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Exhibit 10.1
$175,000,000
EMCORE CORPORATION
5% CONVERTIBLE SUBORDINATED NOTES DUE 2006
REGISTRATION RIGHTS AGREEMENT
May 7, 2001
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
First Union Securities, Inc.
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
EMCORE Corporation, a New Jersey corporation (the "COMPANY"), proposes
to issue and sell to Credit Suisse First Boston Corporation, ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and First Union Securities, Inc.
(collectively, the "INITIAL PURCHASERS"), upon the terms set forth in a purchase
agreement of even date herewith (the "PURCHASE AGREEMENT"), $175,000,000
aggregate principal amount of its 5% Convertible Subordinated Notes due 2006
(the "NOTES"). The Notes will be convertible into shares of common stock of the
Company (the "COMMON STOCK") at the conversion price set forth in the Offering
Circular dated May 1, 2001. The Notes will be issued pursuant to an Indenture,
dated as of May 7, 2001 (the "INDENTURE"), by and between the Company and
Wilmington Trust Company, as trustee (the "Trustee"). As an inducement to the
Initial Purchasers to enter into the Purchase Agreement, the Company agrees with
the Initial Purchasers, (i) for the benefit of the Initial Purchasers and (ii)
for the benefit of the holders of the Notes and the Common Stock issuable upon
conversion or provisional redemption of the Notes (collectively, the
"SECURITIES") from time to time until such time as such Securities have been
sold pursuant to a Shelf Registration Statement (as defined below) (each of the
foregoing a "HOLDER" and, together, the "HOLDERS"), as follows:
1. SHELF REGISTRATION. The Company shall take the following actions:
(a) The Company shall promptly (but in no event more than 90
days after the first date of original issuance of the Notes (such 90th
day being a "FILING DEADLINE")) file with the Commission and thereafter
use its commercially reasonable efforts to cause to be declared
effective no later than 180 days after the first date of original
issuance of the Notes (such 180th day being an "EFFECTIVENESS
DEADLINE") a registration statement (the "SHELF REGISTRATION
STATEMENT") on an appropriate form under the Securities Act relating to
the offer and sale of the Transfer Restricted Securities (as defined
herein) by the Holders thereof from time to time in accordance with the
methods of distribution set forth in the Shelf Registration Statement
and Rule 415 under the Securities Act (hereinafter, the "SHELF
REGISTRATION"); PROVIDED, HOWEVER, that
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no Holder (other than an Initial Purchaser) shall be entitled to have
the Securities held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all the provisions
of this Agreement applicable to such Holder.
(b) The Company shall use its reasonable best efforts to keep
the Shelf Registration Statement continuously effective in order to
permit the prospectus included therein to be lawfully delivered by the
Holders of the relevant Securities, for a period of two years (or for
such longer period if extended pursuant to Section 2(h) below) from the
date of its effectiveness or such shorter period that will terminate
when all the Securities covered by the Shelf Registration Statement (i)
have been sold pursuant thereto or (ii) may be sold pursuant to Rule
144(k) under the Securities Act (or any successor rule therefore) (in
any case, such period being called the "SHELF REGISTRATION PERIOD").
The Company shall be deemed not to have used its reasonable best
efforts to keep the Shelf Registration Statement effective during the
requisite period if it voluntarily takes any action that would result
in Holders of Securities covered thereby not being able to offer and
sell such Securities during that period, unless such action is required
by applicable law.
(c) Notwithstanding any other provisions of this Agreement to
the contrary, the Company shall cause the Shelf Registration Statement
and the related prospectus and any amendment or supplement thereto, as
of the effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) Each Holder of Transfer Restricted Securities agrees that
if such Holder wishes to sell Transfer Restricted Securities pursuant
to a Shelf Registration Statement and related prospectus, it will do so
only in accordance with this Section 1(d) and Section 2(b). Each Holder
of Transfer Restricted Securities wishing to sell Transfer Restricted
Securities pursuant to a Shelf Registration Statement and related
prospectus agrees to deliver a written notice, substantially in the
form of Annex A to the Offering Circular (a "NOTICE AND QUESTIONNAIRE")
to the Company at least five (5) Business Days prior to any intended
distribution of Transfer Restricted Securities under the Shelf
Registration Statement (each such Holder delivering the Notice and
Questionnaire, a "NOTICE HOLDER"). From and after the date the Shelf
Registration Statement is declared effective, the Company shall, as
promptly as practicable after the date a Notice and Questionnaire is
delivered (i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or prepare
and, if required by applicable law, file a supplement to the related
prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other document required under the
Securities Act so that the Holder delivering such Notice and
Questionnaire is named as a selling securityholder in the Shelf
Registration Statement and the related prospectus in such a manner as
to permit such Holder to deliver such prospectus to purchasers of the
Transfer Restricted Securities in accordance with applicable law and,
if the Company shall file a post-effective amendment to the Shelf
Registration Statement, use reasonable efforts to cause such
post-effective amendment to be declared effective under the Securities
Act as promptly as is practicable, but in any event by the date (the
"Amendment Effectiveness Deadline Date") that is forty-five (45) days
after the date such post-effective amendment is required by this clause
to be filed; (ii) provide such Holder copies of any documents filed
pursuant to Section 1(d)(i); and (iii) notify such Holder as promptly
as practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 1(d)(i); provided
that if such Notice and Questionnaire is delivered
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during a Deferral Period, the Company shall so inform the Holder
delivering such Notice and Questionnaire and shall take the actions set
forth in clauses (i), (ii) and (iii) above upon expiration of the
Deferral Period in accordance with Section 2(b). Notwithstanding
anything contained herein to the contrary, (i) the Company shall be
under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or related
prospectus and (ii) the Amendment Effectiveness Deadline Date shall be
extended by up to ten (10) days from the expiration of a Deferral
Period (and the Company shall incur no obligation to pay Additional
Interest during such extension) if such Deferral Period is in effect on
the Amendment Effectiveness Deadline Date; and provided further, that
the Company shall not be obligated to file more than one (1)
post-effective amendment or supplement in any twenty (20) day period
following the date the Shelf Registration Statement is declared
effective for the purpose of naming Holders as selling securityholders
who were not named in the Shelf Registration Statement at the time of
effectiveness. Any Holder who, subsequent to the date the Registration
Statement is declared effective, provides a Notice and Questionnaire
required by this Section 1(d) pursuant to the provisions of this
Section (whether or not such Holder has supplied the Notice and
Questionnaire at the time the Shelf Registration Statement was declared
effective) shall be named as a selling securityholder in the Shelf
Registration Statement and related prospectus in accordance with the
requirements of this Section 1(d).
2. REGISTRATION PROCEDURES. In connection with any Shelf Registration
contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser,
prior to the filing thereof with the Commission, a copy of the Shelf
Registration Statement and each amendment thereof and each supplement,
if any, to the prospectus included therein and, in the event that an
Initial Purchaser (with respect to any portion of an unsold allotment
from the original offering) is participating in the Shelf Registration
Statement, the Company shall use its reasonable efforts to reflect in
each such document, when so filed with the Commission, such comments as
such Initial Purchaser reasonably may propose within a reasonable
period of time; (ii) include the names of the Holders who propose to
sell Securities pursuant to the Shelf Registration Statement, as
selling shareholders.
(b) Upon (A) the issuance by the SEC of a stop order
suspending the effectiveness of a Shelf Registration Statement or the
initiation of proceedings with respect to a Shelf Registration
Statement under Section 8(d) or 8(e) of the Securities Act, (B) the
occurrence of any event or the existence of any fact (a "Material
Event") as a result of which any Registration Statement shall contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, or any prospectus shall contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or (C) the occurrence or existence of any pending
corporate development, public filing with the SEC or other similar
event with respect to the Company that, in the reasonable discretion of
the Company, makes it appropriate to suspend the availability of a
Shelf Registration Statement and the related prospectus, (i) in the
case of clause (B) above, subject to the next sentence, as promptly as
practicable prepare and file, if necessary pursuant to applicable law,
a post-effective amendment to such Registration Statement or a
supplement to the related prospectus or any document incorporated
therein by reference or file any other required document that would be
incorporated by reference into such Registration Statement and
prospectus so that such Registration Statement does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and such prospectus does not contain
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any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and, in the case of a post-effective amendment to a
Registration Statement, subject to the next sentence, use reasonable
efforts to cause it to be declared effective as promptly as is
practicable, and (ii) give notice to the Notice Holders that the
availability of the Shelf Registration Statement is suspended (a
"Deferral Notice") and, upon receipt of any Deferral Notice, each
Notice Holder agrees not to sell any Transfer Restricted Securities
pursuant to the Registration Statement until such Notice Holder's
receipt of copies of the supplemented or amended prospectus provided
for in clause (i) above, or until it is advised in writing by the
Company that the prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed
incorporated by reference in such prospectus. The Company will use
reasonable efforts to ensure that the use of the prospectus may be
resumed (x) in the case of clause (A) above, as promptly as is
practicable, (y) in the case of clause (B) above, as soon as, in the
sole judgment of the Company, public disclosure of such Material Event
would not be prejudicial to or contrary to the interests of the Company
or, if necessary to avoid unreasonable burden or expense, as soon as
practicable thereafter and (z) in the case of clause (C) above, as soon
as, in the discretion of the Company, such suspension is no longer
appropriate. The Company shall be entitled to exercise its right under
this Section 2(b) to suspend the availability of the Shelf Registration
Statement or any prospectus, without incurring or accruing any
obligation to pay Additional Interest pursuant to Section 6, for one or
more periods not to exceed 90 consecutive days and not to exceed, in
the aggregate, 120 days in any 12-month period (such period, during
which the availability of the Registration Statement and any prospectus
is suspended being a "Deferral Period").
(c) The Company shall make every reasonable effort to obtain
the withdrawal at the earliest possible time, of any order suspending
the effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Notice Holder included
within the coverage of the Shelf Registration, without charge, at least
one copy of the Shelf Registration Statement and any post-effective
amendment thereto (other than an amendment or supplement solely with
respect to including the name of a Notice Holder in the Shelf
Registration Statement, in which case, the Company shall furnish such
amendment solely to such Notice Holder), including financial statements
and schedules.
(e) The Company shall, during the Shelf Registration Period,
deliver to each Notice Holder included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such
person may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each Notice Holder of the Securities
in connection with the offering and sale of the Securities covered by
the prospectus, or any amendment or supplement thereto, included in the
Shelf Registration Statement.
(f) Prior to any public offering of the Securities pursuant to
the Shelf Registration Statement the Company shall register or qualify
or cooperate with the Notice Holders and their respective counsel in
connection with the registration or qualification of the Securities for
offer and sale under the securities or "blue sky" laws of such states
of the United States as any Notice Holder reasonably requests in
writing and do any and all other acts or things necessary or advisable
to enable the offer and sale in such jurisdictions of the Securities
covered by the Shelf Registration Statement; PROVIDED, HOWEVER, that
the Company shall not be required to (i) qualify
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generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where it is not
then so subject.
(g) The Company shall cooperate with the Notice Holders to
facilitate the timely preparation and delivery of certificates
representing the Securities to be sold pursuant to the Shelf
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Notice Holders may
request in writing a reasonable period of time prior to sales of the
Securities pursuant to the Shelf Registration Statement.
(h) If the Company notifies the Initial Purchasers and the
Holders in accordance with Section 2(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been
made, then the Initial Purchasers and the Holders shall suspend use of
such prospectus, and the period of effectiveness of the Shelf
Registration Statement provided for in Section 1(b) above shall be
extended by the number of days from and including the date of the
giving of such notice to and including the date when the Initial
Purchasers and the Holders shall have received such amended or
supplemented prospectus pursuant to this Section 2(h).
(i) Not later than the effective date of the Shelf
Registration Statement, the Company will provide a CUSIP number for the
Notes and the Common Stock registered under the Shelf Registration
Statement, and provide the trustee with printed certificates for such
Notes, in a form eligible for deposit with The Depository Trust
Company.
(j) The Company will comply with all rules and regulations of
the Commission to the extent and so long as they are applicable to the
Shelf Registration and will make generally available to its security
holders (or otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act, no later than 45 days after the
end of a 12-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of the Shelf Registration
Statement, which statement shall cover such 12-month period; provided,
that if the Company files the reports required by this Section 3(j)
with the SEC and such reports are publicly available, it shall be
deemed to have satisfied its obligation to furnish such reports to its
securityholders pursuant to this Section 3(j).
(k) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended, in a timely manner
and containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(l) The Company may require each Holder that proposes to sell
Securities pursuant to the Shelf Registration Statement to furnish to
the Company a Notice and Questionnaire containing such information
regarding the Holder and the distribution of the Securities as the
Company may from time to time reasonably require for inclusion in the
Shelf Registration Statement, and the Company may exclude from such
registration the Securities of any Holder that unreasonably fails to
furnish such information within a reasonable time after receiving such
request.
(m) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form)
and take all such other action, if any, as any Holder shall reasonably
request in order to facilitate the disposition of the Securities
pursuant to the Shelf Registration.
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(n) Subject to the execution of a confidentiality agreement
reasonably acceptable to the Company, the Company shall (i) make
reasonably available for inspection by the Holders, any underwriter
participating in any disposition pursuant to the Shelf Registration
Statement and any attorney, accountant or other agent retained by the
Holders or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Company
and (ii) cause the Company's officers, directors, employees,
accountants and auditors to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney, accountant
or agent in connection with the Shelf Registration Statement, in each
case, as shall be reasonably necessary to enable such persons, to
conduct a reasonable investigation within the meaning of Section 11 of
the Securities Act; PROVIDED, HOWEVER, that the foregoing inspection
and information gathering shall be coordinated on behalf of the Initial
Purchasers by you and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in
Section 3 hereof.
(o) The Company, if requested by any Notice Holder covered by
the Shelf Registration Statement, shall cause (i) its counsel to
deliver an opinion and updates thereof relating to the Securities in
customary form addressed to such Notice Holders and the managing
underwriters, if any, thereof and dated, in the case of the initial
opinion, the effective date of the Shelf Registration Statement (it
being agreed that the matters to be covered by such opinion shall
include, without limitation, the due incorporation and good standing of
the Company and its subsidiaries; the qualification of the Company and
its subsidiaries to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of the
type referred to in Section 2(m) hereof; the due authorization,
execution, authentication and issuance, and the validity and
enforceability, of the Securities; the absence, to such counsel's
knowledge, of material legal or governmental proceedings involving the
Company and its subsidiaries; the absence of governmental approvals
required to be obtained in connection with the Shelf Registration
Statement, the offering and sale of the Securities, or any agreement of
the type referred to in Section 2(m) hereof; the compliance as to form
of the Shelf Registration Statement and any documents incorporated by
reference therein and of the Indenture with the requirements of the
Securities Act and the Trust Indenture Act, respectively; and, as of
the date of the opinion and as of the effective date of the Shelf
Registration Statement or most recent post-effective amendment thereto,
as the case may be, the absence from the Shelf Registration Statement
and the prospectus included therein, as then amended or supplemented,
and from any documents incorporated by reference therein of an untrue
statement of a material fact or the omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any such documents,
in the light of the circumstances existing at the time that such
documents were filed with the Commission under the Exchange Act); (ii)
its officers to execute and deliver all customary documents and
certificates and updates thereof reasonably requested by any
underwriters of the Securities and (iii) its independent public
accountants and the independent public accountants with respect to any
other entity for which financial information is provided in the Shelf
Registration Statement to provide to the Notice Holders and any
underwriter therefor a comfort letter in customary form and covering
matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(p) The Company shall use its reasonable best efforts to take
all other steps necessary to effect the registration of the Securities
covered by the Shelf Registration Statement contemplated hereby.
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3. REGISTRATION EXPENSES. (a) Subject to Section 8 hereof, all expenses
incident to the Company's performance of and compliance with this Agreement will
be borne by the Company, regardless of whether the Shelf Registration Statement
is ever filed or becomes effective, including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing of
prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company;
(v) all application and filing fees in connection with listing
the Securities on a national securities exchange or automated quotation
system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified
public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Company will bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any person, including special experts, retained by the Company.
(b) In connection with the Shelf Registration Statement required by
this Agreement, the Company will reimburse the Initial Purchasers and the Notice
Holders of Transfer Restricted Securities who are selling or reselling
Securities pursuant to the "Plan of Distribution" contained in the Shelf
Registration Statement for the reasonable fees and disbursements of not more
than one counsel, who shall be ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ unless another firm shall be
chosen by the Notice Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Shelf Registration Statement is
being prepared.
4. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each Notice Holder and each person, if any, who controls such Notice
Holder within the meaning of the Securities Act or the Exchange Act (each Notice
Holder and such controlling persons are referred to collectively as the
"INDEMNIFIED PARTIES") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof (including, but
not limited to, any losses, claims, damages, liabilities or actions relating to
purchases and sales of the Securities) to which each Indemnified Party may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement or prospectus or in any amendment
or supplement thereto or in any preliminary prospectus relating to the Shelf
Registration, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; PROVIDED, HOWEVER, that
(i) the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Shelf Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to the Shelf Registration in
reliance upon and in conformity with written information pertaining to such
Notice Holder and furnished to the Company by or on behalf of such Notice
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Holder specifically for inclusion therein and (ii) with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus relating to the Shelf Registration Statement, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Notice Holder from whom the person asserting any such losses,
claims, damages or liabilities purchased the Securities concerned, to the extent
that a prospectus relating to such Securities was required to be delivered by
such Notice Holder under the Securities Act in connection with such purchase and
any such loss, claim, damage or liability of such Notice Holder results from the
fact that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the final
prospectus if the Company had previously furnished copies thereof to such Notice
Holder; PROVIDED FURTHER, HOWEVER, that this indemnity agreement will be in
addition to any liability which the Company may otherwise have to such
Indemnified Party. The Company shall also indemnify underwriters, their officers
and directors and each person who controls such underwriters within the meaning
of the Securities Act or the Exchange Act to the same extent as provided above
with respect to the indemnification of the Notice Holders of the Securities if
requested by such Notice Holders.
(b) Each Notice Holder, severally and not jointly, will indemnify and
hold harmless the Company and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act from and against
any losses, claims, damages or liabilities or any actions in respect thereof, to
which the Company or any such controlling person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to the Shelf Registration, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information pertaining to such Notice Holder and furnished to the
Company by or on behalf of such Notice Holder specifically for inclusion
therein; and, subject to the limitation set forth immediately preceding this
clause, shall reimburse, as incurred, the Company for any legal or other
expenses reasonably incurred by the Company or any such controlling person in
connection with investigating or defending any loss, claim, damage, liability or
action in respect thereof. This indemnity agreement will be in addition to any
liability which such Notice Holder may otherwise have to the Company or any of
its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 4
of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims
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that are the subject matter of such action, and does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the exchange of the Securities,
pursuant to the Shelf Registration, or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party or parties on
the one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
such Notice Holder or such other indemnified party, as the case may be, on the
other, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 4(d), the Notice Holders shall not be required to contribute any amount
in excess of the amount by which the net proceeds received by such Notice
Holders from the sale of the Securities pursuant to the Shelf Registration
Statement exceeds the amount of damages which such Notice Holders have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls such indemnified party within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as such indemnified
party and each person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act shall have the same rights to
contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the sale
of the Securities pursuant to the Shelf Registration Statement and shall remain
in full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
5. HOLDERS OBLIGATIONS. Each Holder agrees, by acquisition of the
Transfer Restricted Securities, that no Holder of Transfer Restricted Securities
shall be entitled to sell any of such Transfer Restricted Securities pursuant to
a Registration Statement or to receive a prospectus relating thereto, unless
such Holder has furnished the Company with a Notice and Questionnaire as
required pursuant to Section 1(d) hereof and the information set forth in the
next sentence. Each Notice Holder agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Notice Holder not misleading and any other
information regarding such Notice Holder and the distribution of such Transfer
Restricted Securities as the Company may from time to time reasonably request.
Any sale of any Transfer Restricted Securities by any Holder shall constitute a
representation and warranty by such Holder that the information relating to such
Holder and its plan of distribution is as set forth in the prospectus delivered
by such Holder in connection with such disposition, that such prospectus does
not as of
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the time of such sale contain any untrue statement of a material fact relating
to or provided by such Holder or its plan of distribution and that such
prospectus does not as of the time of such sale omit to state any material fact
relating to or provided by such Holder or its plan of distribution necessary to
make the statements in such prospectus, in the light of the circumstances under
which they were made, not misleading. Each Holder agrees that within ten (10)
business days of any sale, disposition or other transfer of Securities, whether
pursuant to a Registration Statement or exemption from registration under the
Securities Act, such Holder shall provide written notice to the Company
specifying the amount of Securities sold, disposed of or transferred and the
name and address of the transferree of such Securities.
6. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES. (a) Additional
interest (the "ADDITIONAL INTEREST") with respect to the Notes shall be assessed
as follows if any of the following events occur (each such event in clauses (i)
through (iv) below being herein called a "REGISTRATION DEFAULT"):
(i) the Shelf Registration Statement required by this Agreement is
not filed with the Commission on or prior to the Filing
Deadline;
(ii) the Shelf Registration Statement required by this Agreement is
not declared effective by the Commission on or prior to the
applicable Effectiveness Deadline;
(iii) the Company fails with respect to a Holder that supplies a
Notice and Questionnaire to supplement the Shelf Registration
Statement in a timely manner in order to name additional
selling shareholders; or
(iv) the Shelf Registration Statement required by this Agreement
has been declared effective by the Commission but (A) the
Shelf Registration Statement thereafter ceases to be effective
or (B) the Shelf Registration Statement or the related
prospectus ceases to be usable in connection with resales of
Transfer Restricted Securities during the periods specified
herein (other than pursuant to Section 1(c) hereof) and (1)
the Company fails to cure the Registration Default within five
business days by a post-effective amendment or a report filed
pursuant to the Exchange Act or (2) if applicable, the Company
does not terminate the Deferral Period by the 90th day, as the
case may be.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission.
Additional Interest shall accrue daily on the Notes over and above the
interest set forth in the title of the Notes from and including the date on
which any such Registration Default shall occur to, but excluding, the date on
which all such Registration Defaults have been cured, at a rate of 0.50% per
annum for the notes (the "ADDITIONAL INTEREST RATE") and, if applicable, on an
equivalent basis per share (subject to adjustment in the case of stock splits,
stock recombinations, stock dividends and the like) of Common Stock issuable
upon conversion of the Notes.
(b) A Registration Default referred to in Section 6(a)(iv) hereof shall
be deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to the Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Notice Holders to use the related prospectus or (y) other material events, with
respect to the Company that would need to be described in the Shelf Registration
Statement or the related prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or supplement the
Shelf Registration Statement and related prospectus to describe such events;
PROVIDED,
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HOWEVER, that in any case if such Registration Default occurs for a continuous
period in excess of 30 days, Additional Interest shall be payable in accordance
with the above paragraph from the day such Registration Default occurs until
such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section 6(a)
will be payable in cash on the regular interest payment dates with respect to
the Notes. The amount of Additional Interest will be determined by multiplying
the applicable Additional Interest Rate by the principal amount of the Notes and
further multiplied by a fraction, the numerator of which is the number of days
such Additional Interest Rate was applicable during such period (determined on
the basis of a 360-day year comprised of twelve 30-day months), and the
denominator of which is 360.
(d) "TRANSFER RESTRICTED SECURITIES" means each Security until (i) the
date on which such Security has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration Statement or (ii)
the date on which such Security is distributed to the public pursuant to Rule
144 under the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act.
7. RULES 144 AND 144A. The Company shall use its best efforts to file
the reports required to be filed by it under the Securities Act and the Exchange
Act in a timely manner and, if at any time the Company is not required to file
such reports, it will, upon the request of any Holder, make publicly available
other information so long as necessary to permit sales of their securities
pursuant to Rules 144 and 144A. The Company covenants that it will take such
further action as any Holder may reasonably request, all to the extent required
from time to time to enable such Holder to sell Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rules 144 and 144A (including the requirements of Rule 144A(d)(4)). The Company
will provide a copy of this Agreement to prospective purchasers of Securities
identified to the Company by the Initial Purchasers upon request. Upon the
request of any Holder, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities pursuant to the Exchange Act.
8. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Securities covered by the Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Notice Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering (provided that the Holders
of Common Stock issued upon conversion of Notes shall not be deemed Holders of
Common Stock, but shall be deemed to be Holders of the aggregate principal
amount of Notes from which such Common Stock was converted).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
Notwithstanding any other provisions of this Agreement to the contrary,
the Company shall not be required to pay the expenses of an underwritten
offering of Transfer Restricted Securities pursuant to this Section 8 unless
such underwritten offering is for Transfer Restricted Securities in the
aggregate principal amount of at least $50,000,000 and shall not be required to
pay any underwriter discount, commission or similar fees related to the sale of
the Transfer Restricted Securities.
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9. MISCELLANEOUS.
(a) REMEDIES. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 1 hereof may result in
material irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be required
to specifically enforce the Company's obligations under Sections 1 hereof. The
Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority in principal amount of the Transfer
Restricted Securities (provided that the Holders of Common Stock issued upon
conversion of Notes shall not be deemed Holders of Common Stock, but shall be
deemed to be Holders of the aggregate principal amount of Notes from which such
Common Stock was converted) affected by such amendment, modification,
supplement, waiver or consents.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder, that is not a Notice Holder, at the most
current address given by such Holder to the Company.
(2) if to a Notice Holder, at the most current address given
by such Holder to the Company in a Notice and Questionnaire or any amendment
thereto.
(3) if to the Initial Purchasers;
Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Transactions Advisory Group
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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(4) if to the Company, at its address as follows:
EMCORE Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
with a copy to:
White & Case LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(e) THIRD PARTY BENEFICIARIES. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
(j) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) SECURITIES HELD BY THE COMPANY. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers and the Company in accordance with its
terms.
Very truly yours,
EMCORE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
FIRST UNION SECURITIES, INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director and Counsel
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