<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 18, 2000
REGISTRATION NO. 333-27507
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-8/A
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EMCORE CORPORATION
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEW JERSEY 22-2746503
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(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
394 ELIZABETH AVENUE, SOMERSET, NEW JERSEY 08873
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
EMCORE CORPORATION
1995 INCENTIVE AND NON-STATUTORY OPTION PLAN
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(FULL TITLE OF THE PLAN)
THOMAS G. WERTHAN
EMCORE CORPORATION
394 ELIZABETH AVENUE
SOMERSET, NEW JERSEY 08873
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(NAME AND ADDRESS OF AGENT FOR SERVICE)
(732) 271-9090
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(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO:
JORGE L. FREELAND, ESQ.
WHITE & CASE LLP
200 SOUTH BISCAYNE BOULEVARD
SUITE 4900
MIAMI, FLORIDA 33131
(305) 371-2700
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED(1)(2) SHARE(3) AGGREGATE OFFERING PRICE(3) REGISTRATION FEE(2)
- ------------------------------ ---------------------- -------------------------- ---------------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, without par
value 725,000 shares $ 85.8125 $ 62,214,062.50 $ 16,424.52
====================================================================================================================================
</TABLE>
(1) Plus an indeterminate number of additional shares of Common Stock that may
be offered and issued pursuant to stock dividends, stock splits or similar
transactions.
(2) This Post-Effective Amendment No. 1 to the Registration Statement (the
"Registration Statement") includes 647,059 shares of Common Stock, in
addition to the shares listed hereunder, which were registered pursuant to
this Registration Statement, No. 333-27507, filed with the Commission on
May 20, 1997, for which a registration fee was previously paid.
(3) Estimated pursuant to Rule 457(h) of the General Rules and Regulations
under the Securities Act of 1933, as amended (the "Securities Act"), for
purposes of computing the registration fee, based on the average of the
high and low sales price on the Nasdaq National Market on May 15, 2000.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
EMCORE Corporation (the "Company" or "EMCORE") hereby incorporates by
reference the following documents:
(a) The Company's latest annual report on Form 10-K filed with the
Commission on December 29, 1999, as amended on January 13, 2000.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end
of the Company's fiscal year 1999.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-3, as amended, as declared effective
by the Commission on February 4, 2000 (Reg. No. 333-94911).
In addition, all documents the Company filed pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
that indicates that all securities offered herein have been sold or that
deregisters all securities then remaining unsold, shall be deemed to be
incorporated herein by reference and to be a part hereof from the respective
date of filing of each such document. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document that also is
incorporated or deemed to be incorporated herein by reference modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. 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.
Section 14A:2-7 of the New Jersey Business Corporation Act provides
that a New Jersey corporation's:
<PAGE> 3
"certificate of incorporation may provide that a director or officer
shall not be personally liable, or shall be liable only to the extent therein
provided, to the corporation or its shareholders for damages for breach of any
duty owed to the corporation or its shareholders, except that such provision
shall not relieve a director or officer from liability for any breach of duty
based upon an act or omission (a) in breach of such person's duty of loyalty to
the corporation or its shareholders, (b) not in good faith or involving a
knowing violation of law or (c) resulting in receipt by such person of an
improper personal benefit. As used in this subsection, an act or omission in
breach of a person's duty of loyalty means an act or omission which that person
knows or believes to be contrary to the best interests of the corporation or its
shareholders in connection with a matter in which he has a material conflict of
interest."
In addition, Section 14A:3-5 (1995) of the New Jersey Business
Corporation Act (1995), entitled "Indemnification of Directors, Officers and
Employees," provides as follows:
(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
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<PAGE> 4
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 for 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 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
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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
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<PAGE> 6
(ii) to the Superior Court in a separate proceeding. If the
application is for indemnification arising out of a civil action, it
shall set forth reasonable cause for the failure to make application
for such relief in the action or proceeding in which the expenses were
or are to be incurred or other amounts were or are to be paid.
The application shall set forth the disposition of any
previous application for indemnification and shall be made in such
manner and form as may be required by the applicable rules of court or,
in the absence thereof, by direction of the court to which it is made.
Such application shall be upon notice to the corporation. The court may
also direct that notice shall be given at the expense of the
corporation to the shareholders and such other persons as it may
designate in such manner as it may require.
(8) The indemnification and advancement of expenses provided
by or granted pursuant to the other subsections of this section shall
not exclude any other rights, including the right to be indemnified
against liabilities and expenses incurred in proceedings by or in the
right of the corporation, to which a 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
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<PAGE> 7
the shareholders, an agreement or other proper corporate action, in
effect at the time of the accrual of the alleged cause of action
asserted in the proceeding, which prohibits, limits or otherwise
conditions the exercise of indemnification powers by the corporation or
the rights of indemnification to which a corporate agent may be
entitled.
(12) This section does not limit a corporation's power to pay
or reimburse expenses incurred by a corporate agent in connection with
the corporate agent's appearance as a witness in a proceeding at a time
when the corporate agent has not been made a party to the proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following is a complete list of exhibits filed as part of this
Registration Statement originally filed with the Commission on May 20, 1997, as
amended on May 18, 2000:
EXHIBIT
NO. DESCRIPTION
- ------- -------------
4.1 Specimen certificate for shares of Common Stock.(1)
4.2 The Company's 1995 Incentive and Non-Statutory Stock Option Plan,
adopted by the Company's Board of Directors and Shareholders on June
23, 1995.(1)
4.3 The Company's 1996 Amendment to the 1995 Incentive and Non-Statutory
Stock Option Plan.(1)
5.1 Opinion of White & Case LLP.(2)
5.2 Opinion of White & Case LLP.(3)
23.1 Consent of White & Case LLP.(4)
23.2 Consent of White & Case LLP.(3)(5)
23.3 Consent of Deloitte & Touche LLP.(3)
24.1 Powers of Attorney.(6)
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(1) Filed as an Exhibit to the Company's Registration Statement on Form S-1,
No. 333-18565, and incorporated by reference to this Registration Statement
on Form S-8, No. 333-27507, filed with the Commission on May 20, 1997.
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<PAGE> 8
(2) Filed as an Exhibit to this Registration Statement on Form
S-8, No. 333-27507, filed with the Commission on May 20, 1997.
(3) Filed herewith.
(4) Included in Exhibit 5.1.
(5) Included in Exhibit 5.2.
(6) Included on the signature page of this Registration Statement
on Form S-8, No. 333-27507 filed with the Commission on May
20, 1997.
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement; and
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
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<PAGE> 9
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Post-Effective
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Somerset, State of New
Jersey, on this 18th day of May, 2000.
EMCORE Corporation
By: /s/ Thomas G. Werthan
------------------------------
Thomas G. Werthan
Vice President, Finance and Administration
and Chief Financial Officer
Pursuant to the requirements of the Securities Act, this Post-Effective
Amendment No. 1 to the Registration Statement on Form S-8 has been signed by the
following persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chairman of the Board of Directors May 18, 2000
- -------------------------------------------
Thomas J. Russell
* President, Chief Executive Officer and May 18, 2000
- ------------------------------------------- Director (Principal Executive Officer)
Reuben F. Richards, Jr.
/s/ Thomas G. Werthan Vice President, Chief Financial Officer, and May 18, 2000
- ------------------------------------------- Director
Thomas G. Werthan (Principal Accounting and Financial Officer)
* May 18, 2000
- ------------------------------------------- Director
Richard A. Stall
/s/ Charles Scott Director May 18, 2000
- -------------------------------------------
Charles Scott
/s/ Robert Louis-Dreyfus Director May 18, 2000
- -------------------------------------------
Robert Louis-Dreyfus
/s/ Hugh H. Fenwick Director May 18, 2000
- -------------------------------------------
Hugh H. Fenwick
/s/ Shigeo Takayama Director May 18, 2000
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Shigeo Takayama
/s/ John J. Hogan, Jr. Director May 18, 2000
- -------------------------------------------
John J. Hogan, Jr.
* By: /s/ Thomas G. Werthan Attorney-in-Fact May 18, 2000
------------------------------------
Thomas G. Werthan
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
- -------- -----------
5.2 Opinion of White & Case LLP.
23.2 Consent of White & Case LLP (included in Exhibit 5.2 to this
Amendment No. 1 to the Registration Statement).
23.3 Consent of Deloitte & Touche LLP.
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<PAGE> 1
EXHIBIT 5.2
White & Case LLP
200 S. Biscayne Boulevard
Suite 4900
Miami, Florida 33131
May 18, 2000
EMCORE Corporation
394 Elizabeth Avenue
Somerset, NJ 08873
Re: EMCORE Corporation
Post Effective Amendment No. 1 to
Registration Statement on Form S-8/A
SEC File No. 333-27507
Ladies and Gentlemen:
You have requested our opinion in connection with the
above-referenced registration statement (the "Registration Statement"), which is
concurrently being filed by EMCORE Corporation, a New Jersey Corporation (the
"Company") with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Act"). The Registration Statement relates to the
registration of an additional 725,000 shares of the Company's common stock (the
"Shares") which may be required pursuant to the terms and provisions of the
EMCORE Corporation 1995 Incentive and Non-Statutory Option Plan (the "Plan").
This opinion is being furnished in accordance with the
requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We are familiar with the corporate proceedings relating to the
authorization of the Shares and have reviewed the corporate proceedings taken
with respect to the approval of the Plan. We have examined and relied on
originals, or copies certified to our satisfaction, of all such corporate
records of the Company and such other instruments and other certificates of
public officials, officers and representatives of the Company and such other
persons, and we have made such investigations of law, as we have deemed
appropriate as a basis for the opinion herein expressed.
We 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 our opinions
set forth below, we have relied, with your consent, upon an opinion of Dillon
Bitar & Luther dated today and addressed to us.
Based upon the foregoing, it is our opinion that the Shares
will, if issued and delivered in accordance with the terms and provisions of the
Plan, be validly issued, fully paid and non assessable.
<PAGE> 2
EXHIBIT 5.2
PAGE 2
We hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement. By giving such consent we do not thereby admit
that we are an "expert" with respect to any part of such Registration Statement
as that term is used in the Securities Act of 1933, as amended, or the rules or
regulations of the Commission issued thereunder.
Very truly yours,
/s/ White & Case LLP
--------------------------------------
<PAGE> 1
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to Registration Statement No. 333-27507 of EMCORE Corporation on Form
S-8/A of our report dated January 10, 2000, appearing in the Annual Report on
Form 10-K/A of EMCORE Corporation for the year ended September 30, 1999.
/s/ Deloitte & Touche LLP
Parsippany, New Jersey
May 18, 2000
