As filed with the Securities and Exchange Commission on November 5, 1997.
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EMCORE CORPORATION
(Exact name of issuer as specified in its charter)
New Jersey 22-2746503
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
394 Elizabeth Avenue
Somerset, New Jersey 08873
(908) 271-9090
(Address of principal executive offices)
EMCORE CORPORATION
DIRECTORS' STOCK AWARD PLAN
(Full title of plan)
Thomas G. Werthan
EMCORE Corporation
394 Elizabeth Avenue
Somerset, New Jersey 08873
(Name and address of agent for service)
(Telephone number, including area code, of agent for service):
(908) 271-9090
<PAGE>
Copy to:
Kevin Keogh, Esq.
White & Case
1155 Avenue of the Americas
New York, NY 10036
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered Per Share Offering Price* Registration Fee
Common Stock, N/A N/A $281,250.00 $85.00
without par value
[* Estimated pursuant to Rule 457 of the General Rules and Regulations under the Securities Act of 1933 solely for the purposes of
computing the registration fee, based on the average of the high and low sales prices of the securities being registered hereby on
the Nasdaq National Market on November 4, 1997.]
</TABLE>
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
EMCORE Corporation (the "Company") hereby incorporates by reference the
following documents:
(a) The Company's prospectus relating to an initial public offering of
Common Stock, filed pursuant to Rule 424(b) under the Securities Act on March
7, 1997, and containing audited financial statements for the Company's most
recent fiscal year.
(b) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1, as declared effective by the
Commission on March 5, 1997 (Reg. No. 333-18565).
(c) The Company's Quarterly Report on Form 10-Q for the period ended
March 31, 1997, filed with the Commission on May 15, 1997 (File No. 0-22175).
(d) The Company's Quarterly Report on Form 10-Q for the period ended
June 30, 1997, filed with the Commission on August 15, 1997 (File No. 0-
22175).
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") subsequent to the date of this Registration Statement and
prior to the filing of a post-effective amendment that indicates that all
securities offered herein have been sold or that deregisters all securities
then remaining unsold shall be deemed to be incorporated herein by reference
and to be a part hereof from the respective date of filing of each such
document. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in
any other subsequently filed document that also is incorporated or deemed to
be incorporated herein by reference modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Company's Certificate of Incorporation provides that the Company
shall indemnify its directors and officers to the full extent permitted by New
Jersey law, including in circumstances in which indemnification is otherwise
discretionary under New Jersey law. Section 14A:2-7 of the New Jersey
Business Corporation Act provides that a New Jersey corporation's:
"certificate of incorporation may provide that a director or officer
shall not be personally liable, or shall be liable only to the extent therein
provided, to the corporation or its shareholders for damages for breach of any
duty owed to the corporation or its shareholders, except that such provision
shall not relieve a director or officer from liability for any breach of duty
based upon an act or omission (a) in breach of such person's duty of loyalty
to the corporation or its shareholders, (b) not in good faith or involving a
knowing violation of law or (c) resulting in receipt by such person of an
improper personal benefit. As used in this subsection, an act or omission in
breach of a person's duty of loyalty means an act or omission which that
person knows or believes to be contrary to the best interests of the
corporation or its shareholders in connection with a matter in which he has a
material conflict of interest."
In addition, Section 14A:3-5 (1995) of the New Jersey Business
Corporation Act (1995) provides as follows:
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
(1) As used in this section,
(a) "Corporate agent" means any person who is or was a director, officer,
employee or agent of the indemnifying corporation or of any constituent
corporation absorbed by the indemnifying corporation in a consolidation or
merger and any person who is or was a director, officer, trustee, employee or
agent of any other enterprise, serving as such at the request of the
indemnifying corporation, or of any such constituent corporation, or the legal
representative of any such director, officer, trustee, employee or agent;
(b) "Other enterprise" means any domestic or foreign corporation, other
than the indemnifying corporation, and any partnership, joint venture, sole
proprietorship, trust or other enterprise, whether or not for profit, served
by a corporate agent;
(c) "Expenses" means reasonable costs, disbursements and counsel fees;
(d) "Liabilities" means amounts paid or incurred in satisfaction of
settlements, judgments, fines and penalties;
(e) "Proceeding" means any pending, threatened or completed civil,
criminal, administrative or arbitrative action, suit or proceeding, and any
appeal therein and any inquiry or investigation which could lead to such
action, suit or proceeding; and
(f) References to "other enterprises" include employee benefit plans;
references to "fines" include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
<PAGE>
of the indemnifying corporation" include any service as a corporate agent
which imposes duties on, or involves services by, the corporate agent with
respect to an employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner the person reasonably believed
to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the
best interests of the corporation" as referred to in this section.
(2) Any corporation organized for any purpose under any general or special
law of this State shall have the power to indemnify a corporate agent against
his expenses and liabilities in connection with any proceeding involving the
corporate agent by reason of his being or having been such a corporate agent,
other than a proceeding by or in the right of the corporation, if:
(a) such corporate agent acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation; and
(b) with respect to any criminal proceeding, such corporate agent had no
reasonable cause to believe his conduct was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not of itself create a presumption that
such corporate agent did not meet the applicable standards of conduct set
forth in paragraphs 14A:3-5(2)(a) and 14A:3-5(2)(b).
(3) Any corporation organized for any purpose under any general or special
law of this State shall have the power to indemnify a corporate agent against
his expenses in connection with any proceeding by or in the right of the cor-
poration to procure a judgment in its favor which involves the corporate agent
by reason of his being or having been such corporate agent, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation. However, in such proceeding no indem-
nification shall be provided in respect of any claim, issue or matter as to
which such corporate agent shall have been adjudged to be liable to the
corporation, unless and only to the extent that the Superior Court or the
court in which such proceeding was brought shall determine upon application
that despite the adjudication of liability, but in view of all circumstances
of the
case, such corporate agent is fairly and reasonably entitled to indemnity for
such expenses as the Superior Court or such other court shall deem proper.
(4) Any corporation organized for any purpose under any general or special
law of this State shall indemnify a corporate agent against expenses to the
extent that such corporate agent has been successful on the merits or other-
wise in any proceeding referred to in subsections 14A:3-5(2) and 14A:3-5(3) or
in defense of any claim, issue or matter therein.
(5) Any indemnification under subsection 14A:3-5(2) and, unless ordered by
a court, under subsection 14A:3-5(3) may be made by the corporation only as
authorized in a specific case upon a determination that indemnification is
proper in the circumstances because the corporate agent met the applicable
standard of conduct set forth in subsection 14A:3-5(2) or subsection
14A:3-5(3). Unless otherwise provided in the certificate of incorporation or
bylaws, such determination shall be made
(a) by the board of directors or a committee thereof, acting by a majority
vote of a quorum consisting of directors who were not parties to or otherwise
involved in the proceeding; or
(b) if such a quorum is not obtainable, or, even if obtainable and such
quorum of the board of directors or committee by a majority vote of the
disinterested directors so directs, by independent legal counsel, in a written
opinion, such counsel to be designated by the board of directors; or
<PAGE>
(c) by the shareholders if the certificate of incorporation or bylaws or a
resolution of the board of directors or of the shareholders so directs.
(6) Expenses incurred by a corporate agent in connection with a proceeding
may be paid by the corporation in advance of the final disposition of the
proceeding as authorized by the board of directors upon receipt of an under-
taking by or on behalf of the corporate agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified as provided
in this section.
(7) (a) If a corporation upon application of a corporate agent has failed
or refused to provide indemnification as required under subsection 14A:3-5(4)
or permitted under subsections 14A:3-5(2), 14A:3-5(3) and 14A:3-5(6), a cor-
porate agent may apply to a court for an award of indemnification by the
corporation, and such court
(i) may award indemnification to the extent authorized under subsections
14A:3-5(2) and 14A:3-5(3) and shall award indemnification to the extent
required under subsection 14A:3-5(4), notwithstanding any contrary determina-
tion which may have been made under subsection 14A:3-5(5); and
(ii) may allow reasonable expenses to the extent authorized by, and subject
to the provisions of, subsection 14A:3-5(6), if the court shall find that the
corporate agent has by his pleadings or during the course of the proceeding
raised genuine issues of fact or law.
(b) Application for such indemnification may be made:
(i) in the civil action in which the expenses were or are to be incurred or
other amounts were or are to be paid; or
(ii) to the Superior Court in a separate proceeding. If the application is
for indemnification arising out of a civil action, it shall set forth
reasonable cause for the failure to make application for such relief in the
action or proceeding in which the expenses were or are to be incurred or other
amounts were or are to be paid.
The application shall set forth the disposition of any previous application
for indemnification and shall be made in such manner and form as may be
required by the applicable rules of court or, in the absence thereof, by
direction of the court to which it is made. Such application shall be upon
notice to the corporation. The court may also direct that notice shall be
given at the expense of the corporation to the shareholders and such other
persons as it may designate in such manner as it may require.
(8) The indemnification and advancement of expenses provided by or granted
pursuant to the other subsections of this section shall not exclude any other
rights, including the right to be indemnified against liabilities and expenses
incurred in proceedings by or in the right of the corporation, to which a cor-
porate agent may be entitled under a certificate of incorporation, bylaw,
agreement, vote of shareholders, or otherwise; provided that no
indemnification shall be made to or on behalf of a corporate agent if a
judgment or other final adjudication adverse to the corporate agent
establishes that his acts or omissions (a) were in breach of his duty of
loyalty to the corporation or its shareholders, as defined in subsection (3)
of N.J.S.14A:2-7, (b) were not in good faith or involved a knowing violation
of law or (c) resulted in receipt by the corporate agent of an improper
personal benefit.
(9) Any corporation organized for any purpose under any general or special
law of this State shall have the power to purchase and maintain insurance on
behalf of any corporate agent against any expenses incurred in any proceeding
and any liabilities asserted against him by reason of his being or having been
<PAGE>
a corporate agent, whether or not the corporation would have the power to
indemnify him against such expenses and liabilities under the provisions of
this section. The corporation may purchase such insurance from, or such insur-
ance may be reinsured in whole or in part by, an insurer owned by or otherwise
affiliated with the corporation, whether or not such insurer does business
with other insureds.
(10) The powers granted by this section may be exercised by the
corporation, notwithstanding the absence of any provision in its certificate
of incorporation or bylaws authorizing the exercise of such powers.
(11) Except as required by subsection 14A:3-5(4), no indemnification shall
be made or expenses advanced by a corporation under this section, and none
shall be ordered by a court, if such action would be inconsistent with a
provision of the certificate of incorporation, a bylaw, a resolution of the
board of directors or of the shareholders, an agreement or other proper
corporate action, in effect at the time of the accrual of the alleged cause of
action asserted in the proceeding, which prohibits, limits or otherwise
conditions the exercise of indemnification powers by the corporation or the
rights of indemnification to which a corporate agent may be entitled.
(12) This section does not limit a corporation's power to pay or reimburse
expenses incurred by a corporate agent in connection with the corporate
agent's appearance as a witness in a proceeding at a time when the corporate
agent has not been made a party to the proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
(a) The following is a complete list of exhibits filed as part of this
Registration Statement:
Exhibit
No. Description
4.1 Specimen certificate for shares of Common Stock (filed as an Exhibit to
the Company's Registration Statement on Form S-1, No. 333-18565, and
incorporated herein by reference).
4.2 The Company's 1995 Incentive and Non-Statutory Stock Option Plan, adopted
by the Company's Board of Directors and Shareholders on June 23, 1995
(filed as an Exhibit to the Company's Registration Statement on Form S-1,
No. 333-18565, and incorporated herein by reference).
4.3 The Company's 1996 Amendment to Incentive and Non-Statutory Stock Option
Plan (filed as an Exhibit to the Company's Registration Statement on Form
S-1, No. 333-18565, and incorporated herein by reference).
4.4 Restated Certificate of Incorporation, amended February 3, 1997 (filed as
an Exhibit to the Company's Registration Statement on Form S-1, File No.
333-18565 and incorporated herein by reference).
4.5 Amended By-Laws, as amended January 11, 1989 (filed as an Exhibit to the
Company's Registration Statement on Form S-1, File No. 333-18565 and
incorporated herein by reference).
5.1 Opinion of White & Case.
23.1 Consent of White & Case (included in Exhibit 5.1 to this Registration
<PAGE>
Statement).
23.2 Consent of Coopers & Lybrand, L.L.P.
(b) The Company hereby undertakes to submit the EMCORE Corporation 401(k),
and any amendments thereto, to the Internal Revenue Service (the "IRS")
in a timely manner and make all changes required by the IRS in order to
qualify the EMCORE Corporation 401(k) under Section 401 of the Internal
Revenue Code.
99.1 Directors' Stock Award Plan
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such 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 that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's Annual Report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
<PAGE>
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Somerset, State of New Jersey, on
this 5th day of November, 1997.
EMCORE Corporation
By: /s/ Thomas G. Werthan
Thomas G. Werthan
Vice President, Finance and
Administration and Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints and
hereby authorizes Reuben F. Richards, Jr. and Thomas G. Werthan,severally,
such person's true and lawful attorneys-in-fact, with full power of
substitution or resubstitution, for such person and in his name, place and
stead, in any and all capacitates, to sign on such person's behalf,
individually and in each capacity stated below, any and all amendments,
including post-effective amendments to this registration statement and to sign
any and all additional registration statements relating to the same offering
of securities as this registration statement and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission granting unto said attorneys-in-fact, full power and authority to
do and perform each and every act and thing requisite or necessary to be done
in and about the premises, as fully to all intents and purposes as such person
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
<PAGE>
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-8 has been signed by the following persons in the
capacities indicated, on November 5, 1997.
<TABLE>
<CAPTION>
Signature Title
<C> <C>
/s/ Reuben F. Richards, Jr. President, Chief Executive Officer and Director (Principal
Reuben F. Richards, Jr. Executive Officer)
/s/ Thomas G. Werthan Vice President, Chief Financial Officer, Secretary and
Thomas G. Werthan Director (Principal Accounting and Financial Officer)
/s/ Thomas J. Russell Chairman of the Board and Director
Thomas J. Russell
/s/ Richard A. Stall Director
Richard A. Stall
/s/ Howard R. Curd Director
Howard R. Curd
/s/ Howard F. Curd Director
Howard F. Curd
Director
Robert Louis-Dreyfus
/s/ Hugh H. Fenwick Director
Hugh H. Fenwick
Director
Thomas E. Constance
/s/Shigeo Takayama Director
Shigeo Takayama
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
4.1 Specimen certificate for shares of Common Stock (Filed as an Exhibit to
the Company's Registration Statement on Form S-1, No. 333-18565, and
incorporated herein by reference).
4.2 The Company's 1995 Incentive and Non-Statutory Stock Option Plan, adopted
by the Company's Board of Directors and Shareholders on June 23, 1995
(Filed as an Exhibit to the Company's Registration Statement on Form S-1,
No. 333-18565, and incorporated herein by reference).
4.3 The Company's 1996 Amendment to Incentive and Non-Statutory Stock Option
Plan (Filed as an Exhibit to the Company's Registration Statement on Form
S-1, No. 333-18565, and incorporated herein by reference).
5.1 Opinion of White & Case.
23.1 Consent of White & Case (included in Exhibit 5.1 to this Registration
Statement).
23.2 Consent of Coopers & Lybrand L.L.P.
99.1 Directors' Stock Award Plan
<PAGE>
Exhibit 5.1
White & Case
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
November 5, 1997
EMCORE Corporation
394 Elizabeth Avenue
Somerset, New Jersey 08873
Ladies and Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") filed by EMCORE
Corporation (the "Company") with the Securities and Exchange Commission (the
"Commission") for registration under the Securities Act of 1933, as amended,
of the Company's Common Stock in an aggregate amount of $281,250 (the
"Shares") which may be acquired by certain employees of the Company pursuant
to the terms and provisions of the Directors' Stock Award Plan (the "Plan").
We are familiar with the corporate proceedings relating to the
authorization of the Shares and have reviewed the corporate proceedings taken
with respect to the approval of the Plan by the Company's Board of Directors
on August 8, 1996. We have examined and relied on originals, or copies
certified to our satisfaction, of all such corporate records of the Company
and such other instruments and other certificates of public officials,
officers and representatives of the Company and such other persons, and we
have made such investigations of law, as we have deemed appropriate as a basis
for the opinion herein expressed.
Based upon the foregoing, it is our opinion that the Shares will, if
issued and delivered in accordance with the terms and provisions of the Plan,
be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement. By giving such consent we do not thereby admit that
we are an "expert" with respect to any part of such Registration Statement as
that term is used in the Securities Act of 1933, as amended, or the rules or
regulations of the Commission issued thereunder.
Very truly yours,
White & Case
KK:SGH
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated November 1, 1996, except for Notes
13 and 15 as to which the date is December 6, 1996, and Note 16 as to which
the date is February 3, 1997, on our audits of the financial statements and
the financial statement schedule of EMCORE Corporation.
Parsippany, New Jersey
November 5, 1997
<PAGE>
Exhibit 99.1
EMCORE CORPORATION
DIRECTORS' STOCK AWARD PLAN
1. The purposes of the Directors' Stock Award Plan (the "Plan")
are (a) to attract and retain highly qualified individuals to serve as
Directors of EMCORE Corporation, (b) to increase non-employee Directors' stock
ownership in the Corporation and (c) to relate non-employee Directors'
compensation more closely to the Corporation's performance and its
shareholders' interest.
2. The Plan shall be effective as of March 6, 1997 (the "Effective
Date").
3. On the date of each meeting of the Board of Directors, each
non-employee Director in attendance shall receive an amount of shares of
Common Stock of the Corporation equal to $3,500 for service as a Director. A
Director may forego such award for any meeting by giving irrevocable written
notice to such effect to the Secretary of the Corporation 30 days prior to the
date of such meeting.
4. On the date of each committee meeting of the Board of
Directors, each non-employee Director in attendance shall receive an amount of
shares of Common Stock of the Corporation equal to $500.00 for service as a
member of such committee and each non-employee Chairman of a committee of the
Board of Directors in attendance shall receive an additional amount of shares
of Common Stock of the Corporation equal to $500.00 for service as Chairman of
such committee. A Director or may forego such award for any meeting by giving
irrevocable written notice to such effect to the Secretary of the Corporation
30 days prior to the date of such meeting.
5. The number of shares of Common Stock of the Corporation granted
to non-employee Directors pursuant to clauses 3 and 4 above shall be
determined based on the price of the stock as published in the Wall Street
Journal on the date that such board meeting or committee meeting, as the case
may be, takes place. No fractional shares shall be distributed to Directors
under the Plan and the number of shares distributed to each Director for each
board meeting or committee meeting, as the case may be, shall be rounded down
to the nearest whole number.
6. This Plan shall be construed in accordance with the laws of the
State of New Jersey and may be amended or terminated at any time by action of
the Board of Directors of the Corporation.
