EXHIBIT
10.1
CONSENT TO AMENDMENT AND
WAIVER
This CONSENT TO AMENDMENT AND WAIVER (this
“ Consent ”), dated as of April 9, 2007 (the
“ Effective Date ”), is entered into among
EMCORE Corporation, a New Jersey corporation (the “
Company ”), and the beneficial owners party hereto
(collectively, the “ Consenting
Holders ”). Capitalized terms used but not defined herein
have the meanings assigned to them in the Indenture, dated as of
February 24, 2004 (the “ Indenture ”), between
the Company and Deutsche Bank Trust Company Americas, as trustee
(the “ Trustee ”).
RECITALS
WHEREAS, the Company announced on November 6,
2006 that its board of directors established a special committee
(the “ Special Committee ”) to conduct an
internal investigation relating to the Company’s historical
stock option grant procedures and that the Company has informed the
Securities and Exchange Commission (the “ SEC ”)
of the Special Committee’s investigation;
WHEREAS, on December 15, 2006, the Company filed
a Form 12b-25 with the SEC stating that the Company is (i)
continuing to review the findings of the Special Committee as well
as the accounting guidance regarding stock option granting
practices recently published by the SEC to determine, among other
things, for which specific prior periods a restatement of its
historical financial statements may be required and (ii) unable to
file its Form 10-K for the fiscal year ended September 30, 2006
(the “ Form 10-K ”) within the time period
prescribed by the SEC;
WHEREAS, on January 12, 2007, the Company
received two letters purporting to constitute notices of default
from persons claiming to hold more than 25% of the 5% Convertible
Senior Subordinated Notes due 2011 issued pursuant to the Indenture
(the “ Notes ”) and on January 30, 2007 received
three additional letters purporting to constitute notices of
default from Cede & Co., the nominee of The Depository Trust
Company (“ DTC ”) and the Holder of record of
$21,000,000 in aggregate principal amount of the Notes
(collectively, the “ Notices ”);
WHEREAS, on February 12, 2007, the Company filed
a Form 12b-25 with the SEC stating that the Company would not be
able to timely file its Quarterly Report on Form 10-Q for the
quarter ended December 31, 2006 (the “ Form 10-Q
”);
WHEREAS, under Section 8.02 of the Indenture, if
the Company does not cure the purported default within sixty (60)
calendar days following notice of default, an Event of Default
would occur under the Indenture and the Trustee or the Holders of
at least 25% of the outstanding principal amount of the Notes could
accelerate the maturity of the Notes causing the outstanding
principal amount of the Notes and accrued and unpaid interest
thereon to become immediately due and payable;
WHEREAS, Section 11.02 of the Indenture permits
the Company and the Trustee to amend or supplement the Indenture
with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding and Sections 8.04 and 11.02 of
the Indenture permit the Holders of at least a majority in
principal amount of the Notes to waive compliance by the Company
with any provision of the Indenture and the Notes;
WHEREAS, on April 5, 2007, the Company received
a notice of acceleration purporting to accelerate payment of the
Notes (the “ Notice of Acceleration
”);
WHEREAS, Section 8.02 of the Indenture permits
the Holders of a majority in aggregate principal amount of the then
outstanding Notes to rescind an acceleration and its consequences
by written notice to the Trustee;
WHEREAS, the Consenting Holders, representing a
majority in aggregate principal amount outstanding on the date
thereof, desire to rescind the Notice of Acceleration and its
consequences in accordance with Section 8.02 of the Indenture;
and
WHEREAS, the Company and the Consenting Holders
desire to amend the Indenture and the Notes in the form of the
First Supplemental Indenture between the Company and the Trustee, a
copy of which is attached hereto as Exhibit A (the “
Supplemental Indenture ”).
NOW, THEREFORE, in consideration of the
foregoing and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
AGREEMENT
Section 1.
Waiver . Pursuant to Sections 8.04 and 11.02 of the
Indenture and subject to the provisions set forth in Section 13 f
the Supplemental Indenture upon effectiveness of the Supplemental
Indenture, each Consenting Holder hereby waives (the “
Waiver ”) any and all Defaults or Events of Default
relating to any failure of the Company to observe or perform any
covenant or agreement contained in the Notes or the Indenture as a
result of the Company’s failure to file with the SEC, or with
the Trustee, the Form 10-K, the Form 10-Q and/or any other reports
that the Company fails to file in a timely manner (collectively,
the “ Asserted Reports Defaults ”) for reasons
in whole or in part directly or indirectly attributable to or
arising out of the Company’s review of its historical stock
option grants as initially reported in a Current Report on Form 8-K
filed with the SEC on November 6, 2006. Any Defaults or Events of
Default that have occurred with respect to Section 6.03 of the
Indenture shall be deemed to have been cured for all purposes and
the Notices are hereby withdrawn.
Section 2.
Supplemental Indenture
. Pursuant to Section 11.02 of the
Indenture, each Consenting Holder hereby consents to the execution
and delivery by the Company and the Trustee of the Supplemental
Indenture in substantially the form attached hereto as Exhibit
A and to the amendments to the Indenture and the Notes set
forth therein (the “ Amendments ”).
Section 3.
Recission and Agreement to
Rescind . Each of the
Consenting Holders hereby rescinds the Notice of Acceleration and
will cause the Depositary to be so advised. Furthermore, in the
event that Holders or beneficial owners of the Notes (other than
the Consenting Holders) holding at least 25% in aggregate principal
amount of the outstanding Notes deliver or the Trustee delivers a
notice of default to the Company relating to any Asserted Reports
Defaults and/or declares all of the Notes to be due and payable
(the “ Acceleration ”), each of the Consenting
Holders, severally and not jointly, hereby agrees to provide,
within three business days after the Company notifies such
Consenting Holder that Holders or beneficial owners of the Notes
have given such Acceleration, written notice to the Trustee that
such Consenting Holder rescinds such notice and/or the
Acceleration, as applicable, in accordance with Section 8.02 of the
Indenture.
Section 4.
Transfer . Any Consenting Holder may transfer its
Notes (together with its rights hereunder) to any Person, subject
to the ability of such Person to make the representations and
warranties set forth in Section 6 of this Consent and subject to
each such Person executing a counterpart to this Consent and
delivering such counterpart to the Trustee and the Company prior to
the transfer. Any transfer in violation of this Section 4 shall be
null and void. The provisions of this Section 4 will terminate on
the Purchase Expiration Date (as defined in Section 5 hereof). The
parties agree that the Trustee shall have no responsibility
whatsoever with respect to any transfers in accordance with this
Section 4.
Section 5.
Purchase of Notes
. At any time prior to the fifth
Business Day following the Effective Date (the “ Purchase
Expiration Date ”), the Company may purchase an aggregate
of 12% of the outstanding principal amount of Notes held by each of
the Consenting Holders, upon notice to the Consenting Holders
setting forth the purchase date (not later than the Purchase
Expiration Date), at a purchase price equal to $1,000 pe
