forms-3.htm
As
filed with the Securities and Exchange Commission on July 2, 2009
Registration
No. 333-______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
________________________
Form
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
________________________
EMCORE
Corporation
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New Jersey
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3674
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22-2746503
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(State
or other jurisdiction of
incorporation
or organization)
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(Primary
Standard Industrial
Classification
Code Number)
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(I.R.S.
Employer
Identification
Number)
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EMCORE
Corporation
10420
Research Road, SE
Albuquerque,
New Mexico 87123
(505-332-5000)
Agent For
Service
KEITH
J. KOSCO, ESQ.
EMCORE
Corporation
10420
Research Road, SE
Albuquerque,
New Mexico 87123
(505-332-5000)
With
Copies To:
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TOBIAS
L. KNAPP, ESQ.
Jenner
& Block LLP
919
Third Avenue
37th
Floor
New
York, New York 10022
(212-891-1600)
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Approximate date of commencement of
proposed sale to the public: From time to time after
this registration statement becomes effective.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box: o
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, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. ¨
If this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. ¨
If this Form is a registration
statement pursuant to General Instruction I.D. or a post-effective amendment
thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following
box. o
If this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.D.
filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following
box. o
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Large
accelerated filer o
Accelerated filer x
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Non-accelerated
filer o
Smaller reporting company o
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CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of
Securities
to be Registered (1)
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Amount
to
Be
Registered
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Proposed
Maximum
Offering
Price
Per
Unit
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
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Offering:
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Common
Stock, no par value per share
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(1)
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(2)
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(2)
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—
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Preferred
Stock
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(1)
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(2)
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(2)
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—
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Debt
Securities
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(1)
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(2)
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(2)
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—
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Warrants
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(1)
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(2)
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(2)
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—
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Units
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(1)
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(2)
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(2)
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—
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Total
Offering
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(1)
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(2)
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$50,000,000
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$2,790(3)
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(1)
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There
are being registered hereunder such indeterminate number of shares of
common stock and preferred stock, such indeterminate principal amount of
debt securities, such indeterminate number of warrants to purchase common
stock, preferred stock or debt securities, and such indeterminate number
of units, as shall have an aggregate initial offering price not to exceed
$50,000,000. If any debt securities are issued at an original issue
discount, then the offering price of such debt securities shall be in such
greater principal amount as shall result in an aggregate initial offering
price not to exceed $50,000,000, less the aggregate dollar amount of all
securities previously issued hereunder. Any securities registered
hereunder may be sold separately or as units with other securities
registered hereunder. The proposed maximum initial offering price per unit
will be determined, from time to time, by the registrant in connection
with the issuance by the registrant of the securities registered
hereunder. The securities registered also include such indeterminate
number of shares of common stock and preferred stock and amount of debt
securities as may be issued upon conversion of or exchange for preferred
stock or debt securities that provide for conversion or exchange, upon
exercise of warrants or pursuant to the anti-dilution provisions of any
such securities. In addition, pursuant to Rule 416 under the
Securities Act of 1933, as amended, the shares being registered hereunder
include such indeterminate number of shares of common stock and preferred
stock as may be issuable with respect to the shares being registered
hereunder as a result of stock splits, stock dividends or similar
transactions.
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(2)
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The
proposed maximum aggregate offering price per class of security will be
determined from time to time by the registrant in connection with the
issuance by the registrant of the securities registered hereunder and is
not specified as to each class of security pursuant to General Instruction
II(D) of Form S-3 under the Securities Act of 1933, as
amended.
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(3)
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Calculated
pursuant to Rule 457(o) under the Securities Act of 1933, as amended,
based on the proposed maximum aggregate offering
price.
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The registrant hereby amends this
registration statement on such date as may be necessary to delay its effective
date until we shall further 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 or until this registration statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We will not
sell the securities described in this document until the registration statement
filed with the Securities and Exchange Commission is declared effective. This
prospectus is not an offer to sell these securities, nor are we soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
PRELIMINARY
PROSPECTUS
SUBJECT
TO COMPLETION, DATED July 2, 2009
EMCORE
Corporation
$50,000,000
Debt
Securities
Common
Stock
Preferred
Stock
Warrants
Units
This
prospectus provides you with a general description of debt and equity securities
that EMCORE Corporation may offer and sell from time to time. Each time we sell
securities we will provide a prospectus supplement that will contain specific
information about the terms of that sale and may add to or update the
information in this prospectus. You should carefully read this prospectus and
the applicable prospectus supplement as well as any documents incorporated or
deemed to be incorporated in this prospectus before you invest in any of our
securities offered hereby. This prospectus may not be used to sell securities
unless accompanied by a prospectus supplement.
EMCORE
Corporation may offer and sell securities to or through one or more
underwriters, dealers and/or agents on a continuous or delayed basis. For
additional information on the methods of sale, you should refer to the section
entitled “Plan of Distribution.” If any underwriters are involved in the sale of
any securities with respect to which this prospectus is being delivered, the
names of such underwriters and any applicable discounts or commissions and
over-allotment options will be set forth in the prospectus supplement. The price
to the public of such securities and the net proceeds we expect to receive from
such sale will also be set forth in a prospectus supplement.
Our
common stock is listed on The Nasdaq Global Market under the symbol “EMKR.” On
June 26, 2009, the last reported sale price of our common stock on The Nasdaq
Global Market was $1.47.
Investing in our common stock involves
risk. See “Risk Factors” on page 7. You should carefully
review the risks and uncertainties described under the heading “Risk Factors”
contained in the applicable prospectus supplement and under similar headings in
the documents that are incorporated by reference in this
prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the accuracy or
adequacy of this prospectus. Any representation to the contrary is a criminal
offense.
The
date of this prospectus
is ,
2009
You
should rely only on the information contained or incorporated by reference in
this prospectus. We have not authorized anyone to provide you with
additional information or information different from that contained in this
prospectus. The information contained or incorporated by reference in this
prospectus is accurate only as of the date of this prospectus, regardless of the
time of delivery of this prospectus or of any sale of securities offered by this
prospectus. Our business, financial condition, results of operations and
prospects may have changed since that date.
In this
prospectus, the “Company”, “EMCORE”, “we”, “us”, and “our” refer to EMCORE
Corporation and its subsidiaries. Our fiscal year ends on September
30 of each calendar year. For example, fiscal year 2008 refers to the
year ended September 30, 2008. EMCORE is a registered trademark of
EMCORE Corporation. This prospectus contains product names, trade names and
trademarks of EMCORE and other organizations.
TABLE
OF CONTENTS
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Page
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About
this Prospectus
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4
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Special
Note Regarding Forward-Looking Statements
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5
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EMCORE
Corporation
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6
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Risk
Factors
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7
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Use
of Proceeds
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8
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Ratio
of Earnings to Fixed Charges and Preferred Stock Dividends
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8
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Description
of Common Stock
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9
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Description
of Preferred Stock
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9
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Description
of Debt Securities
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10
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Description
of Warrants
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17
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Description
of Units
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18
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Plan
of Distribution
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18
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Anti-takeover
Effects of Provisions of Our Restated Certificate of Incorporation and
Amended By-laws
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19
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New
Jersey Shareholders Protection Act
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20
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Legal
Matters
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20
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Experts
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20
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Where
You Can Find More Information
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Information
Incorporated by Reference
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21
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ABOUT
THIS PROSPECTUS
This prospectus is part of a
registration statement that we have filed with the Securities and Exchange
Commission (the “SEC” or “Commission”) using a “shelf” registration process.
Under this shelf process, we may sell:
· Debt
securities;
· Common
stock;
· Preferred
stock;
· Warrants;
and
· Units
either
separately or in units, in one or more offerings. This prospectus provides you
with a general description of those securities. We will offer our securities in
amounts, at prices and on terms to be determined at the time we offer such
securities. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. Before purchasing any securities, you should
carefully read this prospectus and the applicable prospectus supplement and any
applicable free writing prospectus together with the additional information
described under the heading "Where You Can Find More Information." Under no
circumstances should the delivery to you of this prospectus or any offering or
sales made pursuant to this prospectus create any implication that the
information contained in this prospectus is correct as of any time after the
date of this prospectus.
SPECIAL
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus and the information incorporated by reference include forward-looking
statements, within the meaning of Section 27A of the Securities Act of
1933, or the Securities Act, and Section 21E of the Securities Exchange Act
of 1934, or the Exchange Act. These statements are based on management’s current
expectations or predictions of future results or events. We make these
forward-looking statements in reliance on the safe harbor provisions provided
under the Private Securities Litigation Reform Act of 1995.
All
statements, other than statements of historical fact, included in this
prospectus and information incorporated by reference which relate to
performance, development or activities that we expect or anticipate will or may
happen in the future, are forward-looking statements. Other forward-looking
statements may be identified by the use of forward-looking words such as
“believe,” “expect,” “may,” “might,” “will,” “should,” “seek,” “could,”
“approximately,” “intend,” “plan,” “estimate,” or “anticipate” or the negative
of those words or other similar expressions.
Forward-looking
statements involve inherent risks and uncertainties and are based on numerous
assumptions. They are not guarantees of future performance. A number of
important factors could cause actual results to differ materially from those in
the forward-looking statement. Some factors include:
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our
ability to obtain financing or sell assets and achieve levels of revenue
and cost reductions that are adequate to support our capital and operating
requirements in order to continue as a going
concern;
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our
abilities to remain competitive and a leader in our industries and the
future growth of the Company, our industries, and the economy in
general;
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our
ability to achieve structural and material cost reductions without
impacting product development or manufacturing
execution;
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expected
improvements in our product and technology development
programs;
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our
ability to successfully develop, introduce, market and qualify new
products, including our terrestrial solar
products;
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our
ability to identify and acquire suitable acquisition targets and
difficulties in integrating recent or future acquisitions into our
operations;
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other
risks and uncertainties described in our filings with the SEC such as:
cancellations, rescheduling, or delays in product shipments; manufacturing
capacity constraints; lengthy sales and qualification cycles; difficulties
in the production process; changes in semiconductor industry growth;
increased competition; delays in developing and commercializing new
products; and other factors.
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Forward-looking
statements contained herein are made only as of the date made, and we do not
undertake any obligation to update them to reflect events or circumstances after
the date of this prospectus to reflect the occurrence of unanticipated
events.
EMCORE
CORPORATION
We are a provider of compound
semiconductor-based components and subsystems for the broadband, fiber optic,
satellite, and terrestrial solar power markets. We were established
in 1984 as a New Jersey corporation. We have two reporting segments: Fiber
Optics and Photovoltaics. Our Fiber Optics segment offers optical
components, subsystems, and systems that enable the transmission of video,
voice, and data over high-capacity fiber optic cables for high-speed data and
telecommunications, cable television (“CATV”) and fiber-to-the-premises (“FTTP”)
networks. Our Photovoltaics segment provides solar products for
satellite and terrestrial applications. For satellite applications, we offer
high-efficiency compound semiconductor-based gallium arsenide (“GaAs”) solar
cells, covered interconnect cells (“CICs”) and fully integrated solar
panels. For terrestrial applications, we offer concentrating
photovoltaic (“CPV”) systems for utility scale solar applications as well as our
high-efficiency GaAs solar cells and CPV components for use in solar power
concentrator systems.
Our headquarters and principal
executive offices are located at 10420 Research Road, SE, Albuquerque, New
Mexico, 87123, and our main telephone number is (505) 332-5000. For
specific information about our company, our products or the markets we serve,
please visit our website at http://www.emcore.com. The information
contained in or linked to our website is not part of this
prospectus.
RISK
FACTORS
Investing
in our securities involves risks. You should carefully read and
consider the risk factors and other disclosures relating to any investment in
securities issued by EMCORE Corporation described in our Annual Report on Form
10-K for the fiscal year ended September 30, 2008, as updated by
annual, quarterly and other reports and documents we file with the SEC after the
date of this prospectus and that are incorporated by reference
herein. Before making an investment decision, you should carefully
consider those risks as well as other information we include or incorporate by
reference in this prospectus and the applicable prospectus
supplement. The risks and uncertainties we have described are not the
only ones facing our company. Additional risks and uncertainties not
presently known to us or that we currently consider immaterial may also affect
our business operations. To the extent a particular offering
implicates additional risk, we will include a discussion of those risks in the
applicable prospectus supplement.
USE
OF PROCEEDS
Unless
otherwise specified in the applicable prospectus supplement, we will use the net
proceeds from the sale of securities for one or more of the
following:
• repayment
of debt;
•
acquisitions;
• capital
expenditures;
•
redemption or repurchase of any preferred stock or debt outstanding;
and
• working
capital and general corporate purposes.
Pending
any specific application, we may initially invest funds in marketable
short-term, interest-bearing securities.
The
following table sets forth our ratio of earnings to fixed charges for the
periods indicated. No shares of preferred stock were outstanding during the
periods indicated and we did not pay preferred stock dividends during these
periods. Consequently, the ratio of earnings to fixed charges and preferred
stock dividends is the same as the ratio of earnings to fixed charges for the
periods indicated.
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Thirty-Nine
Weeks
Ended
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Fiscal
Year Ended September 30,
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March
31,
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2009
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2008
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2007
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2006
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2005
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2004
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N/M*
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N/M*
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N/M*
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9.0
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N/M*
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N/M*
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We are
presenting the ratios above pursuant to the requirements set forth in Item 503
of Regulation S-K under the Securities Act of 1933. The earnings and fixed
charges in the above ratios are calculated using the definitions set forth by
Regulation S-K under the Securities Act of 1933.
*The
ratio of earnings to fixed charges for the six-months ended March 31, 2009 and
for the years ended September 30, 2008, 2007, 2005 and 2004 are not meaningful
since earnings available for fixed charges is negative for those
periods. The shortfall in the earnings available for fixed charges to
achieve a ratio of earnings to fixed charges of 1.00 amounted to $77.1 million
for the six months ended March 31, 2009 and $80.9 million, $58.7 million, $24.7
million, and 28.4 million for the years ended September 30, 2008, 2007, 2005 and
2004 respectively.
DESCRIPTION
OF COMMON STOCK
The
following is a description of our common stock. It does not purport
to be complete and is subject to, and qualified in its entirety by, the
provisions of our Restated Certificate of Incorporation and Amended By-Laws,
forms of which have previously been filed and are incorporated by reference into
this prospectus, and by the applicable provisions of New Jersey
law. See “Anti-takeover Effects of Provisions of Our Restated
Certificate of Incorporation and Amended By-laws” for more information regarding
the provisions of our Restated Certificate of Incorporation and Amended By-laws
that could effect an extraordinary corporate transaction.
General
Matters
Our
authorized capital stock consists of 200,000,000 shares of common stock, no par
value and 5,882,352 shares of preferred stock, $0.0001 par value. As
of June 22, 2009, we had 79,942,052 shares of common stock issued and
outstanding and no shares of preferred stock issued and
outstanding.
Common
Stock
Holders
of common stock are entitled to one vote per share on matters to be voted upon
by the shareholders of the Company. Subject to the preferences that may be
applicable to any outstanding shares of preferred stock, the holders of common
stock are entitled to receive ratably such dividends, if any, as may be declared
by the Board of Directors out of funds legally available therefor. In the event
of liquidation, dissolution or winding up of the Company, the holders of common
stock are entitled to share ratably in all assets remaining after payment of
liabilities, subject to the prior liquidation rights of any outstanding shares
of preferred stock. The common stock has no preemptive, redemption, conversion
or other subscription rights. The outstanding shares of common stock are, and
the shares offered by the Company in the offering will be, when issued and paid
for, fully paid and nonassessable. The rights, preferences and privileges of
holders of common stock are subject to, and may be adversely affected by, the
rights of the holders of shares of any series of preferred stock currently
outstanding or which the Company may designate and issue in the
future.
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for our common stock is American Stock Transfer
& Trust Company, New York, New York.
Listing
Our
shares of common stock are quoted on The Nasdaq National Market under the symbol
“EMKR”.
DESCRIPTION
OF PREFERRED STOCK
The Board
of Directors has the authority, without action by the stockholders, to designate
and issue preferred stock in one or more series and to designate the rights,
preferences and privileges of each series, which may be greater than the rights
of the common stock. It is not possible to state the actual effect of the
issuance of any shares of preferred stock upon the rights of holders of the
common stock until the Board of Directors determines the specific rights of the
holders of this preferred stock. However, the effects might include, among other
things:
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restricting
dividends on the common stock;
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diluting
the voting power of the common stock;
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impairing
the liquidation rights of the common stock; or
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delaying
or preventing a change in control of the company without further action by
the stockholders.
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No shares
of preferred stock are outstanding. The summary above is qualified by provisions
of applicable law. If we offer a specific series of preferred stock
under this prospectus, we will describe the terms of the preferred stock in the
prospectus supplement for such offering and will file a copy of the certificate
establishing the terms of the preferred stock with the SEC. To the extent
required, this description will include:
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the
title and stated value;
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the
number of shares offered, the liquidation preference per share and the
purchase price;
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the
dividend rate(s), period(s) and/or payment date(s), or method(s) of
calculation for such dividends;
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whether
dividends will be cumulative or non-cumulative and, if cumulative, the
date from which dividends will
accumulate;
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the
procedures for any auction and remarketing, if
any;
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the
provisions for a sinking fund, if
any;
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the
provisions for redemption, if
applicable;
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any
listing of the preferred stock on any securities exchange or
market;
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whether
the preferred stock will be convertible into our common stock, and, if
applicable, the conversion price (or how it will be calculated) and
conversion period;
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whether
the preferred stock will be exchangeable into debt securities, and, if
applicable, the exchange price (or how it will be calculated) and exchange
period;
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voting
rights, if any, of the preferred
stock;
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a
discussion of any material and/or special U.S. federal income tax
considerations applicable to the preferred
stock;
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the
relative ranking and preferences of the preferred stock as to dividend
rights and rights upon liquidation, dissolution or winding up of the
affairs of EMCORE; and
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any
material limitations on issuance of any class or series of preferred stock
ranking senior to or on a parity with the series of preferred stock as to
dividend rights and rights upon liquidation, dissolution or winding up of
EMCORE.
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DESCRIPTION
OF DEBT SECURITIES
The following description
of the terms of the debt securities sets forth certain general terms and
provisions of the debt securities to which any prospectus supplement may relate.
The particular terms of the debt securities offered by any prospectus supplement
and the extent, if any, to which these general provisions may apply to those
debt securities will be described in the prospectus supplement relating to those
debt securities. Accordingly, for a description of the terms of a particular
issue of debt securities, reference must be made to both the prospectus
supplement relating thereto and to the following description.
General
We may issue debt securities from time
to time in one or more series. The debt securities will be general obligations
of EMCORE Corporation. The debt securities may be fully and unconditionally
guaranteed on a secured or unsecured senior or subordinated basis, jointly and
severally, by guarantors, if any. In the event that any series of debt
securities will be subordinated to other indebtedness that we have outstanding
or may incur, the terms of the subordination will be set forth in the prospectus
supplement relating to the subordinated debt securities. Debt securities will be
issued under one or more indentures between us and one or more trustees named in
the prospectus supplement, which we refer to as the trustee. The statements made
in this prospectus relating to the indenture and the debt securities to be
issued under the indenture are summaries of certain terms and provisions of the
form of indenture that has been filed as Exhibit 4.2 to the registration
statement of which this prospectus forms a part and are not
complete. You should read the indenture for provisions that may be
important to you.
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the
interest rate, if any, and the method for calculating the interest
rate;
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the
interest payment dates and the record dates for the interest
payments;
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any
mandatory or optional redemption terms or prepayment, conversion, and
sinking fund terms;
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the
place where we will pay principal and
interest;
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if
other than denominations of $1,000 or multiples of $1,000 in excess
thereof, the denominations the debt securities will be issued
in;
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whether
the debt securities will be issued in the form of global securities or
certificates;
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additional
provisions, if any, relating to
defeasance;
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the
currency or currencies, if other than the currency of the United States,
in which principal and interest will be
paid;
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any
United States federal income tax
consequences;
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the
dates on which premium, if any, will be
paid;
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our
right, if any, to defer payment of interest and the maximum length of this
deferral period;
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any
listing on a securities exchange;
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limits
on aggregate principal amount;
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terms
of subordination of any subordinated debt
securities;
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the
initial public offering price; and
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other
specific terms, including any additional events of default or
covenants.
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We may, from time to time, without
notice to or the consent of registered holders of a particular series of debt
securities, create and issue further securities ranking pari passu with that series
of debt securities in all respects (or in all respects except for the payment of
interest accruing prior to the issue date of such further debt securities or
except for the first payment of interest following the issue date of such
further debt securities) and so that such further debt securities shall be
consolidated and form a single series with that particular series of debt
securities and shall have the same terms as to status, redemption or otherwise
as that series of debt securities.
We can issue an unlimited amount of
debt securities under the indenture that may be in one or more series with the
same or various maturities, at par, at a premium, or at a discount. The
indenture does not limit our ability to issue convertible or subordinated debt
securities. Any conversion or subordination provisions of a particular series of
debt securities will be set forth in the officer’s certificate or supplemental
indenture related to that series of debt securities and will be described in the
relevant prospectus supplement. Such terms may include provisions for
conversions, either mandatory, at the option of the holder or at our option, in
which case the number of shares of common stock, preferred stock or other
securities to be received by the holders of debt securities would be calculated
as of a time and in the manner stated in the prospectus supplement.
The debt securities will be issuable
only in fully registered form without coupons or in the form of one or more
global securities, as described below under “—Global Securities”. Unless the
prospectus supplement specifies otherwise, debt securities denominated in U.S.
dollars will be issued only in denominations of U.S.$1,000 and any integral
multiple of U.S.$1,000 in excess thereof. The prospectus supplement relating to
debt securities denominated in a foreign or composite currency will specify the
authorized denominations.
If the amount of payments of principal
of and premium, if any, or any interest on debt securities of any series is
determined with reference to any type of index or formula or changes in prices
of particular securities or commodities, the federal income tax consequences,
specific terms and other information with respect to these debt securities and
this index or formula, securities or commodities will be described in the
relevant prospectus supplement.
If the principal of and premium, if
any, or any interest on debt securities of any series are payable in a foreign
or composite currency, the restrictions, elections, federal income tax
consequences, specific terms and other information with respect to such debt
securities and such currency will be described in the relevant prospectus
supplement.
Payment of principal of and premium, if
any, on debt securities will be made in the designated currency against
surrender of any debt securities at the Corporate Trust Office of the trustee in
The City of New York. Unless otherwise indicated in the prospectus supplement,
payment of any installment of interest on debt securities will be made to the
person in whose name a relevant debt security is registered at the close of
business on the regular record date for such interest. Unless otherwise
indicated in the prospectus supplement, payments of such interest will be made
at the Corporate Trust Office of the trustee in The City of New York or by a
check in the designated currency mailed to the holder at such holder’s
registered address.
Debt securities may be issued as
original issue discount securities to be offered and sold at a substantial
discount below their stated principal amount. Federal income tax consequences
and other special considerations applicable to any original issue discount
securities will be described in the relevant prospectus supplement. “Original
issue discount security” means any debt security that provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof upon the occurrence of an event of
default and the continuation thereof.
Covenants
Consolidation,
Merger and Sale of Assets
We will agree under the indenture that
we will not consolidate with or merge into, or convey, transfer or lease all or
substantially all of our properties and assets to, any Person (a “Successor
Person”), and will not permit any Person to merge into us in a transaction in
which we are not the surviving entity, unless:
(i) the
Successor Person (if not EMCORE) is a corporation, limited liability company,
partnership or trust organized and validly existing under the laws of any
domestic jurisdiction and assumes our obligations on any outstanding debt
securities and under the indenture;
(ii)
immediately after giving effect to the transaction, and treating any
Indebtedness which becomes our obligation as a result of the transaction as
having been incurred by us at the time of the transaction, no event of default
and no event which, after notice or lapse of time or both, would become an event
of default, shall have occurred and be continuing; and
(iii) the
trustee receives an officers’ certificate and an opinion of counsel stating that
such action complies with this covenant.
Events
of Default
The indenture specifies that each of
the following will constitute an event of default with respect to the debt
securities of a particular series:
(a)
failure to pay principal of any debt security of that series at its
maturity;
(b)
failure to pay any interest on any debt security of that series when due,
continued for 30 days;
(c)
failure to deposit any sinking fund payment, when and as due by the terms of
that series;
(d)
failure to perform any covenant of ours applicable to that series in the
indenture, continued for 60 days after written notice of such failure is given
by the trustee or the holders of at least 25% in principal amount of the
outstanding debt securities of that series, as provided in the indenture;
and
(e)
certain events in bankruptcy, insolvency or reorganization.
If an event of default (other than an
event of default described in clause (e) above) shall occur and be continuing,
either the trustee or the holders of at least 25% in aggregate principal amount
of the outstanding debt securities of that series by notice as provided in the
indenture may declare the principal amount of such series of the debt securities
to be due and payable immediately. If an event of default described in clause
(e) above shall occur, the principal amount of all the outstanding debt
securities of that series will automatically, and without any action by the
trustee or any holder, become immediately due and payable. After any such
acceleration, but before a judgment or decree for payment of the money due, the
holders of a majority in aggregate principal amount of the outstanding debt
securities of a particular series may, under certain circumstances, rescind and
annul such acceleration if all events of default, other than the non-payment of
accelerated principal, have been cured or waived as provided in the indenture.
For information as to waiver of defaults, see “—Modification and
Waiver.”
Subject to the provisions of the
indenture relating to the duties of the trustee in case an event of default
shall occur and be continuing, the trustee will be under no obligation to
exercise any of its rights or powers under the indenture at the request or
direction of any of the holders, unless such holders shall have offered to the
trustee reasonable indemnity. Subject to such provisions for the indemnification
of the trustee, the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the trustee or exercising any trust or power conferred on the trustee with
respect to such series of the debt securities.
No holder of a debt security will have
any right to institute any proceeding with respect to the indenture, or for the
appointment of a receiver or a trustee, or for any other remedy thereunder,
unless:
(i) such
holder has previously given to the trustee written notice of a continuing event
of default with respect to such series of the debt securities;
(ii) the
holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series have made written request, and such holder or holders
have offered reasonable indemnity, to the trustee to institute such proceeding
as trustee; and
(iii) the
trustee has failed to institute such proceeding, and has not received from the
holders of a majority in aggregate principal amount of the outstanding debt
securities of that series a direction inconsistent with such request, within 60
days after such notice, request and offer. However, such limitations do not
apply to a suit instituted by a holder of a debt security for the enforcement of
payment of the principal of or interest on such debt security on or after the
applicable due date specified in such debt security.
Modification
and Waiver
Together with the trustee, we may
modify the indenture without the consent of any holder for certain purposes,
including evidencing the succession of another person to us and such person’s
assumption of our obligations under the indenture, adding to our covenants or
events of default, establishing forms or terms of debt securities, curing
ambiguities and other purposes which do not adversely affect the holders in any
material respect.
Other modifications and amendments of
the indenture may be made by us and the trustee with the consent of the holders
of at least a majority in aggregate principal amount of each series of the
outstanding debt securities that is affected by such modification or amendment,
all holders of all such affected series voting together as one
class.
No such modification or amendment may,
without the consent of the holder of each outstanding debt security affected
thereby:
(a)
change the stated maturity of the principal of, or any installment of interest
on, or the redemption price of, any such debt security;
(b)
reduce the principal amount of or interest on, any such debt
security;
(c)
change currency of payment of principal of or interest on, any such debt
security;
(d)
impair the right to institute suit for the enforcement of any payment on any
such debt security;
(e)
reduce the percentage in principal amount of outstanding debt securities of a
particular series, the consent of whose holders is required for modification or
amendment of the indenture, or for waiver of compliance with certain provisions
of the indenture or waiver of certain defaults; or
(f)
modify such provisions with respect to modification and waiver.
The holders of at least a majority in
principal amount of each series of the outstanding debt securities that is
affected by such waiver, all holders of all such affected series voting together
as one class, may waive our compliance with certain restrictive provisions of
the indenture, and may waive any past default under the indenture, except a
default in the payment of principal or interest and certain covenants and
provisions of the indenture which cannot be amended without the consent of the
holder of each outstanding debt security affected by such default.
Defeasance
and Discharge; Covenant Defeasance
Unless the terms of a particular series
provide otherwise, we may elect, at our option at any time, to have the
indenture provisions relating to defeasance and discharge of indebtedness, or
relating to defeasance of certain restrictive covenants in the indenture,
applied to any series of the outstanding debt securities.
Defeasance
and Discharge
The indenture provides that upon our
exercise of our option to have the provisions relating to defeasance and
discharge applied to a particular series of the debt securities, we will be
discharged from all our obligations with respect to such series of the debt
securities (except for certain obligations to exchange or register the transfer
of debt securities, to replace stolen, lost or mutilated debt securities, to
maintain paying agencies and to hold moneys for payment in trust) upon the
deposit in trust for the benefit of the holders of the debt securities of such
series of money or U.S. government obligations, or both, which, through the
payment of principal and interest in respect thereof in accordance with their
terms, will provide money in an amount sufficient to pay the principal of and
interest on the debt securities of such series at maturity in accordance with
the terms of the indenture and such debt securities. Such defeasance or
discharge may occur only if, among other things, we have delivered to the
trustee an opinion of counsel to the effect that we have received from, or there
has been published by, the United States Internal Revenue Service a ruling, or
there has been a change in tax law, in either case to the effect that holders of
the debt securities of such series will not recognize gain or loss for federal
income tax purposes as a result of such deposit, defeasance and discharge and
will be subject to federal income tax on the same amount, in the same manner and
at the same times as would have been the case if such deposit, defeasance and
discharge were not to occur.
Defeasance
of Certain Covenants
The indenture provides that, upon our
exercise of our option to have the provisions relating to defeasance of certain
restrictive covenants applied to a particular series of the debt securities, we
may, with respect to such series, omit to comply with certain restrictive
covenants, including those described under “—Consolidation, Merger and Sale of
Assets,” and the occurrence of certain events of default, which are described
above in clause (d) under “Events of Default,” will be deemed not to be or
result in an event of default, in each case with respect to such
series.
We, in
order to exercise such option, will be required, among other
things:
(1) to
deposit, in trust for the benefit of the holders of such series of the debt
securities, money or U.S. government obligations, or both, which, through the
payment of principal and interest in respect thereof in accordance with their
terms, will provide money in an amount sufficient to pay the principal of and
interest on such series of the debt securities at maturity in accordance with
the terms of the indenture and such debt securities, and
(2) to
deliver to the trustee an opinion of counsel to the effect that holders of such
series of the debt securities will not recognize gain or loss for federal income
tax purposes as a result of such deposit and defeasance of certain obligations
and will be subject to federal income tax on the same amount, in the same manner
and at the same times as would have been the case if such deposit and defeasance
were not to occur.
In the event we exercise this option
and the debt securities are declared due and payable because of the occurrence
of any event of default, the amount of money and U.S. government obligations so
deposited in trust would be sufficient to pay amounts due on that series of the
debt securities at maturity but may not be sufficient to pay amounts due on that
series of the debt securities upon any acceleration resulting from such event of
default. In such case, we would remain liable for such payments.
Regarding
the Trustee
The indenture provides that, except
during the continuance of an event of default, the trustee will perform only
such duties as are specifically set forth in the indenture. During the existence
of an event of default, the trustee will exercise such rights and powers vested
in it under the indenture and use the same degree of care and skill in its
exercise as a prudent person would exercise under the circumstances in the
conduct of such person’s own affairs.
The indenture and provisions of the
Trust Indenture Act incorporated by reference therein contain limitations on the
rights of the trustee, should it become a creditor of us, to obtain payment of
claims in certain cases or to realize on certain property received by it in
respect of any such claim as security or otherwise. The trustee is permitted to
engage in other transactions with us or any affiliate of us; provided, however,
that if it acquires any conflicting interest (as defined in the indenture or in
the Trust Indenture Act), it must eliminate such conflict or
resign.
The trustee for any debt securities
will be set forth in the applicable prospectus supplement.
Form of Debt
Securities
Each debt security will be represented
either by a certificate issued in definitive form to a particular investor or by
one or more global securities representing the entire issuance of securities.
Certificated securities in definitive form and global securities will be issued
in registered form.
Definitive securities name you or your
nominee as the owner of the security, and in order to transfer or exchange these
securities or to receive payments other than interest or other interim payments,
you or your nominee must physically deliver the securities to the trustee,
registrar, paying agent or other agent, as applicable.
Global securities name a depositary or
its nominee as the owner of the debt securities represented by these global
securities. The depositary maintains a computerized system that will reflect
each investor’s beneficial ownership of the securities through an account
maintained by the investor with its broker/dealer, bank, trust company or other
representative, as we explain more fully below.
Global
Securities
We may issue the debt securities in
whole or in part in the form of one or more fully registered global securities
that will be deposited with a depositary or its nominee identified in the
prospectus supplement relating to that series and registered in the name of that
depositary or nominee. In those cases, one or more registered global securities
will be issued in a denomination or aggregate denominations equal to the portion
of the aggregate principal or face amount of the securities to be represented by
registered global securities. Unless and until it is exchanged in whole for
securities in definitive registered form, a registered global security may not
be transferred except as a whole by and among the depositary for the registered
global security, the nominees of the depositary or any successors of the
depositary or those nominees.
If not described below, any specific
terms of the depositary arrangement with respect to any securities to be
represented by a registered global security will be described in the prospectus
supplement relating to those securities. We anticipate that the following
provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a
registered global security will be limited to persons, called participants, that
have accounts with the depositary or persons that may hold interests through
participants. Upon the issuance of a registered global security, the depositary
will credit, on its book-entry registration and transfer system, the
participants’ accounts with the respective principal or face amounts of the
securities beneficially owned by the participants. Any dealers, underwriters or
agents participating in the distribution of the securities will designate the
accounts to be credited. Ownership of beneficial interests in a registered
global security will be shown on, and the transfer of ownership interests will
be effected only through, records maintained by the depositary, with respect to
interests of participants, and on the records of participants, with respect to
interests of persons holding through participants. The laws of some states may
require that some purchasers of securities take physical delivery of these
securities in definitive form. These laws may impair your ability to own,
transfer or pledge beneficial interests in registered global
securities.
So long as the depositary, or its
nominee, is the registered owner of a registered global security, that
depositary or its nominee, as the case may be, will be considered the sole owner
or holder of the securities represented by the registered global security for
all purposes under the indenture. Except as described below, owners of
beneficial interests in a registered global security will not be entitled to
have the securities represented by the registered global security registered in
their names, will not receive or be entitled to receive physical delivery of the
securities in definitive form and will not be considered the owners or holders
of the securities under the indenture. Accordingly, each person owning a
beneficial interest in a registered global security must rely on the procedures
of the depositary for that registered global security and, if that person is not
a participant, on the procedures of the participant through which the person
owns its interest, to exercise any rights of a holder under the indenture. We
understand that under existing industry practices, if we request any action of
holders or if an owner of a beneficial interest in a registered global security
desires to give or take any action that a holder is entitled to give or take
under the indenture, the depositary for the registered global security would
authorize the participants holding the relevant beneficial interests to give or
take that action, and the participants would authorize beneficial owners owning
through them to give or take that action or would otherwise act upon the
instructions of beneficial owners holding through them.
Principal, premium, if any, and
interest payments on debt securities represented by a registered global security
registered in the name of a depositary or its nominee will be made to the
depositary or its nominee, as the case may be, as the registered owner of the
registered global security. None of EMCORE, the trustee or any agent of EMCORE
or agent of the trustee will have any responsibility or liability for any aspect
of the records relating to payments made on account of beneficial ownership
interests in the registered global security or for maintaining, supervising or
reviewing any records relating to those beneficial ownership
interests.
We expect that the depositary for any
of the securities represented by a registered global security, upon receipt of
any payment of principal, premium or interest to holders on that registered
global security, will immediately credit participants’ accounts in amounts
proportionate to their respective beneficial interests in that registered global
security as shown on the records of the depositary. We also expect that payments
by participants to owners of beneficial interests in a registered global
security held through participants will be governed by standing customer
instructions and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered in “street
name,” and will be the responsibility of those participants.
If the depositary for any of these
securities represented by a registered global security is at any time unwilling
or unable to continue as depositary or ceases to be a clearing agency registered
under the Exchange Act and a successor depositary registered as a clearing
agency under the Exchange Act is not appointed by us within 90 days, we will
issue securities in definitive form in exchange for the registered global
security that had been held by the depositary. In addition, we may at any time
and in our sole discretion decide not to have any of the securities represented
by one or more registered global securities. If we make that decision, we will
issue securities in definitive form in exchange for all of the registered global
security or securities representing those securities. Any securities issued in
definitive form in exchange for a registered global security will be registered
in the name or names that the depositary gives to the trustee or other relevant
agent of ours or theirs. It is expected that the depositary’s instructions will
be based upon directions received by the depositary from participants with
respect to ownership of beneficial interests in the registered global security
that had been held by the depositary.
DESCRIPTION
OF WARRANTS
We
may issue warrants to purchase shares of our common stock, preferred stock
and/or debt securities in one or more series together with other securities or
separately, as described in the applicable prospectus supplement. Below is a
description of certain general terms and provisions of the warrants that we may
offer. Particular terms of the warrants will be described in the warrant
agreements and the prospectus supplement to the warrants.
The
applicable prospectus supplement will contain, where applicable, the following
terms of and other information relating to the warrants:
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the
title of the warrants;
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the
offering price of the warrants;
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the
aggregate number of the warrants;
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the
currency or currency units in which the offering price, if any, and the
exercise price are payable;
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the
designation, amount and terms of the securities purchasable upon exercise
of the warrants;
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if
applicable, the exercise price for shares of our common stock and the
number of shares of common stock to be received upon exercise of the
warrants;
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if
applicable, the exercise price for shares of our preferred stock, the
number of shares of preferred stock to be received upon exercise, and a
description of that series of our preferred
stock;
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if
applicable, the exercise price for our debt securities, the amount of debt
securities to be received upon exercise, and a description of that series
of debt securities;
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the
date on which the right to exercise the warrants will begin and the date
on which that right will expire or, if you may not continuously exercise
the warrants throughout that period, the specific date or dates on which
you may exercise the warrants;
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whether
the warrants will be issued in fully registered form or bearer form, in
definitive or global form or in any combination of these forms, although,
in any case, the form of a warrant included in a unit will correspond to
the form of the unit and of any security included in that
unit;
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any
applicable material U.S. federal income tax
consequences;
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the
identity of the warrant agent for the warrants and of any other
depositaries, execution or paying agents, transfer agents, registrars or
other agents;
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the
proposed listing, if any, of the warrants or any securities purchasable
upon exercise of the warrants on any securities
exchange;
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if
applicable, the date from and after which the warrants and the common
stock, preferred stock and/or debt securities will be separately
transferable;
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if
applicable, the minimum or maximum amount of the warrants that may be
exercised at any one time;
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information
with respect to book-entry procedures, if
any;
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the
anti-dilution provisions of the warrants, if
any;
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any
redemption or call provisions;
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whether
the warrants are to be sold separately or with other securities as parts
of units; and
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any
additional terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the
warrants.
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Transfer
Agent and Registrar
The
transfer agent and registrar for any warrants will be set forth in the
applicable prospectus supplement.
DESCRIPTION
OF UNITS
We
may issue units consisting of common stock, preferred stock, debt securities
and/or warrants for the purchase of common stock, preferred stock and/or debt
securities in one or more series. In this prospectus, we have summarized certain
general features of the units. We urge you, however, to read the prospectus
supplements related to the series of units being offered, as well as the unit
agreements that contain the terms of the units. We will file as exhibits to an
amendment to the registration statement of which this prospectus is a part, or
will incorporate by reference from a current report on Form 8-K that we file
with the SEC, as applicable, the form of unit agreement and any supplemental
agreements that describe the terms of the series of units we are offering before
the issuance of the related series of units.
We
will evidence each series of units by unit certificates that we will issue under
a separate agreement. We will enter into the unit agreements with a unit agent.
Each unit agent will be a bank or trust company that we select. We will indicate
the name and address of the unit agent in the applicable prospectus supplement
relating to a particular series of units.
PLAN
OF DISTRIBUTION
Any of
the securities being offered hereby and in any accompanying prospectus
supplement may be sold in any one or more of the following ways from time to
time:
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directly
to purchasers;
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to
or through underwriters;
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directly
to our stockholders; or
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through
a combination of any such methods of
sale.
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The
distribution of the securities may be effected from time to time in one or more
transactions at a fixed price or prices, which may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices.
We may
solicit offers to purchase directly. Offers to purchase securities also may be
solicited by agents designated by us from time to time. Any such agent involved
in the offer or sale of the securities in respect of which this prospectus is
delivered will be named, and any commissions payable by us to such agent will be
set forth, in the applicable prospectus supplement. Unless otherwise indicated
in such prospectus supplement, any such agent will be acting on a reasonable
best efforts basis for the period of its appointment. Any such agent may be
deemed to be an underwriter, as that term is defined in the Securities Act, of
the securities so offered and sold.
If
securities are sold by means of an underwritten offering, we will execute an
underwriting agreement with an underwriter or underwriters at the time an
agreement for such sale is reached, and the names of the specific managing
underwriter or underwriters, as well as any other underwriters, the respective
amounts underwritten and the terms of the transaction, including commissions,
discounts and any other compensation of the underwriters and dealers, if any,
will be set forth in the applicable prospectus supplement which will be used by
the underwriters to make resales of the securities in respect of which this
prospectus is being delivered to the public. If underwriters are utilized in the
sale of any securities in respect of which this prospectus is being delivered,
such securities will be acquired by the underwriters for their own account and
may be resold from time to time in one or more transactions, including
negotiated transactions, at fixed public offering prices, at market prices
prevailing at the time of sale or at varying prices determined by the
underwriters at the time of sale. Securities may be offered to the public either
through underwriting syndicates represented by managing underwriters or directly
by one or more underwriters. If any underwriter or underwriters are utilized in
the sale of securities, unless otherwise indicated in the applicable prospectus
supplement, the underwriting agreement will provide that the obligations of the
underwriters are subject to certain conditions precedent and that the
underwriters with respect to a sale of such securities will be obligated to
purchase all such securities if any are purchased.
We may
grant to the underwriters options to purchase additional securities, to cover
over-allotments, if any, at the initial public offering price (with additional
underwriting commissions or discounts), as may be set forth in the prospectus
supplement relating thereto. If we grant any over-allotment option, the terms of
such over-allotment option will be set forth in the prospectus supplement for
such securities.
If a
dealer is used in the sale of the securities in respect of which this prospectus
is delivered, we will sell such securities to the dealer, as principal. The
dealer may then resell such securities to the public at varying prices to be
determined by such dealer at the time of resale. Any such dealer may be deemed
to be an underwriter, as such term is defined in the Securities Act, of the
securities so offered and sold. The name of the dealer and the terms of the
transaction will be set forth in the prospectus supplement relating
thereto.
Offers to
purchase securities may be solicited directly by us and the sale thereof may be
made by us directly to institutional investors or others, who may be deemed to
be underwriters within the meaning of the Securities Act with respect to any
resale thereof. The terms of any such sales will be described in the prospectus
supplement relating thereto.
We may
offer our equity securities into an existing trading market on the terms
described in the applicable prospectus supplement. Underwriters and dealers who
may participate in any at-the-market offerings will be described in the
prospectus supplement relating thereto.
Agents,
underwriters and dealers may be entitled under relevant agreements with us to
indemnification by us against certain liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments which such
agents, underwriters and dealers may be required to make in respect
thereof.
Any
underwriter may engage in stabilizing and syndicate covering transactions in
accordance with Rule 104 under Regulation M. Rule 104 permits stabilizing bids
to purchase the underlying security so long as the stabilizing bids do not
exceed a specified maximum. The underwriters may over-allot shares of the
securities in connection with an offering of securities, thereby creating a
short position in the underwriters’ account. Syndicate covering transactions
involve purchases of the securities in the open market after the distribution
has been completed in order to cover syndicate short positions. Stabilizing and
syndicate covering transactions may cause the price of the securities to be
higher than it would otherwise be in the absence of such transactions. These
transactions, if commenced, may be discontinued at any time.
We may
elect to list any series of securities on an exchange but, unless otherwise
specified in the applicable prospectus supplement, we shall not be obligated to
do so. No assurance can be given as to the liquidity of the trading market for
any of the securities.
Agents,
underwriters and dealers may be customers of, engage in transactions with, or
perform services for, us and our subsidiaries in the ordinary course of
business.
The anticipated date of delivery of
securities will be set forth in the applicable prospectus supplement relating to
each offer.
ANTITAKEOVER
EFFECTS OF PROVISIONS OF OUR RESTATED CERTIFICATE OF INCORPORATION AND AMENDED
BY-LAWS
Our Board
of Directors is divided into three classes. As a result of this provision, at
least two annual meetings of shareholders may be required for shareholders to
change a majority of the Board of Directors. Our by-laws provide that the Board
of Directors shall consist of not less than six nor more than twelve members,
with the exact number to be determined by the vote of not less than 66 2/3 % of
the Board of Directors from time to time. 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. Unless otherwise
required by law, vacancies on the Board of Directors, including vacancies
resulting from an increase in the number of directors or the removal of
directors, may only be filled by an affirmative vote of 66 2/3% of the directors
then in office. The classification of directors, the ability of the
Board of Directors to increase the number of directors, the inability of the
shareholders to remove directors without cause or fill vacancies on the Board of
Directors and the inability of holders of less than 80% of our capital stock to
remove directors even with cause will make it more difficult to change the Board
of Directors, and will promote the continuity of existing
management.
These and
other provisions also may have the effect of deterring, preventing or delaying
changes in control or management. These provisions are intended to enhance the
likelihood of continued stability in the composition of the Board of Directors
and in the policies furnished by the Board of Directors and to discourage types
of transactions that may involve an actual or threatened change of control.
These provisions are designed to reduce our vulnerability to an unsolicited
acquisition proposal. The provisions also are intended to discourage tactics
that may be used in proxy fights. However, such provisions could have the effect
of discouraging others from making tender offers for our shares and, as a
consequence, they also may inhibit fluctuations in the market price of our
shares that could result from actual or rumored takeover attempts. These
provisions also may have the effect of preventing changes in our
management.
NEW
JERSEY SHAREHOLDERS PROTECTION ACT
The New
Jersey Shareholders Protection Act, NJSA 14A:10A−1 et seq., which we refer to as
New Jersey Act, prohibits certain New Jersey corporations, such as us following
this offering, from entering into certain “business combinations” with an
“interested shareholder” (any person who is the beneficial owner of 10% or more
of such corporation’s outstanding voting securities) for five years after such
person became an interested shareholder, unless the business combination or the
interested shareholder’s acquisition of stock was approved by the corporation’s
Board of Directors prior to such interested shareholder’s stock acquisition
date. After the five-year waiting period has elapsed, a business combination
between such corporation and an interested shareholder will be prohibited unless
the business combination is approved by the holders of at least two-thirds of
the voting stock not beneficially owned by the interested shareholder, or unless
the business combination satisfies the New Jersey Act’s fair price provision
intended to provide that all shareholders (other than the interested
shareholders) receive a fair price for their shares.
The New
Jersey Act defines “business combination” to include the following transactions
between a corporation or a subsidiary and an interested shareholder or such
interested shareholder’s affiliates: (1) the merger or consolidation of the
corporation with the interested shareholder or any corporation that after the
merger or consolidation would be an affiliate or associate of the interested
shareholder; (2) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition to or with the interested shareholder, which has an aggregate market
value equal to 10% or more of the aggregate market value of all of the assets or
of the outstanding stock, or 10% or more of the income of the corporation or its
subsidiaries; (3) the issuance or transfer to the interested shareholder of any
stock of the corporation having an aggregate market value equal to or greater
than 5% of the corporation’s outstanding stock; (4) the adoption of a plan or
proposal for the liquidation or dissolution of the corporation proposed by the
interested shareholder; (5) any reclassification of securities proposed by the
interested shareholder that has the effect, directly or indirectly, of
increasing any class or series of stock that is owned by the interested
shareholder; and (6) the receipt by the interested shareholder of any loans or
other financial assistance from the corporation.
The New
Jersey Act does not apply to certain business combinations, including those with
persons who acquired 10% or more of the voting power of the corporation prior to
the time the corporation was required to file periodic reports pursuant to the
Exchange Act or prior to the time the corporation’s securities began to trade on
a national securities exchange.
LEGAL
MATTERS
The
validity of the shares of common stock and matters governed by New Jersey law
will be passed upon by Dillon, Bitar & Luther, L.L.C.
EXPERTS
The consolidated financial statements
incorporated in this Prospectus by reference from the Company’s Annual Report on
Form 10-K, and the effectiveness of EMCORE Corporation's internal control over
financial reporting have been audited by Deloitte & Touche LLP, an
independent registered public accounting firm, as stated in their reports which
are incorporated herein by reference (which reports (1) express an unqualified
opinion on the consolidated financial statements and include an explanatory
paragraph relating to the Company’s ability to continue as a going concern and
(2) express an unqualified opinion on the effectiveness of internal control over
financial reporting). Such financial statements have been so
incorporated in reliance upon the reports 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 Securities and Exchange
Commission. You may read and copy any document that we file at the Public
Reference Room of the SEC located at 100 F Street, N.E., Washington, D.C. 20549.
You may obtain information on the operation of the Public Reference Room by
calling the SEC at 1-800-SEC-0330. In addition, the SEC maintains an Internet
site at www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants that file electronically, including
EMCORE. Except as expressly set forth under “Information Incorporated by
Reference,” we are not incorporating the contents of the SEC website into this
prospectus.
We have
filed with the SEC a registration statement on Form S-3 (together with all
amendments and exhibits, the “registration statement”) under the Securities Act
of 1933, as amended with respect to the offering of common stock. This
prospectus, which constitutes part of the registration statement, does not
contain all of the information set forth in the registration statement. Certain
parts of the registration statement are omitted from the prospectus in
accordance with the rules and regulations of the SEC.
Our
common stock is listed on The NASDAQ Global Market and similar information can
be inspected and copied at the offices of the Financial Industry
Regulatory Authority, 1735 K Street, N.W., Washington, D.C. 20006.
INFORMATION
INCORPORATED BY REFERENCE
The SEC
allows us to incorporate by reference in this prospectus the information in
documents we file with the SEC, which means that we can disclose important
information to you by referring you to those documents. The
information in this prospectus updates (and, to the extent of any conflict,
supersedes) information incorporated by reference that we have filed with the
SEC prior to the date of this prospectus. You should read all of the
information incorporated by reference because it is an important part of this
prospectus.
We
incorporate by reference the documents listed below and any future filings made
with the SEC by us under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the securities (other than filings or
portions of filings that are furnished under applicable SEC rules rather than
filed):
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•
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Annual
report on Form 10-K for the fiscal year ended September 30, 2008, filed
with the SEC on December 30, 2008, as amended by the Form 10-K/A filed on
January 28, 2009.
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•
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Definitive
Proxy Statement pursuant to Section 14(a) of the Exchange Act, filed with
the SEC on March 27, 2009.
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•
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Quarterly
Reports on Form 10-Q for the quarters ended December 31, 2008, and March
31, 2009, filed with the SEC on February 17, 2009 and May 11, 2009,
respectively.
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•
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Current
Reports on Forms 8-K filed with the SEC on February 10, 2009, March 6,
2009, May 6, 2009, May 15, 2009, and June 4, 2009.
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•
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The
description of our common stock contained in our Registration Statement on
Form 8-A filed with the SEC on February 26,
1997.
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You may
also find additional information about us, including the documents mentioned
above, on our website at www.emcore.com. The information included or
linked to this website is not a part of this prospectus.
We hereby
undertake to provide without charge to each person, including any beneficial
owner, to whom a copy of this prospectus is delivered, upon written or oral
request of any such person, a copy of any and all of the reports or documents
that have been incorporated by reference in this prospectus, other than exhibits
to such documents unless such exhibits have been specifically incorporated by
reference thereto. Requests for such copies should be directed to our Investor
Relations department, at the following address:
EMCORE
Corporation
10420
Research Road, SE
Albuquerque,
New Mexico 87123
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the estimated costs and expenses of the sale and
distribution of the securities being registered, all of which are being borne by
the Registrant.
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SEC
registration fee
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$
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2,790
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Printing
and engraving fees
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10,000
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Legal
fees and expenses
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20,000
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Accounting
fees and expenses
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10,000
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Total
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$
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42,790
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Item
15. Indemnification of Directors and Officers
The
Company’s Restated Certificate of Incorporation and By-Laws include provisions
(i) to reduce the personal liability of the Company’s directors for monetary
damage resulting from breaches of their fiduciary duty, and (ii) to permit the
Company to indemnify its directors and officers to the fullest extent permitted
by New Jersey law. The Company has obtained directors’ and officers’ liability
insurance that insures such persons against the costs of defense, settlement, or
payment of a judgment under certain circumstances.
Subject
to certain limitations, we are obligated to indemnify our current and former
directors, officers and employees in connection with the investigation of our
historical stock option granting practices, related government investigation and
shareholder litigation. These obligations arise under the terms of our
certificate of incorporation, our by-laws, applicable contracts, and New Jersey
law. The obligation to indemnify generally means that we are required to pay or
reimburse the individuals’ reasonable legal expenses and possibly damages and
other liabilities incurred in connection with these matters. We are currently
paying or reimbursing legal expenses being incurred in connection with these
matters by a number of our current and former directors, officers and employees.
The maximum potential amount of future payments the Company could be required to
make under these indemnification agreements is unlimited; however, the Company
has a director and officer liability insurance policies that limits its exposure
and enables it to recover a portion of any future amounts paid.
Item
16. Exhibits and Financial Statement Schedules
(a)
Exhibits.
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3.1
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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).
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3.2
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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).
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4.1
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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).
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4.2
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Form
of Indenture.*
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4.3
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Form
of Debt Security (included in Exhibit 4.2).*
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4.4
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Form
of Warrant.**
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4.5
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Form
of Warrant Agreement.**
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5.1
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Opinion
of Dillon, Bitar & Luther, L.L.C.*
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12.1
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Statement
of Computation of Ratios of Earnings to Fixed Charges.*
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21.1
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Subsidiaries
of Registrant.*
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23.1
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Consent
of Deloitte & Touche LLP.*
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23.3
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Consent
of Dillon, Bitar & Luther, L.L.C. (contained in Exhibit
5.1).*
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25.1
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Statement
of Eligibility of Trustee for the Debt
Securities.***
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_________
* Filed herewith.
** To be filed, if necessary, on an
exhibit to a post-effective amendment to this registration statement or as on
exhibit to a Current Report on Form 8-K to be filed by the registrant in
connection with a specific offering, and incorporated herein by
reference.
*** To be filed pursuant to Section
305(b)(2) of the Trust Indenture Act.
(b) Financial
Statement Schedules. Not
applicable.
Item
17. Undertakings
(a) 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:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this 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 this 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 effective
registration statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post−effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post−effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for purposes of determining liability under the Securities Act to any
purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Provided, however, that no statement
made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective
date.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities: The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424 under the Securities Act
of 1933;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or an behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934), 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.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
(d) The
undersigned registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of
section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and
regulations prescribed by the Commission under section 305(b)(2) of the
Act.
Pursuant
to the requirements of the Securities Act of 1933, the registrant, EMCORE
Corporation, certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Albuquerque, State of New Mexico, on the 2nd day
of July, 2009.
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EMCORE
CORPORATION
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Date:
July 2,
2009
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By:
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/s/
Reuben F. Richards
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Reuben
F. Richards, Jr.
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Executive
Chairman & Chairman of the Board
(Principal
Executive Officer)
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Date:
July 2,
2009
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By:
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/s/
Hong Q. Hou
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Hong
Q. Hou, Ph.D.
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Chief
Executive Officer
(Principal
Executive Officer)
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Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons on behalf of the registrant in the
capacities indicated, on July 2, 2009.
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Signature
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Title
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/s/
Reuben F. Richards
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Reuben
F. Richards, Jr.
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Executive
Chairman and Chairman of the Board (Principal Executive
Officer)
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/s/
Hong Q. Hou
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Hong
Q. Hou, Ph.D.
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President,
Chief Executive Officer, and Director (Principal Executive
Officer)
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/s/
John M. Markovich
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John
M. Markovich
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Chief
Financial Officer (Principal Financial and Accounting
Officer)
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/s/
Thomas J. Russell
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Thomas
J. Russell, Ph.D.
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Director
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/s/
Charles T. Scott
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Charles
T. Scott
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Director
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/s/
John Gillen
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John
Gillen
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Director
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/s/
Robert Bogomolny
|
|
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Robert
Bogomolny
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Director
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