EXHIBIT
10.2
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 owner party hereto
(the “ Consenting Holder
”). Capitalized terms used but not defined herein have the
meanings assigned to them in the Indenture, dated as of November
16, 2005 (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 30, 2007, the Company
received a letter purporting to constitute a notice of default from
Cede & Co., the nominee of The Depository Trust Company
(“ DTC ”) and the Holder of record of entire
principal amount of the then outstanding 5% Convertible Senior
Subordinated Notes due 2011 (the “ Notes ”)
issued pursuant to the Indenture (the “ Notice
”);
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 Sections 8.01 and 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, the Company and the Consenting Holder
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 ”); and
WHEREAS, the Indenture, dated as of February 24,
2004 (the “ 2004 Indenture ”), between the
Company and Deutsche Bank Trust Company Americas, as trustee, has
been amended by consent of a majority of the beneficial owners to
permit the Company to hold, purchase or exchange notes issued
pursuant to the 2004 Indenture (the “ 2004 Notes
”) without the requirement to surrender such 2004 Notes to
the Trustee under the 2004 Indenture for cancellation, and the
Company is providing the Consenting Holder the right under this
Consent to exchange certain Notes with the Company for 2004 Notes
that may be held or purchased by the Company.
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 11 of
the Supplemental Indenture upon effectiveness of the Supplemental
Indenture, the 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, the 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.
Rescission and Agreement to
Rescind . In the event
that Holders or beneficial owners of the Notes (other than the
Consenting Holder) holding at least 25% in aggregate principal
amount of the outstanding Notes deliver or the Trustee delivers a
notice of acceleration to the Company relating to any Asserted
Reports Defaults and/or declares all of the Notes to be due and
payable (the “ Acceleration ”), the Consenting
Holder hereby agrees to provide, within three business days after
the Company notifies the Consenting Holder that Holders or
beneficial owners of the Notes have given such Acceleration,
written notice to the Trustee that the Consenting Holder rescinds
such notice and/or the Acceleration, as applicable, in accordance
with Section 8.02 of the Indenture.
Section 4.
Transfer . The 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 and Exchange of
Notes .
(a)
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 per $1,000
principal amount of the Notes purchased plus accrued and unpaid
interest, if any, to but excluding the date of purchase. On the
purchase date, the Company shall notify the Trustee as to which
Notes the Company intends to repurchase and shall transmit by wire
transfer to the Paying Agent (as defined in the Indenture) an
aggregate amount of money sufficient to pay the purchase price of
and accrued interest on the Notes to be purchased from the
Consenting Holders. Each Consenting Holder shall cause the broker
or custodian holding the Consenting Holder’s beneficial
interest in the Notes to be purchased from the Consenting Holder to
submit an instruction through DTC’s DWAC system to the Paying
Agent to withdraw the amount of Notes to be purchased from the
Consenting Holder. Upon the Paying Agent’s receipt of such
instructions, the Company shall cause the Paying Agent to deliver
to the account number set forth next to each Consenting
Holder’s name on Schedule I hereto payment in the
amount set forth next to each Consenting Holder’s name on
Schedule I hereto. On and after the purchase date, interest
shall cease to accrue on the Notes purchased by the Company on the
purchase date.
(b)
Agreement Regarding
Purchase .
The Company agrees that it will not
exercise its right to purchase any Notes under this Section 5
unless it is also exercising its right to purchase a pro rata
amount of the 2004 Notes pursuant to Section 5 o
