three (3) Business Days from the delivery to the Company of
(A) the Notice of Exercise and (B) payment of the aggregate Exercise Price as
set forth above or cash exercise pursuant to Section
2.2. This Warrant shall be deemed to have been exercised on
the date the Exercise Delivery Documents (as defined below) are received by the
Company (any such date, the “Exercise Date”). On
or before the first (1st) Business Day following the date on which the Company
has received each of the Notice of Exercise and payment of the aggregate
Exercise Price as set forth above or cashless exercise pursuant to Section 2.2) (the
“Exercise Delivery
Documents”), the Company shall transmit by facsimile an acknowledgment of
confirmation of receipt of the Exercise Delivery Documents to the Holder and the
Transfer Agent. The Exercise Shares shall be deemed to have been
issued, and the Holder or any other person so designated to be named therein
shall be deemed to have become a holder of record of such shares for all
purposes, as of the Exercise Date.
The
person in whose name any certificate or certificates for Exercise Shares are to
be issued upon exercise of this Warrant shall be deemed to have become the
holder of record of such shares on the Exercise Date, irrespective of the date
of delivery of such certificate or certificates, except that, if the Exercise
Date is a date when the stock transfer books of the Company are closed, such
person shall be deemed to have become the holder of such shares at the close of
business on the next succeeding date on which the stock transfer books are
open.
To the
extent permitted by law, the Company’s obligations to issue and deliver Exercise
Shares in accordance with the terms hereof are absolute and unconditional,
irrespective of any action or inaction by the Holder to enforce the same, any
waiver or consent with respect to any provision hereof, the recovery of any
judgment against any person or entity or any action to enforce the same, or any
setoff, counterclaim, recoupment, limitation or termination, or any breach or
alleged breach by the Holder or any other person or entity of any obligation to
the Company or any violation or alleged violation of law by the Holder or any
other person or entity, and irrespective of any other circumstance which might
otherwise limit such obligation of the Company to the Holder in connection with
the issuance of Exercise Shares. Nothing herein shall limit a
Holder’s right to pursue any other remedies available to it hereunder, at law or
in equity including, without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company’s failure to timely deliver
certificates representing shares of Common Stock upon exercise of this Warrant
as required pursuant to the terms hereof.
C-3
2.2 NET
EXERCISE. In lieu of exercising this Warrant by payment of
cash or by check, or by cancellation of indebtedness, the Holder may, in its
sole discretion, elect to receive shares equal to the value (as determined
below) of this Warrant (or the portion thereof being canceled) by delivery of
the Exercise Delivery Documents in which event the Company shall issue to the
Holder a number of shares of Common Stock computed using the following
formula:
X =
|
Y
(A-B)
A
|
Where X
= the
number of shares of Common Stock to be issued to the Holder
|
Y
=
|
the
number of shares of Common Stock purchasable under this Warrant or, if
only a portion of this Warrant is being exercised, the portion of this
Warrant being canceled (at the date of such
calculation)
|
|
A
=
|
the
Weighted Average Price of one share of the Common Stock for the ten (10
consecutive Trading Days ending on the date immediately preceding the
Exercise Date
|
|
B
=
|
the
Exercise Price then in effect for the applicable Exercise Shares at the
time of such exercise
|
2.3 ISSUANCE OF NEW
WARRANTS. If this Warrant is surrendered in connection with
any partial exercise of this Warrant, the Company, at its expense, will
forthwith and, in any event within three (3) Business Days, issue and deliver to
the Holder a new warrant or warrants of like tenor, registered in the name of
the Holder, exercisable, in the aggregate, for the balance of the number of
shares of Common Stock remaining available for purchase under this
Warrant.
2.4 PAYMENT OF TAXES AND
EXPENSES. The Company shall pay any recording, filing, stamp
or similar tax which may be payable in respect of any issuance and delivery of,
and the preparation and delivery of certificates (if applicable) representing,
(i) any Exercise Shares purchased upon exercise of this Warrant and/or (ii) new
or replacement warrants in the Holder’s name or the name of any transferee of
all or any portion of this Warrant, provided that the Holder shall pay any
transfer tax in connection with any transfer of all or any portion of this
Warrant or such Exercise Shares to any transferee.
2.5 EXERCISE LIMITATIONS;
HOLDER’S RESTRICTIONS. The Company shall not effect the
exercise of this Warrant and the Holder shall not have the right to exercise any
portion of this Warrant, pursuant to Section 2 or
otherwise, to the extent that after giving effect to such issuance after
exercise, such Holder (together with such Holder’s affiliates), as set forth on
the applicable Notice of Exercise, would beneficially own in excess of 4.99%
(the “Maximum Percentage”) of the number of shares of the Common Stock
outstanding immediately after giving effect to such exercise. For
purposes of the foregoing sentence, the number of shares of Common Stock
beneficially owned by such Holder and its affiliates shall include the number of
shares of Common Stock issuable upon exercise of this Warrant with respect to
which the determination of such sentence is being made, but shall exclude the
number of shares of Common Stock which would be issuable upon (A) exercise of
the remaining, nonexercised portion of this Warrant beneficially owned by such
Holder or any of its affiliates and (B) exercise or conversion of the
unexercised or nonconverted portion of any other securities of the Company
(including, without limitation, any other shares of Common Stock or Warrants)
subject to a limitation on conversion or exercise analogous to the limitation
contained herein. Except as set forth in the preceding sentence, for
purposes of this Section 2.4,
beneficial ownership shall be calculated in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), it being
acknowledged by the Holder that the Company is not representing to such Holder
that such calculation is in compliance with Section 13(d) of the Exchange Act
and such Holder is solely responsible for any schedules required to be filed in
accordance therewith. To the extent that the limitation contained in
this Section
2.4 applies, the determination of whether this Warrant is exercisable (in
relation to other securities owned by such Holder) and of which a portion of
this Warrant is exercisable shall be in the sole discretion of a Holder, and the
submission of a Notice of Exercise shall be deemed to be the
Holder’s determination of whether this Warrant is exercisable (in
relation to other securities owned by such Holder) and of which portion of this
Warrant is exercisable, in each case subject to such aggregate percentage
limitation, and the Company shall have no obligation to verify or confirm the
accuracy of such determination. For purposes of this Section 2.4, in
determining the number of outstanding shares of Common Stock, a Holder may rely
on the number of outstanding shares of Common Stock as reflected in (x) the
Company’s most recent Form 10-Q or Form 10-K, as the case may be, (y) a more
recent public announcement by the Company or (z) any other notice by the Company
or the Transfer Agent setting forth the number of shares of Common Stock
outstanding. Upon the written or oral request of the Holder, the
Company shall within two (2) Business Days confirm orally and in writing to such
Holder the number of shares of Common Stock then outstanding. In any
case, the number of outstanding shares of Common Stock shall be determined after
giving effect to the conversion or exercise of securities of the Company,
including this Warrant, by such Holder or its affiliates since the date as of
which such number of outstanding shares of Common Stock was
reported. By written notice to the Company, the Holder may from time
to time increase or decrease the Maximum Percentage to any other percentage not
in excess of 9.99% specified in such notice; provided that (i) any such increase
will not be effective until the sixty-first (61st) day after such
notice is delivered to the Company, and (ii) any such increase or decrease will
apply only to the Holder and not to any other holder of Company
Warrants. The provisions of this paragraph shall be construed and
implemented in a manner otherwise than in strict conformity with the terms of
this Section
2.4 to correct this paragraph (or any portion hereof) which may be
defective or inconsistent with the intended beneficial ownership limitation
herein contained or to make changes or supplements necessary or desirable to
properly give effect to such limitation.
C-4
2.6 CALL
PROVISION. Subject to the provisions of Section 2.5 and this
Section 2.6,
if, at any time after February 19, 2010 (the “Triggering Date”) that (i) the
Closing Sale Price of the Common Stock has exceeded 150% of the Exercise Price
for at least 20 Trading Days within a period of any 30 consecutive Trading Days
after the Triggering Date (the “Call Measuring Period”), (ii)
the arithmetic average of the daily volume of the Common Stock during the Call
Measuring Period (determined by dividing the aggregate volume of trades for each
Trading Day during the Call Measuring Period by 30) exceeds 500,000 shares of
Common Stock and (iii) there has been no Equity Conditions Failure, then the
Company may, within one (1) Trading Day of the end of such Measurement Period,
call for the cancellation of all or any portion of this Warrant for which a
Notice of Exercise has not yet been delivered (such right, a “Call”) for consideration equal
to $0.01 per Exercise Share. To exercise this right, the Company must
deliver to the Holder an irrevocable written notice (a “Call Notice”), which shall
state (A) the Call Date (as defined below) and (B) the aggregate number of
Exercise Shares which the Company has elected to be subject to the Call by all
of the holders of the Company Warrants pursuant to this Section 2.6 (and
analogous provisions under the other Company Warrants) on the Call
Date. Notwithstanding the foregoing, nothing in this subsection shall
prevent the Holder from exercising this Warrant, in whole or part, prior to such
Call Date. If the conditions set forth below for such Call are
satisfied from the period from the date of the Call Notice through and including
the Call Date, then any portion of this Warrant subject to such Call Notice for
which a Notice of Exercise shall not have been received by the Call Date will be
cancelled at 5:00 p.m. (New York City time) on the twentieth (20th) Trading Day
after the date the Call Notice is received by the Holder (such date and time,
the “Call
Date”). Any unexercised portion of this Warrant to which the
Call Notice does not pertain will be unaffected by such Call
Notice. In furtherance thereof, the Company covenants and agrees that
it will honor all Notices of Exercise with respect to Exercise Shares subject to
a Call Notice that are tendered through 5:00 p.m. (New York City time) on the
Call Date. The Company agrees that any Notice of Exercise delivered
on or after a Call Notice which calls less than all the Warrants shall first
reduce to zero the number of Exercise Shares subject to such Call Notice prior
to reducing the remaining Exercise Shares available for purchase under this
Warrant. For example, if (x) this Warrant then permits the Holder to
acquire one hundred (100) Exercise Shares, (y) a Call Notice pertains to
seventy-five (75) Exercise Shares, and (z) prior to 5:00 p.m. (New York City
time) on the Call Date the Holder tenders a Notice of Exercise in respect of
fifty (50) Exercise Shares, then (1) on the Call Date the right under this
Warrant to acquire twenty-five (25) Exercise Shares will be automatically
cancelled, (2) the Company, in the time and manner required under this Warrant,
will have issued and delivered to the Holder fifty (50) Exercise Shares in
respect of the exercises following receipt of the Call Notice, and (3) the
Holder may, until the end of the Initial Termination Date, exercise this Warrant
for twenty-five (25) Exercise Shares (subject to adjustment as herein provided
and subject to subsequent Call Notices). Subject again to the
provisions of this Section 2.6, the
Company may deliver subsequent Call Notices for any portion of this Warrant for
which the Holder shall not have delivered a Notice of
Exercise. Notwithstanding anything to the contrary set forth in this
Warrant, the Company may not deliver a Call Notice or require the cancellation
of this Warrant (and any such Call Notice shall be void), unless, from the
beginning of the Call Measurement Period through the Call Date, (i) the Company
shall have honored in accordance with the terms of this Warrant all Notices of
Exercise delivered by 5:00 p.m. (New York City time) on the Call
Date; (ii) there has been no Equity Conditions Failure; (iii) the Common Stock
shall be listed or quoted for trading on an Eligible Market; (iv) there is a
sufficient number of authorized shares of Common Stock for issuance of all
Exercise Shares; and (v) the issuance of the shares shall not cause a breach of
any provision of Section 2.5
herein. The Company’s right to call the Warrants under this Section 2.6 shall be
exercised ratably among all holders of Company Warrants based on each holder’s
initial purchase of Warrants.
2.7 COMPANY’S FAILURE TO TIMELY
DELIVER SECURITIES. If the Company shall fail for any reason
or for no reason to issue to the Holder within three (3) Trading Days of receipt
of the Exercise Delivery Documents, a certificate for the number of shares of
Common Stock to which the Holder is entitled and register such shares of Common
Stock on the Company’s share register or to credit the Holder’s balance account
with DTC for such number of shares of Common Stock to which the Holder is
entitled upon the Holder’s exercise of this Warrant, then, in addition to all
other remedies available to the Holder, the Company shall pay in cash to the
Holder on each day after such third Business Day that the
issuance of such shares of Common Stock is not timely effected an amount equal
to 1.5% of the product of (A) the sum of the number of shares of Common Stock
not issued to the Holder on a timely basis and to which the Holder is entitled
and (B) the Closing Sale Price of the shares of Common Stock on the Trading Day
immediately preceding the last possible date which the Company could have issued
such shares of Common Stock to the Holder without violating Section
2.1. In addition to the foregoing, if within three (3) Trading
Days after the Company’s receipt of the facsimile copy of a Exercise Notice the
Company shall fail to issue and deliver a certificate to the Holder and register
such shares of Common Stock on the Company’s share register or credit the
Holder’s balance account with DTC for the number of shares of Common Stock to
which the Holder is entitled upon the Holder’s exercise hereunder, and if on or
after such Trading Day the Holder purchases (in an open market transaction or
otherwise) shares of Common Stock to deliver in satisfaction of a sale by the
Holder of shares of Common Stock issuable upon such exercise that the Holder
anticipated receiving from the Company (a “Buy-In”), then the Company
shall, within three (3) Business Days after the Holder’s request and in the
Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the
Holder’s total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased (the “Buy-In Price”), at which
point the Company’s obligation to deliver such certificate (and to issue such
Exercise Shares) shall terminate, or (ii) promptly honor its obligation to
deliver to the Holder a certificate or certificates representing such Exercise
Shares and pay cash to the Holder in an amount equal to the excess (if any) of
the Buy-In Price over the product of (A) such number of shares of Common Stock,
times (B) the Closing Bid Price on the date of exercise.
3. COVENANTS OF THE
COMPANY.
3.1 COVENANTS AS TO EXERCISE
SHARES. The Company covenants and agrees that all Exercise
Shares that may be issued upon the exercise of the rights represented by this
Warrant will, upon issuance, be validly issued and outstanding, fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the
issuance thereof. The Company further covenants and agrees that the
Company will at all times during the Exercise Period, have authorized and
reserved, free from preemptive rights, a sufficient number of shares of Common
Stock to provide for the exercise of the rights represented by the Company
Warrants. If at any time during the Exercise Period the number of
authorized but unissued shares of Common Stock shall not be sufficient to permit
exercise of all of the Company Warrants (an “Authorized Share Failure”),
the Company will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such
purposes. Without limiting the generality of the foregoing sentence,
as soon as practicable after the date of the occurrence of an Authorized Share
Failure, but in no event later than sixty (60) days after the occurrence of such
Authorized Share Failure, the Company shall hold a meeting of its stockholders
for the approval of an increase in the number of authorized shares of Common
Stock. In connection with such meeting, the Company shall provide
each stockholder with a proxy statement and shall use its best efforts to
solicit its stockholders' approval of such increase in authorized shares of
Common Stock and to cause its board of directors to recommend to the
stockholders that they approve such proposal.
3.2 NO
IMPAIRMENT. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may be necessary or appropriate
in order to protect the exercise rights of the Holder against
impairment. Without limiting the generality of the foregoing, the
Company (i) shall not increase the par value of any shares of Common Stock
receivable upon the exercise of this Warrant above the Exercise Price then in
effect, (ii) shall take all such actions as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock upon the exercise of this Warrant, and
(iii) shall, so long as any of the Company Warrants are outstanding, take all
action necessary to reserve and keep available out of its authorized and
unissued shares of Common Stock, solely for the purpose of effecting the
exercise of the Company Warrants, 100% of the number of shares of Common Stock
as shall from time to time be necessary to effect the exercise of the Company
Warrants then outstanding (without regard to any limitations on
exercise).
C-5
3.3 NOTICES OF RECORD DATE AND
CERTAIN OTHER EVENTS. In the event of any taking by the
Company of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend or
other distribution, the Company shall mail to the Holder, at least ten (10) days
prior to the date on which any such record is to be taken for the purpose of
such dividend or distribution, a notice specifying such date. In the
event of any voluntary dissolution, liquidation or winding up of the Company,
the Company shall mail to the Holder, at least ten (10) days prior to the date
of the occurrence of any such event, a notice specifying such
date. In the event the Company authorizes or approves, enters into
any agreement contemplating, or solicits stockholder approval for any
Fundamental Transaction the Company shall mail to the Holder, at least ten (10)
days prior to the date of the occurrence of such event, a notice specifying such
date.
4. ADJUSTMENT OF EXERCISE PRICE
AND SHARES.
(A) In the
event of changes in the outstanding Common Stock of the Company by reason of
stock dividends, stock splits, recapitalizations, reclassifications,
combinations or exchanges of shares, reorganizations, liquidations,
consolidation, acquisition of the Company (whether through merger or acquisition
of substantially all the assets or stock of the Company), or the like, the
number, class and type of shares available under this Warrant in the aggregate
and the Exercise Price shall be correspondingly adjusted to give the Holder of
this Warrant, on exercise for the same aggregate Exercise Price, the total
number, class, and type of shares or other property as the Holder would have
owned had this Warrant been exercised prior to the event and had the Holder
continued to hold such shares until the event requiring
adjustment. The form of this Warrant need not be changed because of
any adjustment in the number of Exercise Shares subject to this
Warrant.
(B) If at any
time or from time to time the holders of Common Stock of the Company (or any
shares of stock or other securities at the time receivable upon the exercise of
this Warrant) pursuant to a dividend or distribution declared by the Company
(other than a dividend or distribution covered in Section 4(a) above),
shall have received or become entitled to receive, without payment
therefor,
(I) Common
Stock or any shares of stock or other securities which are at any time directly
or indirectly convertible into or exchangeable for Common Stock, or any rights
or options to subscribe for, purchase or otherwise acquire any of the foregoing
by way of dividend or other distribution; or
(II) any cash
paid or payable, then and in each such case, the Holder hereof will, upon the
exercise of this Warrant, be entitled to receive, in addition to the number of
shares of Common Stock receivable thereupon, and without payment of any
additional consideration therefor, the amount of stock and other securities and
property (including cash in the cases referred to in this clause (II)) which
such Holder would hold on the date of such exercise had such Holder been the
holder of record of such Common Stock as of the date on which holders of Common
Stock received or became entitled to receive such shares or all other additional
stock and other securities and property.
(C) If at any
time or from time to time the holders of Common Stock of the Company (or any
shares of stock or other securities at the time receivable upon the exercise of
this Warrant) pursuant to a dividend or distribution declared by the Company
(other than a dividend or distribution covered in Section 4(A) or 4(B) above), shall
have received or become entitled to receive, without payment therefor, Common
Stock or additional stock or other securities or property (including cash) by
way of spinoff, split-up or similar corporate rearrangement (a “Spin Distribution”), then and
in each such case:
(I) any
Exercise Price in effect immediately prior to the close of business on the
record date fixed for the Spin Distribution shall be reduced, effective as of
the close of business on such record date, to a price determined by multiplying
such Exercise Price by a fraction of which (i) the numerator shall be the
Closing Bid Price of the shares of Common Stock on the Trading Day immediately
preceding the record date minus the value of the Spin Distribution (as
determined in good faith by the Company's Board of Directors) applicable to one
share of Common Stock, and (ii) the denominator shall be the Closing Bid Price
of the shares of Common Stock on the Trading Day on such record date;
and
(II) the
number of Exercise Shares shall be increased to a number of shares equal to the
number of shares of Common Stock obtainable immediately prior to the close of
business on the record date fixed for the determination of holders of shares of
Common Stock entitled to receive the Spin Distribution multiplied by the
reciprocal of the fraction set forth in the immediately preceding paragraph (a);
provided that
in the event that the dividend or distribution is of shares of common stock
("Other Shares of Common
Stock") of a company whose common shares are traded on an Eligible
Market, then the Holder may elect to receive, in lieu of an increase in the
number of Exercise Shares, a warrant to purchase Other Shares of Common Stock
the terms of which shall be identical to those of this Warrant, except that such
warrant shall be exercisable into the number of shares of Other Shares of Common
Stock that would have been payable to the Holder pursuant to the dividend or
distribution had the Holder exercised this Warrant immediately prior to the
record date for such dividend or distribution and with an aggregate exercise
price equal to the product of the amount by which the Exercise Price of this
Warrant was decreased with respect to the dividend or distribution pursuant to
the terms of the immediately preceding paragraph (I) and the number of Exercise
Shares calculated in accordance with the first part of this paragraph
(II).
(D) Upon the
occurrence of each adjustment pursuant to this Section 4, the
Company at its expense will promptly compute such adjustment in accordance with
the terms of this Warrant and prepare a certificate setting forth such
adjustment, including a statement of the adjusted Exercise Price and adjusted
number or type of Exercise Shares or other securities issuable upon exercise of
this Warrant (as applicable), describing the transactions giving rise to such
adjustments and showing in detail the facts upon which such adjustment is
based. The Company will promptly deliver a copy of each such
certificate to the Holder and to the Transfer Agent.
(E) The
Company may at any time during the term of this Warrant reduce the then current
Exercise Price to any amount and for any period of time deemed appropriate by
the Board of Directors of the Company.
5. FRACTIONAL
SHARES. No fractional shares shall be issued upon the exercise
of this Warrant as a consequence of any adjustment pursuant
hereto. All Exercise Shares (including fractions) issuable upon
exercise of this Warrant may be aggregated for purposes of determining whether
the exercise would result in the issuance of any fractional
share. If, after aggregation, the exercise would result in the
issuance of a fractional share, the Company shall, in lieu of issuance of any
fractional share, pay the Holder otherwise entitled to such fraction a sum in
cash equal to the product resulting from multiplying the Weighted Average Price
of an Exercise Share on the Exercise Date by such fraction.
C-6
6. FUNDAMENTAL
TRANSACTIONS.
6.1 Upon any
Fundamental Transaction while this Warrant is outstanding, upon any subsequent
exercise of this Warrant, the Holder shall have the right to receive, for each
Exercise Share that would have been issuable upon such exercise immediately
prior to the occurrence of such Fundamental Transaction, upon exercise of this
Warrant (disregarding any limitation on exercise contained herein solely for the
purpose of such determination), the number of shares of Common Stock of the
Successor Entity, and any additional consideration (the “Alternate Consideration”)
receivable upon or as a result of such reorganization, reclassification, merger,
consolidation or disposition of assets by a Holder of the number of shares of
Common Stock for which this Warrant is exercisable immediately prior to such
event (disregarding any limitation on exercise contained herein solely for the
purpose of such determination). For purposes of any such exercise,
the determination of the Exercise Price shall be appropriately adjusted to apply
to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company shall apportion the Exercise Price among the
Alternate Consideration in a reasonable manner reflecting the relative value of
any different components of the Alternate Consideration. If holders
of Common Stock are given any choice as to the securities, cash or property to
be received in a Fundamental Transaction, then the Holder shall be given the
same choice as to the Alternate Consideration it receives upon any exercise of
this Warrant following such Fundamental Transaction. To the extent
necessary to effectuate the foregoing provisions, any Successor Entity shall
issue to the Holder a new warrant consistent with the foregoing provisions and
evidencing the Holder’s right to exercise such warrant into Alternate
Consideration. The terms of any agreement pursuant to which a
Fundamental Transaction is effected shall include terms requiring any such
successor or surviving entity to comply with the provisions of this Section 6 and
ensuring that this Warrant (or any such replacement security) will be similarly
adjusted upon any subsequent transaction analogous to a Fundamental
Transaction.
6.2 Notwithstanding
the foregoing:
(A) in the
event of any Fundamental Transaction other than a Public Stock Transaction, at
the request of the Holder delivered at any time before the 90th day after such
Fundamental Transaction, the Company (or the Successor Entity) shall purchase
this Warrant from the Holder by paying to the Holder, within five (5) Business
Days after such request (or, if later, on the effective date of the Fundamental
Transaction), cash in an amount equal to the Black Scholes Value of the
remaining unexercised portion of this Warrant on the date of such Fundamental
Transaction; and
(B) in the
event of any Partial Cash Transaction, at the request of the Holder delivered at
any time before the 90th day after such Partial Cash Transaction, the Company
(or the Successor Entity) shall purchase from the Holder a portion of this
Warrant equal to the Cash Percentage by paying to the Holder, within five (5)
Business Days after such request (or, if later, on the effective date of the
Partial Cash Transaction), cash in an amount equal to the Cash Percentage of the
Black Scholes Value of the remaining unexercised portion of this Warrant on the
date of such Partial Cash Transaction.
7. NO STOCKHOLDER
RIGHTS. Other than as provided in Section 3.3 or
otherwise herein, this Warrant in and of itself shall not entitle the Holder to
any voting rights or other rights as a stockholder of the Company. In
addition, nothing contained in this Warrant shall be construed as imposing any
liabilities on the Holder to purchase any securities (upon exercise of this
Warrant or otherwise) or as a stockholder of the Company, whether such
liabilities are asserted by the Company or by creditors of the
Company. Notwithstanding this Section 7, the
Company shall provide the Holder with copies of the same notices and other
information given to the stockholders of the Company generally,
contemporaneously with the giving thereof to the stockholders, unless in each
case such information is publicly available via EDGAR.
8. TRANSFER OF
WARRANT. Subject to applicable laws and the restriction on
transfer set forth in the Stock Purchase Agreement, this Warrant and all rights
hereunder are transferable, by the Holder in person or by duly authorized
attorney, upon delivery of this Warrant and the form of assignment attached
hereto to any transferee designated by Holder. The transferee shall
sign an investment letter in form and substance reasonably satisfactory to the
Company and its counsel.
9. LOST, STOLEN, MUTILATED OR
DESTROYED WARRANT. If this Warrant is lost, stolen, mutilated
or destroyed, the Company may, on such terms as to indemnity or otherwise as it
may reasonably impose (which shall, in the case of a mutilated Warrant, include
the surrender thereof), issue a new Warrant of like denomination and tenor as
this Warrant so lost, stolen, mutilated or destroyed. Any such new Warrant shall
constitute an original contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.
10. NOTICES,
ETC. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the
party to be notified, (b) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next Business
Day, (c) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (d) one day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to
the Company at the address listed on the signature page hereto and to Holder at
the applicable address set forth on the applicable signature page to
the Stock Purchase Agreement or at such other address as the Company or Holder
may designate by ten (10) days advance written notice to the other parties
hereto.
11. ACCEPTANCE. Receipt
of this Warrant by the Holder shall constitute acceptance of and agreement to
all of the terms and conditions contained herein.
12. DISPUTE
RESOLUTION. In the case of a dispute as to the determination
of the Exercise Price with respect to some or all of this Warrant or the
arithmetic calculation of the Exercise Shares, the Company shall submit the
disputed determinations or arithmetic calculations via facsimile within two (2)
Business Days of receipt of the Notice of Exercise giving rise to such dispute,
as the case may be, to the Holder. If the Holder and the Company are
unable to agree upon such determination or calculation of the Exercise Price or
the Exercise Shares within three (3) Business Days of such disputed
determination or arithmetic calculation being submitted to the Holder, then the
Company shall, within two (2) Business Days submit via facsimile the disputed
determination of the Exercise Price to an independent, reputable investment bank
selected by the Company and approved by the Holder. The Company shall
cause at its expense the investment bank or the accountant, as the case may be,
to perform the determinations or calculations and notify the Company and the
Holder of the results no later than ten (10) Business Days from the time it
receives the disputed determinations or calculations. Such investment
bank's or accountant's determination or calculation, as the case may be, shall
be binding upon all parties absent demonstrable error.
C-7
13. GOVERNING
LAW. This Warrant shall be governed by and construed and
enforced in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Warrant 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.
14. REMEDIES, OTHER OBLIGATIONS,
BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this
Warrant shall be cumulative and in addition to all other remedies available
under this Warrant and the other Transaction Documents, at law or in equity
(including a decree of specific performance and/or other injunctive relief), and
nothing herein shall limit the right of the Holder to pursue actual damages for
any failure by the Company to comply with the terms of this Warrant (to the
extent that such actual damages exceed the amount of prior payments hereunder by
the Company in respect of such failure). The Company acknowledges
that a breach by it of its obligations hereunder will cause irreparable harm to
the Holder and that the remedy at law for any such breach may be
inadequate. The Company therefore agrees that, in the event of any
such breach or threatened breach, the holder of this Warrant shall be entitled,
in addition to all other available remedies, to an injunction restraining any
breach, without the necessity of showing economic loss and without any bond or
other security being required.
15. AMENDMENT OR
WAIVER. Any term of this Warrant may be amended or waived
(either generally or in a particular instance and either retroactively or
prospectively) with the written consent of the Company and the
Holder. Any term of all of the Company Warrants may be amended or
waived (either generally or in a particular instance and either retroactively or
prospectively) with the written consent of the Company and holders of Company
Warrants representing at least two-thirds of the number of shares of Common
Stock then subject to outstanding Company Warrants. Notwithstanding
the foregoing, (a) this Warrant may be amended and the observance of any term
hereunder may be waived without the written consent of the Holder only in a
manner which applies to all Company Warrants in the same fashion and (b) the
number of Exercise Shares subject to this Warrant and the Exercise Price of this
Warrant may not be amended, and the right to exercise this Warrant may not be
waived, without the written consent of the Holder. No amendment shall
be effective to the extent that it applies to less than all of the holders of
the Company Warrants then outstanding. No consideration (other than
the reimbursement of legal fees) shall be offered or paid to any Person to amend
or consent to a waiver or modification of any provision of any the Company
Warrants unless the same consideration also is offered to all holders of Company
Warrants. The Company shall give prompt written notice to the Holder
of any amendment hereof or waiver hereunder that was effected without the
Holder’s written consent. No waivers of any term, condition or
provision of this Warrant, in any one or more instances, shall be deemed to be,
or construed as, a further or continuing waiver of any such term, condition or
provision.
16. SEVERABILITY. If
any provision of this Agreement is prohibited by law or otherwise determined to
be invalid or unenforceable by a court of competent jurisdiction, the provision
that would otherwise be prohibited, invalid or unenforceable shall be deemed
amended to apply to the broadest extent that it would be valid and enforceable,
and the invalidity or unenforceability of such provision shall not affect the
validity of the remaining provisions of this Agreement so long as this Agreement
as so modified continues to express, without material change, the original
intentions of the parties as to the subject matter hereof and the prohibited
nature, invalidity or unenforceability of the provision(s) in question does not
substantially impair the respective expectations or reciprocal obligations of
the parties or the practical realization of the benefits that would otherwise be
conferred upon the parties. The parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable provision(s)
with a valid provision(s), the effect of which comes as close as possible to
that of the prohibited, invalid or unenforceable provision(s).
17. COMPLIANCE WITH SECURITIES
LAWS. By acceptance of
this Warrant, the Holder hereby represents, warrants and covenants that any
shares of stock purchased upon exercise of this Warrant shall be acquired not
with a view to, or for sale in connection with, any distribution thereof; that
Holder has had such opportunity as Holder has deemed adequate to obtain from
representatives of the Company such information as is necessary to permit Holder
to evaluate the merits and risks of its investment in the Company; that Holder
is able to bear the economic risk of holding this Warrant or the Exercise Shares
for an indefinite period; that Holder is an “accredited investor” as such term
is defined in Rule 501 of Regulation D promulgated under the Securities Act of
1933, as amended (the “Act”); that Holder understands
that shares of Warrant Stock will not be registered under the Act (unless
otherwise required pursuant to exercise by Holder of the registration rights, if
any, previously granted to Holder) and will be “restricted securities” within
the meaning of Rule 144 promulgated under the Act and that the exemption from
registration under Rule 144 will not be available for at least six months from
the date of exercise of this Warrant, subject to any special treatment by the
SEC for exercise of this Warrant pursuant to Section 2.1; and that
all stock certificates representing Exercise Shares may have affixed thereto a
legend substantially in the following form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
(I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT, OR (B) AN OPINION OF COUNSEL, IN A GENERALLY
ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT AND APPLICABLE
STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A
UNDER SAID ACT. THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A
BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A
FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)
UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
[REMAINDER OF PAGE INTENTIONALLY LEFT
BLANK]
C-8
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly
authorized officer as of February 15, 2008.
EMCORE
CORPORATION
|
By:
|
Name:
Title:
|
1600
Eubank Road SE
Albuquerque,
NM 87123
|
Facsimile
No.:
Telephone
No.:
|
C-9
EXERCISE NOTICE
TO BE EXECUTED BY THE REGISTERED
HOLDER TO EXERCISE THIS
WARRANT TO PURCHASE COMMON
STOCK
|
EMCORE
CORPORATION
|
|
Attn:
[_______________________]
|
|
Fax: [_______________________]
|
The
undersigned holder hereby exercises the right to purchase _________________ of
the shares of Common Stock (“Exercise Shares”) of EMCORE
CORPORATION, a Delaware corporation (the “Company”), evidenced by the
attached Warrant. Capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the
Warrant.
1. Form of Exercise
Price. The Holder intends that payment of the Exercise Price
shall be made as:
|
____________
|
a
“Cash Exercise”
with respect to _________________ Exercise Shares;
and/or
|
|
____________
|
a
“Cashless
Exercise” with respect to _______________ Exercise
Shares.
|
2. Payment of Exercise
Price. In the event that the holder has elected a Cash
Exercise with respect to some or all of the Exercise Shares to be issued
pursuant hereto, the holder shall pay the Aggregate Exercise Price in the sum of
$___________________ to the Company in accordance with the terms of the
Warrant.
3. Representation. The
Holder hereby represents, warrants and covenants that the Exercise Shares are
being acquired not with a view to, or for sale in connection with, any
distribution thereof; that the undersigned is able to bear the economic risk of
holding such Exercise Shares for an indefinite period; that Holder is an
“accredited investor” as such term is defined in Rule 501 of Regulation D
promulgated under the Securities Act of 1933, as amended (the “Act”); that Holder understands
that such shares will not be registered under the Act (except as required
pursuant to the Registration Rights Agreement) and will be “restricted
securities” within the meaning of Rule 144 promulgated under the Act and that
the exemption from registration under Rule 144 will not be available for at
least six months from the date of exercise of this Warrant, subject to any
special treatment by the SEC for exercise of this Warrant pursuant to Section 2.2; and that
all stock certificates representing such shares may have affixed thereto a
legend substantially in the following form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
(I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT, OR (B) AN OPINION OF COUNSEL, IN A GENERALLY
ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT AND APPLICABLE
STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A
UNDER SAID ACT. THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A
BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A
FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)
UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
4. Issuance of
Certificate.
Please issue the certificate for shares
of Common Stock in the name of, and pay any cash for any fractional share
to:
--------------------------------------------------------------------------------
Print or
type name
--------------------------------------------------------------------------------
Social
Security or other Identifying Number
--------------------------------------------------------------------------------
Street
Address
--------------------------------------------------------------------------------
City
State Zip Code
C-10
Please credit the shares of Common
Stock in accordance with the following DWAC instructions, and pay any cash for
any fractional share to the address printed above:
Financial
Institution:
Contact
Person:
Phone:
Fax:
Email:
DTC
#:
If such
number of shares shall not be all the shares purchasable upon the exercise of
the Warrants evidenced by this Warrant, a new warrant certificate for the
balance of such Warrants remaining unexercised shall be registered in the name
of and delivered to:
Please
insert social security or other identifying
number: ----------------------
----------------------------------------------------------------------------------------------------
(Please
print name and address)
----------------------------------------------------------------------------------------------------
Dated:
(Date)
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(Signature)
|
(Print
name)
|
C-11
ACKNOWLEDGMENT
The Company hereby acknowledges this
Exercise Notice and hereby directs American Stock Transfer & Trust Company
to issue the above indicated number of shares of Common Stock in accordance with
the Transfer Agent Instructions dated February [____], 2008 from the Company and
acknowledged and agreed to by American Stock Transfer & Trust
Company.
EMCORE
CORPORATION
By:
Name:
Title:
C-12
ASSIGNMENT FORM
(To
assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to purchase shares.)
FOR VALUE
RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to
Name:
|
|
(Please
Print)
|
|
Address:
|
|
(Please
Print)
|
|
Dated: ___________________,
20___
|
|
Holder’s
Signature:
|
|
Holder’s
Address:
|
NOTE: The
signature to this Assignment Form must correspond with the name as it appears on
the face of the Warrant, without alteration or enlargement or any change
whatever. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.
C-13
Exhibit D
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.
D-1
(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.
D-2
(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.
D-3
(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
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D-4
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. | |
(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.”
|
(iii)
|
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.”
|
(iv)
|
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.
|
(v)
|
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).
|
(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.
D-5
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.
D-6
(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.
D-7
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
D-8
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.
D-9
(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.
* * * * *
*
D-10
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
D-11
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)
|
D-12
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)
|
D-13
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)
|
D-14
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
|
D-15
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
|
D-16
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
|
D-17
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
|
D-18
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
|
D-19
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
|
D-20
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
|
D-21
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
|
D-22
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
|
D-23
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
|
D-24
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
|
D-25
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
|
D-26
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
|
D-27
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
|
D-28
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
|
D-29
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
|
D-30
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
|
D-31
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
|
D-32
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
|
D-33
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
|
D-34
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
|
D-35
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)
|
D-36
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)
|
D-37
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
|
D-38
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
|
D-39
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
|
D-40
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
|
D-41
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
|
D-42
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
|
D-43
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
|
D-44
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
|
D-45
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
|
D-46
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
|
D-47
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
|
D-48
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
|
D-49
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
|
D-50
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
|
D-51
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
|
D-52
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
|
D-53
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
|
D-54
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
|
D-55
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]
D-56
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
|
D-57
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;
|
|
•
|
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;
|
|
•
|
involving
short sales;
|
|
•
|
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;
|
|
•
|
involving
a combination of any such methods of sale;
and
|
|
•
|
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.
D-58
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.
D-59