AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 10, 2004
REGISTRATION NO. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EMCORE CORPORATION
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEW JERSEY 22-2746503
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(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
145 BELMONT DRIVE, SOMERSET, NEW JERSEY 08873
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
EMCORE CORPORATION
DIRECTORS' STOCK AWARD PLAN
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(FULL TITLE OF THE PLAN)
THOMAS G. WERTHAN
EMCORE CORPORATION
145 BELMONT DRIVE
SOMERSET, NEW JERSEY 08873
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(NAME AND ADDRESS OF AGENT FOR SERVICE)
(732) 271-9090
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(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED(1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE(1) PRICE(1)
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Common Stock, without par value n/a n/a $250,000 $ 31.68
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(1) This registration statement is being filed for purposes of registering an
additional $250,000 in shares of Common Stock of EMCORE Corporation,
issuable pursuant to our Directors' Stock Award Plan (the "Plan"). We have
previously registered $281,250 in shares pursuant to a registration
statement on Form S-8 (File No. 333-39547) under the Plan. The registration
fee for the previously registered shares was paid at the time that the
previous registration statement was filed.
EXPLANATORY NOTE
Pursuant to General Instruction E of Form S-8, the registrant, EMCORE
Corporation (the "Registrant"), is filing this registration statement
("Registration Statement") with respect to the issuance of an additional
$250,000 of its common stock (valued as of the date of issue), no par value per
share (the "Common Stock"), under the Plan.
On November 5, 1997, the Registrant filed a registration statement (the
"Prior Registration Statement") on Form S-8 (File No. 333-39547) with respect to
the issuance of shares of Common Stock under the Plan. The contents of the Prior
Registration Statement are hereby incorporated in this Registration Statement by
reference.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to persons to whom the information is required to be given as
specified by Rule 428(b)(1) of the Securities Act. Such documents are not being
filed with the Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. Such documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of this Form, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 2003.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended December 31, 2003.
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2004.
(4) The Registrant's Current Reports on Form 8-K filed with the
Commission on October 14, 2003, November 18, 2003, December 29,
2003, January 21, 2004 (2), February 17, 2004, February 19, 2004,
and July 16, 2004, and the Registrant's
Current Reports on Form 8-K/A filed with the Commission on
February 18, 2004 and May 19, 2004.
(5) The Registrant's Registration Statement on Form 8-A, filed with
the Commission on February 26, 1997 (File Number 0-22175) pursuant
to Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), which incorporates by reference the
description of the shares of Common Stock contained in the
Registration Statement on Form S-1 (File Number 333-18565) filed
by the Registrant on December 23, 1996, as amended by Amendment
No. 1 filed on February 6, 1997, Amendment No. 2 filed on February
11, 1997 and Amendment No. 3 filed on February 24, 1997, and
declared effective by the Commission on March 6, 1997, and any
amendment or report filed with the Commission for purposes of
updating such description.
All reports and other documents filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act
after the date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement, which indicates that
all securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the respective dates of filing of such reports and
documents.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Somerset, State of New Jersey, on this 10th day of
August, 2004.
EMCORE Corporation
By: /s/ Thomas G. Werthan
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Thomas G. Werthan
Chief Financial Officer
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints and
hereby authorizes Reuben F. Richards, Jr. and Thomas G. Werthan, severally, such
person's true and lawful attorneys-in-fact, with full power of substitution or
resubstitution, for such person and in his name, place and stead, in any and all
capacities, to sign on such person's behalf, individually and in each capacity
stated below, any and all amendments, including post-effective amendments to
this Registration Statement and to sign any and all additional registration
statements relating to the same offering of securities as this Registration
Statement that are filed pursuant to Rule 462(b) of the Securities Act, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission granting unto said attorneys-in-fact, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-8 has been signed by the following persons in the capacities
and on the date indicated.
SIGNATURE TITLE DATE
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Chairman of the Board of Directors August 10, 2004
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Thomas J. Russell
President, Chief Executive Officer and August 10, 2004
- ------------------------------------------- Director (Principal Executive Officer)
Reuben F. Richards, Jr.
Chief Financial Officer and Director August 10, 2004
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Thomas G. Werthan
Chief Technology Officer and Director August 10, 2004
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Richard A. Stall
Director August 10, 2004
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Robert Bogomolny
Director August 10, 2004
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John M. Gillen
Director August 10, 2004
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Robert Louis-Dreyfus
Director August 10, 2004
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Charles Thomas Scott
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 Registrant's Directors' Stock Award Plan (incorporated
herein by reference to Exhibit 99.1 to Registrant's
Original Registration Statement of Form S-8 filed with
the Commission on November 5, 1997 (File No.
333-39547)).
4.2 Restated Certificate of Incorporation, dated December
21, 2000 (incorporated by reference to Exhibit 3.1 of
the Registrant's Annual Report on Form 10-K for the
fiscal year ended September 30, 2000).
4.3 Amended By-Laws, as amended through December 21, 2000
(incorporated by reference to Exhibit 3.2 of the
Registrant's Annual Report on Form 10-K for the fiscal
year ended September 30, 2000).
5.1 Opinion of Dillon, Bitar & Luther L.L.C.*
23.1 Consent of Dillon, Bitar & Luther L.L.C. (included in
Exhibit 5.1 to this Registration Statement).*
23.2 Consent of Deloitte & Touche LLP.*
24.1 Power of Attorney (included on signature page).*
* Filed herewith.
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EXHIBIT 5.1
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DILLON, BITAR & LUTHER L.L.C.
53 MAPLE AVENUE
MORRISTOWN, NJ 07960
August 10, 2004
EMCORE Corporation
145 Belmont Drive
Somerset, NJ 08873
RE: EMCORE CORPORATION
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
You have requested our opinion in connection with the above-referenced
registration statement (the "Registration Statement"), which is concurrently
being filed by EMCORE Corporation, a New Jersey corporation (the "Company") with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended. The Registration Statement relates to the registration of the Company's
common stock in an aggregate amount of $250,000 (the "Shares") that may be
acquired by certain Directors of the Company pursuant to the terms and
provisions of the Company's Directors' Stock Award Plan (the "Plan").
This opinion is being furnished in accordance with the requirements of
Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We are familiar with the corporate proceedings relating to the
authorization of the Shares and have reviewed the corporate proceedings taken
with respect to the approval of such amendment to the Plan. We have examined and
relied on originals, or copies certified to our satisfaction, of all such
corporate records of the Company and such other instruments and other
certificates of public officials, officers, and representatives of the Company
and such other persons, and we have made such investigations of law, as we have
deemed appropriate, as a basis for the opinion herein expressed.
We do not express or purport to express any opinions with respect to
laws other than the Federal laws of the United States and the laws of the State
of New Jersey.
Based upon the foregoing, it is our opinion that the Shares will, if
issued and delivered in accordance with the terms and provisions of the Plan, be
validly issued, fully paid, and non assessable.
EXHIBIT 5.1
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Page 2
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement. By giving such consent we do not thereby admit that we
are an "expert" with respect to any part of such Registration Statement, as that
term is used in the Securities Act of 1933, as amended, or the rules or
regulations of the Commission issued thereunder.
Very truly yours,
/s/ DILLON, BITAR & LUTHER L.L.C.
Exhibit 23.2
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CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
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We consent to the incorporation by reference in this Registration Statement of
EMCORE Corporation on Form S-8 of our report dated December 24, 2003, February
17, 2004 as to the effects of the discontinued operations discussed in Note 2,
May 19, 2004 as to the effects of the restatement discussed in Note 19 (which
report expresses an unqualified opinion and includes explanatory paragraphs
relating to accounting changes discussed in Note 3 and the restatement discussed
in Note 19), appearing in the Current Report on Form 8-K/A of EMCORE Corporation
as of May 19, 2004.
/s/ DELOITTE & TOUCHE LLP
Parsippany, New Jersey
August 10, 2004
