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, 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxx, XX 00000-0000, 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/ Xxxxxx X. Xxxxxxxx, Xx.
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: President
The Investors by their Agent-in-Fact pursuant
to Subscription Agreements signed by them
JESUP & XXXXXX XXXXXXXX PARTNERS, L.L.C.
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Manager
Schedule A
EMCORE Corporation
Investors
Name & Address Amount Telephone Fax
