EXHIBIT 10.1


    


     

    
      

      

    

    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 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 such Consenting Holder’s beneficial
      interest in the Notes to be purchased from such 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 such 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.
The
      Consenting Holder will not be entitled to receive interest accrued on and after
      the purchase date, provided the purchase price has been deposited with the
      Paying Agent.

     

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

     

    (a) Each
      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) Each
      Consenting Holder has such knowledge and experience in financial and business
      matters that such 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) Each
      Consenting Holder and such 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) Each
      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) Each
      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 such 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 Holders acknowledge that the Amendments and Waiver may constitute
      a
      taxable event with respect to the Notes and that each 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 Holders
      further acknowledge 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 Holders, at the addresses shown below their names 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:

    


    Akanthos
      Arbitrage Master Fund, LP

    By
      Akanthos Capital Mgmt, LLC its GP

    


    


    By:
      /s/
      Michael Kao   

    Michael
      Kao, Manager

    


    Holder
      of
      $21,000,000 principal amount of the Notes

    


    Address:

    
      	 	 	
              c/o
                Akanthos Capital Management, LLC

            


    

    21700
      Oxnard Street, Suite 1520

    Woodland
      Hills, CA 91367

    Facsimile
      No.: 818-883-8271

    



    
      
         

      

      
         

        
          

        

      

      
         

      

    


    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/
      Mikhail Filimonov  

    Name:
      Mikhail Filimonov

    Title:
      Chairman & CEO

    


    Holder
      of
      $6,475,000 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


    
      
         

      

      
         

        
          

        

      

      
         

      

    


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

     

    CONSENTING
      HOLDER:

    


    CC
      ARBITRAGE LTD.

    


    


    


    By:
      /s/
      Allan Weine    

    Name:
      Allan Weine

    Title:
      Managing Director

    


    Holder
      of
      $10,500,000 principal amount of the Notes

    


    Address:

    111
      W.
      Jackson 20th
      Floor

    Chicago,
      IL 60604

    Facsimile
      No.: 312-692-7551


    
      
         

      

      
         

        
          

        

      

      
         

      

    


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

     

    CONSENTING
      HOLDER:

    


    CITIGROUP
      GLOBAL MARKETS INC.

    


    


    


    By:  
      /s/
      Kevin G. Russell  

    Name:
      Kevin G. Russell

    Title:
      M.D.

    


    Holder
      of
      $22,775,000 principal amount of the Notes

    


    Address:

    390
      Greenwich Street - 3rd
      Floor

    New
      York,
      NY 10013

    Facsimile
      No.: 212-723-8881


    
      
         

      

      
         

        
          

        

      

      
         

      

    


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

     

    CONSENTING
      HOLDER:

    


    FIDELITY
      CONVERTIBLE SECURITIES FUND

    


    


    


    By:  
      /s/
      Peter Lydecker  

    Name:
      Peter Lydecker

    Title:
      Assistant Treasurer

    


    Holder
      of
      $9,000,000 principal amount of the Notes

    


    Address:

    82
      Devonshire Street V13H

    Boston,
      MA 02109

    Facsimile
      No.: 617-392-1720


    
      
         

      

      
         

        
          

        

      

      
         

      

    


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

     

    CONSENTING
      HOLDER:

    


    FIDELITY
      STRATEGIC DIVIDEND & INCOME FUND

    


    


    


    By:  
      /s/
      Peter Lydecker  

    Name:
      Peter Lydecker

    Title:
      Assistant Treasurer

    


    Holder
      of
      $1,000,000 principal amount of the Notes

    


    Address:

    82
      Devonshire Street V13H

    Boston,
      MA 02109

    Facsimile
      No.: 617-392-1720


    
      
         

      

      
         

        
          

        

      

      
         

      

    


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

     

    CONSENTING
      HOLDER:

    


    FORUM
      FUNDS - ABSOLUTE STRATEGIES FUND, managed by Mohican Financial Management,
      LLC

    


    


    


    By:  
      /s/
      Eric Hage   

    Name:
      Eric Hage

    Title:
      Chief Investment Officer

    


    Holder
      of
      $300,000 principal amount of the Notes

    


    Address:

    21
      Railroad Avenue, Suite 35

    Cooperstown,
      NY 13326

    Facsimile
      No.: 607-547-1903


    
      
         

      

      
         

        
          

        

      

      
         

      

    


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

     

    CONSENTING
      HOLDER:

    


    MOHICAN
      VCA MASTER FUND LTD.

    


    


    


    By:  
      /s/
      Eric Hage   

    Name:
      Eric Hage

    Title:
      Chief Investment Officer

    


    Holder
      of
      $2,500,000 principal amount of the Notes

    


    Address:

    21
      Railroad Avenue, Suite 35

    Cooperstown,
      NY 13326

    Facsimile
      No.: 607-547-1903


    
      
         

      

      
         

        
          

        

      

      
         

      

    


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

     

    CONSENTING
      HOLDER:

    


    ONYX
      FUNDS HOLDINGS LDC

    


    


    


    By:  
      /s/
      Jason Mallet   

    Name:
      Jason Mallet

    Title:
      Portfolio Manager

    


    Holder
      of
      $1,000,000 principal amount of the Notes

    


    Address:

    88
      Pine
      Street

    New
      York,
      NY 10005

    Facsimile
      No.: 212-514-6767


    
      
         

      

      
         

        
          

        

      

      
         

      

    


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

     

    CONSENTING
      HOLDER:

    


    TQA
      SPECIAL OPPORTUNITIES MASTER FUND LTD

    


    


    


    By:  
      /s/
      Robert Butman   

    Name:
      Robert Butman

    Title:
      CEO

    


    Holder
      of
      $3,100,000 principal amount of the Notes

    


    Address:

    333
      Ludlow Street

    Staford,
      CT 06902

    Facsimile
      No.: 


    
      
         

      

      
         

        
          

        

      

      
         

      

    


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

     

    CONSENTING
      HOLDER:

    


    WHITEBOX
      DIVERSIFIED CONVERTIBLE ARBITRAGE PARTNERS LP

    


    


    


    By:  
      /s/
      Jonathan Wood   

    Name:
      Jonathan Wood

    Title:
      Chief Financial Officer/Director

    


    Holder
      of
      $1,000,000 principal amount of the Notes

    


    Address:

    3033
      Excelsior Blvd., Suite 300

    Minneapolis,
      MN 55416

    Facsimile
      No.: