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As filed with the Securities and Exchange Commission on February 6, 1997
Registration No. 333-18565
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
Amendment No. 1
to
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
______________
EMCORE CORPORATION
(Exact name of Registrant as specified in its charter)
________________________
Exhibit 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF EMCORE CORPORATION
Reuben F. Richards, Jr., being over the age of eighteen and acting
as a duly authorized officer of Emcore Corporation and by virtue of the
provisions of the New Jersey Business Corporation Act, Title 14A of the
Revised Statutes of the State of New Jersey, hereby certifies that the
Restated Certificate of Incorporation of Emcore Corporation is as follows:
FIRST: The name of the Corporation is:
EMCORE Corporation
SECOND: The purpose for which this Corporation is organized is to
engage in any activity within the purposes for which corporations may be
organized under the New Jersey Business Corporation Act.
THIRD: The registered office of the Corporation is:
394 Elizabeth Avenue
Somerset, NJ 08873
and the name of the corporation's registered agent at such address is:
Thomas G. Werthan
FOURTH: The total number of shares of Capital Stock of the
Corporation shall be 29,411,763 shares of which:
A. Of the Capital Stock, 23,529,411 shares shall consist of Common
Stock which shall be entitled to one vote per share of all matters which
holders of the Common Stock shall be entitled to vote on.
B. Of the Capital Stock, 5,882,352 shares shall consist of
Preferred Stock which may be divided into such classes and such series as
shall be established from time to time by resolutions of the Board of
Directors and filed as an amendment to this Certificate of Incorporation,
without any requirement of vote or class vote of shareholders. The Board of
Directors shall have the right and power to establish and designate in any
such Class or Series Resolution such priorities, powers, preferences and rela-
tive, participating, optional or other special rights and qualifications,
limitations and restrictions as it shall determine.
FIFTH: The Board of Directors presently consists of six (6) persons
and the names and addresses of the persons who are to serve on the Board of
Directors are as follows:
Name Address
Reuben F. Richards, Jr. 394 Elizabeth Avenue
Somerset, NJ 08873
Thomas G. Werthan 394 Elizabeth Avenue
Somerset, NJ 08873
Richard A. Stall 394 Elizabeth Avenue
Somerset, NJ 08873
Thomas J. Russell Jesup & Lamont Capital
Markets, Inc.
650 Fifth Avenue
New York, NY 10019
Howard R. Curd Jesup & Lamont Capital
Markets, Inc.
650 Fifth Avenue
New York, NY 10019
Howard F. Curd Jesup & Lamont Capital
Markets, Inc.
650 Fifth Avenue
New York, NY 10019
SIXTH: Neither a Director nor an Officer shall be liable to the
Corporation or its shareholders for damages for breach of any duty owed to the
Corporation or its shareholders, except that this provision shall not relieve
a Director or an Officer from liability for any breach of duty based upon an
act or omission (a) in breach of such person's duty of loyalty to the
corporation or its shareholders; (b) not in good faith or involving a knowing
violation of law; or (c) resulting in the receipt of such person of an
improper personal benefit.
SEVENTH: Any director of the Corporation may be removed with or
without cause by vote of the shareholders except that a director elected by a
class may be removed only by a vote of the class that elected the director.
EIGHTH: The Board of Directors by a vote of a majority of the entire
Board may lend money to, guarantee any obligation of or otherwise assist any
officer or employee of the Corporation who is also a director provided that
such loan shall be adequately secured and no such loan, guarantee or other
assistance shall be made unless there shall be an appropriate business
purpose.
NINTH: The Corporation shall indemnify every officer and director of
the corporation to the full extent permitted by law.
TENTH: The number of directors shall be as determined by any
resolution of the Board of Directors unless a Class or Series Resolution
adopted pursuant to Article FOURTH shall otherwise provide. In the event of an
increase in the number of directors, the Board itself is authorized to fill
any such directorship unless such a Class or Series Resolution shall otherwise
provide.
ELEVENTH: This Corporation shall have perpetual existence.
IN WITNESS, the undersigned has set his hand this 3d day of February
1997.
/s/ Reuben F. Richards, Jr.
Reuben F. Richards, Jr.
President
Exhibit 3.2
BY-LAWS
OF
EMCORE CORPORATION
Adopted As of September 27, 1986
Amended Through January 11, 1989
ARTICLE I
OFFICES
1. Principal Place of Business. The principal place of business
of the Corporation is 35 Elizabeth Avenue, Somerset, New Jersey 08873.
2. Other Places of Business. Branch or subordinate places of
business or offices may be established at any time by the Board at any place
or places where the Corporation is qualified to do business.
ARTICLE II
SHAREHOLDERS
1. Annual Meeting. The annual meeting of shareholders shall be
held upon not less than ten or more than sixty days written notice of the
time, place, and purpose of the meeting at 10 o'clock a.m. on the fourth
Thursday of the month of October of each year at the corporate offices, or at
such other time and place as shall be specified in the notice of meeting, in
order to elect directors and transact such other business as shall come before
the meeting. If that date is a legal holiday, the meeting shall be held at
the same hour on the next succeeding business day.
2. Special Meetings. A special meeting of shareholders may be
called for any purpose by the president or the Board. A special meeting shall
be held upon not less than ten nor more than sixty days written notice of the
time, place and purpose of the meeting.
3. Action Without Meeting. The shareholders may act without a
meeting if, prior or subsequent to such action, each shareholder who would
have been entitled to vote upon such action shall consent in writing to such
action. Such written consent or consents shall be filed in the minute book.
4. Quorum. The presence at a meeting in person or by proxy of the
holders of shares entitled to cast a majority of the votes shall constitute a
quorum.
ARTICLE III
BOARD OF DIRECTORS
1. Number and Term of Office. The Board shall consist of such
number of members as may be determined from time to time by resolution of the
Board. Each director shall be elected by the shareholders at each annual
meeting and shall hold office until the next annual meeting of shareholders
and until that director's successor shall have been elected and qualified.
2. Regular Meetings. A regular meeting of the Board shall be held
without notice immediately following and at the same place as the annual
shareholders' meeting for the purposes of electing officers and conducting
such other business as may come before the meeting. The Board, by resolution,
may provide for additional regular meetings which may be held without notice,
except to members not present at the time of the adoption of the resolution.
3. Special Meetings. A special meeting of the Board may be called
at any time by the president or a majority of the members of the Board for any
purpose. Such meeting shall be held upon one days notice if given orally
(either by telephone or in person) or by telegraph, or by three days notice if
given by depositing the notice in the United States mails, postage prepaid.
Such notice shall specify the time and place of the meeting.
4. Action Without Meeting. The Board may act without a meeting
if, prior or subsequent to such action, each member of the Board shall consent
in writing to such action. Such written consent or consents shall be filed in
the minute book.
5. Quorum. One-half of the entire Board shall constitute a quorum
for the transaction of business.
6. Vacancies in Board of Directors. Any vacancy in the Board,
including a vacancy caused by an increase in the number of directors, may be
filled by the affirmative vote of a majority of the remaining directors, even
though less than a quorum of the Board, or by a sole remaining director.
ARTICLE IV
WAIVERS OF NOTICE
Any notice required by these By-Laws, by the Certificate of
Incorporation, or by the New Jersey Business Corporation Act may be waived in
writing by any person entitled to notice. The waiver or waivers may be
executed either before or after the event with respect to which notice is
waived. Each director or shareholder attending a meeting without protesting,
prior to its conclusion, the lack of proper notice shall be deemed conclu-
sively to have waived notice of the meeting.
ARTICLE V
OFFICERS
1. Election. At its regular meeting following the annual meeting
of shareholders, the Board shall elect a president, a treasurer, a secretary,
and it may elect such other officers, including one or more vice presidents,
as it shall deem necessary. One person may hold two or more offices.
2. Duties and Authority of President. The president shall be
chief executive officer of the Corporation. Subject only to the authority of
the Board, he shall have general charge and supervision over, and
responsibility for, the business and affairs of the Corporation. Unless
otherwise directed by the Board, all other officers shall be subject to the
authority and supervision of the president. The president may enter into and
execute in the name of the Corporation contracts or other instruments in the
regular course of business or contracts or other instruments not in the
regular course of business which are authorized, either generally or
specifically, by the Board. He shall have the general powers and duties of
management usually vested in the office of president of a corporation.
3. Duties and Authority of Vice President. The vice president
shall perform such duties and have such authority as from time to time may be
delegated to him by the president or by the Board. In the absence of the
president or in the event of his death, inability, or refusal to act, the vice
president shall perform the duties and be vested with the authority of the
president.
4. Duties and Authority of Treasurer. The treasurer shall have
the custody of the funds and securities of the Corporation and shall keep or
cause to be kept regular books of account for the Corporation. The treasurer
shall perform such other duties and possess such other powers as are incident
to that office or as shall be assigned by the president or the Board.
5. Duties and Authority of Secretary. The secretary shall cause
notices of all meetings to be served as prescribed in these By-Laws and shall
keep or cause to be kept the minutes of all meetings of the shareholders and
the Board. The secretary shall have charge of the seal of the Corporation.
The Secretary shall perform such other duties and possess such other powers as
are incident to that office or as are assigned by the president or the Board.
ARTICLE VI
AMENDMENTS TO AND EFFECT OF
BY-LAWS FISCAL YEAR
1. Force and Effect of By-Laws. These By-Laws are subject to the
provisions of the New Jersey Business Corporation Act and the Corporation's
Certificate of Incorporation, as it may be amended from time to time. If any
provision in these By-Laws is inconsistent with a provision in that Act or the
Certificate of Incorporation, the provision of that Act or the Certificate of
Incorporation shall govern.
2. Amendments to By-Laws. These By-Laws may be altered, amended
or repealed by the shareholders or the Board. Any By-Law adopted, amended or
repealed by the shareholders may be amended or repealed by the Board, unless
the resolution of the shareholders adopting such By-Law expressly reserves to
the shareholders the right to amend or repeal it.
3. Fiscal Year. The fiscal year of the Corporation shall begin on
the first day of October of each year, commencing October 1, 1986.
MINUTES AND BY-LAWS
OF
EMCORE CORPORATION
COMMENCING: September 27, 1986
EMCORE CORPORATION
OATH OF SECRETARY
STATE OF NEW JERSEY )
) SS.:
COUNTY OF MORRIS )
I, Wilfried R. Wagner, Secretary of
EMCORE CORPORATION,
being of full age, depose and say that I will faithfully discharge the duties
of secretary of the Corporation to the best of my skill and ability.
_____________________________
Wilfried R. Wagner, Secretary
Sworn and Subscribed to
before me this 27th day
of September, 1986.
________________________________
An Attorney at Law of New Jersey
Exhibit 4.1
Certificate No. _________ For ______ Shares Issued to _________________
Transferred from _______________ / /19
Dated_____________________________, 19_______
Receipt acknowledged_______________________________________
No. Original Certificate _____________
No. Original Shares _______________
No. Of Shares Transferred ____________
NUMBER SHARES
_________ _________
INCORPORATED UNDER THE LAWS OF
THE STATE OF NEW JERSEY
EMCORE CORPORATION
COMMON STOCK, NO PAR VALUE
[ S P E C I M E N ]
This Certifies that ____________________________________ is the owner of
___________________________________ fully paid and non-assessable Shares of
the Capital Stock of the above named Corporation transferable only on the
books of the Corporation by the holder hereof in person or by duly authorized
Attorney upon surrender of this Certificate properly endorsed.
In Witness Whereof, the said Corporation has caused this Certificate to be
signed by its duly authorized officers and its Corporate Seal to be hereunto
affixed this ______________ day of ____________________ A.D. 19______
__________________________________ ___________________________
SECRETARY/TREASURER PRESIDENT
EXPLANATION OF ABBREVIATIONS
The following abbreviations, when used in the inscription of
ownership on the face of this certificate, shall be construed as if they were
written out in full according to applicable laws or regulations.
Abbreviations, in addition to those appearing below, may be used.
JT TEN As joint tenants with right of survivorship and TEN ENT As tenants by the entireties
not as tenants in common UNIF GIFT MIN ACT Uniform Gifts to Minors Act
TEN COM As tenants in common CUST Custodian for
For Value Received _____________________ hereby sell, assign and transfer unto
_________________________________________
(please insert social security or other identifying number of assignee)
_________________________ Shares represented by the within Certificate, and do
hereby irrevocably constitute and appoint __________________________ Attorney
to transfer the said Shares on the books of the within named Corporation with
full power of substitution in the premises.
Dated ____________ 19__
in presence of
_____________________ ___________________
Exhibit 5.1
White & Case
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
February 4, 1997
EMCORE Corporation
394 Elizabeth Avenue
Somerset, New Jersey 08873
Dear Sirs:
We refer to the Registration Statement on Form S-1 (No. 333-18565,
the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), filed by EMCORE Corporation, a New Jersey Corporation
(the "Company"), with the Securities and Exchange Commission (the
"Commission"), relating to the initial public offering of shares of the
Company's common stock (the "Common Stock"). The Common Stock is to be sold
to underwriters, including the underwriters listed on the cover page of the
Prospectus forming part of the Registration Statement. The terms of the sale
to the underwriters are to be approved in additional proceedings to be taken
by the Company.
We have examined the originals, or photostatic or certified copies,
of such records of the Company, certificates of officers of the Company and of
public officials and such other documents as we have deemed relevant and
necessary as the basis for the opinion set forth below. We have relied upon
such certificates of officers of the Company and of public officials and
statements and information furnished by officers of the Company with respect
to the accuracy of material factual matters contained therein which were not
independently established by us. In such examination we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents
submitted to us as photostatic or certified copies, and the authenticity of
the originals of such copies.
Based upon our examination described above, subject to the
assumptions stated, and subject to such proposed additional proceedings being
taken prior to the issuance of the Common Stock, to the authorization,
execution and delivery of an underwriting agreement with respect thereto, it
is our opinion that the Common Stock, upon issuance and sale by the Company as
contemplated in the Registration Statement and any amendments and prospectus
supplements thereto, will have been duly authorized by the Company and upon
delivery thereof against payment therefor, validly issued, fully paid and non-
assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm appearing under the
caption "Legal Matters" in the Prospectus forming part of the Registration
Statement. In giving this consent, we do not thereby admit that we are within
the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission.
Very truly yours,
White & Case
Exhibit 10.1
EMCORE CORPORATION
1995 INCENTIVE AND NON-STATUTORY STOCK OPTION PLAN
1. Purpose.
The purpose of this 1995 Incentive and Non-Statutory Stock Option Plan
(the "Plan") is to give officers and executive personnel ("key employees") and
consultants or non-employee directors ("other participants") of Emcore
Corporation, a New Jersey corporation (the "Company"), and corporations with
respect to which the Company directly or indirectly controls 50% or more of
the combined voting power ("subsidiaries") an opportunity to acquire shares of
the common stock of the Company, without par value ("Common Stock"), to
provide an incentive for key employees and other participants to continue to
promote the best interests of the Company and enhance its long-term
performance, and to provide an incentive for key employees and other
participants to join or remain with the Company and its subsidiaries.
2. Administration.
(a) Board of Directors. The Plan shall be administered by the Board of
Directors of the Company (the "Board"), which, to the extent it shall
determine, may delegate its powers with respect to the administration of the
Plan (except its powers under Section 12(c)) to a committee (the "Committee")
appointed by the Board and composed of not less than three members of the
Board. If the Board chooses to appoint a Committee, references hereinafter to
the Board (except in Section 12(c)) shall be deemed to refer to the Committee.
(b) Powers. Within the limits of the express provisions of the Plan,
the Board shall determine;
(i) the persons to whom awards hereunder shall be granted,
(ii) the time or times at which such awards shall be granted,
(iii) the form and amount of the awards, and
(iv) the limitations, restrictions and conditions applicable to any
such award.
In making such determinations, the Board may take into account the nature of
the services rendered by such key employees and other participants, or classes
of employees, their present and potential contributions to the Company's
success and such other factors as the Board in its discretion shall deem
relevant.
(c) Interpretations. Subject to the express provisions of the Plan, the
Board may interpret the Plan, prescribe, amend and rescind rules and
regulations relating to it, determine the terms and provisions of the
respective awards and make all other determinations it deems necessary or
advisable for the administration of the Plan.
(d) Determinations. The determinations of the Board on all matters
regarding the Plan shall be conclusive. A member of the Board shall only be
liable for any action taken or determination made in bad faith.
(e) Nonuniform Determinations. The Board's determinations under the
Plan, including without limitation, determinations as to the persons to
receive awards, the terms and provisions of such awards and the agreements
evidencing the same, need not be uniform and may be made by it selectively
among persons who receive or are eligible to receive awards under the Plan,
whether or not such persons are similarly situated.
3. Awards Under the Plan.
(a) Form. Awards under the Plan may be granted in any of the following
forms:
(i) Incentive Stock Options, as described in Section 4,
(ii) Non-Statutory Stock Options, as described in Section 5, and
(iii) Stock Appreciation Rights, as described in Section 6.
(b) Maximum Limitations. The aggregate number of shares of Common Stock
available for grant under the Plan is 1,100,000 subject to adjustment pursuant
to Section 8. Shares of Common Stock issued pursuant to the Plan may be
either authorized but unissued shares or shares now or hereafter held in the
treasury of the Company. In the event that, prior to the end of the period
during which Stock Options may be granted under the Plan, any Stock Option
under the Plan expires unexercised or is terminated, surrendered or canceled
(other than in connection with the exercise of a Stock Appreciation Right with
respect to which Common Stock is delivered to the key employee or other
participants under Section 6(b)(ii)), without being exercised, in whole or in
part, for any reason, the number of shares theretofore subject to such Stock
Option, or the unexercised, terminated, forfeited or unearned portion thereof,
shall be added to the remaining number of shares of Common Stock available for
grant as a Stock Option under the Plan, including a grant to a former holder
of such Stock Option, upon such terms and conditions as the Board shall
determine, which terms may be more or less favorable than those applicable to
such former Stock Option.
(c) Ten Percent Shareholder. Notwithstanding any other provision herein
contained, no key employee may receive an Incentive Stock Option under the
Plan if such employee, at the time the award is granted, owns (as defined in
Section 424(d) of the Internal Revenue Code, as amended (the "Code")) stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company, its parent or any subsidiary, unless the option price
for such Incentive Stock Option is at least 110% of the fair market value of
the Common Stock subject to such Incentive Stock Option on the date of grant
and such Option is not exercisable after the date five years from the date
such Option is granted.
4. Incentive Stock Options.
It is intended that Incentive Stock Options granted under the Plan shall
constitute Incentive Stock Options within the meaning of Section 422 of the
Code. Incentive Stock Options may be granted under the Plan for the purchase
of shares of Common Stock. Incentive Stock Options shall be in such form and
upon such conditions as the Board shall from time to time determine, subject
to the following:
(a) Option Prices. The option price of each Incentive Stock Option
shall be at least 100% of the fair market value of the Common Stock subject to
such Incentive Stock Option on the date of grant,
(b) Terms of Options. No Incentive Stock Option shall be exercisable
prior to the date one year, or after the date ten years, from the date such
Incentive Stock Option is granted.
(c) Limitation on Amounts. The aggregate fair market value (determined
with respect to each Incentive Stock Option as of the time such Incentive
Stock Option is granted) of the capital stock with respect to which Incentive
Stock Options are exercisable for the first time by a key employee during any
calendar year (under this Plan or any other plan of the Company or the parent
or any subsidiary of the Company) shall not exceed $100,000.
(d) Exercise. Incentive Stock Options shall be subject to such terms
and conditions, shall be exercisable at such time or times, and shall be
evidenced by such form of written option agreement between the optionee and
the Company, as the Board shall determine; provided, that such determinations
are not inconsistent with the other provisions of the Plan, and with Section
422 of the Code or regulations thereunder.
(e) Manner of Exercise of Options and Payment for Common Stock.
Incentive Stock Options may be exercised by an optionee by giving written
notice to the Secretary of the Company stating the number of shares of Common
Stock with respect to which the Incentive Stock Option is being exercised and
tendering payment therefor. At the time that an Incentive Stock Option granted
under the Plan, or any part thereof, is exercised, payment for the Common
Stock issuable thereupon shall be made in full in cash or by certified check
or, if the Board in its discretion agrees to accept, in shares of Common Stock
of the Company (the number of such shares paid for each share subject to the
Incentive Stock Option, or part thereof, being exercised shall be determined
by dividing the option price by the fair market value per share of the Common
Stock on the date of exercise). As soon as reasonably possible following such
exercise, a certificate representing shares of Common Stock purchased,
registered in the name of the optionee shall be delivered to the optionee.
(f) Cancellation of Stock Appreciation Rights. The exercise of any
Incentive Stock Option shall cancel that number, if any, of Stock Appreciation
Rights (as defined in Section 6) included in such Incentive Stock Option,
which is equal to the excess of (i) the number of shares of Common Stock
subject to Stock Appreciation Rights included in such Incentive Stock Option,
over (ii) the number of shares of Common Stock which remain subject to such
Incentive Stock Option after such exercise.
5. Non-Statutory Stock Options.
Non-Statutory Stock Options (i.e., options which do not constitute
Incentive Stock Options within the meaning of Section 422 of the Code) may be
granted under the Plan for the purchase of Common Stock. Non-Statutory Stock
Options shall be in such form and upon such conditions as the Board shall from
time to time determine and further shall be subject to the provisions of
Section 4 of this Plan except:
(a) Option Price. The option price shall be no less than 10% of the
fair market value of the Common Stock subject to the Non-Statutory Stock
Option on the date of grant.
(b) Limitation on Amount. There shall be no limit on amount (subject
only to the overall limit of the shares available under the Plan for option
grant).
6. Stock Appreciation Rights.
(a) Award. If deemed by the Board to be in the best interest of the
Company, any Incentive Stock Option granted under the Plan may include a stock
appreciation right ("Stock Appreciation Right"), either at the time of grant
or thereafter while the Incentive Stock Option is outstanding.
(b) Terms of Rights. Stock Appreciation Rights shall be subject to such
terms and conditions not inconsistent with the other provisions of the Plan as
the Board shall determine, provided that:
(i) Limitations. Stock Appreciation Rights shall be exercisable to the
extent, and only to the extent, the Incentive Stock Option in which it is
included is exercisable and shall be exercisable only for such period as the
Board may determine (which period may expire prior to, but not later than, the
expiration date of such Incentive Stock Option). Notwithstanding the preceding
sentence, a Stock Appreciation Right is exercisable only when the fair market
value of a share of Common Stock exceeds the option price specified in such
Incentive Stock Option.
(ii) Surrender or Exchange. A Stock Appreciation Right shall entitle the
optionee to surrender to the Company unexercised the Incentive Stock Option,
or portion thereof, to which it is related, or any portion thereof and to
receive from the Company in exchange therefor that number of shares of Common
Stock having an aggregate fair market value equal to the excess of the fair
market value on the date of exercise of one share of Common Stock over the
option price per share specified in such Incentive Stock Option multiplied by
the number of shares of Common Stock subject to the Incentive Stock Option, or
portion thereof, which is so surrendered. The Board shall be entitled to
elect to settle any part or all of the Company's obligation arising out of the
exercise of a Stock Appreciation Right by the payment of cash or by check
equal to the aggregate fair market value on the date on which the Stock
Appreciation Right is exercised of that part or all of the shares of Common
Stock the Company would otherwise be obligated to deliver.
(c) Cash Settlement Restriction. (i) Notwithstanding Section B(b), so
long as the grantee of a Stock Appreciation Right is an officer or director of
the Company, the Company's right to elect to settle any part or all of its
obligation arising out of the exercise of a Stock Appreciation Right by the
payment of cash or by check shall not apply unless such exercise occurs no
less than six months after the date of grant of the Right and either: (1)
pursuant to the provisions of subsection (ii) below, or (2) during the period
beginning on the third business day following the date of release by the
Company for publication of its quarterly or annual summary statements of sales
and earnings and ending on the twelfth business day following such date.
(ii) In the event that, pursuant to Section 9, the Company shall cancel
all unexercised Incentive Stock Options as of the effective date of a merger
or other transaction provided therein, or in the case of dissolution of the
Company, then each Stock Appreciation Right held by an executive officer or
director of the Company shall be automatically exercised for cash on such date
within 30 days prior to the effective date of such transaction or dissolution
as the Board shall determine and, in the absence of such determination, on the
last business day immediately prior to such effective date.
7. Transferability.
No Incentive Stock Option, Non-Statutory Stock Option, or Stock
Appreciation Right may be transferred, assigned, pledged or hypothecated
(whether by operation of law or otherwise), except as provided by will or the
applicable laws of descent or distribution, and no Incentive Stock Option,
Non-Statutory Stock Option, or Stock Appreciation Right shall be subject to
execution, attachment or similar process. Any attempted assignment, transfer,
pledge, hypothecation or other disposition of an Incentive Stock Option, Non-
Statutory Stock Option, or Stock Appreciation Right, or levy of attachment or
similar process upon the Incentive Stock Option or Stock Appreciation Right
not specifically permitted herein shall be null and void and without effect.
An Incentive Stock Option or Stock Appreciation Right may be exercised only by
a key employee during his or her lifetime, or pursuant to Section 11(c), by
his or her estate or the person who acquires the right to exercise such
Incentive Stock Option or Stock Appreciation Right upon his or her death by
bequest or inheritance.
8. Adjustment Provisions.
The aggregate number of shares of Common Stock with respect to which
Incentive Stock Options, Non-Statutory Stock Options and Stock Appreciation
Rights may be granted, the aggregate number of shares of Common Stock subject
to each outstanding Incentive Stock Option, Non-Statutory Stock Option and
Stock Appreciation Right, and the option price per share of each may all be
appropriately adjusted as the Board may determine for any increase or decrease
in the number of shares of issued Common Stock resulting from a subdivision or
consolidation of shares, whether through reorganization, recapitalization,
stock split-up, stock distribution or combination of shares, or the payment of
a share dividend or other increase or decrease in the number of such shares
outstanding effected without receipt of consideration by the Company.
Adjustments under this Section 8 shall be made according to the sole
discretion of the Board, and its decisions shall be binding and conclusive.
9. Dissolution, Merger and Consolidation.
Except as otherwise provided in Section 6(c)(ii), upon the dissolution or
liquidation of the Company, or upon a merger or consolidation of the Company
in which the Company is not the surviving corporation, each Incentive Stock
Option and Stock Appreciation Right granted hereunder shall expire as of the
effective date of such transaction; provided, however, that the Board shall
give at least 30 days' prior written notice of such event to each optionee
during which time he or she shall have a right to exercise his or her wholly
or partially unexercised Incentive Stock Option (without regard to installment
exercise limitations, if any) or Stock Appreciation Right and, subject to
prior expiration pursuant to Section 11(b) or (c), each Incentive Stock Option
and Stock Appreciation Right shall be exercisable after receipt of such
written notice and prior to the effective date of such transaction.
10. Effective Date and Period For Grants.
The Plan shall become effective on the date of the approval of the Plan
by the holders of a majority of the shares of Common Stock of the Company
which shall be June 20, 1995. No grant or award shall be made under the Plan
more than 10 years from the earlier of the date of adoption of the Plan,
provided, however, that the Plan and all Stock Options and Stock Appreciation
Rights granted under the Plan prior to such date shall remain in effect and
subject to adjustment and amendment as herein provided until they have been
satisfied or terminated in accordance with the terms of the respective grants
or awards and the related agreements.
11. Termination of Employment or Participation.
(a) Each Incentive Stock Option, Non-Statutory Stock Option and Stock
Appreciation Right shall, unless sooner expired pursuant to Section 11(b) or
(c) below, expire on the first to occur of the tenth anniversary of the date
of grant thereof and the expiration date set forth in the applicable option
agreement.
(b) An Incentive Stock Option, a Non-Statutory Stock Option or a Stock
Appreciation Right shall expire on the first to occur of the applicable date
set forth in paragraph (a) next above and the date thirty (30) days following
the date that the employment or participation of the person with the Company
terminates for any reason other than death or disability. Notwithstanding the
preceding provisions of this paragraph, the Board, in its sole discretion,
may, by written notice given, permit the ex-employee to exercise Stock Options
or Stock Appreciation Rights during a period following his or her termination
of employment, which period shall not exceed three months. In no event,
however, may the Board permit an ex-employee to exercise a Stock Option or
Stock Appreciation Right after the expiration date contained in the agreement
evidencing such Stock Option or Stock Appreciation Right. Notwithstanding the
preceding provisions of this paragraph, if the Board permits an ex-employee to
exercise Stock Options or Stock Appreciation Rights during a period following
his or her termination of employment pursuant to such preceding provisions,
such Stock Options or Stock Appreciation Rights shall, to the extent
unexercised, expire on the date that such ex-employee violates (as determined
by the Board) any covenant not to compete in effect between the Company and
the ex-employee.
(c) If the employment of an employee or participation of another
participant with the Company terminates by reason of disability (as defined in
Section 422(o)(9) of the Code as determined by the Board) or by reason of
death, his or her Stock Options and Stock Appreciation Rights, if any, shall
expire no later than the first to occur of the date set forth in paragraph (a)
of this Section 11 and the first anniversary of such termination of
employment.
12. Miscellaneous.
(a) Legal and Other Requirements. The obligation of the Company to sell
and deliver Common Stock under the Plan shall be subject to all applicable
laws, regulations, rules and approvals, including, but not by way of
limitation, the effectiveness of a registration statement under the Securities
Act of 1933 if deemed necessary or appropriate by the Company. Certificates
for shares of Common Stock issued hereunder may be legended as the Board shall
deem appropriate.
(b) No Obligation To Exercise Options. The granting of a Stock Option
shall impose no obligation upon an optionee to exercise such Stock Option.
(c) Termination and Amendment of Plan. The Board, without further
action on the part of the shareholders of the Company, may from time to time
alter, amend or suspend the Plan or any Stock Option or Stock Appreciation
Right granted hereunder or may at any time terminate the Plan, except that it
may not, without the approval of the shareholders of the Company (except to
the extent provided in Section 8 hereof):
(i) Materially increase the total number of shares of Common Stock
available for grant under the Plan except as provided in
Section 8;
(ii) Materially modify the class of eligible employees or
participants under the Plan;
(iii) Materially increase benefits to any key employee who is
subject to the restrictions of Section 16 of the Securities
Exchange Act of 1934; or
(iv) Effect a change relating to Incentive Stock Options granted
hereunder which is inconsistent with Section 422 of the Code
or regulations issued thereunder.
No action taken by the Board under this Section, either with or without
the approval of the shareholders of the Company, may materially and
adversely affect any outstanding Stock Option or Stock Appreciation Right
without the consent of the holder thereof.
(d) Application of Funds. The proceeds received by the Company from the
sale of Common Stock pursuant to Stock Options will be used for general
Corporate purposes.
(e) Withholding Taxes. (i) Upon the exercise of any Stock Option or
Stock Appreciation Right, the Company shall have the right to require the
optionee to remit to the Company an amount sufficient to satisfy all federal,
state and local withholding tax requirements prior to the delivery of any
certificate or certificates for shares of Common Stock.
(ii) Upon the disposition of any Common Stock acquired by the
exercise of a Stock Option, the Company shall have the right to require the
optionee to remit to the Company an amount sufficient to satisfy all federal,
state and local withholding tax requirements as a condition to the
registration of the transfer of such Common Stock on its books. Whenever
under the Plan payments are to be made by the Company in cash or by check,
such payments shall be net of any amounts sufficient to satisfy all federal,
state and local withholding tax requirements.
(f) Right To Terminate Employment. Nothing in the Plan or any agreement
entered into pursuant to the Plan shall confer upon any key employee or other
optionee the right to continue in the employment of the Company or any
subsidiary or affect any right which the Company or any subsidiary may have to
terminate the employment of such key employee or other optionee.
(g) Rights as a Shareholder. No optionee shall have any right as a
shareholder unless and until certificates for shares of Common Stock are
issued to him or her.
(h) Leaves of Absence and Disability. The Board shall be entitled to
make such rules, regulations and determinations as it deems appropriate under
the Plan in respect of any leave of absence taken by or disability of any key
employee or other participant. Without limiting the generality of the
foregoing, the Board shall be entitled to determine (i) whether or not any
such leave of absence shall constitute a termination of employment within the
meaning of the Plan, and (ii) the impact, if any, of any such leave of absence
on awards under the Plan theretofore made to any key employee who takes such
leave of absence.
(i) Fair Market Value. Whenever the fair market value of Common Stock
is to be determined under the Plan as of a given date, such fair market value
shall be:
(i) If the Common Stock is traded on the over-the-counter market,
the average of the mean between the bid and the asked price
for the Common Stock at the close of trading for the 10
consecutive trading days immediately preceding such given
date;
(ii) If the Common Stock is listed on a national securities
exchange, the average of the closing prices of the Common
Stock on the Composite Tape for the 10 consecutive trading
days immediately preceding such given date; and
(iii) If the Common Stock is neither traded on the over-the-counter
market nor listed on a national securities exchange, such
value as the Board, in good faith, shall determine.
Notwithstanding any provision of the Plan to the contrary, no determination
made with respect to the fair market value of Common Stock subject to an
Incentive Stock Option shall be inconsistent with Section 422 of the Code or
regulations thereunder.
(j) Notices. Every direction, revocation or notice authorized or
required by the Plan shall be deemed delivered to the Company (1) on the date
it is personally delivered to the Secretary of the Company at its principal
executive offices or (2) three business days after it is sent by registered or
certified mail, postage prepaid, addressed to the Secretary at such offices,
and shall be deemed delivered to an optionee (1) on the date it is personally
delivered to him or her or (2) three business days after it is sent by
registered or certified mail, postage prepaid, addressed to him or her at the
last address shown for him or her on the records of the Company.
(k) Applicable Law. All questions pertaining to the validity,
construction and administration of the Plan and Stock Options and Stock
Appreciation Rights granted hereunder shall be determined in conformity with
the laws of the state of New Jersey, to the extent not inconsistent with
Section 422 of the Code and regulations thereunder.
(l) Elimination of Fractional Shares. If under any provision of the
Plan which requires a computation of the number of shares of Common Stock
subject to an Incentive Stock Option or Stock Appreciation Right, the number
so computed is not a whole number of shares of Common Stock, such number of
shares of Common Stack shall be rounded down to the next whole number.
[End of Plan]
Exhibit 10.2
[Amendment to Option Plan]
NOTICE
OF
ANNUAL MEETING OF SHAREHOLDERS
OF
EMCORE CORPORATION
TO THE SHAREHOLDERS OF EMCORE CORPORATION:
An Annual Meeting of the Shareholders of EMCORE Corporation (the "Company")
will be held at the offices of EMCORE Corporation, 394 Elizabeth Avenue,
Somerset, NJ 08873-1214 at 10:00 a.m. on Tuesday, April 30, 1996, to consider
and act upon the following matters:
A) To elect six (6) directors. It is anticipated that the following
individuals will be
nominated:
Exhibit 10.3
SPECIMEN STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT, dated as of <>,
between EMCORE CORPORATION, a New Jersey Corporation (the "Corporation"), and
<> <>, an employee of the Corporation or its subsidiary (herein
"Employee")
W I T N E S S E T H :
The Corporation desires, by affording the employee an opportunity to
purchase shares of its Common Stock, $1.20 par value, to provide the Employee
with an added incentive to join or to continue in the employment of the
Corporation and to continue and increase his or her efforts in that
connection. This Stock Option Agreement (this "Agreement") is being entered
into pursuant to the Stock Corporation 1995 Incentive and Non-Statutory Stock
Option Plan and is subject to the provisions thereof, including the
determinations to be made by the Stock Option Committee (the "Committee") of
the Board of Directors of the Corporation (the "Board").
In consideration or the mutual covenants hereinafter set forth and
for other good and valuable consideration, the parties hereto hereby agree as
follows:
1. Grant. The Corporation with the approval and direction of the
Committee irrevocably grants the employee the right and option (the "Option")
to purchase all or any part of an aggregate of <> shares
of Common Stock on the terms and conditions herein set forth. This Option
shall be an Incentive Stock Option.
2. Price. The purchase price of the shares of Common Stock covered
by the Option shall be $1.20 per share, being in excess of the fair market
value of the Common Stock on the date hereof.
3. Time of Exercise. The term of the Option shall be for a period
of ten (10) years from the date hereof, subject to earlier termination as
provided in this Agreement. Except as provided in Paragraphs 5 and 6 hereof,
the Option may not be exercised unless the Employee shall at the time of
exercise be an employee of the Corporation. Neither the Option nor any rights
related to the Option shall be exercisable for a period of one year from the
date hereof when twenty percent (20%) of the Option shall become exercisable,
except that: (i) if the Employee shall die, rehire or become disabled then
the Option shall be fully exercisable commencing upon such event, (ii) if all
of the capital stock of the Corporation or substantially all of its assets
shall be transferred in exchange for cash only, then the Employee shall be
entitled to receive from the Corporation an amount equal to (a) the price or
distributable amount per share calculated as if all options containing this
provision had been exercised less the exercise price, (b) multiplied by the
number of options unexercised and (iii) if all of the capital stock of the
Corporation is transferred in whole or in part in exchange for stock of
another Corporation then the Option shall be fully exercisable commencing upon
such event. An additional twenty percent (20%) of the Option shall become
exercisable each of the four successive anniversaries of the date hereof until
the Option shall be fully exercisable, except that: (1) if the Employee has
been employed for one year as of September 12, 1995, twenty percent (20%)
shall be immediately vested with the remaining on each of the four (4)
successive anniversaries of the date hereof, or, (2) if the employee has been
employed for two years as of September 12, 1995, forty percent (40%) shall be
immediately invested with the remainder vesting on each of the three (3)
successive anniversaries of the date hereof.
4. No Transfer. The Option shall not be Transferable by the
Employee otherwise than by Will or the laws of descent and distribution, and
the Option may be exercised during his lifetime only by the Employee. The
Option may not be assigned, transferred (except as aforesaid), pledged or
hypothecated in any way (whether by operation of law or otherwise) and shall
not be subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of the Option
contrary to the provisions hereof and the levy of any attachment or similar
process upon the Option shall be null and void and without effect.
5. Termination. In the event the employment of the Employee shall
be terminated for any reason, (i) the Option may be exercised by the Employee
at any time within thirty (30) days after such date (or one year after such
date if the Employee is disabled within the meaning of Internal Revenue Code
Section 22(e)(3), but in no event after the expiration of ten years from the
date hereof, and only if and to the extent that he was entitled to exercise
the Option at the date of termination, and (ii) so long as the stock of the
Corporation is not listed on a national securities exchange or traded on the
over-the-counter market, the Corporation may elect in its sole discretion to
repurchase the stock at a price equal to the fair market value of the stock at
the date of termination. The Option shall not be affected (i) by any change
of duties or position so long as the Employee continues to be an employee of
the Corporation or a subsidiary or (ii) by any temporary leave of absence that
does not sever the employment relationship, which leave of absence is
approved, if for a period of not more than three months, by an officer of the
Corporation, or if for a period of more than three months, by the Board.
6. Death of Employee. If the Employee shall die while entitled to
exercise the Option, the Option may be exercised by the legatee or legatees of
the Option under the Employee's Will, the personal representative or
distributees of the Employee to the extent that the Option would otherwise
have been exercisable by the Employee at any time within a period of one year
after the date of the Employee's death, but this provision shall not otherwise
extend the ten (10) year duration of the Option.
7. Anti-Dilution Adjustments. In the event of any change in the
outstanding Common Stock of the Corporation by reason of stock dividends,
stock splits, recapitalizations, mergers, consolidations, combinations or
exchanges of shares, split-ups, split-offs, liquidations or other similar
changes in capitalization, or any distributions to common stockholders other
than cash dividends, the numbers, class and prices of shares covered by this
Option shall be appropriately adjusted by the Committee, whose determination
shall be conclusive; provided, however, that no such adjustment shall give the
Employee any additional benefits under the option.
8. Corporate Transaction. Notwithstanding the provisions of
Paragraph 7, if any "corporate transaction" as defined in Section 1.425-1 of
the Treasury Regulations promulgated under the Internal Revenue Code of 1986
occurs after the date of this Agreement, and in connection with such corporate
transaction, the Corporation and another corporation enter into an agreement
providing for the issuance of substitute stock options in exchange for the
Option or the assumption of the Option, in either case giving the employee the
right to purchase the largest whole number of shares of Common Stock of the
Corporation or of any other corporation at the lowest option price permitted
by said Section 1.425-1, the Option shall be deemed to provide for the
purchase of such number of shares of Common Stock at such option price as
shall be agreed upon by the Corporation and such other corporation, and the
term "Corporation" herein shall mean the issuer of the stock then covered by
the Option and the term "Common Stock" shall mean such stock.
9. No Employment Agreement. This Agreement does not confer upon
the Employee any right to continue in the employ of the Corporation nor does
it interfere in any way with the right of the Corporation or the right of the
Employee to terminate the employment of the Employee at any time.
10. Restrictions. The obligation of the Corporation to sell and
deliver shares of Common Stock with respect to the Option shall be subject to
(i) all applicable laws, rules, regulations and such approvals by any
governmental agencies as may be required, including the effectiveness of a
registration statement under the Securities Act of 1933, as amended and (ii)
the condition that the shares of Common Stock to be received upon exercise of
the Option shall have been duly listed, upon official notice of issuance, on a
stock exchange (to the extent that the Common Stock of the Corporation is then
listed on any such stock exchange). In the event that the shares shall be
delivered otherwise than in accordance with an applicable registration
statement, the Corporation's obligation to deliver the shares is subject to
the further condition that the Employee will execute and deliver to the
Corporation an undertaking in form and substance satisfactory to the
Corporation that (i) it is the Employee's intention to acquire and hold such
shares for investment and not for resale or distribution, (ii) the shares will
not be sold without registration or exemption from the requirement of
registration under the Securities Act and (iii) the employee will indemnify
the Corporation for any costs, liabilities and expenses which it may sustain
by reason of any violation of the Securities Act or any other law regulating
the sale or purchase of securities occasioned by any act on his part with
respect to such shares. The Corporation may require that any certificate or
certificates evidencing shares issued pursuant to the Plan bear a restrictive
legend intended to effect compliance with the Securities Act or any other
applicable regulatory measures, and stop transfer instructions with respect to
the certificates representing the shares may be given to the transfer agent.
11. Exercise. Subject to the terms and conditions of this
Agreement, the Option may be exercised only by written notice delivered to the
Corporation at 394 Elizabeth Avenue, Somerset, New Jersey 08873-1214,
attention of the Chief Financial Officer, of intention to exercise such option
and by making payment of the purchase price of such shares against delivery of
a certificate or certificates therefor as hereinafter provided. Such written
notice shall:
(a) state the election to exercise the Option and the number of
shares in respect of which it is being exercised;
(b) fix a date not less than seven (7) business days from the date
such notice is received by the Corporation for delivery of the
certificate or certificates for said shares and the payment of the
purchase price therefor, and
(c) be signed by the person or persons so exercising the Option and
in the event the Option is being exercised by any person or persons other
than the Employee, be accompanied by appropriate proof of the right of
such person or persons to exercise the Option.
On the date fixed in said written notice, a certificate or
certificates for the shares as to which the Option shall have been so
exercised, registered in the name of the person or persons so exercising the
Option shall be issued by the Corporation and delivered to or upon the order
of such person or persons against payment in full at the above-mentioned
address or the purchase price of said shares in cash, by check or by surrender
or delivery to the Corporation of shares of the Corporation's Common Stock
with a fair market value equal to or less than the Option price, plus cash
equal to any difference. All shares issued as provided herein will be fully
paid and nonassessable. The Employee shall not have any of the rights of the
stockholder with respect to the shares of Common Stock subject to the option
until the certificate evidencing such shares shall be issued to him upon the
due exercise of the Option.
12. Availability of Shares. The Corporation shall at all times
during the term of the Option reserve and keep available such number of shares
of Common Stock as will be sufficient to satisfy the requirements of this
Agreement, shall pay all original issue taxes with respect to the issue of
shares pursuant hereto and all other fees and expenses necessarily incurred by
the Corporation in connection therewith and will from time to time use its
best efforts to comply with all laws and regulations which in the opinion of
counsel for the Corporation shall be applicable thereto.
13. Fair Market Value. As used herein, the "fair market value" of
a share of Common Stock shall be:
(a) if the Common Stock is listed on a national securities
exchange, the closing price of the Common Stock on the Composite Tape on
the trading day immediately preceding such given date;
(b) if the Common Stock is traded on the over-the-counter market,
the average of the bid and the asked price for the Common Stock as
reported by the Wall Street Journal at the close of trading on the
trading day immediately preceding such given date, and
(c) if the Common Stock is neither listed on a national securities
exchange or traded on the over-the-counter market, such value as the
Board in good faith shall determine.
14. The Plan. The Option is granted pursuant to the terms of the
Plan, which terms are incorporated herein by reference, and the Option shall
in all respects be interpreted in accordance with the Plan. The Committee
shall interpret and construe the Plan and this Agreement, and the Committee's
interpretations and determination shall be conclusive and binding on the
parties hereto and any other person claiming an interest hereunder with
respect to any issue arising thereunder or thereunder.
15. Governing Law. This Agreement has been entered into and shall
be construed in accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
duly executed and sealed by its duly authorized officers and the Employee has
hereunder set his hand, all as of the day and year first above written.
ATTEST: EMCORE CORPORATION
________________________ By: Thomas G. Werthan
Chief Financial Officer
________________________ By: <> <>
Employee
Exhibit 10.4
DISTRIBUTORSHIP AGREEMENT
This Agreement, made and entered into this 12th day of July, 1995,
by and between EMCORE CORPORATION, a corporation duly organized and existing
under the laws of New Jersey having its principal place of business at 35
Elizabeth Avenue, Somerset, New Jersey 08873 (hereinafter referred to as
"EMCORE") and HAKUTO CO., LTD., a corporation duly organized and existing
under the laws of Japan, having its principal place of business at 1-13,
Shinjuku, I-Chome, Shinjuku-Ku, Tokyo 160, Japan (hereinafter referred to as
"Hakuto"),
W I T N E S S E T H
WHEREAS, EMCORE is engaged in the business of manufacturing
technical equipment including the Products hereinafter defined, and
WHEREAS, Hakuto is engaged in the business of selling and marketing
merchandise throughout the world, including technical equipment, and
WHEREAS, the parties heretofore entered into an agreement dated
August 1, 1989 in accordance with which Hakuto distributed the Products in
defined markets, and the parties desire to revise the terms of said agreement
in accordance with which revised terms Hakuto will continue to serve as
Emcore's distributor;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, EMCORE and Hakuto do hereby agree to the terms
and conditions set forth below.
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Product" or "Products" shall mean any or all products listed on
Exhibit A attached hereto and made a part hereof. EMCORE shall have the right
to modify, improve, or discontinue any or all of the Products in its sole
discretion, provided that EMCORE shall give Hakuto not less than ninety (90)
days' notice prior to the discontinuance or major modification of any Product.
In the event EMCORE manufactures any new MOCVD deposition systems or MOCVD
deposition equipment similar or related to the Products, EMCORE shall give
Hakuto notice of such new products and the same shall be deemed added to
Exhibit A hereto by reference.
"Territory" shall mean specifically Japan, Taiwan, Hong Kong, the
Republic of China, Singapore, Malaysia, and Thailand but expressly excluding
Korea.
2. Appointment and Acceptance. (a) EMCORE hereby appoints Hakuto
as the sole and exclusive distributor of the Products in the Territory and
Hakuto accepts such appointment, all in accordance with the terms and
conditions set forth in this Agreement. All inquiries and/or orders received
by EMCORE from customers or potential customers within the Territory or for
delivery of Products in the Territory shall be referred to Hakuto for
disposition.
(b) Hakuto shall exert its best efforts to attain and sustain
maximum sales of Products in the Territory. Specifically and not in
limitation hereof, if Emcore, based on its independent market research,
believes that certain of the Products should be targeted to specific customers
in the Territory, Emcore shall convey its findings to Hakuto forthwith,
whereupon Hakuto shall promptly exert its full and best efforts to address
these markets and will confer with EMCORE on best marketing strategies to
promote sales of the Product, and otherwise fully coordinate its sales efforts
with Emcore. Hakuto shall not market, distribute, sell or advertise for sale
within the Territory any product that is competitive with the Products.
(c) The relationship between EMCORE and Hakuto shall not be that of
a principal and agent, but shall be that of a seller and purchaser, each
acting as an independent contractor. Hakuto shall have no right or authority
to incur, assume or create, in writing or otherwise, any warranty, liability
or obligation of any kind, express or implied, in the name of or on behalf of
EMCORE.
(d) Hakuto shall not appoint any sub-distributor or sub-agent to
perform any of its obligations under this Agreement without the prior written
consent of EMCORE. Nothing herein, however, shall prohibit Hakuto from
assigning certain parts of the Territory to its subsidiaries and affiliates,
including specifically S&T Enterprises Ltd.
(e) Notwithstanding the exclusive sales rights granted to Hakuto,
Emcore may at its own expense and from time to time dispatch to the Territory
its personnel to engage in market research, Product promotion, and other
marketing activities, provided that all such activities shall at all times be
coordinated with Hakuto, conducted with full disclosure to and knowledge of
Hakuto, and provided further that any potential sale of any Product resulting
from such activities of Emcore shall be referred to and channeled through
Hakuto.
3. Orders. (a) Systems. Hakuto may submit to EMCORE from time
to time requests for quotations with respect to any system included as
Products under this Agreement ("Systems"). Each such request for quotation
shall identify Hakuto's prospective customer and shall set forth detailed
specifications for the System required, including all optional features.
EMCORE may respond to any such request by submitting a quotation on EMCORE's
standard form setting forth the sales price to Hakuto for such System. All
prices quoted by EMCORE shall be F.O.B. EMCORE's plant in Somerset, New
Jersey. At Hakuto's specific request, EMCORE will include in its quotation:
(i) a firm price for EMCORE's installation or assistance in installing the
System, and/or (ii) a firm price for EMCORE's assistance in the start-up of
the System and a demonstration of basic material specifications, provided
that, in each case, such request contains sufficiently detailed information
regarding the nature of the installation or assistance required or the
material specifications to be demonstrated. The terms and conditions on
quotations issued by EMCORE shall be binding upon the parties hereto, provided
that, in the event any terms contained in a quotation are inconsistent with
the terms of this Agreement, the terms of this Agreement shall govern unless
the parties shall have agreed in writing that such inconsistent terms shall
supersede the provisions of this Agreement.
(b) Spare Parts. Hakuto may submit to EMCORE from time to time
purchase orders with respect to spare parts or components included as Products
under this Agreement ("Spare Parts"), setting forth the quantity and desired
delivery date of such Spare Parts. To be effective, any such purchase order
must be accepted in writing by EMCORE at its plant in Somerset, New Jersey.
(c) Other Terms. The terms and conditions on purchase orders
issued by Hakuto shall be deemed to be a part of this Agreement as a
supplement hereto, provided that any provision in such purchase order which is
inconsistent with or contrary to the provisions of this Agreement shall be
deemed to be deleted from the purchase order and of no force or effect unless
the parties shall have specifically agreed in writing that said provision in
the purchase order is intended to supersede the inconsistent provision of this
Agreement, in which case the provisions of the purchase order shall prevail.
4. Prices and Terms of Payment. (a) The price for any Product
sold by EMCORE to Hakuto shall be the price set forth in EMCORE's quotation,
which price shall be valid for not less than ninety (90) days (unless
otherwise specified in writing by EMCORE). The price for any Spare Part sold
by EMCORE to Hakuto shall be the price for such Spare Part set forth on
EMCORE's standard price list in effect on the date of shipment, less twenty
percent (20%). EMCORE reserves the right to change its Spare Parts price list
from time to time upon not less than ninety (90) days prior written notice to
Hakuto. All prices will be F.O.B. EMCORE's plant in Somerset, New Jersey.
(b) Hakuto shall pay for each Product or System purchased under
this Agreement as follows:
(i) thirty percent (30%) of the approved purchase order price (or
the price set forth in a letter of intent to purchase a Product issued by
Hakuto preliminary to the issuance of its purchase order in customary
form)
(A) not later than 180 days prior to the scheduled delivery
date of the Product or
(B) within 30 days after issuance of Hakuto's purchase order
or Hakuto's letter of intent if delivery of the Product is scheduled
therein sooner than 180 days after the date of the purchase order or
letter of intent.
Any payment accompanying a letter of intent shall be refundable to Hakuto
in the event that the anticipated purchase order is not issued by reason
of the customer's change of plans or other business decision; and
(ii) seventy percent (70%) of the approved purchase order price
within 30 days after shipment of the Product by Emcore and delivery of a
bill of a lading evidencing such shipment.
(c) Hakuto shall pay for all Spare Parts purchased under this
Agreement, by making payment in full to EMCORE within thirty (30) days after
shipment.
(d) All payments for Products shall be in U.S. dollars, and shall
be made without adjustment for any currency exchange or conversion rate
changes, and without deduction for any taxes at any time levied by any govern-
mental authority.
5. Shipment. (a) All Products shall be shipped via carrier
designated in the purchase order, F.O.B. EMCORE's plant in Somerset, New
Jersey. Hakuto shall bear and pay for all taxes of any nature imposed by any
taxing authority after delivery to the carrier at the F.O.B. point. Hakuto
shall also bear and pay for all charges for freight, shipping, consular fees,
customs duties, and all costs and expenses incurred after delivery of the
Products to the carrier at the F.O.B. point. Hakuto shall bear all risk of
loss or damage to the Products after delivery to the carrier at the F.O.B.
point.
(b) Shipping dates, even when accepted by EMCORE, shall be
understood only as best estimates. EMCORE shall attempt to respect all
shipping dates, but shall not be liable to Hakuto for damages ensuing from any
delay in shipment or delivery, however caused, except as otherwise expressly
agreed by EMCORE in writing on a case-by-case basis.
(c) EMCORE shall not be liable for any shortage or for any defect
in the Products discoverable by visual inspection with respect to any shipment
unless Hakuto notifies EMCORE in writing of the shortage or defect, prior to
the earlier to occur of: (i) the expiration of sixty (60) days after receipt
of such shipment by Hakuto, or (ii) the expiration of twenty (20) days after
receipt of such shipment by Hakuto's customer. Upon receipt of such notice,
together with evidence that such shortage or defect exists, EMCORE reserves
the right, at its election, to replace Products found to be defective or short
in quantity, to issue a credit to Hakuto for the prorated invoice amount
relating to such shortage or defect, or to repair Products found to be
defective, all such remedial action to be taken by Emcore promptly without
material adverse effect upon Hakuto's customer.
6. Installation and Service. (a) Except as set forth below with
respect to warranty service, and except as otherwise expressly provided in
quotations issued by EMCORE, Hakuto shall be responsible at its own expense
for the installation and service of all Products purchased under this
Agreement. Hakuto shall maintain trained personnel and shall purchase and
maintain an inventory of Spare Parts sufficient in volume and assortment to
promptly and efficiently perform necessary installation and service functions
for all Products in the Territory. Hakuto shall give due consideration to
EMCORE's suggested minimum inventories for various Spare Parts.
(b) EMCORE shall make certain personnel available to assist Hakuto
in initial installation of the Products at the customer's facility as well as
in servicing the Products after installation until such time as Hakuto
personnel are fully trained and are capable, in EMCORE's reasonable judgment,
to perform such functions. The costs of initial installation shall be borne
by Emcore (i.e., included in the sale price of the Product) unless other fee
arrangements are agreed between Emcore and Hakuto on a specific matter.
Hakuto shall pay Emcore for post-installation servicing at the rate of $1,000
per person per day for field service engineers and $1,500 per person per day
for material process engineers, plus travel and living expenses. Said
reimbursement rates are based on the U.S. Consumer Price Index in effect on
the effective date of the Agreement and shall be subject to adjustment on an
annual basis to conform to any increase or decrease in said U.S. Consumer
Price Index as of each anniversary date of the Agreement.
7. Warranty and Insurance. (a) Material and Workmanship.
Subject to the disclaimers, limitations and exclusions set forth below, EMCORE
warrants to Hakuto and to the end user customer of Products that the Products
shall be free from defects in material and workmanship. This warranty shall
become effective upon completion of installation of the Product at the end
user's facility and acceptance of the Product by the customer but in no event
later than ninety (90) days after title passes from EMCORE to Hakuto, and
shall extend for a period of one year thereafter Hakuto shall notify EMCORE
from time to time of the installation completion and customer acceptance date
of the Products. With respect to any non-conforming Products as to which
EMCORE shall have received notification of such non-conformance within twenty
(20) days after discovery of same, EMCORE shall at its election repair the
same or provide a replacement Product at no cost to Hakuto or the end user.
In no event shall EMCORE be liable for the cost of any labor or transportation
charges incurred in the repair or replacement of any non-conforming Product,
other than (i) labor costs incurred by EMCORE for Product repairs performed in
the United States, (ii) cost of transportation incurred by EMCORE in the
United States, and (iii) upon EMCORE's express written instructions only,
costs of transportation by Hakuto to EMCORE of Products to be repaired by
EMCORE, in the United States.
(b) Warranty as to Specifications. EMCORE warrants that the
Products shall conform to the published specifications of EMCORE or the
specifications of an end user customer approved and accepted by EMCORE. With
respect to any non-conforming Product under this warranty, EMCORE shall
perform all necessary re-engineering, rework or other procedures necessary to
conform the Product to the agreed specifications. Specifically, EMCORE shall
be responsible for labor, travel and living costs of EMCORE personnel whether
incurred in the United States or in Japan.
(c) Exclusions and Disclaimer. EMCORE's warranties set forth in
paragraphs 7(a) and (b) above do not apply to expendable items, including
those items listed in Exhibit B attached hereto. Also excluded from EMCORE's
foregoing warranties are any components identified by EMCORE to Hakuto as
being the subject of manufacturers' or licensors' warranties, which warranties
shall be deemed assigned to Hakuto at the time title to the goods passes to
Hakuto. With respect to all such components, Hakuto's remedy shall be limited
to the warranty and remedy provided by the manufacturer or the licensor of
said components, and EMCORE's liability obligation shall be limited to the
exercise of its best efforts to assist Hakuto in obtaining the benefit of such
manufacturer's or licensor's warranties.
THE FOREGOING IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES,
EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND SHALL CONSTITUTE THE SOLE REMEDY OF
HAKUTO AND LIABILITY OF EMCORE WITH RESPECT TO ANY PRODUCTS DELIVERED PURSUANT
TO THIS AGREEMENT. IN NO EVENT SHALL EMCORE BE LIABLE FOR DAMAGES OF ANY KIND
OR NATURE RESULTING FROM IMPROPER OR NEGLIGENT USE OR OPERATION OF PRODUCTS,
IMPROPER PREVENTATIVE MAINTENANCE, MODIFICATIONS FROM THE ORIGINAL SYSTEM
CONFIGURATION OR REPAIR BY PERSONNEL OTHER THAN THOSE IN THE EMPLOY OF EMCORE,
OR THOSE IN THE EMPLOY OF HAKUTO WHO HAVE BEEN TRAINED AND APPROVED BY EMCORE.
IN NO EVENT SHALL EMCORE BE LIABLE FOR CONSEQUENTIAL DAMAGES, ANTICIPATED OR
LOST PROFITS, INCIDENTAL DAMAGES OR LOSS OF TIME OR OTHER LOSSES OR EXPENSES
INCURRED BY HAKUTO OR ANY END USER CUSTOMER, DIRECTLY OR INDIRECTLY, IN
CONNECTION WITH THE SALE, HANDLING OR USE OF THE PRODUCTS COVERED BY EMCORE'S
WARRANTY.
(d) EMCORE shall be responsible for supplying all Spare Parts
necessary to satisfy EMCORE's obligations under the foregoing warranties, and
Hakuto shall be responsible for supplying all installation or service relating
to the warranty program except as otherwise provided in paragraph 7(b) with
respect to specification non-conformance. In order to facilitate this
program, EMCORE agrees to maintain with Hakuto, at such location in the
Territory as Hakuto may designate, a consignment inventory of Spare Parts (the
"Consignment Inventory") determined by EMCORE to be reasonably necessary for
the prompt and efficient delivery of warranty service. Hakuto agrees to
provide to EMCORE periodic reports setting forth (i) with respect to all
warranty claims made during such month, the identity of the end user, the
nature of the claim, the service provided and the Spare Parts used, if any, in
providing such service and (ii) the current levels of all Spare Parts
comprising the Consignment Inventory.
(e) Each party shall maintain in force policies of products
liability insurance with respect to the Products in an amount not less than $2
million, each of which shall name the other party as an additional insured.
Each party shall furnish the other satisfactory evidence of such insurance
coverage.
8. Obligations of Hakuto. (a) In addition to and not in
limitation of any other obligations of Hakuto under this Agreement, Hakuto
shall, at its own expense unless otherwise expressly provided herein:
(i) Exert its best efforts to vigorously promote the sale of the
Products in the Territory and to develop a market demand for the Products
in the Territory.
(ii) Advertise the Products throughout the Territory in appropriate
advertising media and in a manner insuring proper and adequate publicity
for the Products. EMCORE shall review and approve all advertising prior
to release by Hakuto.
(iii) Prepare for EMCORE's review and approval, and update not less
than quarterly, a detailed marketing plan for the sale of the Products in
the Territory.
(iv) Establish and maintain within the Territory adequate business
locations, including suitable facilities for the display, care and
storage of the Products and shall provide adequate insurance against
loss.
(v) Maintain within the Territory an inventory of Spare Parts (in
addition to the Consignment Inventory) sufficient to meet expected
demands for service and upgrading of the Products in the Territory.
(vi) Maintain a trained technical sales force and sufficient other
personnel qualified to promote, install and service the Products in the
Territory and send appropriate personnel to Emcore for one week training
on an annual basis.
(vii) Offer the Products for sale (including all advertising and
promotional activities) under the EMCORE trademark as manufacturer and
Hakuto's trademark as distributor.
(viii) Assume full responsibility for the installation of the
Products, and the warranty and post-warranty service and maintenance of
the Products, in the Territory.
(ix) Translate and prepare promotional and technical literature for
use in the Territory.
(x) Obtain all import and regulatory approvals necessary for the
promotion and sale of the Products in the Territory, supply EMCORE with
necessary customer import certificates, and otherwise advise and assist
EMCORE in complying with U.S. regulations and with regulations and
customs applicable in the Territory.
(xi) Provide EMCORE with periodic reports (but not less often than
quarterly) in form and substance satisfactory to EMCORE, setting forth
detailed information for such period regarding sales, quotations,
promotional efforts made, advertising, resale prices, competitors,
activities in the Territory, installation and service activities
performed, customer complaints, business trends and any other information
likely to assist EMCORE in evaluating the performance of Hakuto in the
Territory.
(xii) Establish and maintain complete and accurate records of all
sales and service of the Products in the Territory.
(xiii) Refrain, without EMCORE's prior written consent, from seeking
customers outside the Territory or from promoting the sale of the
Products outside the Territory.
(xiv) Refrain from purchasing or soliciting orders for goods which
compete in any way with the Product.
(b) Hakuto will purchase during each of the first two Contract
Years not less than $3,100,000 of Products (said sum being based upon average
annual purchases made by Hakuto during the five year period from October 1990
through September 1995). For each succeeding Contract Year of the Agreement,
Hakuto and Emcore shall mutually agree on a minimum purchase amount for each
such year prior to commencement of such Contract Year.
In computing the value of the minimum purchase amount for each
Contract Year, there shall be included the value of all Products shipped
during said Contract Year, the value of orders issued by Hakuto though not
shipped by Emcore during the Contract Year, and the value of orders procured
by Hakuto but cancelled by Hakuto's customer by reason of Emcore's inability
to perfect delivery of the Product within six months from date of the order.
The value of all of the foregoing orders which exceeds the minimum purchase
commitment for any Contract Year shall be credited to Hakuto's minimum
purchase commitment for the subsequent Contract Year. "Contract year" shall
mean the twelve month period commencing on the date of this Agreement and each
twelve month period thereafter during the term of this Agreement or any
renewal term thereafter.
9. Trademark and Patent Rights. (a) Exhibit C attached hereto
and made a part hereof identifies all trademarks and patents which have
already been registered by EMCORE in the Territory or in which EMCORE
otherwise claims a proprietary interest (the "Intellectual Property"). Hakuto
is hereby granted the license and privilege to use the Intellectual Property
during the term of this Agreement in furtherance of the objectives of this
Agreement. Hakuto shall not have the right to sublicense the Intellectual
Property or otherwise permit its use by third parties.
(b) Hakuto shall advise EMCORE from time to time of any additional
filings, registrations or other actions that may be necessary or desirable for
the protection of EMCORE's patent or trademark rights in the Territory. Upon
EMCORE's request, Hakuto will assist EMCORE in connection with the issuance or
registration of any new EMCORE patents or trademarks in the Territory.
(c) Hakuto shall at all times respect and protect EMCORE's rights
of total ownership of the Intellectual Property in the Territory. Hakuto
shall promptly notify EMCORE of any infringements of such rights of which it
has notice and shall assist EMCORE in taking such action against such
infringement as EMCORE may elect.
(d) Upon termination of this Agreement for any reason, Hakuto shall
promptly relinquish to EMCORE any rights to the use of the Intellectual
Property and shall thereafter refrain from using same.
10. Confidentiality. Hakuto agrees to use its best efforts to hold
in strict confidence and not to disclose to others or use, either before or
after termination of this Agreement, any technical or business information,
manufacturing technique, process, experimental work, trade secret or other
confidential matter relating to the Products or EMCORE's business, except to
the extent necessary to further the objectives of this Agreement. Hakuto
shall, upon request (and upon termination of this Agreement without request),
deliver to EMCORE any and all drawings, notes, documents and materials
received from EMCORE.
11. Assignment. Neither party shall assign, transfer or otherwise
dispose of this Agreement or any of its rights or obligations hereunder in
whole or in part to any individual, firm or corporation without the prior
written consent of the other party, and any attempted assignment in violation
of this provision shall be null and void.
12. Term and Termination. (a) This Agreement shall take effect on
the date set forth on the first page hereof and shall remain in effect for a
period of seven (7) years thereafter unless earlier terminated in accordance
with the terms hereof. This Agreement may be terminated by either Party upon
the expiration of the seven-year period by giving six (6) months prior written
notice to the other party of its intent not to extend the Agreement for
further periods. Unless such notice of intent to terminate is given, this
Agreement shall continue to remain in effect after the initial seven-year
period for further consecutive periods of one year each, subject, however, to
the right of either party to terminate the Agreement at any time by giving six
(6) months prior written notice to the other party of its intent to terminate.
(b) In addition to the provisions of Section 12(a) above, either
party may terminate this Agreement as follows:
(i) Immediately and without prior written notice to the other
party in the event that proceedings in bankruptcy or insolvency are
instituted by or against the other party, or a receiver is appointed or
any substantial part of the assets of the other party is the subject of
attachment, sequestration or other similar proceeding, and such
proceeding is not vacated, terminated or stayed within 60 days after its
commencement or institution; or
(ii) Immediately upon the occurrence of a default by the other
party in the performance of its obligations under this Agreement, which
default is not cured within 30 days after receipt by such party of
written notice of the default; or
(iii) Immediately if either party is unable to obtain or renew any
permit, license, or other governmental approval necessary to such party's
performance under this Agreement; or
(iv) Upon thirty (30) days prior written notice to the other party
of intent to terminate if the parties are unable to agree upon the terms
and conditions of conversion or modification of that certain Senior
Secured Note Purchase and Security Agreement dated as of June 2, 1993,
now in effect between the parties.
(c) EMCORE reserves the right to terminate this Agreement by giving
Hakuto six (6) months prior written notice of intent to terminate in the event
Hakuto fails to purchase for delivery not less than $3,100,000 of Products
during each of the first two (2) years of this Agreement.
13. Consequences Upon Termination. Upon expiration or termination
of this Agreement for any reason:
(a) EMCORE shall repurchase Hakuto's inventory of new and unused
Spare Parts at EMCORE's then effective list price for such Spare Parts or
Hakuto's cost therefor, whichever is lower. Hakuto shall deliver such Spare
Parts, together with the Consignment Inventory, at EMCORE's expense, to EMCORE
at such location, in such manner and at such time as EMCORE may direct.
(b) Hakuto shall return to EMCORE all proprietary information and
all sales and technical literature relating to the Product, and Hakuto shall
deliver to EMCORE Hakuto's list of all customers and prospective customers for
the Products in the Territory, including names, addresses, telephone numbers
and contact persons.
(c) Hakuto shall cease marketing the Products and using EMCORE's
name and trademarks in the Territory, provided that all orders for Products
accepted by EMCORE prior to expiration or termination of this Agreement shall
be completed in accordance with their terms. Hakuto shall thereafter refer to
EMCORE any and all inquiries, orders, correspondence and the like, whether in
written or oral form pertaining to Products in the Territory.
(d) EMCORE shall assume, commencing immediately upon termination of
this Agreement, full responsibility for providing warranty service and post-
warranty servicing of the Products to all customers theretofore serviced by
Hakuto, and EMCORE shall hold Hakuto free and harmless from all such
obligations.
(e) EMCORE shall pay to Hakuto a commission equal to five percent
(5%) of the purchase price of any System for which EMCORE issued a formal
quotation prior to the expiration or termination of this Agreement, if and to
the extent such System is sold in the Territory on substantially the same
terms contained in such quotation and payment in full for such System is
received by EMCORE within twelve (12) months after such expiration or
termination.
(f) Provided that termination of this Agreement did not result by
reason of the breach of or default under this Agreement by either party,
neither party to this Agreement shall claim from the other party any
indemnity, reimbursement, compensation or damages for alleged loss of
clientele, good will, profits or anticipated sales or on account of
expenditures, investments, leases or other commitments arising from the
expiration or termination of this Agreement, each party acknowledging that it
has made all decisions and investments in full awareness of the possibility of
losses or damages arising from the expiration or termination of this
Agreement.
14. Miscellaneous. (a) Notices. All notices and other
communications in connection with this Agreement shall be in writing, shall be
sent to the respective parties at the following addresses, or to such other
addresses as may be designated by the parties in writing from time to time, by
registered or certified mail, telegram, telecopy or recognized overnight
delivery service, and shall be effective upon receipt:
TO EMCORE: EMCORE Corporation
35 Elizabeth Avenue
Somerset, New Jersey 08873
Attention: Tom Werthan
Telephone: 908-271-9090
Fax: 908-271-9686
TO HAKUTO: Hakuto Co., Ltd.
1-13 Shinjuku
I-Chome, Shinjuki-Ku
Tokyo 160, Japan
Attention: T. Yamawaki
Telephone: 3-3225-8910
Fax: 3-3225-9007
WITH COPY TO: Masuda, Funai, Eifert & Mitchell, Ltd. One East Wacker
Drive, Suite 3200
Chicago, Illinois 60601-1802
Attention: Thomas P. McMenamin
Telephone: 312-245-7500
Fax: 312-245-7467
(b) No Waiver. Any failure by any party hereto to enforce at any
time any term or condition under this Agreement shall not be considered a
waiver of that party's right thereafter to enforce each and every term and
condition of this Agreement.
(c) Governing Law; Arbitration. This Agreement is made and shall
be construed according to the laws of the State of New Jersey, USA. All
disputes, controversies, or differences which may arise between the parties,
out of or in relation to or in connection with this contract, or the breach
thereof, shall be finally settled by arbitration pursuant to the Japan-
American Trade Arbitration Agreement, of September 16, 1952, by which each
party hereto is bound. The arbitration proceeding shall be held in Somerset
County, New Jersey, if Hakuto seeks arbitration and in Tokyo, Japan, if Emcore
institutes such proceeding. Each party shall bear its own costs incurred in
such arbitration proceeding.
(d) Modification. This Agreement may be modified, amended or
revised only by a written instrument duly executed by the parties hereto.
(e) Compliance with Laws. Hakuto in the conduct of its business
under this Agreement shall comply with the applicable laws, regulations,
orders and the like prevailing in the Territory and shall hold EMCORE harmless
from any claim, liability, cost or expense arising out of a violation thereof.
(f) Entire Agreement. This Agreement, the exhibits and duly
executed addenda thereto, and all approved purchase orders issued pursuant
hereto shall contain the entire and only agreement between the parties
relating to the subject matter hereof, and any representations, terms or
conditions relating thereto but not incorporated herein shall not be binding
upon either party. This Agreement wholly cancels, voids, and supersedes any
agreement heretofore entered into between the parties with respect to the
subject matter hereof, except as otherwise expressly provided herein.
(g) Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions or affecting
the validity or enforceability of any provision in any other jurisdiction.
(h) Successors and Assigns. Subject to Section 11 hereof, all
terms and provisions of this Agreement shall be binding upon and inure to the
benefit of the parties and their respective transferees, successors and
assigns.
(i) Execution. This Agreement may be executed by duly authorized
officers of the respective parties hereto in any number of counterparts, each
of which shall be deemed the original. This Agreement may be translated into
any other language and such translation may be initialed, but only this
Agreement in the English language shall be deemed the original. If any
conflict exists between the English language and the translation, the English
language version shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first above written.
EMCORE CORPORATION
By /s/ Norman E. Schumaker
Title: Chief Executive Officer
HAKUTO CO., LTD.
By
Title: President
Exhibit A
PRODUCTS
[Paragraph 1(a)]
Explorer GS/3100 with glove box (no load lock) and limited options
Discovery 75 GS/3100
Discovery 125 GS/3200
Discovery 180 GS/3300
Enterprise 200 GS/3300 with new Enterprise engineering (not yet
available)
Enterprise 300 Enterprise (GS/4400)
Enterprise 400 GS/9400
Exhibit B
Consumable Items
Not Covered Under Warranty
[Paragraph 7(c)]
(Subject to revision by Emcore)
1. Pump Fluids - (krytox, mechanical pump fluid)
2. Oil Coalescing Filter Element
3. Oil Backstreaming Filter Element
4. Oil Recirculation Filter Element
5. Graphite Heater Filament
6. Loadlock Heater Bulbs
7. Copper Gaskets
8. Nickel Gaskets
9. Viton-rings VCR Filter Gaskets
10. PD Cell Membrane
11. Reactor Parts:
a. Moly Electrodes
b. Moly Standoff Nuts
c. Moly Screws
d. Vented Screws
e. Laser Drilled Quartz Plate
12. TGA (Activated Carbon)
13. MDA Tape
14. MDA Thermal Print Paper
15. Motor Drive Belt
16. Needle Valve Belt
17. Computer Disks
18. Fuses
19. Loadlock Operation Fluid
20. Stainless Steel Filter Medium
21. Fluorescent Light Bulbs
22. Clean Air Filters
23. Miscellaneous Hardware
Exhibit C
Patents:
Modular Gas Handling Apparatus
Gas Treatment Apparatus and Method
Gas Dispersion Device
Trade Mark:
EMCORE
Exhibit 10.5
[Lease for premises at 394 Elizabeth Avenue, Somerset, New Jersey 08873]
SKW REAL ESTATE LIMITED PARTNERSHIP
1650 Tysons Boulevard, 4th Floor
McLean, Virginia 22102
December 1, 1996
Emcore Corporation
394 Elizabeth Avenue
Somerset, New Jersey 08873
Re: The Drew Building
394 Elizabeth Avenue
a/k/a 720 Elizabeth Avenue
a/k/a 394 Elizabeth Avenue
Somerset, New Jersey
Franklin Township, Somerset County
Block 528.05, Lot 19.25
Ladies and Gentlemen:
Reference is hereby made to that lease of the Premises commencing
November 1, 1992 between our predecessor-in-interest, New Jersey National
Bank, and you, as the Tenant, amended by those certain letter agreements dated
March 31, 1995 and January 29, 1996 (collectively the "Lease"). The Landlord
and Tenant have agreed to modify the terms of the Lease as set forth herein.
All capitalized terms used herein not defined herein shall have the meanings
ascribed to them in the Lease.
a) Paragraph 1(c) is hereby modified to provide that the Premises
is 74,850 square feet (37,010 square feet as per letter agreement dated March
31, 1995, plus 11,842 square feet of initial expansion space as per a letter
agreement dated January 29, 1996 plus 25,998 square feet as per this letter
agreement). The Premises now constitute the entire building -- 100% thereof.
This percentage shall be used in all applicable prorations referenced in the
Lease. Accordingly, as of the possession date (defined below) of the
Expansion Space (as defined below), Tenant shall be liable for all of the real
estate taxes and all Expense Rent (without reference to any Expense Base Year)
relating to the Property. Landlord shall have no liability whatsoever for any
repairs or maintenance of any portion of the Property or the Premises except
for roof repair or replacement and the structural aspects of the Property,
provided that the damage thereto shall not have been or caused by the
negligence or deliberate acts of Tenant, or its agents, servants, employees,
guest or invitees, in which event, the same shall be repaired by Tenant at
Tenant's sole cost and expense. The new space being added to the Premises
(the "Expansion Space") is the cross-hatched area shown on EXHIBIT I annexed
hereto.
b) Paragraphs 1 (e) and 49 of the Lease are modified to provide
that the Fixed Rental is $533,762.70 per year, $44,480.23 per month).
c) With respect to the Expansion Space:
1) The possession date thereof shall be the date Tenant or
its counsel receives a copy of this letter agreement
signed by all parties hereto.
2) The Expansion Space shall be delivered totally "as-is" to
the Tenant. The Landlord shall not be required to make
any improvements thereto except as expressly set forth
herein, nor shall Landlord be required to demolish any
existing walls or other structures therein.
3) Tenant shall be entitled to an abatement of Fixed Rental
relating to the Expansion Space ($13,540.63) for a period
of one (1) month from its possession date (i.e., for this
one (1) month abatement period, the Fixed Rental shall
remain in the same amount as it was immediately prior to
Tenant's possession of the Expansion Space -- $30,939.60),
provided, however, that the abatement of Fixed Rental
provided for in this Lease is conditioned upon Tenant's
full and timely performance of all of its obligations
under the Lease during the abatement period.
4) As soon as practicable, Tenant shall deliver to Landlord
detailed plans and specifications for the construction of
the improvements the Tenant proposes to construct in the
Expansion Space. Landlord's approval of such plans and
specifications shall not be unreasonably withheld or
delayed provided that such plans and specifications comply
with all laws, rules and regulations and are sufficiently
detailed to allow construction of the improvements in a
good and workmanlike manner. As used herein, "Working
Drawings" shall mean the final drawings approved by the
Landlord and the "Work" shall mean all improvements to be
constructed in accordance with the Working Drawings.
Landlord's approval of the Working Drawings shall not be a
representation or warranty of Landlord that such drawings
are adequate for any use or comply with any law and shall
merely be the consent of the Landlord thereto. Any and
all changes in the Work must receive the prior written
consent of the Landlord which will not be unreasonably
withheld. All contractors and subcontractors performing
the Work shall be required to procure and maintain
insurance against such risks, and in such amounts, and
with such companies as Landlord may reasonably require.
Certificates of such insurance, with paid receipts
therefor, must be received by Landlord before any Work is
to be commenced. The Work shall be performed in a good
and workmanlike manner, free of defects and shall strictly
conform with the Working Drawings. The entire cost of
performing the Work (the "Total Construction Cost") shall
be paid by Tenant.
d) With respect to a New HVAC units to be installed for the
Expansion Space, Landlord shall be responsible for the first $108,000 of the
cost of such units and installation thereof and Tenant shall be liable for any
such costs in the excess of said sum. The HVAC units and the installation
thereof shall be subject to the Landlord's prior approval which approval will
not be unreasonably withheld or delayed.
e) Upon execution hereof by both parties, the Tenant shall have
the right to expand the existing elevated concrete storage pad and to
construct a concrete pad for the storage of liquid nitrogen tanks (in
accordance with EXHIBIT 2 annexed hereto) in strict accordance with all
applicable governmental laws, rules, regulation and ordinances.
f) Tenant shall deliver to Landlord, simultaneously herewith, and
within ninety (90) days after the end of each of its fiscal years during the
term hereof, copies of its then current annual financial statements prepared
by its regularly engaged independent certified public accountants.
g) Tenant hereby confirms that it has no option to purchase, right
of first refusal or any other agreement whatsoever with respect to the
Property.
h) The term "Lease" shall mean the Lease as amended and
supplemented by this letter agreement. In all other respects, the Lease
remains in full force and effect.
If this letter agreement accurately and completely sets forth our
understanding, please execute the extra copy hereof where indicated below and
return same to the undersigned.
Very truly yours,
SKW REAL ESTATE
LIMITED PARTNERSHIP
By: WSK GEN-PAR, INC.,
its General Partner
By: /s/ Richard Schreiber
RICHARD SCHREIBER
Assistant Vice President
Agreed and accepted this
15th day of November, 1996.
EMCORE CORPORATION
By: /s/ Thomas G. Werthan
THOMAS WERTHAN
Vice President
cc: Mr. Richard Madison, Newmark Partners, Inc.
Exhibit 10.6
REGISTRATION RIGHTS AGREEMENT
[relating to September 1996 warrant issuance]
REGISTRATION RIGHTS AGREEMENT, dated as of this 20th day of December
1996, between EMCORE CORPORATION, a New Jersey corporation (the
"Corporation"), and the persons set forth on Schedule A hereto (the
"Investors').
WITNESSETH
WHEREAS, the Corporation agreed to provide the Investors with
registration rights as set forth herein as further consideration for the
purchase by the Investors of 4,133,333 warrants to purchase shares of common
stock of the Corporation (the "Common Stock"), 833,333 having been issued as
of September 1, 1996 and 3,333,333 being issued as of the date of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the terms and
conditions hereof, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
Affiliate and Associate: Such terms shall have the respective meanings
assigned to them pursuant to Rule 12b-2 under the Exchange Act.
Commission: The United States Securities and Exchange Commission and any
successor federal agency having similar powers.
Common Stock: The Company's common stock, no par value.
Exchange Act: The Securities Exchange Act of 1934, as amended, or any
similar federal statute, and the rules and regulations thereunder, all as at
the time in effect.
Person: An individual, partnership, joint venture, corporation, trust,
unincorporated organization or the government or any department or agency
thereof.
Registrable Securities: All of the Corporation's Common Stock acquired or
acquirable by the investors upon exercise of warrants acquired as of the date
of this Agreement.
Registration Expenses: Except as otherwise specifically provided herein,
all of the Corporation's out-of-pocket expenses, without limitation as to
amount, incident to the Corporation's performance of or compliance with
Section 2 herein, including, without limitation, all fees and expenses,
outside messenger and delivery expenses, the fees and disbursements of counsel
for the Corporation and of its independent public accountant, and any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities and the expenses of one firm of attorneys who shall represent the
Investors. Registration Expenses shall not include any underwriter's
discounts, commissions or transfer taxes paid by the Investors.
Securities Act: The Securities Act of 1933, as amended, or any similar
federal statute, and the rules and regulations thereunder, all as at the time
in effect.
Warrants: The Company's warrants, dated as of the date of this
Agreement, to purchase one share of the Common Stock exercisable at $3.00 per
share and expiring September 1, 2001, and as otherwise set forth therein.
2. Registration
2.1 Registration on Request (Demand Registration). (a) Request. At any
one time more than six (6) months after the date hereof, upon the written
request of a majority in interest of Investors that the Corporation effect the
registration under the Act of all or part of each Investor's Registrable
Securities specifying the intended method or methods of disposition thereof,
the Corporation will use its best efforts to effect the registration under the
Securities Act of such securities to permit their disposition (in accordance
with the intended methods thereof as aforesaid) and keep such registration
open for a period of not less than nine (9) months, provided that if such
registration may then be effected by the Corporation on Form S-3 or Form S-3B
or any successor form of registration, then the Corporation shall keep such
registration effective until the Registerable Securities may be sold publicly
pursuant to Rule 144 by the Investors.
(b) Registration Statement Form. Registrations under this Section 2.1
shall be on an appropriate registration form of the Commission as determined
by the Corporation and shall permit the disposition of the Registrable
Securities in accordance with the intended method or methods of disposition
specified in the Investors' request for such registration.
(c) Expenses. The Corporation will pay all Registration Expenses in
connection with any registration of the Registrable Securities.
2.2 Incidental Registration (Piggyback Registration). (a) Notice and
Request. If the Corporation at any time proposes to register any of its
securities under the Securities Act (except registrations solely for
registration of shares in connection with an employee benefit plan or a merger
or consolidation), whether or not for sale for its own account, it will each
such time give prompt written notice to the investors of its intention to do
so. Upon the written request of any Investor within 30 days after the receipt
of any such notice (which request shall specify the Registrable Securities
intended to be disposed of by the Investor, the Corporation will use its best
efforts to effect the registration under the Securities Act of all Registrable
Securities which the Corporation has been so requested to register by the
Investor as part of the incidental registration, provided that if the
Corporation shall determine for any reason not to register or to delay
registration of such securities the Corporation may, at its election, give
written notice of such determination to the Investors, and, thereupon, (i) in
the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration, without prejudice, however, to the rights of the Investors to
request that such registration be effected as a registration under Section
2.1, and (ii) in the case of a determination to delay registering, shall be
permitted to delay registering any Registrable Securities, for the same period
as the delay in registering such other securities. No registration effected
under this Section 2.2 shall relieve the Company of its obligation to effect
any registration upon request under Section .2.1. The Registration Expenses
of the Investors shall be paid by the Corporation.
(b) Underwriters Cutback. If, in any incidental registration referred to
in Section 2.2(a) above, the managing underwriter or underwriters thereof
shall advise the Corporation in writing that in its or their reasonable
opinion the number of securities proposed to be sold in such registration
exceeds the number that can be sold in such offering without having a material
effect on the success of the offering (including, without limitation, an
impact on the selling price or the number of shares that any participant may
sell), the Corporation will include in such registration only the number of
securities that, in the reasonable opinion of such underwriter or
underwriters, can be sold without having a material adverse effect on the
success of the offering as follows: (i) first, all of the shares to be issued
and sold by the Corporation and (ii) second, the Registrable Securities
requested to be included in such registration by the Investors and any other
Person pro rata on the basis of the aggregate number of shares requested to be
included.
(c) Sales during Registration. The Investors participating in the
incidental registration agree, if requested by the managing underwriter in an
underwritten public offering, not to effect any public sale or distribution of
securities of the Corporation of the same class as the Registrable Securities
so registered, including a sale pursuant to Rule 144 under the Securities Act
(except as part of such underwritten offering), during the ten-day period
prior to, and during the 80-day period beginning on, the closing date of the
underwritten offering. Each Investor agrees that it shall undertake, in its
request to participate in any such underwritten offering, not to effect any
public sale or distribution of any applicable class of Registrable Securities
during the 90-day period commencing on the date of sale of such applicable
class of Registrable Securities unless it has provided 90 days prior written
notice of such sale or distribution to the underwriter(s).
2.3 Registration Procedures. Whenever the Corporation is required to
effect. the registration of any Registrable Securities under the Securities
Act as provided in Sections 2.1 and 2.2, it shall, as expeditiously as
possible:
(i) prepare and (within 120 days after a request for registration is
given to the Corporation or as soon thereafter as possible) file with the
Commission a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective;
(ii) prepare and file with the Commission such amendments and supplements
to the registration statement and prospectus used in connection therewith as
may he necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act for nine (9) months if under 2.1 and
90 days if under 2.2;
(iii) furnish to each Investor participating such number of conformed
copies of such registration statement and of each amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
flied under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, as such Investor
may reasonably request;
(iv) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statements under
such other' securities or blue sky laws of such jurisdictions where an
exemption is not available and as the Investors participating shall reasonably
request, to keep such registration or qualification in effect for so long as
such registration statement remains in effect, and take any other action which
may be reasonably necessary or advisable to enable the Investors participating
to consummate the disposition in such jurisdictions of the securities owned by
them, except that the Corporation shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subdivision
(iv) be obligated to be so qualified or to consent to general service of
process in any such jurisdiction; and
(v) notify each Investor participating, at any time when a prospectus
forming a part of such registration statement is required to be delivered
under the Securities Act, upon discovery that, or upon the happening of any
event as a result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances under which they were made, and at the request of the
participating investors promptly prepare and furnish to the participating
investors a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or. omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they are made.
2.4 Limitations, Conditions and Qualifications to Obligations under
Registration Covenants. The obligations of the Corporation to use its
reasonable efforts to cause the Registrable Securities to be registered under
the Securities Act are subject to each of the following limitations,
conditions and qualifications.
(a) The Corporation shall not be obligated to file any registration
statement pursuant to Section 2.1 hereof at any time if the Corporation would
be required to include financial statements audited as of any date other than
the end of its fiscal year.
(b) The Corporation shall be entitled to postpone for a period of time
(which in the judgment of the Corporation is reasonable under the
circumstances) the filing of any registration statement otherwise required to
be prepared and filed by it pursuant to Section 2.1 if the Corporation
determines, in its reasonable judgment, that such registration and offering
would interfere with any financing, acquisition, corporate reorganization or
other proposed material transaction involving the Corporation or any of its
Affiliates or that it would require the Corporation to disclose material
non-public Information that it deems advisable not to disclose and promptly
gives the Investor written notice of such determination. Further, the
Corporation shall have the right to require each Investor participating not to
sell securities in a public offering for a period of up to 90 days during the
effectiveness of any registration statement if the Corporation shall determine
that such sale would interfere with any transaction involving the Corporation
as described above or that such registration would require disclosure of such
material non-public information. If pursuant to the preceding sentence the
Corporation has required the Investor to discontinue the sale of securities
during the effectiveness of a registration statement, then the period of time
any such registration statement must be kept effective pursuant to Section
2.3(ii) hereof shall be extended for a period equal to the length of such
discontinuance.
(c) If the Investor proposes that the sale of Registrable Securities
pursuant to Section 2.1 hereof be an underwritten offering, the Corporation
shall have the right to approve the choice of underwriters who undertake such
offering.
2.5 Indemnification. (a) Indemnification by the Corporation. In the event
of any registration of any Registrable Securities of the Corporation under the
Securities Act pursuant to Section 2.1 or 2.2, the Corporation will, and
hereby does, indemnify and hold harmless each Investor, its directors and
officers, any underwriter and each other Person, if any, who controls any
Investor or any such underwriter, against any losses, claims, damages or
liabilities, to which any Investor or any such director or officer or
underwriter or controlling person may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities arise out
of or are based upon any untrue statement of any material fact contained in
any registration statement under which such securities were registered under
the Securities Act or any prospectus contained therein, or any omission or
alleged omissions to state therein a material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the Corporation will
reimburse each Investor, and each such director, officer, underwriter and
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim or
liability or action or proceeding in respect thereof; provided that the
Corporation shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises at of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or any such prospectus, in reliance upon
and in conformity with written information furnished to the Corporation by or
on behalf of any investor or underwriter, as the case may be, specifically
stating that it is for use in the preparation thereof; and provided, further,
that the Corporation shall not be liable in any case to the extent that such
loss, claim, damage, liability or expense arises out of an untrue or alleged
untrue statement or omission or alleged omission in a prospectus, if such
statement or omission is corrected in an amendment or supplement to the
prospectus and the Investor thereafter fails to deliver such prospectus as
amended or supplemented prior to or concurrently with the sale of the
Registrable Securities. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any Investor, or any
such director, officer or controlling person and shall survive the transfer of
such securities by the Investor.
(b) Indemnification by the Investors. The Corporation may require, as a
condition to including any Registrable Securities in any registration
statement filed pursuant to Section 2.1 or 2.2, that the Corporation shall
have received an undertaking satisfactory in all respects to it from each
Investor participating, to indemnify and hold harmless (in the same manner and
to the same extent as set forth in subdivision (a) of this Section 2.5) the
Corporation, each director of the Corporation, each officer of the Corporation
and each other person, if any, who control the Corporation within the meaning
of the Securities Act, with respect to any statement or alleged statement in
or omission or alleged omission from such registration statement or any
prospectus contained therein, if such statement or alleged statement or
omission or alleged omission was made in reliance upon or in conformity with
written information furnished to the Corporation by the Investor for use in
the preparation of such registration statement or prospectus. Such indemnity
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the Corporation or any such director, officer or controlling
person and shall survive the transfer of such securities by the investor.
(c) Notices of Claims etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subdivisions of this Section 2.5, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action, provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this Section 3.6, except to the extent
that the indemnifying party is actually prejudiced by such failure to give
notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall be liable for any settlement of any
action or proceeding effected without its written consent. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
(d) Other Indemnification. Indemnification similar to that specified in
the preceding subdivisions of this Section 2.b (with appropriate
modifications) shall be given by the Corporation and each Investor
participating with respect to any required registration or other qualification
of securities under any Federal or state law or regulation of any governmental
authority other than the Securities Act.
3. Notices. All communication provided for hereunder shall be sent by
first- class mail and, if to an Investor, addressed to the investor as the
Investor may have designated to the Corporation in writing, and, if to the
Corporation, addressed to it at c/o EMCORE Corporation, 394 Elizabeth Avenue,
Somerset, NJ 08873-1214, Attention: Board Secretary, or to such other address
as the Corporation may have designated to the Investor in writing.
4. Assignment. This Agreement shall be binding upon end inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns.
5. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
6. Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws
of the State of New Jersey.
7. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all
such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their respective officers thereunto duly authorized as of the
date first above written.
EMCORE CORPORATION
By: /s/ Reuben F. Richards, Jr.
Name: Reuben F. Richards, Jr.
Title: President
The Investors by their Agent-in-Fact
pursuant to Subscription Agreements signed
by them
JESUP & LAMONT MERCHANT PARTNERS, L.L.C.
By: /s/ Howard Curd
Name: Howard Curd
Title: Manager
Schedule A
EMCORE Corporation
Investors
Name & Address Amount Telephone Fax
Exhibit 10.7
REGISTRATION RIGHTS AGREEMENT
[relating to December 1996 warrant issuance]
REGISTRATION RIGHTS AGREEMENT, dated as of this 20th day of December
1996, between EMCORE CORPORATION, a New Jersey corporation (the
"Corporation"), and the persons set forth on Schedule A hereto (the
"Investors").
WITNESSETH
WHEREAS, the Corporation agreed to provide the Investors with
registration rights as set forth herein as further consideration for the
purchase by the Investors of 4,133,333 warrants to purchase shares of common
stock of the Corporation (the "Common Stock"), 833,333 having been issued as
of September 1, 1996 and 3,333,333 being issued as of the date of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the terms and
conditions hereof, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
Affiliate and Associate: Such terms shall have the respective meanings
assigned to them pursuant to Rule 12b-2 under the Exchange Act.
Commission: The United States Securities and Exchange Commission and any
successor federal agency having similar powers.
Common Stock: The Company's common stock, no par value.
Exchange Act: The Securities Exchange Act of 1934, as amended, or any
similar federal statute, and the rules and regulations thereunder, all as at
the time in effect.
Person: An individual, partnership, joint venture, corporation, trust,
unincorporated organization or the government or any department or agency
thereof.
Registrable Securities: All of the Corporation's Common Stock acquired
or acquirable by the investors upon exercise of warrants acquired as of the
date of this Agreement.
Registration Expenses: Except as otherwise specifically provided herein,
all of the Corporation's out-of-pocket expenses, without limitation as to
amount, incident to the Corporation's performance of or compliance with
Section 2 herein, including, without limitation, all fees and expenses,
outside messenger and delivery expenses, the fees and disbursements of counsel
for the Corporation and of its independent public accountant, and any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities and the expenses of one firm of attorneys who shall represent the
Investors. Registration Expenses shall not include any underwriter's
discounts, commissions or transfer taxes paid by the Investors.
Securities Act: The Securities Act of 1933, as amended, or any similar
federal statute, and the rules and regulations thereunder, all as at the time
in effect.
Warrants: The Company's warrants, dated as of the date of this
Agreement, to purchase one share of the Common Stock exercisable at $3.00 per
share and expiring September 1, 2001, and as otherwise set forth therein.
2. Registration
2.1 Registration on Request (Demand Registration). (a) Request. At any
one time more than six (6) months after the date hereof, upon the written
request of a majority in interest of Investors that the Corporation effect the
registration under the Act of all or part of each Investor's Registrable
Securities specifying the intended method or methods of disposition thereof,
the Corporation will use its best efforts to effect the registration under the
Securities Act of such securities to permit their disposition (in accordance
with the intended methods thereof as aforesaid) and keep such registration
open for a period of not less than nine (9) months, provided that if such
registration may then be effected by the Corporation on Form S-3 or Form S-3B
or any successor form of registration, then the Corporation shall keep such
registration effective until the Registerable Securities may be sold publicly
pursuant to Rule 144 by the Investors.
(b) Registration Statement Form. Registrations under this Section 2.1
shall be on an appropriate registration form of the Commission as determined
by the Corporation and shall permit the disposition of the Registrable
Securities in accordance with the intended method or methods of disposition
specified in the Investors' request for such registration.
(c) Expenses. The Corporation will pay all Registration Expenses in
connection with any registration of the Registrable Securities.
2.2 Incidental Registration (Piggyback Registration). (a) Notice and
Request. If the Corporation at any time proposes to register any of its
securities under the Securities Act (except registrations solely for
registration of shares in connection with an employee benefit plan or a merger
or consolidation), whether or not for sale for its own account, it will each
such time give prompt written notice to the investors of its intention to do
so. Upon the written request of any Investor within 30 days after the receipt
of any such notice (which request shall specify the Registrable Securities
intended to be disposed of by the Investor, the Corporation will use its best
efforts to effect the registration under the Securities Act of all Registrable
Securities which the Corporation has been so requested to register by the
Investor as part of the incidental registration, provided that if the
Corporation shall determine for any reason not to register or to delay
registration of such securities the Corporation may, at its election, give
written notice of such determination to the Investors, and, thereupon, (i) in
the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration, without prejudice, however, to the rights of the Investors to
request that such registration be effected as a registration under Section
2.1, and (ii) in the case of a determination to delay registering, shall be
permitted to delay registering any Registrable Securities, for the same period
as the delay in registering such other securities. No registration effected
under this Section 2.2 shall relieve the Company of its obligation to effect
any registration upon request under Section 2.1. The Registration Expenses of
the Investors shall be paid by the Corporation.
(b) Underwriters Cutback. If, in any incidental registration referred to
in Section 2.2(a) above, the managing underwriter or underwriters thereof
shall advise the Corporation in writing that in its or their reasonable
opinion the number of securities proposed to be sold in such registration
exceeds the number that can be sold in such offering without having a material
effect on the success of the offering (including, without limitation, an
impact on the selling price or the number of shares that any participant may
sell), the Corporation will include in such registration only the number of
securities that, in the reasonable opinion of such underwriter or
underwriters, can be sold without having a material adverse effect on the
success of the offering as follows: (i) first, all of the shares to be issued
and sold by the Corporation and (ii) second, the Registrable Securities
requested to be included in such registration by the Investors and any other
Person pro rata on the basis of the aggregate number of shares requested to be
included.
(c) Sales during Registration. The Investors participating in the
incidental registration agree, if requested by the managing underwriter in an
underwritten public offering, not to effect any public sale or distribution of
securities of the Corporation of the same class as the Registrable Securities
so registered, including a sale pursuant to Rule 144 under the Securities Act
(except as part of such underwritten offering), during the ten-day period
prior to, and during the 80-day period beginning on, the closing date of the
underwritten offering. Each Investor agrees that it shall undertake, in its
request to participate in any such underwritten offering, not to effect any
public sale or distribution of any applicable class of Registrable Securities
during the 90-day period commencing on the date of sale of such applicable
class of Registrable Securities unless it has provided 90 days prior written
notice of such sale or distribution to the underwriter(s).
2.3 Registration Procedures. Whenever the Corporation is required to
effect. the registration of any Registrable Securities under the Securities
Act as provided in Sections 2.1 and 2.2, it shall, as expeditiously as
possible:
(i) prepare and (within 120 days after a request for registration is
given to the Corporation or as soon thereafter as possible) file with the
Commission a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective;
(ii) prepare and file with the Commission such amendments and supplements
to the registration statement and prospectus used in connection therewith as
may he necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act for nine (9) months if under 2.1 and
90 days if under 2.2;
(iii) furnish to each Investor participating such number of conformed
copies of such registration statement and of each amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
flied under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, as such Investor
may reasonably request;
(iv) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statements under
such other' securities or blue sky laws of such jurisdictions where an
exemption is not available and as the Investors participating shall reasonably
request, to keep such registration or qualification in effect for so long as
such registration statement remains in effect, and take any other action which
may be reasonably necessary or advisable to enable the Investors participating
to consummate the disposition in such jurisdictions of the securities owned by
them, except that the Corporation shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subdivision
(iv) be obligated to be so qualified or to consent to general service of
process in any such jurisdiction; and
(v) notify each Investor participating, at any time when a prospectus
forming a part of such registration statement is required to be delivered
under the Securities Act, upon discovery that, or upon the happening of any
event as a result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances under which they were made, and at the request of the
participating investors promptly prepare and furnish to the participating
investors a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or. omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they are made.
2.4 Limitations, Conditions and Qualifications to Obligations under
Registration Covenants. The obligations of the Corporation to use its
reasonable efforts to cause the Registrable Securities to be registered under
the Securities Act are subject to each of the following limitations,
conditions and qualifications.
(a) The Corporation shall not be obligated to file any registration
statement pursuant to Section 2.1 hereof at any time if the Corporation would
be required to include financial statements audited as of any date other than
the end of its fiscal year.
(b) The Corporation shall be entitled to postpone for a period of time
(which in the judgment of the Corporation is reasonable under the
circumstances) the filing of any registration statement otherwise required to
be prepared and filed by it pursuant to Section 2.1 if the Corporation
determines, in its reasonable judgment, that such registration and offering
would interfere with any financing, acquisition, corporate reorganization or
other proposed material transaction involving the Corporation or any of its
Affiliates or that it would require the Corporation to disclose material
non-public Information that it deems advisable not to disclose and promptly
gives the Investor written notice of such determination. Further, the
Corporation shall have the right to require each Investor participating not to
sell securities in a public offering for a period of up to 90 days during the
effectiveness of any registration statement if the Corporation shall determine
that such sale would interfere with any transaction involving the Corporation
as described above or that such registration would require disclosure of such
material non-public information. If pursuant to the preceding sentence the
Corporation has required the Investor to discontinue the sale of securities
during the effectiveness of a registration statement, then the period of time
any such registration statement must be kept effective pursuant to Section
2.3(ii) hereof shall be extended for a period equal to the length of such
discontinuance.
(c) If the Investor proposes that the sale of Registrable Securities
pursuant to Section 2.1 hereof be an underwritten offering, the Corporation
shall have the right to approve the choice of underwriters who undertake such
offering.
2.5 Indemnification. (a) Indemnification by the Corporation. In the event
of any registration of any Registrable Securities of the Corporation under the
Securities Act pursuant to Section 2.1 or 2.2, the Corporation will, and
hereby does, indemnify and hold harmless each Investor, its directors and
officers, any underwriter and each other Person, if any, who controls any
Investor or any such underwriter, against any losses, claims, damages or
liabilities, to which any Investor or any such director or officer or
underwriter or controlling person may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities arise out
of or are based upon any untrue statement of any material fact contained in
any registration statement under which such securities were registered under
the Securities Act or any prospectus contained therein, or any omission or
alleged omissions to state therein a material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the Corporation will
reimburse each Investor, and each such director, officer, underwriter and
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim or
liability or action or proceeding in respect thereof; provided that the
Corporation shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises at of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or any such prospectus, in reliance upon
and in conformity with written information furnished to the Corporation by or
on behalf of any investor or underwriter, as the case may be, specifically
stating that it is for use in the preparation thereof; and provided, further,
that the Corporation shall not be liable in any case to the extent that such
loss, claim, damage, liability or expense arises out of an untrue or alleged
untrue statement or omission or alleged omission in a prospectus, if such
statement or omission is corrected in an amendment or supplement to the
prospectus and the Investor thereafter fails to deliver such prospectus as
amended or supplemented prior to or concurrently with the sale of the
Registrable Securities. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any Investor, or any
such director, officer or controlling person and shall survive the transfer of
such securities by the Investor.
(b) Indemnification by the Investors. The Corporation may require, as a
condition to including any Registrable Securities in any registration
statement filed pursuant to Section 2.1 or 2.2, that the Corporation shall
have received an undertaking satisfactory in all respects to it from each
Investor participating, to indemnify and hold harmless (in the same manner and
to the same extent as set forth in subdivision (a) of this Section 2.5) the
Corporation, each director of the Corporation, each officer of the Corporation
and each other person, if any, who control the Corporation within the meaning
of the Securities Act, with respect to any statement or alleged statement in
or omission or alleged omission from such registration statement or any
prospectus contained therein, if such statement or alleged statement or
omission or alleged omission was made in reliance upon or in conformity with
written information furnished to the Corporation by the Investor for use in
the preparation of such registration statement or prospectus. Such indemnity
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the Corporation or any such director, officer or controlling
person and shall survive the transfer of such securities by the investor.
(c) Notices of Claims etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subdivisions of this Section 2.5, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action, provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this Section 3.6, except to the extent
that the indemnifying party is actually prejudiced by such failure to give
notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall be liable for any settlement of any
action or proceeding effected without its written consent. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
(d) Other Indemnification. Indemnification similar to that specified in
the preceding subdivisions of this Section 2.b (with appropriate
modifications) shall be given by the Corporation and each Investor
participating with respect to any required registration or other qualification
of securities under any Federal or state law or regulation of any governmental
authority other than the Securities Act.
3. Notices. All communication provided for hereunder shall be sent by
first- class mail and, if to an Investor, addressed to the investor as the
Investor may have designated to the Corporation in writing, and, if to the
Corporation, addressed to it at c/o EMCORE Corporation, 394 Elizabeth Avenue,
Somerset, NJ 08873-1214, Attention: Board Secretary, or to such other address
as the Corporation may have designated to the Investor in writing. 4.
Assignment. This Agreement shall be binding upon end inure to the benefit of
and be enforceable by the parties hereto and their respective successors and
assigns.
5. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
6. Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws
of the State of New Jersey.
7. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all
such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their respective officers thereunto duly authorized as of the
date first above written.
EMCORE CORPORATION
By: /s/ Reuben F. Richards, Jr.
Name: Reuben F. Richards, Jr.
Title: President
The Investors by their Agent-in-Fact pursuant
to Subscription Agreements signed by them
JESUP & LAMONT MERCHANT PARTNERS, L.L.C.
By: /s/ Howard Curd
Name: Howard Curd
Title: Manager
Schedule A
EMCORE Corporation
Investors
Name & Address Amount Telephone Fax
Exhibit 10.8
[Form of 6% Subordinated Note due May 1, 2001]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THE
SECURITY, AGREES FOR THE BENEFIT OF EMCORE CORPORATION (THE "COMPANY) THAT
THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY: (1) TO THE
COMPANY (UPON REPURCHASE THEREOF OR OTHERWISE), (2) SO LONG AS THIS SECURITY
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3)
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, PROVIDED THAT THERE ARE NO DIRECTED SELLING EFFORTS
IN THE UNITED STATES AND OTHER ADDITIONAL CONDITIONS OF REGULATION S FOR
RESALE HAVE BEEN SATISFIED, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION IN
ACCORDANCE WITH RULE 144 (IF AVAILABLE) UNDER THE SECURITIES ACT, (5) IN
RELIANCE ON ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, AND SUBJECT TO THE RECEIPT BY THE COMPANY OF AN OPINION OF
COUNSEL TO THE EFFECT THAT SUCH TRANSFER DOES NOT REQUIRE REGISTRATION UNDER
THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS SECURITY MAY NOT BE TRANSFERRED FOR 120 DAYS FOLLOWING AN INITIAL PUBLIC
OFFERING OF SECURITIES OF THE COMPANY.
No. N-002 $__________
EMCORE CORPORATION
Somerset, New Jersey
6% Subordinated Note
Due May 1, 2001
Issue Date: May 1, 1996
EMCORE Corporation, a New Jersey Corporation (the "Corporation"), for value
received, promises to pay to __________ or registered assigns, the sum of
___________________ Dollars ($__________) on May 1, 2001 upon presentation and
surrender of this Note at the office of the Corporation in Somerset, New
Jersey, and to pay interest at the rate of six percent (6%) per annum semi-
annually on the first day of November and May of each year, computed from the
Issue Date, until payment of the principal amount of this Note has been made.
Payment of principal and interest shall be made at the offices of the
Corporation, in lawful money of the United States of America, and shall be
mailed to the registered owner or owners hereof at the address appearing on
the books of the Corporation.
1. The Note. This Note is one of a duly authorized issue of $9,500,000
of notes of the Corporation designated as its 6% Subordinated Notes due May 1,
2001 (the "Notes"), all of like date, tenor and maturity, except variations
necessary to express the amount and payee of each note and except for the
Issue Date.
2. Equal Rank. All notes of this issue and series rank equally and
ratably without priority over one another.
3. Redemption. The Notes may be redeemed in whole or in part at the
option of the Corporation at any time at a redemption payment equal to 100% of
the outstanding principal amount of the Note plus interest accrued to the date
of redemption. In the event of a partial redemption, Notes shall be redeemed
ratably from each holder thereof. The Corporation shall give notice by mail
of any redemption at least 20 business days before the date of redemption.
4. Redemption of Notes at Option of Holders Upon a Change in Control.
In the event of a Change in Control (as defined below), the holder hereof
will have the option to require the Corporation to purchase all or any part of
this Note on a date that is 40 business days after the occurrence of such
Change in Control (the "Change in Control Purchase Date") for a purchase price
equal to 101% of the principal amount thereof plus accrued interest to the
Change in Control Purchase Date, unless such control was acquired pursuant to
a waiver by the Board of Directors of this provision. The Corporation
covenants that, prior to the mailing of the notice to holders of Notes (the
"Holders") provided for below, but in any event within 30 days following any
Change in Control, the Corporation shall (i) repay in full all Senior
Indebtedness (as defined below) or (ii) obtain the requisite consent under the
Corporation's Senior Indebtedness to permit the repurchase of the Notes
pursuant to this covenant and a failure to comply with the covenant of the
preceding sentence despite good faith efforts shall not constitute a default
hereunder. The Corporation shall first comply with the covenant in the
preceding sentence before it shall be required to repurchase the Notes
pursuant to this covenant. Within 10 days after any Change in Control
requiring the Corporation to deliver the notice to Holders provided for below,
the Corporation shall so notify the Holders of Senior Indebtedness.
Within 20 business days after the occurrence of the Change in Control,
the Corporation shall mail to each Holder or cause to be mailed a written
notice of the Change in Control, setting forth, among other things, the terms
and conditions of, and the procedures required for exercise of, the Holder's
right to require the purchase of such Holder's Notes.
To exercise the purchase right, a Holder must deliver written notice of
such exercise to the Corporation at any time prior to the close of business on
the Change in Control Purchase Date, specifying the Notes with respect to
which the right of purchase is being exercised. Such notice of exercise may
be withdrawn by the Holder by a written notice of withdrawal delivered to the
Corporation at any time prior to the close of business on the Change in
Control Purchase Date.
A "Change in Control" shall be deemed to have occurred at such time after
the original issuance of the Notes as there shall occur the acquisition by any
Person (including any syndicate or group deemed to be a "person" under Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended, or
any successor provision to either of the foregoing) of beneficial ownership,
directly or indirectly, through a purchase, merger or other acquisition
transaction or series of transactions, through proxies or otherwise, of shares
of capital stock of the Corporation entitling such Person to (a) exercise 50%
or more of the total voting power of all shares of capital stock of the
Corporation entitled to vote generally in elections of directors; or (b) elect
a majority of the members of the Corporation's Board of Directors pursuant to
a proxy contest or otherwise (other than Jesup & Lamont Merchant Partners,
L.L.C.). A change in control effected by a waiver of the Board of Directors
shall not trigger this redemption feature.
5. Subordination. This Note is subordinate and junior in right of
payment to all existing and future Senior Indebtedness of the Corporation,
whether outstanding on the date hereof or thereafter created, incurred,
assumed or guaranteed. Upon any payments or distribution of assets of the
Corporation in any dissolution winding-up, liquidation or reorganization of
the Corporation (whether in an insolvency or bankruptcy proceeding or
otherwise), payment in full (including principal thereof, interest thereon and
fees and expenses relating thereto) on such Senior Indebtedness shall occur
prior to any payment or distribution being made with respect to the Notes.
Upon the happening and during the continuance of a payment Event of Default
under any Senior Indebtedness, no payment may be made by the Corporation on or
in respect of the Notes. Upon the happening and during the continuance of a
non-payment Event of Default under any Senior Indebtedness and following
receipt by the Corporation of notice from such holder(s) of Senior
Indebtedness, no payment may be made on the Notes for a period of up to 179
days during any consecutive 365 day period, unless such default shall be cured
or waived. No such subordination will prevent the occurrence of any Event of
Default.
"Senior Indebtedness" means (a) the principal of and premium, if any, and
interest (including, without limitation, any interest accruing subsequent to
the filing of a petition or other action concerning bankruptcy or other
similar proceedings, whether or not constituting an allowed claim in any such
proceedings) of the following, whether presently outstanding or hereafter
incurred or created: all indebtedness or obligations of the Company for money
borrowed (other than that evidenced by the Notes) or assets acquired which is
evidenced by a note, bond, or similar instrument (including a purchase money
mortgage) given in connection with the acquisition of any property or assets
(other than inventory or other similar property acquired in the ordinary
course of business) including securities; (b) all obligations constituting
bank debt; (c) all obligations of the Corporation:
(i) for the reimbursement of any obligor on any letter of credit banker's
acceptance or similar credit transaction, (ii) Under interest rate swaps,
caps, collars, options and similar arrangements, and (iii) under any foreign
exchange contract, currency swap agreement, futures contract, currency option
contract or other foreign currency hedge; (d) all obligations for the payment
of money relating to a capitalized lease obligation, (e) any liabilities of
others described in the preceding clauses (a), (b), (c), and (d) which the
Corporation has guaranteed or which are otherwise its legal liability; and (f)
renewals, extensions, refundings, restructurings, amendments and modifications
of any such indebtedness or guarantee. Notwithstanding anything to the
contrary, Senior indebtedness shall not include (y) any indebtedness of the
Corporation to a subsidiary except to the extent any such indebtedness is
pledged by such subsidiary as security for any bank debt, or (z) any
indebtedness or guarantee of the Corporation which by its terms or the terms
of the instrument creating or evidencing it is not superior in right of
payment of the Notes.
6. Amendments to the Note. All terms and provisions of this Note may
be amended by the Holders of 51% of the aggregate principal amount of all
Notes of this class outstanding on the date of the amendment.
7. Default. If any of the following, events occur ("Event of
Default"), the entire unpaid principal amount of, and accrued and unpaid
interest on, this Note shall immediately be due and payable.
a) The Corporation falls to pay any interest on this Note when it is
due and payable, and the failure continues for a period of 30 days;
b) The Corporation fails to pay the principal of this Note at its
maturity;
c) The Corporation commences any voluntary proceeding under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, receivership, dissolution, or liquidation law or statute, of
any jurisdiction, whether now or subsequently in effect; or the
Corporation is adjudicated insolvent or bankrupt by a court of
competent jurisdiction; or the Corporation petitions or applies for,
acquiesces in, or consents to, the appointment of any receiver or
trustee of the Corporation or for all or substantially all of its
property or assets; or the Corporation makes an assignment for the
benefit of its creditors; or the Corporation admits in writing its
inability to pay its debts as they mature; or
d) There is commenced against the Corporation any proceeding relating
to the Corporation under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, receivership,
dissolution, or liquidation law or statute, of any jurisdiction,
whether now or subsequently in effect, and the proceeding remains
undismissed for a period of 60 days or the Corporation by any act
indicates its consent to, approval of, or acquiescence in, the
proceeding; or a receiver or trustee is appointed for the
Corporation or for all or substantially all of its property or
assets, and the receivership or trusteeship remains undischarged for
a period of 60 days; or a warrant of attachment, execution or
similar process is issued against any substantial part of the
property or assets of the Corporation, and the warrant or similar
process is not dismissed or bonded within 60 days after the levy.
8. Exchange. The holder of this Note may, at any time on or before the
date of its maturity, by surrendering this Note to the Corporation at its
office, exchange this Note and/or any other of the Notes for another note or
notes of a like principal amount and of like tenor, date and maturity.
9. Transfer. This Note may be transferred only at the office of the
Corporation by the surrender hereof for cancellation, along with a proper
instrument of transfer (with the signature guaranteed to the Corporation's
satisfaction), and upon the payment of any stamp tax or other governmental
charge connected with the transfer. If this Note is transferred, a new note
or notes of like tenor, date and maturity shall be issued to the transferee.
10. Registered owner. The Corporation may treat the person or persons
whose name or names appear hereon as the absolute owner or owners of this Note
for the purpose of receiving payment of, or on account of, the principal and
interest due on this Note and for all other purposes, and it shall not be
affected by any notice to the contrary.
11. Corporate obligation. The holder or holders of this Note shall not
have any recourse for the payment in whole or of any part of the principal or
interest on this Note against any incorporator, or present or future
stockholder of the Corporation by virtue of any law, or by the enforcement of
any assessment, or otherwise, or against any officer or director of the
Corporation by reason of any matter prior to the delivery of this Note, or
against any present or future officer or director of the Corporation. The
holder of this Note, by the acceptance hereof and as a part of the
consideration for this Note, expressly agrees that the Note is an obligation
solely of the Corporation and expressly releases all claims and waives all
liability against the foregoing persons in connection with this Note.
IN WITNESS WHEREOF, the Corporation has signed and sealed this 6% Note
due May 1, 2001, this ___ day of May, 1996.
EMCORE CORPORATION
By:______________________________
Norman E. Schumaker, President
Corporate Seal
By:______________________________
Thomas G. Werthan, Secretary
Exhibit 10.9
[Form of 6% Subordinated Note due September 1, 2001]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THE
SECURITY, AGREES FOR THE BENEFIT OF EMCORE CORPORATION (THE "COMPANY) THAT
THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY: (1) TO THE
COMPANY (UPON REPURCHASE THEREOF OR OTHERWISE), (2) SO LONG AS THIS SECURITY
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3)
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, PROVIDED THAT THERE ARE NO DIRECTED SELLING EFFORTS
IN THE UNITED STATES AND OTHER ADDITIONAL CONDITIONS OF REGULATION S FOR
RESALE HAVE BEEN SATISFIED, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION IN
ACCORDANCE WITH RULE 144 (IF AVAILABLE) UNDER THE SECURITIES ACT, (5) IN
RELIANCE ON ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, AND SUBJECT TO THE RECEIPT BY THE COMPANY OF AN OPINION OF
COUNSEL TO THE EFFECT THAT SUCH TRANSFER DOES NOT REQUIRE REGISTRATION UNDER
THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS SECURITY MAY NOT BE TRANSFERRED FOR 120 DAYS FOLLOWING AN INITIAL PUBLIC
OFFERING OF SECURITIES OF THE COMPANY.
No. N-002 $__________
EMCORE CORPORATION
Somerset, New Jersey
6% Subordinated Note
Due September 1, 2001
Issue Date: September 1, 1996
EMCORE Corporation, a New Jersey Corporation (the "Corporation"), for value
received, promises to pay to __________ or registered assigns, the sum of
___________________ Dollars ($__________) on September 1, 2001 upon
presentation and surrender of this Note at the office of the Corporation in
Somerset, New Jersey, and to pay interest at the rate of six percent (6%) per
annum semi-annually on the first day of November and May of each year,
computed from the Issue Date, until payment of the principal amount of this
Note has been made. Payment of principal and interest shall be made at the
offices of the Corporation, in lawful money of the United States of America,
and shall be mailed to the registered owner or owners hereof at the address
appearing on the books of the Corporation.
1. The Note. This Note is one of a duly authorized issue of $2,500,000
of notes of the Corporation designated as its 6% Subordinated Notes due
September 1, 2001 (the "Notes"), all of like date, tenor and maturity, except
variations necessary to express the amount and payee of each note and except
for the Issue Date.
2. Equal Rank. All notes of this issue and series rank equally and
ratably without priority over one another.
3. Redemption. The Notes may be redeemed in whole or in part at the
option of the Corporation at any time at a redemption payment equal to 100% of
the outstanding principal amount of the Note plus interest accrued to the date
of redemption. In the event of a partial redemption, Notes shall be redeemed
ratably from each holder thereof. The Corporation shall give notice by mail
of any redemption at least 20 business days before the date of redemption.
4. Redemption of Notes at Option of Holders Upon a Change in Control.
In the event of a Change in Control (as defined below), the holder hereof
will have the option to require the Corporation to purchase all or any part of
this Note on a date that is 40 business days after the occurrence of such
Change in Control (the "Change in Control Purchase Date") for a purchase price
equal to 101% of the principal amount thereof plus accrued interest to the
Change in Control Purchase Date, unless such control was acquired pursuant to
a waiver by the Board of Directors of this provision. The Corporation
covenants that, prior to the mailing of the notice to holders of Notes (the
"Holders") provided for below, but in any event within 30 days following any
Change in Control, the Corporation shall (i) repay in full all Senior
Indebtedness (as defined below) or (ii) obtain the requisite consent under the
Corporation's Senior Indebtedness to permit the repurchase of the Notes
pursuant to this covenant and a failure to comply with the covenant of the
preceding sentence despite good faith efforts shall not constitute a default
hereunder. The Corporation shall first comply with the covenant in the
preceding sentence before it shall be required to repurchase the Notes
pursuant to this covenant. Within 10 days after any Change in Control
requiring the Corporation to deliver the notice to Holders provided for below,
the Corporation shall so notify the Holders of Senior Indebtedness.
Within 20 business days after the occurrence of the Change in Control,
the Corporation shall mail to each Holder or cause to be mailed a written
notice of the Change in Control, setting forth, among other things, the terms
and conditions of, and the procedures required for exercise of, the Holder's
right to require the purchase of such Holder's Notes.
To exercise the purchase right, a Holder must deliver written notice of
such exercise to the Corporation at any time prior to the close of business on
the Change in Control Purchase Date, specifying the Notes with respect to
which the right of purchase is being exercised. Such notice of exercise may
be withdrawn by the Holder by a written notice of withdrawal delivered to the
Corporation at any time prior to the close of business on the Change in
Control Purchase Date.
A "Change in Control" shall be deemed to have occurred at such time after
the original issuance of the Notes as there shall occur the acquisition by any
Person (including any syndicate or group deemed to be a "person" under Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended, or
any successor provision to either of the foregoing) of beneficial ownership,
directly or indirectly, through a purchase, merger or other acquisition
transaction or series of transactions, through proxies or otherwise, of shares
of capital stock of the Corporation entitling such Person to (a) exercise 50%
or more of the total voting power of all shares of capital stock of the
Corporation entitled to vote generally in elections of directors; or (b) elect
a majority of the members of the Corporation's Board of Directors pursuant to
a proxy contest or otherwise (other than Jesup & Lamont Merchant Partners,
L.L.C.). A change in control effected by a waiver of the Board of Directors
shall not trigger this redemption feature.
5. Subordination. This Note is subordinate and junior in right of
payment to all existing and future Senior Indebtedness of the Corporation,
whether outstanding on the date hereof or thereafter created, incurred,
assumed or guaranteed. Upon any payments or distribution of assets of the
Corporation in any dissolution winding-up, liquidation or reorganization of
the Corporation (whether in an insolvency or bankruptcy proceeding or
otherwise), payment in full (including principal thereof, interest thereon and
fees and expenses relating thereto) on such Senior Indebtedness shall occur
prior to any payment or distribution being made with respect to the Notes.
Upon the happening and during the continuance of a payment Event of Default
under any Senior Indebtedness, no payment may be made by the Corporation on or
in respect of the Notes. Upon the happening and during the continuance of a
non-payment Event of Default under any Senior Indebtedness and following
receipt by the Corporation of notice from such holder(s) of Senior
Indebtedness, no payment may be made on the Notes for a period of up to 179
days during any consecutive 365 day period, unless such default shall be cured
or waived. No such subordination will prevent the occurrence of any Event of
Default.
"Senior Indebtedness" means (a) the principal of and premium, if any, and
interest (including, without limitation, any interest accruing subsequent to
the filing of a petition or other action concerning bankruptcy or other
similar proceedings, whether or not constituting an allowed claim in any such
proceedings) of the following, whether presently outstanding or hereafter
incurred or created: all indebtedness or obligations of the Company for money
borrowed (other than that evidenced by the Notes) or assets acquired which is
evidenced by a note, bond, or similar instrument (including a purchase money
mortgage) given in connection with the acquisition of any property or assets
(other than inventory or other similar property acquired in the ordinary
course of business) including securities; (b) all obligations constituting
bank debt; (c) all obligations of the Corporation:
(i) for the reimbursement of any obligor on any letter of credit banker's
acceptance or similar credit transaction, (ii) Under interest rate swaps,
caps, collars, options and similar arrangements, and (iii) under any foreign
exchange contract, currency swap agreement, futures contract, currency option
contract or other foreign currency hedge; (d) all obligations for the payment
of money relating to a capitalized lease obligation, (e) any liabilities of
others described in the preceding clauses (a), (b), (c), and (d) which the
Corporation has guaranteed or which are otherwise its legal liability; and (f)
renewals, extensions, refundings, restructurings, amendments and modifications
of any such indebtedness or guarantee. Notwithstanding anything to the
contrary, Senior indebtedness shall not include (y) any indebtedness of the
Corporation to a subsidiary except to the extent any such indebtedness is
pledged by such subsidiary as security for any bank debt, or (z) any
indebtedness or guarantee of the Corporation which by its terms or the terms
of the instrument creating or evidencing it is not superior in right of
payment of the Notes.
6. Amendments to the Note. All terms and provisions of this Note may
be amended by the Holders of 51% of the aggregate principal amount of all
Notes of this class outstanding on the date of the amendment.
7. Default. If any of the following, events occur ("Event of
Default"), the entire unpaid principal amount of, and accrued and unpaid
interest on, this Note shall immediately be due and payable.
a) The Corporation falls to pay any interest on this Note when it is
due and payable, and the failure continues for a period of 30 days;
b) The Corporation fails to pay the principal of this Note at its
maturity;
c) The Corporation commences any voluntary proceeding under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, receivership, dissolution, or liquidation law or statute, of
any jurisdiction, whether now or subsequently in effect; or the
Corporation is adjudicated insolvent or bankrupt by a court of
competent jurisdiction; or the Corporation petitions or applies for,
acquiesces in, or consents to, the appointment of any receiver or
trustee of the Corporation or for all or substantially all of its
property or assets; or the Corporation makes an assignment for the
benefit of its creditors; or the Corporation admits in writing its
inability to pay its debts as they mature; or
d) There is commenced against the Corporation any proceeding relating
to the Corporation under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, receivership,
dissolution, or liquidation law or statute, of any jurisdiction,
whether now or subsequently in effect, and the proceeding remains
undismissed for a period of 60 days or the Corporation by any act
indicates its consent to, approval of, or acquiescence in, the
proceeding; or a receiver or trustee is appointed for the
Corporation or for all or substantially all of its property or
assets, and the receivership or trusteeship remains undischarged for
a period of 60 days; or a warrant of attachment, execution or
similar process is issued against any substantial part of the
property or assets of the Corporation, and the warrant or similar
process is not dismissed or bonded within 60 days after the levy.
8. Exchange. The holder of this Note may, at any time on or before the
date of its maturity, by surrendering this Note to the Corporation at its
office, exchange this Note and/or any other of the Notes for another note or
notes of a like principal amount and of like tenor, date and maturity.
9. Transfer. This Note may be transferred only at the office of the
Corporation by the surrender hereof for cancellation, along with a proper
instrument of transfer (with the signature guaranteed to the Corporation's
satisfaction), and upon the payment of any stamp tax or other governmental
charge connected with the transfer. If this Note is transferred, a new note
or notes of like tenor, date and maturity shall be issued to the transferee.
10. Registered owner. The Corporation may treat the person or persons
whose name or names appear hereon as the absolute owner or owners of this Note
for the purpose of receiving payment of, or on account of, the principal and
interest due on this Note and for all other purposes, and it shall not be
affected by any notice to the contrary.
11. Corporate obligation. The holder or holders of this Note shall not
have any recourse for the payment in whole or of any part of the principal or
interest on this Note against any incorporator, or present or future
stockholder of the Corporation by virtue of any law, or by the enforcement of
any assessment, or otherwise, or against any officer or director of the
Corporation by reason of any matter prior to the delivery of this Note, or
against any present or future officer or director of the Corporation. The
holder of this Note, by the acceptance hereof and as a part of the
consideration for this Note, expressly agrees that the Note is an obligation
solely of the Corporation and expressly releases all claims and waives all
liability against the foregoing persons in connection with this Note.
IN WITNESS WHEREOF, the Corporation has signed and sealed this 6% Note
due September 1, 2001, this ___ day of September, 1996.
EMCORE CORPORATION
By:______________________________
Norman E. Schumaker, President
Corporate Seal
By:______________________________
Thomas G. Werthan, Secretary
Exhibit 10.10
[Form of $4.08 warrant]
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF EMCORE CORPORATION (THE "COMPANY")
THAT THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY:
(1) TO THE COMPANY (UPON REPURCHASE THEREOF OR OTHERWISE), (2) SO LONG AS
THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT, PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, AS
THE SAME MAY BE AMENDED FROM TIME TO TIME, PROVIDED THAT THE CONDITIONS
OF REGULATION S FOR RESALES HAVE BEEN SATISFIED, (4) PURSUANT TO AN
EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 (IF AVAILABLE)
UNDER THE SECURITIES ACT, AS THE SAME MAY BE AMENDED FROM TIME TO TIME,
(5) IN RELIANCE ON ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, AND SUBJECT TO THE RECEIPT BY THE COMPANY OF AN
OPINION OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER DOES NOT REQUIRE
REGISTRATION UNDER THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED FOR
120 DAYS FOLLOWING AN INITIAL PUBLIC OFFERING OF SECURITIES OF THE
COMPANY.
Warrant No. W- Number of Shares:
Price:$4.08 per share
Date of Issuance: May 1, 1996 (subject to adjustment)
EMCORE CORPORATION
SOMERSET, NEW JERSEY
ISSUE DATE: MAY 1, 1996
WARRANT
EMCORE CORPORATION, a New Jersey corporation (The "Company"), for value
received, hereby certifies that ___________________ or its registered assigns
(the "Registered Holder"), is entitled, subject to the terms set forth below,
to purchase from the Company, at any time or from time to time on or after
November 1, 1996 and on or before May 1, 2001 at no later than 5:00 pm. (New
York City time), up to ______________________ shares of the
common stock of the Company ("Common Stock"), at a purchase price of $1.20 per
share. The shares purchasable upon exercise of this Warrant, and the purchase
price per share, each as adjusted from time to time pursuant to the provisions
of this Warrant, are hereinafter referred to as the "Warrant Shares" and the
"Purchase Price," respectively.
1. Exercise.
(a) Subject to the requirements of Section 4, this Warrant may be
exercised by the Registered Holder, in whole or in part, by surrendering this
Warrant, with the purchase form appended hereto as Exhibit I duly executed by
such Registered Holder or by such Registered Holder's duly authorized
attorney, at the principal office of the Company, or at such other office or
agency as the Company may designate, accompanied by payment in full, in lawful
money of the United States, or with an equal principal amount the Company's 6%
Subordinated Notes due May 1, 2001, of the Purchase Price payable in respect
of the number of shares of Warrant Shares purchased upon such exercise.
(b) Each exercise of this Warrant shall be deemed to have been
effected immediately prior to the close of business on the day on which this
Warrant shall have been surrendered to the Company as provided in subsection
1(a) above. At such time, the person or persons in whose name or names any
certificates for warrant shares shall be issuable upon such exercise as
provided in subsection 1(c) below shall be deemed to have become the holder or
holders of record of the Warrant Shares represented by such certificates.
(c) As soon as practicable after the exercise of this Warrant in
full or in part, and in any event within 10 days thereafter, the Company, at
its expense, will cause to be issued in the name of, and delivered to, the
Registered Holder, or such Holder (upon payment by such Holder of any
applicable transfer taxes) as the Holder may direct:
(i) a certificate or certificates for the number of full
Warrant Shares to which such Registered Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which such Registered Holder
would otherwise be entitled, cash in an amount determined pursuant to Section
2 hereof; and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on
the face or faces thereof for the number of Warrant Shares equal (without
giving effect to any adjustment therein) to the number of such shares called
for on the face or this Warrant minus the number of such shares purchased by
the Registered Holder upon such exercise as provided in subsection 1(a) above.
2. Call provision.
This Warrant may be called in whole or in part by the Board of
Directors of the Company upon 30 days written notice to the holder at any time
after May 1, 1997. No call of this warrant shall be made unless the call is
made pro-rata as to principal amount with respect to all then outstanding
warrants of this class.
3. Adjustments.
(a) Effect of stock changes. If, at any time or from time to time
the Company, by stock dividend, stock split, subdivision, reverse split,
consolidation, reclassification or shares, or other similar structural change,
changes as a whole its outstanding Common Stock into a different number or
class of shares, then, immediately upon the occurrence of the change:
(i) the class of shares into which the Common Stock has been
changed shall replace the Common Stock, for the purposes of this Warrant and
the terms and conditions hereof, so that the registered owner or owners of
this Warrant shall be entitled to receive, and shall receive upon exercise of
this Warrant, shares of the class of stock into which the Common Stock had
been changed;
(ii) the number of shares purchasable upon exercise of this
Warrant shall proportionately be adjusted. (For example, if the outstanding
common Stock of the Corporation is converted into X stock at the rate of one
(1) share of Common Stock into three (3) shares of X stock, and prior to the
change the registered owner or owners of this Warrant were entitled, upon
exercise of this Warrant, to purchase one hundred shares of Common Stock, then
the registered owner or owners shall, after the change, be entitled to
purchase three hundred shares of X stock for the total same exercise price
that the owner or owners had to pay prior to the change to purchase the one
hundred shares of Common Stock); and
(iii) the purchase price per share shall be proportionately
adjusted. (In the above example, the purchase price per share would be reduced
by two-thirds.)
Irrespective of any adjustment or change in the number or class of
shares purchasable under this or any other Warrant of like tenor, or in the
purchase price per share, this Warrant, as well as any other warrant of like
tenor, may continue to express the purchase price per share and the number and
class of shares purchasable upon exercise of this Warrant as the purchase
price per share and the number and class of shares purchasable were expressed
in this Warrant when it was initially issued.
(b) Effect of merger. If at any time while this Warrant is
outstanding another corporation merges into the Company, the registered owner
or owners of this Warrant shall be entitled, immediately after the merger
becomes effective and upon exercise of this Warrant, to obtain the same number
of shares of Common Stock of the Company (or shares into which the Common
Stock has been changed as provided in the paragraph of this Warrant covering
changes) to which the owner or owners were entitled upon the exercise hereof
to obtain immediately before the merger became effective at the same exercise
price. The Company shall take any and all steps necessary in connection with
the merger to assure that sufficient shares of Common Stock to satisfy all
conversion and purchase rights represented by outstanding convertible
securities, options and warrants, including this Warrant, are available so
that these convertible securities, options and warrants, including this
Warrant, may be exercised.
(c) Effect of consolidation or sale. Notwithstanding any provision
of this Warrant concerning the callability of this Warrant, if the Company
consolidates with or merges into another corporation or other entity in a
transaction in which the Company is not the surviving corporation, or receives
an offer to purchase or lease all or substantially all of the assets of the
Company or an offer to purchase forty-five percent (45%) or more of the issued
and outstanding Common Stock of the Company, or if all or substantially all of
the assets of the Company are sold or leased or forty-five percent (45%) or
more of the issued and outstanding Common Stock of the Company is purchased by
any person or group of persons acting in concert, then This Warrant shall be
called by the Company on the Effective Date of such consolidation or merger or
asset sale, or in the case of an offer to purchase forty-five percent (45%) of
the Company's Common Stock, on the date such offer is accepted by the Company.
The right to exercise this Warrant shall terminate when it is called. The
call price shall be determined by the board of directors of the Company in
accordance with the provisions of the second and third sentences of paragraph
3 hereof as of the time the event triggering the call occurs, or the value of
the securities or the other consideration that shall be received in the
transaction by the owner of a number of outstanding shares of Common Stock
equal to the number of shares purchasable upon exercise of this Warrant. This
call price shall be payable not later than sixty (60) days after the effective
date of the call to the registered owner or owners of this Warrant upon its
surrender for cancellation at the offices of the Company, together with the
transfer or assignment form which forms a part hereof, duly completed and
executed in blank.
(d) Dissolution. In the event that a voluntary or involuntary
dissolution, liquidation or winding up of the Company (other than in
connection with a merger where the Company is the surviving corporation as
covered in this Warrant, or a merger or consolidation with or into another
corporation, a sale or lease of all or substantially all of the assets of the
Company, or a sale of a specified portion or percentage of its stock as
covered in this Warrant) is at any time proposed during the term of this
Warrant, the Company shall give written notice to the registered owner or
owners of this Warrant at least thirty (30) days prior to the record date of
the proposed transaction. The notice must contain:
(i) the date on which the transaction is to take place;
(ii) the record date (which must be at least thirty (30) days
after the giving of the notice) as of which holders of the Common Stock
entitled to receive distributions as a result of the transaction shall be
determined;
(iii) a brief description of the transaction;
(iv) a brief description of the distributions, if any, to be
made to holders of the Common Stock as a result of the transaction; and
(v) an estimate of the fair market value of the distributions.
On the date of the transaction, if it actually occurs, this Warrant and all
rights existing under this Warrant shall terminate.
4. Fractional Shares. The Company shall not be required upon the
exercise of this Warrant to issue any fractional shares, but shall pay in cash
an amount determined by multiplying the fraction to which the Holder is
entitled by the fair market value of the Common Stock on the date of exercise.
Should the Common Stock then be traded on an Exchange or quoted on a quotation
system for which a last sale reporting system is in effect, the reported last
sale on the exercise date shall be deemed to be such fair market value. If
the Common Stock is quoted on a quotation system without last sale reporting,
the fair market value shall be deemed to be the highest bid price of any
broker/dealer regularly making a market in the Common Stock on the exercise
date. In all other cases fair market value shall be as determined in good
faith by the Company.
5. Certain Requirements for Transfer and Exercise.
(a) In the absence of an effective Registration Statement under the
Securities Act of 1933, as amended (the "Act"), it shall be a condition to any
transfer or any exercise of this Warrant that the Issuer shall have received,
at the time of such transfer or exercise:
(i) A representation in writing from the proposed transferee
that the Warrant is being transferred or the Common Stock being purchased is
being acquired for investment and not with a view to any sale or distribution
thereof which would constitute or result in a violation of the Act;
(ii) an opinion of counsel, which opinion is reasonably
satisfactory to the Issuer, that the transaction shall not result in a
violation of state or federal securities laws.
(b) In such case, each certificate representing the Warrant or the
Warrant Shares shall bear a legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE
HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF
EMCORE CORPORATION (THE "COMPANY") THAT THIS SECURITY MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY: (1) TO THE COMPANY (UPON
REPURCHASE THEREOF OR OTHERWISE), (2) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A UNDER THE SECURITIES ACT, PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, AS THE SAME MAY BE
AMENDED FROM TIME TO TIME, PROVIDED THAT THE CONDITIONS OF REGULATION S
FOR RESALES HAVE BEEN SATISFIED, (4) PURSUANT TO AN EXEMPTION FROM
REGISTRATION IN ACCORDANCE WITH RULE 144 AVAILABLE) UNDER THE SECURITIES
ACT, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, (5) IN RELIANCE ON
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, AND SUBJECT TO THE RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL
TO THE EFFECT THAT SUCH TRANSFER DOES NOT REQUIRE REGISTRATION UNDER THE
SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED FOR
120 DAYS FOLLOWING AN INITIAL PUBLIC OFFERING OF SECURITIES OF THE
COMPANY.
6. No Impairment. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, sale of assets or
any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all tines in good
faith assist in the carrying out of all such terms and in the taking of all
such action as may be necessary or appropriate in order to protect the rights
of the holder of this Warrant against impairment.
7. Reservation of Stock. The Company will at all times reserve and
keep available, solely for issuance and delivery upon the exercise of this
Warrant, such number of Warrant Shares and other stock, securities and
property as from time to time shall be issuable upon the exercise of this
Warrant.
8. Exchange of Warrants. Upon the surrender by the Registered Holder
of any Warrant or Warrants, properly endorsed, to the Company at the principal
office of the Company, the Company will, subject to the provisions of Section
4 hereof, issue and deliver to or upon the order of such Holder, at the
Company's expense, a new Warrant or Warrants of like tenor, in the name of
such Registered Holder or as such Registered Holder (upon payment by such
Registered Holder of any applicable transfer taxes) may direct.
9. Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of
an indemnity agreement (with surety if reasonably required in an amount
reasonably satisfactory to the Company), or in the case of mutilation upon
surrender and cancellation of this Warrant, the Company will issue, in lieu
thereof, a new Warrant of like tenor.
10. Transfers, etc.
(a) The Company will maintain a register containing the names and
addresses of the Registered Holders of this Warrant. Any Registered Holder
may change its or his address as shown on the warrant register by written
notice to the Company requesting such change.
(b) Subject to the provisions of Section 4 hereof, this Warrant and
all rights hereunder are transferable, in whole or in part, upon surrender of
this Warrant with a properly executed assignment (in the form of Exhibit II
hereto) at the principal office of the Company.
(c) Until any transfer of this Warrant is made in the warrant
register, the Company may treat the Registered Holder of this Warrant as the
absolute owner hereof for all purposes; provided, however, that if and when
this Warrant is properly assigned in blank, the Company may (but shall not be
obligated to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
11. Required Notices. The Company shall give the Registered Holder such
notices as it may, from time to time, be required to give the holders of the
Common Stock, as if the Registered Holder was a holder of Common Stock at the
time such notices are required to be given. The Company shall also give
Registered Holder written notice of: (i) each adjustment of the Purchase Price
or other warrant item made pursuant to Section 2 hereof; and (ii) of each
dividend and distribution payable with respect to any security which may be
acquired by exercise of the Warrant, at least ten (10) business days prior to
the record date for such dividend or distribution so that the Registered
Holder may exercise the warrant and participate in the dividend or
distribution.
12. Mailing of Notices, etc. All notices and other communications from
the Company to the Registered Holder of this Warrant shall be mailed by first-
class certified or registered mail, postage prepaid, to the address furnished
to the Company in writing by the last Registered Holder of this Warrant who
shall have furnished an address to the Company in writing. All notices and
other communications from the Registered Holder of this Warrant or in
connection herewith to the Company shall be mailed by first-class certified or
registered mail, postage prepaid, to the Company at its principal office set
forth below. If the Company should at any time change the location of its
principal office to a place other than as set forth below, it shall give
prompt written notice to the Registered Holder of this Warrant and thereafter
all references in this Warrant to the location of its principal office at the
particular time shall be as so specified in such notice.
EMCORE Corporation
Attention: Secretary
394 Elizabeth Avenue
Somerset, New Jersey 08873-1214
13. No Rights as Stockholder. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company.
14. Change or Waiver. Any term of this Warrant may be changed or waived
only by an instrument in writing signed by the party against which enforcement
of the change or waiver is sought.
15. Headings. The headings in this Warrant are for purposes of
reference only and shall not limit or otherwise affect the meaning of any
provision of this Warrant.
15. Governing Law. This Warrant will be governed by and construed in
accordance with the laws of the State of New Jersey.
EMCORE CORPORATION
By: _______________________________
Norman E. Schumaker, President
[CORPORATE SEAL]
ATTEST:
_______________________________
Thomas G. Werthan, Secretary
EXHIBIT I
PURCHASE FORM
To: EMCORE CORPORATION Dated:__________
The undersigned, pursuant to the provisions set forth in the
attached Warrant (No. ______), hereby irrevocably elects to purchase
________________ shares of the Common Stock of Emcore Corporation covered by
such Warrant and herewith makes payment of $_____________ representing the
full purchase price for such shares at the price per share provided for in
such Warrant either in cash or by delivery of an equal principal amount of the
Company's 6% Subordinated Notes, due May 1, 2001, IN an equal amount.
Holder: ________________________
Address: ________________________
________________________
Phone: ________________________
Fax: ________________________
EXHIBIT II
ASSIGNMENT FORM
FOR VALUE RECEIVED, _____________________ hereby sells, assigns and
transfers all of the rights of the undersigned under the attached Warrant
(No._______) including the right to purchase the number of shares of EMCORE
Corporation Common Stock covered thereby set forth below, unto:
Name of Assignee Address No. of Shares
Dated: ____________________________
Signature:____________________________
Dated: ____________________________
Witness: ____________________________
Exhibit 10.11
[Form of $17.00 Warrant]
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE
SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT.
Warrant No. ____ Number of Shares: ______
(subject to adjustment)
Date of Issuance: August 10, 1992
EMCORE CORPORATION
Class III Preferred Stock Purchase Warrant
EMCORE CORPORATION, a New Jersey corporation (the "Company"), for
value received, hereby certifies that ______ _______, or his registered
assigns (the "Registered Holder"), is entitled, subject to the terms set forth
below, to purchase from the Company, at any time or from time to time on or
after the date of issuance and on or before August 10, 1997 at not later than
5:00 p.m. (New York City time), 30,050 shares of Class III Senior Convertible
Preferred Stock of the Company ("Class III Preferred Stock"), at a purchase
price of $0.50 per share. This Warrant is one of the warrants issued pursuant
to the Unit Purchase Agreement, dated as of July 27, 1992, between the Company
and certain investors named therein (the "Purchase Agreement"), and the Escrow
Agreement, dated July 27, 1992, between Dillon, Bitar & Luther, the Company
and certain investors named therein (the "Escrow Agreement"). The shares
purchasable upon exercise of this Warrant, and the purchase price per share,
each as adjusted from time to time pursuant to the provisions of this Warrant,
are hereinafter referred to as the "Warrant Shares" and the "Purchase Price,"
respectively.
1. Exercise.
(a) This Warrant may be exercised by the Registered Holder, in
whole or in part, by surrendering this Warrant, with the purchase form
appended hereto as Exhibit I duly executed by such Registered Holder or by
such Registered Holder's duly authorized attorney, at the principal office of
the Company, or at such other office or agency as the Company may designate,
accompanied by payment in full,in lawful money of the United States, of the
Purchase Price payable in respect of the number of shares of Warrant Shares
purchased upon such exercise.
(b) Each exercise of this Warrant shall be deemed to have been
effected immediately prior to the close of business on the day on which this
Warrant shall have been surrendered to the Company as provided in subsection
1(a) above. At such time, the person or persons in whose name or names any
certificates for Warrant Shares shall be issuable upon such exercise as
provided in subsection 1(c) below shall be deemed to have become the holder or
holders of record of the Warrant Shares represented by such certificates.
(c) As soon as practicable after the exercise of this Warrant in
full or in part, and in any event within 10 days thereafter, the Company, at
its expense, will cause to be issued in the name of, and delivered to, the
Registered Holder, or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full Warrant
Shares to which such Registered Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which such Registered
Holder would otherwise be entitled, cash in an amount determined pursuant
to Section 3 hereof; and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate
on the face or faces thereof for the number of Warrant Shares equal
(without giving effect to any adjustment therein) to the number of such
shares called for on the face of this Warrant minus the number of such
shares purchased by the Registered Holder upon such exercise as provided
in subsection 1(a) above.
2. Adjustments.
(a) If the Conversion Price (as defined in the Company's
Certificate of Incorporation (the "Certificate")) of the Class III Preferred
Stock is adjusted in accordance with the terms of the Certificate, then the
Purchase Price in effect immediately prior to such adjustment shall
simultaneously be adjusted proportionately with the adjustment of the
Conversion Price.
(b) The Company shall give the Registered Holder such notices as it
may, from time to time, be required to give the holders of the Class III
Preferred Stock, as if the Registered Holder was a holder of Class III
Preferred Stock at the time such notices are required to be given.
(c) When any adjustment is required to be made in the Purchase
Price, the Company shall promptly mail to the Registered Holder a certificate
setting forth the Purchase Price after such adjustment and setting forth a
brief statement of the facts requiring such adjustment. Such certificate
shall also set forth the kind and amount of stock or other securities or
property into which this Warrant shall be exercisable following the occurrence
of any of the events specified in this Section 2.
3. Fractional Shares. The Company shall not be required upon the
exercise of this Warrant to issue any fractional shares, but shall round such
fractional share to the nearest whole share.
4. Requirements for Transfer.
(a) This Warrant and the Warrant Shares shall not be sold or
transferred or otherwise disposed of except in accordance with Sections 3 and
7 of the Purchase Agreement, and the Registration Rights Agreement.
(b) Each certificate representing Warrant Shares shall bear a
legend substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND WERE ACQUIRED BY THE REGISTERED HOLDER FOR SUCH HOLDER'S OWN
ACCOUNT FOR INVESTMENT. THESE SECURITIES MAY NOT BE PLEDGED,
HYPOTHECATED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THESE SECURITIES UNDER THE ACT, OR AN
OPINION OF COUNSEL, WHICH OPINION IS SATISFACTORY IN FORM AND
SUBSTANCE TO THE CORPORATION TO THE EFFECT THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER SAID ACT.
THIS CERTIFICATE AND THE SECURITIES REPRESENTED HEREBY ARE ALSO
SUBJECT TO CERTAIN PROVISIONS OF THAT CERTAIN STOCKHOLDERS'
AGREEMENT DATED JANUARY 12, 1987, AMONG THE CORPORATION AND CERTAIN
HOLDERS OF OUTSTANDING CAPITAL STOCK, THAT CERTAIN CONVERTIBLE
PREFERRED STOCK AND COMMON STOCK PURCHASE AGREEMENT DATED JANUARY
12, 1987, AMONG THE CORPORATION AND CERTAIN HOLDERS OF OUTSTANDING
CAPITAL STOCK OF THE CORPORATION, AND THAT CERTAIN UNIT PURCHASE
AGREEMENT DATED JULY 27, 1992, AMONG THE CORPORATION AND CERTAIN
HOLDERS OF OUTSTANDING NOTES OF THE CORPORATION, AND MAY NOT BE
OFFERED FOR SALE, SOLD, BEQUEATHED, TRANSFERRED (INCLUDING BY WILL
OR PURSUANT TO THE LAWS OF DESCENT AND DISTRIBUTION OR
OTHERWISE),PLEDGED, HYPOTHECATED, ENCUMBERED OR OTHERWISE DISPOSED
OF EXCEPT AS PROVIDED IN ACCORDANCE WITH THE ABOVE AGREEMENTS,
COPIES OF WHICH AGREEMENTS ARE ON FILE AT THE CORPORATION AND MAY BE
OBTAINED BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF THE CORPORATION."
Such certificates shall also bear such legend as may be required by the
Stockholders' Agreement dated January 12, 1987, among the Company and certain
holders of outstanding stock, if the holder of the certificates is a party to
such agreement, and the laws of the State of New Jersey or any other state.
5. No Impairment. The Company will not, by amendment of its
charter or through reorganization, consolidation, merger, dissolution, sale of
assets or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all
such action as may be necessary or appropriate in order to protect the rights
of the holder of this Warrant against impairment.
6. Reservation of Stock. The Company will at all times reserve
and keep available, solely for issuance and delivery upon the exercise of this
Warrant, such number of Warrant Shares and other stock, securities and
property, as from time to time shall be issuable upon the exercise of this
Warrant.
7. Exchange of Warrants. Upon the surrender by the Registered
Holder of any Warrant or Warrants, properly endorsed, to the Company at the
principal office of the Company, the Company will, subject to the provisions
of Section 4 hereof, issue and deliver to or upon the order of such Holder, at
the Company's expense, a new Warrant or Warrants of like tenor, in the name of
such Registered Holder or as such Registered Holder (upon payment by such
Registered Holder of any applicable transfer taxes) may direct, calling in the
aggregate on the face or faces thereof for the number of shares of Class III
Preferred Stock called for on the face or faces of the Warrant or Warrants so
surrendered.
8. Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of
an indemnity agreement (with surety if reasonably required) in an amount
reasonably satisfactory to the Company, or (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will issue, in lieu
thereof, a new Warrant of like tenor.
9. Transfers, etc.
(a) The Company will maintain a register containing the names and
addresses of the Registered Holders of this Warrant. Any Registered Holder
may change its or his address as shown on the warrant register by written
notice to the Company requesting such change.
(b) Subject to the provisions of Section 4 hereof, this Warrant and
all rights hereunder are transferable, in whole or in part, upon surrender of
this Warrant with a properly executed assignment (in the form of Exhibit II
hereto) at the principal office of the Company.
(c) Until any transfer of this Warrant is made in the warrant
register, the Company may treat the Registered Holder of this Warrant as the
absolute owner hereof for all purposes; provided, however, that if and when
this Warrant is properly assigned in blank, the Company may (but shall not be
obligated to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
10. Mailing of Notices, etc. All notices and other communications
from the Company to the Registered Holder of this Warrant shall be mailed by
first-class certified or registered mail, postage prepaid, to the address
furnished to the Company in writing by the last Registered Holder of this
Warrant who shall have furnished an address to the Company in writing. All
notices and other communications from the Registered Holder of this Warrant or
in connection herewith to the Company shall be mailed by first-class certified
or registered mail, postage prepaid, to the Company at its principal office
set forth below. If the Company should at any time change the location of its
principal office to a place other than as set forth below, it shall give
prompt written notice to the Registered Holder of this Warrant and thereafter
all references in this Warrant to the location of its principal office at the
particular time shall be as so specified in such notice.
11. No Rights as Stockholder. Until the exercise of this Warrant,
the Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company.
12. Change or Waiver. Any term of this Warrant may be changed or
waived only by an instrument in writing signed by the party against which
enforcement of the change or waiver is sought.
13. Headings. The headings in this Warrant are for purposes of
reference only and shall not limit or otherwise affect the meaning of any
provision of this Warrant.
14. Governing Law. This Warrant will be governed by and construed
in accordance with the laws of the State of New Jersey.
EMCORE CORPORATION, a New
Jersey Corporation
By:
Norman E. Schumaker
Chief Executive Officer
[Corporate Seal]
ATTEST:
EXHIBIT I
PURCHASE FORM
To: Dated:
The undersigned, pursuant to the provisions set forth in the
attached Warrant (No. ), hereby irrevocably elects to purchase shares
of the Class III Preferred Stock covered by such Warrant and herewith makes
payment of $________________________, representing the full purchase price for
such shares at the price per share provided for in such Warrant.
Signature:
Address:
EXHIBIT II
ASSIGNMENT FORM
FOR VALUE RECEIVED, hereby sells, assigns
and transfers all of the rights of the undersigned under the attached Warrant
(No. ) with respect to the number of shares of Class III Preferred Stock
covered thereby set forth below, unto:
Name of Assignee Address No. of Shares
Dated:
Signature:
Dated:
Witness:
Exhibit 10.12
[Form of $10.20 warrant]
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF EMCORE CORPORATION (THE "COMPANY") THAT
THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY: (1) TO THE
COMPANY (UPON REPURCHASE THEREOF OR OTHERWISE), (2) SO LONG AS THIS SECURITY
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3)
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, AS THE SAME MAY BE AMENDED FROM TIME TO TIME,
PROVIDED THAT THE CONDITIONS OF REGULATION S FOR RESALES HAVE BEEN SATISFIED,
(4) PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 (IF
AVAILABLE) UNDER THE SECURITIES ACT, AS THE SAME MAY BE AMENDED FROM TIME TO
TIME, (5) IN RELIANCE ON ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, AND SUBJECT TO THE RECEIPT BY THE COMPANY OF AN OPINION
OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER DOES NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED FOR 120
DAYS FOLLOWING AN INITIAL PUBLIC OFFERING OF SECURITIES OF THE COMPANY.
Warrant No. Number of
Shares:
Price: $10.20
per share (subject
to adjustment)
Date of Issuance: September 1, 1996
EMCORE CORPORATION
SOMERSET, NEW JERSEY
ISSUE DATE: SEPTEMBER 1, 1996
WARRANT
EMCORE CORPORATION, a New Jersey corporation (the "Company"), for value
received, hereby certifies that Jesup & Lamont Merchant Partners, L.L.C., or
its registered assigns (the "Registered Holder"), is entitled, subject to the
terms set forth below, to purchase from the Company, at any time or from time
to time on or after March 1, 199_, and on or before September 1, 2001, at no
later than 5:00 p.m. (New York City time), up to 833,333 shares of the common
stock of the Company ("Common Stock"), at a purchase price of $3.00 per share.
The shares purchasable upon exercise of this Warrant, and the purchase price
per share, each as adjusted from time to time pursuant to the provisions of
this Warrant, are hereinafter referred to as the "Warrant Shares" and the
"Purchase Price," respectively.
1. Exercise.
(a) Subject to the requirements of Section 4, this Warrant may be
exercised by the Registered Holder, in whole or in part, by surrendering this
Warrant, with the purchase form appended hereto as Exhibit I duly executed by
such Registered Holder or by such Registered Holder's duly authorized
attorney, at the principal office of the Company, or at such other office or
agency as the Company may designate, accompanied by payment in full, in lawful
money of the United States, or with an equal principal amount the Company's 6%
Subordinated Notes due September 1, 2001, of the Purchase Price payable in
respect of the number of shares of Warrant Shares purchased upon such
exercise.
(b) Each exercise of this Warrant shall be deemed to have been
effected immediately prior to the close of business on the day on which this
Warrant shall have been surrendered to the Company as provided in subsection
l(a) above. At such time, the person or persons in whose name or names any
certificates for warrant shares shall be issuable upon such exercise as
provided in subsection 1(c) below shall be deemed to have become the holder or
holders of record of the Warrant Shares represented by such certificates.
(c) As soon as practicable after the exercise of this Warrant in
full or in part, and in any event within 10 days thereafter, the Company, at
its expense, will cause to be issued in the name of, and delivered to, the
Registered Holder, or such Holder (upon payment by such Holder of any
applicable transfer taxes) as the Holder may direct:
(i) a certificate or certificates for the number of full
Warrant Shares to which such Registered Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which such Registered Holder
would otherwise be entitled, cash in an amount determined pursuant to Section
2 hereof; and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on
the face or faces thereof for the number of Warrant Shares equal (without
giving effect to any adjustment therein) to the number of such shares called
for on the face or this Warrant minus the number of such shares purchased by
the Registered Holder upon such exercise as provided in subsection l(a) above.
2. Call provision.
This Warrant may be called in whole or in part by the Board of Directors of
the Company upon 30 days written notice to the holder at any time after
September 1, 1997. No call of this warrant shall be made unless the call is
made pro-rata as to principal amount with respect to all then outstanding
warrants of this class.
3. Adjustments.
(a) Effect of stock changes. If, at any time or from time to time
the Company, by stock dividend, stock split, subdivision, reverse split,
consolidation, reclassification of shares, or other similar structural change,
changes as a whole its outstanding Common Stock into a different number or
class of shares, then, immediately upon the occurrence of the change:
(i) the class of shares into which the Common Stock has been
changed shall replace the Common Stock, for the purposes of this Warrant and
the terms and conditions hereof, so that the registered owner or owners of
this Warrant shall be entitled to receive, and shall receive upon exercise of
this Warrant, shares of the class of stock into which the Common Stock had
been changed;
(ii) the number of shares purchasable upon exercise of this
Warrant shall proportionately be adjusted. (For example, if the outstanding
common Stock of the Corporation is converted into X stock at the rate of one
(1) share of Common Stock into three (3) shares of X stock, and prior to the
change the registered owner or owners of this Warrant were entitled, upon
exercise of this Warrant, to purchase one hundred shares of Common Stock, then
the registered owner or owners shall, after the change, be entitled to
purchase three hundred shares of X stock for the total same exercise price
that the owner or owners had to pay prior to the change to purchase the one
hundred shares of Common Stock); and
(iii) the purchase price per share shall be proportionately
adjusted. (In the above example, the purchase price per share would be reduced
by two-thirds).
Irrespective of any adjustment or change in the number or class of shares
purchasable under this or any other Warrant of like tenor, or in the purchase
price per share, this Warrant, as well as any other warrant of like tenor, may
continue to express the purchase price per share and the number and class of
shares purchasable upon exercise of this Warrant as the purchase price per
share and the number and class of shares purchasable were expressed in this
Warrant when it was initially issued.
(b) Effect of merger. If at any time while this Warrant is
outstanding another corporation merges into the Company, the registered owner
or owners of this Warrant shall be entitled, immediately after the merger
becomes effective and upon exercise of this Warrant, to obtain the same number
of shares of Common Stock of the Company (or shares into which the Common
Stock has been changed as provided in the paragraph of this Warrant covering
changes) to which the owner or owners were entitled upon the exercise hereof
to obtain immediately before the merger became effective at the same exercise
price. The Company shall take any and all steps necessary in connection with
the merger to assure that sufficient shares of Common Stock to satisfy all
conversion and purchase rights represented by outstanding convertible
securities, options and warrants, including this Warrant, are available so
that these convertible securities, options and warrants, including this
Warrant, may be exercised.
(c) Effect of consolidation or sale. Notwithstanding any provision
of this Warrant concerning the callability of this Warrant, if the Company
consolidates with or merges into another corporation or other entity in a
transaction in which the Company is not the surviving corporation, or receives
an offer to purchase or lease all or substantially all of the assets of the
Company or an offer to purchase forty-five percent (45%) or more of the issued
and outstanding Common Stock of the Company, or if all or substantially all of
the assets of the Company are sold or leased or forty-five percent (45%) or
more of the issued and outstanding Common Stock of the Company is purchased by
any person or group of persons acting in concert, then this Warrant shall be
called by the Company on the Effective Date of such consolidation or merger or
asset sale, or in the case of an offer to purchase forty-five percent (45%) of
the Company's Common Stock, on the date such offer is accepted by the Company.
The right to exercise this Warrant shall terminate when it is called. The call
price shall be determined by the board of directors of the Company in
accordance with the provisions of the second and third sentences of paragraph
3 hereof as of the time the event triggering the call occurs, or the value of
the securities or the other consideration that shall be received in the
transaction by the owner of a number of outstanding shares of Common Stock
equal to the number of shares purchasable upon exercise of this Warrant. This
call price shall be payable not later than sixty (60) days after the effective
date of the call to the registered owner or owners of this Warrant upon its
surrender for cancellation at the offices of the Company, together with the
transfer or assignment form which forms a part hereof, duly completed and
executed in blank.
(d) Dissolution. In the event that a voluntary or involuntary
dissolution, liquidation or winding up of the Company (other than in
connection with a merger where the Company is the surviving corporation as
covered in this Warrant, or a merger or consolidation with or into another
corporation, a sale or lease of all or substantially all of the assets of the
Company, or a sale of a specified portion or percentage of its stock as
covered in this Warrant) is at any time proposed during the term of this
Warrant, the Company shall give written notice to the registered owner or
owners of this Warrant at least thirty (30) days prior to the record date of
the proposed transaction. The notice must contain:
(i) the date on which the transaction is to take place;
(ii) the record date (which must be at least thirty (30) days
after the giving of the notice) as of which holders of the Common Stock
entitled to receive distributions as a result of the transaction shall be
determined;
(iii) a brief description of the transaction;
(iv) a brief description of the distributions, if any, to be
made to holders of the Common Stock as a result of the transaction; and
(v) an estimate of the fair market value of the distributions.
On the date of the transaction, if it actually occurs, this Warrant and all
rights existing under this Warrant shall terminate.
4. Fractional Shares. The Company shall not be required upon the
exercise of this Warrant to issue any fractional shares, but shall pay in cash
an amount determined by multiplying the fraction to which the Holder is
entitled by the fair market value of the Common Stock on the date of exercise.
Should the Common Stock then be traded on an Exchange or quoted on a quotation
system for which a last sale reporting system is in effect, the reported last
sale on the exercise date shall be deemed to be such fair market value. If the
Common Stock is quoted on a quotation system without last sale reporting, the
fair market value shall be deemed to be the highest bid price of any
broker/dealer regularly making a market in the Common Stock on the exercise
date. In all other cases fair market value shall be as determined in good
faith by the Company.
5. Certain Requirements for Transfer and Exercise.
(a) In the absence of an effective Registration Statement under the
Securities Act of 1933, as amended (the "Act"), it shall be a condition to any
transfer or any exercise of this Warrant that the Issuer shall have received,
at the time of such transfer or exercise:
(i) A representation in writing from the proposed transferee
that the Warrant is being transferred or the Common Stock being purchased is
being acquired for investment and not with a view to any sale or distribution
thereof which would constitute or result in a violation of the Act;
(ii) an opinion of counsel, which opinion is reasonably
satisfactory to the Issuer, that the transaction shall not result in a
violation of state or federal securities laws.
(b) In such case, each certificate representing the Warrant or the
Warrant Shares shall bear a legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE
HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF
EMCORE CORPORATION (THE "COMPANY") THAT THIS SECURITY MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY: (1) TO THE COMPANY (UPON
REPURCHASE THEREOF OR OTHERWISE), (2) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A UNDER THE SECURITIES ACT, PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, AS THE SAME MAY BE
AMENDED FROM TIME TO TIME, PROVIDED THAT THE CONDITIONS OF REGULATION S
FOR RESALES HAVE BEEN SATISFIED, (4) PURSUANT TO AN EXEMPTION FROM
REGISTRATION IN ACCORDANCE WITH RULE 144 AVAILABLE) UNDER THE SECURITIES
ACT, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, (5) IN RELIANCE ON
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, AND SUBJECT TO THE RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL
TO THE EFFECT THAT SUCH TRANSFER DOES NOT REQUIRE REGISTRATION UNDER THE
SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED FOR 120 DAYS
FOLLOWING AN INITIAL PUBLIC OFFERING OF SECURITIES OF THE COMPANY.
5. No Impairment. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, sale of assets or
any other voluntary action, avoid or seek to avoid the observance or perform-
ance of any of the terms of this Warrant, but will at all times in good faith
assist in the carrying out of all such terms and in the taking of all such
action as may be necessary or appropriate in order to protect the rights of
the holder of this Warrant against impairment.
6. Reservation of Stock. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other stock securities and property as from
time to time shall be issuable upon the exercise of this Warrant.
7. Exchange of Warrants. Upon the surrender by the Registered Holder of
any Warrant or Warrants, properly endorsed, to the Company at the principal
office of the Company, the Company will, subject to the provisions of Section
4 hereof, issue and deliver to or upon the order of such Holder, at the
Company's expense, a new Warrant or Warrants of like tenor, in the name of
such Registered Holder or as such Registered Holder (upon payment by such
Registered Holder of any applicable transfer taxes) may direct.
8. Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of
an indemnity agreement (with surety if reasonably required in an amount
reasonably satisfactory to the Company), or in the case of mutilation upon
surrender and cancellation of this Warrant, the Company will issue, in lieu
thereof, a new Warrant of like tenor.
9. Transfers. etc.
(a) The Company will maintain a register containing the names and
addresses of the Registered Holders of this Warrant. Any Registered Holder may
change its or his address as shown on the warrant register by written notice
to the Company requesting such change.
(b) Subject to the provisions of Section 4 hereof, this Warrant and
all rights hereunder are transferable, in whole or in part, upon surrender of
this Warrant with a properly executed assignment (in the form of Exhibit II
hereto) at the principal office of the Company.
(c) Until any transfer of this Warrant is made in the warrant
register, the Company may treat the Registered Holder of this Warrant as the
absolute owner hereof for all purposes; provided, however, that if and when
this Warrant is properly assigned in blank the Company may (but shall not be
obligated to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
10. Required Notices. The Company shall give the Registered Holder such
notices as it may, from time to time, be required to give the holders of the
Common Stock, as if the Registered Holder was a holder of Common Stock at the
time such notices are required to be given. The Company shall also give
Registered Holder written notice of: (i) each adjustment of the Purchase Price
or other warrant item made pursuant to Section 2 hereof; and (ii) of each
dividend and distribution payable with respect to any security which may be
acquired by exercise of the Warrant, at least ten (10) business days prior to
the record date for such dividend or distribution so that the Registered
Holder may exercise the warrant and participate in the dividend or
distribution.
11. Mailing of Notices, etc. All notices and other communications from
the Company to the Registered Holder of this Warrant shall be mailed by first-
class certified or registered mail, postage prepaid, to the address furnished
to the Company in writing by the last Registered Holder of this Warrant who
shall have furnished an address to the Company in writing. All notices and
other communications from the Registered Holder of this Warrant or in
connection herewith to the Company shall be mailed by first-class certified or
registered mail, postage prepaid, to the Company at its principal office set
forth below. If the Company should at any time change the location of its
principal office to a place other than as set forth below, it shall give
prompt written notice to the Registered Holder of this Warrant and thereafter
all references in this Warrant to the location of its principal office at the
particular time shall be as so specified in such notice.
EMCORE Corporation
Attention: Secretary
394 Elizabeth Avenue
Somerset, New Jersey 08873-1214
12. No Rights as Stockholder. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company.
13. Change or Waiver. Any term of this Warrant may be changed or waived
only by an instrument in writing signed by the party against which enforcement
of the change or waiver is sought.
14. Headings. The headings in this Warrant are for purposes of
reference only and shall not limit or otherwise affect the meaning of any
provision of this Warrant.
15. Governing Law. This Warrant will be governed by and construed in
accordance with the laws of the State of New Jersey.
EMCORE CORPORATION
[CORPORATE SEAL] By: Norman E. Schumaker,
President
ATTEST:
________________________________
Thomas G. Werthan, Secretary
EXHIBIT I
PURCHASE FORM
To: EMCORE CORPORATION Dated:
The undersigned, pursuant to the provisions set forth in the attached Warrant
(No. ___), hereby irrevocably elects to purchase ____________ shares of the
Common Stock of Emcore Corporation covered by such Warrant and herewith makes
payment of $_____________ representing the full purchase price for such shares
at the price per share provided for in such Warrant either in cash or by
delivery of an equal principal amount of the Company's 6% Subordinated Notes,
due September 1, 2001, in an equal amount.
Holder:
Address:
Phone:
Fax:
EXHIBIT II
ASSIGNMENT FORM
FOR VALUE RECEIVED, hereby sells, assigns and
transfers all of the rights of the undersigned under the attached Warrant (No.
) including the right to purchase the number of shares of EMCORE
Corporation Common Stock covered thereby set forth below, unto:
Name of Assignee Address No. of Shares
Dated:
Signature:
Dated:
Witness:
Exhibit 10.13
[Demand Note Facility with First Union National Bank]
PROMISSORY NOTE
$10,000,000.00 October 25, 1996
EMCORE Corporation
394 Elizabeth Avenue
Somerset, New Jersey 08773
(Individually and collectively "Borrower")
First Union National Bank of Florida
214 North Hogan Street - FL0070
Jacksonville, Florida 32202
(Hereinafter referred to as the "Bank")
Borrower promises to pay to the order of Bank, in lawful money of the United
States of America, at its office indicated above or wherever else Bank may
specify, the sum of Ten Million and No/l00 Dollars ($10,000,000.00) or such
sum as may be advanced from time to time with interest on the unpaid principal
balance at the rate and on the terms provided in this Promissory Note
(including all renewals, extensions or modifications hereof, this "Note").
SECURITY. Thomas J. Russell, Jr., has granted Bank a security interest in the
collateral described in the Loan Documents, including, but not limited to,
collateral described in that certain Assignment of Interest in a Custodian
Account,
INTEREST RATE DEFINITIONS.
LIBOR RATE. 6-month LIBOR Rate plus .75% (75 basis points) ("LIBOR-Based
Rate"). "LIBOR" is the rate (rounded to the next higher 1/100 of 1%) for U.S.
dollar deposits of that many months maturity as reported on Telerate page 3750
as of 11:00 a.m., London time, on the second London business day before the
relevant Interest Period begins (or if not so reported, then as determined by
Bank from another recognized source of interbank quotation), adjusted for
reserves by dividing that rate by 1.00 minus the LIBOR Reserve. "LIBOR
Reserve" is the maximum percentage reserve requirement (rounded to the next
higher 1/100 of 1% and expressed as a decimal) in effect for any day during
the Interest Period under the Federal Reserve Board's Regulation D for
Eurocurrency Liabilities as defined therein.
PRIME RATE. The rate of Bank's Prime Rate as that rate may change from time
to time with changes to occur on the date Bank's Prime Rate changes ("Prime-
Based Rate"). Bank's Prime Rate shall be that rate announced by Bank from
time to time as its prime rate and is one of several interest rate bases used
by Bank. Bank lends at rates both above and below Bank's Prime Rate, and
Borrower acknowledges that Bank's Prime Rate is not represented or intended to
be the lowest or most favorable rate of interest offered by Bank.
INTEREST RATE TO BE APPLIED. INTEREST RATE. Subject to the provisions
hereof, the unpaid principal balance of this Note shall bear interest from the
date hereof at the LIBOR-Based Rate, as determined by Bank prior to the
commencement of each consecutive interest period of 6 month; (each an
"Interest Period") during the term of the Note ("Interest Rate"). Upon
determination by Bank of the Interest Rate for any Interest Period, such
Interest Rate shall remain in effect, subject to the provisions hereof, for
the entire Interest Period until redetermined as provided above for the next
successive Interest Period.
DEFAULT RATE. In addition to all other rights contained in this Note, if a
default in the payment of the Obligations occurs, all outstanding Obligations
shall bear interest at the Prime-Based Rate plus 3% ("Default Rate"). The
Default Rate shall also apply from acceleration until the Obligations or any
judgment thereon is paid in full.
INDEMNIFICATION AND ADDITIONAL COSTS. INDEMNIFICATION. Borrower indemnifies
Bank against Bank's loss or expense in employing deposits as a consequence (a)
of Borrower's failure to make any payment when due under this Note or (b) any
payment, prepayment or conversion of any loan on a date other than the last
day of the Interest Period ("Indemnified Loss or Expense").
ADDITIONAL COSTS. If, at any time, a new, or a revision in any existing law
or interpretation or administration (including reversals) thereof by any
government authority, central bank or comparable agency imposes, increases or
modifies any reserve or similar requirement against assets, deposits or credit
extended by Bank, or subjects Bank to any tax, duty or other charge (except
tax on Bank's net income), and any of the foregoing increase the cost to Bank
of maintaining its commitment or reduce the amount of any sum received or
receivables by Bank under this Note, within 15 days after demand by Bank,
Borrower agrees to pay Bank such additional amounts as will compensate Bank
for such increased costs or reductions ("Additional Costs").
MATCH FUNDING. The amount of such (a) Indemnified Loss or Expense or (b)
Additional Costs outlined above shall be determined, in Bank's sole
discretion, based upon the assumption that Bank funded 100% that portion of
the loan to which the LIBOR-Based Rate or CD-Based Rate applies respectively
in the applicable London interbank or domestic certificate of deposit market.
UNAVAILABILITY OF INTEREST RATE. If, at any time, (a) Bank shall determine
that, by reasons of circumstances affecting foreign exchange and interbank
markets generally, LIBOR or CD deposits in the applicable amounts are not
being offered to Bank; or (b) a new, or a revision in any existing law or
interpretation or administration (including reversals) thereof by any
government authority, central bank or comparable agency shall make it unlawful
or impossible for Bank to honor its obligations under this Note, (i) Bank's
obligation to make, maintain or convert into a LIBOR-Based Rate shall be
suspended; and (ii) the applicable LIBOR-Based Rate shall immediately be
converted to the Prime-Based Rate for the remainder of the Interest Period.
INTEREST COMPUTATION. (ACTUAL/360). Interest shall be computed on the basis
of a 360-day year for the actual number of days in the interest period
("Actual/360 Computation"). The Actual/360 Computation determines the annual
effective interest yield by taking the stated (nominal) interest rate for a
year's period and then dividing said rate by 360 to determine the daily
periodic rate to be applied for each day in the interest period. Application
of the Actual/360 Computation produces an annualized effective interest rate
exceeding that of the nominal rate.
REPAYMENT TERMS. This Note shall be due and payable in consecutive monthly
payments of accrued interest only commencing on November 25, 1996, and on the
same day of each month thereafter until fully paid. In any event, this Note
shall be due and payable in full, including all principal and accrued
interest, on demand.
APPLICATION OF PAYMENTS. Monies received by Bank from any source for
application toward payment of the Obligations shall be applied to accrued
interest and then to principal. Upon the occurrence of a default in the
payment of the Obligations or a Default (as defined in the other Loan
Documents) under any other Loan Document, monies may be applied to the
Obligations in any manner or order deemed appropriate by Bank.
If any payment received by Bank under this Note or other Loan Documents is
rescinded, avoided or for any reason returned by Bank because of any adverse
claim or threatened action, the returned payment shall remain payable as an
obligation of all persons liable under this Note or other Loan Documents as
though such payment had not been made.
LOAN DOCUMENTS AND OBLIGATIONS. The term "Loan Documents" used in this Note
and other Loan Documents refers to all documents executed in connection with
the loan evidenced by this Note and may include, without limitation, a
commitment letter that survives closing, a loan agreement, this Note, guaranty
agreements, security agreements, security instruments, financing statements,
mortgage instruments, letters of credit and any renewals or modifications, but
however, does not include swap agreements as defined in 11 U.S.C. Section 101
whenever executed.
The term "Obligations" used in this Note refers to any and all indebtedness
and other obligations under this Note, all other obligations as defined in the
respective Loan Documents, and all obligations under any swap agreements as
defined in 11 U.S.C. Section 101 between Borrower and Bank whenever executed.
LATE CHARGE. If any payments are not timely made, Borrower shall also pay to
Bank a late charge equal to 5% of each payment past due for 10 or more days.
Acceptance by Bank of any late payment without an accompanying late charge
shall not be deemed a waiver of Bank's right to collect such late charge or to
collect a late charge for any subsequent late payment received.
If this Note is secured by owner-occupied residential real property located
outside the state in which the office of Bank first shown above is located,
the late charge laws of the state where the real property is located shall
apply to this Note, or if permitted under the law of that state, 5% of each
payment past due for 10 or more days.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Bank's
reasonable expenses incurred to enforce or collect any of the Obligations,
including, without limitation, reasonable arbitration, paralegals', attorneys'
and experts' fees and expenses, whether incurred without the commencement of a
suit, in any trial, arbitration, or administrative proceeding, or in any
appellate or bankruptcy proceeding.
USURY. Regardless of any other provision of this Note or other Loan
Documents, if for any reason the effective interest should exceed the maximum
lawful interest, the effective interest shall be deemed reduced to, and shall
be, such maximum lawful interest, and (i) the amount which would be excessive
interest shall be deemed applied to the reduction of the principal balance of
this Note and not to the payment of interest, and (ii) if the loan evidenced
by this Note has been or is thereby paid in full, the excess shall be returned
to the party paying same, such application to the principal balance of this
Note or the refunding of excess to be a complete settlement and acquittance
thereof.
BORROWER'S ACCOUNTS. Except as prohibited by law, Borrower grants Bank a
security interest in all of Borrower's accounts with Bank and any of its
affiliates.
DEMAND NOTE. This is a demand Note and all Obligations hereunder shall become
immediately due and payable upon demand. In addition, the Obligations shall
automatically become immediately due and payable if Borrower or any guarantor
or endorser of this Note commences or has commenced against it a bankruptcy or
insolvency proceeding.
REMEDIES. Upon the occurrence of a default in the payment of the Obligations
or a Default (as defined in the other Loan Documents) under any other Loan
Document, Bank may at any time thereafter, take the following actions: BANK
LIEN AND SET-OFF. Exercise its right of set-off or to foreclose its security
interest or lien against any account of any nature or maturity of Borrower
with Bank without notice. CUMULATIVE. Exercise any rights and remedies as
provided under the Note and other Loan Documents, or as provided by law or
equity.
LINE OF CREDIT ADVANCES. Borrower may borrow, repay and reborrow, and Bank
may advance and readvance under this Note respectively from time to time, so
long as the total indebtedness outstanding at any one time does not exceed the
principal amount stated on the face of this Note. Bank's obligation to
advance or readvance under this Note shall terminate if a demand for payment
is made under this Note or if a Default (as defined in the other Loan
Documents) under any Loan Document occurs or in any event, on the first
anniversary hereof unless renewed or extended by Bank in writing upon such
terms then satisfactory to Bank.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note
and other Loan Documents shall be valid unless in writing and signed by an
officer of Bank. No waiver by Bank of any Default (as defined in the other
Loan Documents) shall operate as a waiver of any other Default or the same
Default on a future occasion. Neither the failure nor any delay on the part
of Bank in exercising any right, power, or remedy under this Note and other
Loan Documents shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
Each Borrower or any person liable under this Note waives presentment,
protest, notice of dishonor, notice of intention to accelerate maturity,
notice of acceleration of maturity, notice of sale and all other notices of
any kind. Further, each agrees that Bank may extend, modify or renew this
Note or make a novation of the loan evidenced by this Note for any period and
grant any release, compromises or indulgences with respect to any collateral
securing this Note, or with respect to any Borrower or any person liable under
this Note or other Loan Documents, all without notice to or consent of any
Borrower or any person who may be liable under this Note or other Loan
Documents and without affecting the liability of Borrower or any person who
may be liable under this Note or other Loan Documents.
MISCELLANEOUS PROVISIONS. ASSIGNMENT. This Note and other Loan Documents
shall inure to the benefit of and be binding upon the parties and their
respective heirs, legal representatives, successors and assigns. Bank's
interests in and rights under this Note and other Loan Documents are freely
assignable, in whole or in part, by Bank. Borrower shall not assign its
rights and interest hereunder without the prior written consent of Bank, and
any attempt by Borrower to assign without Bank's prior written consent is null
and void. Any assignment shall not release Borrower from the Obligations.
APPLICABLE LAW; CONFLICT BETWEEN DOCUMENTS. This Note and other Loan
Documents shall be governed by and construed under the laws of the state where
Bank first shown above is located without regard to that state's conflict of
laws principles. If the terms of this Note should conflict with the terms of
the loan agreement or any commitment letter that survives closing, the terms
of this Note shall control. JURISDICTION. Borrower irrevocably agrees to
non-exclusive personal jurisdiction in the state in which the office of Bank
first shown above is located. SEVERABILITY. If any provision of this Note or
of the other Loan Documents shall be prohibited or invalid under applicable
law, such provision shall be ineffective but only to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Note or other such document.
NOTICES. Any notices to Borrower shall be sufficiently given, if in writing
and mailed or delivered to the Borrower's address shown above or such other
address as provided hereunder, and to Bank, if in writing and mailed or
delivered to Bank's office address shown above or such other address as Bank
may specify in writing from time to time. In the event that Borrower changes
Borrower's address at any time prior to the date the Obligations are paid in
full, Borrower agrees to promptly give written notice of said change of
address by registered or certified mail, return receipt requested, all charges
prepaid. PLURAL; CAPTIONS. All references in the Loan Documents to Borrower,
guarantor, person, document or other nouns of reference mean both the singular
and plural form, as the case may be, and the term "person" shall mean any
individual, person or entity. The captions contained in the Loan Documents are
inserted for convenience only and shall not affect the meaning or
interpretation of the Loan Documents. BINDING CONTRACT. Borrower by
execution of and Bank by acceptance of this Note agree that each party is
bound to all terms and provisions of this Note. ADVANCES. Bank in its sole
discretion may make other advances and readvances under this Note pursuant
hereto. POSTING OF PAYMENTS. All payments received during normal banking
hours after 2:00 p.m. local time at the office of Bank first shown above shall
be deemed received at the opening of the next banking day. JOINT AND SEVERAL
OBLIGATIONS. Each Borrower is jointly and severally obligated under this
Note. FEES AND TAXES. Borrower shall promptly pay all documentary,
intangible recordation and/or similar taxes on this transaction whether
assessed at closing or arising from time to time.
ARBITRATION. Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to this Note and other Loan
Documents ("Disputes") between or among parties to this Note shall be resolved
by binding arbitration as provided heroin. Institution of a judicial
proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims,
counterclaims, disputes as to whether a matter is subject to arbitration,
claims brought as class actions, claims arising from Loan Documents executed
in the future, or claims arising out of or connected with the transaction
reflected by this Note.
Arbitration shall be conducted under and governed by the Commercial Financial
Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in the city in which the office of
Bank first stated above is located. The expedited procedures set forth in
Rule 51 of et seq. of the Arbitration Rules shall be applicable to claims of
less than $1,000,000.00. All applicable statutes of limitation shall apply to
any Dispute. A judgment upon the award may be entered in any court having
jurisdiction. The panel from which all arbitrators are selected shall be
comprised of licensed attorneys. The single arbitrator selected for expedited
procedure shall be a retired judge from the highest court of general
jurisdiction, state or federal, of the state where the hearing will be
conducted or if such person is not available to serve, the single arbitrator
may be a licensed attorney. Notwithstanding the foregoing, this arbitration
provision does not apply to disputes under or related to swap agreements.
PRESERVATION AND LIMITATION OF REMEDIES. Notwithstanding the preceding
binding arbitration provisions, Bank and Borrower agree to preserve, without
diminution, certain remedies that any party hereto may employ or exercise
freely, independently or in connection with an arbitration proceeding or after
an arbitration action is brought. Bank and Borrower shall have the right to
proceed in any court of proper jurisdiction or by self-help to exercise or
prosecute the following remedies, as applicable: (i) all rights to foreclose
against any real or personal property or other security by exercising a power
of sale granted under Loan Documents or under applicable law or by judicial
foreclosure and sale, including a proceeding to confirm the sale; (ii) all
rights of self-help including peaceful occupation of real property and
collection of rents, set-off, and peaceful possession of personal property;
(iii) obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and filing an
involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by
confession of judgment. Preservation of these remedies does not limit the
power of an arbitrator to grant similar remedies that may be requested by a
party in a Dispute.
Borrower and Bank agree that they shall not have a remedy of punitive or
exemplary damages against the other in any Dispute and hereby waive any right
or claim to punitive or exemplary damages they have now or which may arise in
the future in connection with any Dispute whether the Dispute is resolved by
arbitration or judicially.
IN WITNESS WHEREOF, Borrower, on the day and year first above written, has
caused this Note to be executed under seal.
EMCORE Corporation
Taxpayer Identification Number: 22-2746503
CORPORATE By: Reuben F. Richards, Jr.
SEAL Reuben F. Richards, Jr., President
LOAN AGREEMENT
First Union National Bank of Florida
214 North Hogan Street - FL0070
Jacksonville, Florida 32202
(Hereinafter referred to as the "Bank")
EMCORE Corporation
394 Elizabeth Avenue
Somerset, New Jersey 08773
(Individually and collectively "Borrower")
This Loan Agreement ("Agreement") is entered into October 25, 1996, by and
between Bank and Borrower, a Corporation organized under the laws of New
Jersey.
Borrower has applied to Bank for a loan or loans (individually and
collectively, the "Loan") evidenced by one or more promissory notes (whether
one or more, the "Note") as follows:
Line of Credit - in the principal amount of $10,000,000.00 which is evidenced
by the Promissory Note dated October 25, 1996 ("Line of Credit Note"), under
which Borrower may borrow, repay, and reborrow, from time to time, so long as
the total indebtedness outstanding at any one time does not exceed the
principal amount. The Loan proceeds are to be used by Borrower solely to
support working capital needs of the company. Bank's obligation to advance or
readvance under the Line of Credit Note shall terminate if a default in the
payment of the Obligations occurs or the Borrower is in Default (as defined in
the Loan Documents) under any Loan Document, or in any event, on the first
anniversary unless renewed or extended by Bank in writing upon such terms then
satisfactory to Bank.
This Agreement applies to the Loan and all Loan Documents. The terms "Loan
Documents" and "Obligations," as used in this Agreement, are defined in the
Note. The term "Borrower" shall include its Subsidiaries and Affiliates. As
used in this Agreement as to Borrower, "Subsidiary" shall mean any corporation
of which more than 50% of the issued and outstanding voting stock is owned
directly or indirectly by Borrower. As to Borrower, "Affiliate" shall have
the meaning as defined in 11 U.S.C. Section 101, except that the term "debtor"
therein shall be substituted by the term "Borrower" herein.
Relying upon the covenants, agreements, representations and warranties
contained in this Agreement, Bank is willing to extend credit to Borrower upon
the terms and subject to the conditions set forth herein, and Bank and
Borrower agree as follows:
REPRESENTATIONS. Borrower represents that from the date of this Agreement and
until final payment in full of the Obligations: ACCURATE INFORMATION. All
information now and hereafter furnished to Bank is and will be true, correct
and complete. Any such information relating to Borrower's financial condition
will accurately reflect Borrower's financial condition as of the date(s)
thereof (including all contingent liabilities of every type), and Borrower
further represents that its financial condition has not changed materially or
adversely since the date(s) of such documents. AUTHORIZATION; NON-
CONTRAVENTION. The execution, delivery and performance by Borrower and any
guarantor, as applicable, of this Agreement and other Loan Documents to which
it is a party are within its power, have been duly authorized by all necessary
action taken by the duly authorized officers of Borrower and any guarantors
and, if necessary, by making appropriate filings with any governmental agency
or unit and are the legal, binding, valid and enforceable obligations of
Borrower and any guarantors; and do not (i) contravene, or constitute (with or
without the giving of notice or lapse of time or both) a violation of any
provision of applicable law, a violation of the organizational documents of
Borrower or any guarantor, or a default under any agreement, judgment,
injunction, order, decree or other instrument binding upon or affecting
Borrower or any guarantor, (ii) result in the creation or imposition of any
lien (other than the lien(s) created by the Loan Documents) on any of
Borrower's or guarantor's assets, or (iii) give cause for the acceleration of
any obligations of Borrower or any guarantor to any other creditor. ASSET
OWNERSHIP. Borrower has good and marketable title to all of the properties
and assets reflected on the balance sheets and financial statements supplied
Bank by Borrower, and all such properties and assets are free and clear of
mortgages, security deeds, pledges, liens, charges, and all other
encumbrances, except as otherwise disclosed to Bank by Borrower in writing
("Permitted Liens"). To Borrower's knowledge, no default has occurred under
any Permitted Liens and no claims or interests adverse to Borrower's present
rights in its properties and assets have arisen. DISCHARGE OF LIENS AND
TAXES. Borrower has duly filed, paid and/or discharged all taxes or other
claims which may become a lien on any of its property or assets, except to the
extent that such items are being appropriately contested in good faith and an
adequate reserve for the payment thereof is being maintained. SUFFICIENCY OF
CAPITAL. Borrower is not, and after consummation of this Agreement and after
giving effect to all indebtedness incurred and liens created by Borrower in
connection with the Loan, will not be, insolvent within the meaning of 11
U.S.C. Section 101(32). COMPLIANCE WITH LAWS. Borrower is in compliance in
all respects with all federal, state and local laws, rules and regulations
applicable to its properties, operations, business, and finances, including,
without limitation, any federal or state laws relating to liquor (including 18
U.S.C. Section 3617, et seq.) or narcotics (including 21 U.S.C. Section 801,
et seq.) and/or any commercial crimes; all applicable federal, state and local
laws and regulations intended to protect the environment; and the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), if applicable.
ORGANIZATION AND AUTHORITY. Each corporate or limited liability company
Borrower and any guarantor, as applicable, is duly created, validly existing
and in good standing under the laws of the state of its organization, and has
all powers, governmental licenses, authorizations, consents and approvals
required to operate its business as now conducted. Each corporate or limited
liability company Borrower and any guarantor, if any, is duly qualified,
licensed and in good standing in each jurisdiction where qualification or
licensing is required by the nature of its business or the character and
location of its property, business or customers, and in which the failure to
so qualify or be licensed, as the case may be, in the aggregate, could have a
material adverse effect on the business, financial position, results of
operations, properties or prospects of Borrower or any such guarantor. NO
LITIGATION. There are no pending or threatened suits, claims or demands
against Borrower or any guarantor that have not been disclosed to Bank by
Borrower in writing.
AFFIRMATIVE COVENANTS. Borrower agrees that from the date of this Agreement
and until final payment in full of the Obligations, unless Bank shall
otherwise consent in writing, Borrower will: BUSINESS CONTINUITY. Conduct
its business in substantially the same manner and locations as such business
is now and has previously been conducted. MAINTAIN PROPERTIES. Maintain,
preserve and keep its property in good repair, working order and condition,
making all needed replacements, additions and improvements thereto, to the
extent allowed by this Agreement. ACCESS TO BOOKS & RECORDS. Allow Bank, or
its agents, during normal business hours, access to the books, records and
such other documents of Borrower as Bank shall reasonably require, and allow
Bank to make copies thereof at Bank's expense. INSURANCE. Maintain adequate
insurance coverage with respect to its properties and business against loss or
damage of the kinds and in the amounts customarily insured against by
companies of established reputation engaged in the same or similar businesses
including, without limitation, commercial general liability insurance, workers
compensation insurance, and business interruption insurance; all acquired in
such amounts and from such companies as Bank may reasonably require. NOTICES.
Promptly notify Bank in writing of (i) any material adverse change in its
financial condition or its business; (ii) any default under any material
agreement, contract or other instrument to which it is a party or by which any
of its properties are bound, or any acceleration of the maturity of any
indebtedness owing by Borrower; (iii) any material adverse claim against or
affecting Borrower or any part of its properties; (iv) the commencement of,
and any material determination in, any litigation with any third party or any
proceeding before any governmental agency or unit affecting Borrower; and (v)
at least 30 days prior thereto, any change in Borrower's name or address as
shown above, and/or any change in Borrower's structure. COMPLIANCE WITH OTHER
AGREEMENTS. Comply with all terms and conditions contained in this Agreement,
and any other Loan Documents, and swap agreements, if applicable, as defined
in the Note. PAYMENT OF DEBTS. Pay and discharge when due, and before
subject to penalty or further charge, and otherwise satisfy before maturity or
delinquency, all obligations, debts, taxes, and liabilities of whatever nature
or amount, except those which Borrower in good faith disputes. REPORTS AND
PROXIES. Deliver to Bank, promptly, a copy of all financial statements,
reports, notices, and proxy statements, sent by Borrower to stockholders, and
all regular or periodic reports required to be filed by Borrower with any
governmental agency or authority. OTHER FINANCIAL INFORMATION. Deliver
promptly such other information regarding the operation, business affairs, and
financial condition of Borrower which Bank may reasonably request. ESTOPPEL
CERTIFICATE. Furnish, within 15 days after request by Bank, a written
statement duly acknowledged of the amount due under the Loan and whether
offsets or defenses exist against the Obligations,
NEGATIVE COVENANTS. Borrower agrees that from the date of this Agreement and
until final payment in full of the Obligations, unless Bank shall otherwise
consent in writing, Borrower will not: NONPAYMENT; NONPERFORMANCE. Fail to
pay or perform the Obligations or Default (as defined in the Loan Documents)
under any of the Loan Documents. CROSS DEFAULT. Default in payment or
performance of any obligation under any other loans, contracts or agreements
of Borrower, any Subsidiary or Affiliate of Borrower ("Affiliate" shall have
the meaning as defined in 11 U.S.C. Section 101, except that the term "debtor"
therein shall be substituted by the term "Borrower" herein; "Subsidiary" shall
mean any corporation of which more than 50% of the issued and outstanding
voting stock is owned directly or indirectly by Borrower), any general partner
of or the holder(s) of the majority ownership interests of Borrower with Bank
or its affiliates; MATERIAL CAPITAL STRUCTURE OR BUSINESS ALTERATION.
Materially alter the type or kind of Borrower's business or that of its
Subsidiaries or Affiliates, if any; or suffer or permit the acquisition of
substantially all of Borrower's business or assets, or a material portion (10%
or more) of such business or assets if such a sale is outside Borrower's
ordinary course of business, or more than 50% of its outstanding stock or
voting power in a single transaction or a series of transactions; or acquire
substantially all of the business or assets or more than 50% of the
outstanding stock or voting power of any other entity; or enter into any
merger or consolidation without prior written consent of Bank. DEFAULT ON
OTHER CONTRACTS OR OBLIGATIONS. Default on any material contract with or
obligation when due to a third party or default in the performance of any
obligation to a third party incurred for money borrowed. JUDGMENT ENTERED.
Permit the entry of any monetary judgment or the assessment against, the
filing of any tax lien against, or the issuance of any writ of garnishment or
attachment against any property of or debts due Borrower. GOVERNMENT
INTERVENTION. Permit the assertion or making of any seizure, vesting or
intervention by or under authority of any government by which the management
of Borrower or any guarantor is displaced of its authority in the conduct of
its respective business or such business is curtailed or materially impaired.
PREPAYMENT OF OTHER DEBT. Retire any long-term debt entered into prior to the
date of this Agreement at a date in advance of its legal obligation to do so.
RETIRE OR REPURCHASE CAPITAL STOCK. Retire or otherwise acquire any of its
capital stock.
BORROWING BASE. As to the Line of Credit Note, the following provisions shall
apply:
BORROWING LIMITATION. The aggregate outstanding balance at any time under the
Line of Credit Note shall not exceed the lesser of (i) the maximum principal
amount of the Note or (ii) the Aggregate Value of Custodian Account No.
4028302397, excluding assets held in tax exempt investments, which account,
after exclusion of such tax exempt investments, serves as collateral for this
loan (the "Account"). The "Aggregate Value" of the Account shall be
calculated by first reducing the market value of the Account by the aggregate
amount of any other indebtedness secured by the Account and by then adding the
sum of the following:
(a) eighty percent (80%) of the current market value of Corporate Bonds
(Rating Aaa or Aa, Non-convertible, NYSE)
(b) seventy percent (70%) of the current market value of actively traded
stocks listed on NYSE or AMEX and selling for $10/share or more
(c) ninety percent (90%) of the current market value of U.S. Government
Agency Obligations
REQUIRED REPORTS. Borrower shall certify to Bank by the tenth day of each
month, the amount of Eligible Accounts as of the first day of each month, on
forms required by Bank together with all detail and supporting documents
requested by Bank. Bank may at any time and from time to time, during Bank's
normal business hours, enter upon any business premises of Borrower and audit
Borrower's accounts. Bank's determination of the amount of Eligible Accounts
shall at all times be indisputable and deemed correct. The Borrower, at all
times, shall cooperate with Bank without limitation by providing Bank
information and access to Borrower's premises and business records and shall
be courteous to Bank's agents.
CONTINUING REPRESENTATIONS. Borrower warrants and represents as a continuing
warranty, that so long as principal is outstanding under the Line of Credit
Note, the outstanding principal balance shall not exceed the lesser of the
Maximum Principal Amount or the principal amount stated in the Line of Credit
Note (the "Borrowing Limit"). Borrower agrees to pay any advances in excess
of the Borrowing Limit immediately upon receipt by Borrower of written notice
that the Borrowing Limit has been exceeded.
CONDITIONS PRECEDENT. The obligations of Bank to make the Loan and any
advances pursuant to this Agreement are subject to the following conditions
precedent: ADDITIONAL DOCUMENTS. Receipt by Bank of such additional
supporting documents as Bank or its counsel may reasonably request.
IN WITNESS WHEREOF, Borrower and Bank, on the day and year first written
above, have caused this Agreement to be executed under seal.
EMCORE Corporation
Taxpayer Identification Number: 22-2746503
CORPORATE By: /s/ Reuben F. Richards, Jr.
SEAL Reuben F. Richards, Jr., President
First Union National Bank of Florida
/s/ Douglas Zachariasen
Douglas Zachariasen, Vice President
Exhibit 10.14
Consulting Agreement
This Consulting Agreement is entered into as of this 6th day of
December, 1996 by and between EMCORE Corporation, a New Jersey corporation
having its chief executive offices at 394 Elizabeth Avenue, Somerset, New
Jersey 08873 ("Emcore"), and Norman E. Schumaker, residing at 20 Upper Warren
Way, Warren, New Jersey 07059 ("Dr. Schumaker").
WHEREAS, Dr. Schumaker has served honorably as the Chief Executive
Officer of Emcore from its formation until December 4, 1996, on which date he
retired as its Chief Executive Officer, its Chairman of the Board of Directors
and as a member of its Board of Directors;
WHEREAS, Emcore desires to maintain a continuing relationship with
Dr. Schumaker and obtain the benefit of his consulting services on a regular
basis, and Dr. Schumaker is willing to provide such services; and
WHEREAS, Emcore and Dr. Schumaker both desire to provide for
appropriate retirement arrangements.
NOW, THEREFORE, in consideration of the foregoing, and of the
agreements hereinafter set forth, the parties hereto agree as follows:
CONSULTING PROVISIONS: 1. Consulting. Dr. Schumaker agrees to provide
consulting services to Emcore in the area of compound semiconductor materials
and devices for eight, eight hour workdays per month (approximately 2 days a
week less vacation time) for a term of two years commencing January 1, 1997
and ending December 31, 1998 (the "Term"). Dr. Schumaker agrees that he will
consult with no other person or entity during the Term in the subject area of
compound semiconductor materials and devices without the prior written consent
of Emcore, which consent shall not be unreasonably withheld. Dr. Schumaker
shall be responsible to, and shall from time to time report to, the Chairman
of the Board of Directors of Emcore and will consult with such personnel and
take direction for such consulting assignments from either the Chairman of the
Board of Directors or such other senior executive personnel as the Chairman
shall from time to time designate. Dr. Schumaker agrees to review regularly
the status of research and product development projects to which he has been
assigned, discuss such projects with the Emcore's scientific and technical
personnel and provide regular comments on and suggestions for improvement of
these projects. Dr. Schumaker and the senior executive personnel of Emcore
shall consult from time-to-time about other assignments which Dr. Schumaker
may undertake, including the attendance at conferences, appearances at trade
shows and discussion of scientific problems with customers (but no sales
visits), provided that no such additional services shall be undertaken without
the specific and voluntary agreement of both parties. Emcore agrees to
reimburse Dr. Schumaker for all reasonable expenses incurred in connection
with the performance of such additional assignments.
2. Renewal. This Agreement will automatically renew for one
successive two-year term if neither party gives notice to the other more than
sixty (60) days prior to the end of the Term (i.e., November 2, 1998) of his
or its intention not to renew at the end of the Term. In the event of such
renewal the Term shall be extended until December 31, 2000.
3. Consulting Fee. Dr. Schumaker shall receive a monthly fee of
$20,833.33 (an annual rate of $250,000.00) payable for each month of the Term
on the first day of that month. To secure the payment of the consulting fee,
Emcore agrees to deposit, no later than December 24, 1996, $500,000 in an
interest-bearing account, said interest being for the benefit of Emcore, with
the law firm of Dillon, Bitar and Luther as escrow agent. Emcore shall have
the option of having the monthly consulting fee paid from the escrow or paying
such sums directly. If sums are paid directly, then upon the written request
of Emcore and upon written notice given to Dr. Schumaker and without objection
by Dr. Schumaker within ten days, the escrow agent shall release to Emcore
that portion of the consulting fee so paid by Emcore. Interest on the account
shall be paid quarterly to Emcore without the requirement of notice. Emcore
agrees that this is a Security agreement and all amounts in the escrow are
pledged as security for payment of the consulting fee. In the event of
default hereunder Dr. Schumaker shall have all of the rights and remedies of a
secured party under the Uniform Commercial Code with respect to the balance of
such escrow. Emcore and Dr. Schumaker shall enter into such further security
documents as Dr. Schumaker shall reasonably request to perfect Dr. Schumaker's
security interest in the escrow fund.
4. Automotive Allowance. Emcore shall provide Dr. Schumaker an
automobile allowance of $750 per month through the Term of this Agreement
which shall be paid on the first of the month.
5. Forgiveness of Advances. Emcore has advanced to Dr. Schumaker
$58,000 and $57,300. Emcore acknowledges that, as previously agreed, the
$58,000 advance has been forgiven as of the date of Dr. Schumaker's
retirement. Emcore agrees to forgive the $57,300 advance on January 1, 1997,
as additional compensation for Dr. Schumaker's consulting activities.
6. Notes and Warrants Issued May 1, 1996. On May 1, 1996, Emcore
completed an offering to shareholders of Subordinated Notes and Warrants.
Employees who were also shareholders were permitted to participate in the
offering on the basis of delivery of their personal notes in lieu of cash as
an employee benefit. Pursuant to this offering, Dr. Schumaker purchased in
the aggregate $566,432 principal amount of Emcore's Subordinated Notes and
received Warrants to purchase 472,027 shares of Emcore Common Stock,
exercisable at $1.20 per share, and paid for these securities with Dr.
Schumaker's personal Note in the amount of $566,432. Dr. Schumaker agrees to
place said Subordinated Notes and said Warrants in escrow with the escrow
agent until January 6, 1998. On such date such securities shall be released
to Dr. Schumaker unless this Agreement has been terminated for reasons other
than the death or disability of Dr. Schumaker or a material breach of this
Agreement by Emcore. In such event the parties agree that the May 1, 1996
transaction shall be reversed and Dr. Schumaker, through the escrow agent,
shall re-deliver to Emcore said Subordinated Notes and said Warrants and said
personal Note of Dr. Schumaker shall be automatically canceled. Should any
party dispute that such securities should be released or should be cancelled,
such party shall give written or facsimile notice to the escrow agent no
later than January 5, 1998 and the escrow agent shall advise the other party
then shall hold such securities pending the written agreement of the parties
or an order of court. Should such Warrants be called while in escrow, the
escrow agent shall take instructions from Dr. Schumaker in responding to the
call and Dr. Schumaker may direct that the Notes be delivered in payment,
provided that if such warrants are exercised the shares of common stock
deliverable upon exercise shall be delivered into escrow. Should Dr. Schumaker
desire to exercise the warrants during the escrow period, then the escrow
agent shall exercise the warrants at Dr. Schumaker's written direction and
using as payment such funds as Dr. Schumaker shall provide or the Subordinated
Notes at Dr. Schumaker's direction.
7. Public Statements Concerning Emcore or its Tech nology. Dr.
Schumaker agrees that during the Term of this Agreement that he will submit
all public statements and literary works relating to Emcore or the subject
area of this Consulting Agreement to Emcore for its review prior to
publication or release to third parties to better assure the good name of
Emcore and better protect its confidential information. Emcore will submit to
Dr. Schumaker all public statements or literary works referring to Dr.
Schumaker prior to publication to better assure his good name.
8. Termination. This Consulting Agreement shall terminate if Dr.
Schumaker shall die or, within the meaning of the disability policy identified
below, if Dr. Schumaker shall become disabled. This Consulting Agreement may
be terminated by Emcore only for material breach of its provisions and after
30 days written notice to Dr. Schumaker identifying the breach and providing a
reasonable opportunity (if at all possible) to cure. Upon termination all of
Emcore's obligations under this Agreement to make payments shall cease and the
Term shall come to an end.
9. Confidentiality Agreement.
A. Records and Disclosure. During the Term, Dr. Schumaker
shall maintain on a current basis complete and accurate records of all
research or technical development work on which Dr. Schumaker consults
hereunder, whether or not his involvement was during normal Emcore working
hours or on Emcore premises. Such records shall be the property of Emcore.
Dr. Schumaker shall disclose forthwith to Emcore any discovery, invention or
literary work of any type that is used or usable by Emcore, and that is or was
conceived or created by him during the Term and relating to the subject area
of this Consulting Agreement or during the period of his prior employment by
Emcore, whether or not patentable or copyrightable, whether affirmative or
negative in nature, and whether made solely or jointly with others, unless
such discovery, invention, or literary is conceived or created after December
4, 1996 in connection with a consulting agreement with another entity and such
consulting is not in violation of this Agreement (collectively,
"Developments").
B. Assignment. Dr. Schumaker hereby assigns, and agrees to
assign, to Emcore all of Dr. Schumaker's right, title and interest in all
Developments, whether or not presently in exist- ence, and in all domestic and
foreign intellectual property rights therein. Upon the filing by Emcore of
any U.S. patent application naming Dr. Schumaker as an inventor or
co-inventor, Emcore shall pay to Dr. Schumaker the sum of five hundred dollars
($500).
C. Cooperation. At Emcore's request and expense, during and
after the Term Dr. Schumaker shall (i) execute and deliver to Emcore or its
designee all documents that Emcore, in its sole discretion, deems proper and
necessary in connection with the preparation, assignment, filing or
prosecution of any domestic or foreign patent or copyright application for any
Development; (ii) give and make any truthful oath to obtain, perfect, and
enforce any patent or copyright relating to any Development; and (iii) assist
in any other lawful way to obtain, perfect and enforce any patent or copyright
or application for any Development.
D. Confidentiality. During the Term and thereafter, Dr.
Schumaker shall not use or disclose to any person, except as may be necessary
in performing Dr. Schumaker's duties to Emcore, any confidential information
of or concerning Emcore, its actual or anticipated business, research or
development, its technology or the implementation or exploitation thereof,
including without limitation information pertaining to customers, accounts,
vendors, prices, costs, materials, processes, material results, materials
technology, device results, system designs, system specifications, materials
of construction, trade secrets, and equipment designs.
E. Covenant. During the Term, Dr. Schumaker shall not become
involved directly or indirectly, as a shareholder, director, officer,
employee, agent or otherwise (except as the owner of less than one percent
(1%) of the shares of a company whose annual gross revenues exceed one hundred
million dollars), in any business activity which the Board of Directors of
Emcore determines to be competitive with Emcore. For a period of two (2)
years after the Term, Dr. Schumaker shall not: (1) Be employed by or become a
principal of any domestic or foreign business competing with Emcore in the
United States; (2) Accept employment with any customer of Emcore or any
supplier of goods or services to Emcore without prior consultation with
Emcore; (3) Solicit any employee of Emcore to leave such employee's position
with Emcore; or (4) Solicit business from any customer of Emcore without the
prior written consent of Emcore which written consent will not be unreasonably
refused.
F. Remedy. Breach by Dr. Schumaker of Subsection D
("Confidentiality") or E ("Covenant") would injure Emcore in a manner not
adequately compensable by money damages. In the event of such an active or
threatened breach, Emcore shall be entitled to an injunction, including a
preliminary injunction and temporary restraining order, without posting a
bond.
RETIREMENT PROVISIONS
10. Retirement. Dr. Schumaker retired from his positions as an
employee, as an officer and as a member of the Board of Directors of Emcore on
December 4, 1996.
11. Stock Options. Dr. Schumaker holds incentive stock options
granted by Emcore under its 1995 Incentive Stock Option Plan to purchase
150,000 shares of Emcore's common stock, of which 90,000 shares are presently
vested. The Board of Directors of Emcore has, by Resolution, extended the
period for the exercise of these vested options for ninety (90) days from
December 4, 1996 until March 4, 1997. Emcore acknowledges that Dr. Schumaker
may exercise the 90,000 options up to, and including, that date. Dr.
Schumaker acknowledges that the remaining 60,000 unvested options have lapsed
pursuant to the terms of the options.
12. Medical, Disability and Life Insurance. Emcore agrees to
provide Dr. Schumaker with participation, during the period ending on December
31, 2001, in Emcore's plan of medical benefits. Emcore agrees to assign to
Dr. Schumaker the Disability Insurance policy under which he is presently
covered and the two life insurance policies on his life payable to his
selected beneficiary in the aggregate face amount of $1,075,000, if these
policies are by their terms assignable, and if not assignable to establish
similar policies which are assignable and so assign them. Emcore agrees to
reimburse Dr. Schumaker, until December 31, 2001, for all premiums due on
these three policies. Emcore shall be free to continue or to cancel at its
option any key-man insurance payable to Emcore it may have on the life of Dr.
Schumaker. In the event Emcore shall determine to cancel such insurance, it
shall give thirty (30) days notice to Dr. Schumaker and afford Dr. Schumaker
the opportunity to purchase such policy from Emcore upon payment to Emcore of
its cash surrender value if such insurance shall then be assignable according
to its terms.
13. Bonus, Vacation Time and Expense Reimbursement. Dr. Schumaker
has or shall be paid within two days of the execution of this Agreement by
Emcore $103,055 in full satisfaction of all bonus and all vacation time
obligations of Emcore to Dr. Schumaker. Dr. Schumaker agrees to submit to
Emcore no later than January 15, 1997 all expense vouchers for expenses
incurred during the period of his employment and Emcore shall reimburse Dr.
Schumaker for all expenses reasonably incurred.
14. Employment Agreement and Confidentiality Agreement. The
parties agree that the Employment Agreement dated January 1, 1996, which fully
replaced all prior employment agreements, has been terminated and all benefits
to which Dr. Schumaker is entitled thereunder have been replaced by the
benefits provided hereunder. Notwithstanding such termination, Paragraph 8
thereof regarding the protection of Confidential Information of Emcore, as was
originally intended, shall remain in effect. The Employment Agreement was
supplemented by a Confidentiality Agreement dated October 14, 1996 which shall
also remain in effect.
15. 401(k) Plan. Dr. Schumaker has made voluntary contributions
to the 401(k) plan sponsored by Emcore. Emcore acknowledges that Dr.
Schumaker, subject to terms of the plan, may withdraw such funds and will from
time to time at Dr. Schumaker's request will so instruct the plan trustee.
GENERAL PROVISIONS
16. General Release. Emcore hereby generally releases Dr.
Schumaker from all claims or causes of action it may hold against Dr.
Schumaker as of the date of this Agreement, whether or not presently known to
Emcore (except for fraud), except as provided for herein. Dr. Schumaker
hereby generally releases Emcore, its officers, its directors, its controlling
shareholders and its employees from all claims or causes of action which he
may hold against them as of the date of this Agreement, whether or not
presently known to Dr. Schumaker (except for fraud), except as provided for
herein. In addition, Dr. Schumaker and Emcore each hereby generally release
the other from any and all claims arising under the Securities Act of 1933, as
amended, or the Securities Act of 1934, as amended, or any applicable state
securities law whether such claims arise from facts and circumstances as of
the date hereof or as of any date until December 31, 1997.
17. Indemnification. Should any action be brought against Dr.
Schumaker arising out of his acts on behalf of Emcore as a consultant,
employee, officer, director or shareholder of Emcore, Emcore agrees to
indemnify and hold harmless Dr. Schumaker from any liability or costs
(including attorneys fees) incurred in defending such actions, provided Dr.
Schumaker shall give reasonably prompt notice to Emcore of all such actions,
shall allow Emcore, at its option, to defend such actions and shall cooperate
fully with Emcore in defense of such actions.
18. Public Offering. Emcore may undertake an initial public
offering of its shares of common stock at some time in the future. In
connection with any such initial public offering, Dr. Schumaker agrees that he
will execute a restrictive letter as proposed by the underwriters acting in
connection with such offering and which is signed by other executive officers
and major shareholders of Emcore. However, this restrictive letter shall not
restrict the resale of the shares for a period greater than a period of six
months from the date of any initial public offering of Emcore's common stock.
Dr. Schumaker agrees not to exercise any piggy-back rights pursuant to any
Registration Rights Agreement in connection with any such offering unless
Emcore's principal shareholder, Jesup & Lamont Merchant Partners, L.L.C., its
successors and assigns or its affiliates shall be selling shareholders in such
offering. In the event such initial public offering is completed, Emcore
agrees to assist Dr. Schumaker in preparing and filing any report he is
required to file under the federal and state securities laws including
Schedule 13D, Schedule 13G, Form 3, Form 4 or Form 5 as may from time to time
be required to be filed by Dr. Schumaker which may arise from his beneficial
ownership of shares of common stock of Emcore or otherwise.
19. Affiliation. Emcore acknowledges that as of December 4, 1996
Dr. Schumaker ceased to be an affiliate of Emcore. Emcore agrees to remove
restrictive legends from Dr. Schumaker securities at such time or from time to
time as Dr. Schumaker shall request in writing, but not before the expiration
of six months from December 4, 1996, and not prior to the expiration of any
restrictive period under any underwriters restrictive letter provided that at
such time, as a matter of law, such restrictions may be remove in the opinion
of counsel reasonably acceptable to the Emcore. Emcore acknowledges that Dr.
Schumaker owns 1,251,351 shares of common stock, warrants to purchase 472,027
shares of common stock and holds options to purchase 90,000 shares of common
stock.
20. Independent Contractor. Dr. Schumaker shall be an independent
contractor, and not an employee, with respect to the consulting services.
21. Legal Fee. Emcore shall pay the reasonable legal expenses
of Dr. Schumaker incurred in the negotiation and preparation of this
Agreement.
22. Miscellaneous. This Consulting Agreement constitutes the
entire agreement of the parties in connection with the subject matter hereof.
This Agreement shall be interpreted in accordance with the substantive laws of
the State of New Jersey. SHOULD ANY DISPUTE ARISE UNDER THIS AGREEMENT, THE
PARTIES HERETO AGREE THAT IN ANY CIVIL ACTION EACH SHALL WAIVE THE RIGHT TO
TRIAL BY JURY AND CONSENT TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL OR
STATE COURTS LOCATED IN THE STATE OF NEW JERSEY AND SHALL WAIVE ANY CLAIM OF
IMPROPER VENUE OR FORUM NON CONVENIENS WITH RESPECT THERETO. This Agreement
is a personal contract and Dr. Schumaker's rights and obligations herein may
not be sold, transferred or assigned, pledged, hypothecated or otherwise
alienated by Dr. Schumaker. Notwithstanding the foregoing, Dr. Schumaker may
transfer his rights hereunder to an entity formed by him and principally owned
by him and his family, so long as he shall remain personally responsible for
the performance of all duties hereunder. The rights and obligations of the
parties hereunder shall be binding upon and inure to the benefit of the
successors and assigns of each. This Agreement may be amended only in writing
signed by both parties to this Agreement. Notices to be given pursuant to
this Agreement shall be given to the parties' address set forth at the head of
this Agreement or at such other address as one party shall advise the other in
writing in accordance with this notice procedure.
IN WITNESS WHEREOF, Dr. Schumaker and Emcore's duly authorized
corporate officer, have executed this Agreement as of the date set forth
above.
EMCORE CORPORATION
By: /s/ Thomas G. Werthan
Thomas G. Werthan
Vice President
/s/ Norman E. Schumaker
Norman E. Schumaker
EXHIBIT 10.15
Confidential treatment has been requested with respect to portions of this
document. Such portions are indicated by "[*]".
* * *
PURCHASE ORDER 111496
DRD 100610
Delphi Energy & Engine Management Systems
SEE BELOW
Delphi Automotive Systems
Disbursement Analysis Dept.
P.O. Box 438040
Pontiac, MI 48343-6040
DELPHI Energy & Engine
Management Systems
Anderson, Indiana 46018-9986 USA
Page 1
Pegasus Div. Of Emcore Corp.
Attn.: Lou Koszi
394 Elizabeth Avenue
Somerset, NJ 08873
The Seller agrees to sell and the Buyer agrees to purchase subject to the
terms and conditions hereof, approximately the percentage indicated on Exhibit
"A" attached hereto of the Buyer's requirements of the items shown on such
Exhibit "A" effective 11/13/96.
This purchase order will expire on 12/31/97, except that, if buyer submits to
seller a new and revised Exhibit "A" during May 1997, such submission shall
constitute an offer of renewal by Buyer to continue to purchase from Seller
those goods or services identified on Exhibit "A" pursuant to the terms and
conditions of this purchase order, with a new expiration date of 12/31/98.
Unless Seller notifies Buyer in writing of it's rejection of this offer within
15 days of Seller's receipt of the new or revised Exhibit "A", Seller will be
deemed to have accepted the offer.
This same renewal mechanism will apply to the renewed purchase order, and any
renewal periods thereafter.
Shipments are authorized only when released by our shipping schedule.
Please manually sign the purchase order acknowledgement and each page of the
Exhibit "A" and return to the Buyer.
EFT/Manual check payments Seller agrees to payment in accord with its current
EFT Payment Agreement or, where EFT is not in place. That GM may defer making
payment by paper check during any recognized GM holiday until the next GM
business day without being in default or losing any cash discount privileges.
The following pertains to shipments to Indiana only. Direct payment permit
#003280489 for Indiana sales and tax use.
In order to complete our records, it is necessary to have the acknowledgment
copy of the purchase order and/or amendment signed and returned at once. Your
prompt attention and reply will be appreciated.
Return the acknowledgement copy to:
Delphi E Purchasing Department
P.O. Box 2439
Anderson, IN 46018
Ship to plant specified on purchase order via Delphi Energy & Engine
Management Systems Traffic Department Instruction Letter. If no letter on
file call 1-800-436-6668. Note that Delphi Energy & Engine Management Systems
has a consignee billing agreement with UPS. The toll free number for UPS is
800 354-7527. Pre-paid and add may not be used with UPS.
Deliver to Dept. must appear on all packing slips.
Seller represents that goods purchased under this order were not produced with
forced labor (as defined in 19 U.S.C. 1307) either by Seller or Seller's
suppliers. Seller shall indemnify Buyer against any liability Buyer may incur
if this representation is incorrect.
* * *
These Numbers Must Appear on All
Packing Slips and ______________
A UNIQUE NUMBER IDENTIFIED AS A SHIPMENT NUMBER
MUST APPEAR ON ALL PACKING SLIPS & CORRESPONDING INVOICES
SUBMIT INVOICE USING THIS
______ UNIT OF MEASURE
IEA: 551
Terms: Net 25th PROX
FOB: Collect S.P.
SHIP VIA:
DATE TO SHIP:
GENERAL LEDGER ACCT.
SUB ACCOUNT:
CHG. DEPT.:
WORK ORDER:
PROJECT/JOB NO.
OR PLANT ORDER NO.:
F/U: 76
DELIVER TO DEPT.:
NOTIFY:
TERMS AND CONDITIONS: This order including the terms and conditions on the
face and reverse side hereof (and including additional Terms and Conditions
attached herewith if the work and material is for use on a United States
Government Contract), contains the complete and final agreement between Buyer
and Seller and no other agreement in any way modifying any of said terms and
conditions will be binding upon Buyer unless made in writing and signed by
Buyer's authorized representative. To the extent that the goods ordered
and/or shipped hereunder are by nature subject to Federal excise tax, the
following exemption certificate of Registration No. 380572515-001-9, issued by
the District Director, Internal Revenue Service, Detroit, Michigan, and that
the article or articles specified in this order will be used by it as material
in the manufacture of, or as a component part of another article to be
manufactured by it. SEE REVERSE SIDE HEREOF FOR THE TERMS & CONDITIONS TO
WHICH SELLER AGREES BY ACCEPTANCE OF THE ORDER. This order is not binding
until accepted. Acceptance should be executed on acknowledgment copy which
should be returned to buyer.
SEE REVERSE SIDE FOR SHIPPING AND BILLING INSTRUCTIONS.
AUTHORITY FOR DIRECT PAYMENT SALES AND USE TAX. The Indiana Department of
Revenue under authority of Section 52 of the State Gross Retail Tax and Use
Tax Act, authorizes the above operating Division of General Motors Corporation
to make direct payment of such tax imposed on any purchase, use, storage or
other consumption of tangible personal property or service.
DO NOT BILL INDIANA SALES TAX-REGISTERED RETAIL MERCHANTS CERTIFICATE No.
380572515-002-7.
Direct Payment Permits may not be used for the purchase of licensed vehicles
or utilities, or for lump sum contracts for improvement of realty.
Purchase Order
Amendment No.: 156813
PURCHASE ORDER AMENDMENT
Pegasus Div. Of Emcore Corp.
Attn.: Lou Koszi
394 Elizabeth Avenue
Somerset, N.J. 08873
IN ORDER TO COMPLETE OUR RECORDS, IT IS NECESSARY TO
HAVE THE ACKNOWLEDGEMENT COPY OF THE PURCHASE ORDER
AND/OR AMENDMENT SIGNED AND RETURNED AT ONCE.
YOUR PROMPT ATTENTION AND REPLY WILL BE APPRECIATED.
WE ARE AMENDING PURCHASE ORDER AS NOTED BELOW AND AUTHORIZE YOU TO CHANGE YOUR
RECORDS IN ACCORDANCE WITH THIS AMENDMENT. PLEASE SIGN AND RETURN THE
ATTACHED ACKNOWLEDGMENT COPY WITHIN FIVE DAYS.
PURCHASE ORDER AMENDMENT
Supplier Code: 27551
Supplier Name: PEGASUS DIV. OF EMCORE CORP.
REQUIREMENT CONTRACT Page 1
EXHIBIT A 11/17/96
DELPHI-E Date
Division of General Motors Corporation
Anderson, Indiana 46018
Contract Number: 100610
All information below effective at once unless otherwise stated
ADD PART TO CONTRACT 10493927N
DESCRIPTION: MAGNETO RESISTOR
METHOD OF MANUFACTURE:
DELIVERY PLANT: 57 ALPHATEC USA
DELIVERY DEPARTMENT: 5796 400 Industrial Park Dr.
SPEC REVISION DATE: 05/13/96 Manteca, CA 95336
PERCENT OF BUSINESS:
MINIMUM ORDER QUANTITY:
MAXIMUM ORDER QUANTITY:
ACCOUNT DISTRIBUTION: 24008010
UNIT OF MEASURE: PIECE
UNIT PRICE: [*]
PAYMENT TERMS: NET 25TH PROX
FREIGHT ON BOARD CODE: COLLECT S.P.
END OF AMENDMENT
/s/ Reuben Richards
President & CEO
11-22-96
H. Kidd 317-646-3960
___________________
Buyer
DELPHI-E
Division of General Motors Corporation
Purchase Order Release
and Shipping Schedule
Follow Up Code: 27551 A
Pegasus Div. Of Emcore Corp.
Attn.: Lou Koszi
394 Elizabeth Avenue
Somerset, N.J. 08873
In the event of questions,
contact this person
M. Minks
915-783-4715
Date: 11/20/96
Unit of Measure: PC
Part No. 10493927N
Description: Magneto Resistor
Date of Order: 11/20/96
11/20/96
Purh. Ord. No.: 100610
New Rel
This Release No.: New-Acum
113090
Amount of Order: 641000
641000
Balance Due Order: With Rel
641000
Last Receipt Considered
Date:
P.O. Num:
Amount:
Total Receipts
ACUM MDL YTD:
Totals:
Fabrication: 291000
With Forecast: 466000
MONTHLY SCHEDULE SHIPPER SHIP CODE
Ship Code:
Back Sched:
Nov: Fabrication
Dec: Fabrication 90000
Jan: Fabrication 201000
Feb: Forecast 175000
Mar: Forecast 175000
Apr: Forecast
PLEASE READ CAREFULLY
1. The release supersedes all previous releases for this purchase order and
this part number.
2. Delphi Energy & Engine Management Systems assumes no obligations for
materials fabricated in excess of the Total Fabrication shown on this
schedule.
3. If a credit symbol (CR) appears after quantity in 1st monthly schedule
space titled "Back Schedules" this indicates overshipment of past
schedule and this quantity must be deducted from the first following
monthly schedule. A plain quantity in this space indicates past due and
must be shipped at once.
4. Material returned for credit has been reordered. Do not subtract returns
from your total shipped records.
5. All overshipments are subject to return, unless special arrangements are
authorized by Delphi Energy & Engine Management Systems prior to
shipment.
6. Shipments must be routed and marked in accordance with Delphi Energy &
Engine Management Systems' Traffic Department instructions.
7. In the event premium transportation is necessary because regular
shipments have not been made in a timely manner in accordance with the
release schedule, all excess charges must be assumed by the seller.
8. Review cancellations promptly. Unless advised in writing within 15 days,
we will assume cancellation is made without charge.
9. If you are unable to maintain prices on our purchase orders due to this
schedule, please advise at once.
10. Sign and return the acknowledgment copy at once, listing definite
shipping promises. Unless advised within 10 days, records are assumed
correct.
11. Shipments against this schedule are NOT authorized without production
sample approval or the use of a Delphi Energy & Engine Management Systems
Engineering Permit which allows the shipment of unapproved material.
(Ref: Supplier Quantity Manual).
OUR SHIP CODE SPECIFIES THE TIME PARTS OR MATERIAL ARE
TO LEAVE YOUR PLANT - NOT THE ARRIVAL TIME AT OUR PLANT.
DATE
/s/ K.E. Szymczak
WE HEREBY ACKNOWLEDGE RECEIPT OF THIS SCHEDULE.
Exhibit 11.1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-1 of our
report dated November 1, 1996, except for Notes 13 and 15 as to which the date
is December 6, 1996, and Note 16, as to which the date is February 3, 1997, on
our audits of the financial statements and financial statement schedule of
EMCORE Corporation. We also consent to the reference to our Firm under the
caption "Experts."
Parsippany, New Jersey
February 5, 1997
Exhibit 23.3
CONSENT OF LERNER DAVID LITTENBERG KRUMHOLZ & MENTLIK
We hereby consent to the reference to our firm under the caption
"Experts" in the Registration Statement on Form S-1 of EMCORE Corporation for
the registration of its Common Stock.
Lerner David Littenberg Krumholz & Mentlik
Westfield, New Jersey
February 3, 1997
Exhibit 23.4
Consent of Robert Louis-Dreyfus
I hereby consent to the reference to me as a nominee to be elected to the
Board of Directors of EMCORE Corporation, and I hereby approve the description
of my professional biography included under the caption "Management" in the
Registration Statement on Form S-1 of EMCORE Corporation.
Robert Louis-Dreyfus
February 5, 1997