EXHIBIT 10.2


     

    
      

      

    

    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 of that certain Consent to
      Amendment and Waiver entered into by the Company and certain holders of the
      2004
      Notes (the “2004
      Indenture Consent”).
      

     

    (c)   Exchange
      of Notes. The
      Company hereby agrees to exchange all 2004 Notes that the Company purchases
      pursuant to the 2004 Indenture Consent for a like principal amount of Notes
      held
      by the Consenting Holder. Such exchange shall occur promptly after a purchase
      of
      2004 Notes pursuant to the 2004 Indenture Consent, but in no event later than
      April 30, 2007.

     

    (d)  Investment
      Representations.
      The
      Consenting Holder understands that the 2004 Indenture Notes delivered to it
      in
      exchange for the Notes (the “Exchange
      Notes”)
      have
      not been registered under the Securities Act of 1933, as amended (the
“Securities
      Act”).
      The
      Consenting Holder also understands that (x) if the exchange and delivery of
      the
      Exchange Notes for certain of the Notes involves an offer and sale of the
      Exchange Notes to the Consenting Holder and (y) if such offer and sale is not
      exempt from registration under the Securities Act by reason of Section 3(a)(9)
      thereof (it being understood that the Company makes no representation or
      warranty as to the legal matters referred to in the immediately preceeding
      clauses (x) and (y)), the Exchange Notes being delivered to it in exchange
      for
      certain of the Notes pursuant to an exemption from registration contained in
      the
      Securities Act based in part upon the Consenting Holder’s representations
      contained in this Consent. The Consenting Holder, hereby represents and warrants
      as follows:

     

    (i)  Consenting
      Holder Bears Economic Risk.
      The
      Consenting Holder has substantial experience in evaluating and investing in
      private placement transactions of securities in companies similar to the Company
      so that it is capable of evaluating the merits and risks of its investment
      in
      the Company and has the ability to protect its own investment interests. The
      Consenting Holder understands that it must bear the economic risk of investment
      in the Exchange Notes indefinitely unless the Exchange Notes are registered
      pursuant to the Securities Act, or an exemption from registration is available.
      The Consenting Holder understands that the Company has no obligation to register
      the Exchange Notes under the Securities Act. 

     

    (ii)  Acquisition
      for Own Account. 
      The
      Consenting Holder is acquiring the Exchange Notes for its own account and not
      with a view towards their distribution.

     

    (iii)  Qualified
      Institutional Buyer. 
      The
      Consenting Holder is a qualified institutional buyer as defined in Rule 144A
      under the Securities Act.

     

    (iv)  Company
      Information.
      The
      Consenting Holder has had an opportunity to discuss the Company’s business,
      management and financial affairs with officers and management of the Company
      and
      has had the opportunity to review the Company’s operations and facilities. The
      Consenting Holder has also had the opportunity to ask questions of, and receive
      answers from, the Company and its management regarding the terms and conditions
      of an investment in the Exchange Notes.

     

    (v)  Rule
      144. 
      The
      Consenting Holder acknowledges and agrees that the Exchange Notes are
“restricted securities” as defined in Rule 144 promulgated under the Securities
      Act (“Rule
      144”)
      as in
      effect from time to time and must be held indefinitely unless they are
      subsequently registered under the Securities Act or an exemption from such
      registration is available. The Consenting Holder has been advised or is aware
      of
      the provisions of Rule 144, which permits limited resale of securities that
      are
“restricted securities” (as defined in Rule 144) subject to the satisfaction of
      certain conditions specified in Rule 144.

     

    (vi)  Transfer
      Restrictions.
      The
Consenting
      Holder understands that the Exchange Notes shall be subject to restrictions
      on
      transfer under the Securities Act and, subject to Section 5(e), will bear a
      restrictive legend as to such restrictions and will be subject to stop-transfer
      restrictions.

     

    (e)   Opinion
      of Counsel.
      Upon
      request by the Company, the Consenting Holder shall deliver to the Company,
      prior to any exchange of Notes pursuant to the provisions hereof, an opinion
      of
      counsel to the Consenting Holder, that such exchange would be exempt from
      registration under Section 4(2) of the Securities Act or that such exchange
      otherwise does not require registration of the Exchange Notes under the
      Securities Act.

     

    (f)  Rule
      144. The
      Consenting Holder acknowledges that pursuant to Rule 144, current
      interpretations thereof by the Securities and Exchange Commission (the
“SEC”)
      and
“no-action” letters from the staff of the SEC, the Consenting Holder will be
      entitled to relate back (i.e., “tack”) the holding period of the Exchange Notes
      and the shares of common stock issuable upon conversion thereof (the
“Conversion
      Shares”)
      to the
      Consenting Holder’s holding period of the Notes and, so long as (x) the
      aggregate period during which the Notes and the Exchange Notes and the
      Conversion Shares are held is at least two years and (y) at the time of
      determination the Consenting Holder is not and has not for the preceding three
      months been an “affiliate” (as such term is defined in Rule 144) of the Company,
      the Exchange Notes and the Conversion Shares may be sold pursuant to Rule 144(k)
      (the “Rule
      144 Interpretation”).
      The
      Company shall not, directly or indirectly, dispute or otherwise interfere with
      any claim by the Consenting Holder that the holding period of the Exchange
      Notes
      and the Conversion Shares for purposes of Rule 144 tacks to the holding period
      of the Notes; provided, however, that nothing contained in this Section 5(e)
      shall obligate the Company or its legal counsel to take a position that is
      inconsistent with the provisions of applicable law or regulations and the
      administrative and judicial interpretations thereof in effect from time to
      time
      after the date hereof that alter the Rule 144 Interpretation (collectively,
      “Applicable
      Law”).
      The
      Company and the Consenting Holder agree and acknowledge that the foregoing
      covenants shall in no way (A) limit the transfer restrictions to which the
      Exchange Notes and any Conversion Shares are subject as set forth in Section
      5(d)(vi); or (B) require the Company to take any action to authorize the
      transfer of any Exchange Notes or Conversion Shares if the Consenting Holder
      has
      not demonstrated to the Company’s reasonable satisfaction that the Exchange
      Notes or Conversion Shares have been acquired for the Consenting Holder’s own
      account and not with a view towards their distribution. Upon receipt of a legal
      opinion of the Consenting Holder’s legal counsel, which opinion is in form and
      scope reasonably acceptable to the Company, to the effect that particular
      Exchange Notes or Conversion Shares may be sold or transferred without
      registration under the Securities Act, the Company shall (x) act expeditiously
      to permit and to facilitate the transfer of such Exchange Securities and
      Conversion Shares and (y) issue new Exchange Notes or Conversion Shares without
      restrictive legend if the same is covered in the scope of such legal opinion,
      which Exchange Notes shall, to the extent permitted by The Depositary Trust
      Company and the CUSIP Service Bureau, have the same CUSIP as the other 2004
      Notes at the time outstanding that are not Exchange Notes.

     

    Section
      6.  Representations
      and Warranties of the Consenting Holder.
      The
      Consenting Holder hereby represents and warrants to the Company as
      follows:

     

    (a) The
      Consenting Holder is the beneficial owner of the principal amount of Notes
      indicated below its name on the signature page hereto, has the power and
      authority to vote such Notes, has full power and authority to execute and
      deliver this Consent and to perform its obligations hereunder and owns the
      Notes
      through the DTC Participant or Custodian set forth in Schedule
      I
      hereto.

    


    (b) The
      Consenting Holder has such knowledge and experience in financial and business
      matters that the Consenting Holder is capable of protecting its own interests
      in
      connection with the grant of the rights set forth herein and evaluating the
      merits and risks related thereto.

    


    (c) The
      Consenting Holder and the Consenting Holder’s advisors have such knowledge and
      experience in financial, tax and business matters so as to enable the Consenting
      Holder to utilize the information made available to the Consenting Holder to
      evaluate the merits and risks of transaction contemplated by this Consent and
      to
      make an informed investment decision with respect thereto. 

    


    (d) The
      Consenting Holder has its own tax advisors and has not relied upon the Company
      and/or its representatives for tax advice in connection with the transactions
      contemplated by this Consent.

    


    (e) The
      Consenting Holder acknowledges that the Amendments, including, without
      limitation, the amendment to Section 3.07(a) of the Indenture contained in
      the
      Supplemental Indenture, provide additional rights or benefits to the Holders
      of
      the Notes and that such Amendment does not adversely affect the legal rights
      under the Indenture of the Consenting Holder.

    


    Section
      7.  Representation
      and Warranty of the Company.
      The
      Company hereby represents and warrants to the Consenting Holders that it has
      full power and authority to execute and deliver this Consent and to perform
      its
      obligations hereunder.

     

    Section
      8.  Tax
      Consequences.
      The
      Consenting Holder acknowledges that the Amendments and Waiver may constitute
      a
      taxable event with respect to the Notes and that the Consenting Holder has
      consulted its tax advisors regarding the risk that adoption of the Amendments
      and Waiver constitutes a significant modification for U.S. federal income tax
      purposes, the tax consequences to them if the Amendments and Waiver are so
      treated, the characterization of the Notes and any new notes (if the Amendments
      and Waiver constitute a significant modification) as securities for tax
      purposes, and the tax consequences of continuing to hold Notes after the
      adoption of the Amendments and Waiver (including the specific consequences
      in
      the event of a subsequent redemption of the Notes). The Consenting Holder
      further acknowledges that, to
      ensure
      compliance with requirements imposed by the Internal Revenue Service, that
      any
      U.S. federal income tax advice contained in this communication (including
      attachments) is not intended or written to be used, and cannot be used, for
      the
      purpose of (i) avoiding penalties under the Internal Revenue Code or (ii)
      promoting, marketing, or recommending to another party any transaction or matter
      addressed herein.

     

    Section
      9.  Miscellaneous.
      

     

    (a)  Severability.
      In case
      any provision of this Consent shall be invalid, illegal or unenforceable, the
      validity, legality and enforceability of the remaining provisions shall not
      in
      any way be affected or impaired thereby.

     

    (b)  Counterpart
      Originals.
      The
      parties may sign any number of counterparts of this Consent and on separate
      counterparts. Each signed counterpart shall be an original, but all of them
      together represent the same agreement.

     

    (c)  Headings.
      The
      Headings of the Sections of this Consent have been inserted for convenience
      of
      reference only, are not to be considered part of this Consent and shall in
      no
      way modify or restrict any of the terms or provisions hereof.

     

    (d)  Governing
      Law.
      THE
      INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
      THIS
      CONSENT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
      TO
      THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
      REQUIRED THEREBY.

     

    (e)  Amendment.
      This
      Consent may not be amended except by an instrument in writing signed on behalf
      of each of the parties hereto. 

     

    (f)  Notices.
      All
      notices provided for or permitted hereunder shall be made in writing by
      hand-delivery, facsimile or air courier guaranteeing overnight delivery to
      the
      other party at the following addresses (or at such other address as shall be
      given in writing by any party to the others):

     

    If
      to the
      Company:

    


    EMCORE
      Corporation

    1600
      Eubank Blvd. SE

    Albuquerque,
      NM 87123

    Attention:
      Chief Financial Officer

    Facsimile
      No.: (505) 323-3402

    


    with
      a
      copy to:

    


    Jones
      Day

    51
      Louisiana Avenue N.W.

    Washington,
      DC 20001

    Attention:
      John E. Welch, Esq.

    Facsimile
      No.: (202) 626-1700

    


    If
      to the
      Consenting Holder, at the addresses shown below its name on the signature page
      attached to this Consent, or to such other address as has been designated by
      notice in writing by such party to the others in accordance with the provisions
      of this Section 9(f).

     

    All
      such
      notices shall be deemed to have been duly given (i) when delivered by hand,
      if personally delivered, (ii) when confirmation of receipt is delivered by
      facsimile transmission or (iii) on the next business day, if timely
      delivered to an air courier guaranteeing overnight delivery. For purposes of
      this Consent, “business day” shall mean any day other than a Saturday, Sunday or
      a day on which banking institutions in the State of New York are authorized
      or
      obligated by law or executive order to close.

     

    



    IN
      WITNESS WHEREOF, the parties hereto have caused this Consent to be duly executed
      as of the date first above written.

     

    


    EMCORE
      CORPORATION

    


    


    By:
      /s/
      Reuben Richards Jr.  

    Name:
      Reuben Richards Jr.

    Title:
      Chief Executive Officer


    
      
        
          Signature
            Page to Consent to Amendment and Waiver

        

         

      

      
         

        
          

        

      

      
         

        
        

      

    



    


    IN
      WITNESS WHEREOF, the parties hereto have caused this Consent to be duly executed
      as of the date first above written.

     

    CONSENTING
      HOLDER:

    


    ALEXANDRA
      GLOBAL MASTER FUND LTD.

    


    By:
      ALEXANDRA INVESTMENT MANAGEMENT, LLC, as Investment Manager

    


    


    By:
      /s/
      Mikail Filimonov  

    Name:
      Mikhail Filimonov

    Title:
      Chairman & CEO

    


    Holder
      of
      $16,580,460 principal amount of the Notes

    


    Address:

    c/o
      Alexandra Investment Management, LLC

    767
      Third
      Avenue

    39th
      Floor

    New
      York,
      New York 10017

    Facsimile
      No.: 211-301-1810