New Jersey
(State
or other jurisdiction of incorporation or organization)
|
22-2746503
(I.R.S.
Employer Identification No.)
|
10420 Research Road, SE, Albuquerque, New
Mexico
(Address
of principal executive offices)
|
87123
(Zip
Code)
|
PAGE
|
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2
|
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|
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21
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24
|
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Directors
and Executive Officers of the
Registrant
|
Name
and Other Information
|
Age
|
Class
and
Year
in
Which
Term Will Expire
|
Principal
Occupation
|
Served
as
Director
Since
|
John
Gillen (1) (2)
(3)(4)
|
67
|
Class
C
2009
|
Partner,
Gillen and Johnson, P.A., Certified Public Accountants
|
2003
|
Thomas
J. Russell, Ph.D. (2)
(4)
|
77
|
Class
A
2011
|
Chairman
Emeritus of the Board, EMCORE Corporation
|
1995
|
Reuben
F. Richards, Jr.
|
53
|
Class
A
2011
|
Executive
Chairman, Chairman of the Board, EMCORE Corporation
|
1995
|
Robert
Bogomolny (1) (3)
(4)
|
70
|
Class
A
2011
|
President, University
of Baltimore
|
2002
|
Charles
T. Scott (1) (2)
(3) (4)
|
59
|
Class
B
2010
|
Chairman
of William Hill plc
|
1998
|
Hong
Q. Hou, Ph.D.
|
44
|
Class
B
2010
|
Chief
Executive Officer, EMCORE Corporation
|
2006
|
(1)
|
Member
of Audit Committee.
|
(2)
|
Member
of Nominating Committee.
|
(3)
|
Member
of Compensation Committee.
|
(4)
|
Determined
by the Board of Directors to be an independent
director.
|
·
|
On
December 24, 2008, Dr. Hou cancelled an option grant dated May 18,
2004 which was later determined to be issued at a discount to fair market
value. In exchange, Dr. Hou received a new option grant having
an exercise price equal to the fair market value as of the date of grant
and a cash payment of $9,100. The Company filed a delinquent
Form 4 on January 8, 2009.
|
·
|
On
December 24, 2008, Dr. Iannelli cancelled an option grant dated May
18, 2004 which was later determined to be issued at a discount to fair
market value. In exchange, Dr. Iannelli received a new option
grant having an exercise price equal to the fair market value as of the
date of grant and a cash payment of $1,560. The Company filed a
delinquent Form 4 on January 8,
2009.
|
·
|
Mr.
Markovich, filed a delinquent Form 3 and Form 4 on January 20,
2009 following his appointment as Chief Financial Officer effective as of
August 18, 2008.
|
|
ITEM
11.
|
Executive
Compensation
|
Name
(1)
|
Fees
Earned or
Paid
in Cash
($)(4)
|
All
Other
Compensation
($)(5)
|
Total
($)
|
|||
Thomas
J. Russell, Ph.D.
|
76,600
|
39,900
|
116,500
|
|||
Charles
T. Scott
|
96,000
|
46,600
|
142,600
|
|||
John
Gillen
|
101,800
|
50,300
|
152,100
|
|||
Robert
Bogomolny
|
67,300
|
43,400
|
110,700
|
|||
Robert
Louis-Dreyfus (2)
|
-
|
-
|
-
|
|||
Thomas
Werthan (3)
|
60,600
|
19,000
|
79,600
|
(1)
|
Reuben
F. Richards, Jr., the Company’s Executive Chairman and Chairman of the
Board, and Hong Q. Hou, Ph.D., the Company’s Chief Executive Officer, are
not included in this table as they are employees of the Company and
receive no compensation for their services as Directors. Their
compensation is disclosed in the Summary Compensation
Table.
|
(2)
|
Robert
Louis-Dreyfus resigned his seat on the Company’s Board of Directors on
October 30, 2007.
|
(3)
|
Thomas
Werthan resigned his seat on the Company’s Board of Directors on April 1,
2008.
|
(4)
|
These
amounts include the “make-whole” cash payments approved by the
Compensation Committee for the period March 2007 through December 2007, as
outlined below.
|
(5)
|
These
amounts include fees earned during fiscal 2008 payable in EMCORE common
stock.
|
Name
|
“Make-Whole”
Cash Payment
|
Special
Committee
“Make-Whole”
Cash
Payment
|
||
Thomas
J. Russell, Ph.D.
|
$45,300
|
$4,500
|
||
Charles
T. Scott
|
$54,300
|
$2,300
|
||
John
Gillen
|
$59,400
|
-
|
||
Robert
Bogomolny
|
$29,900
|
$2,300
|
||
Thomas
Werthan
|
$40,200
|
-
|
·
|
Mr.
Richard’s base salary was increased from $416,500 to
$437,325
|
·
|
Dr.
Hou’s base salary was increased from $400,000 to
$420,000
|
·
|
Mr.
Gushard’s base salary was increased from $240,000 to
$260,000
|
·
|
Dr.
Iannelli’s base salary was increased from $225,000 to
$236,250
|
·
|
Mr.
Kosco’s base salary was increased from $200,000 to
$210,000
|
Name
and Title
|
Target
|
|
Reuben
F. Richards, Jr., Executive Chairman
Hong
Q. Hou, Ph.D., Chief Executive Officer
|
80%
of base salary
|
|
Adam
Gushard, Interim Chief Financial Officer
|
50%
of base salary
|
|
John
Iannelli, Ph.D., Chief Technology Officer
Keith
J. Kosco, Esq., Chief Legal Officer
|
35%
of base salary
|
Name
|
Target
Incentive Award
|
Actual
Incentive Award
|
Actual
Award as % of Target
|
|||
Reuben
F. Richards, Jr.
|
$ 349,860
|
$ 78,719
|
23%
|
|||
Hong
Q. Hou, Ph.D.
|
$ 336,000
|
$ 75,600
|
23%
|
|||
Adam
Gushard
|
$ 130,000
|
$ 39,000
|
30%
|
|||
John
Iannelli, Ph.D.
|
$ 82,688
|
$ 20,341
|
25%
|
|||
Keith
J. Kosco, Esq.
|
$ 73,500
|
$ 14,333
|
20%
|
Name
|
Number
of
Stock
Options
|
|
Reuben
F. Richards, Jr.
|
100,000
|
|
Hong
Q. Hou, Ph.D.
|
195,000
|
|
Adam
Gushard
|
100,000
|
|
John
Iannelli, Ph.D.
|
75,000
|
|
Keith
J. Kosco, Esq.
|
80,000
|
Name
and Principal Position
|
Year
|
Salary
($)(5)
|
Option
Awards
($)(6)
|
Non-Equity
Incentive Plan Compensation ($)(7)
|
All
Other
Compensation
($)
|
Total
($)
|
|
Reuben
F. Richards, Jr.
Executive
Chairman and Chairman of the Board (1)
|
2008
2007
|
437,325
412,165
|
463,914
250,532
|
78,719
326,536
|
374
384
|
(8)
(8)
|
980,332
989,617
|
Hong
Q. Hou, Ph.D.
Chief
Executive Officer (2)
|
2008
2007
|
421,000
360,080
|
713,889
1,181,529
|
75,600
313,600
|
5,196
179,334
|
(9)
(10)
|
1,215,685
2,034,543
|
John
M. Markovich
Chief
Financial Officer (3)
|
2008
|
36,997
|
31,284
|
-
|
4,720
|
(11)
|
73,001
|
John
Iannelli, Ph.D.
Chief
Technology Officer
|
2008
2007
|
237,625
203,857
|
179,998
87,760
|
20,341
34,294
|
6,588
5,877
|
(12)
(13)
|
444,552
331,788
|
Keith
J. Kosco, Esq.
Chief
Legal Officer
|
2008
2007
|
210,000
132,308
|
109,031
25,874
|
14,333
45,733
|
374
25,174
|
(14)
(15)
|
333,738
229,089
|
Adam
Gushard
Former
Interim
Chief
Financial Officer (4)
|
2008
2007
|
262,395
236,835
|
170,134
261,280
|
39,000
192,600
|
15,816
13,338
|
(16)
(17)
|
487,345
704,053
|
(1)
|
Mr.
Richards was appointed to Executive Chairman and Chairman of the Board on
March 31, 2008 and previously served as the Company’s Chief Executive
Officer.
|
(2)
|
Dr.
Hou was appointed to Chief Executive Officer on March 31, 2008 and
previously served as the Company’s President and Chief Operating
Officer.
|
(3)
|
Mr.
Markovich was appointed to Chief Financial Officer on August 18,
2008.
|
(4)
|
Mr.
Gushard was the Company’s Interim Chief Financial Officer until August 18,
2008 and continues to serve as Vice President of Finance for the
Company.
|
(5)
|
Salary
represents amounts paid to the individual during the fiscal year ended
September 30, 2008. It does not represent an employee’s current
annual base salary.
|
(6)
|
The
amounts in this column reflect the dollar amount recognized for financial
statement reporting purposes in fiscal 2008, in accordance with Statement
of Financial Accounting Standards No. 123(R), “Share-Based Payment”
(revised 2004) (without regard to estimated forfeitures related to a
service based condition) and includes amounts from awards granted in and
prior to fiscal 2008. Assumptions used in the calculation of these amounts
are included in footnote 4 to the Company’s audited financial statements
for the fiscal year ended September 30, 2008, included in the Company’s
Annual Report on Form 10-K filed with the SEC on December 30,
2008.
|
(7)
|
The
amounts in this column reflect the cash incentive awards earned in each
fiscal year presented as approved by the Compensation
Committee.
|
(8)
|
Consists
of life insurance premiums.
|
(9)
|
Consists
of life insurance premiums of $374, EMCORE’s matching contributions under
its 401(k) plan of $4,822, which are made in EMCORE common
stock.
|
(10)
|
Consists
of life insurance premiums of $384, EMCORE’s matching contributions under
its 401(k) plan of $4,673, which are made in EMCORE common stock,
relocation and housing of $45,000, and $129,277 to cover the reimbursement
of Section 409A taxes that the Company paid on behalf of Dr. Hou relating
to events prior to him being a Section 16 officer of the
Company.
|
(11)
|
Consists
of life insurance premiums of $374 and EMCORE’s matching contributions
under its 401(k) plan of $346, which are made in EMCORE common stock and
relocation of $4,000.
|
(12)
|
Consists
of life insurance premiums of $374 and EMCORE’s matching contributions
under its 401(k) plan of $6,214, which are made in EMCORE common
stock.
|
(13)
|
Consists
of life insurance premiums of $384 and EMCORE’s matching contributions
under its 401(k) plan of $5,493, which are made in EMCORE common
stock.
|
(14)
|
Consists
of life insurance premiums.
|
(15)
|
Consists
of life insurance premiums of $384 and relocation of
$24,790.
|
(16)
|
Consists
of life insurance premiums of $374 and EMCORE’s matching contributions
under its 401(k) plan of $9,442, which are made in EMCORE common stock and
a car allowance of $6,000.
|
(17)
|
Consists
of life insurance premiums of $384 and EMCORE’s matching contributions
under its 401(k) plan of $6,954, which are made in EMCORE common stock and
a car allowance of $6,000.
|
Name
|
Grant
Date
|
Estimated
Future Payouts Under
Non-Equity
Incentive
Plan
Awards (1)
|
All
Other Option Awards: Number of Securities Underlying Options
(#)
(2)
|
Exercise
or Base Price of Option Awards
($/Sh)
(3)
|
Closing
Price
on
Date
of Grant
($/Sh)
|
Grant
Date Fair Value of Stock and Option Awards
($)
(4)
|
||
Threshold
($)
|
Target
($)
|
Maximum
($)
|
||||||
Reuben
F. Richards, Jr.
|
3/31/08
5/19/08
N/A
|
87,465
|
349,860
|
419,832
|
500,000
100,000
|
5.76
8.38
|
5.76
8.38
|
1,999,150
583,540
|
Hong
Q. Hou, Ph.D.
|
4/3/08
5/19/08
N/A
|
84,000
|
336,000
|
403,200
|
150,000
195,000
|
6.67
8.38
|
6.67
8.38
|
697,305
1,137,903
|
John
M. Markovich (5)
|
8/18/08
|
475,000
|
5.57
|
5.57
|
1,607,558
|
|||
John
Iannelli, Ph.D.
|
5/19/08
N/A
|
20,672
|
82,688
|
99,226
|
75,000
|
8.38
|
8.38
|
437,655
|
Keith
J. Kosco, Esq.
|
5/19/08
N/A
|
18,375
|
73,500
|
88,200
|
80,000
|
8.38
|
8.38
|
466,832
|
Adam
Gushard
|
5/19/08
N/A
|
32,,500
|
130,000
|
156,000
|
100,000
|
8.38
|
8.38
|
583,540
|
(1)
|
These
columns reflect the possible payment amounts under performance-based cash
incentive awards granted for fiscal 2008 to the Named Executive Officers,
as described above under “Compensation Discussion and Analysis”. The
amounts actually awarded to these executives for 2008 are reported above
in the Summary Compensation Table as “Non-Equity Incentive Plan
Awards”. Threshold is defined as 25% of Target and Maximum is
defined as 120% of Target. At the Compensation Committee’s sole
discretion, they may adjust the non-equity incentive award obtained down
to 0% or up to 140% based upon the level of individual
achievements.
|
(2)
|
This
column reflects the number of shares underlying options granted to the
Named Executive Officers in fiscal 2008.
|
(3)
|
All
options were granted at an exercise price equal to the closing price of
our common stock on the option grant date.
|
(4)
|
This
column reflects the fair value of these awards on the grant date as
determined under the accounting principles used to calculate the value of
equity awards. For the assumptions and methodologies used to value the
awards reported in this column, see footnote (6) to the Summary
Compensation Table.
|
(5)
|
Due
to Mr. Markovich’s hire date of August 18, 2008, he was not eligible for a
2008 Incentive Plan Award. As previously disclosed in the
Company’s Current Report on Form 8-K filed with the SEC on August 18,
2008, Mr. Markovich received an option to purchase 475,000 shares of the
Company’s common stock pursuant to his offer letter dated August 7,
2008.
|
Option
Awards
|
|||||||
Name
|
Number
of
Securities
Underlying Unexercised Options
(#)
Exercisable
|
Number
of Securities Underlying Unexercised Options
(#)
Unexercisable
|
Option
Exercise
Price
($)
|
Option
Expiration
Date
|
|||
Reuben
F. Richards, Jr.
|
50,000
25,000
72,500
225,000
-
-
|
-
-
-
-
500,000
100,000
|
(16)
(1)
(2)
|
6.44
22.00
2.63
3.42
5.76
8.38
|
12/1/08
4/14/10
5/18/14
5/18/15
3/31/18
5/19/18
|
||
Hong
Q. Hou, Ph.D.
|
35,000
-
27,500
245,000
63,750
-
-
|
-
6,875
27,500
-
191,250
150,000
195,000
|
(17)
(4)
(5)
(6)
(7)
(2)
|
2.63
3.00
7.29
5.76
8.78
6.67
8.38
|
5/18/14
2/28/15
8/28/16
12/14/16
9/25/17
4/3/18
5/19/18
|
||
John
M. Markovich
|
-
|
475,000
|
(3)
|
5.57
|
8/18/18
|
||
John
Iannelli, Ph.D.
|
40,000
6,000
8,250
881
9,000
6,000
1,000
2,500
18,750
-
|
-
-
2,750
-
9,000
6,000
1,000
7,500
56,250
75,000
|
(17)
(4)
(9)
(10)
(11)
(12)
(13)
(2)
|
1.87
2.63
3.00
7.32
5.18
7.95
9.75
4.98
5.33
8.38
|
1/22/13
5/18/14
2/28/15
12/29/15
10/12/15
3/10/16
4/5/16
3/29/17
6/25/17
5/19/18
|
||
Keith
J. Kosco, Esq.
|
6,000
12,500
-
|
24,000
37,500
80,000
|
(14)
(15)
(2)
|
5.49
5.08
8.38
|
1/8/17
4/27/17
5/19/18
|
||
Adam
Gushard
|
17,000
8,000
5,000
17,500
7,500
2,000
17,500
20,625
1,598
22,500
62,500
-
|
-
-
-
-
-
-
-
6,875
-
22,500
37,500
100,000
|
(16)
(4)
(5)
(8)
(2)
|
1.82
1.82
1.82
1.82
1.82
1.82
2.63
3.00
7.32
7.29
4.06
8.38
|
12/1/08
4/14/10
4/26/12
10/3/11
4/4/11
3/2/11
5/18/14
2/28/15
12/29/15
8/28/16
2/20/17
5/19/18
|
(1)
|
The
unvested portions of these awards are scheduled to vest in four
installments on March 31, 2009, 2010, 2011 and 2012.
|
(2)
|
The
unvested portions of these awards are scheduled to vest in four
installments on May 19, 2009, 2010, 2011 and 2012.
|
(3)
|
The
unvested portions of these awards are scheduled to vest in five
installments on August 18, 2009, 2010, 2011, 2012 and
2013.
|
(4)
|
The
unvested portions of these awards are scheduled to vest in one installment
on February 28, 2009.
|
(5)
|
The
unvested portions of these awards are scheduled to vest in two
installments on August 28, 2009 and 2010.
|
(6)
|
The
unvested portions of these awards are scheduled to vest in three
installments on September 25, 2009, 2010 and 2011.
|
(7)
|
The
unvested portions of these awards are scheduled to vest in four
installments on April 3, 2009, 2010, 2011 and 2012.
|
(8)
|
The
unvested portions of these awards are scheduled to vest in three
installments on February 20, 2009, 2010 and 2011.
|
(9)
|
The
unvested portions of these awards are scheduled to vest in two
installments on October 12, 2008 and 2009.
|
(10)
|
The
unvested portions of these awards are scheduled to vest in two
installments on March 10, 2009 and 2010.
|
(11)
|
The
unvested portions of these awards are scheduled to vest in two
installments on April 5, 2009 and 2010.
|
(12)
|
The
unvested portions of these awards are scheduled to vest in three
installments on March 29, 2009, 2010 and 2011.
|
(13)
|
The
unvested portions of these awards are scheduled to vest in three
installments on June 25, 2009, 2010, and 2011.
|
(14)
|
The
unvested portions of these awards are scheduled to vest in four
installments on January 8, 2009, 2010, 2011 and 2012.
|
(15)
|
The
unvested portions of these awards are scheduled to vest in three
installments on April 27, 2009, 2010, and 2011.
|
(16)
|
This
option grant expired and was cancelled on December 1,
2008.
|
(17)
|
In
December 2008, the Company entered into a special tender offer with Dr.
Hou and Dr. Iannelli regarding this option grant which increased the
exercise price from $2.63 to $2.89, which represents the fair market value
as of the actual measurement date for this option
grant.
|
Option
Awards
|
||
Name
|
Number
of Shares
Acquired
on Exercise
(#)
|
Value
Realized
on
Exercise
($)
|
Reuben
F. Richards, Jr. (1)
|
100,000
|
487,200
|
Hong
Q. Hou, Ph.D. (2)
|
133,750
|
1,079,707
|
John
M. Markovich
|
-
|
-
|
Adam
Gushard (3)
|
10,000
|
109,700
|
John
Iannelli, Ph.D.
|
-
|
-
|
Keith
J. Kosco, Esq.
|
-
|
-
|
(1)
|
These
shares were exercised in two tranches of 65,000 shares on February 25,
2008 and 35,000 shares on February 26, 2008.
|
(2)
|
These
shares were exercised in three tranches of 120,000 shares on December 19,
2007, 6,875 shares on December 31, 2007 and 6,875 shares on March 14,
2008.
|
(3)
|
These
shares were exercised on December 14, 2007, prior to expiration, and have
not been sold.
|
Name
|
Severance
|
Cash
Incentive Award
|
COBRA
(Company
Portion)
|
Outplacement
Services (1)
|
Perquisites
(2)
|
Reuben
F. Richards, Jr.
|
$655,988
|
$78,719
|
$19,154
|
$30,000
|
-
|
Hong
Q. Hou, Ph.D.
|
$597,692
|
$75,600
|
$19,154
|
$30,000
|
-
|
John
M. Markovich
|
$311,538
|
-
|
$ 3,928
|
$30,000
|
-
|
John
Iannelli, Ph.D.
|
$304,399
|
$20,341
|
$16,818
|
$30,000
|
-
|
Keith
J. Kosco, Esq.
|
$226,154
|
$14,333
|
$13,834
|
$30,000
|
-
|
Adam
Gushard
|
$370,000
|
$39,000
|
$19,154
|
$30,000
|
$59,000
|
(1)
|
On
December 30, 2008, the Compensation Committee amended the Company’s
Executive Severance Plan to reduce the outplacement services maximum
amount payable by the Company to $15,000.
|
(2)
|
Include
$9,000 for a car allowance and an estimated cost of $50,000 for
relocation-related expenses, which is payable to Mr. Gushard if terminated
without cause.
|
COMPENSATION COMMITTEE
John
Gillen, Chairman
Charles
T. Scott
Robert
Bogomolny
|
Name
|
Shares
Beneficially
Owned
|
Percent
of
Common
Stock
|
|||||
Thomas
J. Russell, Ph.D. (1)
|
5,276,815
|
6.7
|
%
|
||||
Reuben
F. Richards, Jr. (2)
|
1,012,054
|
1.3
|
%
|
||||
Robert
Bogomolny
|
86,972
|
*
|
|||||
Charles
Scott (3)
|
42,409
|
*
|
|||||
John
Gillen
|
29,242
|
*
|
|||||
Hong
Q. Hou, Ph.D. (4)
|
503,859
|
*
|
|||||
John
M. Markovich
|
-
|
*
|
|||||
John
Iannelli, Ph.D. (5)
|
113,893
|
*
|
|||||
Keith
J. Kosco, Esq.(6)
|
24,500
|
*
|
|||||
Adam
Gushard (7)
|
212,141
|
*
|
|||||
All
directors and executive officers as a group
(10
persons) (8)
|
7,301,885
|
9.3
|
%
|
||||
Wachovia
Corporation (9)
|
5,158,132
|
6.6
|
%
|
||||
Brookside
Capital Partners Fund, LP (10)
|
5,002,777
|
6.4
|
%
|
||||
Invesco
Ltd.(11)
|
4,817,145
|
6.2
|
%
|
||||
Kopp
Investment Advisors, LLC (12)
|
4,101,349
|
5.2
|
%
|
||||
AMVESCAP
PLC (13)
|
4,000,005
|
5.1
|
%
|
||||
The
Quercus Trust (14)
|
3,800,183
|
4.9
|
%
|
*
|
Less
than 1.0%
|
(1)
|
Includes
2,280,035 shares held by The AER Trust.
|
(2)
|
Includes
options to purchase 322,500 shares and 175,000 shares held by
spouse.
|
(3)
|
Includes
30,409 shares owned by Kircal, Ltd.
|
(4)
|
Includes
options to purchase 378,125 shares and 7,609 shares held in the Company’s
401(k) Plan.
|
(5)
|
Includes
options to purchase 102,631 shares and 4,683 shares held in the Company’s
401(k) Plan.
|
(6)
|
Includes
options to purchase 24,500 shares.
|
(7)
|
Includes
options to purchase 184,098 shares and 9,395 shares held in the Company’s
401(k) Plan.
|
(8)
|
Includes
options to purchase 1,011,854 shares beneficially owned by Reuben F.
Richards, Jr., Executive Chairman; Hong Hou, Chief Executive Officer; Adam
Gushard, Former Interim Chief Financial Officer; John Iannelli, Chief
Technology Officer; and Keith J. Kosco, Chief Legal
Officer.
|
(9)
|
This
information is based solely on information contained in a Schedule 13G
filed with the SEC on January 14, 2008, by Wachovia
Corporation. Wachovia Corporation reports beneficially owning a
total of 5,158,132 shares including having sole voting power over 139,917
shares and sole dispositive power over 2,878,097
shares. Wachovia Corporation is a parent holding company and
the relevant subsidiaries are Wachovia Securities, LLC (IA) and Wachovia
Bank, N.A. (B.K.). Wachovia Securities, LLC is an investment
advisor for clients; the securities reported by this subsidiary are
beneficially owned by such clients. Wachovia Bank, N.A. (B.K.)
holds the securities reported in a fiduciary capacity for its respective
customers. The address of Wachovia Corporation is One Wachovia
Center, Charlotte, North Carolina 28288.
|
(10)
|
This
information is based solely on information contained in a Schedule 13G
filed with the SEC on July 21, 2008, by Brookside Capital Partners Find,
L.P. (the “Brookside Fund”). Brookside Capital Investors, L.P.,
a Delaware limited partnership (“Brookside Investors”) is the sole general
partner of the Brookside Fund. Brookside Capital Management, LLC, a
Delaware limited liability company (“Brookside Management”), is the sole
general partner of Brookside Investors. Mr. Domenic J. Ferrante is the
sole managing member of Brookside Management. The Brookside Fund
beneficially owned 5,002,777 shares of Common Stock. The Brookside Fund
acts by and through its general partner, Brookside Investors. Brookside
Investors acts by and through its general partner, Brookside Management.
Mr. Domenic J. Ferrante is the managing member of Brookside Management and
thus is the controlling person of Brookside Management. No person other
than the respective owner referred to herein of the Common Stock is known
to have the right to receive or the power to direct the receipt of
dividends from or the proceeds from the sale of such Common Stock.The
address of the Brookside Fund, Brookside Investors, Brookside Management
and Mr. Ferrante is 111 Huntington Avenue, Boston, Massachusetts
02199.
|
(11)
|
This
information is based solely on information contained in a Schedule 13G/A
filed with the SEC on February 14, 2008, by invesco Ltd. (“Invesco”). The
address of Alexandra Global is Citco Building, Wickams Cay, P.O. Box 662,
Road Town, Tortola, British Virgin Islands. The address of
Alexandra Management and Filimonov is 767 Third Avenue, 39th Floor, New
York, New York 10017.
|
(12)
|
This
information is based solely on information contained in a Schedule 13D
filed with the SEC on April 4, 2008, by Kopp Investment Advisors, LLC
(“KIA”), a wholly-owned subsidiary of Kopp Holding Company, LLC (“KHC”),
which is controlled by Mr. LeRoy C. Kopp (“Kopp”) (collectively, the “Kopp
Parties”). KIA reports beneficially owning a total of 4,101,349
shares including having sole voting power over 4,101,349 shares and shared
dispositive power over 2,242,774 shares. Kopp reports
beneficially owning a total of 4,242,774 shares, including having sole
dispositive power over 2,000,000 shares. The address of the
Kopp Parties is 7701 France Avenue South, Suite 500, Edina, Minnesota
55435. The address of Kopp Investment Advisors, LLC is 7701 France Avenue
South, Suite 500, Edina, Minnesota 55435.
|
(13)
|
This
information is based solely on information contained in a Schedule 13G
filed with the SEC on February 14, 2007, by AMVESCAP PLC, a U.K. entity,
on behalf of itself and PowerShares Capital Management LLC, a U.S. entity
(“PowerShares”). The shares reported for AMVESCAP PLC represent the total
shares held by AMVESCAP PLC through PowerShares. The address of
AMVESCAP PLC is 30 Finsbury Square, London EC2A 1AG,
England. The address of AMVESCAP PLC is 30 Finsbury Square,
London EC2A 1AG, England.
|
(14)
|
This
information is based solely on information contained in a Schedule 13D
filed with the SEC on August 20, 2008, by The Quercus Trust, David Gelbaum
and Monica Chavez Gelbaum. The Quercus Trust reports
beneficially owning a total of 3,800,183 shares and sharing voting and
dispositive power with respect to such shares. David Gelbaum,
Trustee, The Quercus Trust, reports beneficially owning a total of
3,800,183 shares and sharing voting and dispositive power with respect to
such shares. Monica Chavez Gelbaum, Trustee, The Quercus Trust,
reports beneficially owning a total of 3,800,183 shares and sharing voting
and dispositive power with respect to such shares. The address
of David Gelbaum, an individual, as co-trustee of the Quercus Trust and
Monica Chavez Gelbaum, an individual, as co-trustee of the Quercus Trust
is 2309 Santiago Drive, Newport Beach, California
92660.
|
Plan
Category
|
Number
of securities
to
be issued upon
exercise
of outstanding
options,
warrants and rights
|
Weighted
average
exercise
price
of
outstanding options,
warrants
and rights
|
Number
of securities
remaining
available for future issuance under equity compensation plans (excluding
securities reflected in
column
(a))
|
||||
(a)
|
(b)
|
(c)
|
|||||
Equity
compensation plans approved by security holders
|
8,929,453
|
$
|
6.57
|
287,003
|
|
ITEM
13.
|
Certain
Relationships and Related
Transactions
|
ITEM
14.
|
Principal
Accountant Fees and Services
|
Fiscal
2008
|
Fiscal
2007
|
||||||
Audit
fees (1)
|
$
|
3,149,100
|
$
|
4,593,000
|
|||
Audit-related
fees (2)
|
75,200
|
49,000
|
|||||
Tax
fees (3)
|
--
|
--
|
|||||
All
other fees
(4)
|
131,800
|
--
|
|||||
Total
|
$
|
3,356,100
|
$
|
4,642,000
|
(1)
|
Represents
fees for professional services rendered in connection with the audit of
our annual financial statements, reviews of our quarterly financial
statements, and advice provided on accounting matters that arose in
connection with audit services. Fiscal 2008 included $766,000 and fiscal
2007 included $885,000 of audit fees for professional services rendered in
connection with the audit of our internal controls over financial
reporting (SOX 404 compliance). The fees incurred during fiscal
2008 and 2007 include fees related to our voluntary stock option review
and the related restatement of our financial data for the fiscal years
ended September 30, 2006 and 2005 and 2004.
|
(2)
|
Represents
fees for professional services related to the audits of our employee
benefit plan and other statutory or regulatory filings.
|
(3)
|
Not
applicable.
|
(4)
|
Represents
fees for professional services related to the review of our Form S-1
Registration Statement filed in fiscal
2008.
|
Exhibits
and Financial Statement Schedules.
|
2.1
|
Merger
Agreement, dated January 12, 2006, by and among K2 Optronics, Inc., EMCORE
Corporation, and EMCORE Optoelectronics Acquisition Corp. (incorporated by
reference to Exhibit 2.1 to Registrant’s Current Report on Form 8-K filed
on January 19, 2006).
|
2.2
|
Asset
Purchase Agreement between IQE RF, LLC, IQE plc, and EMCORE Corporation,
dated July 19, 2006. (incorporated by reference to Exhibit 2.1 to
Registrant’s Current Report on Form 8-K filed on July 24,
2006).
|
2.3
|
Membership
Interest Purchase Agreement, dated as of August 31, 2006, by and between
General Electric Company, acting through the GE Lighting operations of its
Consumer and Industrial division, and EMCORE Corporation (incorporated by
reference to Exhibit 2.1 to Registrant’s Current Report on Form 8-K filed
on September 7, 2006).
|
2.4
|
Stock
Purchase Agreement, dated as of April 13, 2007, by and among Registrant,
Opticomm Corporation and the persons named on Exhibit 1 thereto
(incorporated by reference to Exhibit 2.1 to Registrant’s Current Report
on Form 8-K filed April 19, 2007).
|
2.5*
|
Loan
and Security Agreement dated as of September 29, 2008, between Bank of
America, N.A. and Registrant.
|
2.6
|
Asset
Purchase Agreement, dated December 17, 2007, between EMCORE Corporation
and Intel Corporation (incorporated by reference to Exhibit 2.1 to the
Registrant’s Form 10-Q filed on February 11, 2008)
|
2.7
|
Asset
Purchase Agreement, dated April 9, 2008, between EMCORE Corporation and
Intel Corporation (incorporated by reference to Exhibit 2.1 to the
Registrant’s Form 10-Q filed on May 12, 2008)
|
2.8
|
Securities
Purchase Agreement, dated February 15, 2008, between EMCORE Corporation
and each investor identified on the signature pages thereto (Filed as part
of the Company’s Current Report on Form 8-K, Commission file no.
000-22175, dated February 20, 2008, and incorporated herein by
reference)
|
3.1
|
Restated
Certificate of Incorporation, dated April 4, 2008 (incorporated by
reference to Exhibit 3.1 to Registrant's Current Report on Form 8-K filed
on April 4, 2008).
|
3.2
|
Amended
By-Laws, as amended through August 7, 2008 (incorporated by reference to
Exhibit 3.1 to Registrant’s Current Report on Form 8-K filed on August 13,
2008).
|
4.1
|
Registration
Rights Agreement, dated February 15, 2008, between EMCORE Corporation and
the investors identified on the signature pages thereto (Filed as part of
the Company’s Current Report on Form 8-K, Commission file no. 000-22175,
dated February 20, 2008, and incorporated herein by
reference)
|
4.2
|
Form
of Warrant, dated February 15, 2008 (Filed as part of the Company’s
Current Report on Form 8-K, Commission file no. 000-22175, dated February
20, 2008, and incorporated herein by reference)
|
4.3
|
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).
|
10.1†
|
1995
Incentive and Non-Statutory Stock Option Plan (incorporated by reference
to Exhibit 10.1 to the Amendment No. 1 to the Registration Statement on
Form S-1 filed on February 6, 1997).
|
10.2†
|
1996
Amendment to Option Plan (incorporated by reference to Exhibit 10.2 to
Amendment No. 1 to the Registration Statement on Form S-1 filed on
February 6, 1997).
|
10.3†
|
MicroOptical
Devices 1996 Stock Option Plan (incorporated by reference to Exhibit 99.1
to the Registration Statement on Form S-8 filed on February 6,
1998).
|
10.4†
|
2000
Stock Option Plan, as amended and restated on March 31, 2008 (incorporated
by reference to the attached Exhibit to the Company’s Definitive Proxy
Statement filed on March 4, 2008).
|
10.5†
|
2000
Employee Stock Purchase Plan, as amended and restated on February 13, 2006
(incorporated by reference to Exhibit 10.2 to Registrant’s Current Report
on Form 8-K filed on February 17, 2006).
|
10.6†
|
Directors’
Stock Award Plan (incorporated herein by reference to Exhibit 99.1 to
Registrant’s Original Registration Statement of Form S-8 filed on November
5, 1997), as amended by the Registration Statement on Form S-8 filed on
August 10, 2004.
|
10.7
|
Memorandum
of Understanding, dated as of September 26, 2007 between Lewis Edelstein
and Registrant regarding shareholder derivative litigation (incorporated
by reference to Exhibit 10.10 to Registrant’s Annual Report on Form 10-K
for the fiscal year ended September 20, 2006).
|
10.8†
|
Fiscal
2008 Executive Bonus Plan (incorporated by reference to Exhibit 10.1 the
Registrant’s Form 10-Q filed on May 12, 2008).
|
10.9†
|
Executive
Severance Policy (incorporated by reference to Exhibit 10.2 to
Registrant’s Current Report on Form 8-K filed on April 19,
2007).
|
10.10†
|
Outside
Directors Cash Compensation Plan, as amended and restated on February 13,
2006 (incorporated by reference to Exhibit 10.3 to Registrant’s Current
Report on Form 8-K filed on February 17, 2006).
|
10.11
|
Exchange
Agreement, dated as of November 10, 2005, by and between Alexandra Global
Master Fund Ltd. and Registrant (incorporated by reference to Exhibit
10.15 to Registrant’s Annual Report on Form 10-K for the fiscal year ended
September 30, 2005).
|
10.12
|
Consent
to Amendment and Waiver, dated as of April 9, 2007, by and among EMCORE
Corporation and certain holders of the 2004 Notes party thereto
(incorporated by reference to Exhibit 10.1 to Registrant’s Current Report
on Form 8-K filed on April 10, 2007).
|
10.13
|
Consent
to Amendment and Waiver, dated as of April 9, 2007, by and between EMCORE
Corporation and the holder of the 2005 Notes (incorporated by reference to
Exhibit 10.2 to Registrant’s Current Report on Form 8-K filed on April 10,
2007).
|
10.14
|
Investment
Agreement between WorldWater and Power Corp. and Registrant, dated
November 29, 2006 (incorporated by reference to Exhibit 10.1 to
Registrant’s Current Report on Form 8-K filed on December 5,
2006).
|
10.15
|
Registration
Rights Agreement between WorldWater and Power Corp. and Registrant, dated
November 29, 2006 (incorporated by reference to Exhibit 10.1 to
Registrant’s Current Report on Form 8-K filed on December 5,
2006).
|
10.16
|
Letter
Agreement between WorldWater and Power Corp. and Registrant, dated
November 29, 2006 (incorporated by reference to Exhibit 10.3 to
Registrant’s Current Report on Form 8-K filed on December 5, 2006).
Confidential Treatment has been requested by the Company with respect to
portions of this document. Such portions are indicated by
“*****”.
|
10.17†
|
Dr.
Hong Hou Offer Letter dated December 14, 2006 (incorporated by reference
to Exhibit 10.1 to Registrant’s Current Report filed on December 20,
2006).
|
10.18
|
Stipulation
of Compromise and Settlement, dated as of November 28, 2007 executed by
the Company and the other defendants and the plaintiffs in the Federal
Court Action and the State Court Actions (incorporated by reference to
Exhibit 10.19 to the Registrant’s Form 10-K filed of December 31,
2007).
|
10.19†
|
2007
Director’s Stock Award Plan (incorporated by reference to Exhibit 10.1 to
Registrant’s Form 10-Q filed on February 11, 2008).
|
10.20†*
|
Mr.
John M. Markovich Offer Letter dated August 7, 2008.
|
14.1
|
Code
of Ethics for Financial Professionals (incorporated by reference to
Exhibit 14.1 to Registrant’s Annual Report on Form 10-K for the fiscal
year ended September 30, 2003).
|
21.1*
|
Subsidiaries
of the Registrant.
|
23.1*
|
Consent
of Deloitte & Touche LLP.
|
31.1**
|
Certificate
of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002, dated January 28, 2009.
|
31.2**
|
Certificate
of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002, dated January 28, 2009.
|
32.1*
|
Certificate
of Chief Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002, dated December 30, 2008.
|
32.2*
|
Certificate
of Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002, dated December 30,
2008.
|
EMCORE
CORPORATION
|
||
Date:
January 28, 2009
|
By:
|
/s/
Hong Q. Hou, Ph.D.
|
Hong
Q. Hou, Ph.D.
|
||
President
and Chief Executive Officer
(Principal
Executive Officer)
|
Signature
|
Title
|
/s/
*
|
Chairman
Emeritus and Lead Director
|
Thomas
J. Russell, Ph.D.
|
|
/s/
Reuben Richards
|
Executive
Chairman & Chairman of the Board
|
Reuben
F. Richards, Jr.
|
|
/s/ Hong Hou
|
Chief
Executive Officer and Director (Principal Executive
Officer)
|
Hong
Q. Hou, Ph.D.
|
|
/s/
John M. Markovich
|
Chief
Financial Officer (Principal Financial and Accounting
Officer)
|
John
M. Markovich
|
|
/s/
*
|
Director
|
Charles
T. Scott
|
|
/s/
*
|
Director
|
John
Gillen
|
|
/s/
*
|
Director
|
Robert
Bogomolny
|