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As filed with the Securities and Exchange Commission on January __, 2000
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. [ ]
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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>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SHARES AMOUNT TO BE AGGREGATE PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) UNIT PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, no
par value 2,000,000 $41.50 $83,000,000 $21,912
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</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 January 12,
2000 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.
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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 January 14, 2000
PROSPECTUS
2,000,000 SHARES
EMCORE CORPORATION
COMMON STOCK
OFFERING BY THE COMPANY
o We have registered up to 2,000,000 shares of our common stock for sale
to the public.
o We may offer the shares through agents that we designate from time to
time or to or through underwriters or dealers. If any agents or
underwriters are involved in the sale of the shares, their names and
any applicable purchase price, fee, commission or discount arrangement
between them will be set forth in a supplement to this prospectus. No
shares may be sold without delivery of the applicable prospectus
supplement.
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INVESTING IN OUR COMMON STOCK INVOLVES RISKS. YOU
SHOULD CAREFULLY CONSIDER THE RISK FACTORS
BEGINNING ON PAGE 3 BEFORE PURCHASING OUR
COMMON STOCK.
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OUR COMMON STOCK
o Our common stock trades on the Nasdaq National Market under the symbol
"EMKR."
o On January 12, 2000, the closing price of our common shares on the
Nasdaq National Market was $41.875 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 JANUARY 14, 2000
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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 Company may, from time to time, sell its shares of common stock, no
par value, 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 an 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 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 September 30, 1999 had an
accumulated deficit of $83.3 million. We incurred net losses of $5.6 million in
fiscal 1997, $36.4 million in fiscal 1998 and $22.7 million in 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 unable to successfully design or manufacture
these new products and may have difficulty penetrating new markets.
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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
General Electric Lighting, Uniroyal Technology Corporation, Union Miniere, Inc.,
and Optek Technology, Inc.). 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, 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.
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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 42.0% of our revenues in fiscal 1997, 39.1% of our revenues in
fiscal 1998 and 52.5% of our revenues in 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.
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. 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 9.7% of our revenues in 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
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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.
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
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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.
To manufacture our wafers and devices we try to the greatest extent
possible to rely on our own technology. Occasionally, we are required to obtain
licenses from third parties to manufacture and sell our products. The royalty
payments for these licenses can be expensive and reduce the profits that we
realize from sale of our products. We may be required to pay royalties to
Rockwell International Corporation for certain of our past sales of wafers and
devices to customers who do not hold licenses from Rockwell International
Corporation. 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.
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.
Even though the date is now past January 1, 2000, and we have not
experienced any immediate adverse impact from the transition to the Year 2000,
we cannot provide assurance that our suppliers and customers have not been
affected in a manner that is not yet apparent. In addition, certain computer
programs which were date sensitive to the Year 2000 may not have been programmed
to process the Year 2000 as a leap year, and any negative consequential effects
remain unknown. As a result, we will continue to monitor our Year 2000
compliance and the Year 2000 compliance of our suppliers and customers.
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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. As of September 30, 1999, they
collectively beneficially own approximately 29.2% of our common stock
immediately prior to this offering and assuming the sale of all of the shares
offered pursuant to this prospectus, will own approximately 27.5% 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 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 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.
On October 6, 1999 a registration statement covering 2,521,361 shares
of our common stock became effective. The shares registered thereunder are
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, including the common stock registered hereunder, in
the future at a time and price that we deem appropriate. The shelf registration
declared effective on
7
<PAGE> 12
October 6, 1999 will remain effective until November 17, 2003 or such earlier
time as all of the shares of our common stock are no longer restricted under
Rule 144.
At present we have a substantial number of shares that are issuable
upon the exercise of outstanding warrants and stock options.
8
<PAGE> 13
USE OF PROCEEDS
We currently intend to use the net proceeds from the sale of our common
stock to fund research and development, capital expenditures, acquisitions,
additional investments in joint ventures, working capital and for other general
corporate purposes. Depending on our circumstances at the time any or all of the
net proceeds from such sales become available, if at all, we reserve the right
to use such net proceeds for purposes other than those set forth above.
PLAN OF DISTRIBUTION
Any of the shares being offered under this prospectus may be sold in
any one or more of the following ways from time to time:
o through agents,
o to or through underwriters,
o through dealers, and
o directly by us to purchasers.
The distribution of the shares may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
Offers to purchase shares may be solicited by agents designated by us
from time to time. Any agent involved in the offer or sale of the shares under
this prospectus will be named, and any commissions payable by us to these agents
will be set forth, in a related prospectus supplement. Unless otherwise
indicated in a prospectus supplement, any agent will be acting on a reasonable
best efforts basis for the period of its appointment. Any agent may be deemed to
be an underwriter, as the term is defined in the Securities Act, of the shares
so offered and sold.
If shares are sold by means of an underwritten offering, we will
execute an underwriting agreement with an underwriter or underwriters at the
time an agreement for such sale is reached, and the names of the specific
managing underwriter or underwriters, as well as any other underwriters, the
respective amounts underwritten and the terms of the transaction, including
commissions, discounts and any other compensation of the underwriters and
dealers, if any, will be set forth in a related prospectus supplement. That
prospectus supplement and this prospectus will be used by the underwriters to
make resales of the shares. If underwriters are used in the sale of any shares
in connection with this prospectus, those shares will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at fixed public offering
prices or at varying prices determined by the underwriters and us at the time of
sale. Shares may be offered to the public either through underwriting syndicates
represented by managing underwriters or directly by one or more underwriters. If
any underwriter or underwriters are used in the sale of shares, unless otherwise
indicated in a related prospectus supplement, the underwriting agreement will
provide that the obligations of the underwriters are subject to some conditions
precedent and that the underwriters with respect to a sale of these shares will
be obligated to purchase all such shares if any are purchased.
We may grant to the underwriters options to purchase additional shares,
to cover over-allotments, if any, at the public offering price, with additional
underwriting commissions or discounts, as may be set forth in a related
prospectus supplement. If we grant any over-allotment option, the terms of that
over-allotment option will be set forth in the prospectus supplement for these
shares.
If a dealer is utilized in the sale of the shares in respect of which
this prospectus is delivered, we will sell
9
<PAGE> 14
these shares to the dealer as principal. The dealer may then resell such shares
to the public at varying prices to be determined by such dealer at the time of
resale. Any such dealer may be deemed to be an underwriter, as such term is
defined in the Securities Act, of the shares so offered and sold. The name of
the dealer and the terms of transaction will be set forth in the prospectus
supplement relating to those offers and sales.
Offers to purchase shares may be solicited directly by us and those
sales may be made by us directly to institutional investors or others, who may
be deemed to be underwriters within the meaning of the Securities Act with
respect to any resale of those shares. The terms of any sales of this type will
be described in the prospectus supplement.
If so indicated in a related prospectus supplement, we may authorize
agents and underwriters to solicit offers by certain institutions to purchase
shares from us at the public offering price set forth in a related prospectus
supplement as part of delayed delivery contracts providing for payment and
delivery on the date or dates stated in a related prospectus supplement. Such
delayed delivery contracts will be subject to only those conditions set forth in
a related prospectus supplement. A commission indicated in a related prospectus
supplement will be paid to underwriters and agents soliciting purchases of
shares pursuant to delayed delivery contracts accepted by us.
Agents, underwriters and dealers may be entitled under relevant
agreements with us to indemnification by us against some liabilities, including
liabilities under the Securities Act, or to contributions with respect to
payments which such agents, underwriters and dealers may be required to make in
respect thereof.
Agents, underwriters and dealers may be customers of, engage in
transactions with, or perform services for, us in the ordinary course of our
business.
DESCRIPTION OF SECURITIES
Our authorized capital stock consists of 50,000,000 shares of common
stock, no par value per share, and 5,882,352 shares of preferred stock, par
value $.0001 per share.
As of January 3, 2000, there were 13,774,631 shares of common stock
outstanding, held of record by approximately 2,713 shareholders. The holders of
common stock are entitled to one vote per share on all matters to be voted upon
by the shareholders. Subject to preferences that may be applicable to any
outstanding preferred stock, the holders of common stock are entitled to receive
ratably dividends, if any, as may be declared from time to time by our board of
directors out of funds legally available. In the event of our liquidation,
dissolution or winding up, the holders of common stock are entitled to share
ratably in assets remaining after payment of liabilities, subject to prior
distribution rights of preferred stock, if any, then outstanding. The common
stock has no preemptive or conversion rights or other subscription rights. There
are no redemption or sinking fund provisions applicable to the common stock. All
outstanding shares of common stock are fully paid and non-assessable, and the
shares of common stock to be issued upon completion of any offering will be
fully paid and non-assessable.
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 29, 1999, Mr. Brodie held options to purchase an
aggregate of 50,000 shares of Common Stock.
EXPERTS
The consolidated financial statements and the related financial
statement schedule incorporated in this prospectus by reference from the
Company's Annual Report on Form 10-K/A for the year ended September 30, 1999,
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and has been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
10
<PAGE> 15
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:
o Judiciary Plaza
450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549
o 500 West Madison Street
Suite 1400
Chicago, Illinois 60606
and
o 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, 1999;
2. 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; and
3. The summary of executive compensation, contained in EMCORE'S
Proxy Statement filed pursuant to Section 14 of the Exchange
Act.
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 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.
11
<PAGE> 16
2,000,000 SHARES OF COMMON STOCK
EMCORE CORPORATION
--------------------------------
PROSPECTUS
--------------------------------
January 14, 2000
o 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.
o 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.
o 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.
o 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
EMCORE Corporation..........................1
Risk Factors................................2
Use Of Proceeds.............................9
Plan Of Distribution....................... 9
Description of Securities..................10
Legal Matters..............................10
Experts....................................10
Where You Can Find More
Information..............................11
12
<PAGE> 17
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 fee.
<TABLE>
<CAPTION>
TO BE PAID
BY THE
REGISTRANT
<S> <C>
Securities and Exchange Commission registration fee ................................... $
Nasdaq Listing Fee...................................................................... 17,500
Accounting fees and expenses ........................................................... 250,000
Printing expenses ...................................................................... 100,000
Legal fees and expenses ................................................................ 100,000
Other expenses ......................................................................... 13,000
---------
Total .................................................................................. $
=========
</TABLE>
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."
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<PAGE> 18
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> 19
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> 20
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:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C> <C> <C>
4.1 -- Restated Certificate of Incorporation, dated March 31, 1999 (incorporated
by reference to Exhibit 3.1 to the registrant's annual report on Form
10-K for the fiscal year ended September 30, 1999).
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).
</TABLE>
II-4
<PAGE> 21
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C> <C> <C>
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 Howard W. Brodie, Esq. (included in Exhibit 5.1).*
24.1 -- Power of Attorney (included in signature page of this Registration
Statement).*
</TABLE>
- ------------------
* Filed herewith
II-5
<PAGE> 22
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, 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
II-6
<PAGE> 23
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.
(7) The undersigned Registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
II-7
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and 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 January 13,
2000.
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 of 1933, this
Registration Statement on Form S-3 has been signed by the following persons in
the capacities indicated, on January 13, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/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, and Director
Thomas G. Werthan (Principal Accounting and Financial
Officer)
/s/ RICHARD A. STALL Director
--------------------------------------------
Richard A. Stall
</TABLE>
II-8
<PAGE> 25
/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> 26
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C> <C> <C>
4.1 -- Restated Certificate of Incorporation, dated March 31, 1999 (incorporated
by reference to Exhibit 3.1 to the registrant's annual report on Form
10-K for the fiscal year ended September 30, 1999).
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
</TABLE>
II-10
<PAGE> 27
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C> <C> <C>
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 Howard W. Brodie, Esq. (included in Exhibit 5.1).*
24.1 -- Power of Attorney (included in signature page of this Registration
Statement).*
</TABLE>
- --------------------
* Filed herewith
II-11
<PAGE> 1
Exhibit 5.1
January 14, 2000
EMCORE Corporation
394 Elizabeth Avenue
Somerset, NJ 08873
Re: EMCORE Corporation
Registration Statement on Form S-3
For 2,000,000 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 2,000,000
shares of the Company's Common Stock (the "Shares") to be issued from time to
time by the Company in one or more underwritten offerings.
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 Shares. I have examined such
certificates of public officials and certificates of officers of the Company,
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 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 the Shares, when sold
in accordance with the Plan of Distribution set forth in the Registration
Statement and any amendments and prospectus supplements thereto will be
validly issued, fully paid and nonassessable.
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 January 10, 2000, included in
the Annual Report on Form 10-K/A of EMCORE Corporation for the year ended
September 30, 1999, and to the reference to us under the heading "Experts" in
the Prospectus, which is part of this Registration Statement.
Deloitte & Touche LLP
Parsippany, New Jersey
January 12, 2000
