January 23, 2009
333-149860
22-2746503 | ||||
(State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification Number) |
A
Agents For Service
HOWARD W. BRODIE, ESQ.THOMAS G. WERTHANEMCORE Corporation145 Belmont DriveSomerset, New Jersey 08873(732-302-4077)
Mexico 87123
JOHN E. WELCH, ESQ.TOBIAS L. KNAPP, ESQ.Jenner & Block LLP601 Thirteenth Street, N.W.Suite 1200 SouthWashington, DC 20005-3823(202-639-6096)
TOBIAS L. KNAPP, ESQ. Jenner & Block LLP 919 Third Avenue 37th Floor New York, New York 10022 (212-891-1600) |
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, check the following box.
x
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If this Formbox and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered | Amount to be Registered | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price(1) | Amount of Registration Fee | |||||||||||||||||
Common Stock, no par value | 912,724 shares | $ | 8.865 | (1) | $ | 8,091,298.26 | $ | 865.77 | |||||||||||||
912,724
stockholders. The registration of these securities does not necessarily mean that the selling stockholders will offer or sell all or any of these securities. We will incur the expenses in connection with the registration of these shares.
EMCORE’sprospectus.
5.
Page | |
Prospectus Summary | 2 |
Risk Factors | 5 |
Special Note Regarding Forward-Looking Statements | 23 |
Use of Proceeds | 24 |
Certain U.S. Federal Tax Considerations for non-U.S. Holders | 24 |
Principal and Selling Stockholders | 27 |
Plan of Distribution | 33 |
Description of Common Stock to be Registered | 35 |
Legal Matters | 39 |
Experts | 39 |
Where You Can Find More Information | 39 |
Information Incorporated by Reference | 40 |
PROSPECTUS SUMMARY This summary highlights information about EMCORE Corporation and the offering contained elsewhere in this prospectus and is qualified in its entirety by the more detailed information and financial statements included elsewhere in this prospectus or otherwise incorporated by reference. You should carefully read the entire prospectus and other information incorporated by reference before making an investment decision, especially the information presented under the heading “Risk Factors”. In this prospectus, except as otherwise indicated or as the context may otherwise require, all references to “EMCORE”, “we”, “us” and “our” refer to EMCORE Corporation and its subsidiaries. Business Overview We are a provider of compound semiconductor-based components and subsystems for the broadband, fiber optic, satellite, and terrestrial solar power markets. We were established in 1984 as a New Jersey corporation. We have two reporting segments: Fiber Optics and Photovoltaics. Our Fiber Optics segment offers optical components, subsystems, and systems that enable the transmission of video, voice, and data over high-capacity fiber optic cables for high-speed data and telecommunications, cable television (“CATV”) and fiber-to-the-premises (“FTTP”) networks. Our Photovoltaics segment provides solar products for satellite and terrestrial applications. For satellite applications, we offer high-efficiency compound semiconductor-based gallium arsenide (“GaAs”) solar cells, covered interconnect cells (“CICs”) and fully integrated solar panels. For terrestrial applications, we offer concentrating photovoltaic (“CPV”) systems for utility scale solar applications as well as offering our high-efficiency GaAs solar cells and CPV components for use in solar power concentrator systems. Our headquarters and principal executive offices are located at 10420 Research Road, SE, Albuquerque, New Mexico, 87123, and our main telephone number is (505) 332-5000. For specific information about our Company, our products or the markets we serve, please visit our website at http://www.emcore.com. The information contained in or connected to our website is not part of this prospectus. Strategy After completing several strategic acquisitions and divestures over the past few years, we have developed a strong business focus and comprehensive product portfolio in two main sectors: Fiber Optics and Photovoltaics. Our principal objective is to maximize shareholder value by leveraging our expertise in advanced compound semiconductor technologies to be a leading provider of high-performance, cost-effective product solutions in each of the markets that we serve. Key elements of our strategy include: Drive Business Growth, Reduce Cost, and Deliver Profitability. With our enhanced product portfolio, expanded customer base, and established vertically-integrated, low-cost manufacturing infrastructure in our fiber optics business, we are better positioned than ever to leverage our resources and infrastructure to grow our revenue through new product introductions and gain market share. We expect several initiatives for cost reduction to come to fruition in fiscal 2009, which we believe will improve our gross profit and margins. We have also significantly reduced capital expenditures and have placed a greater emphasis on improving our working capital management. While we enjoy the moderate growth and greater visibility in our satellite photovoltaics business, we recognize the need for further investment in our CPV business to develop a more cost competitive design. Management is committed to achieving overall profitability once we deploy our Gen-III CPV system solution. Focus Our R&D Effort on Cost Reduction and Market Share Gain. We have invested substantially in research and development and product engineering over the past years. We have developed a clear path towards business growth and are recognized as a technology leader in both our Fiber Optics and Photovoltaics segments. In fiscal 2009, we will be focusing our R&D and product engineering efforts on product cost reduction and market share gain through more complete product solutions for our customers. | |||||||
Grow Our Terrestrial Solar Power Business by Focused Effort and Strategic Partnership. For our CPV component business, we intend to continue to secure and expand our leadership position by providing high-performance, reliable, and cost-effective products and excellent customer service. For our CPV system business, our business development focus will be in the U.S. market primarily due to the extension of the investment tax credit (ITC) and other favorable policies for renewable energy in the U.S. We expect our Gen-III CPV system solution to provide a competitive levelized cost of energy for utility scale projects in certain regions. We will continue to develop and expand strategic partnerships with major international companies to drive our business penetration and expansion into the international markets. We expect a substantial ramp-up of our CPV business to occur in the second half of 2009. Pursue Strategic Acquisitions and Partnership Opportunities. We are committed to the ongoing evaluation of strategic opportunities that can expand our addressable markets and strengthen our competitive position. Where appropriate, we will acquire additional products, technologies, or businesses that are complementary to, or that broaden the markets in which we operate. We plan to pursue strategic acquisitions and partnerships to increase revenue which will allow for higher overhead absorption and improved gross margins. |
EMCORE Corporation, a New Jersey corporation. | ||||||
The shares of our common stock to be offered and sold using this prospectus will be offered and sold by the selling stockholders named in this prospectus or in any supplement to this prospectus. See “Principal and Selling Stockholders”. | ||||||
9,400,003 shares of our common stock, no par value. | ||||||
Common stock outstanding after this offering | ||||||
Pursuant to a registration rights agreement that we entered into with the selling stockholders in connection with the private placement of the common stock and warrants, we have filed with the SEC a registration statement, of which this prospectus is a part. We are obligated under the registration rights agreement to keep the registration statement effective until the earlier of (1) the date on which the selling stockholders shall have sold all of the shares of common stock registered pursuant to the registration statement and (2) the first date as of which all of the shares of common stock registered pursuant to the registration statement may be sold without restriction pursuant to Rule 144 under the Securities Act (the “Registration Period”). We will be required to pay liquidated damages to the holders of the common stock if we fail to comply with our obligations to register the common stock within the specified time period and if we fail to keep this registration statement effective for the duration of the Registration Period, other than during grace periods that are permitted by the registration rights agreement. See “Description of Common Stock to be Registered —Registration Rights”. | ||||||
We will not receive any proceeds from the sale by any selling stockholder of the common stock. Upon any exercise of the warrants by payment of cash, however, we will receive the exercise price of the warrants, which will be used for general corporate purposes. | ||||||
Our common stock is listed on The NASDAQ Global Market under the symbol “EMKR”. | ||||||
See “Risk Factors” beginning on page 5 of this prospectus and other information contained, or incorporated by reference, in this prospectus for a discussion of factors you should consider carefully before deciding to invest in the common stock. |
Issuer | EMCORE Corporation, a New Jersey corporation. | |||||
The shares of our common stock to be offered and sold using this prospectus will be offered and sold by the selling stockholders named in this prospectus or in any supplement to this prospectus. See “Principal and Selling Stockholders”. | ||||||
9,400,003 shares of our common stock, no par value. | ||||||
Common stock outstanding after this offering | ||||||
Pursuant to a registration rights agreement that we entered into with the selling stockholders in connection with the private placement of the common stock and warrants, we have filed with the SEC a registration statement, of which this prospectus is a part. We are obligated under the registration rights agreement to keep the registration statement effective until the earlier of (1) the date on which the selling stockholders shall have sold all of the shares of common stock registered pursuant to the registration statement and (2) the first date as of which all of the shares of common stock registered pursuant to the registration statement may be sold without restriction pursuant to Rule 144 under the Securities Act (the “Registration Period”). We will be required to pay liquidated damages to the holders of the common stock if we fail to comply with our obligations to register the common stock within the specified time period and if we fail to keep this registration statement effective for the duration of the Registration Period, other than during grace periods that are permitted by the registration rights agreement. See “Description of Common Stock to be Registered —Registration Rights”. | ||||||
No proceeds | We will not receive any proceeds from the sale by any selling stockholder of the common stock. Upon any exercise of the warrants by payment of cash, however, we will receive the exercise price of the warrants, which will be used for general corporate purposes. | |||||
Trading | Our common stock is listed on The NASDAQ Global Market under the symbol “EMKR”. | |||||
Risk factors | See “Risk Factors” beginning on page 5 of this prospectus and other information contained, or incorporated by reference, in this prospectus for a discussion of factors you should consider carefully before deciding to invest in the common stock. |
OUR COMPANY
We design, manufacture and market a broad portfolio of compound semiconductor-based products for the broadband, fiber optic, satellite, solar power and wireless communications markets. Our Fiber Optic segment offers optical components, subsystems and systems for high speed data and telecommunications networks, cable television (CATV) and fiber-to-the-premises (FTTP). Our Photovoltaic segment provides products for both satellite and terrestrial applications. For satellite applications, we offer high efficiency Gallium Arsenide (GaAs) solar cells, Covered Interconnect Cells (CICs) and panels. For terrestrial applications, we are adapting our high-efficiency GaAs solar cells for use in solar concentrator systems. Our Electronic Materials and Devices segment provides radio frequency (RF) transistor materials for high bandwidth wireless communications systems. Through our joint venture participation in GELcore, LLC, we play a significant role in developing and commercializing next-generation High-Brightness LED technology for use in the general and specialty illumination markets.
Compound semiconductor-based products provide the foundation of components, subsystems and systems used in a broad range of technology markets, including wireline, wireless and satellite communications equipment and networks, advanced computing technologies and satellite and terrestrial solar power generation systems. Compound semiconductor materials are capable of providing electrical or electro-optical functions, such as emitting optical communications signals, detecting optical communications signals, emitting light and converting sunlight into electricity. Collectively, our products and the products offered by our joint venture, GELcore, serve the telecommunications, cable television, wireless, defense and homeland security, satellite and terrestrial power and lighting and illumination markets.
We are a New Jersey corporation which was established in 1984. Our headquarters and principal executive offices are located at 145 Belmont Drive, Somerset, New Jersey 08873, and our telephone number for investor relations is (732) 271-9090. We maintain a website at www.emcore.com. Information contained in our website is not part of this prospectus.
RISK FACTORS
You should carefully consider the risks described below before making an investment decision. Our business, financial condition or results of operations could be materially adversely affected by any of these risks. We caution the reader that these risk factors may not be exhaustive and that we operate in a continually changing business environment where new risks emerge from time to time. Risks not presently known to us or that we currently deem immaterial could also materially adversely affect our business, financial condition and results of operations.
customers to accept and qualify the new designs, potentially creating a competitive disadvantage for our products. We are also in the process of consolidating our solar panel operations by moving our operations in City of Industry, California to our Albuquerque, New Mexico facility and may pursue other consolidation initiatives in the future. These initiatives can be time-consuming and disruptive to our operations and costly in the short-term. Successfully implementing these and other cost-reduction initiatives throughout our operations is critical to our future competitiveness and ability to achieve long-term profitability. However, there can be no assurance that these initiatives will be successful.
Wesuccessful in creating profit margins sufficient to sustain our current operating structure and business.
· | The Company’s historic lack of profitability has caused it to consume cash, through acquisitions, operations and as a result of the research and development and capital expenditures necessary to expand the market which the Company serves (particularly the terrestrial solar market), as discussed in more detail below. The Company may be unable to acquire the cash necessary to finance these activities from either the debt or the equity markets and as a result the Company may be unable to continue operations. |
· | The Company’s fiber optics products are sold principally to large publicly held companies which are also dependent on public debt and equity markets. Our customers may be unable to obtain the financing necessary to continue their own operations. |
· | The market for the products of the Company’s fiber optics customers, into which the Company’s fiber optics products are incorporated, is dependent on capital spending from telecommunications and data communications companies, which may also be adversely affected by the lack of financing. |
· | The market for the Company’s satellite solar cells may also be adversely affected by the worldwide financial crisis, because the market for commercial satellites depends on capital spending by telecommunications companies and the market for military satellites depends on resources allocated for military intelligence spending, which may be restricted. The market for the Company’s terrestrial solar products is dependent on the availability of project financing for photovoltaic projects, which may no longer be available, and is also largely dependent on government support of various types, such as investment tax credits, which may no longer be available as governments allocate scarce resources to deal with the financial crisis. |
· | A reduction in the Company’s sales will adversely affect the Company’s ability to draw on its existing line of credit with Bank of America because that line of credit is largely dependent on the level of the Company’s accounts receivable. |
Our top five customers accounted for 43% of our total revenue for the six months ended March 31, 2006, and 45% of our total revenue in fiscal 2005. In particular, Cisco Systems, Inc. accounted for 19% of our total revenue in fiscal 2005 and 17% of our total revenue for the six months ended March 31, 2006. The majority of our revenue from Cisco came from sales of our LX4 module. We do not have an exclusive commercial arrangement or a long term contract with Cisco and Cisco has made it clear that continued sales are dependent on our price, quality and delivery. We understand that Cisco has recently qualified another vendor for LX4 modules and is working with several vendors in addition to us to qualify the next generation LX4 module, the X2. If Cisco decreases its purchase orders for any reason, our business, financial condition and results of operations will be harmed. There can be no assurance that we will continue to achieve historical levels of sales of our products to our largest customers. The loss of or a reduction in sales to one or more of our largest customersconditions, such liquidity limitations could have a material adverse affecteffect on the Company's business, financial condition, results of operations, and cash flow.
We may not be successful in obtainingoperations and cash flow.
power products for utility-scale applications may take time to develop, is rapidly changing and extremely price-sensitive, involves issues with which the Company has little experience, and is currently dependent on the policy decisions of governments both inside and outside the United States.
We compete in markets that are characterized by rapid technological change, frequent new product introductions, changes in customer requirements, evolving industry standards, continuous improvement in products andrequired as a condition of financing or at the userequest of our existing productsend customer to undertake certain post-sale obligations such as:
We cannot assure you that we will be able to identify, develop, manufacture, market or support new or enhanced products successfully, if at all, or
The competitiveoperations.
We face substantial competition in each of our operating segments from a number of companies, many of which have greater financial, marketing, manufacturing and technical resources than us. Larger-sized competitors often spend more on research and development, which could give those competitors an advantage in meeting customer demands and introducing technologically innovative products before we do. We expect that existing and new competitors will improve the design of their existing products and will introduce new products with enhanced performance characteristics.
The introduction of new products and more efficient production of existing products by our competitors has resulted and is likely in the future to result in price reductions and increases in expenses and reduced demand for our products. In addition, some of our competitors may be willing to provide their products at lower prices, accept a lower profit margin or expend more capital in order to obtain or retain business. Competitive pressures have required us to reduce the prices of somesales of our products includingto our LX4 moduleslargest customers. Even though our customer base is expected to increase and our solar cells.revenue streams to diversify, a substantial portion of our net revenues could continue to depend on sales to a limited number of customers. Our agreements with these customers may be cancelled if we fail to meet certain product specifications or materially breach the agreement, and our customers may seek to renegotiate the terms of current agreements or renewals. The loss of or a reduction in sales to one or more of our larger customers could have a material adverse affect on our business, financial condition and results of operations.
New competitors may also enter our markets, including some of our currentoperations, and potentialcash flows.
Expected and actual introductions of new and enhanced products may cause our customers to defer or cancel orders for existing products and may cause our products to become obsolete. A slowdown in demand for existing products ahead of a new product introduction could result in a write-down in the value of inventory on hand related to existing products. We have in the past experienced a slowdown in demand for existing products and delays in new product development and such delays may occur in the future. To the extent customers defer or cancel orders for existing products due to a slowdown in demand or in the expectation of a new product release or if there is any delay in development or introduction of our new products or enhancementsall of our products manufactured with materials purchased under such firm commitment contracts. Instead, we rely on our long-term internal forecasts to determine the timing of our production schedules and the volume and mix of products to be manufactured. The level and timing of orders placed by customers may vary for many reasons. As a result, at any particular time, we may have insufficient or excess inventory, which could render us unable to fulfill customer orders or increase our cost of production. This would place us at a competitive disadvantage to our competitors, and could have a material adverse effect on our business, financial condition, and results of operations, and cash flows.
We may notrequired to attempt to obtain product in the open market, which could be successfulunavailable at that time, or only available at prices in implementingexcess of our growth strategy if we are unable to identify and acquire suitable acquisition targets.contracted prices. In addition, in the event any such supplier experiences financial difficulties, it may be difficult or impossible, or may require substantial time and expense, for us to recover any or all of our acquisitions may notprepayments. Any of the foregoing could have the anticipateda material adverse effect on our financial results.
Finding and consummating acquisitions is an important component of our growth strategy. Our continued ability to grow by acquisition is dependent upon the availability of suitable acquisition candidates and may be dependent on our ability to obtain acquisition financing on acceptable terms. We experience competition in making acquisitions from larger companies with significantly greater
resources. There can be no assurance that we will be able to procure the necessary funds to effectuate our acquisition strategy on commercially reasonable terms, or at all.
Future acquisitions by us may involve the following:
If we are unable to successfully integrate companies we acquire into our operations on a timely basis, our profitability could be negatively affected.
We expect that our acquisitions will result in certain business opportunities and growth prospects. We, however, may never realize these expected business opportunities and growth prospects. We may experience increased competition that limits our ability to expand our business. Our assumptions underlying estimates of expected cost savings may be inaccurate or general industry and business conditions may deteriorate. Acquisitions involve numerous risks, including, but not limited to:
If these factors limit our ability to integrate the operations of our acquisitions successfully or on a timely basis, our expectations of future results of operations may not be met. In addition, our growth and operating strategies for businesses we acquire may be different from the strategies that such business currently is pursuing. If our strategies are not the proper strategies for a business we acquire, it could materially adversely affect our business, financial condition, and results of operations. Further, there can be no assurance that we will be able to maintain or enhance the profitability of any acquired business or consolidate the operations of any acquired business to achieve cost savings.
In addition, there may be liabilities that we fail, or are unable, to discover in the course of performing due diligence investigations on each company, business or asset we have already acquired or may acquire in the future. Such liabilities could include those arising from employee benefits contribution obligations of a prior owner or non-compliance with, or liability pursuant to, applicable federal, state or local environmental requirements by prior owners for which we, as a successor owner, may be responsible. In addition, there may be additional costs relating to acquisitions including, but not limited to, possible purchase price adjustments. We cannot assure you that rights to indemnification by sellers of assets to us, even if obtained, will be enforceable, collectible or sufficient in amount, scope or duration to fully offset the possible liabilities associated with the business or property acquired. Any such liabilities, individually or in the aggregate, could materially adversely affect our business, financial condition and results of operations.
Our products are difficult to manufacture. Our production could be disrupted and our results will suffer if our production yields are low as a result of manufacturing difficulties.
We manufacture many of our products in our own production facilities. Difficulties in the production process, such as contamination, poor quality materials, human error or equipment failure, can cause a substantial percentage of our products to be nonfunctional. Lower-than-expected
production yields may delay shipments or result in unexpected levels of warranty claims, either of which can materially adversely affect our results of operations. We have experienced difficulties in achieving planned yields in the past, particularly in pre-production and upon initial commencement of full production volumes, which have adversely affected our gross margins. Because the majority of our manufacturing costs are fixed, achieving planned production yields is critical to our results of operations. As a result of manufacturing many of our products in a single facility, we have greater exposure to the risk of interruption in manufacturing resulting from fire, natural disaster, equipment failures, or similar events than we would if we had back-up facilities available for manufacturing these products. We could also incur significant costs to repair and/or replace products that are defective and in some cases costly product redesigns and/or rework may be required to correct a defect. Additionally, any defect could adversely affect our reputation and result in the loss of future orders.
We face lengthy sales and qualifications cycles for our new products and, in many cases, must invest a substantial amount of time and funds before we receive orders.
Most of our products are tested by current and potential customers to determine whether they meet customer or industry specifications. The length of these qualification processes, which sometimes span a year or more, also may vary substantially by product and customer, and thus cause our results of operations, to be unpredictable. During a given qualification period and prior to any commitment to purchase by customers and without generating significant revenues from the qualification process, we invest significant resources and allocate substantial production capacity to manufacture these new products. In addition, these qualification processes often make it difficult to obtain new customers for existing products, as customers are reluctant to expend the resources necessary to qualify a new supplier if they have one or more existing qualified sources. If we are unable to meet applicable specifications or do not receive sufficient orders to profitably use the allocated production capacity, our business, financial condition and results of operations could be materially adversely affected.
Our historical and future budgets for operating expenses, capital expenditures, operating leases and service contracts are based upon our assumptions as to the anticipated market acceptance of our products. Because of the lengthy lead times required for product development and the changes in technology that typically occur while a product is being developed, it is difficult to accurately estimate customer demand for any given product. If our products do not achieve an adequate level of customer demand, our business, financial condition and results of operations could be materially adversely affected.
If our contract manufacturers fail to deliver quality products at reasonable prices and on a timely basis, our business, financial condition and results of operations could be materially adversely affected.
We are increasing our use of contract manufacturers located outside of the U.S. as a less-expensive alternative to performing our own manufacturing of certain products. Substantially all of our high-volume parts are currently manufactured by contract manufacturers in Asia. If these contract manufacturers do not fulfill their obligations to us, or if we do not properly manage these relationships and the transition of production to these contract manufacturers, our existing customer relationships may suffer. For example, we recently experienced difficulties filling orders in our fiber-to-the-premises business due to limited available capacity of one of our contract manufacturers. In addition, by increasing our use of foreign contract manufacturers, we run the risk that the reputation and competitiveness of our products and services may deteriorate as a result of the reduction of our ability to oversee and control quality and delivery schedules. The use of contract manufacturers located outside of the U.S. also subjects us to the following additional risks that could significantly impair our ability to source our contract manufacturing requirements internationally:
Prior to our customers accepting products manufactured at our contract manufacturers, they must requalify the product and manufacturing processes. The qualification process can be lengthy and is expensive, with no guarantee that any particular product qualification process will lead to profitable product sales. The qualification process determines whether the product manufactured at our contract manufacturer achieves our customers’ quality, performance and reliability standards. Our expectations as to the time periods required to qualify a product line and ship products in volumes to customers may be erroneous. Delays in qualification can impair the expected timing of the transfer of a product line to our contract manufacturer and may impair the expected amount of sales of the affected products. We may, in fact, experience delays in obtaining qualification of our contract manufacturers’ manufacturing lines and, as a consequence, our operating results and customer relationships could be materially adversely affected.
Our supply chain and manufacturing process relies on accurate forecasting to provide us with optimal margins and profitability. Because of market uncertainties, forecasting is becoming much more difficult. In addition, as we come to rely more heavily on contract manufacturers, we may have fewer personnel with expertise to manage these third-party arrangements.
Protecting our trade secrets and obtaining patent protection is critical to our ability to effectively compete.
Our success and competitive position depend on protecting our trade secrets and other intellectual property. Our strategy is to rely both on trade secrets and patents to protect our manufacturing and sales processes and products. Reliance on trade secrets is only an effective business practice insofar as trade secrets remain undisclosed and a proprietary product or process is not reverse engineered or independently developed. We take certain measures to protect our trade secrets, including executing non-disclosure agreements with our employees, our joint venture partner, customers and suppliers. If parties breach these agreements or the measures we take are not properly implemented, we may not have an adequate remedy. Disclosure of our trade secrets or reverse engineering of our proprietary products, processes, or devices could materially adversely affect our business, financial condition and results of operations.
There is also no assurance that any patents will afford us commercially significant protection of our technologies or that we will have adequate resources to enforce our patents. Nor can there be any assurance that the significant number of patent applications that we have filed and are pending, or those we may file in the future, will result in patents being issued. In addition, the laws of certain other countries may not protect our intellectual property to the same extent as U.S. laws.
Our failure to obtain or maintain the right to use certain intellectual property may materially adversely affect our business, financial condition and results of operations.
The compound semiconductor, optoelectronics and fiber optic communications industries are characterized by frequent litigation regarding patent and other intellectual property rights. From time to time we have received, and may receive in the future, notice of claims of infringement of other parties’ proprietary rights and licensing offers to commercialize third party patent rights. Although we are not currently involved in any litigation relating to our intellectual property, there can be no assurance that:
In addition, effective copyright and trade secret protection may be unavailable or limited in certain foreign countries. Litigation, which could result in substantial cost to us and diversion of our resources, may be necessary to defend our rights or defend us against claimed infringement of the rights of others. In certain circumstances, our intellectual property rights associated with government contracts may be limited.
Our substantial level of indebtedness could materially adversely affect our business, financial condition and results of operations.
We have substantial debt service obligations. As of March 31, 2006, our long-term debt was $96.2 million, which represented approximately 56% of our total long-term debt and shareholders’ equity. In addition, we guarantee 49% of any amounts borrowed under GELcore’s $10 million revolving credit line, which amount equaled approximately $6.4 million as of May 25, 2006. We may incur additional debt in the future. This significant amount of debt could:
If our cash flow is inadequate to meet our obligations or we are unable to generate sufficient cash flow or otherwise obtain funds necessary to make required payments on our outstanding indebtedness, we would be in default under the terms of our indebtedness. Default under the indenture governing our approximately $95.8 million aggregate principal amount of convertible senior subordinated notes would permit the holders of such notes to accelerate the maturity of the notes and could cause defaults under future indebtedness we may incur. Any such default could materially adversely affect our business, financial condition and results of operations. In addition, we cannot assure you that we would be able to repay amounts due in respect of the notes if payment of the notes were to be accelerated following the occurrence of an event of default as defined in the indenture.
We generally do not have long-term contracts with our customers and we typically sell our products pursuant to purchase orders with short lead times. As a result, our customers could stop purchasing our products at any time and we must fulfill orders in a timely manner to keep our customers.
We do not generally have long-term contracts with our customers. As a result, our agreements with our customers do not provide any assurance of future sales. Risks associated with the absence of long-term contracts with our customers include that:
We generally sell our products pursuant to individual purchase orders, which often have extremely short lead times. If we are unable to fulfill these orders in a timely manner, it is likely that we will lose sales and customers. In addition, we sell some of our products to governments and governmental entities. These contracts are generally subject to termination for convenience provisions and may be cancelled at any time.
Our joint venture agreement with General Electric Lighting contains provisions that require both parties to agree on most fundamental strategic issues. If we and our joint venture partner are unable to agree, GELcore’s business may be adversely affected.
We have a 49% minority interest in our GELcore joint venture with General Electric Lighting. A board of managers governs GELcore with two representatives from each of General Electric Lighting and EMCORE and a fifth, selected by General Electric Lighting, who also serves as chief executive officer of GELcore. Many fundamental decisions must be approved by both parties, which means we will be unable to direct the operation and direction of GELcore without the agreement of General Electric Lighting. If we are unable to agree on important commercial issues with General Electric Lighting, GELcore's business may be delayed or interrupted, which may, in turn, materially adversely affect our financial condition and results of operations.
We have devoted and may be required to continue to devote significant funds and technologies to GELcore to develop and enhance its products. We guarantee 49% of any amounts borrowed under GELcore’s approximately $10.0 million revolving credit line, under which GELcore’s outstanding borrowings were approximately $6.4 million as of May 25, 2006. In addition, GELcore requires that some of our employees devote much of their time to its projects. This places a strain on our management, scientific, financial and sales employees. If GELcore is unsuccessful in developing and marketing its products, our business, financial condition and results of operations may be materially adversely affected.
We have agreed with General Electric Lighting that this joint venture will be the sole vehicle for each party's participation in the solid state lighting market. We have both also agreed to several limitations during the life of the venture and thereafter relating to how each of us can make use of the joint venture's technology. One consequence of these limitations is that, in certain circumstances, such as a material default by us or certain sales of our interest in the joint venture, we would not be permitted to use the joint venture's technology to compete in the solid state lighting market.
We have significant international sales, which expose us to additional risks and uncertainties.
Sales to customers located outside the U.S. accounted for approximately 16% of our revenue in the six months ended March 31, 2006, 15% of our revenues in fiscal 2005, 29% of our revenues in fiscal 2004 and 27% of our revenues in fiscal 2003. Sales to customers in Asia represent the majority of our international sales. We believe that international sales will continue to account for a significant percentage of our revenues and we are seeking international expansion opportunities. Because of this, the following international commercial risks may materially adversely affect our revenues:
Exports of certain of our products to certain countries (such as the People's Republic of China, Argentina, Brazil, India, Russia, Malaysia and Taiwan) may require pre-shipment authorization from
U.S. export control authorities, including the U.S. Departments of Commerce and State. Authorization may be conditioned on end-use restrictions. Failure to receive these authorizations may materially adversely affect our revenues and in turn our business, financial condition and results of operations from international sales. Compliance with government regulations may also subject us to additional fees and costs. The absence of comparable restrictions on competitors in other countries may materially adversely affect our competitive position.
Our satellite business is particularly sensitive to export control issues. All of our commercially available solar cell products are export-controlled. At present, jurisdiction over export of these items is being reviewed by the U.S. Departments of State and Commerce. During this review period, we are required to apply to the U.S. Department of State for export licenses for our solar cell products. Given the current global political climate, obtaining export licenses can be difficult and time-consuming. Failure to obtain export licenses for these shipments could significantly reduce our revenue and could materially adversely affect our business, financial condition and results of operations.
In addition, certain foreign laws and regulations place restrictions on the concentration of certain hazardous materials, including, but not limited to, lead, mercury and cadmium, in our products. Failure to comply with such laws and regulations could subject us to future liabilities or result in the limitation or suspension of the sale or production of our products. These regulations include the European Union's Restrictions on Hazardous Substances, Directive on Waste Electrical and Electronic Equipment and the directive on End of Life for Vehicles. Failure to comply with environmental and health and safety laws and regulations may limit our ability to export products to the EU and could materially adversely affect our business, financial condition and results of operations.
Our operating results could be harmed if we lose access to sole or limited sources of materials, components or services.
We dependour historical stock option granting practices.
We believe thatfinancial results and cash flow. As a result of this and related factors, our ability to successfully implementdirectors and officers could face increased risks of personal liability in connection with the performance of their duties. As a result, we may have difficultly attracting and retaining qualified directors and officers, which could adversely affect our business strategy and to operate profitably depends on the continued employment of our senior management team. If the members of the management team become unable or unwilling to continue in their present positions, our business, financial condition and results of operations could be materially adversely affected. Additionally, we generally do not enter into employment agreements with our employees.
Failure to comply with environmental and safety regulations, including through the unsuccessful control of hazardous raw materials used in our manufacturing processes, could result in costly remediation fees, penalties or damages.
business.
Our stock price has fluctuated and will continue to fluctuate, whichsecurity breach could result in your losing alldisruptions to our operations. To the extent that any disruptions or security breach results in a partloss or damage to our data, or inappropriate disclosure of your investment.
The marketconfidential information, it could harm our business. In addition, we may be required to incur significant costs to protect against damage caused by these disruptions or security breaches in the future.
The stock market in general, and The Nasdaq National Market in particular, has experienced extreme price and volume fluctuations in recent years that have significantly affected the quoted pricesongoing internal control provisions of Section 404 of the Sarbanes-Oxley Act of 2002. These provisions provide for the identification of material weaknesses in internal control over financial reporting, which is a process to provide reasonable assurance regarding the reliability of financial reporting for external purposes in accordance with U.S. GAAP. If we cannot provide reliable financial reports or prevent fraud, our brand, operating results and the market value of our equity securities could be harmed. We have in the past discovered, and may in the future discover, areas of many companies, including companiesour internal controls that need improvement. In fiscal 2008 and 2007, the Company identified deficiencies in our industry. These fluctuationsinternal controls over financial reporting.
procedures.
In addition, our board of directorsDirectors is divided into three classes. Directors are elected to serve staggered three-year terms and are not subject to removal except for cause by the vote of the holders of at least 80% of our votingcapital stock. In addition, approval by the holders of 80% of our voting stock is required for certain business combinations unless these transactions meet certain fair price criteria and procedural requirements or are approved by two-thirds of our continuing directors. We may in the
future adopt other measures that may have the effect of delaying or discouraging an unsolicited takeover, even if the takeover were at a premium price or favored by a majority of our unaffiliated shareholders. Certain of these measures may be adopted without any further vote or action by our shareholders and this could depress the price of our common stock.
Our directors’
Certainthree derivative actions which were filed against certain of our current and former directors specifically Thomas J. Russell, Reuben F. Richards, Jr. and Robert Louis-Dreyfus, collectively beneficially own 9,563,324 sharesofficers relating to historical stock options practices, and the SEC has indicated that is has terminated its investigation of these matters, additional securities-related litigation (including possible litigation involving employees) may still arise. Additional lawsuits, regardless of their underlying merit, could become time consuming and expensive, and if they result in unfavorable outcomes, there could be material adverse effect on our business, financial condition, results of operations and cash flows. We may be required to pay substantial damages or settlement costs in excess of our common stock,insurance coverage related to these matters, which amountswould have a further material adverse effect on our financial condition or results of operations.
Our stock price couldcorporations would be adversely affected by the issuance of preferred stock.
Our board of directors is authorized to issue up to 5,882,352 shares of preferred stock withfollowing their separation, or whether such dividend rates, liquidation preferences, voting rights, redemption and conversion terms and privileges as our board of directors, in its sole discretion, may determine. The issuance of shares of preferred stock may result in a decrease in the value or market price of our common stock, or our board of directors could use the preferred stock to delay or discourage hostile bids for control of us in which shareholders may receive premiums for their common stock or to make our possible sale or the removal of our management more difficult. The issuance of shares of preferred stock could adversely affect the voting and other rights of the holders of common stock and may depress the price of our common stock.
We do not intend to pay cash dividends on our common stock in the foreseeable future, and therefore only appreciation of the price of our common stock will provide a return to our shareholders.
We currently anticipate that we will retain all future earnings, if any, to finance the growth and development of our business. We do not intend to pay cash dividends in the foreseeable future. As a result, only appreciation of the price of our common stock, which may not occur, will provide a return to our shareholders.
our ability to remain competitive and a leader in our industry and the future growth of the company, the industry, and the economy in general; |
our ability to achieve structural and material cost reductions without impacting product development or manufacturing execution; |
expected improvements in our product and technology development programs; |
our ability to successfully develop, introduce, market and qualify new products, including our terrestrial solar products; |
our ability to identify and acquire |
other risks and uncertainties described in our filings with the SEC such as: cancellations, rescheduling, or delays in product shipments; manufacturing capacity constraints; lengthy sales and qualification cycles; difficulties in the production process; changes in semiconductor industry growth; increased competition; delays in developing and commercializing new products; and other factors. |
· | dealers in securities or currencies; |
· | financial institutions; |
· | regulated investment companies; |
· | real estate investment trusts; |
· | tax-exempt entities; |
· | insurance companies; |
· | cooperatives; |
· | persons holding common stock as part of a hedging, integrated, conversion or constructive sale transaction or a straddle; |
· | traders in securities that elect to use a mark-to-market method of accounting for their securities holdings; |
· | U.S. expatriates; or |
· | partnerships or entities or arrangements treated as a partnership or other pass-through entity for U.S. federal tax purposes (or investors therein). |
· | a citizen or an individual resident of the United States; |
· | a corporation (or other entity taxable as a corporation) created or organized in or under the laws of the United States or any state thereof or the District of Columbia; |
· | an estate the income of which is subject to U.S. federal income taxation regardless of its source; or |
· | a trust if it (i) is subject to the primary supervision of a court within the United States and one or more U.S. persons have the authority to control all substantial decisions of the trust or (ii) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person. |
· | the gain is effectively connected with your conduct of a trade or business in the United States (and, if certain tax treaties apply, is attributable to a permanent establishment in the United States); |
· | you are present in the United States for 183 or more days in the taxable year of the sale, and certain other conditions are met; |
· | you are subject to provisions applicable to certain United States expatriates; or |
· | we are or have been a United States real property holding corporation (“USRPHC”) for U.S. federal income tax purposes at any time during the shorter of the five-year period preceding such disposition and your holding period in the common stock, and (i) you beneficially own, or have owned, more than 5% of the total fair market value of our common stock at any time during the five-year period preceding such disposition or (ii) our common stock has ceased to be traded on an established securities market prior to the beginning of the calendar year in which the sale or disposition occurs, and certain other conditions are met. |
· | If the proceeds are paid to or through the U.S. office of a broker (U.S. or foreign), they generally will be subject to backup withholding and information reporting, unless you certify that you are not a U.S. person under penalties of perjury (usually on an IRS Form W−8BEN) or otherwise establish an exemption; |
· | If the proceeds are paid to or through a non-U.S. office of a broker that is not a U.S. person and is not a foreign person with certain specified U.S. connections (a “U.S. Related Person”), they will not be subject to backup withholding or information reporting; or |
· | If the proceeds are paid to or through a non-U.S. office of a broker that is a U.S. person or a U.S. Related Person, they generally will be subject to information reporting (but not backup withholding), unless you certify that you are not a U.S. person under penalties of perjury (usually on an IRS Form W−8BEN) or otherwise establish an exemption. |
STOCKHOLDERS
Name of Selling Stockholder | Number of Shares Owned Prior to Offering | Maximum Number of Shares to be Sold Pursuant to this Prospectus | Number of Shares Owned After Offering |
Polar Securities Inc. (1) | 987,001 | 987,001 | - |
The Quercus Trust (2) | 6,266,727 | 883,600 | 5,383,127 |
Marathon Global Equity Master Fund, Ltd. (3) | 705,000 | 705,000 | - |
UBS O’Connor LLC F/B/O: O’Connor Pipes Corporate Strategies Master Limited (4) | 394,800 | 394,800 | - |
UBS O’Connor LLC F/B/O: O’Connor Global Convertible Arbitrage Master Limited (5) | 247,408 | 247,408 | - |
UBS O’Connor LLC F/B/O: O’Connor Global Convertible Arbitrage II Master Limited (6) | 15,792 | 15,792 | - |
The Tocqueville Fund (7) | 599,250 | 599,250 | - |
Highbridge International LLC (8) | 640,430 | 587,500 | 52,930 |
Ardsley Partners Fund II, L.P.(9) | 502,238 | 148,638 | 353,600 |
Ardsley Partners Institutional Fund, L.P.(10) | 324,115 | 96,115 | 228,000 |
Ardsley Partners Renewable Energy Fund, L.P. (11) | 215,753 | 80,253 | 135,500 |
Ardsley Offshore Fund, Ltd. (12) | 350,988 | 103,988 | 247,000 |
Ardsley Renewable Energy Offshore Fund, Ltd. (13) | 368,318 | 136,418 | 231,900 |
Marion Lynton (14) | 12,660 | 3,760 | 8,900 |
HFR HE (15) | 50,930 | 18,330 | 32,600 |
Hudson Bay Fund LP (16) | 392,920 | 392,920 | - |
Hudson Bay Overseas Fund, Ltd. (17) | 641,080 | 641,080 | - |
Portside Growth and Opportunity Fund (18) | 564,000 | 564,000 | - |
Empire Capital Partners, LTD (19) | 728,978 | 169,905 | 559,073 |
Empire Capital Partners, LP (20) | 773,768 | 182,595 | 591,173 |
Capital Ventures International (21) | 352,500 | 352,500 | - |
Iroquois Master Fund Ltd. (22) | 352,500 | 352,500 | - |
Kingdon Associates (23) | 938,204 | 85,305 | 852,899 |
M. Kingdon Offshore Ltd. (24) | 2,809,321 | 255,386 | 2,553,935 |
Kingdon Family Partnership, L.P. (25) | 129,975 | 11,809 | 118,166 |
Investcorp Interlachen Multi-Strategy Master Fund Limited (26) | 235,000 | 235,000 | - |
CD Investment Partners, Ltd. (27) | 188,000 | 188,000 | - |
Lagunitas Partners LP (28) | 164,650 | 113,975 | 50,675 |
Gruber & McBaine International (29) | 22,200 | 8,225 | 13,975 |
Jon D & Linda W Gruber Trust (30) | 79,775 | 65,800 | 13,975 |
Cara Castle Partners (31) | 103,400 | 103,400 | - |
MMCAP International Inc SPC (32) | 176,250 | 176,250 | - |
Cranshire Capital, L.P. (33) | 141,000 | 141,000 | - |
Enable Growth Partners LP (34) | 117,500 | 117,500 | - |
Crestview Capital Master, LLC (35) | 117,500 | 117,500 | - |
RHP Master Fund, Ltd. (36) | 117,500 | 117,500 | - |
(1) Includes warrants exercisable for 147,001 shares of common stock at an exercise price of $15.06. Bill Peckford has voting and investment control over the securities held by Polar Securities Inc. |
(2) Includes warrants exercisable for 131,600 shares of common stock at an exercise price of $15.06. David Gelbaum & Monica Chavez Gelbaum, Co-Trustees of The Quercus Trust, have voting and investment control over the securities owned by The Quercus Trust. |
(3) Includes warrants exercisable for 105,000 shares of common stock at an exercise price of $15.06. Marathon Asset Management, LLC (“Marathon”) is Investment Advisor to Marathon Global Equity Master Fund, Ltd. (“MGEMF”). Marathon exercises investment discretion over any securities held by MGEMF. |
(4) Includes warrants exercisable for 58,800 shares of common stock at an exercise price of $15.06. This selling stockholder is a fund which cedes investment control to UBS O’Connor LLC (the “Investment Manager”). The Investment Manager makes all the investment/voting decisions. UBS O’Connor LLC is a wholly owned subsidiary of UBS AG which is listed and traded on the New York Stock Exchange. |
(5) Includes warrants exercisable for 36,848 shares of common stock at an exercise price of $15.06. This selling stockholder is a fund which cedes investment control to UBS O’Connor LLC (the “Investment Manager”). The Investment Manager makes all the investment/voting decisions. UBS O’Connor LLC is a wholly owned subsidiary of UBS AG which is listed and traded on the New York Stock Exchange. |
(6) Includes warrants exercisable for 2,352 shares of common stock at an exercise price of $15.06. This selling stockholder is a fund which cedes investment control to UBS O’Connor LLC (the “Investment Manager”). The Investment Manager makes all the investment/voting decisions. UBS O’Connor LLC is a wholly owned subsidiary of UBS AG which is listed and traded on the New York Stock Exchange. |
(7) Includes warrants exercisable for 89,250 shares of common stock at an exercise price of $15.06. Tocqueville Asset Management L.P. is the investment advisor to The Tocqueville Fund. |
(8) Includes warrants exercisable for 87,500 shares of common stock at an exercise price of $15.06. Highbridge Capital Management, LLC is the trading manager of Highbridge International LLC and has voting control and investment discretion over the securities held by Highbridge International LLC. Glenn Dubin and Henry Swieca control Highbridge Capital Management, LLC and have voting control and investment discretion over the securities held by Highbridge International LLC. Each of Highbridge Capital Management, LLC, Glenn Dubin and Henry Swieca disclaims beneficial ownership of the securities held by Highbridge International LLC. |
(9) Includes warrants exercisable for 22,138 shares of common stock at an exercise price of $15.06. Philip J. Hempleman has voting and investment control over the securities held by Ardsley Partners Fund II, L.P. |
(10) Includes warrants exercisable for 14,315 shares of common stock at an exercise price of $15.06. Philip J. Hempleman has voting and investment control over the securities held by Ardsley Partners Institutional Fund, L.P. |
(11) Includes warrants exercisable for 11,953 shares of common stock at an exercise price of $15.06. Philip J. Hempleman has voting and investment control over the securities held by Ardsley Partners Renewable Energy Fund, L.P. |
(12) Includes warrants exercisable for 15,488 shares of common stock at an exercise price of $15.06. Philip J. Hempleman has voting and investment control over the securities held by Ardsley Offshore Fund, Ltd. |
(13) Includes warrants exercisable for 20,318 shares of common stock at an exercise price of $15.06. Philip J. Hempleman has voting and investment control over the securities held by Ardsley Renewable Energy Offshore Fund, Ltd. |
(14) Includes warrants exercisable for 560 shares of common stock at an exercise price of $15.06. Philip J. Hempleman has voting and investment control over the securities held by Marion Lynton. |
(15) Includes warrants exercisable for 2,730 shares of common stock at an exercise price of $15.06. Philip J. Hempleman has voting and investment control over the securities held by HFR HE. |
(16) Includes warrants exercisable for 58,520 shares of common stock at an exercise price of $15.06. Sander Gerber, Yoav Roth and John Doscas share voting and investment power over these securities. Each of Sander Gerber, Yoav Roth and John Doscas disclaim beneficial ownership over the securities held by Hudson Bay Fund LP. The selling stockholder acquired the securities offered for its own account in the ordinary course of business, and at the time it acquired the securities, it had no agreements, plans or understandings, directly or indirectly to distribute the securities. |
(17) Includes warrants exercisable for 95,480 shares of common stock at an exercise price of $15.06. Sander Gerber, Yoav Roth and John Doscas share voting and investment power over these securities. Each of Sander Gerber, Yoav Roth and John Doscas disclaim beneficial ownership over the securities held by Hudson Bay Overseas Fund LTD. The selling stockholder acquired the securities offered for its own account in the ordinary course of business, and at the time it acquired the securities, it had no agreements, plans or understandings, directly or indirectly to distribute the securities. |
(18) Includes warrants exercisable for 84,000 shares of common stock at an exercise price of $15.06. Ramius LLC (“Ramius”) is the investment adviser of Portside Growth and Opportunity Fund (“Portside”) and consequently has voting control and investment discretion over securities held by Portside. Ramius disclaims beneficial ownership of these securities. C4S & Co., L.L.C. (“C4S”) is the managing member of Ramius and may be considered the beneficial owner of any securities deemed to be beneficially owned by Ramius. C4S disclaims beneficial ownership of these securities. Peter A. Cohen, Morgan B. Stark, Thomas W. Strauss and Jeffrey M. Solomon are the sole managing members of C4S and may be considered beneficial owners of any securities deemed to be beneficially owned by C4S. Messrs. Cohen, Stark, Strauss and Solomon disclaim beneficial ownership of these securities. |
(19) Includes warrants exercisable for 25,305 shares of common stock at an exercise price of $15.06. Peter J. Richards and Scott A. Fine, Managing Members of Empire Capital Management, LLC (investment manager to Empire Capital Partners, LTD), exercise voting and investment control over securities held by Empire Campital Partners, LTD. |
(20) Includes warrants exercisable for 27,195 shares of common stock at an exercise price of $15.06. Peter J. Richards and Scott A. Fine, Managing Members of Empire Capital Management, LLC (investment manager to Empire Capital Partners, LP), exercise voting and investment control over securities held by Empire Campital Partners, LP. |
(21) Includes warrants exercisable for 52,500 shares of common stock at an exercise price of $15.06. Heights Capital Management, Inc., the authorized agent of Capital Ventures International (“CVI”), has discretionary authority to vote and dispose of the shares held by CVI and may be deemed to be the beneficial owner of these shares. Martin Kobinger, in his capacity as Investment Manager of Heights Capital Management, Inc., may also be deemed to have investment discretion and voting power over the shares held by CVI. Mr. Kobinger disclaims any such beneficial ownership of the shares. |
(22) Includes warrants exercisable for 52,500 shares of common stock at an exercise price of $15.06. Joshua Silverman has voting and investment control over the shares held by Iroquois Master Fund Ltd. Mr. Silverman disclaims beneficial ownership of these shares. |
(23) Includes warrants exercisable for 12,705 shares of common stock at an exercise price of $15.06. Mark Kingdon, as Managing Member of Kingdon Capital Management, LLC (investment manager to Kingdon Associates), exercises voting and investment control over securities held by Kingdon Associates. |
(24) Includes warrants exercisable for 38,036 shares of common stock at an exercise price of $15.06. Mark Kingdon, as Managing Member of Kingdon Capital Management, LLC (investment manager to M. Kingdon Offshore Ltd.), exercises voting and investment control over securities held by M. Kingdon Offshore Ltd. |
(25) Includes warrants exercisable for 1,759 shares of common stock at an exercise price of $15.06. Mark Kingdon, as Managing Member of Kingdon Capital Management, LLC (investment manager to Kingdon Family Partnership, L.P.), exercises voting and investment control over securities held by Kingdon Family Partnership, L.P. |
(26) Includes warrants exercisable for 35,000 shares of common stock at an exercise price of $15.06. Interlachen Capital Group LP is the trading manager of Investcorp Interlachen Multi-Strategy Master Fund Limited and has voting and investment discretion over securities held by Investcorp Interlachen Multi-Strategy Master Fund Limited. Andrew Fraley, in his role as Chief Investment Officer of Interlachen Capital Group LP, has voting control and investment discretion over securities held by Investcorp Interlachen Multi-Strategy Master Fund Limited. Andrew Fraley disclaims beneficial ownership of the securities held by Investcorp Interlachen Multi-Strategy Mater Fund Limited. |
(27) Includes warrants exercisable for 28,000 shares of common stock at an exercise price of $15.06. Carpe Diem Capital Management LLC (“Carpe Diem Capital”), as investment manager for CD Investment Partners, Ltd. (“CDIP”), ZPII, L.P. (“ZP II”), as the manager and sole member of Carpe Diem Capital, C3 Management Inc. (“C3”), as the general partner of ZP II, and John D. Ziegelman, as the Chairman of the Board, President and Treasurer and the beneficial owner of 100% of the outstanding shares of common stock of C3, each may be deemed to have beneficial ownership of the shares owned by CDIP which are being registered hereunder. |
(28) Includes warrants exercisable for 16,975 shares of common stock at an exercise price of $15.06. Gruber & McBaine Capital Management is the general partner of Lagunitas Partners LP. The natural persons with voting and investment control for this stockholder are Jon D. Gruber and J. Patterson McBaine. |
(29) Includes warrants exercisable for 1,225 shares of common stock at an exercise price of $15.06. Gruber & McBaine Capital Management is the general partner of Gruber & McBaine International. The natural persons with voting and investment control for this stockholder are Jon D. Gruber and J. Patterson McBaine. |
(30) Includes warrants exercisable for 9,800 shares of common stock at an exercise price of $15.06. Jon D. Gruber has voting and investment control over the securities held by the Jon D & Linda W Gruber Trust. |
(31) Includes warrants exercisable for 15,400 shares of common stock at an exercise price of $15.06. Damien Quinn holds voting and investment control over the securities held by Cara Castle Partners. |
(32) Includes warrants exercisable for 26,250 shares of common stock at an exercise price of $15.06. The natural person with voting and investment control for this stockholder is Matthew MacIsaac. |
(33) Includes warrants exercisable for 21,000 shares of common stock at an exercise price of $15.06. Mitchell P. Kopin, President of Downsview Capital, Inc., the General Partner of Cranshire Capital, L.P., has sole voting and investment control over the shares. |
(34) Includes warrants exercisable for 17,500 shares of common stock at an exercise price of $15.06. Mitch Levine holds voting and investment control over the securities held by Enable Growth Partners LP. |
(35) Includes warrants exercisable for 17,500 shares of common stock at an exercise price of $15.06. Crestview Capital Partners, LLC (“Crestview Partners”) is the sole manager of Crestview, and as such has the power to direct the vote and to direct the disposition of investments owned by Crestview and thus may also be deemed to beneficially own the securities owned by Crestview. Stewart Flink, Robert Hoyt and Daniel Warsh are the managers of Crestview Partners, and as such may be deemed to share the power to vote and to dispose of investments beneficially owned by Crestview Partners, including the Company’s common stock. As a result, each of Messrs. Flink, Hoyt and Warsh may also be deemed to beneficially own the above-described shares of the Company’s common stock held by Crestview and Crestview Partners; however each disclaims beneficial ownership of such shares. |
(36) Includes warrants exercisable for 17,500 shares of common stock at an exercise price of $15.06. RHP Master Fund, Ltd. is a party to an investment management agreement with Rock Hill Investment Management, L.P., a limited partnership of which the general partner is RHP General Partner, LLC. Pursuant to such agreement, Rock Hill Investment Management directs the voting and disposition of shares owned by RHP Master Fund. Messrs. Wayne Bloch and Peter Lockhart own all of the interests in RHP General Partner. The aforementioned entities and individuals disclaim beneficial ownership of the Company’s securities owned by the RHP Master Fund. |
Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission. These rules generally attribute beneficial ownership of securities to persons who possess sole or shared voting power or investment power with respect to those securities and includeour common stock by:
· | each person or group that we know to be the beneficial owner of more than 5% of the outstanding shares of any class of our voting securities; |
· | each of our executive officers and directors; and |
· | our executive officers and directors as a group. |
The selling shareholders may offer shares under this prospectus from time to time and may elect to sell none, some or all of the shares set forth below. As a result, we cannot estimatedetermining the number and percent of shares of our common stock that the selling shareholders will beneficially own after termination of sales under this prospectus. The information set forth in the table below regarding the beneficial ownership after resale of shares is based on the assumption that each selling shareholder will sell all of its shares of common stock coveredowned by this prospectus. In addition, the selling stockholders may have sold, transferredsuch person or otherwise disposed of all or a portion of its shares of our common stock since the date on which it provided information for this table.group. Unless otherwise indicated, the address of each of the beneficial owners is c/o EMCORE Corporation, 145 Belmont Drive, Somerset, NJ 08873.
Selling Shareholder | Shares of Common Stock Beneficially Owned Prior to Offering | Number of Shares of Common Stock Included is this Offering | Shares of Common Stock Beneficially Owned After the Offering | |||||||||||||||||||||||||||
Number | Percent | Number | Number | Percent | ||||||||||||||||||||||||||
Force, Inc. | 240,000 | * | 240,000 | 0 | * | |||||||||||||||||||||||||
Phasebridge, Inc. | 128,205 | * | 128,205 | 0 | * | |||||||||||||||||||||||||
Advent Private Equity Fund II 'A' | 20,122 | * | 20,122 | 0 | * | |||||||||||||||||||||||||
Advent Private Equity Fund II 'B' | 12,272 | * | 12,272 | 0 | * | |||||||||||||||||||||||||
Advent Private Equity Fund II 'C' | 18,270 | * | 18,270 | 0 | * | |||||||||||||||||||||||||
Advent Private Equity Fund II 'D' | 4,339 | * | 4,339 | 0 | * | |||||||||||||||||||||||||
Alloy Annex I, L.P. | 57,014 | * | 57,014 | 0 | * | |||||||||||||||||||||||||
Alloy Corporate 2000, L.P. | 7,207 | * | 7,207 | 0 | * | |||||||||||||||||||||||||
Alloy Investors 2000, L.P. | 12,365 | * | 12,365 | 0 | * | |||||||||||||||||||||||||
Alloy Partners 2000, L.P. | 3,073 | * | 3,073 | 0 | * | |||||||||||||||||||||||||
Alloy Ventures 2000, L.P. | 59,973 | * | 59,973 | 0 | * | |||||||||||||||||||||||||
AMA98 Corporate, L.P. | 721 | * | 721 | 0 | * | |||||||||||||||||||||||||
AMA98 Investors, L.P. | 902 | * | 902 | 0 | * | |||||||||||||||||||||||||
AMA98 Partners, L.P. | 363 | * | 363 | 0 | * | |||||||||||||||||||||||||
AMA98 Ventures, L.P. | 6,012 | * | 6,012 | 0 | * | |||||||||||||||||||||||||
Andrei Manoliu | 5,476 | * | 5,476 | 0 | * | |||||||||||||||||||||||||
Anvest, L.P. | 1,659 | * | 1,659 | 0 | * | |||||||||||||||||||||||||
Bessec Ventures V, L.P.(1) | 19,799 | * | 19,799 | 0 | * | |||||||||||||||||||||||||
Bessemer Venture Partners V, L.P. | 29,699 | * | 29,699 | 0 | * | |||||||||||||||||||||||||
Bessemer Venture Investors II, L.P. | 4,442 | * | 4,442 | 0 | * | |||||||||||||||||||||||||
Bookman Family Limited Partnership | 836 | * | 836 | 0 | * | |||||||||||||||||||||||||
Brad Jeffries | 2,952 | * | 2,952 | 0 | * | |||||||||||||||||||||||||
BVE 2001 (Q) LLC | 8,973 | * | 8,973 | 0 | * | |||||||||||||||||||||||||
Name | Shares Beneficially Owned | Percent of Common Stock | |||||
Robert Bogomolny | 86,972 | * | |||||
John Gillen | 29,242 | * | |||||
Adam Gushard (1) | 212,141 | * | |||||
Hong Q. Hou, Ph.D. (2) | 496,250 | * | |||||
John Iannelli, Ph.D. (3) | 113,893 | * | |||||
Keith J. Kosco, Esq.(4) | 24,500 | * | |||||
John M. Markovich | - | * | |||||
Reuben F. Richards, Jr. (5) | 1,012,054 | 1.3% | |||||
Thomas J. Russell (6) | 5,276,815 | 6.7% | |||||
Charles Scott (7) | 42,409 | * | |||||
All directors and executive officers as a group (10 persons) (8) | 7,294,276 | 9.2% | |||||
AMVESCAP PLC (11) | 4,000,005 | 5.1% | |||||
Brookside Capital Partners Fund, LP (10) | 5,002,777 | 6.4% | |||||
Invesco Ltd.(9) | 4,817,145 | 6.2% | |||||
Kopp Investment Advisors, LLC (12) | 4,101,349 | 5.2% | |||||
The Quercus Trust (13) | 3,800,183 | 4.9% | |||||
Wachovia Corporation (14) | 5,158,132 | 6.6% |
Selling Shareholder | Shares of Common Stock Beneficially Owned Prior to Offering | Number of Shares of Common Stock Included is this Offering | Shares of Common Stock Beneficially Owned After the Offering | |||||||||||||||||||||||||||
Number | Percent | Number | Number | Percent | ||||||||||||||||||||||||||
BVE 2001 LLC | 545 | * | 545 | 0 | * | |||||||||||||||||||||||||
Catherine Lego(2) | 2,109 | * | 2,109 | 0 | * | |||||||||||||||||||||||||
Christopher L. Kaufman Trust SP Dated 4/12/88 | 340 | * | 340 | 0 | * | |||||||||||||||||||||||||
Dan Rubin | 1,645 | * | 1,645 | 0 | * | |||||||||||||||||||||||||
David E. Sweet and Robin T. Sweet as Trustees of The David and Robin Sweet Living Trust Dated 7/6/04 | 463 | * | 463 | 0 | * | |||||||||||||||||||||||||
David L. Anderson, Trustee, The Anderson Living Trust, U/A/D 1/22/98 | 3,163 | * | 3,163 | 0 | * | |||||||||||||||||||||||||
Derek Oppen | 2,530 | * | 2,530 | 0 | * | |||||||||||||||||||||||||
Fieldhelm Limited | 16,897 | * | 16,897 | 0 | * | |||||||||||||||||||||||||
G. Leonard Baker, Jr. and Mary Anne Baker, Co-Trustees of The Baker Revocable Trust, U/A/D 2/3/03 | 1,026 | * | 1,026 | 0 | * | |||||||||||||||||||||||||
Glen Yonekura | 782 | * | 782 | 0 | * | |||||||||||||||||||||||||
Gregory P. and Sarah J.D. Sands, Trustees, The Gregory P. and Sarah J.D. Sands Trust Agreement dated 2/24/99 | 800 | * | 800 | 0 | * | |||||||||||||||||||||||||
Harmeet Dhillon | 126 | * | 126 | 0 | * | |||||||||||||||||||||||||
Harry Stylli | 80 | * | 80 | 0 | * | |||||||||||||||||||||||||
Inder Singh | 400 | * | 400 | 0 | * | |||||||||||||||||||||||||
Intel Capital Corporation | 29,611 | * | 29,611 | 0 | * | |||||||||||||||||||||||||
JAFCO America Technology Affiliates Fund III, L.P. | 1,082 | * | 1,082 | 0 | * | |||||||||||||||||||||||||
JAFCO America Technology Cayman Fund III, L.P. | 9,075 | * | 9,075 | 0 | * | |||||||||||||||||||||||||
JAFCO America Technology Fund III, L.P. | 9,945 | * | 9,945 | 0 | * | |||||||||||||||||||||||||
JAFCO USIT Fund III, L.P. | 4,389 | * | 4,389 | 0 | * | |||||||||||||||||||||||||
James C. Gaither | 652 | * | 652 | 0 | * | |||||||||||||||||||||||||
James N. White and Patricia A. O'Brien as Trustees of the White Family Trust, U/A/D 4/3/97 | 1,203 | * | 1,203 | 0 | * | |||||||||||||||||||||||||
JDS Uniphase Corporation | 42,181 | * | 42,181 | 0 | * | |||||||||||||||||||||||||
Jeffrey W. Bird and Christina R. Bird as Trustees of Jeffrey W. Bird and Christna R. Bird Trust Agreement Dated 10/31/00 | 1,283 | * | 1,283 | 0 | * | |||||||||||||||||||||||||
John C. Major Family 2000 Trust | 4,218 | * | 4,218 | 0 | * | |||||||||||||||||||||||||
John Lopez | 503 | * | 503 | 0 | * | |||||||||||||||||||||||||
John Teegen | 846 | * | 846 | 0 | * | |||||||||||||||||||||||||
Kirk Freeman | 101 | * | 101 | 0 | * | |||||||||||||||||||||||||
Lawrence Ebringer | 3,786 | * | 3,786 | 0 | * | |||||||||||||||||||||||||
Leighton Read | 218 | * | 218 | 0 | * | |||||||||||||||||||||||||
Lynne M. Brown | 115 | * | 115 | 0 | * | |||||||||||||||||||||||||
Narinder Kapany | 8,436 | * | 8,436 | 0 | * | |||||||||||||||||||||||||
Patricia Tom | 58 | * | 58 | 0 | * | |||||||||||||||||||||||||
Peter Loukianoff | 80 | * | 80 | 0 | * | |||||||||||||||||||||||||
Raj Kapany | 10,902 | * | 10,902 | 0 | * | |||||||||||||||||||||||||
Richard Pantell | 80 | * | 80 | 0 | * | |||||||||||||||||||||||||
Robert Corona | 80 | * | 80 | 0 | * | |||||||||||||||||||||||||
Robert C. Wilson Revocable Trust, dated Sept. 26, 1996, Robert C. Wilson, Trustee | 240 | * | 240 | 0 | * | |||||||||||||||||||||||||
Ronald D. Bernal and Pamela M. Bernal as Trustees of The Bernal Family Trust U/D/T 11/3/1995 | 802 | * | 802 | 0 | * | |||||||||||||||||||||||||
Saunders Holdings, L.P. | 3,319 | * | 3,319 | 0 | * | |||||||||||||||||||||||||
Selling Shareholder | Shares of Common Stock Beneficially Owned Prior to Offering | Number of Shares of Common Stock Included is this Offering | Shares of Common Stock Beneficially Owned After the Offering | |||||||||||||||||||||||||||
Number | Percent | Number | Number | Percent | ||||||||||||||||||||||||||
Sutter Hill Entrepreneurs Fund (AI) L.P. | 659 | * | 659 | 0 | * | |||||||||||||||||||||||||
Sutter Hill Entrepreneurs Fund (QP) L.P. | 1,669 | * | 1,669 | 0 | * | |||||||||||||||||||||||||
Sutter Hill Ventures, a California Limited Partnership | 65,114 | * | 65,114 | 0 | * | |||||||||||||||||||||||||
Tench Coxe and Simone Otus Coxe, Co-Trustees of The Coxe Revocable Trust (4/23/98) | 3,801 | * | 3,801 | 0 | * | |||||||||||||||||||||||||
Tench Coxe, Trustee, The Tamerlane Charitable Remainder Unitrust | 2,821 | * | 2,821 | 0 | * | |||||||||||||||||||||||||
The Photonics Fund, L.P. | 25,309 | * | 25,309 | 0 | * | |||||||||||||||||||||||||
VP Company Investments 2004, LLC | 340 | * | 340 | 0 | * | |||||||||||||||||||||||||
Wells Fargo Bank, N.A. fbo SHV Profit Sharing Plan fbo Michele Y. Phua | 41 | * | 41 | 0 | * | |||||||||||||||||||||||||
Wells Fargo Bank, N.A. fbo SHV Profit Sharing Plan fbo Robert Yin | 58 | * | 58 | 0 | * | |||||||||||||||||||||||||
Wells Fargo Bank, N.A. fbo SHV Profit Sharing Plan fbo Sherryl W. Hossack | 232 | * | 232 | 0 | * | |||||||||||||||||||||||||
William H. Younger, Jr. Trustee, The Younger Living Trust, U/A/D 1/20/95 | 3,895 | * | 3,895 | 0 | * | |||||||||||||||||||||||||
* | Less than |
(1) | |
(2) | Includes options to purchase 378,125 shares. |
(3) | Includes options to purchase 102,631 shares and 4,683 shares held in a 401(k) Plan. |
(4) | Includes options to purchase 24,500 shares. |
(5) | Includes options to purchase 322,500 shares and 175,000 shares held by spouse. |
(6) | Includes 2,280,035 shares held by The AER Trust. |
(7) | Includes 30,409 shares owned by Kircal, Ltd. |
(8) | Includes options to purchase 1,011,854 shares beneficially owned by Reuben F. Richards, Jr., Executive Chairman; Hong Hou, Chief Executive Officer; John M. Markovich, Chief Financial Officer; Adam Gushard, Former Interim Chief Financial Officer; John Iannelli, Chief Technology Officer; and Keith J. |
(9) | This information is based solely on information contained in a Schedule 13G/A filed with the SEC on February 14, 2008, by invesco Ltd. (“Invesco”). The address of Alexandra Global is Citco Building, Wickams Cay, P.O. Box 662, Road Town, Tortola, British Virgin Islands. The address of Alexandra Management and |
(10) | This information is based solely on information contained in a Schedule 13G filed with the |
(11) | This information is based solely on information contained in a Schedule 13G filed with the SEC on February 14, 2007, by AMVESCAP PLC, a U.K. entity, on behalf of itself and PowerShares Capital Management LLC, a U.S. entity (“PowerShares”). The shares reported for AMVESCAP PLC represent the total shares held by AMVESCAP PLC through PowerShares. The address of AMVESCAP PLC is 30 Finsbury Square, London EC2A 1AG, England. The address of AMVESCAP PLC is 30 Finsbury Square, London EC2A 1AG, England. |
(12) | This information is based solely on information contained in a Schedule 13D filed with the SEC on April 4, 2008, by Kopp Investment Advisors, LLC (“KIA”), |
(13) | This information is based solely on information contained in a Schedule 13D filed with the SEC on August 20, 2008, by The Quercus Trust, David Gelbaum and Monica Chavez Gelbaum. The Quercus Trust reports beneficially owning a total of 3,800,183 shares and sharing voting and dispositive power |
The selling shareholders have not held any position or office with, or have otherwise had a material relationship with, us or any of our subsidiaries within the past three years, except that Mr. Raj Kapany provided certain services to us following the merger of one of our wholly-owned subsidiaries into K2 Optronics, Inc. and currently provides consulting services to us pursuant to the terms of a Consulting Services Agreement.
may enter into agreements with respect thereto. The selling shareholders may also transfer, devise or gift these shares by other means not described in this prospectus. The selling shareholders may also use any one or more of the following methods when selling shares:
transactions involved). In connection with the salesales of the shares of common stock or interests therein,otherwise, the selling shareholdersstockholders may enter into hedging transactions with broker-dealers, or other financial institutions, which may in turn engage in short sales of the shares of common stock in the course of hedging thein positions they assume. The selling shareholdersstockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creationsell shares of one or more derivative securities which require the delivery to such broker-dealer or other financial institutioncommon stock short and deliver shares of shares offeredcommon stock covered by this prospectus which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplementedclose out short positions and to reflect such transaction). The selling shareholders may also engage in short sales against the box, puts and calls, loans or pledges and other transactions in our securities or derivatives of our securities and may sell or deliverreturn borrowed shares in connection with these trades.
Broker-dealers engaged by thesuch short sales. The selling shareholdersstockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissionsalso loan or discounts from the selling shareholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated.
In addition to selling their shares under this prospectus, the selling shareholders also may resell all or a portion of their shares in open market transactions in reliance upon Rule 144 under the Securities Act, provided they meet the criteria and conform to the requirements of that rule. In addition, the selling shareholders may transfer or assign theirpledge shares of common stock other than under this prospectusto broker-dealers that in turn may sell such shares.
The selling shareholdersstockholders also may transfer and donate the shares of common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
Becauseany broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling shareholdersstockholders and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.
The selling shareholders have advised us that, ascommon stock. It is not possible to state the actual effect of the dateissuance of any shares of preferred stock upon the rights of holders of the common stock until the Board of Directors determines the specific rights of the holders of this prospectus, theypreferred stock. However, the effects might include, among other things:
• | restricting dividends on the common stock; | |
• | diluting the voting power of the common stock; | |
• | impairing the liquidation rights of the common stock; or | |
• | delaying or preventing a change in control of the company without further action by the stockholders. |
• | on or prior to thirty (30) days following the date the private placement transaction closed, a registration statement has not been filed with the SEC (a “filing failure”); | ||
• | we fail to use our commercially reasonable best efforts to cause such registration statement to be declared effective by the SEC on or prior to (1) ninety (90) days after the closing date of the private placement transaction if there is no review of the registration statement by the SEC or (2) one hundred twenty (120) days after the closing date of the transaction if there is a review of the registration statement by the SEC (an “effectiveness failure”); or | ||
• | on any day after the effective date of the registration statement sales of all the common stock required to be included on such registration statement cannot be made (other than as permitted during a grace period as set forth in the registration rights agreement) pursuant to such registration statement, including because of a failure to keep such registration statement effective, to disclose such information as is necessary for sales to be made pursuant to such registration statement or to register sufficient a sufficient amount of common stock (a “maintenance failure”); or | ||
• | after the date six months following the closing of the private placement, we fail to file any required reports under Section 12 or 15(d) of the 1934 Act such that we are not in compliance with Rule 144(c)(1) or a result of which the purchasers in the private placement are unable to sell their registrable securities without restriction under Rule 144 (or any successor thereto) (a “current public information default”). |
• | the day that a filing failure occurs and on every thirtieth day (pro rated for shorter periods) thereafter until such filing failure is cured; | ||
• | the day that an effectiveness failure occurs and on every thirtieth day (pro rated for shorter periods) thereafter until such effectiveness failure is cured; | ||
• | the initial day of a maintenance failure and on every thirtieth day (pro rated for shorter periods) thereafter until such maintenance failure is cured; and | ||
• | the day that a current public information default occurs and on every thirtieth day (pro rated for shorter periods) thereafter until such current public information default is cured. |
We will pay all registration and filing fees (including all expenses incident to filing with The Nasdaq National Market and any securities exchange), printing expenses, fees and disbursements of our counsel, fees of our independent auditors and accountants, expensesthe interested shareholder of any regularloans or special audits incidentother financial assistance from the corporation.
voting power of the corporation prior to the time the corporation was required to file periodic reports pursuant to the Exchange Act or prior to the time the corporation’s securities began to trade on a national securities exchange.
Jenner & Block LLP and, with respect to matters governed by New Jersey law, by Dillon, Bitar & Luther, L.L.C.
INTERESTS OF NAMED EXPERTS AND COUNSEL
An opinion concerning the validity of the issuance of shares of our common stock has been passed upon for us by Howard W. Brodie, Esq., our Executive Vice President and Chief Legal Officer. See Exhibit 5.1 to this Registration Statement. Mr. Brodie beneficially owns 138,756 shares of our common stock, which includes options to purchase 135,000 shares.
INCORPORATION BY REFERENCE
We have filed a registration statement under the Securities Act with the SEC with respect to the common stock offered under this prospectus. This prospectus is a part of the registration statement. However, it does not contain all of the information contained in the registration statement and its exhibits. You should refer to the registration statement and its exhibits for further information about us and the common stock offered under this prospectus.
The SEC allows us to ‘‘incorporate by reference’’reference in this prospectus the information in documents we file with it,the SEC, which means that we can disclose important information to you by referring you to those documents. The information in this prospectus updates (and, to the extent of any conflict, supersedes) information incorporated by reference that we have filed with the SEC prior to the date of this prospectus. You should read all of the information incorporated by reference because it is an important part of this prospectus,prospectus.
Please note that all other documents and reports filedus under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act followingof 1934 until we sell all of the datesecurities (other than filings or portions of filings that are furnished under applicable SEC rules rather than filed):
We will provide, without charge,is delivered, upon written or oral request of any such person, a copy of any orand all of the reports or documents that have been incorporated herein by reference. Youreference in this prospectus, other than exhibits to such documents unless such exhibits have been specifically incorporated by reference thereto. Requests for such copies should direct requests for documents to:
be directed to our Investor Relations department, at the following address:
ITEM 14.
Distribution
Securities and Exchange Commission registration fee | $ | 865.77 | ||||||||
SEC registration fee | $ | 2,335 | ||||||||
Printing and engraving fees | 10,000 | |||||||||
Legal fees and expenses | 75,000.00 | 175,000 | ||||||||
Accounting fees and expenses | 25,000.00 | 133,000 | ||||||||
Miscellaneous | 5,000.00 | |||||||||
Total | $ | 105,865.77 | $ | 320,335 | ||||||
ITEM 15.
Officers
2.1 | Merger Agreement, dated January 12, 2006, by and among K2 Optronics, Inc., EMCORE Corporation, and EMCORE Optoelectronics Acquisition Corp. (incorporated by reference to Exhibit 2.1 to Registrant’s Current Report on Form 8-K filed on January 19, 2006). |
2.2 | Asset Purchase Agreement between IQE RF, LLC, IQE plc, and EMCORE Corporation, dated July 19, 2006. (incorporated by reference to Exhibit 2.1 to Registrant’s Current Report on Form 8-K filed on July 24, 2006). |
2.3 | Membership Interest Purchase Agreement, dated as of August 31, 2006, by and between General Electric Company, acting through the GE Lighting operations of its Consumer and Industrial division, and EMCORE Corporation (incorporated by reference to Exhibit 2.1 to Registrant’s Current Report on Form 8-K filed on September 7, 2006). |
2.4 | Stock Purchase Agreement, dated as of April 13, 2007, by and among Registrant, Opticomm Corporation and the persons named on Exhibit 1 thereto (incorporated by reference to Exhibit 2.1 to Registrant’s Current Report on Form 8-K filed April 19, 2007). |
2.5* | Loan and Security Agreement dated as of September 29, 2008, between Bank of America, N.A. and Registrant. |
2.6 | Asset Purchase Agreement, dated December 17, 2007, between EMCORE Corporation and Intel Corporation (incorporated by reference to Exhibit 2.1 to the Registrant’s Form 10-Q filed on February 11, 2008) |
2.7 | Asset Purchase Agreement, dated April 9, 2008, between EMCORE Corporation and Intel Corporation (incorporated by reference to Exhibit 2.1 to the Registrant’s Form 10-Q filed on May 12, 2008) |
2.8 | Securities Purchase Agreement, dated February 15, 2008, between EMCORE Corporation and each investor identified on the signature pages thereto (Filed as part of the Company’s Current Report on Form 8-K, Commission file no. 000-22175, dated February 20, 2008, and incorporated herein by reference) |
3.1 | Restated Certificate of Incorporation, dated April 4, 2008 (incorporated by reference to Exhibit 3.1 to Registrant's Current Report on Form 8-K filed on April 4, 2008). |
3.2 | Amended By-Laws, as amended through August 7, 2008 (incorporated by reference to Exhibit 3.1 to Registrant’s Current Report on Form 8-K filed on August 13, 2008). |
4.1 | Registration Rights Agreement, dated February 15, 2008, between EMCORE Corporation and the investors identified on the signature pages thereto (Filed as part of the Company’s Current Report on Form 8-K, Commission file no. 000-22175, dated February 20, 2008, and incorporated herein by reference) |
4.2 | Form of Warrant, dated February 15, 2008 (Filed as part of the Company’s Current Report on Form 8-K, Commission file no. 000-22175, dated February 20, 2008, and incorporated herein by reference) |
4.3 | Specimen certificate for shares of common stock (incorporated by reference to Exhibit 4.1 to Amendment No. 3 to the Registration Statement on Form S-1 (File No. 333-18565) filed with the Commission on February 24, 1997). |
5.1** | Opinion of Jenner & Block LLP |
5.2** | Opinion of Dillon, Bitar & Luther, L.L.C. |
10.1† | 1995 Incentive and Non-Statutory Stock Option Plan (incorporated by reference to Exhibit 10.1 to the Amendment No. 1 to the Registration Statement on Form S-1 filed on February 6, 1997). |
10.2† | 1996 Amendment to Option Plan (incorporated by reference to Exhibit 10.2 to Amendment No. 1 to the Registration Statement on Form S-1 filed on February 6, 1997). |
10.3† | MicroOptical Devices 1996 Stock Option Plan (incorporated by reference to Exhibit 99.1 to the Registration Statement on Form S-8 filed on February 6, 1998). |
10.4† | 2000 Stock Option Plan, as amended and restated on March 31, 2008 (incorporated by reference to the attached Exhibit to the Company’s Definitive Proxy Statement filed on March 4, 2008). |
10.5† | 2000 Employee Stock Purchase Plan, as amended and restated on February 13, 2006 (incorporated by reference to Exhibit 10.2 to Registrant’s Current Report on Form 8-K filed on February 17, 2006). |
10.6† | Directors’ Stock Award Plan (incorporated herein by reference to Exhibit 99.1 to Registrant’s Original Registration Statement of Form S-8 filed on November 5, 1997), as amended by the Registration Statement on Form S-8 filed on August 10, 2004. |
10.7 | Memorandum of Understanding, dated as of September 26, 2007 between Lewis Edelstein and Registrant regarding shareholder derivative litigation (incorporated by reference to Exhibit 10.10 to Registrant’s Annual Report on Form 10-K for the fiscal year ended September 20, 2006). |
10.8† | Fiscal 2008 Executive Bonus Plan (incorporated by reference to Exhibit 10.1 the Registrant’s Form 10-Q filed on May 12, 2008). |
10.9† | Executive Severance Policy (incorporated by reference to Exhibit 10.2 to Registrant’s Current Report on Form 8-K filed on April 19, 2007). |
10.10† | Outside Directors Cash Compensation Plan, as amended and restated on February 13, 2006 (incorporated by reference to Exhibit 10.3 to Registrant’s Current Report on Form 8-K filed on February 17, 2006). |
10.11 | Exchange Agreement, dated as of November 10, 2005, by and between Alexandra Global Master Fund Ltd. and Registrant (incorporated by reference to Exhibit 10.15 to Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2005). |
10.12 | Consent to Amendment and Waiver, dated as of April 9, 2007, by and among EMCORE Corporation and certain holders of the 2004 Notes party thereto (incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8-K filed on April 10, 2007). |
10.13 | Consent to Amendment and Waiver, dated as of April 9, 2007, by and between EMCORE Corporation and the holder of the 2005 Notes (incorporated by reference to Exhibit 10.2 to Registrant’s Current Report on Form 8-K filed on April 10, 2007). |
10.14 | Investment Agreement between WorldWater and Power Corp. and Registrant, dated November 29, 2006 (incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8-K filed on December 5, 2006). |
10.15 | Registration Rights Agreement between WorldWater and Power Corp. and Registrant, dated November 29, 2006 (incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8-K filed on December 5, 2006). |
10.16 | Letter Agreement between WorldWater and Power Corp. and Registrant, dated November 29, 2006 (incorporated by reference to Exhibit 10.3 to Registrant’s Current Report on Form 8-K filed on December 5, 2006). Confidential Treatment has been requested by the Company with respect to portions of this document. Such portions are indicated by “*****”. |
10.17† | Dr. Hong Hou Offer Letter dated December 14, 2006 (incorporated by reference to Exhibit 10.1 to Registrant’s Current Report filed on December 20, 2006). |
10.18 | Stipulation of Compromise and Settlement, dated as of November 28, 2007 executed by the Company and the other defendants and the plaintiffs in the Federal Court Action and the State Court Actions (incorporated by reference to Exhibit 10.19 to the Registrant’s Form 10-K filed of December 31, 2007). |
10.19† | 2008 Director’s Stock Award Plan (incorporated by reference to Exhibit 10.1 to Registrant’s Form 10-Q filed on February 11, 2008). |
10.20†* | Mr. John M. Markovich Offer Letter dated August 7, 2008. |
14.1 | Code of Ethics for Financial Professionals (incorporated by reference to Exhibit 14.1 to Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2003). |
21.1** | Subsidiaries of the Registrant. |
23.1** | Consent of Deloitte & Touche LLP. |
23.2** | Consent of Jenner & Block LLP (contained in Exhibit 5.1) |
23.3** | Consent of Dillon, Bitar & Luther, L.L.C. (contained in Exhibit 5.2) |
ITEM 16. Exhibits.
Please see exhibit index immediately following signature page.
ITEMcompensatory plan
(a) Undertakings
statement; and
Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post−effective amendment by those paragraphs is contained in reports
II-1
filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(b) The undersigned registrant hereby undertakes that,(2) That, for the purposespurpose of determining any liability under the Securities Act, each post-effectivesuch post−effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes to
(d) The undersigned registrant hereby undertakes that,
(e)registration statement as of the earlier of the date such form of prospectus is first used after effectiveness.
(f) The undersigned registrant hereby undertakes that:
(1)
(i) Each prospectus filed bypurchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to Rule 424(b)(3) shall be deemed to be partthis registration statement, regardless of the registration statement asunderwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the datefollowing communications, the filedundersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(ii) Each prospectusundersigned registrant relating to the offering required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B424;
II-2
SIGNATURES
EMCORE CORPORATION | ||
Date: January 23, 2009 | By: | /s/ Reuben F. Richards, Jr. |
Reuben F. Richards, Jr. | ||
Executive Chairman & Chairman of the Board (Principal Executive Officer) |
Date: January 23, 2009 | By: | /s/ Hong Q. Hou |
Hong Q. Hou, Ph.D. | ||
Chief Executive Officer (Principal Executive Officer) |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Thomas G. Werthan and Howard W. Brodie, Esq., and each of them, his or her true and lawful attorney-in-fact and agent, with full power and substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement (including any and all pre-effective and post-effective amendments), any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact, agents, or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Signature | Title | |
/s/ Reuben F. Richards, Jr. | ||
Reuben F. Richards, Jr. | ||
/s/ | ||
Hong Q. Hou, Ph.D. | Chief | |
/s/ John | ||
John M. Markovich | Chief Financial Officer (Principal Financial and Accounting Officer) | |
* | ||
Thomas J. Russell, Ph.D. | Director | |
* | ||
Charles T. Scott | Director | |
* | ||
John Gillen | Director | |
* | ||
Robert Bogomolny | Director | |
* By: /s/ Reuben F. Richards Reuben F. Richards, Jr. Attorney in Fact |
EXHIBIT INDEX
Exhibit Number | Exhibit | ||||||||
4 | .1 | — | Restated Certificate of Incorporation, dated December 21, 2000 (incorporated by reference to Exhibit 3.1 of the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2000) | ||||||
4 | .2 | — | Amended By-Laws, as amended through December 21, 2000 (incorporated by reference to Exhibit 3.2 of the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2000) | ||||||
4 | .3 | — | Specimen certificate for shares of common stock (incorporated by reference to Exhibit 4.1 to Amendment No. 3 to the Registration Statement on Form S-1 (File No. 333-18565) filed with the Commission on February 24, 1997) | ||||||
4 | .4 | — | Registration Rights Agreement dated as of January 12, 2006, by and among EMCORE Corporation and the former stockholders of K2 Optronics, Inc., listed on Schedule A thereto | ||||||
4 | .5 | — | Registration Rights Agreement dated as of December 18, 2005, by and between EMCORE Corporation, and Force, Inc. | ||||||
4 | .6 | — | Registration Rights Agreement dated as of November 8, 2005, by and between EMCORE Corporation, and Phasebridge, Inc. | ||||||
5 | .1 | — | Opinion of Howard W. Brodie, Esq. | ||||||
23 | .1 | — | Consent of Deloitte & Touche LLP | ||||||
23 | .2 | — | Consent of Howard W. Brodie, Esq. (included in Exhibit 5.1) | ||||||
24 | .1 | — | Power of Attorney (included on signature page) | ||||||