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As filed with the Securities and Exchange Commission on July 28, 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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145 BELMONT DRIVE, SOMERSET, NEW JERSEY 08873
(732) 271-9090
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(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
145 BELMONT DRIVE
SOMERSET, NEW JERSEY 08873
(732) 271-9090
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(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. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
TITLE OF SHARES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED(1) AGGREGATE PRICE PER AGGREGATE OFFERING REGISTRATION FEE
UNIT(2) PRICE(2)
<S> <C> <C> <C> <C>
Common Stock,
no par value 208,050 $80.00 $ 16,644,000 $4,395
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
</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 July 20,
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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PROSPECTUS
208,050 SHARES
EMCORE CORPORATION
COMMON STOCK
OFFERING BY THE SELLING SHAREHOLDER
o The selling shareholder is offering for resale up to 208,050 shares of our
common stock.
o We expect that the selling security holder using this prospectus will sell
the shares in ordinary brokers' transactions, transactions directly with
market makers, privately negotiated sales or otherwise.
o We will not receive any of the proceeds from the offering of the shares
with this prospectus. The registration of the shares pursuant to this
prospectus does not necessarily mean that any shares will be offered or
sold.
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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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OFFERING PRICE
o The sale price of the shares offered with this prospectus will be
determined by the selling security holder at the time of sale and may be
based upon the market price of the shares, negotiated prices or by
formula.
OUR COMMON STOCK
o The shares offered with this prospectus will be listed for trading under
the trading symbol "EMKR" on The Nasdaq National Market.
o On July 24, 2000, the closing price of our common shares on the Nasdaq
National Market was $81.438 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 JULY 28, 2000
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed
with the SEC using a "shelf" registration process. Under this shelf registration
process, the selling shareholder may, from time to time, sell its shares of our
common stock, par value $0.01 per share, in one or more offerings. Please
carefully read both this prospectus and any applicable prospectus supplement
together with additional information described under the heading "Where You Can
Find More Information and Incorporation by Reference."
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
information that is different from what is contained in this prospectus. This
prospectus does not constitute any offer to sell or a solicitation of an offer
to buy any securities in any jurisdiction where it is unlawful to do so. You
should not assume that the information contained in this prospectus is accurate
as of any date other than its date, and neither the delivery of this prospectus
nor the sale of securities hereunder shall create any implication to the
contrary.
In this prospectus, the "Company," "EMCORE," "we," "us" and "our" refer
to EMCORE Corporation, and its subsidiaries.
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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 145 Belmont Drive, 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(R) 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 March 31, 2000 had an
accumulated deficit of $94.2 million. We incurred net losses of $5.6 million in
fiscal 1997, $36.4 million in fiscal 1998, $22.7 million in fiscal 1999 and
$10.9 million in the first six months of fiscal 2000. 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(R) 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,
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production and marketing. We may be unable to successfully design or manufacture
these new products and may have difficulty penetrating new markets. In addition,
many of our new products are being incorporated into our customers' new products
for new applications, such as high speed computer networks.
Because it is generally not possible to predict the amount of time
required and the costs involved in achieving certain research, development and
engineering objectives, actual development costs may exceed budgeted amounts and
estimated product development schedules may be extended. Our business, financial
condition and results of operations may be materially and adversely affected if:
- we are unable to improve our existing products on a timely basis;
- our new products are not introduced on a timely basis;
- we incur budget overruns or delays in our research and
development efforts; or
- our new products experience reliability or quality problems.
FLUCTUATIONS IN OUR QUARTERLY OPERATING RESULTS MAY NEGATIVELY IMPACT OUR STOCK
PRICE.
Our revenues and operating results may vary significantly from quarter to
quarter due to a number of factors particular to EMCORE and the compound
semiconductor industry. Not all of these factors are in our control. These
factors include:
- the volume and timing of orders for our products, particularly
TurboDisc(R) systems, which have an average selling price in
excess of $1 million;
- the timing of our announcement and introduction of new products
and of similar announcements by our competitors;
- downturns in the market for our customers' products;
- regional economic conditions, particularly in Asia where we
derive a significant portion of our revenues; and
- price volatility in the compound semiconductor industry.
These factors may cause our operating results for future periods to be
below the expectations of analysts and investors. This may cause a decline in
the price of our common stock.
OUR JOINT VENTURE PARTNERS, WHO HAVE CONTROL OF THESE VENTURES, MAY MAKE
DECISIONS THAT WE DO NOT AGREE WITH AND THAT ADVERSELY AFFECT OUR NET INCOME.
Since December 1997, we have established four joint ventures (with
Optek Technology, Inc., Union Miniere, Inc., Uniroyal Technology Corporation and
General Electric Lighting). Each of our joint ventures involves the creation of
a separate company, and we do not have a majority interest in any of these
entities. Each of these joint ventures is governed by a board of managers with
representatives from both the strategic partner and us. Many fundamental
decisions must be approved by both parties to the joint venture, which means we
will be unable to direct the operation and direction of these joint ventures
without the agreement of our joint venture partners. If we are unable to agree
on important issues with a joint venture partner, the business of that joint
venture may be delayed or interrupted, which may, in turn, materially and
adversely affect our business, financial condition and results of operations.
We have devoted and we will be required to continue to devote
significant funds and technologies to our joint ventures to develop and enhance
their products. In addition, our joint ventures will require that some of our
employees devote much of their time to joint venture projects. This will place a
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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.
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, 52.5% of our revenues in fiscal 1999 and 44% of our revenues in the
first six months of fiscal 2000. Sales to customers in Asia represent the
majority of our international sales. We believe that international sales will
continue to account for a significant percentage of our revenues. Because of
this, the following export risks may disproportionately affect our revenues:
- political and economic instability may inhibit export of our
systems and devices and limit potential customers' access to
dollars;
- shipping and installation costs of our systems may increase;
- we have experienced and may continue to experience difficulties
in the timeliness of collection of foreign accounts receivable
and have been forced to write off receivables from a foreign
customer;
- a strong dollar may make our systems less attractive to foreign
purchasers who may decide to postpone making the capital
expenditure;
- tariffs and other barriers may make our systems and devices less
cost competitive;
- we may have difficulty in staffing and managing our international
operations;
- the laws of certain foreign countries may not adequately protect
our trade secrets and intellectual property; and
- potentially adverse tax consequences to our customers may make
our systems and devices not cost competitive.
WE WILL LOSE SALES IF WE ARE UNABLE TO OBTAIN GOVERNMENT AUTHORIZATION TO EXPORT
OUR PRODUCTS.
Exports of our products to certain destinations, such as the People's
Republic of China, Malaysia and Taiwan, may require pre-shipment authorization
from U.S. export control authorities, including the U.S. Departments of Commerce
and State. Authorization may be conditioned on end-use restrictions. On certain
occasions, we have been denied authorization, particularly with respect to the
People's Republic of China. Failure to receive these authorizations may
materially and adversely affect our revenues and in turn our business, financial
condition and results of operations from international sales. Beginning April
1999, exports of all satellites and associated components require a license from
the Department of State. This may cause delays in shipping solar cells abroad.
Delays in receiving export licenses for solar cells may materially and adversely
affect our revenues and in turn our business, financial condition and results of
operations.
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THE LOSS OF SALES TO GENERAL MOTORS OR OUR OTHER LARGE CUSTOMERS WOULD BE
DIFFICULT TO REPLACE.
We derive a substantial portion of our revenues from a limited number
of customers. General Motors, our main customer for MR sensors, accounting for
approximately 15.1% of our revenues in fiscal 1997, 12.8% of our revenues in
fiscal 1998, 9.7% of our revenues in fiscal 1999 and 5.7% of our revenues in the
first six months of fiscal 2000. General Motors' three month strike in 1998
adversely affected our operating performance because during that time shipments
of sensors to General Motors were halted. In addition to the lost revenues, we
incurred the expense of paying salaries to the part of our workforce dedicated
to producing sensors. If General Motors, or any of our other significant
customers, stops ordering our products, significantly reduces the volume of
these orders, or cancels, delays or reschedules any orders, and we are unable to
replace these orders, our business, financial condition and results of
operations could be materially and adversely affected.
OUR PRODUCTS ARE DIFFICULT TO MANUFACTURE AND SMALL MANUFACTURING DEFECTS CAN
ADVERSELY AFFECT OUR PRODUCTION YIELDS AND OUR OPERATING RESULTS.
The manufacture of our TurboDisc(R) 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(R) 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(R) 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(R) 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
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the manufacture of these new products, prior to any commitment to purchase by
the prospective customer and without generating significant revenues from the
qualification process. If we are unable to meet these specifications or do not
receive sufficient orders to profitably use the dedicated production capacity,
our business, financial condition and results of operations would be materially
and adversely affected.
INDUSTRY DEMAND FOR SKILLED EMPLOYEES, PARTICULARLY SCIENTIFIC AND TECHNICAL
PERSONNEL WITH COMPOUND SEMICONDUCTOR EXPERIENCE, EXCEEDS THE NUMBER OF SKILLED
PERSONNEL AVAILABLE.
Our future success depends, in part, on our ability to attract and
retain certain key personnel, including scientific, operational and management
personnel. We anticipate that we will need to hire additional skilled personnel
to continue to expand all areas of our business. The competition for attracting
and retaining these employees, especially scientists, is intense. Because of
this intense competition for these skilled employees, we may be unable to retain
our existing personnel or attract additional qualified employees in the future.
If we are unable to retain our skilled employees and attract additional
qualified employees to keep up with our expansion, our business, financial
condition and results of operations will be materially and adversely affected.
PROTECTING OUR TRADE SECRETS IS CRITICAL TO OUR ABILITY TO EFFECTIVELY COMPETE
FOR BUSINESS.
Our success and competitive position depend on protecting our trade
secrets and other intellectual property. Our strategy is to rely more on trade
secrets than patents to protect our manufacturing and sales processes and
products, but reliance on trade secrets is only an effective business practice
insofar as trade secrets remain undisclosed and a proprietary product or process
is not reverse engineered or independently developed. We take certain measures
to protect our trade secrets, including executing non-disclosure agreements with
our employees, joint venture partners, customers and suppliers. If parties
breach these agreements or the measures we take are not properly implemented, we
may not have an adequate remedy. Disclosure of our trade secrets or reverse
engineering of our proprietary products, processes or devices would materially
and adversely affect our business, financial condition and results of
operations.
Although we currently hold 11 U.S. patents, these patents do not
protect any material aspects of the current or planned commercial versions of
our systems, wafers or devices. We are actively pursuing patents on some of our
recent inventions, but these patents may not be issued. Even if these patents
are issued, they may be challenged, invalidated or circumvented. In addition,
the laws of certain other countries may not protect our intellectual property to
the same extent as U.S. laws.
WE MAY REQUIRE LICENSES TO CONTINUE TO MANUFACTURE AND SELL CERTAIN OF OUR
COMPOUND SEMICONDUCTOR WAFERS AND DEVICES, THE EXPENSE OF WHICH MAY ADVERSELY
AFFECT OUR RESULTS OF OPERATIONS.
We may require licenses from Rockwell International Corporation to
continue to sell our compound semiconductor wafers and devices to current
customers who do not hold licenses from Rockwell International Corporation. In
addition, we may be required to pay royalties for certain of our past sales of
wafers and devices to these customers. If we are required to pay significant
royalties in connection with these sales, our business, financial condition and
results of operations may be materially and adversely affected. The failure to
obtain or maintain these licenses on commercially reasonable terms may
materially and adversely affect our business, financial condition and results of
operations.
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
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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.
OUR MANAGEMENT'S STOCK OWNERSHIP GIVES THEM THE POWER TO CONTROL BUSINESS
AFFAIRS AND PREVENT A TAKEOVER THAT COULD BE BENEFICIAL TO UNAFFILIATED
SHAREHOLDERS.
Certain members of our management, specifically Thomas J. Russell,
Chairman of our Board, Reuben F. Richards, President, Chief Executive Officer
and a director, and Robert Louis-Dreyfus, a director, are former members of
Jesup & Lamont Merchant Partners, L.L.C. They collectively beneficially own more
than 20% of our common stock. 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 BUSINESS OR OUR STOCK PRICE COULD BE ADVERSELY AFFECTED BY ISSUANCE OF
PREFERRED STOCK.
Our board of directors is authorized to issue up to 5,882,352 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 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 shares of
preferred stock could adversely affect the voting and other rights of the
holders of common stock.
CERTAIN PROVISIONS OF NEW JERSEY LAW AND OUR CHARTER MAY MAKE A TAKEOVER OF OUR
COMPANY DIFFICULT EVEN IF SUCH TAKEOVER COULD BE BENEFICIAL TO SOME OF OUR
SHAREHOLDERS.
New Jersey law contains and our certificate of incorporation, as
amended, contains certain provisions that could delay or prevent a takeover
attempt that our shareholders may consider in their best interests. Our board of
directors is divided into three classes. Directors are elected to serve
staggered three-year terms and are not subject to removal except for cause by
the vote of the holders of at least 80% of our capital stock. In addition,
approval by the holders of 80% of our voting stock is required for certain
business combinations unless these transactions meet certain fair price criteria
and procedural requirements or are approved by two-thirds of our continuing
directors. We may in the future adopt other measures that may have the effect of
delaying or discouraging an unsolicited takeover, even if the takeover were at a
premium price or favored by a majority of unaffiliated shareholders. Certain of
these measures may be adopted without any further vote or action by our
shareholders.
FUTURE SALES BY EXISTING SHAREHOLDERS COULD DEPRESS THE MARKET PRICE OF OUR
COMMON STOCK AND MAKE IT MORE DIFFICULT FOR US TO SELL STOCK IN THE FUTURE.
After this registration statement becomes effective, the shares
registered hereunder will be eligible for resale in the market without
restriction. Sales of any substantial number of shares of our common stock in
the public market may have an adverse effect on the market price of our common
stock. The average daily trading volume of our common stock has been very low.
Any sustained sales of shares by our existing or future shareholders or any
increase in the average volume of shares traded in the public market may
adversely affect the market price of our common stock. These sales also might
make it more difficult for us to sell equity or equity-related securities in the
future at a time and price that we deem appropriate.
8
<PAGE> 12
USE OF PROCEEDS
The selling shareholder will receive all of the proceeds from the sale
of the common stock offered with this prospectus. We will not receive any of the
proceeds from the sale of common stock with this prospectus.
SELLING SHAREHOLDER
The following table sets forth the name of the selling shareholder, the
number of shares of EMCORE common stock owned by the selling shareholder as of
the date of this prospectus and the number of shares of EMCORE common stock
which may be offered pursuant to this prospectus. The shares of EMCORE common
stock that may be offered pursuant to this prospectus will be offered by the
selling shareholder, which includes the selling shareholder's subsidiaries,
transferees, pledgees, distributees or donees or their successors. The selling
shareholder may offer all, some or none of their shares of EMCORE common stock.
The following table assumes that the selling shareholder sells all of its
shares. We are unable to determine the exact number of shares that actually will
be sold.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED PRIOR SHARES WHICH MAY OWNED AFTER
TO THE OFFERING BE SOLD PURSUANT THE OFFERING (1)
-------------------------- TO THIS --------------------------
NAME OF BENEFICIAL OWNER NUMBER PERCENT PROSPECTUS NUMBER PERCENT
--------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
General Electric Company 622,994 3.7 208,050 --
260 Long Ridge Road
Stamford, CT 06927
Attention: Jonathan K. Sprole
</TABLE>
(1) Assuming sale of all shares salable hereunder and under EMCORE's
registration statement on Form S-3, No. 333-87753.
PLAN OF DISTRIBUTION
EMCORE is registering the shares offered by the selling shareholder
hereunder pursuant to certain covenants and contractual registration rights
granted to GE Capital Equity Investments, Inc. The selling shareholder may sell
all, some or none of the shares of EMCORE common stock offered by this
prospectus from time to time directly to purchasers in one or more transactions.
The selling shareholder will act independently of us in making decisions with
respect to the timing, manner and size of each sale. Sales may be made on the
Nasdaq National Market or in private transactions or in a combination of such
methods of sale. Such transactions may be at a fixed price, which may be
changed, or at varying prices determined at the time of sale or at negotiated
prices. Such prices will be determined by the holder of such securities or by
agreement between such holder and underwriters or dealers who may receive fees
of commissions in connection therewith.
The selling shareholder may from time to time offer shares of EMCORE
common stock beneficially owned by the selling shareholder through underwriters,
dealers or agents, who may receive compensation in the form of underwriting
discounts, commissions or concessions from the selling shareholder and the
purchasers of the shares for whom they may act as agent. The selling shareholder
will be responsible for payment of commissions, concessions and discounts of
underwriters, dealers or agents. The aggregate proceeds to the selling
shareholder from the sale of the shares of EMCORE common stock offered by the
selling shareholder will be the purchase price of such shares less discounts and
commissions, if any. The selling shareholder reserves the right to accept and,
together with their agents from time to time to reject, in whole or in part, any
9
<PAGE> 13
proposed purchase of shares to be made directly or through agents. EMCORE will
not receive any of the proceeds from this offering. Alternatively, the selling
shareholder may sell all or a portion of the shares of EMCORE common stock
beneficially owned by the selling shareholder and offered hereby from time to
time on any exchange on which the securities are listed on terms to be
determined at the times of such sales. The selling shareholder may also make
private sales directly or through a broker or brokers. Transactions through
broker-dealers may, including block trades in which brokers or dealers will
attempt to sell the shares of EMCORE common stock as agent but may position and
resell the block as principal to facilitate the transaction, or one or more
underwritten offerings on a firm commitment or best effort basis.
From time to time, the selling shareholder may transfer, pledge, donate
or assign shares of EMCORE common stock to lenders or others and each of such
persons will be deemed to be a "selling shareholder" for purposes of the
prospectus. The number of the selling shareholder's shares beneficially owned by
the selling shareholder who transfers, pledges, distributes, donates or assigns
shares of EMCORE common stock will decrease as and when they take such actions.
The plan of distribution for the selling shareholder's shares sold hereunder
will otherwise remain unchanged, except that the transferees, pledgees, donees
or other successors will be selling shareholders hereunder.
The selling shareholder may enter into hedging transactions with
broker-dealers, and the broker-dealers may engage in short sales of the shares
of EMCORE common stock in the course of hedging the positions they assume with
the selling shareholder, including, without limitation, in connection with
distribution of the shares of EMCORE common stock by such broker-dealers. In
addition, the selling shareholder may, from time to time, sell short the shares
of EMCORE common stock, and in such instances, this prospectus may be delivered
in connection with such short sales and the shares offered hereby may be used to
cover such short sales. The selling shareholder may also enter into option or
other transactions with broker-dealers that involve the delivery of the shares
of EMCORE common stock to the broker-dealers, who may then resell or otherwise
transfer such shares. The selling shareholder may also loan or pledge the shares
to a broker-dealer and the broker-dealer may sell the shares as loaned or upon a
default may sell or otherwise transfer the pledge shares.
The selling shareholder and any underwriters, dealers or agents that
participate in the distribution of the shares of EMCORE common stock offered
hereby may be deemed to be underwriters within the meaning of the Securities Act
of 1933 (the "Securities Act"), and any discounts, commissions or concessions
received by them and any provided pursuant to the sale of shares by them might
be deemed to be underwriting discounts and commissions under the Securities Act.
In addition, any securities covered by this prospectus which qualify
for sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144
rather than pursuant to this prospectus. There is no assurance that the selling
shareholder will sell any or all of the shares of EMCORE common stock described
herein, and the selling shareholder may transfer, devise or gift such securities
by other means not described herein.
In order to comply with the securities laws of certain states, if
applicable, the shares may only be sold in such jurisdictions through registered
or licensed brokers or dealers. In addition, in certain states the shares may
not be sold unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The selling shareholder may be subject to the anti-manipulation rules
of Regulation M under the Securities Exchange Act of 1934 which apply to sales
of shares in the market and to the activities of the selling security holder and
its affiliates. We will make copies of this prospectus, with any supplements or
amendments, available to the selling shareholder for delivery to purchasers at
or prior to the time of any sale of the shares offered herewith. The selling
shareholder may indemnify any broker-dealer that participates in transactions
involving the sale of the shares against liabilities resulting therefrom. Among
these liabilities for which indemnification may be provided are those arising
under the Securities Act.
We have agreed to indemnify the selling shareholder against certain
liabilities, including certain liabilities under the Securities Act of 1933. We
have also agreed to pay the expenses of registering all of the shares of common
stock offered hereby under the Securities Act of 1933, including all
registration, filing and exchange listing fees, blue sky expenses, fees of
counsel and accountants, fees of the
10
<PAGE> 14
NASD, transfer taxes, if any, transfer agent fees and underwriters' fees
customarily paid by issuers (excluding underwriting discounts and commissions).
Such expenses are estimated to be $20,395. We are required to maintain the
effectiveness of the registration statement, as amended or supplemented from
time to time, relating to this prospectus until the date on which all of the
shares offered by this prospectus are resold by the selling security holder.
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 July 19, 2000, 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.
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. EMCORE's Quarterly Reports on Form 10-Q for the periods ended
December 31, 1999 and March 31, 2000;
11
<PAGE> 15
3. 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.
4. 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
145 Belmont Drive
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.
12
<PAGE> 16
o We have not authorized
anyone to give you any
information that differs
from the information in 208,050 SHARES OF COMMON STOCK
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 EMCORE CORPORATION
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 PROSPECTUS
circumstances in which such
offer or solicitation is __________________________________
unlawful.
------------------------
Table of Contents
PAGE
----
About This Prospectus....... inside cover
The Company................. 2
Risk Factors................ 3
Use of Proceeds............. 9 July 28, 2000
Selling Shareholder......... 9
Plan of Distribution........ 9
Legal Matters............... 11
Experts..................... 11
Where You Can Find More
Information................. 11
<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.
TO BE PAID
BY THE
REGISTRANT
----------
Securities and Exchange Commission registration fee ............ $4,395
Accounting fees and expenses .................................... 5,000
Printing expenses ............................................... 2,000
Legal fees and expenses ......................................... 6,000
Other expenses .................................................. 3,000
-------
Total ........................................................... $20,395
=======
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
II-2
<PAGE> 19
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 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.
The Underwriting Agreement provides for indemnification by the
Underwriters of the Registrant and its officers and directors for certain
liabilities, including liabilities under the Securities Act.
ITEM 16. EXHIBITS
The following exhibits are filed with this Registration Statement:
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 -- Certificate of Amendment to the Certificate of Incorporation,
dated November 19, 1998 (incorporated by reference to Exhibit
3.3 to the registrant's annual report on Form 10-K for the
fiscal year ended September 30, 1998 (the "1998 10-K")).
4.2 -- Specimen certificate for shares of common stock (incorporated
by reference to Exhibit 4.1 to Amendment No. 3 to the
Registration Statement on Form S-1 (File No. 333-18565) filed
with the Commission on February 24, 1997).
4.3 -- Note Purchase Agreement, dated as of May 26, 1999, by and
between EMCORE Corporation and GE Capital Equity Investments,
Inc. (incorporated by reference to Exhibit 10.18 to Amendment
No. 2 to the Registration Statement on Form S-3 (File No.
333-71791) filed with the Commission on June 9, 1999).
II-4
<PAGE> 21
EXHIBIT NO. DESCRIPTION
----------- -----------
5.1 -- Opinion of Howard W. Brodie, Esq.*
23.1 -- Consent of Deloitte & Touche LLP.*
23.4 -- Consent of Howard W. Brodie, Esq. (included in Exhibit 5.1).*
24 -- Power of Attorney (included in signature page of this
Registration Statement).
-------------
* Filed herewith
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(a) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(b) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the registration statement;
(c) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement; Provided however, that paragraphs (1)(a) and
(1)(b) do not apply if the registration statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") that are incorporated by reference in the
registration statement.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-5
<PAGE> 22
(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 registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-6
<PAGE> 23
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Township of Somerset, State of
New Jersey, on July 28, 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, this Registration
Statement on Form S-3 has been signed by the following persons in the capacities
indicated, on July 28, 2000.
SIGNATURE TITLE
--------- -----
/s/ THOMAS J. RUSSELL Chairman of the Board and Director
-----------------------------
Thomas J. Russell
/s/ REUBEN F. RICHARDS, JR. President, Chief Executive Officer and
----------------------------- Director (Principal Executive Officer)
Reuben F. Richards, Jr.
/s/ THOMAS G. WERTHAN Vice President, Chief Financial
----------------------------- Officer, Secretary and Director
Thomas G. Werthan (Principal Accounting and Financial
Officer)
/s/ RICHARD A. STALL Director
-----------------------------
Richard A. Stall
II-7
<PAGE> 24
/s/ CHARLES SCOTT Director
-----------------------------
Charles Scott
Director
-----------------------------
Robert Louis-Dreyfus
/s/ HUGH H. FENWICK Director
-----------------------------
Hugh H. Fenwick
Director
-----------------------------
Shigeo Takayama
/s/ JOHN J. HOGAN, JR. Director
-----------------------------
John J. Hogan, Jr.
II-8
