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 & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President
ATTEST:
________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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: