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As filed with the Securities and Exchange Commission on September 24, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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EMCORE CORPORATION
(Exact name of registrant as specified in its charter)
NEW JERSEY 22-2746503
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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394 ELIZABETH AVENUE, SOMERSET, NEW JERSEY 08873
(732) 271-9090
(Address, including zip code, and telephone
number, including area code, of registrant's agent
for service and principal executive offices)
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THOMAS G. WERTHAN
EMCORE CORPORATION
394 ELIZABETH AVENUE
SOMERSET, NEW JERSEY 08873
(732) 271-9090
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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WITH COPIES TO:
JORGE L. FREELAND, ESQ.
WHITE & CASE LLP
200 SOUTH BISCAYNE BLVD.
MIAMI, FLORIDA 33131
TEL: (305) 371-2700
FAX: (305) 358-5744
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: as
soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act of 1933 registration statement number
of the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act of 1933, check the following box and list the
Securities Act of 1933 registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF SHARES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED(1) AGGREGATE PRICE PER AGGREGATE OFFERING REGISTRATION FEE
UNIT PRICE(2)
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 2,521,361 $16.1875 $40,814,531.19 $11,347
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which are issued by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without
the Registrant's receipt of consideration which results in an increase
in the number of the outstanding shares of the Registrant's Common
Stock.
(2) Estimated solely for calculating the amount of the registration fee
pursuant to Rule 457(c). The price and fee are based upon the average
of the high and low sales prices of shares of common stock on September
22, 1999 as reported on The Nasdaq National Market.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER OR SALE IS NOT PERMITTED.
Subject to Completion, Dated September 24, 1999
PROSPECTUS
2,521,361 SHARES
EMCORE CORPORATION
COMMON STOCK
OFFERING BY THE SELLING SHAREHOLDERS
- - The selling shareholders are offering for resale up to 2,521,361 shares
of our common stock. These shares are either presently outstanding, but
carry a restrictive legend, may be acquired upon conversion of Series I
Redeemable Convertible Preferred Stock which we previously issued, may
be acquired upon the conversion of an outstanding subordinated
promissory note, or may be acquired upon exercise of outstanding
warrants by the selling shareholders.
- - We expect that the selling security holders using this prospectus may
sell the shares in ordinary brokers' transactions, transactions
directly with market makers, privately negotiated sales or otherwise.
- - We will not receive any of the proceeds from the offering of the shares
with this prospectus, but if the warrant holders choose to exercise
their warrants we will receive $4.08 per share. The registration of the
shares pursuant to this prospectus does not necessarily mean that any
shares will be offered or sold.
- --------------------------------------------------------------------------------
Investing in our common stock involves risks. You
should carefully consider the risk factors
beginning on page 3 before purchasing our
common stock.
- --------------------------------------------------------------------------------
OFFERING PRICE
- - The sale price of the shares offered with this prospectus will be
determined by the selling security holders at the time of sale and may
be based upon the market price of the shares, negotiated prices or by
formula.
OUR COMMON STOCK
- - The shares offered with this prospectus will be listed for trading
under the trading symbol "EMKR" on the Nasdaq National Market.
- - On September 22, 1999, the closing price of our common shares on the
Nasdaq National Market was $15.875 per share.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
THE DATE OF THIS PROSPECTUS IS ______________________, 1999
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[Begin Inside Cover]
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed
with the SEC using a "shelf" registration process. Under this shelf registration
process, the selling shareholders may, from time to time, sell their shares of
our common stock, par value $0.01 per share, in one or more offerings. Please
carefully read both this prospectus and any applicable prospectus supplement
together with additional information described under the heading "Where You Can
Find More Information and Incorporation by Reference."
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
information that is different from what is contained in this prospectus. This
prospectus does not constitute any offer to sell or a solicitation of an offer
to buy any securities in any jurisdiction where it is unlawful to do so. You
should not assume that the information contained in this prospectus is accurate
as of any date other than its date, and neither the delivery of this prospectus
nor the sale of securities hereunder shall create any implication to the
contrary.
In this prospectus, the "Company," "EMCORE," "we," "us" and "our" refer
to EMCORE Corporation, and its subsidiaries.
[End Inside Cover]
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EMCORE CORPORATION
EMCORE designs, develops and manufactures compound semiconductor wafers
and devices and is a leading developer and manufacturer of the tools and
manufacturing processes used to fabricate compound semiconductor wafers and
devices. Our products and technology enable our customers, both in the United
States and internationally, to manufacture commercial volumes of
high-performance electronic devices using compound semiconductors. Our products
are used in a wide variety of applications in the communications (satellite,
data, telecommunications and wireless), consumer and automotive electronics,
computers and peripherals, and lighting markets. EMCORE's customers include AMP
Incorporated, Hewlett Packard, General Motors, Hughes-Spectrolab, Lucent
Technologies, Inc., Siemens AG and 12 of the largest electronics manufacturers
in Japan.
Compound semiconductors are the key components of electronic systems
and electronic circuits and are now used in today's most advanced information
systems. Compound semiconductors are composed of two or more elements and
usually consist of a metal such as gallium, aluminum or indium and a non-metal
such as arsenic, phosphorus or nitrogen. These elements are combined in our
proprietary manufacturing process to create a round disk, or wafer, that has
multiple layers of thin films of semiconductors on it. The wafers are further
processed to create devices that are ready to be packaged by our customers for
use in their products, such as solar cells, lasers and transistors. Many
compound semiconductor materials have unique physical properties that allow
electrons to move at least four times faster than through semiconductors based
on silicon. Advantages of compound semiconductor devices over silicon devices
include:
- operation at higher speeds;
- lower power consumption;
- less noise and distortion; and
- the ability to emit and detect light, known as optoelectronic
properties.
Although compound semiconductors are more expensive to manufacture than
the more traditional silicon-based semiconductors that are used in most
computers, electronics manufacturers are increasingly integrating compound
semiconductors into their products in order to achieve higher performance.
We manufacture and sell, either alone or with our joint venture
partners, the following products:
<TABLE>
<CAPTION>
PRODUCT CURRENT AND POTENTIAL APPLICATIONS
<S> <C>
Solar cells Solar panels in communications
satellite power systems
Compound semiconductor devices that Traffic lights
emit light, called high-brightness Miniature lamps
light-emitting diodes (HB LEDs)* Automotive lighting
Flat panel displays
Compound semiconductor lasers that emit High performance data and
light in a cylindrical beam, called telecommunications lines including
vertical cavity surface emitting fiber optic cables and other network
lasers (VCSELs) applications
</TABLE>
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<TABLE>
<S> <C>
Compound semiconductor sensor devices Cam and crank shaft sensors for
that can detect a magnetic field and automobiles
sense the position of a metal Antilock brake systems
object called magneto resistive Brushless motors
sensors (MR sensors) Engine timing sensors
Compound semiconductor materials that Cellular phone handsets
transmit and receive communications Fiber optics
called radio frequency materials Satellite transmitters and receivers
(RF materials)
TurboDisc production systems Platform technology for all of the
above
</TABLE>
* Products under development
Our objective is to capitalize on our position as a leading developer
and manufacturer of compound semiconductor tools and manufacturing processes to
become the leading supplier of compound semiconductor wafers and devices. The
key elements of our strategy are to:
- apply our core scientific and manufacturing technology across
multiple product applications;
- target high growth opportunities;
- partner with key industry participants; and
- continue our investment to maintain technology leadership.
We have recently established a number of strategic relationships
through joint ventures and long-term supply agreements including:
- a joint venture with General Electric Lighting to develop and
market white light and colored HB LED lighting products.
- a long-term purchase agreement for solar cells with Space
Systems/Loral, a wholly-owned subsidiary of Loral Space &
Communications.
- a cooperative development agreement and a three-year purchase
agreement with Sumitomo Electric to provide certain RF
materials for use in cellular handsets.
We were incorporated in the State of New Jersey in September 1986. Our
principal executive offices are located at 394 Elizabeth Avenue, Somerset, New
Jersey 08873, and our telephone number is (732) 271-9090. You can reach our web
site at http://www.emcore.com. Our web site is not part of this prospectus.
EMCORE and TurboDisc are registered trademarks of EMCORE and Gigalase, Gigarray
and the EMCORE logo are trademarks of EMCORE. Each trademark, trade name or
service mark of any other company appearing in this prospectus belongs to its
holder.
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RISK FACTORS
You should carefully consider the following risks, together with the
other information contained in this prospectus, before you decide whether to
purchase shares of our common stock. If any of the following risks actually
occur, our business, financial condition or results of operations would likely
suffer. In such case, the trading price of our common stock could decline, and
you may lose all or part of the money you paid to buy our common stock.
This prospectus contains forward-looking statements based on our
current expectations, assumptions, estimates and projections about EMCORE and
our industry. These forward-looking statements involve numerous risks and
uncertainties. Our actual results could differ materially from those anticipated
in such forward-looking statements as a result of certain factors, as more fully
described in this section and elsewhere in this prospectus. We undertake no
obligation to update publicly any forward-looking statements for any reason,
even if new information becomes available or other events occur in the future.
WE EXPECT TO CONTINUE TO INCUR OPERATING LOSSES.
We started operations in 1984 and as of June 30, 1999 had an
accumulated deficit of $76.6 million. We incurred net losses of $3.2 million in
fiscal 1996, $5.6 million in fiscal 1997, $36.4 million in fiscal 1998 and $16.1
million in the first nine months of fiscal 1999. We expect to continue to incur
losses. To support our growth, we have increased our expense levels and our
investments in inventory and capital equipment. As a result, we will need to
significantly increase revenues and profit margins to become and stay
profitable. If our sales and profit margins do not increase to support the
higher levels of operating expenses and if our new product offerings are not
successful, our business, financial condition and results of operations will be
materially and adversely affected.
OUR RAPID GROWTH PLACES A STRAIN ON OUR RESOURCES.
We are experiencing rapid growth, having added a significant number of
new employees, acquired MicroOptical Devices, Inc., or MODE, and entered into
joint ventures with General Electric Lighting, Uniroyal Technology Corporation,
Optek Technology, Inc. and Union Miniere Inc. We have expanded our facilities to
include two manufacturing facilities in Albuquerque, New Mexico in addition to
our original facility in Somerset, New Jersey. Our joint venture with Uniroyal
Technology Corporation has leased a manufacturing facility in Tampa, Florida.
This growth has placed and will continue to place a significant strain on our
management, financial, sales and other employees and on our internal systems and
controls. If we are unable to effectively manage multiple facilities and
multiple joint ventures in geographically distant locations, our business,
financial condition and results of operations will be materially and adversely
affected. We are also in the process of installing new manufacturing software
for all of our facilities and are evaluating replacing our accounting and
purchasing systems. Most of the new manufacturing software is customized to our
particular business and manufacturing processes. It will take time and require
evaluation to eliminate all of the bugs in the software and to train personnel
to use the new software. In this transition we may experience delays in
production, cost overruns and disruptions in our operations.
SINCE THE TECHNOLOGY IN THE COMPOUND SEMICONDUCTOR INDUSTRY RAPIDLY CHANGES, WE
MUST CONTINUALLY IMPROVE EXISTING PRODUCTS, DESIGN AND SELL NEW PRODUCTS AND
MANAGE THE COSTS OF RESEARCH AND DEVELOPMENT IN ORDER TO EFFECTIVELY COMPETE.
We compete in markets characterized by rapid technological change,
evolving industry standards and continuous improvements in products. Due to
constant changes in these markets, our future success depends on our ability to
improve our manufacturing processes and tools and our products. For example, our
TurboDisc production systems must remain competitive on the basis of cost of
ownership and process performance. To remain competitive we must continually
introduce manufacturing tools with higher capacity and better production yields.
We have recently introduced a number of new products and, in connection
with recent joint ventures and internal development, we will be introducing
additional new products in the near future. The commercialization of new
products involves substantial expenditures in research and development,
production and marketing. We may be
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unable to successfully design or manufacture these new products and may have
difficulty penetrating new markets. In addition, many of our new products are
being incorporated into our customers' new products for new applications, such
as high speed computer networks.
Because it is generally not possible to predict the amount of time
required and the costs involved in achieving certain research, development and
engineering objectives, actual development costs may exceed budgeted amounts and
estimated product development schedules may be extended. Our business, financial
condition and results of operations may be materially and adversely affected if:
- we are unable to improve our existing products on a timely
basis;
- our new products are not introduced on a timely basis;
- we incur budget overruns or delays in our research and
development efforts; or
- our new products experience reliability or quality problems.
FLUCTUATIONS IN OUR QUARTERLY OPERATING RESULTS MAY NEGATIVELY IMPACT OUR STOCK
PRICE.
Our revenues and operating results may vary significantly from quarter to
quarter due to a number of factors particular to EMCORE and the compound
semiconductor industry. Not all of these factors are in our control. These
factors include:
- the volume and timing of orders for our products, particularly
TurboDisc systems, which have an average selling price in
excess of $1 million;
- the timing of our announcement and introduction of new
products and of similar announcements by our competitors;
- downturns in the market for our customers' products;
- regional economic conditions, particularly in Asia where we
derive a significant portion of our revenues; and
- price volatility in the compound semiconductor industry.
These factors may cause our operating results for future periods to be
below the expectations of analysts and investors. This may cause a decline in
the price of our common stock.
OUR JOINT VENTURE PARTNERS, WHO HAVE CONTROL OF THESE VENTURES, MAY MAKE
DECISIONS THAT WE DO NOT AGREE WITH AND THAT ADVERSELY AFFECT OUR NET INCOME.
Since December 1997, we have established four joint ventures (with
Optek Technology, Inc., Union Miniere, Inc., Uniroyal Technology Corporation and
General Electric Lighting). Each of our joint ventures involves the creation of
a separate company, and we do not have a majority interest in any of these
entities. Each of these joint ventures is governed by a board of managers with
representatives from both the strategic partner and us. Many fundamental
decisions must be approved by both parties to the joint venture, which means we
will be unable to direct the operation and direction of these joint ventures
without the agreement of our joint venture partners. If we are unable to agree
on important issues with a joint venture partner, the business of that joint
venture may be delayed or interrupted, which may, in turn, materially and
adversely affect our business, financial condition and results of operations.
We have devoted and we will be required to continue to devote
significant funds and technologies to our joint ventures to develop and enhance
their products. In addition, our joint ventures will require that some of our
employees devote much of their time to joint venture projects. This will place a
strain on our management,
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scientific, financial and sales employees. If our joint ventures are
unsuccessful in developing and marketing their products, our business,
financial condition and results of operations will be materially and adversely
affected.
General Electric Lighting and we have agreed that our joint venture
will be the sole vehicle for each party's participation in the solid state
lighting market. We and General Electric Lighting have also agreed to several
limitations during the life of the venture and thereafter relating to use that
each of us can make of the joint venture's technology. One consequence of these
limitations is that in certain circumstances, such as a material default by us,
we would not be permitted to use the joint venture's technology to compete
against General Electric Lighting in the solid state lighting market.
SINCE A LARGE PERCENTAGE OF OUR REVENUES ARE FROM FOREIGN SALES, CERTAIN EXPORT
RISKS MAY DISPROPORTIONATELY AFFECT OUR REVENUES.
Sales to customers located outside the United States accounted for
approximately 42.5% of our revenues in fiscal 1996, 42.0% of our revenues in
fiscal 1997, 39.1% of our revenues in fiscal 1998 and 54.1% of our revenues in
the first nine months of fiscal 1999. 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. Because of
this, the following export risks may disproportionately affect our revenues:
- political and economic instability may inhibit export of our
systems and devices and limit potential customers' access to
dollars;
- shipping and installation costs of our systems may increase;
- we have experienced and may continue to experience
difficulties in the timeliness of collection of foreign
accounts receivable and have been forced to write off
receivables from a foreign customer;
- a strong dollar may make our systems less attractive to
foreign purchasers who may decide to postpone making the
capital expenditure;
- tariffs and other barriers may make our systems and devices
less cost competitive;
- we may have difficulty in staffing and managing our
international operations;
- the laws of certain foreign countries may not adequately
protect our trade secrets and intellectual property; and
- potentially adverse tax consequences to our customers may make
our systems and devices not cost competitive.
WE WILL LOSE SALES IF WE ARE UNABLE TO OBTAIN GOVERNMENT AUTHORIZATION TO EXPORT
OUR PRODUCTS.
Exports of our products to certain destinations, such as the People's
Republic of China, 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. On certain
occasions, we have been denied authorization, particularly with respect to the
People's Republic of China. Failure to receive these authorizations may
materially and adversely affect our revenues and in turn our business, financial
condition and results of operations from international sales. Beginning April
1999, exports of all satellites and associated components require a license from
the Department of State. This may cause delays in shipping solar cells abroad.
Delays in receiving export licenses for solar cells may materially and adversely
affect our revenues and in turn our business, financial condition and results of
operations.
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THE LOSS OF SALES TO GENERAL MOTORS OR OUR OTHER LARGE CUSTOMERS WOULD BE
DIFFICULT TO REPLACE.
We derive a substantial portion of our revenues from a limited number
of customers. Sales to Hughes-Spectrolab, primarily of TurboDisc systems and
solar cells, accounted for approximately 23.6% of our revenues in fiscal 1996,
10.2% of our revenues in fiscal 1997, 17.3% of our revenues in fiscal 1998, but
only 2.9% of our revenues for the first nine months of fiscal 1999. We believe
that, at least in the short-term, Hughes-Spectrolab will produce most of its
material requirements in-house using TurboDisc systems purchased from us.
Consequently, we do not expect sales to Hughes-Spectrolab to continue to be
significant in the short term. General Motors, our main customer for MR
sensors, accounted for approximately 15.1% of our revenues in fiscal 1997,
12.8% of our revenues in fiscal 1998 and 9.9% of our revenues for the first
nine months of fiscal 1999. General Motors' three month strike in 1998
adversely affected our operating performance because during that time shipments
of sensors to General Motors were halted. In addition to the lost revenues, we
incurred the expense of paying salaries to the part of our workforce dedicated
to producing sensors. If General Motors, or any of our other significant
customers, stops ordering our products, significantly reduces the volume of
these orders, or cancels, delays or reschedules any orders, and we are unable
to replace these orders, our business, financial condition and results of
operations could be materially and adversely affected.
OUR PRODUCTS ARE DIFFICULT TO MANUFACTURE AND SMALL MANUFACTURING DEFECTS CAN
ADVERSELY AFFECT OUR PRODUCTION YIELDS AND OUR OPERATING RESULTS.
The manufacture of our TurboDisc systems is a highly complex and
precise process. We increasingly outsource the fabrication of certain components
and sub-assemblies of our systems, often to sole source suppliers or a limited
number of suppliers. We have experienced occasional delays in obtaining
components and subassemblies because the manufacturing process for these items
is very complex and requires long lead times. The revenues derived from sales of
our TurboDisc systems will be materially and adversely affected if we are unable
to obtain a high quality, reliable and timely supply of these components and
subassemblies. In addition, any reduction in the precision of these components
will result in sub-standard end products and will cause delays and interruptions
in our production cycle.
We manufacture all of our wafers and devices in our manufacturing
facilities and our joint venture with Uniroyal Technology Corporation plans to
manufacture HB LED wafers and package-ready devices at its facility. Minute
impurities, difficulties in the production process, defects in the layering of
the devices' constituent compounds, wafer breakage or other factors can cause a
substantial percentage of wafers and devices to be rejected or numerous devices
on each wafer to be non-functional. These factors can result in lower than
expected production yields, which would delay product shipments and may
materially and adversely affect our operating results. Because the majority of
our costs of manufacture are relatively fixed, the number of shippable devices
per wafer for a given product is critical to our financial results.
Additionally, because we manufacture all of our products at our facilities in
Somerset, New Jersey and Albuquerque, New Mexico, and our joint venture with
Uniroyal Technology Corporation will manufacture HB LED wafers and package-ready
devices at its sole facility in Tampa, Florida, any interruption in
manufacturing resulting from fire, natural disaster, equipment failures or
otherwise would materially and adversely affect our business, financial
condition and results of operations.
WE FACE LENGTHY SALES AND QUALIFICATIONS CYCLES FOR OUR PRODUCTS AND, IN MANY
CASES, MUST INVEST A SUBSTANTIAL AMOUNT OF TIME AND FUNDS BEFORE WE RECEIVE
ORDERS.
Sales of our TurboDisc systems primarily depend upon the decision of a
prospective customer to increase its manufacturing capacity, which typically
involves a significant capital commitment by the customer. Customers usually
place orders with us on average two to nine months after our initial contact
with them. We often experience delays in obtaining system sales orders while
customers evaluate and receive internal approvals for the purchase of these
systems. These delays may include the time necessary to plan, design or complete
a new or expanded compound semiconductor fabrication facility. Due to these
factors, we expend substantial funds and sales, marketing and management efforts
to sell our compound semiconductor production systems. These expenditures and
efforts may not result in sales.
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In order to expand our materials production capabilities, we have
dedicated a number of our TurboDisc systems to the manufacture of wafers and
devices. Several of our products are currently being tested to determine whether
they meet customer or industry specifications. During this qualification period,
we invest significant resources and dedicate substantial production capacity to
the manufacture of these new products, prior to any commitment to purchase by
the prospective customer and without generating significant revenues from the
qualification process. If we are unable to meet these specifications or do not
receive sufficient orders to profitably use the dedicated production capacity,
our business, financial condition and results of operations would be materially
and adversely affected.
INDUSTRY DEMAND FOR SKILLED EMPLOYEES, PARTICULARLY SCIENTIFIC AND TECHNICAL
PERSONNEL WITH COMPOUND SEMICONDUCTOR EXPERIENCE, EXCEEDS THE NUMBER OF SKILLED
PERSONNEL AVAILABLE.
Our future success depends, in part, on our ability to attract and
retain certain key personnel, including scientific, operational and management
personnel. We anticipate that we will need to hire additional skilled personnel
to continue to expand all areas of our business. The competition for attracting
and retaining these employees, especially scientists, is intense. Because of
this intense competition for these skilled employees, we may be unable to retain
our existing personnel or attract additional qualified employees in the future.
If we are unable to retain our skilled employees and attract additional
qualified employees to keep up with our expansion, our business, financial
condition and results of operations will be materially and adversely affected.
PROTECTING OUR TRADE SECRETS IS CRITICAL TO OUR ABILITY TO EFFECTIVELY COMPETE
FOR BUSINESS.
Our success and competitive position depend on protecting our trade
secrets and other intellectual property. Our strategy is to rely more on trade
secrets than patents to protect our manufacturing and sales processes and
products, but 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, joint venture partners, 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 would materially
and adversely affect our business, financial condition and results of
operations.
Although we currently hold 11 U.S. patents, these patents do not
protect any material aspects of the current or planned commercial versions of
our systems, wafers or devices. We are actively pursuing patents on some of our
recent inventions, but these patents may not be issued. Even if these patents
are issued, they may be challenged, invalidated or circumvented. In addition,
the laws of certain other countries may not protect our intellectual property to
the same extent as U.S. laws.
WE MAY REQUIRE LICENSES TO CONTINUE TO MANUFACTURE AND SELL CERTAIN OF OUR
COMPOUND SEMICONDUCTOR WAFERS AND DEVICES, THE EXPENSE OF WHICH MAY ADVERSELY
AFFECT OUR RESULTS OF OPERATIONS.
We may require licenses from Rockwell International Corporation to
continue to sell our compound semiconductor wafers and devices to current
customers who do not hold licenses from Rockwell International Corporation. In
addition, we may be required to pay royalties for certain of our past sales of
wafers and devices to these customers. If we are required to pay significant
royalties in connection with these sales, our business, financial condition and
results of operations may be materially and adversely affected. The failure to
obtain or maintain these licenses on commercially reasonable terms may
materially and adversely affect our business, financial condition and results of
operations.
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INTERRUPTIONS IN OUR BUSINESS AND A SIGNIFICANT LOSS OF SALES TO ASIA MAY RESULT
IF OUR PRIMARY ASIAN DISTRIBUTOR FAILS TO EFFECTIVELY MARKET AND SERVICE OUR
PRODUCTS.
We rely on a single marketing, distribution and service provider,
Hakuto Co. Ltd. to market and service many of our products in Japan, China and
Singapore. Hakuto is one of our shareholders and Hakuto's president is a member
of our Board of Directors. We have distributorship agreements with Hakuto which
expire in March 2008 and give Hakuto exclusive distribution rights for certain
of our products in Japan. Hakuto's failure to effectively market and service our
products or termination of our relationship with Hakuto would result in
significant delays or interruption in our marketing and service programs in
Asia. This would materially and adversely affect our business, financial
condition and results of operations.
YEAR 2000 PROBLEMS MAY DISRUPT OUR BUSINESS AND THE COSTS TO CORRECT THESE
PROBLEMS MAY BE MATERIAL.
Many currently installed computer systems and software products are
coded to accept or recognize only two digit entries in the date code field.
These systems and software products will need to accept four digit entries to
distinguish 21st century dates from 20th century dates. As a result, computer
systems and/or software used by many companies and governmental agencies may
need to be upgraded to comply with such Year 2000 requirements or risk system
failure or miscalculations causing disruptions of normal business activities.
We have made a preliminary assessment of our Year 2000 readiness. We
are in the process of contacting certain third-party vendors, licensors and
providers of software, hardware and services regarding their Year 2000
readiness. After contacting these vendors and licensors, we will be better able
to make a complete evaluation of Year 2000 readiness, to determine what costs
will be necessary to be Year 2000 compliant and to determine whether contingency
plans need to be developed. We may discover Year 2000 compliance problems in our
TurboDisc systems that will require substantial modifications. In addition, we
may discover that third-party software or hardware incorporated into EMCORE's
TurboDisc systems will need to be revised or replaced, all of which could be
time-consuming and expensive.
Any failure on our part to fix or replace third-party software or
hardware or services on a timely basis could result in lost revenues, increased
operating costs, the loss of customers and other business interruptions.
Moreover, we could be subject to lawsuits which could be costly and
time-consuming to defend. The failure of governmental agencies, utility
companies, third party service providers and others outside of our control to be
Year 2000 compliant could result in systemic failure such as telecommunications
or electrical failure, which could have a material adverse effect on our
business, results of operations and financial condition.
OUR MANAGEMENT'S STOCK OWNERSHIP GIVES THEM THE POWER TO CONTROL BUSINESS
AFFAIRS AND PREVENT A TAKEOVER THAT COULD BE BENEFICIAL TO UNAFFILIATED
SHAREHOLDERS.
Certain members of our management, specifically Thomas J. Russell,
Chairman of our Board, Reuben F. Richards, President, Chief Executive Officer
and a director, and Robert Louis-Dreyfus, a director, are former members of
Jesup & Lamont Merchant Partners, L.L.C. They collectively beneficially own
approximately 34.1% of our common stock immediately prior to this offering and
will continue to own approximately 34.1% of our common stock after the offering.
Accordingly, such persons will continue to hold sufficient voting power to
control our business and affairs for the foreseeable future. This concentration
of ownership may also have the effect of delaying, deferring or preventing a
change in control of our company, which could have a material adverse effect on
our stock price.
UNSUCCESSFUL CONTROL OF THE HAZARDOUS RAW MATERIALS USED IN OUR MANUFACTURING
PROCESS COULD RESULT IN COSTLY REMEDIATION FEES, PENALTIES OR DAMAGES UNDER
ENVIRONMENTAL AND SAFETY REGULATIONS.
The production of wafers and devices involves the use of certain
hazardous raw materials, including, but not limited to, ammonia, phosphine and
arsene. If our control systems are unsuccessful in preventing a release of
8
<PAGE> 12
these materials into the environment or other adverse environmental conditions
occur, we could experience interruptions in our operations and incur
substantial remediation and other costs. Failure to comply with environmental
and health and safety laws and regulations may materially and adversely affect
our business, financial condition and results of operations.
OUR BUSINESS OR OUR STOCK PRICE COULD BE ADVERSELY AFFECTED BY REDEMPTION OF
OUTSTANDING CONVERTIBLE PREFERRED STOCK OR ISSUANCE OF ADDITIONAL PREFERRED
STOCK.
We have 1,030,000 shares of convertible preferred stock issued and
outstanding, all of which are subject to mandatory redemption by us on November
17, 2003. If we do not have the funds available to redeem the convertible
preferred stock at that time, we will need to raise additional funds to finance
this redemption or we will be in default under the terms of the convertible
preferred stock. We may be unable to obtain adequate financing on acceptable
terms, which may adversely affect our business and financial condition.
Our board of directors is authorized to issue up to an additional
4,332,353 shares of preferred stock with 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
additional 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 the
possible sale of the company or the removal of our management more difficult.
The issuance of additional shares of preferred stock could adversely affect the
voting and other rights of the holders of common stock.
CERTAIN PROVISIONS OF NEW JERSEY LAW AND OUR CHARTER MAY MAKE A TAKEOVER OF OUR
COMPANY DIFFICULT EVEN IF SUCH TAKEOVER COULD BE BENEFICIAL TO SOME OF OUR
SHAREHOLDERS.
New Jersey law contains and our certificate of incorporation, as
amended, contains certain provisions that could delay or prevent a takeover
attempt that our shareholders may consider in their best interests. Our board of
directors 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 capital 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 unaffiliated shareholders. Certain of
these measures may be adopted without any further vote or action by our
shareholders.
FUTURE SALES BY EXISTING SHAREHOLDERS COULD DEPRESS THE MARKET PRICE OF OUR
COMMON STOCK AND MAKE IT MORE DIFFICULT FOR US TO SELL STOCK IN THE FUTURE.
After this registration statement becomes effective, the shares
registered hereunder will be eligible for resale in the market without
restriction. Sales of any substantial number of shares of our common stock in
the public market may have an adverse effect on the market price of our common
stock. The average daily trading volume of our common stock has been very low.
Any sustained sales of shares by our existing or future shareholders or any
increase in the average volume of shares traded in the public market may
adversely affect the market price of our common stock. These sales also might
make it more difficult for us to sell equity or equity-related securities in the
future at a time and price that we deem appropriate. This shelf registration
will remain effective until November 17, 2003 or such earlier time as all of the
shares of our convertible preferred stock and the common stock issued upon
conversion thereof are no longer restricted under Rule 144.
9
<PAGE> 13
USE OF PROCEEDS
The selling shareholders will receive all of the proceeds from the sale
of the common stock offered with this prospectus. We will not receive any of the
proceeds from the sale of common stock with this prospectus, but if the warrant
holders choose to exercise their warrants we will receive $4.08 for each share
issued upon exercise of the warrants.
SELLING SHAREHOLDERS
The following table sets forth the names of the selling shareholders,
the number of shares of EMCORE common stock owned by each of them as of the date
of this prospectus and the number of shares of EMCORE common stock which may be
offered pursuant to this prospectus. The shares of EMCORE common stock that may
be offered pursuant to this prospectus will be offered by the selling
shareholders, which includes their transferees, pledgees, distributees or donees
or their successors. The selling shareholders may offer all, some or none of
their shares of EMCORE common stock. In the footnotes to this table, we have
described any position, office or other material relationship that a selling
shareholder has had with us in the past three years. The following table assumes
that the selling shareholders sell all of their shares. We are unable to
determine the exact number of shares that actually will be sold.
<TABLE>
<CAPTION>
SHARES
SHARES SHARES SHARES WHICH SHARES
BENEFICIALLY ISSUABLE ISSUABLE MAY BE BENEFICIALLY
OWNED PRIOR TO UPON UPON SOLD OWNED AFTER
THE OFFERING(1) EXERCISE EXERCISE PURSUANT THE OFFERING
----------------- OF OF TO THIS ---------------
NAME OF BENEFICIAL OWNER NUMBER PERCENT OPTIONS WARRANTS PROSPECTUS NUMBER PERCENT
------ ------- -------- -------- ---------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C>
AMP, Inc. 184,951 1.4% -- -- 184,951 -- *
Ms. Monika Assante(2) 1,398 * -- 250 250 1,398 *
Mr. Calvin Beckham(3) 1,325 * 735 187 187 1,325 *
Mr. Clinton W. Bybee 26,586 0.2% -- -- 26,586 -- *
Mr. Alfred Copeland, Jr 38,850 0.3% -- -- 38,850 -- *
Arch Venture Fund II, L.P.(4) 303,005 2.3% -- -- 303,005 -- *
Mr. Howard F. Curd 261,818 2.0% -- -- 138,742 123,076 0.9%
Mr. Howard R. Curd 286,818 2.1% -- -- 138,742 148,076 1.1%
Mr. Paul Fabiano(5) 30,250 0.2% 23,642 14,806 14,806 30,250 0.2%
Mr. Charles Fall 1,960 * -- 6,745 6,745 1,960 *
General Electric(6) 340,984 2.6% -- 282,010 340,984 -- *
Hakuto Ltd.(7) 706,653 5.3% -- -- 264,286 442,367 3.3%
Mr. Gary Hering(8) 1,088 * 735 1,165 1,165 1,088 *
Mr. David Hess(9) 3,588 * 12,024 1,165 1,165 3,588 *
Mr. & Mrs. Lee Kreindler 50,000 0.4% -- 13,081 63,081 -- *
Mr. Phillip Lint 11,900 * -- -- 5,075 6,825 *
Maxwell Family c/o Charles Maxwell -- * -- 32,000 10,000 -- *
Mr. Mark McKee(10) 3,088 * 3,529 1,165 1,165 3,088 *
Mr. Keng Moy (11) 3,088 * 5,422 1,165 1,165 3,088 *
Mr. William B. Patton, Jr.(12) 91,567 0.7% -- -- 91,567 -- *
Falcon Technology Partners 23,118 0.2% -- 23,118 -- *
Mr. Leo Reubelt 971 * 194 1,165 -- *
Dr. Norman E. Schumaker(13) 15,116 0.1% 90,000 90,000 15,116 0.1%
Mr. James Sherman(14) -- * 1,165 1,165 -- *
Mr. Dennis Stucky(15) 2,471 * 2,206 932 932 2,471 *
Union Miniere, Inc.(16) 392,857 2.9% -- 392,857 -- *
Uniroyal Technology Corp.(17) 372,857 2.8% -- 372,857 -- *
Mr. John Woodlief 126 * -- 126 -- *
Mr. Peter Zawadzki(18) 6,624 * 11,493 -- 6,624 -- *
--------- ---- ------- ------- --------- ------- ---
TOTAL: 3,163,057 23.7% 59,806 446,030 2,521,361 783,716 5.9%
========= ==== ======= ======= ========= ======= ===
</TABLE>
* Less than 0.1% of the Company's outstanding Common Stock.
(1) The number and percentage of shares beneficially owned was determined
in accordance with Rule 13d-3 of the Exchange Act, and the information
is not necessarily indicative of beneficial ownership for any
10
<PAGE> 14
other purpose. Under Rule 13d-3, beneficial ownership includes any
shares as to which the individual has sole or shared voting power or
investment power and also any shares which the individual has the
right to acquire within 60 days of the date of this Prospectus through
the exercise of any stock option or other right. Unless otherwise
indicated in the footnotes, each person has sole voting and investment
power (or shares such powers with his or her spouse) with respect
to the shares shown as beneficially owned.
(2) Ms. Assante is an employee of the Company.
(3) Mr. Beckham is an employee of the Company.
(4) ARCH Venture Fund II, L.P. may distribute shares of EMCORE common stock
to its limited partners and such distributees shall be deemed "selling
shareholders" for purposes of this prospectus. See the Plan of
Distribution set forth below.
(5) Mr. Fabiano is an employee of the Company.
(6) Represents the shares issuable upon conversion of the subordinated
promissory note in the principal amount of $7,800,000.
(7) Includes 264,286 shares of convertible preferred stock. Hakuto's
President and CEO, Shigeo Takayama, is a director of the Company and is
also a shareholder of Hakuto.
(8) Mr. Herring is an employee of the Company.
(9) Mr. Hess is an employee of the Company.
(10) Mr. McKee is an employee of the Company.
(11) Mr. Moy is an employee of the Company.
(12) Includes 2,227 shares of restricted stock held by Becky J. Patton.
(13) Includes 5,236 shares of registered stock held by Regine M. Schumaker,
2,618 shares of registered stock held by The Phillip Schumaker Trust
and 2,618 shares of registered stock held by The Matthew Schumaker
Trust.
(14) Mr. Sherman is an employee of the Company.
(15) Mr. Stucky is an employee of the Company.
(16) Includes 392,857 shares of convertible preferred stock.
(17) Includes 372,857 shares of convertible preferred stock.
(18) Mr. Zawadzki is an employee of the Company.
PLAN OF DISTRIBUTION
EMCORE is registering the shares offered by the selling shareholders
hereunder pursuant to covenants and contractual registration rights contained in
the Registration Rights Agreement, dated as of May 1, 1996, between the Company
and the investors named therein relating to a private placement, the
Registration Rights Agreement, dated as of December 5, 1997, by and among the
Company and the holders named therein relating to the acquisition of
MicroOptical Devices, Inc., the Registration Rights Agreement, dated November
30, 1998 by and between the Company, Hakuto, UMI and UTC relating to the
purchase of Series I Redeemable Convertible Preferred Stock, and the
Registration Rights Agreement, dated as of May 26, 1999, by and between the
Company and GE Capital Equity Investments, Inc., relating to the joint venture
with General Electric Lighting (collectively, the "Registration Rights
Agreements"). The selling shareholders may sell all, some or none of the shares
of EMCORE common stock offered by this prospectus from time to time directly to
purchasers in one or more transactions. The selling shareholders will act
independently of us in making decisions with respect to the timing, manner and
size of each sale. Sales may be made on the Nasdaq National Market or in private
transactions or in a combination of such methods of sale. Such transactions may
be at a fixed price, which may be changed, or at varying prices determined at
the time of sale or at negotiated prices. Such prices will be determined by the
holders of such securities or by agreement between such holders and underwriters
or dealers who may receive fees of commissions in connection therewith.
Any of the selling shareholders may from time to time offer shares of
EMCORE common stock beneficially owned by them through underwriters, dealers or
agents, who may receive compensation in the form of underwriting discounts,
commissions or concessions from the selling shareholders and the purchasers of
the shares for whom they may act as agent. Each selling shareholder will be
responsible for payment of commissions, concessions and discounts of
underwriters, dealers or agents. The aggregate proceeds to the selling
shareholders from the sale of the shares of EMCORE common stock offered by them
will be the purchase price of such shares
11
<PAGE> 15
less discounts and commissions, if any. Each of the selling shareholders
reserves the right to accept and, together with their agents from time to time
to reject, in whole or in part, any proposed purchase of shares to be made
directly or through agents. EMCORE will not receive any of the proceeds from
this offering. Alternatively, the selling shareholders may sell all or a
portion of the shares of EMCORE common stock beneficially owned by them and
offered hereby from time to time on any exchange on which the securities are
listed on terms to be determined at the times of such sales. The selling
shareholders may also make private sales directly or through a broker or
brokers. Transactions through broker-dealers may, including block trades in
which brokers or dealers will attempt to sell the shares of EMCORE common stock
as agent but may position and resell the block as principal to facilitate the
transaction, or one or more underwritten offerings on a firm commitment or best
effort basis.
From time to time, the selling shareholders may transfer, pledge,
distribute, donate or assign shares of EMCORE common stock to lenders or others
and each of such persons will be deemed to be a "selling shareholder" for
purposes of the prospectus. The number of the selling shareholders' shares
beneficially owned by a selling shareholder who transfers, pledges, distributes
donates or assigns shares of EMCORE common stock will decrease as and when they
take such actions. The plan of distribution for selling shareholders' shares
sold hereunder will otherwise remain unchanged, except that the transferees,
pledgees, distributees, donees or other successors will be selling shareholders
hereunder.
A selling shareholder may enter into hedging transactions with
broker-dealers, and the broker-dealers may engage in short sales of the shares
of EMCORE common stock in the course of hedging the positions they assume with
such selling shareholder, including, without limitation, in connection with
distribution of the shares of EMCORE common stock by such broker-dealers. In
addition, the selling shareholder may, from time to time, sell short the shares
of EMCORE common stock, and in such instances, this prospectus may be delivered
in connection with such short sales and the shares offered hereby may be used to
cover such short sales. The selling shareholders may also enter into option or
other transactions with broker-dealers that involve the delivery of the shares
of EMCORE common stock to the broker-dealers, who may then resell or otherwise
transfer such shares. The selling shareholders may also loan or pledge the
shares to a broker-dealer and the broker-dealer may sell the shares as loaned or
upon a default may sell or otherwise transfer the pledge shares.
The selling shareholders and any underwriters, dealers or agents that
participate in the distribution of the shares of EMCORE common stock offered
hereby may be deemed to be underwriters within the meaning of the Securities Act
of 1933 (the "Securities Act"), and any discounts, commissions or concessions
received by them and any provided pursuant to the sale of shares by them might
be deemed to be underwriting discounts and commissions under the Securities Act.
In addition, any securities covered by this prospectus which qualify
for sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144
rather than pursuant to this prospectus. There is no assurance that any selling
shareholder will sell any or all of the shares of EMCORE common stock described
herein, and any selling shareholder may transfer, devise or gift such securities
by other means not described herein.
In order to comply with the securities laws of certain states, if
applicable, the shares may only be sold in such jurisdictions through registered
or licensed brokers or dealers. In addition, in certain states the shares may
not be sold unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The selling shareholders may be subject to the anti-manipulation rules
of Regulation M under the Securities Exchange Act of 1934 which apply to sales
of shares in the market and to the activities of the selling security holders
and their affiliates. We will make copies of this prospectus, with any
supplements or amendments, available to the selling shareholders for delivery to
purchasers at or prior to the time of any sale of the shares offered herewith.
The selling shareholders may indemnify any broker-dealer that participates in
transactions involving the sale of the shares against liabilities resulting
therefrom. Among these liabilities for which indemnification may be provided are
those arising under the Securities Act of 1933.
Pursuant to Registration Rights Agreements, we have agreed to indemnify
the selling shareholders against certain liabilities, including certain
liabilities under the Securities Act of 1933. We have also agreed to pay the
12
<PAGE> 16
expenses of registering all of the shares of common stock offered hereby under
the Securities Act of 1933, including all registration, filing and exchange
listing fees, blue sky expenses, fees of counsel and accountants, fees of the
NASD, transfer taxes, if any, transfer agent fees and underwriters' fees
customarily paid by issuers (excluding underwriting discounts and commissions).
Such expenses are estimated to be $27,347. The Registration Rights Agreements
require us to maintain the effectiveness of the registration statement, as
amended or supplemented from time to time, relating to this prospectus until the
earlier of:
- The date on which all of the shares offered by this prospectus
are resold by the selling security
holders;
- The date on which all of the shares of our convertible
preferred stock and the common stock issued upon conversion
thereof offered by this prospectus are no longer restricted
under Rule 144 are resold by the selling security holders; and
- November 17, 2003.
We intend to de-register the shares covered by this prospectus that are
not sold by the selling security holders within the above time frame.
LEGAL MATTERS
The validity of the common stock offered hereby will be passed upon for
EMCORE by Howard W. Brodie, Esq., Vice President and General Counsel, who may
rely upon Dillon, Bitar & Luther, New Jersey counsel for EMCORE as to matters of
New Jersey law. As of September 24, 1999, Mr. Brodie held options to purchase an
aggregate of 50,000 shares of Common Stock.
EXPERTS
The consolidated financial statements of EMCORE as of September 30,
1998 and for the year then ended have been incorporated by reference in this
prospectus from our Annual Report on Form 10-K/A for the year ended September
30, 1998 and have been audited by Deloitte & Touche LLP, independent auditors,
as stated in their report dated May 14, 1999 (which report expresses an
unqualified opinion and includes an explanatory paragraph regarding a
restatement relating to in-process research and development expense), which is
also incorporated by reference herein, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in accounting
and auditing.
The financial statements incorporated in this prospectus by reference
to the Annual Report on Form 10-K for the two years ended September 30, 1997
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The statements of operations, stockholders' equity and cash flows and
the related footnote information of MicroOptical Devices, Inc. for the year
ended December 31, 1996 incorporated by reference in this prospectus, have been
audited by Arthur Andersen LLP, independent public accountants, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in giving said reports. EMCORE has agreed to indemnify and hold harmless
Arthur Andersen LLP and its personnel for any costs and expenses including
attorneys' fees incurred by Arthur Andersen LLP in successful defense of a legal
action or proceeding that arises as a result of Arthur Andersen LLP's consent to
the inclusion of its audit report on MODE's past financial statements in this
registration statement. A successful defense in this context would be one in
which Arthur Andersen LLP is neither decreed to have been culpable nor pays any
part of MODE's or EMCORE's damages as a result of judgement or settlement.
The statements in this Prospectus set forth under the captions "Risk
Factors -- Our ability to protect our trade secrets is crucial to our business."
and "-- We may require licenses to continue to manufacture and sell certain of
our compound semiconductor wafers and devices." have been reviewed and approved
by Lerner David Littenberg Krumholz & Mentlik, Westfield, New Jersey, patent
counsel for EMCORE, as experts on such matters,
13
<PAGE> 17
and are included herein in reliance upon such review and approval.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any document in our public
files at the SEC's offices at:
- Judiciary Plaza
450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549
- 500 West Madison Street
Suite 1400
Chicago, Illinois 60606
and
- 7 World Trade Center
Suite 1300
New York, New York 10048.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. Our SEC filings are also available to the public from the SEC's
web site at http://www.sec.gov through the SEC's electronic data gathering
analysis and retrieval system, EDGAR. Our common stock is traded on the Nasdaq
National Market under the symbol "EMKR." Information about us is also available
from the NASD, 1735 K Street, N.W., Washington, D.C. 20006.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring to those documents. The information incorporated by reference is
considered to be part of this prospectus. Later information that we file with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
by us:
1. EMCORE's Annual Report on Form 10-K/A for the fiscal year
ended September 30, 1998;
2. EMCORE's Quarterly Reports on Form 10-Q/A for the period ended
December 31, 1998 and on Form 10-Q for the periods ended March
31, 1999 and June 30, 1999;
3. EMCORE's Current Report on Form 8-K dated May 13, 1999; and
4. The description of the common stock, contained in EMCORE's
Registration Statement on Form 8-A filed pursuant to Section
12 of the Exchange Act and all amendments thereto and reports
filed for the purpose of updating such description.
We will provide to you, without charge, a copy of any and all of the documents
or information referred to above that we have incorporated by reference in this
prospectus (other than exhibits to the documents unless those exhibits are
specifically incorporated by reference into this prospectus). Requests for such
copies should be directed to the following address:
EMCORE Corporation
394 Elizabeth Avenue
Somerset, New Jersey
Attn: Chief Financial Officer
Telephone (732) 271-9090.
This prospectus is part of a registration statement that we filed with
the SEC. You should rely only on the
14
<PAGE> 18
information incorporated by reference or provided in this prospectus or any
supplement. We have not authorized anyone else to provide you with different
information. You should not assume that the information in this prospectus or
any supplement is accurate as of any date other than the date on the front of
that document.
15
<PAGE> 19
- - We have not authorized anyone to give you any information that differs
from the information in this prospectus. If you receive any different
information, you should not rely on it.
- - The delivery of this prospectus shall not, under any circumstances,
create an implication that EMCORE Corporation is operating under the
same conditions that it was operating under when this prospectus was
written. Do not assume that the information contained in this
prospectus is correct at any time past the date indicated.
- - This prospectus does not constitute an offer to sell, or the
solicitation of an offer to buy, any securities other than the
securities to which it relates.
- - This prospectus does not constitute an offer to sell, or the
solicitation of an offer to buy, the securities to which it relates in
any circumstances in which such offer or solicitation is unlawful.
Table of Contents
Page
About This Prospectus ..........................................Inside Cover
The Company .................................................... 1
Risk Factors ................................................... 3
Use Of Proceeds ................................................ 10
Selling Security Holders ....................................... 10
Plan Of Distribution ........................................... 11
Legal Matters .................................................. 13
Experts ........................................................ 13
Where You Can Find More Information ............................ 14
2,521,361 SHARES OF COMMON STOCK
EMCORE
CORPORATION
-----------------------------
PROSPECTUS
-----------------------------
DATED September __, 1999
16
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with
the sale and distribution of the securities being registered, other than
underwriting discounts and commissions. All amounts shown are estimates except
the Securities and Exchange Commission registration.
<TABLE>
<CAPTION>
TO BE PAID
BY THE
REGISTRANT
<S> <C>
Securities and Exchange Commission registration fee ............ $11,347
Accounting fees and expenses .................................... 5,000
Printing expenses ............................................... 2,000
Legal fees and expenses ......................................... 6,000
Other expenses .................................................. 3,000
-------
Total ........................................................... $27,347
=======
</TABLE>
* to be provided
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
EMCORE's Restated 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."
II-1
<PAGE> 21
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 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
corporation 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
indemnification 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
II-2
<PAGE> 22
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
otherwise 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
(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
undertaking 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 corporate 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 determination 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
II-3
<PAGE> 23
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 corporate 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 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 insurance 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 16. EXHIBITS
The following exhibits are filed with this Registration Statement:
EXHIBIT NO. DESCRIPTION
4.1 -- Certificate of Amendment to the Certificate of
Incorporation, dated November 19, 1998
(incorporated by reference to Exhibit 3.3 to
the registrant's annual report on Form 10-K for
the fiscal year ended September 30, 1998 (the
"1998 10-K"))
4.2 -- 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).
4.3 -- Form of $4.08 Warrant (incorporated by
reference to Exhibit 10.10 to Amendment No. 1
to the Registration Statement on Form S-1 (File
No. 333-18565) filed with the Commission on
February 6, 1997).
4.4 -- Form of $10.20 Warrant (incorporated by
reference to Exhibit 10.12 to Amendment No. 1
to the Registration Statement on Form S-1 (File
No. 333-18565) filed with the Commission on
February 6, 1997).
II-4
<PAGE> 24
4.5 -- Form of $11.375 Warrant (incorporated by
reference to Exhibit 4.2 to the 1998 10-K).
4.6 -- Registration Rights Agreement relating to
September 1996 warrant issuance (incorporated
by reference to Exhibit 10.6 to Amendment No.
1 to the Registration Statement on Form S-1
(File No. 333-18565) filed with the Commission
on February 6, 1997).
4.7 -- Registration Rights Agreement relating to
December 1996 warrant issuance (incorporated by
reference to Exhibit 10.7 to Amendment No. 1 to
the Registration Statement on Form S-1 (File
No. 333-18565) filed with the Commission on
February 6, 1997).
4.8 -- Purchase Agreement, dated November 30, 1998, by
and between the Company, Hakuto UMI and UTC
(incorporated by reference to Exhibit 10.15 to
the 1998 10-K).
4.9 -- Registration Rights Agreement, dated November
30, 1998 by and between the Company, Hakuto,
UMI and UTC (incorporated by reference to
Exhibit 10.16 to the 1998 10-K).
4.10 -- Agreement and Plan of Merger, dated as of
December 5, 1997, among the Company, the Merger
Subsidiary, MODE and the Principal Shareholders
named therein (incorporated by reference to
Exhibit 2 to the Company's report on Form 8-K
filed with the Commission on December 22,
1997).
4.11 -- Note Purchase Agreement, dated as of May 26,
1999, by and between EMCORE Corporation and GE
Capital Equity Investments, Inc (incorporated
by reference to Exhibit 10.18 to Amendment No.
2 to the Registration Statement on Form S-3
(File No. 333-71791) filed with the Commission
on June 9, 1999).
4.12 -- Registration Rights Agreement, dated as of May
26, 1999, by and between EMCORE Corporation and
GE Capital Equity Investments, Inc.
(incorporated by reference to Exhibit 10.19 to
Amendment No. 2 to the Registration Statement
on Form S-3 (File No. 333-71791) filed with the
Commission on June 9, 1999).
4.13 -- $22.875 Warrant issued to General Electric
Company(incorporated by reference to Exhibit
10.20 to Amendment No. 2 to the Registration
Statement on Form S-3 (File No. 333-71791)
filed with the Commission on June 9, 1999).
5.1 -- Opinion of Howard W. Brodie, Esq..*
23.1 -- Consent of Deloitte & Touche LLP.*
23.2 -- Consent of PricewaterhouseCoopers LLP.*
23.3 -- Consent of Arthur Andersen LLP.*
23.4 -- Consent of Howard W. Brodie, Esq. (included in
Exhibit 5.1).*
II-5
<PAGE> 25
23.5 -- Consent of Lerner David Littenberg Krumholz &
Mentlik.*
24 -- Power of Attorney (included in signature page
of this Registration Statement).
* Filed herewith
ITEM 17. UNDERTAKINGS
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:
(a) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(b) 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the registration statement;
(c) 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 (1)(a) and
(1)(b) do not apply if the registration statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") that are incorporated by reference in the
registration statement.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
(4) 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 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.
(5) That, for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(6) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to provisions described in Item 15 or otherwise,
II-6
<PAGE> 26
the registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed
by the final adjudication of such issue.
II-7
<PAGE> 27
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Township of Somerset, State of
New Jersey, on September 24, 1999.
EMCORE CORPORATION
By /s/ REUBEN F. RICHARDS, JR.
-----------------------------
Reuben F. Richards, Jr.
President and Chief Executive
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
capacities, 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 that are filed pursuant to Rule 462(b) of the Securities Act, 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.
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-3 has been signed by the following persons in the capacities
indicated, on September 24, 1999.
SIGNATURE TITLE
/s/ THOMAS J. RUSSELL Chairman of the Board and Director
- --------------------------------
Thomas J. Russell
/s/ REUBEN F. RICHARDS, JR. President, Chief Executive Officer and
- -------------------------------- Director (Principal Executive Officer)
Reuben F. Richards, Jr.
/s/ THOMAS G. WERTHAN Vice President, Chief Financial
- -------------------------------- Officer, Secretary and Director
Thomas G. Werthan (Principal Accounting and Financial
Officer)
/s/ RICHARD A. STALL Director
- --------------------------------
Richard A. Stall
II-8
<PAGE> 28
/s/ CHARLES SCOTT Director
- --------------------------------
Charles Scott
/s/ ROBERT LOUIS-DREYFUS Director
- --------------------------------
Robert Louis-Dreyfus
/s/ HUGH H. FENWICK Director
- --------------------------------
Hugh H. Fenwick
/s/ SHIGEO TAKAYAMA Director
- --------------------------------
Shigeo Takayama
/s/ JOHN J. HOGAN, JR. Director
- --------------------------------
John J. Hogan, Jr.
*By: /s/ THOMAS G. WERTHAN
- --------------------------------
Thomas G. Werthan
Attorney-in-Fact
II-9
<PAGE> 29
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 -- Certificate of Amendment to the Certificate of
Incorporation, dated November 19, 1998
(incorporated by reference to Exhibit 3.3 to
the registrant's annual report on Form 10-K for
the fiscal year ended September 30, 1998 (the
"1998 10-K"))
4.2 -- 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).
4.3 -- Form of $4.08 Warrant (incorporated by
reference to Exhibit 10.10 to Amendment No. 1
to the Registration Statement on Form S-1 (File
No. 333-18565) filed with the Commission on
February 6, 1997).
4.4 -- Form of $10.20 Warrant (incorporated by
reference to Exhibit 10.12 to Amendment No. 1
to the Registration Statement on Form S-1 (File
No. 333-18565) filed with the Commission on
February 6, 1997).
4.5 -- Form of $11.375 Warrant (incorporated by
reference to Exhibit 4.2 to the 1998 10-K).
4.6 -- Registration Rights Agreement relating to
September 1996 warrant issuance (incorporated
by reference to Exhibit 10.6 to Amendment No. 1
to the Registration Statement on Form S-1 (File
No. 333-18565) filed with the Commission on
February 6, 1997).
4.7 -- Registration Rights Agreement relating to
December 1996 warrant issuance (incorporated by
reference to Exhibit 10.7 to Amendment No. 1 to
the Registration Statement on Form S-1 (File
No. 333-18565) filed with the Commission on
February 6, 1997).
4.8 -- Purchase Agreement, dated November 30, 1998, by
and between the Company, Hakuto UMI and UTC
(incorporated by reference to Exhibit 10.15 to
the 1998 10-K).
4.9 -- Registration Rights Agreement, dated November
30, 1998 by and between the Company, Hakuto,
UMI and UTC (incorporated by reference to
Exhibit 10.16 to the 1998 10-K).
4.10 -- Agreement and Plan of Merger, dated as of
December 5, 1997, among the Company, the Merger
Subsidiary, MODE and the Principal Shareholders
named therein (incorporated by reference to
Exhibit 2 to the Company's report on Form 8-K
filed with the Commission on December 22,
1997).
4.11 -- Note Purchase Agreement, dated as of May 26,
1999, by and between EMCORE Corporation and GE
Capital Equity Investments, Inc (incorporated
by reference to Exhibit 10.18 to Amendment No.
2 to the Registration Statement on Form S-3
(File No. 333-71791) filed with the
Commission on June 9, 1999).
II-10
<PAGE> 30
EXHIBIT NO. DESCRIPTION
4.12 -- Registration Rights Agreement, dated as of May
26, 1999, by and between EMCORE Corporation and
GE Capital Equity Investments, Inc.
(incorporated by reference to Exhibit 10.19 to
Amendment No. 2 to the Registration Statement
on Form S-3 (File No. 333-71791) filed with the
Commission on June 9, 1999).
4.13 -- $22.875 Warrant issued to General Electric
Company(incorporated by reference to Exhibit
10.20 to Amendment No. 2 to the Registration
Statement on Form S-3 (File No. 333-71791)
filed with the Commission on June 9, 1999).
5.1 -- Opinion of Howard W. Brodie, Esq.*
23.1 -- Consent of Deloitte & Touche LLP.*
23.2 -- Consent of PricewaterhouseCoopers LLP.*
23.3 -- Consent of Arthur Andersen LLP.*
23.4 -- Consent of Howard W. Brodie, Esq. (included in
Exhibit 5.1).*
23.5 -- Consent of Lerner David Littenberg Krumholz &
Mentlik.*
24 -- Power of Attorney (included in signature page
of this Registration Statement).
- ----------
* Filed herewith
II-11
<PAGE> 1
Exhibit 5.1
September 24, 1999
EMCORE Corporation
394 Elizabeth Avenue
Somerset, NJ 08873
Re: EMCORE Corporation
Registration Statement on Form S-3
For 2,521,361 Shares of Common Stock
Ladies and Gentlemen:
I am Vice President and General Counsel of EMCORE Corporation, a New
Jersey corporation (the "Company"). In that capacity, I have participated in the
preparation of, and I am familiar with the contents of the above-referenced
registration statement (the "Registration Statement"), which is concurrently
being filed with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Act"). The Registration Statement relates to 2,521,361
shares of the Company's Common Stock, consisting of (i) 1,030,000 shares of the
Company's Common Stock issuable upon the conversion of the Series I Redeemable
Convertible Preferred Stock (the "Preferred Shares"), (ii) 340,984 shares of the
Company's Common Stock issuable upon conversion of an outstanding subordinated
promissory note in the principal amount of $7,800,000 dated as of May 26, 1999
(the "Note Shares"), (iii) 141,255 shares of the Company's Common Stock issuable
upon the exercise of outstanding warrants (the "Warrant Shares"), (iv) 629,227
shares of the Company's Common Stock issued in connection with the acquisition
of MicroOptical Devices, Inc. (the "MODE Shares") and (v) 379,895 shares of the
Company's Common Stock which were previously issued upon the exercise of
outstanding warrants (the "Restricted Shares"). The holders of these securities
are the "Selling Shareholders" as identified in the Prospectus.
This opinion is being furnished in accordance with the requirements of
Item 16 of Form S-3 and Item 601(b)(5)(i) of Regulation S-K.
I am familiar with the corporate proceedings of the Company relating to
the authorization of issuance and sale of the Preferred Shares, the Note Shares,
the Warrant Shares, the MODE Shares and the Restricted Shares. I have examined
such certificates of public officials and certificates of officers of the
Company and selling shareholders, and the originals (or copies thereof,
certified to my satisfaction) of such corporate documents and records of the
Company, and such other documents, records and papers as I have deemed relevant
in order to give the opinions hereinafter set forth. In this connection, I have
assumed the genuineness of signatures, the authenticity of all documents
submitted to me as originals and the conformity to authentic original documents
of all documents submitted to me as certified, conformed, facsimile or
photostatic copies. In addition, I have relied, to the extent that I deem such
reliance proper, upon such certificates of public
<PAGE> 2
officials and officers of the Company with respect to the accuracy of material
factual matters contained therein which were not independently established.
I do not express or purport to express any opinions with respect to laws
other than the Federal laws of the United States. As to all matters governed by
the laws of the State of New Jersey involved in my opinions set forth below, I
have relied, with your consent, upon an opinion of Dillon Bitar & Luther dated
today and addressed to me.
Based upon the foregoing, I am of the opinion that:
1. The Preferred Shares have been duly and validly authorized and when
issued following due conversion of the Series I Redeemable
Convertible Preferred Stock and sold by the Selling Shareholders as
contemplated in the Registration Statement and any amendments and
prospectus supplements thereto, will be validly issued, fully paid
and non-assessable.
2. The Note Shares have been duly and validly authorized and when
issued following due conversion of the subordinated promissory note
and sold by the Selling Shareholders as contemplated in the
Registration Statement and any amendments and prospectus
supplements thereto, will be validly issued, fully paid and
non-assessable.
3. The Warrant Shares have been duly and validly authorized and, when
issued and paid for in accordance with the terms of the warrants
and sold by the Selling Shareholders as contemplated in the
Registration Statement and any amendments and prospectus
supplements thereto, will be validly issued, fully paid and
non-assessable.
4. The MODE Shares have been duly and validly authorized, and when
sold by the Selling Shareholders as contemplated in the
Registration Statement and any amendments and prospectus
supplements thereto, will be validly issued, fully paid and
non-assessable.
5. The Restricted Shares have been duly and validly authorized, and
when sold by the Selling Shareholders as contemplated in the
Registration Statement and any amendments and prospectus
supplements thereto, will be validly issued, fully paid and
non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name under the caption "Legal
Matters" in the Prospectus forming a part of the Registration Statement.
Very truly yours,
/s/ Howard W. Brodie
----------------------------------
Howard W. Brodie
Vice President and General Counsel
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
EMCORE Corporation on Form S-3 of our report dated May 14, 1999 (which expresses
an unqualified opinion and includes an explanatory paragraph related to a
restatement described in Note 20), included in the Annual Report on Form 10-K/A
of EMCORE Corporation for the year ended September 30, 1998, and to the
reference to us under the heading "Experts" in the Prospectus which is part of
this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Parsippany, New Jersey
September 23, 1999
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference, in this registration
statement on Form S-3 of our report dated November 3, 1997, except for Note 15,
as to which the date is December 5, 1997, relating to the financial statements
and financial statement schedule, which appears in EMCORE Corporation's Annual
Report on Form 10-K for the two years ended September 30, 1997. We also consent
to the references to our firm under the caption "Experts".
/s/ PricewaterhouseCoopers LLP
Florham Park, New Jersey
September 23, 1999
<PAGE> 1
EXHIBIT 23.3
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the use of our report
(and to all references to our Firm) dated March 21, 1997 on the statements of
operations, stockholders' equity and cash flows and the related footnote
information of MicroOptical Devices, Inc. for the year ended December 31, 1996,
incorporated by reference in this registration statement under Form S-3 for
EMCORE Corporation.
/s/ ARTHUR ANDERSEN LLP
Albuquerque, New Mexico
September 23, 1999
<PAGE> 1
EXHIBIT 23.5
Consent of Lerner, David, Littenberg, Krumholz & Mentlik, LLP
We hereby consent to the reference to our firm under the caption
"Experts" in the Registration Statement on Form S-3 of EMCORE Corporation for
the offering of shares of common stock by the selling shareholders.
/s/ Lerner, David, Littenberg, Krumholz & Mentlik, LLP
September 24, 1999
Westfield, New Jersey
