form10-q.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-Q
QUARTERLY
REPORT PURSUANT TO
SECTION
13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the
quarterly period ended: March 31,
2008
Commission
File Number: 0-22175
EMCORE
Corporation
(Exact
name of Registrant as specified in its charter)
New
Jersey
(State
or other jurisdiction of incorporation or organization)
22-2746503
(IRS
Employer Identification No.)
10420 Research Road SE,
Albuquerque, NM 87123
(Address
of principal executive offices) (Zip
Code)
(505)
332-5000
(Registrant's
telephone number, including area code)
Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes [X] No
[ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
definitions of “large accelerated filer,” “accelerated filer,” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
[
] Large accelerated
filer [X] Accelerated
filer [
] Non-accelerated filer [ ]
Smaller reporting company
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). Yes [
] No
[X]
The
number of shares outstanding of the registrant’s no par value common stock as of
May 5, 2008 was 77,307,704.
EMCORE
Corporation
FORM
10-Q
For
the Quarterly Period Ended March 31, 2008
TABLE
OF CONTENTS
|
PAGE
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3
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24
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39
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40
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41
|
|
43
|
|
55
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55
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56
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56
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57
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58
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EMCORE
CORPORATION
Condensed
Consolidated Statements of Operations
For
the three and six months ended March 31, 2008 and 2007
(in
thousands, except per share data)
(unaudited)
|
|
Three
Months Ended
March
31,
|
|
|
Six
Months Ended
March
31,
|
|
|
|
2008
|
|
|
2007
|
|
|
2008
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
48,260 |
|
|
$ |
33,716 |
|
|
$ |
92,761 |
|
|
$ |
69,342 |
|
|
|
|
8,019 |
|
|
|
5,882 |
|
|
|
10,405 |
|
|
|
8,852 |
|
|
|
|
56,279 |
|
|
|
39,598 |
|
|
|
103,166 |
|
|
|
78,194 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
42,133 |
|
|
|
28,170 |
|
|
|
77,445 |
|
|
|
59,111 |
|
|
|
|
7,498 |
|
|
|
4,459 |
|
|
|
8,970 |
|
|
|
6,618 |
|
|
|
|
49,631 |
|
|
|
32,629 |
|
|
|
86,415 |
|
|
|
65,729 |
|
|
|
|
6,648 |
|
|
|
6,969 |
|
|
|
16,751 |
|
|
|
12,465 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling,
general, and administrative
|
|
|
10,263 |
|
|
|
13,143 |
|
|
|
22,126 |
|
|
|
25,682 |
|
|
|
|
9,330 |
|
|
|
7,528 |
|
|
|
16,750 |
|
|
|
14,139 |
|
|
|
|
19,593 |
|
|
|
20,671 |
|
|
|
38,876 |
|
|
|
39,821 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(12,945
|
) |
|
|
(13,702
|
) |
|
|
(22,125
|
) |
|
|
(27,356
|
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(227
|
) |
|
|
(1,169
|
) |
|
|
(654
|
) |
|
|
(2,820
|
) |
|
|
|
375 |
|
|
|
1,260 |
|
|
|
1,580 |
|
|
|
2,522 |
|
Loss
from conversion of subordinated notes
|
|
|
4,658 |
|
|
|
- |
|
|
|
4,658 |
|
|
|
- |
|
Stock–based
compensation expense from tolled options (income from expired tolled
options)
|
|
|
(58
|
) |
|
|
- |
|
|
|
4,316 |
|
|
|
- |
|
Gain
from insurance proceeds
|
|
|
- |
|
|
|
(357 |
) |
|
|
- |
|
|
|
(357 |
) |
Loss
on disposal of equipment
|
|
|
- |
|
|
|
- |
|
|
|
86 |
|
|
|
- |
|
|
|
|
(186
|
) |
|
|
- |
|
|
|
(198
|
) |
|
|
- |
|
Total
other expense (income)
|
|
|
4,562 |
|
|
|
(266 |
) |
|
|
9,788 |
|
|
|
(655 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(17,507 |
) |
|
$ |
(13,436 |
) |
|
$ |
(31,913 |
) |
|
$ |
(26,701 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
and diluted per share data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(0.27 |
) |
|
$ |
(0.26 |
) |
|
$ |
(0.55 |
) |
|
$ |
(0.52 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-average
number of basic and diluted shares
|
|
|
64,560 |
|
|
|
50,947 |
|
|
|
57,975 |
|
|
|
50,911 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The
accompanying notes are an integral part of these unaudited condensed
consolidated financial statements.
EMCORE
CORPORATION
Condensed
Consolidated Balance Sheets
As
of March 31, 2008 and September 30, 2007
(In
thousands)
(unaudited)
|
|
As
of
March
31,
2008
|
|
|
As
of
September
30, 2007
|
|
ASSETS
|
|
|
|
|
|
|
Current
assets:
|
|
|
|
|
|
|
Cash
and cash equivalents
|
|
$ |
22,734 |
|
|
$ |
12,151 |
|
Restricted
cash
|
|
|
2,148 |
|
|
|
1,538 |
|
Short-term
investments
|
|
|
988 |
|
|
|
29,075 |
|
Accounts
receivable, net of allowance of $820 and $802,
respectively
|
|
|
52,801 |
|
|
|
38,151 |
|
Receivables,
related party
|
|
|
287 |
|
|
|
332 |
|
Income
tax receivable
|
|
|
130 |
|
|
|
- |
|
Inventory,
net
|
|
|
43,521 |
|
|
|
29,205 |
|
Prepaid
expenses and other current assets
|
|
|
4,948 |
|
|
|
4,350 |
|
|
|
|
|
|
|
|
|
|
Total
current assets
|
|
|
127,557 |
|
|
|
114,802 |
|
|
|
|
|
|
|
|
|
|
Property,
plant, and equipment, net
|
|
|
74,165 |
|
|
|
57,257 |
|
Goodwill
|
|
|
89,739 |
|
|
|
40,990 |
|
Other
intangible assets, net
|
|
|
12,753 |
|
|
|
5,275 |
|
Investments
in unconsolidated affiliates
|
|
|
14,917 |
|
|
|
14,872 |
|
Long-term
investments and restricted cash
|
|
|
4,655 |
|
|
|
- |
|
Other
non-current assets, net
|
|
|
533 |
|
|
|
1,540 |
|
|
|
|
|
|
|
|
|
|
Total
assets
|
|
$ |
324,319 |
|
|
$ |
234,736 |
|
|
|
|
|
|
|
|
|
|
LIABILITIES
and SHAREHOLDERS’ EQUITY
|
|
|
|
|
|
|
|
|
Current
liabilities:
|
|
|
|
|
|
|
|
|
Accounts
payable
|
|
$ |
27,943 |
|
|
$ |
22,685 |
|
Accrued
expenses and other current liabilities
|
|
|
26,430 |
|
|
|
28,776 |
|
Income
tax payable
|
|
|
594 |
|
|
|
137 |
|
|
|
|
|
|
|
|
|
|
Total
current liabilities
|
|
|
54,967 |
|
|
|
51,598 |
|
|
|
|
|
|
|
|
|
|
Convertible
senior subordinated notes
|
|
|
- |
|
|
|
84,981 |
|
|
|
|
|
|
|
|
|
|
Total
liabilities
|
|
|
54,967 |
|
|
|
136,579 |
|
|
|
|
|
|
|
|
|
|
Commitments
and contingencies (Note 12)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shareholders’
equity:
|
|
|
|
|
|
|
|
|
Preferred
stock, $0.0001 par, 5,882 shares authorized, no shares
outstanding
|
|
|
- |
|
|
|
- |
|
Common
stock, no par value, 100,000 shares authorized, 73,735 shares issued
and
73,576
outstanding at March 31, 2008; 51,208 shares issued and 51,049
shares
outstanding
at September 30, 2007
|
|
|
647,346 |
|
|
|
443,835 |
|
Accumulated
deficit
|
|
|
(375,817
|
) |
|
|
(343,578
|
) |
Accumulated
other comprehensive loss
|
|
|
(94
|
) |
|
|
(17 |
) |
Treasury
stock, at cost; 159 shares
|
|
|
(2,083
|
) |
|
|
(2,083
|
) |
|
|
|
|
|
|
|
|
|
Total
shareholders’ equity
|
|
|
269,352 |
|
|
|
98,157 |
|
|
|
|
|
|
|
|
|
|
Total
liabilities and shareholders’ equity
|
|
$ |
324,319 |
|
|
$ |
234,736 |
|
The
accompanying notes are an integral part of these unaudited condensed
consolidated financial statements.
EMCORE
CORPORATION
Condensed
Consolidated Statements of Cash Flows
For
the six months ended March 31, 2008 and 2007
(in
thousands)
(unaudited)
|
|
Six
Months Ended
March
31,
|
|
Cash
flows from operating activities:
|
|
|
2008
|
|
|
2007
|
|
Net
loss
|
|
$
|
(31,913
|
)
|
$
|
(26,701
|
)
|
Adjustments
to reconcile net loss to net cash used for operating
activities:
|
|
|
|
|
|
|
|
Stock-based
compensation expense
|
|
|
6,964
|
|
|
3,670
|
|
Depreciation
and amortization expense
|
|
|
4,842
|
|
|
4,880
|
|
Accretion
of loss from convertible senior subordinated notes exchange
offer
|
|
|
41
|
|
|
98
|
|
Provision
for doubtful accounts
|
|
|
101
|
|
|
266
|
|
Compensatory
stock issuances
|
|
|
545
|
|
|
412
|
|
Loss
from disposal of property, plant and equipment
|
|
|
86
|
|
|
-
|
|
Loss
from conversion of convertible senior subordinated notes
|
|
|
1,169
|
|
|
-
|
|
Forgiveness
of shareholders’ note receivable
|
|
|
-
|
|
|
82
|
|
Reduction
of note receivable due for services received
|
|
|
260
|
|
|
261
|
|
Total
non-cash adjustments
|
|
|
14,008
|
|
|
9,669
|
|
Changes
in operating assets and liabilities, net of effect of
acquisitions:
|
|
|
|
|
|
|
|
Accounts
receivable
|
|
|
(14,714
|
)
|
|
(9,323
|
)
|
Inventory
|
|
|
3,624
|
|
|
(3,992
|
)
|
Prepaid
expenses and other current assets
|
|
|
(590
|
)
|
|
241
|
|
Other
assets
|
|
|
(678
|
)
|
|
(281
|
)
|
Accounts
payable
|
|
|
5,258
|
|
|
(1,090
|
)
|
Accrued
expenses and other current liabilities
|
|
|
(4,004
|
)
|
|
(644
|
)
|
Total
change in operating assets and liabilities
|
|
|
(11,104
|
)
|
|
(15,089
|
)
|
|
|
|
|
|
|
|
|
Net
cash used for operating activities
|
|
|
(29,009
|
)
|
|
(32,121
|
)
|
|
|
|
|
|
|
|
|
Cash
flows from investing activities:
|
|
|
|
|
|
|
|
Purchase
of plant and equipment
|
|
|
(9,624
|
)
|
|
(2,731
|
)
|
Proceeds
from insurance recovery
|
|
|
1,189
|
|
|
362
|
|
Investment
in unconsolidated affiliate
|
|
|
(45
|
)
|
|
(13,873
|
)
|
Proceeds
from employee notes receivable
|
|
|
-
|
|
|
121
|
|
Purchase
of Intel’s Optical Platform Division
|
|
|
(75,546
|
)
|
|
-
|
|
Proceeds
from notes receivable
|
|
|
-
|
|
|
1,500
|
|
Funding
of restricted cash
|
|
|
(1,153
|
)
|
|
(420
|
)
|
Purchase
of short and long term investments
|
|
|
(7,000
|
)
|
|
(22,150
|
)
|
Sale
of short and long term investments
|
|
|
30,800
|
|
|
75,100
|
|
|
|
|
|
|
|
|
|
Net
cash (used for) provided by investing activities
|
|
|
(61,379
|
)
|
|
37,909
|
|
|
|
|
|
|
|
|
|
Cash
flows from financing activities:
|
|
|
|
|
|
|
|
Payments
on capital lease obligations
|
|
|
(10
|
)
|
|
(32
|
) |
Proceeds
from exercise of stock options
|
|
|
6,800
|
|
|
274
|
|
Proceeds
from employee stock purchase plan
|
|
|
485
|
|
|
202
|
|
Proceeds
from private placement transaction
|
|
|
93,773
|
|
|
-
|
|
|
|
|
|
|
|
|
|
Net
cash provided by financing activities
|
|
|
101,048
|
|
|
444
|
|
|
|
|
|
|
|
|
|
Effect
of foreign currency
|
|
|
(77
|
)
|
|
-
|
|
|
|
|
|
|
|
|
|
Net
increase (decrease) in cash and cash equivalents
|
|
|
10,583
|
|
|
6,232
|
|
Cash
and cash equivalents, beginning of period
|
|
|
12,151
|
|
|
22,592
|
|
|
|
|
|
|
|
|
|
Cash
and cash equivalents, end of period
|
|
$
|
22,734
|
|
$
|
28,824
|
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL
DISCLOSURE OF CASH FLOW INFORMATION
|
|
|
|
|
|
|
|
Cash
paid during the period for interest
|
|
$
|
3,314
|
|
$
|
2,421
|
|
Cash
paid for income taxes
|
|
$
|
-
|
|
$
|
2,351
|
|
|
|
|
|
|
|
|
|
NON-CASH
DISCLOSURE
|
|
|
|
|
|
|
|
Issuance
of common stock for purchase of Intel Optical Platform
Division
|
|
$
|
10,000
|
|
$
|
-
|
|
Issuance
of common stock for conversion of convertible senior subordinated
notes
|
|
$
|
85,428
|
|
$
|
-
|
|
The
accompanying notes are an integral part of these unaudited condensed
consolidated financial statements.
EMCORE
Corporation
Notes
to Condensed Consolidated Financial Statements
(unaudited)
NOTE
1. Basis of Presentation
The
accompanying unaudited condensed consolidated financial statements include the
accounts of EMCORE Corporation and its subsidiaries (the “Company” or “EMCORE”).
All intercompany accounts and transactions have been eliminated in
consolidation.
These
statements have been prepared in accordance with accounting principles generally
accepted in the United States of America (“U.S. GAAP”) for interim information,
and with the instructions to Form 10-Q and Rule 10-01 of Regulation S-X of the
Securities and Exchange Commission (“SEC”). Accordingly, they do not include all
of the information and footnotes required by U.S. GAAP for annual financial
statements. In the opinion of management, all information considered necessary
for a fair presentation of the financial statements has been included. Operating
results for interim periods are not necessarily indicative of results that may
be expected for an entire fiscal year. The condensed consolidated balance sheet
as of September 30, 2007 has been derived from the audited consolidated
financial statements as of such date. For a more complete understanding of the
Company’s financial position, operating results, risk factors and other matters,
please refer to the Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 2007.
The
preparation of the consolidated financial statements in conformity with U.S.
GAAP requires management of the Company to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reported period.
Management develops estimates based on historical experience and on various
assumptions about the future that are believed to be reasonable based on the
best information available. The Company’s reported financial position or results
of operations may be materially different under changed conditions or when using
different estimates and assumptions. In the event that estimates or assumptions
prove to differ from actual results, adjustments are made in subsequent periods
to reflect more current information.
Certain
amounts in prior period financial statements have been reclassified to conform
to the current year presentation. The reclassification consists of a reduction
to revenue of $78,000, a reduction to cost of goods sold of $64,000, and a
reduction to research and development expense of $14,000 from the amounts
previously recognized in first quarter of fiscal 2007. This
reclassification relates to a cost-sharing R&D arrangement, under which the
actual costs of performance are divided between the U.S. Government and the
Company, no revenue is recorded and the Company’s R&D expense is reduced for
the amount of the cost-sharing receipts. The Company also reclassed
approximately $4.3 million of stock-based compensation expense from tolled
options, related to former employees that were incurred in the first quarter of
fiscal 2008 from selling, general and administrative expenses to other
expense.
For the
three and six months ended March 31, 2008, stock options representing 4,674,401
and 4,632,759 shares, respectively, of common stock were excluded from the
diluted earnings per share calculations. For the three and six months ended
March 31, 2007, stock options representing 2,912,823 and 2,961,337 shares,
respectively, of common stock were excluded from the diluted earnings per share
calculations. These stock options, and the shares underlying the Company’s
convertible senior subordinated notes for the three and six months ended March
31, 2007, were not included in the computation of diluted earnings per share
since the Company incurred a net loss for the periods presented and any effect
would have been anti-dilutive.
NOTE
2. Recent Accounting Pronouncements
SFAS 141(R) -
In December 2007, the Financial Accounting Standards Board (“FASB”) issued
Statement of Financial Accounting Standard (“SFAS”) 141(R), Business Combinations.
This statement replaces SFAS 141, Business Combinations,
and requires an acquirer to recognize the assets acquired, the liabilities
assumed, including those arising from contractual contingencies, any
contingent consideration, and any noncontrolling interest in the acquiree
at the acquisition date, measured at their fair values as of that date,
with limited exceptions specified in the statement. SFAS 141(R) also
requires the acquirer in a business combination achieved in stages
(sometimes referred to as a step acquisition) to recognize the
identifiable assets and liabilities, as well as the noncontrolling
interest in the acquiree, at the full amounts of their fair values (or
other amounts determined in accordance with SFAS 141(R)). In addition,
SFAS 141(R)'s requirement to measure the noncontrolling interest in the
acquiree at fair value will result in recognizing the goodwill
attributable to the noncontrolling interest in addition to that
attributable to the acquirer. SFAS 141(R) amends SFAS No. 109, Accounting for Income
Taxes, to require the acquirer to recognize changes in the amount
of its deferred tax benefits that are recognizable because of a business
combination either in income from continuing operations in the period of
the combination or directly in contributed capital, depending on the
circumstances. It also amends SFAS 142, Goodwill and Other Intangible
Assets, to, among other things, provide guidance on the impairment
testing of acquired research and development intangible assets and assets
that the acquirer intends not to use. SFAS 141(R) applies prospectively to
business combinations for which the acquisition date is on or after the
beginning of the first annual reporting period beginning on or after
December 15, 2008. Management is currently assessing the potential impact
that the adoption of SFAS 141(R) could have on our financial
statements.
|
SFAS 157 - In
September 2006, the FASB issued SFAS 157, Fair Value Measurements,
which defines fair value, providing a framework for measuring fair value,
and expands the disclosures required for fair value measurements. SFAS 157
applies to other accounting pronouncements that require fair value measurements;
it does not require any new fair value measurements. SFAS 157 is effective for
fiscal years beginning after November 15, 2007. However, in
December 2007, the FASB issued FASB Staff Position FAS 157-b, which deferred the
effective date of SFAS No. 157 for one year, as it relates to nonfinancial
assets and liabilities. Although the Company continues to evaluate the
application of SFAS 157, management does not currently believe adoption of this
pronouncement will have a material impact on the Company’s results of operations
or financial position.
SFAS 159 - In
February 2007, the FASB issued SFAS 159, The Fair Value Option for Financial
Assets and Financial Liabilities – Including an Amendment of FASB Statement No.
115. The fair value option permits entities to choose to measure eligible
financial instruments at fair value at specified election dates. The entity will
report unrealized gains and losses on the items on which it has elected the fair
value option in earnings. SFAS 159 is effective for fiscal years beginning after
November 15, 2007 and is required to be adopted by the Company on October 1,
2008. Although the Company continues to evaluate the application of SFAS 159,
management does not currently believe adoption of this pronouncement will have a
material impact on the Company’s results of operations or financial
position.
SFAS 160 - In
December 2007, the FASB issued SFAS 160, Noncontrolling Interests in
Consolidated Financial Statements. SFAS 160 amends Accounting Research
Bulletin 51, Consolidated
Financial Statements, to establish accounting and reporting standards for
the noncontrolling interest in a subsidiary and for the deconsolidation of a
subsidiary. It also clarifies that a noncontrolling interest in a subsidiary is
an ownership interest in the consolidated entity that should be reported as
equity in the consolidated financial statements. SFAS 160 also changes the way
the consolidated income statement is presented by requiring consolidated net
income to be reported at amounts that include the amounts attributable to both
the parent and the noncontrolling interest. It also requires disclosure, on the
face of the consolidated statement of income, of the amounts of consolidated net
income attributable to the parent and to the noncontrolling interest. SFAS 160
requires that a parent recognize a gain or loss in net income when a subsidiary
is deconsolidated and requires expanded disclosures in the consolidated
financial statements that clearly identify and distinguish between the interests
of the parent owners and the interests of the noncontrolling owners of a
subsidiary. SFAS 160 is effective for fiscal periods, and interim periods within
those fiscal years, beginning on or after December 15, 2008. Management is
currently assessing the potential impact that the adoption of SFAS 160 could
have on our financial statements.
SFAS 161 - In
March 2008, the FASB issued SFAS No. 161, Disclosures about Derivative
Instruments and Hedging Activities an amendment of FASB Statement
No. 133. SFAS 161 changes the disclosure requirements for derivative
instruments and hedging activities. Entities are required to provide enhanced
disclosures about (a) how and why an entity uses derivative instruments,
(b) how derivative instruments and related hedge items are accounted for
under Statement 133, Accounting for Derivative
Instruments and Hedging Activities, and its related interpretations, and
(c) how derivative instruments and related hedged items affect an entity’s
financial position, financial performance, and cash flows. SFAS 161 is intended
to enhance the current disclosure framework in SFAS 133 and requires qualitative
disclosures about objectives and strategies for using derivatives, quantitative
disclosures about fair value amounts of gains and losses on derivative
instruments, and disclosures about credit-risk related contingent features in
derivative agreements. The provisions of SFAS 161 are effective for financial
statements issued for fiscal years and interim periods beginning after
November 15, 2008, with early application encouraged. Management is
currently assessing the potential impact that the adoption of SFAS 161 could
have on our financial statements.
NOTE
3. Equity
Stock
Options
The Company has stock option
plans to provide long-term incentives to eligible employees, officers, and
directors in the form of stock options. Most of the stock options vest and
become exercisable over four to five years and have ten-year terms. The Company
maintains two incentive stock option plans: the 2000 Stock Option Plan (“2000
Plan”) and the 1995 Incentive and Non-Statutory Stock Option Plan (“1995 Plan”
and, together with the 2000 Plan, the “Option Plans”). The 1995 Plan authorizes
the grant of stock options to purchase up to 2,744,118 shares of the Company's
common stock. On March 31, 2008, the 2000 Plan was amended to
authorize an additional grant of 3,500,000 stock options for a total of
12,850,000 shares of the Company’s common stock. As of March 31,
2008, no stock options were available for issuance under the 1995 Plan and
3,649,417 stock options were available for issuance under the 2000 Plan. Certain
options under the Option Plans are intended to qualify as incentive stock
options pursuant to Section 422A of the Internal Revenue
Code.
The following table
summarizes the activity under the Option Plans for the six months ended March
31, 2008:
|
|
|
|
Weighted
Average Exercise Price
|
|
Weighted
Average
Remaining
Contractual Life
|
Outstanding
as of October 1, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
|
|
|
|
|
|
|
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|
|
|
|
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|
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|
|
|
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|
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|
Outstanding
as of March 31, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vested
as of March 31, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercisable
as of March 31, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
The
weighted-average grant date fair value of stock options granted during the six
months ended March 31, 2008 and 2007 was $4.34 and $3.99, respectively. The total intrinsic value
of stock options exercised during the six months ended March 31, 2008 and 2007
was $11.3 million and $0.2 million, respectively. The total fair
value of stock options vested during the six months ended March, 31 2008 and
2007 was $4.6 million and $2.6 million, respectively. The aggregate intrinsic
value of fully vested and expected to vest stock options as of March 31, 2008
was $5.0 million. The aggregate intrinsic value of exercisable stock
options as of March 31, 2008 was $4.3 million.
The
following table summarizes the Company’s nonvested shares for the six months
ended March 31, 2008:
|
|
Number
of
Shares
|
|
|
Weighted-Average
Grant Date
Fair
Value
|
|
Nonvested
as of October 1, 2007
|
|
|
2,979,486 |
|
|
|
4.82 |
|
Granted
|
|
|
1,054,750 |
|
|
|
4.34 |
|
Vested
|
|
|
(591,346
|
) |
|
|
2.49 |
|
Forfeited
|
|
|
(183,833
|
) |
|
|
6.57 |
|
Nonvested
as of March 31, 2008
|
|
|
3,259,057 |
|
|
$ |
4.99 |
|
As of
March 31, 2008 there was $7.9 million of total unrecognized compensation expense
related to non-vested stock-based compensation arrangements granted under the
Option Plans. This expense is expected to be recognized over an estimated
weighted-average life of 3.0 years.
Stock-based
compensation expense is measured at grant date, based on the fair value of the
award, over the requisite service period. As required by SFAS
123(R), Share-Based Payment
(revised 2004), management has made an estimate of expected forfeitures
and is recognizing compensation expense only for those equity awards expected to
vest. The effect of recording stock-based compensation expense during the three
and six months ended March 31, 2008 and 2007 was as follows:
(in
thousands, except per share data)
|
|
Three
Months Ended
March
31,
|
|
|
Six
Months Ended
March
31,
|
|
|
|
2008
|
|
|
2007
|
|
|
2008
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based
compensation expense by award type:
|
|
|
|
|
|
|
|
|
|
|
|
|
Employee
stock options
|
|
$ |
1,405 |
|
|
$ |
1,344 |
|
|
$ |
2,480 |
|
|
$ |
3,670 |
|
Employee
stock purchase plan
|
|
|
168 |
|
|
|
- |
|
|
|
168 |
|
|
|
- |
|
Former
employee stock options tolled
|
|
|
(58
|
) |
|
|
- |
|
|
|
4,316 |
|
|
|
- |
|
Total
stock-based compensation expense
|
|
$ |
1,515 |
|
|
$ |
1,344 |
|
|
$ |
6,964 |
|
|
$ |
3,670 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
effect on net loss per basic and diluted share
|
|
$ |
(0.02 |
) |
|
$ |
(0.02 |
) |
|
$ |
(0.12 |
) |
|
$ |
(0.07 |
) |
Former Employee Stock
Options Tolled
Under the
terms of stock option agreements issued under the 2000 Plan, terminated
employees who have vested and exercisable stock options have 90 days after the
date of termination to exercise stock options. In November 2006, the Company
announced suspension of reliance on previously issued financial statements,
which in turn caused the Company’s Form S-8 registration statements for shares
of common stock issuable under the Option Plans not to be available. Therefore,
terminated employees were precluded from exercising their stock options during
the remaining contractual term (the “Blackout Period”). To address
this issue, the Company’s Board of Directors agreed in April 2007 to approve a
stock option grant “modification” for these individuals by extending the normal
90-day exercise period after termination date to a date after which the Company
became compliant with its SEC filings and the registration of the stock option
shares was once again effective. The Company communicated the terms
of the tolling agreement with its terminated employees in November
2007. The Company’s Board of Directors approved an extension of the
stock option expiration date equal to the number of calendar days during the
Blackout Period before such stock option would have otherwise expired (the
“Tolling Period”). Former employees were able to exercise their
vested stock options beginning on the first day after the lifting of the
Blackout Period for a period equal to the Tolling Period. The Company
accounted for the modification of stock options issued to terminated employees
as additional compensation expense in accordance with SFAS 123(R) in the first
quarter of fiscal 2008 and adjusted the stock options to market value in the
first quarter of 2008 and recognized income on expired options in first and
second quarter of 2008. All tolled options were either
exercised or expired by January 29, 2008. No tolled stock options
were outstanding as of March 31, 2008.
Valuation
Assumptions
The
Company estimated the fair value of stock options using a Black-Scholes model.
The fair value of each stock option grant is estimated on the date of grant
using the Black-Scholes option valuation model and the straight-line attribution
approach using the following weighted-average assumptions.
Black-Scholes
Weighted-Average Assumptions:
|
|
For
the
Six
Months Ended March 31, 2008
|
|
|
|
|
|
Expected
stock price volatility
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Estimated
pre-vesting forfeitures
|
|
|
|
|
Expected Dividend
Yield: The Black-Scholes valuation model calls for a single
expected dividend yield as an input. The Company has not issued any
dividends.
Expected Stock Price
Volatility: The fair value of stock-based payments were valued
using the Black-Scholes valuation method with a volatility factor based on the
Company’s historical stock prices.
Risk-Free Interest
Rate: The Company bases the risk-free interest rate used in
the Black-Scholes valuation method on the implied yield currently available on
U.S. Treasury zero-coupon issues with an equivalent remaining term. Where the
expected term of the Company’s stock-based awards do not correspond with the
terms for which interest rates are quoted, the Company performed a straight-line
interpolation to determine the rate from the available maturities.
Expected Term: The Company’s
expected term represents the period that the Company’s stock-based awards are
expected to be outstanding and was determined based on historical experience of
similar awards, giving consideration to the contractual terms of the stock-based
awards, vesting schedules and expectations of future employee behavior as
influenced by changes to the terms of its stock-based awards.
Estimated Pre-vesting Forfeitures:
When estimating forfeitures, the Company considers voluntary termination
behavior as well as future workforce reduction programs, if any.
Preferred
Stock
The
Company’s Restated Certificate of Incorporation authorizes the Board of
Directors to issue up to 5,882,352 shares of preferred stock of the Company upon
such terms and conditions having such rights, privileges and preferences as the
Board of Directors may determine. As of March 31, 2008 and September
30, 2007, no shares of preferred stock are issued or outstanding.
Warrants
As of
March 31, 2008, the Company had 1,400,003 warrants outstanding and
exercisable. No warrants were outstanding as of September 30,
2007.
Employee Stock Purchase
Plan
In fiscal
2000, the Company adopted an Employee Stock Purchase Plan (the “ESPP”). The ESPP
provides employees of the Company an opportunity to purchase common stock
through payroll deductions. The ESPP is a 6-month duration plan, with new
participation periods beginning the first business day of January and July of
each year. The purchase price is set at 85% of the average high and low market
price for the Company's common stock on either the first or last day of the
participation period, whichever is lower, and annual contributions are limited
to the lower of 10% of an employee's compensation or $25,000. In November 2006,
the Company suspended the ESPP due to its review of historical stock option
granting practices. The Company reinstated the ESPP on January 1,
2008. The number of shares of common stock available for issuance
under the ESPP is 2,000,000 shares.
The amount of shares
issued for the ESPP are as follows:
|
|
Number
of Common Stock Shares Issued
|
|
Purchase
Price per Common Stock Share
|
Amount
of shares reserved for the ESPP
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number
of shares issued in calendar years 2000 through 2003
|
|
|
|
|
|
$ |
|
|
Number
of shares issued in June 2004 for first half of calendar year
2004
|
|
|
|
|
|
$ |
|
|
Number
of shares issued in December 2004 for second half of calendar year
2004
|
|
|
|
|
|
$ |
|
|
Number
of shares issued in June 2005 for first half of calendar year
2005
|
|
|
|
|
|
$ |
|
|
Number
of shares issued in December 2005 for second half of calendar year
2005
|
|
|
|
|
|
$ |
|
|
Number
of shares issued in June 2006 for first half of calendar year
2006
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
Remaining
shares reserved for the ESPP as of March 31, 2008
|
|
|
|
|
|
|
|
|
Future
Issuances
As
of March 31, 2008, the Company had reserved a total of 12,891,722 shares of
its common stock for future issuances as follows:
|
|
Number
of Common Stock Shares Available
|
For
exercise of outstanding common stock options
|
|
|
|
|
For
future issuances to employees under the ESPP plan
|
|
|
|
|
For
future common stock option awards
|
|
|
|
|
For
future exercise of warrants
|
|
|
|
|
For
future issuance in relation to the Intel’s Optical Platform Division
Acquisition
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Private Placement of Common
Stock and Warrants
On
February 20, 2008, the Company consummated the sale of $100 million of
restricted common stock and warrants. In this transaction, investors
purchased 8 million shares of our common stock, no par value, and warrants to
purchase an additional 1.4 million shares of our common stock. The
purchase price was $12.50 per share, priced at the 20 day volume-weighted
average price. The warrants grant the holder the right to purchase
one share of our common stock at a price of $15.06 per share, representing a
20.48% premium over the purchase price. The warrants are immediately
exercisable and remain exercisable until February 20, 2013 In
addition, the Company entered into a registration rights agreement with the
investors to register for resale the shares of common stock issued in this
transaction and the shares of common stock to be issued upon exercise of the
warrants. Beginning two years after their issuance, the warrants may
be called by the Company for a price of $0.01 per underlying share if the
closing price of its common stock has exceeded 150% of the exercise price for at
least 20 trading days within a period of any 30 consecutive trading days and
other conditions are met. Total agent fees incurred were 5.75% of the
gross proceeds, or $5.8 million. The Company used a substantial
portion of the net proceeds to acquire the telecom assets of Intel's Optical
Platform Division and is using the remainder for working capital
requirements.
In the
registration rights agreement, the Company agreed that if (i) a registration
statement covering all of the registrable securities required to be covered
thereby and required to be filed by the Company is (A) not filed with the SEC on
or before March 22, 2008 (the Company filed a registration statement on March
21, 2008 and has therefore met this deadline) or (B) not declared
effective by the SEC on or before May 21, 2008 (or June 20, 2008 if the SEC
elects to review the registration statement) (ii) on any day after
the date such registration statement is declared effective (the “Effective
Date”) sales of all of the registrable securities required to be included on
such Registration Statement cannot be made; or (iii) after the date six months
following the date of the private placement, EMCORE fails to file with the SEC
any required reports under Section 13 or 15(d) of the 1934 Act such that it is
not in compliance with Rule 144(c)(1) as a result of which holders are unable to
sell registrable securities without restriction under Rule 144 then, EMCORE
shall pay as liquidated damages to each holder of registrable securities
relating an amount in cash equal to one (1) percent (1%) of the aggregate
purchase price of such holder’s registrable securities included in such
registration statement on the day that such a failure first occurs and on
every thirtieth day thereafter until such failure is cured.
Liquidated damages shall be paid on the earlier of (i) the last day of the
calendar month during which such damages are incurred and (ii) the third
business day after the event or failure giving rise to the damages is
cured. In the event the Company fails to make such payments in a
timely manner, such liquidated damages shall bear simple interest at the rate of
four (4) percent (4%) per month until paid in full. In no event shall
the aggregate amount of liquidated damages exceed, in the aggregate, ten (10)
percent (10%) of the aggregate purchase price of the common stock sold in the
private placement. The Company also agreed not to issue shares in
certain capital raising transactions or file registration statements relating to
the same until 45 days after the earlier of the Effective Date and six months
after the private placement.
The
Company accounted for the various components of the private placement
transaction using the provisions of EITF Issue No. 00-19 Accounting for Derivative Financial
instruments Indexed to, and Potentially Settled in a Company’s Own Stock;
and FASB Staff Position EITF 00-19-2, Accounting for Registration Payment
Arrangements. Warrants issued to the investors were accounted for as an
equity transaction with a value of $9.8 million recorded to common stock. The
potential future payments to the investors are considered as a contingent
liability in accordance with SFAS No. 5 Accounting for Contingencies.
As of March 31, 2008, the Company did not record any contingent liability
associated with the liquidated damages clause.
The costs
associated with this offering were $6.1 million which was recorded as an offset
to common stock.
Share
Dilution
A
following table summarizes the Company’s equity transactions and effect on share
dilution for the six months ended March 31, 2008:
|
|
Number
of
Common
Stock
Shares
Outstanding
|
Common
stock shares outstanding – as of October 1, 2007
|
|
|
|
|
|
|
|
|
|
Conversion
of convertible senior subordinated notes to equity (see Note 11 -
Debt)
|
|
|
|
|
Private
placement transaction
|
|
|
|
|
Acquisition
of Intel’s Optical Platform Division (see Note 4 –
Acquisitions)
|
|
|
|
|
Stock
option exercises and other compensatory stock
issuances
|
|
|
|
|
|
|
|
|
|
Common
stock shares outstanding – as of March 31, 2008
|
|
|
|
|
See Note
15 – Subsequent Event for further discussion of shares of common stock issued
subsequent to March 31, 2008.
On March 31, 2008, the Board of
Directors authorized an additional 100,000,000 shares of common stock available
for issuance for a total of 200,000,000 shares authorized.
NOTE
4. Acquisitions
Intel Corporation’s Optical
Platform Division
On
February 22, 2008, the Company acquired assets of the telecom portion of Intel
Corporation’s Optical Platform Division. The telecom assets acquired include
inventory, fixed assets, intellectual property, and technology comprised of
tunable lasers, tunable transponders, 300-pin transponders, and integrated
tunable laser assemblies. The purchase price was $75 million in cash
and $10 million in the Company’s common stock, priced at a volume-weighted
average price of $13.84 per share. Under the terms of the asset purchase
agreement, the purchase price of $85 million is subject to adjustment based on
an inventory true-up, plus specifically assumed liabilities. Direct
transaction costs totaled $0.5 million. This acquisition was financed
through proceeds received from the $100 million private placement of common
stock and warrants (see Note 3).
The
purchase price allocation for the business has been prepared on a preliminary
basis and is subject to change as new facts and circumstances
emerge. The Company is currently completing the purchase price
allocation and valuation of the acquired assets. The Company will
adjust the preliminary purchase price allocation to reflect changes in the final
valuation report, which is expected to be completed by September 2008.
Amortization expense totaled $0.1 million for both the three and six months
ended March 31, 2008. Of the total goodwill recognized,
approximately $47.9 million is expected to be deductible for tax purposes over a
15 year life.
The
preliminary purchase price was allocated as follows:
(in
thousands)
Intel
Corporation’s Optical Platform Division
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Excess
purchase price allocated to goodwill
|
|
|
|
|
Net
assets acquired in the acquisition were as follows:
In
connection with this acquisition, Intel and the Company entered into a
Transition Services Agreement (the “TSA”), which allows Intel to carve-out the
business and deliver those assets to the Company. Pursuant to the terms of the
TSA, Intel intends to manufacture, assemble, test, and supply products that are
sold by the business. Intel will also provide certain transition
services to the Company, including financial services, supply chain support,
data extraction, conversion services, facilities and site computing support, and
office space services. The fees associated with the TSA are being
expensed as incurred. For the quarter ended March 31, 2008, the Company incurred
approximately $1.1 million of expense associated with the TSA. The
TSA is expected to continue through June 2008 or until such time when the
Company can arrange its own resources to operate the acquired
business.
The
following unaudited condensed consolidated pro forma financial data has been
prepared to give effect to the Company’s acquisition of certain assets and
liabilities of Intel’s Optical Products Division (“OPD”). The pro forma financial
information has been developed by the application of pro forma adjustments to
the estimated results of operations of OPD, and the historical Condensed
Consolidated Statements of Operations of the Company as if OPD had been acquired
as of October 1, 2006. The pro forma financial information is based upon
available information and assumptions that management believes are reasonable.
The pro forma financial information does not purport to represent what our
consolidated results of operations would have been had the Company’s acquisition
of OPD occurred on the dates indicated, or to project our consolidated financial
performance for any future period.
Condensed
Consolidated Pro Forma Statement of Operations
(unaudited)
(in
thousands, except per share data)
|
|
Three
Months Ended
March
31, 2008
|
|
|
Three
Months Ended
March 31,
2007
|
|
|
|
EMCORE
|
|
|
PRO
FORMA
|
|
|
EMCORE
|
|
|
PRO
FORMA
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$ |
56,279 |
|
|
$ |
63,183 |
|
|
$ |
39,598 |
|
|
$ |
60,998 |
|
Net
loss
|
|
|
(17,507
|
) |
|
|
(17,162 |
) |
|
|
(13,436
|
) |
|
|
(12,366 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss per basic and diluted shares
|
|
$ |
(0.27 |
) |
|
$ |
(0.25 |
) |
|
$ |
(0.26 |
) |
|
$ |
(0.22 |
) |
(in
thousands, except per share data)
|
|
Six
Months Ended
March
31, 2008
|
|
|
Six
Months Ended
March 31,
2007
|
|
|
|
EMCORE
|
|
|
PRO
FORMA
|
|
|
EMCORE
|
|
|
PRO
FORMA
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$ |
103,166 |
|
|
$ |
122,270 |
|
|
$ |
78,194 |
|
|
$ |
111,794 |
|
Net
loss
|
|
|
(31,913
|
) |
|
|
(30,958 |
) |
|
|
(26,701
|
) |
|
|
(25,021 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss per basic and diluted shares
|
|
$ |
(0.55 |
) |
|
$ |
(0.50 |
) |
|
$ |
(0.52 |
) |
|
$ |
(0.45 |
) |
On April
20, 2008, the Company completed its acquisition of the enterprise and storage
assets of Intel Corporation’s Optical Platform Division as well as the Intel
Connects Cables business (See Note 15 – Subsequent Event). The above
pro forma statements do not include results of this acquisition.
Opticomm
Corporation
In April
2007, the Company acquired privately-held Opticomm Corporation of San Diego,
California, including its fiber optic video, audio and data networking business,
technologies, and intellectual property. Opticomm is one of the
leading specialists in the field of fiber optic video, audio and data networking
for the commercial, governmental and industrial sectors. The Company
paid $4.2 million initial consideration, less $0.1 million cash received at
acquisition, for all of the shares of Opticomm. The Company also agreed to an
additional earn-out payment based on Opticomm’s 2007 revenue which amounted to
approximately $0.7 million.
The
Company completed the valuation of Opticomm's inventory, property and equipment,
and identifiable intangible assets and adjusted the preliminary purchase price
allocation in March 2008 to reflect the final valuation of acquired
assets. Goodwill was adjusted by approximately $0.1 million to
properly reflect purchased goodwill. The purchase price allocation
identified $2.2 million of intangible assets with a five year weighted average
amortization period, which included $1.4 million in customer lists, $0.7 million
in patents and $0.1 million in order backlog. Amortization expense
totaled $0.4 million and $0.5 million, for the three and six months ended March
31, 2008, respectively, and $0.1 million and $0.2 million for the three and six
months ended March 31, 2007, respectively.
The final
purchase price was allocated as follows:
(in
thousands)
Opticomm
Corporation Acquisition
|
|
Preliminary
|
|
|
Adjustments
|
|
|
Final
|
|
|
|
|
|
|
|
|
|
|
|
Net
purchase price
|
|
$ |
4,097 |
|
|
$ |
722 |
|
|
$ |
4,819 |
|
Net
assets acquired
|
|
|
(3,573
|
) |
|
|
103 |
|
|
|
(3,470
|
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Excess
purchase price allocated to goodwill
|
|
$ |
524 |
|
|
$ |
825 |
|
|
$ |
1,349 |
|
Net
assets acquired in the acquisition were as follows:
Working
capital
|
|
$ |
1,058 |
|
|
$ |
223 |
|
|
$ |
1,281 |
|
Fixed
assets
|
|
|
81 |
|
|
|
- |
|
|
|
81 |
|
Intangible
assets
|
|
|
2,504 |
|
|
|
(326
|
) |
|
|
2,178 |
|
Current
liabilities
|
|
|
(70
|
) |
|
|
- |
|
|
|
(70
|
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
assets acquired
|
|
$ |
3,573 |
|
|
$ |
(103 |
) |
|
$ |
3,470 |
|
All of
these transactions were accounted for as purchases in accordance with SFAS 141,
Business Combinations;
therefore, the tangible assets acquired and liabilities assumed were recorded at
fair value on the acquisition date. The operating results of the businesses
acquired are included in the accompanying consolidated statement of operations
from the date of acquisition. All of these acquired businesses are part of the
Company’s Fiber Optics operating segment.
NOTE
5. Receivables, net
The
components of accounts receivable consisted of the following:
(in
thousands)
|
|
As
of
March
31, 2008
|
|
|
As
of
September
30, 2007
|
|
|
|
|
|
|
|
|
Accounts
receivable
|
|
$ |
47,234 |
|
|
$ |
35,558 |
|
Accounts
receivable – unbilled
|
|
|
6,387 |
|
|
|
3,395 |
|
|
|
|
|
|
|
|
|
|
Accounts
receivable, gross
|
|
|
53,621 |
|
|
|
38,953 |
|
|
|
|
|
|
|
|
|
|
Allowance
for doubtful accounts
|
|
|
(820
|
) |
|
|
(802
|
) |
|
|
|
|
|
|
|
|
|
Total
accounts receivable, net
|
|
$ |
52,801 |
|
|
$ |
38,151 |
|
Related
party receivables consist of amounts owed from Velox Corporation, in which the
Company has an insignificant ownership.
NOTE
6. Inventory, net
Inventory
is stated at the lower of cost or market, with cost being determined using the
standard cost method that includes material, labor and manufacturing overhead
costs. The components of inventory consisted of the
following:
(in
thousands)
|
|
As
of
March
31, 2008
|
|
|
As
of
September
30, 2007
|
|
|
|
|
|
|
|
|
Raw
materials
|
|
$ |
22,892 |
|
|
$ |
19,884 |
|
Work-in-process
|
|
|
9,605 |
|
|
|
6,842 |
|
Finished
goods
|
|
|
26,624 |
|
|
|
10,891 |
|
Inventory,
gross
|
|
|
59,121 |
|
|
|
37,617 |
|
|
|
|
|
|
|
|
|
|
Less:
provisions for inventory
|
|
|
(15,600
|
) |
|
|
(8,412
|
) |
|
|
|
|
|
|
|
|
|
Total
inventory, net
|
|
$ |
43,521 |
|
|
$ |
29,205 |
|
In
February 2008, as part of our asset acquisition of Intel’s Optical Platform
Division, the Company acquired inventory of approximately $17.9 million (see
Note 4 - Acquisitions).
NOTE
7. Property, Plant, and Equipment, net
The
components of property, plant, and equipment consisted of the
following:
(in
thousands)
|
|
As
of
March
31, 2008
|
|
|
As
of
September
30, 2007
|
|
|
|
|
|
|
|
|
Land
|
|
$ |
1,502 |
|
|
$ |
1,502 |
|
Building
and improvements
|
|
|
44,423 |
|
|
|
43,397 |
|
Equipment
|
|
|
93,113 |
|
|
|
75,631 |
|
Furniture
and fixtures
|
|
|
5,278 |
|
|
|
5,643 |
|
Leasehold
improvements
|
|
|
- |
|
|
|
2,141 |
|
Construction
in progress
|
|
|
6,144 |
|
|
|
3,744 |
|
|
|
|
|
|
|
|
|
|
Property,
plant and equipment, gross
|
|
|
150,460 |
|
|
|
132,058 |
|
|
|
|
|
|
|
|
|
|
Less:
accumulated depreciation and amortization
|
|
|
(76,295
|
) |
|
|
(74,801
|
) |
|
|
|
|
|
|
|
|
|
Total
property, plant and equipment, net
|
|
$ |
74,165 |
|
|
$ |
57,257 |
|
In
February 2008, as part of our asset acquisition of Intel’s Optical Platform
Division, the Company acquired fixed assets of approximately $11.2 million (see
Note 4 – Acquisitions).
As of
March 31, 2008 and September 30, 2007, the Company did not have any significant
capital lease agreements.
Depreciation
expense was $2.1 million and $3.8 million for the three and six months ended
March 31, 2008, respectively, and $1.8 million and $3.7 million for the three
and six months ended March 31, 2007, respectively.
NOTE
8. Goodwill and Intangible Assets, net
The
following table sets forth changes in the carrying value of goodwill by
reportable segment during the six months ended March 31, 2008:
(in
thousands)
|
|
Fiber
Optics
|
|
|
Photovoltaics
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
Balance
as of October 1, 2007
|
|
$ |
20,606 |
|
|
$ |
20,384 |
|
|
$ |
40,990 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Acquisition
– earn-out payments
|
|
|
712 |
|
|
|
- |
|
|
|
712 |
|
Acquisition
– Intel’s Optical Platform Division
|
|
|
47,919 |
|
|
|
- |
|
|
|
47,919 |
|
Final
purchase price allocation adjustment: Opticomm acquisition
|
|
|
118 |
|
|
|
- |
|
|
|
118 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance
as of March 31, 2008
|
|
$ |
69,355 |
|
|
$ |
20,384 |
|
|
$ |
89,739 |
|
The
following table sets forth the carrying value of intangible assets, consisting
of patents and acquired intellectual property (“IP”), as of March 31, 2008 and
September 30, 2007, by reportable segment:
(in
thousands)
|
|
As of March 31,
2008
|
|
|
As of September 30,
2007
|
|
|
|
Gross
Assets
|
|
|
Accumulated
Amortization
|
|
|
Net
Assets
|
|
|
Gross
Assets
|
|
|
Accumulated
Amortization
|
|
|
Net
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiber
Optics:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Patents
|
|
$ |
949 |
|
|
$ |
(449 |
) |
|
$ |
500 |
|
|
$ |
845 |
|
|
$ |
(358 |
) |
|
$ |
487 |
|
Ortel
acquired IP
|
|
|
3,274 |
|
|
|
(3,031
|
) |
|
|
243 |
|
|
|
3,274 |
|
|
|
(2,893
|
) |
|
|
381 |
|
JDSU
acquired IP
|
|
|
1,040 |
|
|
|
(611
|
) |
|
|
429 |
|
|
|
1,040 |
|
|
|
(512
|
) |
|
|
528 |
|
Alvesta
acquired IP
|
|
|
193 |
|
|
|
(193
|
) |
|
|
- |
|
|
|
193 |
|
|
|
(187
|
) |
|
|
6 |
|
Molex
acquired IP
|
|
|
558 |
|
|
|
(502
|
) |
|
|
56 |
|
|
|
558 |
|
|
|
(446
|
) |
|
|
112 |
|
Phasebridge
acquired IP
|
|
|
603 |
|
|
|
(388
|
) |
|
|
215 |
|
|
|
603 |
|
|
|
(347
|
) |
|
|
256 |
|
Force
acquired IP
|
|
|
1,075 |
|
|
|
(541
|
) |
|
|
534 |
|
|
|
1,075 |
|
|
|
(443
|
) |
|
|
632 |
|
K2
acquired IP
|
|
|
583 |
|
|
|
(299
|
) |
|
|
284 |
|
|
|
583 |
|
|
|
(248
|
) |
|
|
335 |
|
Opticomm
acquired IP
|
|
|
2,178 |
|
|
|
(478
|
) |
|
|
1,700 |
|
|
|
2,504 |
|
|
|
(321
|
) |
|
|
2,183 |
|
Intel
acquired IP
|
|
|
8,500 |
|
|
|
(142
|
) |
|
|
8,358 |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
Subtotal
|
|
|
18,953 |
|
|
|
(6,634
|
) |
|
|
12,319 |
|
|
|
10,675 |
|
|
|
(5,755
|
) |
|
|
4,920 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Photovoltaics:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Patents
|
|
|
766 |
|
|
|
(332
|
) |
|
|
434 |
|
|
|
615 |
|
|
|
(260
|
) |
|
|
355 |
|
Tecstar
acquired IP
|
|
|
1,900 |
|
|
|
(1,900
|
) |
|
|
- |
|
|
|
1,900 |
|
|
|
(1,900
|
) |
|
|
- |
|
Subtotal
|
|
|
2,666 |
|
|
|
(2,232
|
) |
|
|
434 |
|
|
|
2,515 |
|
|
|
(2,160
|
) |
|
|
355 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$ |
21,619 |
|
|
$ |
(8,866 |
) |
|
$ |
12,753 |
|
|
$ |
13,190 |
|
|
$ |
(7,915 |
) |
|
$ |
5,275 |
|
Amortization
expense was $0.4 million and $1.0 million for the three and six months ended
March 31, 2008, respectively, and $0.5 million and $1.1 million for the three
and six months ended March 31, 2007, respectively.
Based on
the carrying amount of the intangible assets, and assuming no future impairment
of the underlying assets, the estimated future amortization expense is as
follows:
(in
thousands)
|
|
|
|
|
|
|
|
|
|
Period
ending:
|
|
|
|
|
Six-month
period ended September 30, 2008
|
|
$
|
1,617
|
|
Year
ended September 30, 2009
|
|
|
2,974
|
|
Year
ended September 30, 2010
|
|
|
2,861
|
|
Year
ended September 30, 2011
|
|
|
2,400
|
|
Year
ended September 30, 2012
|
|
|
2,028
|
|
Thereafter
|
|
|
873
|
|
Total
future amortization expense
|
|
$
|
12,753
|
|
NOTE
9. Accrued Expenses and Other Current Liabilities
The
components of accrued expenses and other current liabilities consisted of the
following:
(in
thousands)
|
|
As
of
March
31,
2008
|
|
As
of
September
30, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred
revenue and customer deposits
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
accrued expenses and other current liabilities
|
|
|
|
|
|
|
|
|
In the
second quarter of fiscal 2008, the Company converted all of its convertible
senior subordinated notes into shares of common stock (see Note 11 –
Debt). As of March 31, 2008, the Company did not have any debt or
related accrued interest.
The
Company entered into two Solar Power System contracts for a total loss accrual
of $1.8 million as of March 31, 2008.
NOTE
10. Restructuring Charges
As the
Company has historically acquired businesses and consolidated them into its
existing operations, the Company has incurred charges associated with the
transition and integration of those activities. In accordance with SFAS 146,
Accounting for Costs
Associated with Exit or Disposal Activities, expenses recognized as
restructuring charges include costs associated with the integration of several
business acquisitions and the Company’s overall cost-reduction
efforts. Restructuring charges are included in
SG&A. These charges primarily relate to our Fiber Optics
operating segment. These restructuring efforts are expected to be
completed in calendar year 2008. Costs incurred and expected to be
incurred consist of the following:
(in
thousands)
|
|
Amount
Incurred
in
Period
|
|
|
Cumulative
Amount
Incurred
to
Date
|
|
|
Amount
Expected
in
Future
Periods
|
|
|
Total
Amount
Expected
to
be
Incurred
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
One-time
termination benefits
|
|
$
|
402
|
|
|
$
|
3,581
|
|
|
$
|
-
|
|
|
$
|
3,581
|
|
The
following table sets forth changes in the accrual for restructuring charges
during the six months ended March 31, 2008:
(in
thousands)
|
|
|
|
|
|
Balance
at October 1, 2007
|
|
$
|
2,112
|
|
Increase
in liability due to relocation of corporate headquarters
|
|
|
275
|
|
Costs
paid or otherwise settled
|
|
|
(1,885
|
)
|
|
|
|
|
|
Balance
at March 31, 2008
|
|
$
|
502
|
|
NOTE
11. Debt
In
January 2008, the Company entered into agreements with holders of approximately
97.5%, or approximately $83.3 million of its outstanding 5.50% convertible
senior subordinated notes due 2011 (the "Notes") pursuant to which the holders
converted their Notes into the Company's common stock. In addition,
the Company called for redemption of all of its remaining outstanding Notes.
Upon conversion of the Notes, the Company issued shares of its common stock,
based on a conversion price of $7.01, in accordance with the terms of the Notes.
To incentivize certain holders to convert their Notes, the Company made cash
payments to such holders equal to 4% of the principal amount of the Notes
converted, plus accrued interest. By February 20, 2008, all
Notes were redeemed and converted into the Company common stock. As a result of
these transactions, 12.2 million shares of the Company common stock were
issued. The Company recognized a loss totaling $4.7 million on the
conversion of Notes to equity of which $3.5 million was paid in
cash. Interest expense incurred on the Notes totaled $0.4 million and
$1.6 million for the three and six months ended March 31, 2008, respectively,
and $1.3 million and $2.5 million for the three and six months ended March 31,
2007, respectively.
NOTE
12. Commitments and Contingencies
The
Company’s contractual obligations and commitments over the next five years are
summarized in the table below:
As
of March 31, 2008
(in
millions)
|
|
Total
|
|
|
2008
|
|
|
2009
to 2010
|
|
|
2011
to 2012
|
|
|
2013
and
later
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
lease obligations
|
|
$ |
7.1 |
|
|
$ |
0.7 |
|
|
$ |
2.2 |
|
|
$ |
1.3 |
|
|
$ |
2.9 |
|
|
|
|
2.7 |
|
|
|
2.7 |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
|
259.9 |
|
|
|
34.3 |
|
|
|
134.9 |
|
|
|
90.7 |
|
|
|
- |
|
Total
contractual cash obligations and
|
|
$ |
269.7 |
|
|
$ |
37.7 |
|
|
$ |
137.1 |
|
|
$ |
92.0 |
|
|
$ |
2.9 |
|
_______________
(1)
|
The
purchase commitments primarily represent the value of purchase agreements
issued for raw materials and services that have been scheduled for
fulfillment over the next three to five
years.
|
Operating
leases include non-cancelable terms and exclude renewal option periods, property
taxes, insurance and maintenance expenses on leased properties.
The
Company leases certain land, facilities, and equipment under non-cancelable
operating leases. The leases provide for rental adjustments for increases in
base rent (up to specific limits), property taxes, insurance and general
property maintenance that would be recorded as rent expense. Net facility and
equipment rent expense under such leases amounted to approximately $0.3 million
and $0.6 million for the three and six months ended March 31, 2008,
respectively, and approximately $0.4 million and $0.8 million for the three and
six months ended March 31, 2007, respectively.
As of
March 31, 2008, the Company had twelve standby letters of credit issued totaling
approximately $2.7 million.
Credit
Market Conditions
Currently,
the U.S. capital markets are experiencing turbulent conditions in the credit
markets, as evidenced by tightening of lending standards, reduced availability
of credit vehicles, and reduction of certain asset values. This
potentially impacts the Company’s ability to obtain additional funding through
financing or asset sales.
Auction
Rate Securities
As of
March 31, 2008, approximately $1.0 million of the Company’s auction rate
securities are classified as a current asset since the underlying securities are
expected to be redeemed at par value within several months. The
remaining $4.3 million of securities are classified as non-current
assets. The Company also recorded a temporary unrealized loss of
approximately $0.2 million to accumulated other comprehensive loss, a component
of shareholders’ equity, primarily due to these liquidity
factors. Based on expected operating cash flows, and our other
sources of cash, the Company does not anticipate the potential lack of liquidity
on these investments will affect its ability to execute on its current business
plan.
Legal
Proceedings
The
Company is subject to various legal proceedings and claims that are discussed
below. The Company is also subject to certain other legal proceedings and claims
that have arisen in the ordinary course of business and which have not been
fully adjudicated. The Company does not believe it has a potential
liability related to current legal proceedings and claims that could
individually or in the aggregate have a material adverse effect on its financial
condition, liquidity or results of operations. However, the results of legal
proceedings cannot be predicted with certainty. Should the Company fail to
prevail in any legal matters or should several legal matters be resolved against
the Company in the same reporting period, the operating results of a particular
reporting period could be materially adversely affected.
Shareholder
Derivative Litigation Relating to Historical Stock Option Practices
On
February 1, 2007, Plaintiff Lewis Edelstein filed a purported stockholder
derivative action (the “Federal Court Action”) on behalf of the Company against
certain of its present and former directors and officers (the “Individual
Defendants”), as well as the Company as nominal defendant, in the U.S. District
Court for the District of New Jersey, Edelstein v. Brodie, et.
al., Case No. 3:07-cv-00596-FLW-JJH (D.N.J.). On May 22,
2007, Plaintiffs Kathryn Gabaldon and Michael Sackrison each filed a purported
stockholder derivative action against the Individual Defendants, and the Company
as nominal defendant, in the Superior Court of New Jersey, Somerset County,
Gabaldon v. Brodie,
et. al., Case No. 3:07-cv-03185-FLW-JJH (D.N.J.) and Sackrison v. Brodie, et.
al., Case No. 3:07-cv-00596-FLW-JJH (D.N.J.) (collectively, the “State
Court Actions”).
Both the
Federal Court Action and the State Court Actions alleged, using essentially
identical contentions that the Individual Defendants engaged in improprieties
and violations of law in connection with the Company’s historical issuances of
stock options. Each of the actions seeks the same relief on behalf of
the Company, including, among other things, damages, equitable relief, corporate
governance reforms, an accounting, rescission, restitution and costs and
disbursements of the lawsuit. On July 10, 2007, the State Court
Actions were removed to the U.S. District Court for the District of New
Jersey.
On
September 26, 2007, the plaintiff in the Federal Court Action signed an
agreement in principle with the Individual Defendants and the Company to settle
that litigation in accordance with the Memorandum of Understanding (the “MOU”)
filed as Exhibit 10.10 to the Annual Report on Form 10-K for the year ended
September 30, 2006. That same day, the plaintiffs in the State Court
Actions advised the Federal Court that the settlement embodied in the MOU would
also constitute the settlement of the State Court Actions.
The MOU
provides that the Company will adhere to certain policies and procedures
relating to the issuance of stock options, stock trading by directors, officers
and employees, the composition of its Board of Directors, and the functioning of
the Board’s Audit and Compensation Committees. The MOU also provides
for the payment of $700,000 relating to plaintiff’s attorneys’ fees, costs and
expenses, which the Company’s insurance carrier has committed to pay on behalf
of the Company.
On
November 28, 2007, a Stipulation of Compromise and Settlement (the
“Stipulation”) substantially embodying the terms previously contained in the MOU
was fully executed by the Company and the other defendants and the plaintiffs in
the Federal Court Action and the State Court Actions. The Stipulation was filed
as Exhibit 10.19 to the Annual Report on Form 10-K for the year ended September
30, 2007.
The
Stipulation provides that the Company will adhere to certain policies and
procedures relating to the issuance of stock options, stock trading by
directors, officers and employees, the composition of its Board of Directors,
and the functioning of the Board’s Audit and Compensation
Committees. The Stipulation also provides for the payment of $700,000
relating to plaintiffs’ attorneys’ fees, costs and expenses, which the Company’s
insurance carrier has committed to pay on behalf of the Company. A
motion to approve the settlement reflected in the Stipulation was filed with the
U.S. District Court for the District of New Jersey on December 3,
2007. The Court granted the motion for preliminary approval of
the settlement on January 3, 2008, and, at a hearing held on March 28, 2008, the
Court issued an order giving final approval to the
settlement. The settlement has become final and effective upon
the expiration of the appeal period on April 30, 2008. Thus, the
settlement is now binding on all parties and represents a final settlement of
both the Federal Court Action and the State Court Actions.
SEC
Investigation
On
February 27, 2008, the Company received a letter from the SEC’s Division of
Enforcement stating that the staff had completed its informal investigation of
EMCORE Corporation regarding the Company’s historical stock option granting
practices. The letter further advised the Company that the
staff of the Division of Enforcement did not intend to recommend any enforcement
action against the Company.
Indemnification
Obligations
Subject
to certain limitations, we are obligated to indemnify our current and former
directors, officers and employees in connection with the Special Committee’s
investigation of our historical stock option practices, the related SEC
non-public investigation and shareholder litigation. These obligations arise
under the terms of our restated certificate of incorporation, our bylaws,
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.
Intellectual
Property Lawsuits
We
protect our proprietary technology by applying for patents where appropriate and
in other cases by preserving the technology, related know-how and information as
trade secrets. The success and competitive position of our product lines is
significantly impacted by our ability to obtain intellectual property protection
for our R&D efforts.
We have,
from time to time, exchanged correspondence with third parties regarding the
assertion of patent or other intellectual property rights in connection with
certain of our products and processes. Additionally, on September 11, 2006, we
filed a lawsuit against Optium Corporation (Optium) in the U.S. District Court
for the Western District of Pennsylvania for patent infringement. In the suit,
the Company and JDS Uniphase Corporation (JDSU) allege that Optium is infringing
on U.S. patents 6,282,003 and 6,490,071 with its Prisma II 1550nm transmitters.
On March 14, 2007, following denial of a motion to add additional claims to its
existing lawsuit, the Company and JDSU filed a second patent suit in the same
court against Optium alleging infringement of JDSU's patent 6,519,374 ("the '374
patent"). On March 15, 2007, Optium filed a declaratory judgment
action against the Company and JDSU. Optium sought in this litigation a
declaration that certain products of Optium do not infringe the '374 patent and
that the patent is invalid, but the District Court dismissed the action on
January 3, 2008 without addressing the merits. The '374 patent is assigned to
JDSU and licensed to the Company.
On
December 20, 2007, the Company was served with a complaint in another
declaratory relief action which Optium had filed in the Federal District Court
for the Western District of Pennsylvania. This action seeks to have
U.S. patents 6,282,003 and 6,490,071 declared invalid or unenforceable because
of certain conduct alleged to have occurred in connection with the grant of
these patents. These allegations are substantially the same as those
brought by Optium by motion in the Company’s own case against Optium, which
motion had been denied by the Court. On January 30, 2008, the Company
and JDSU moved to dismiss the declaratory judgment action, and the parties are
presently awaiting a ruling from the Court on that motion to
dismiss.
NOTE
13. Segment Data and Related Information
The
Company has four operating segments: (1) EMCORE Fiber Optics and (2) EMCORE
Broadband, which are aggregated as a separate reporting segment, Fiber Optics,
and (3) EMCORE Photovoltaics and (4) EMCORE Solar Power, which are aggregated as
a separate reporting segment, Photovoltaics. The Company's Fiber
Optics revenue is derived primarily from sales of optical components and
subsystems for cable television (“CATV”), fiber to the premise (“FTTP”),
enterprise routers and switches, telecom grooming switches, core routers, high
performance servers, supercomputers, and satellite communications data
links. The Company's Photovoltaics revenue is derived primarily from
the sales of solar power conversion products, including solar cells, covered
interconnect solar cells, and solar panels. The Company
evaluates its reportable segments in accordance with SFAS 131, Disclosures About Segments of an
Enterprise and Related Information. The Company’s Chief Executive Officer
is the Company’s Chief Operating Decision Maker pursuant to SFAS 131, and he
allocates resources to segments based on their business prospects, competitive
factors, net revenue, operating results and other non-GAAP financial
ratios. The Company’s recent acquisition of assets from Intel will
reside in the Company’s Fiber Optics reporting segment.
The
following table sets forth the revenue and percentage of total revenue
attributable to each of the Company's reporting segments for the three and six
months ended March 31, 2008 and 2007.
(in
thousands)
Segment
Revenue
|
|
Three
Months Ended
March
31, 2008
|
|
|
Three
Months Ended
March 31,
2007
|
|
|
|
Revenue
|
|
|
%
of Revenue
|
|
|
Revenue
|
|
|
%
of Revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiber
Optics
|
|
$ |
37,630 |
|
|
|
67
|
% |
|
$ |
26,237 |
|
|
|
66
|
% |
Photovoltaics
|
|
|
18,649 |
|
|
|
33 |
|
|
|
13,361 |
|
|
|
34 |
|
Total
revenue
|
|
$ |
56,279 |
|
|
|
100
|
% |
|
$ |
39,598 |
|
|
|
100
|
% |
(in
thousands)
Segment
Revenue
|
|
Six
Months Ended
March
31, 2008
|
|
|
Six
Months Ended
March 31,
2007
|
|
|
|
Revenue
|
|
|
%
of Revenue
|
|
|
Revenue
|
|
|
%
of Revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiber
Optics
|
|
$ |
71,590 |
|
|
|
69
|
% |
|
$ |
51,560 |
|
|
|
66
|
% |
Photovoltaics
|
|
|
31,576 |
|
|
|
31 |
|
|
|
26,634 |
|
|
|
34 |
|
Total
revenue
|
|
$ |
103,166 |
|
|
|
100
|
% |
|
$ |
78,194 |
|
|
|
100
|
% |
The
following table sets forth the Company's consolidated revenues by geographic
region for the three and six months ended March 31, 2008 and
2007. Revenue was assigned to geographic regions based on the
customers’ or contract manufacturers’ billing address.
(in
thousands)
Geographic
Revenue
|
|
Three
Months Ended
March
31, 2008
|
|
|
Three
Months Ended
March 31,
2007
|
|
|
|
Revenue
|
|
|
%
of Revenue
|
|
|
Revenue
|
|
|
%
of Revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
North
America
|
|
$ |
40,246 |
|
|
|
72
|
% |
|
$ |
28,522 |
|
|
|
72
|
% |
Asia
and South America
|
|
|
8,123 |
|
|
|
14 |
|
|
|
8,267 |
|
|
|
21 |
|
Europe
|
|
|
7,732 |
|
|
|
14 |
|
|
|
2,809 |
|
|
|
7 |
|
Other
|
|
|
178 |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
Total
revenue
|
|
$ |
56,279 |
|
|
|
100
|
% |
|
$ |
39,598 |
|
|
|
100
|
% |
(in
thousands)
Geographic
Revenue
|
|
Six
Months Ended
March
31, 2008
|
|
|
Six
Months Ended
March 31,
2007
|
|
|
|
Revenue
|
|
|
%
of Revenue
|
|
|
Revenue
|
|
|
%
of Revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
North
America
|
|
$ |
67,069 |
|
|
|
65
|
% |
|
$ |
54,268 |
|
|
|
69
|
% |
Asia
and South America
|
|
|
23,464 |
|
|
|
23 |
|
|
|
19,303 |
|
|
|
25 |
|
Europe
|
|
|
12,318 |
|
|
|
12 |
|
|
|
4,623 |
|
|
|
6 |
|
Other
|
|
|
315 |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
Total
revenue
|
|
$ |
103,166 |
|
|
|
100
|
% |
|
$ |
78,194 |
|
|
|
100
|
% |
The
following table sets forth operating losses attributable to each of the
Company’s reporting segments and corporate for the three and six months ended
March 31, 2008 and 2007.
(in
thousands)
Statement
of Operations Data
|
|
Three
Months Ended
March
31,
|
|
|
Six
Months Ended
March
31,
|
|
|
|
2008
|
|
|
2007
|
|
|
2008
|
|
|
2007
|
|
Operating
loss by segment and corporate:
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiber
Optics
|
|
$ |
(3,974 |
) |
|
$ |
(6,409 |
) |
|
$ |
(7,501 |
) |
|
$ |
(12,614 |
) |
Photovoltaics
|
|
|
(9,787
|
) |
|
|
(2,381
|
) |
|
|
(13,338
|
) |
|
|
(6,376
|
) |
Corporate
income (loss)
|
|
|
816 |
|
|
|
(4,912
|
) |
|
|
(1,286
|
) |
|
|
(8,366
|
) |
Operating
loss
|
|
$ |
(12,945 |
) |
|
$ |
(13,702 |
) |
|
$ |
(22,125 |
) |
|
$ |
(27,356 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-lived
assets (consisting of property, plant and equipment, goodwill and intangible
assets) for each reporting segment are as follows:
(in
thousands)
Long-lived
Assets
|
|
As
of
March
31, 2008
|
|
|
As
of
September
30, 2007
|
|
|
|
|
|
|
|
|
Fiber
Optics
|
|
$ |
124,612 |
|
|
$ |
56,816 |
|
Photovoltaics
|
|
|
52,045 |
|
|
|
46,706 |
|
|
|
|
|
|
|
|
|
|
Total
|
|
$ |
176,657 |
|
|
$ |
103,522 |
|
NOTE
14. Income Taxes
Effective
October 1, 2007, the Company adopted Interpretation No. 48 (“FIN 48”), Accounting for Uncertainty in Income
Taxes, an interpretation of FASB 109. As a result of the adoption
of FIN 48, the Company recorded an increase in accumulated deficit and an
increase in the liability for unrecognized state tax benefits of approximately
$326,000 (net of the federal benefit for state tax liabilities). All of this
amount, if recognized, would reduce future income tax provisions and favorably
impact effective tax rates. During the quarter ended March 31, 2008, there were
no material increases or decreases in unrecognized tax
benefits. Management expects that over the next twelve months the
liability for unrecognized state tax benefits will substantially decrease and
does not anticipate any material increases over the next twelve
months.
The
Company’s historical accounting policy with respect to interest and penalties
related to tax uncertainties has been to classify these amounts as income taxes,
and the Company continued this classification upon the adoption of FIN 48.
At March 31, 2008, the Company had approximately $117,000 of interest and
penalties accrued as tax liabilities in the Condensed Consolidated Balance
Sheet.
The
Company files income tax returns in the U.S. federal, state and local
jurisdictions. No federal, state and local income tax returns are
currently under examination. Certain income tax returns for fiscal years 2004
through 2006 remain open to examination by U.S. federal, state and local tax
authorities.
NOTE
15. Subsequent Event
On April
20, 2008, the Company completed its acquisition of the enterprise and storage
assets of Intel Corporation’s Optical Platform Division as well as the Intel
Connects Cables business. The assets acquired include inventory,
fixed assets, intellectual property, and technology relating to optical
transceivers for enterprise and storage customers, as well as optical cable
interconnects for high-performance computing clusters.
As
consideration for the purchase of assets, the Company issued 3.7 million
restricted shares of the Company’s common stock to Intel. In
addition, the Company may be required to make an additional payment to Intel
based on the Company’s stock price twelve months after the closing of the
transaction. In the event that the Company is required to make an
additional payment, it has the option to make that payment in cash, common stock
or both (but not to exceed the equivalent value of 1.3 million
shares).
Intel and
the Company also entered into a transition services agreement under which Intel
will provide selected services to the Company for a limited period after
closing. The parties have also entered into an intellectual property
agreement under which Intel will license, subject to certain conditions,
certain related intellectual property to the Company in connection with the
Company’s use and development of the assets being transferred to
it.
|
ITEM
2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
|
This
Quarterly Report on Form 10-Q includes forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, and Section 21E of the
Exchange Act of 1934. These forward-looking statements are based largely on our
current expectations and projections about future events and financial trends
affecting the financial condition of our business. These forward-looking
statements may be identified by the use of terms and phrases such as "expects,"
"anticipates,” "intends," "plans," believes," "estimates," “targets,” “can,”
“may,” “could,” “will” and variations of these terms and similar phrases.
Management cautions that these forward-looking statements are subject to
business, economic, and other risks and uncertainties, both known and unknown,
that may cause actual results to be materially different from those discussed in
these forward-looking statements. The cautionary statements made in this Report
should be read as being applicable to all forward-looking statements wherever
they appear in this Report. This discussion should be read in conjunction with
the consolidated financial statements, including the related notes.
These
forward-looking statements include, without limitation, any and all statements
or implications regarding:
·
|
The
ability of EMCORE Corporation (the “Company,” “we” or “EMCORE”) to remain
competitive and a leader in its industry and the future growth of the
company, the industry, and the economy in
general;
|
· Difficulties
in integrating recent or future acquisitions into our operations;
·
|
The
expected level and timing of benefits to the Company from on-going cost
reduction efforts, including (i) expected cost reductions and their impact
on our financial performance, (ii) our continued leadership in technology
and manufacturing in its markets, and (iii) our belief that the cost
reduction efforts will not impact product development or manufacturing
execution;
|
· Expected
improvements in our product and technology development programs;
·
|
Whether
our products will (i) be successfully introduced or marketed, (ii) be
qualified and purchased by our customers, or (iii) perform to any
particular specifications or performance or reliability standards;
and/or
|
·
|
Guidance
provided by the Company regarding our expected financial performance in
current or future periods, including, without limitation, with respect to
anticipated revenues, income, or cash flows for any period in fiscal 2008
and subsequent periods.
|
These
forward-looking statements involve risks and uncertainties that could cause
actual results to differ materially from those projected, including without
limitation, the following:
·
|
The
Company’s cost reduction efforts may not be successful in achieving their
expected benefits, or may negatively impact our
operations;
|
·
|
The
failure of our products (i) to perform as expected without material
defects, (ii) to be manufactured at acceptable volumes, yields, and cost,
(iii) to be qualified and accepted by our customers, and (iv) to
successfully compete with products offered by our competitors;
and/or
|
·
|
Other
risks and uncertainties described in the Company’s filings with the
Securities and Exchange Commission (“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 are made only as of the date of this Report and subsequent facts or
circumstances may contradict, obviate, undermine, or otherwise fail to support
or substantiate such statements. We assume no obligation to update the matters
discussed in this Quarterly Report on Form 10-Q to conform such statements to
actual results or to changes in our expectations, except as required by
applicable law or regulation.
Business
Overview
EMCORE is
a leading provider of compound semiconductor-based components and subsystems for
the broadband, fiber optic, satellite and terrestrial solar power
markets. We have two reporting segments: Fiber Optics and
Photovoltaics. The Company's 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. The Company's Photovoltaics segment provides solar products
for satellite and terrestrial applications. For satellite applications, the
Company offers high-efficiency compound semiconductor-based gallium arsenide
(“GaAs”) solar cells, covered interconnect cells (“CICs”) and fully integrated
solar panels. For terrestrial applications, the Company offers its
high-efficiency GaAs solar cells and integrated PV components for use in solar
power concentrator systems. For specific information about our
company, our products or the markets we serve, please visit our website at
http://www.emcore.com. The information on our website is not
incorporated into this Quarterly Report on Form 10-Q. We were
established in 1984 as a New Jersey corporation.
Our
principal objective is to maximize shareholder value by leveraging our expertise
in advanced compound semiconductor technologies to be a leading provider of
high-performance, cost-effective product solutions in each of the markets we
serve.
We target
market opportunities that we believe have large potential growth and where the
favorable performance characteristics of our products and high volume production
efficiencies may give us a competitive advantage over our
competitors. We believe that as compound semiconductor production
costs continue to be reduced, existing and new customers will be compelled to
increase their use of these products because of their attractive performance
characteristics and superior value.
On April
4, 2008, the Company announced that its Board of Directors had authorized
management of the Company to prepare a comprehensive operational and strategic
plan for the separation of the Company's Fiber Optics and Photovoltaic
businesses into separate corporations.
Quarterly
Highlights
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January
23, 2008 – EMCORE announced that it will supply its solar CPV components
and systems to the Spanish market through several
agreements.
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• EMCORE
was awarded a 300–kilowatt (kW) CPV system contract by Spain's Institute of
Concentrator Photovoltaics Systems (ISFOC). EMCORE expects to have its CPV
systems installed in Castilla–La Mancha, Spain by December 2008.
• EMCORE
reached an agreement to construct an 850–kW solar power park in Extremadura,
Spain. EMCORE will be utilizing its CPV solar power system and provide a
turn–key solution with a scope of work including engineering, procurement, and
construction. This project is expected to be completed before July 2008 in order
to take advantage of the current high feed–in tariff.
• EMCORE
received a purchase order for one million CPV components from a prominent CPV
system integrator. This order is expected to be completed by March 2009 with CPV
products being deployed in projects within the Spanish market.
·
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January
31, 2008 – EMCORE announced that it has signed a memorandum of
understanding for the supply of between 200 megawatts (MW) and 700 MW of
solar power systems that are scheduled for deployment in utility scale
solar power projects under development in the southwestern region of the
United States. EMCORE will supply and install turn–key solar power systems
utilizing EMCORE's CPV systems developed at its Albuquerque, NM facility.
The project developer, SunPeak Solar, is securing land and grid access
throughout 2008 and project construction is expected to begin in early
2009. This agreement is not expected to contribute revenues until 2009 and
is dependant on the renewal of the federal investment tax credit (ITC)
extending into 2009 and beyond.
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·
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February
15, 2008 – EMCORE entered into a securities purchase agreement for the
sale of $100 million of restricted common stock and
warrants. Under this agreement, investors purchased 8 million
shares of our common stock, no par value, and warrants to purchase an
additional 1.4 million shares of our common stock. The purchase
price was $12.50 per share, priced at the 20 day volume-weighted average
price. The warrants grant the holder the right to purchase one
share of our common stock at a price of $15.06 per share. The
warrants are immediately exercisable and remain exercisable for a period
of 5 years from the closing date. In addition, EMCORE entered
into a registration rights agreement with the investors to register for
resale the shares of common stock issued in this transaction and the
shares of common stock to be issued upon exercise of the
warrants. Total agent fees incurred were 5.75% of the gross
proceeds, or $5.8 million. EMCORE used the net proceeds to
acquire the telecom assets of Intel's Optical Platform Division and for
working capital requirements.
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·
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February
22, 2008 – EMCORE announced completion of the acquisition of the
telecom-related portion of Intel's Optical Platform Division. The telecom
assets EMCORE acquired include intellectual property, assets and
technology comprised of tunable lasers, tunable transponders, 300-pin
transponders, and integrated tunable laser assemblies. The acquisition
agreement was signed and announced on December 18, 2007. The purchase
price was $75 million in cash and $10 million in the Company’s common
stock, priced at a volume-weighted average price of $13.84 per share, or
722,688 shares. This acquisition enhances EMCORE's
presence in the telecommunications market segment and expands its fiber
optics product portfolio. The acquired assets will be integrated into
EMCORE's Digital Products Division
(EDP).
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·
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February
26, 2008 – EMCORE announced new features to its 1550nm broadband
transmitter and optical amplifier product lines. In order to support the
requirements for extended bandwidth CATV systems and RF overlay for PON
networks, these new products offer 1GHz RF performance, dual hot swappable
power supplies and SNMP management
capabilities.
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·
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February
27, 2008 – EMCORE announced the introduction of a new line of un-cooled
coaxial DFB lasers. EMCORE's 1933 DFB laser family offers a low cost
solution for 1310nm linear fiber optic links. With an innovative design,
the 1933 series requires no additional cooling since it can maintain
performance even with case temperatures ranging from -40°C to +80°C. The
1933 also features exceptionally high slope efficiency and linearity even
with optical output powers up to
12dBm.
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·
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April
2, 2008 – EMCORE announced that it had been awarded a $4.6 million
follow-on production order for solar cell receiver assemblies from
Concentration Solar la Mancha of Manzanares (Ciudad Real), Spain. The
receivers will be incorporated into CS la Mancha's 500X concentrator
photovoltaic (CPV) system and will be deployed throughout Spain and other
locations in fully licensed and funded projects. Shipments are scheduled
to commence in the September quarter and complete in early 2009. CS la
Mancha, part of Renovalia Energy, a renewable energy company in Spain, has
been developing the CPV system for nearly two years, and has recently
started production and volume
deployment.
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·
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April
10, 2008 – EMCORE announced that it agreed to supply CPV systems to XinAo
Group in China. XinAo Group is one of China's largest energy companies and
is well known for its clean-energy technologies. The program will start
with the delivery of a 50 kilowatt (kW) concentrator photovoltaic (CPV)
system to be installed in Langfang, China. This system will be used for
test and evaluation purposes. Once the expected reliability and
performance metrics have been demonstrated, XinAo plans to install CPV
systems to provide electric power for its innovative coal gasification
project, which is estimated to have a requirement of 60 megawatts (MW) of
power. XinAo believes that EMCORE's CPV technology will provide a
cost-effective solution for its energy needs. In addition, XinAo intends
to build a manufacturing plant in China, jointly owned by EMCORE, to
manufacture CPV systems designed and certified by EMCORE for the Chinese
market.
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·
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April
21, 2008 – EMCORE announced completion of the acquisition of the
enterprise and storage assets of Intel’s Optical Platform Division (OPD)
and the Intel Connects Cable (ICC) business for high-performance computing
under the terms signed and announced previously. The assets include
intellectual property, inventory, fixed assets and technology relating to
XENPAK, X2, SFP, and SFP+ optical transceivers for enterprise and storage
customers, as well as the Intel Connects Cables (ICC) active cable
interconnects for high-performance computing clusters. This acquisition
will further enhance EMCORE’s presence in the local area and storage area
network market segments. These assets, along with the Telecom assets
acquired in February 2008 from Intel OPD, make EMCORE one of the major
companies in the world with the most comprehensive product portfolio,
vertically-integrated capability and infrastructure, and strong commitment
to Telecom, Datacom, and Broadband fiber optics businesses. The acquired
assets will be integrated into the EMCORE Digital Products (EDP)
division.
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With
several strategic acquisitions and divestures in the past year, the Company has
developed a strong business focus and comprehensive product portfolios in two
main sectors: Fiber Optics and Photovoltaics.
Fiber
Optics
Our fiber
optics products enable information that is encoded on light signals to be
transmitted, routed (switched) and received in communication systems and
networks. Our fiber optics products provide our customers with
increased capacity to offer more services, at increased data transmission
distance, speed and bandwidth with lower noise video receive and lower power
consumption. Our Fiber Optics segment primarily targets the following
markets:
·
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Cable Television (CATV)
Networks - We are a market leader in providing radio frequency (RF)
over fiber products for the CATV industry. Our products are
used in hybrid fiber coaxial (HFC) networks that enable cable service
operators to offer multiple advanced services to meet the expanding demand
for high-speed Internet, on-demand and interactive video and other
advanced services, such as high-definition television (HDTV) and voice
over IP (VoIP).
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·
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Fiber-to-the-Premises (FTTP)
Networks - Telecommunications companies are increasingly extending
their optical infrastructure to the customer’s location in order to
deliver higher bandwidth services. We have developed and maintain customer
qualified FTTP components and subsystem products to support plans by
telephone companies to offer voice, video and data services through the
deployment of new fiber-based access
networks.
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·
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Data Communications
Networks - We provide leading-edge optical components and modules
for data applications that enable switch-to-switch, router-to-router and
server-to-server backbone connections at aggregate speeds of 10 gigabits
per second (G) and above.
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·
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Telecommunications
Networks - Our leading-edge optical components and modules enable
high-speed (up to an aggregate 40G) optical interconnections that drive
advanced architectures in next-generation carrier class switching and
routing networks. Our products are used in equipment in the
network core and key metro optical nodes of voice telephony and Internet
infrastructures.
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·
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Satellite Communications
(Satcom) Networks - We are a leading provider of optical components
and systems for use in equipment that provides high-performance optical
data links for the terrestrial portion of satellite communications
networks.
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·
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Storage Area Networks -
Our high performance optical components are also used in high-end data
storage solutions to improve the performance of the storage
infrastructure.
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·
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Video Transport - Our
video transport product line offers solutions for broadcasting,
transportation, IP television (IPTV), mobile video and security &
surveillance applications over private and public networks. the Company’s
video, audio, data and RF transmission systems serve both analog and
digital requirements, providing cost-effective, flexible solutions geared
for network reconstruction and
expansion.
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·
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Defense and Homeland
Security - Leveraging our expertise in RF module design and
high-speed parallel optics, we provide a suite of ruggedized products that
meet the reliability and durability requirements of the U.S. Government
and defense markets. Our specialty defense products include
fiber optic gyro components used in precision guided munitions, ruggedized
parallel optic transmitters and receivers, high-frequency RF fiber optic
link components for towed decoy systems, optical delay lines for radar
systems, EDFAs, terahertz spectroscopy systems and other
products.
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·
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Consumer Products - We
intend to extend our optical technology into the consumer market by
integrating our Vertical Cavity Surface-Emitting Lasers (“VCSELs”) into
optical computer mice and ultra short data links. We are in
production with customers on several products and currently qualifying our
products with additional customers. An optical computer mouse
with laser illumination is superior to LED-based illumination in that it
reveals surface structures that a LED light source cannot uncover. VCSELs
enable computer mice to track with greater accuracy, on more surfaces and
with greater responsiveness than existing LED-based
solutions.
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Photovoltaics
We
believe our high-efficiency compound semiconductor-based multi-junction solar
cell products provide our customers with compelling cost and performance
advantages over traditional silicon-based solutions. These include
higher solar cell efficiency allowing for greater conversion of light into
electricity, an increased ability to benefit from use in solar concentrator
systems, ability to withstand high heat environments and reduced overall
footprint. Our Photovoltaics segment primarily targets the following
markets:
·
|
Satellite Solar Power
Generation. We are a leader in providing solar power
generation solutions to the global communications satellite industry and
U.S. Government space programs. A satellite’s operational
success and corresponding revenue depend on its available power and its
capacity to transmit data. We manufacture advanced compound
semiconductor-based solar cell and solar panel products, which are more
resistant to radiation levels in space and generate substantially more
power from sunlight than silicon-based solutions. Space power
systems using our multi-junction solar cells weigh less per unit of power
than traditional silicon-based solar cells. These performance
characteristics increase satellite useful life, increase satellites’
transmission capacity and reduce launch costs. Our products
provide our customers with higher sunlight to electrical power conversion
efficiency for reduced size and launch costs; higher radiation tolerance;
and longer lifetime in harsh space environments. We design and
manufacture multi-junction compound semiconductor-based solar cells for
both commercial and military satellite applications. We currently
manufacture and sell one of the most efficient and reliable, radiation
resistant advanced triple-junction solar cells in the world, with an
average "beginning of life" efficiency of 28.5%. In May 2007,
the Company announced that it has attained solar conversion efficiency of
31% for an entirely new class of advanced multi-junction solar cells
optimized for space applications. The Company is also the only
manufacturer to supply true monolithic bypass diodes for shadow
protection, utilizing several the Company patented methods. The Company
also provides covered interconnect cells (CICs) and solar panel lay-down
services, giving us the capability to manufacture complete solar panels.
We can provide satellite manufacturers with proven integrated satellite
power solutions that considerably improve satellite economics. Satellite
manufacturers and solar array integrators rely on the Company to meet
their satellite power needs with our proven flight
heritage.
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·
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Terrestrial Solar Power
Generation. Solar power generation systems use
photovoltaic cells to convert sunlight to electricity and have been used
in space programs and, to a lesser extent, in terrestrial applications for
several decades. The market for terrestrial solar power
generation solutions has grown significantly as solar power generation
technologies improve in efficiency, as global prices for non-renewable
energy sources (i.e., fossil fuels) continue to rise, and as concern has
increased regarding the effect of carbon emissions on global warming.
Terrestrial solar power generation has emerged as one of the most rapidly
expanding renewable energy sources due to certain advantages solar power
holds over other energy sources, including reduced environmental impact,
elimination of fuel price risk, installation flexibility, scalability,
distributed power generation (i.e., electric power is generated at the
point of use rather than transmitted from a central station to the user),
and reliability. The rapid increase in demand for solar power has created
a growing need for highly efficient, reliable and cost-effective solar
power concentrator systems.
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The
Company has adapted its high-efficiency compound semiconductor-based
multi-junction solar cell products for terrestrial applications, which are
intended for use with solar concentrator systems in utility-scale
installations. In August 2007, the Company announced that it has
obtained 39% peak conversion efficiency on its terrestrial concentrating solar
cell products currently in volume production. This compares favorably
to typical efficiency of 15-21% on silicon-based solar cells and 35% for
competing multi-junction concentrating solar cells. We believe that solar
concentrator systems assembled using our compound semiconductor-based solar
cells will be competitive with silicon-based solar power generation systems
because they are more efficient and, when combined with the advantages of
concentration, we believe will result in a lower cost of power
generated. Our multi-junction solar cell technology is not subject to
silicon shortages, which have led to increasing prices in the raw materials
required for silicon-based solar cells. While the terrestrial power generation
market is still developing, we have received production orders from multiple CPV
systems integrators and provided samples to several others, including major
system manufacturers in the United States, Europe and Asia.
We are
committed to the ongoing evaluation of strategic opportunities that can expand
our addressable markets and strengthen our competitive position. Where
appropriate, we will acquire additional products, technologies, or businesses
that are complementary to, or broaden the markets in which we operate. We plan
to pursue strategic acquisitions, investments, and partnerships to increase
revenue and allow for higher overhead absorption that will improve our gross
margins. Recent acquisition activity includes:
·
|
On February 22, 2008,
the Company acquired certain assets of the telecom portion of Intel
Corporation’s Optical Platform
Division.
|
·
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On April 20, 2008, the
Company acquired certain assets of the enterprise portion of Intel
Corporation’s Optical Platform
Division.
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The
Company is committed to achieving profitability by increasing revenue through
the introduction of new products, reducing our cost structure and lowering the
breakeven points of our product lines. We have significantly
streamlined our manufacturing operations by focusing on core competencies to
identify cost efficiencies. Where appropriate, we transferred the manufacturing
of certain product lines to contract manufacturers.
In May
2007, the Company announced the opening of a new manufacturing facility in
Langfang, China. Our new company, Langfang EMCORE Optoelectronics Co. Ltd., is
located approximately 20 miles southeast of Beijing and currently occupies a
space of 22,000 square feet with a Class-10,000 clean room for optoelectronic
device packaging. Another 60,000 square feet is available for future
expansion. We will transfer our most cost sensitive optoelectronic
devices to this facility. This facility, along with a strategic
alignment with our existing contract-manufacturing partners, should enable us to
improve our cost structure and gross margins. We also expect to develop and
provide improved service to our global customers using a local presence in
Asia.
The
Company’s restructuring programs are designed to further reduce the number of
manufacturing facilities, in addition to the divesture or exit from selected
businesses and product lines that were not strategic and/or were not capable of
achieving desired revenue or profitability goals. Our results of
operations and financial condition have and will continue to be significantly
affected by severance and restructuring charges, impairment of long-lived assets
and idle facility expenses incurred during facility closing
activities. Please refer to Risk Factors under Item 1A and Financial
Statements and Supplemental Data under Item 8 in our Annual Report on Form 10-K
for the fiscal year ended September 30, 2007, for further discussion of these
items.
Critical
Accounting Policies
The
preparation of financial statements in conformity with accounting principles
generally accepted in the United States of America (“U.S. GAAP”) requires
management to make estimates and assumptions that affect the reported amounts of
assets and liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of revenues and
expenses during the reported period. Management develops estimates based on
historical experience and on various assumptions about the future that are
believed to be reasonable based on the best information available. the Company’s
reported financial position or results of operations may be materially different
under changed conditions or when using different estimates and assumptions,
particularly with respect to significant accounting policies, which are
discussed below. In the event that estimates or assumptions prove to differ from
actual results, adjustments are made in subsequent periods to reflect more
current information. the Company's most significant estimates relate to accounts
receivable, inventory, goodwill, intangibles, other long-lived assets, warranty
accruals, revenue recognition, and valuation of stock-based
compensation.
Valuation of Accounts
Receivable. The Company regularly evaluates the collectibility of its
accounts receivable and accordingly maintains allowances for doubtful accounts
for estimated losses resulting from the inability of our customers to meet their
financial obligations to us. The allowance is based on the age of receivables
and a specific identification of receivables considered at risk. The Company
classifies charges associated with the allowance for doubtful accounts as
SG&A expense. If the financial condition of our customers were to
deteriorate, additional allowances may be required.
Valuation of
Inventory. Inventory is stated at the lower of cost or market, with cost
being determined using the standard cost method. The Company reserves against
inventory once it has been determined that: (i) conditions exist that may not
allow the inventory to be sold for its intended purpose, (ii) the inventory’s
value is determined to be less than cost, or (iii) the inventory is determined
to be obsolete. The charge related to inventory reserves is recorded as a cost
of revenue. The majority of the inventory write-downs are related to estimated
allowances for inventory whose carrying value is in excess of net realizable
value and on excess raw material components resulting from finished product
obsolescence. In most cases where the Company sells previously written down
inventory, it is typically sold as a component part of a finished product. The
finished product is sold at market price at the time resulting in higher average
gross margin on such revenue. The Company does not track the selling price of
individual raw material components that have been previously written down or
written off, since such raw material components usually are only a portion of
the resultant finished products and related sales price. The Company evaluates
inventory levels at least quarterly against sales forecasts on a significant
part-by-part basis, in addition to determining its overall inventory risk.
Reserves are adjusted to reflect inventory values in excess of forecasted sales,
as well as overall inventory risk assessed by management. We have incurred, and
may in the future incur, charges to write-down our inventory. While we believe,
based on current information, that the amount recorded for inventory is properly
reflected on our balance sheet, if market conditions are less favorable than our
forecasts, our future sales mix differs from our forecasted sales mix, or actual
demand from our customers is lower than our estimates, we may be required to
record additional inventory write-downs.
Valuation of Goodwill and
Intangible Assets. Goodwill represents the excess of the purchase price
of an acquired business or assets over the fair value of the identifiable assets
acquired and liabilities assumed. Intangible assets consist primarily of
intellectual property that has been internally developed or purchased. Purchased
intangible assets include existing and core technology, trademarks and trade
names, and customer contracts. Intangible assets are amortized using the
straight-lined method over estimated useful lives ranging from one to fifteen
years.
The
Company evaluates its goodwill and intangible assets for impairment on an annual
basis, or whenever events or changes in circumstances indicate that the carrying
value may not be recoverable. Management has elected December 31 as its annual
assessment date. Circumstances that could trigger an impairment test
include but are not limited to: a significant adverse change in the business
climate or legal factors; an adverse action or assessment by a regulator;
unanticipated competition; loss of key personnel; the likelihood that a
reporting unit or significant portion of a reporting unit will be sold or
otherwise disposed; results of testing for recoverability of a significant asset
group within a reporting unit; and recognition of a goodwill impairment loss in
the financial statements of a subsidiary that is a component of a reporting
unit. The determination as to whether a write-down of goodwill or intangible
assets is necessary involves significant judgment based on the short-term and
long-term projections of the future performance of the reporting unit to which
the goodwill or intangible assets are attributed. As of December 31, 2008 and
2007, we tested for impairment on our goodwill and intangible assets and based
on that analysis, we determined that the carrying amount of the reporting units
did not exceed their fair value, and therefore, no impairment was recognized for
any period presented in the condensed consolidated financial
statements.
Valuation of Long-lived
Assets. The Company reviews long-lived assets on an annual basis or
whenever events or changes in circumstances indicate that its carrying amount
may not be recoverable. A long-lived asset is considered impaired when its
anticipated undiscounted cash flow is less than its carrying value. In making
this determination, the Company uses certain assumptions, including, but not
limited to: (a) estimates of the fair market value of these assets; and (b)
estimates of future cash flows expected to be generated by these assets, which
are based on additional assumptions such as asset utilization, length of service
that assets will be used in our operations, and estimated salvage
values.
Product Warranty
Reserves. The Company provides its customers with limited rights of
return for non-conforming shipments and warranty claims for certain products. In
accordance with SFAS 5, Accounting for Contingencies,
the Company makes estimates of product warranty expense using historical
experience rates as a percentage of revenue and accrues estimated warranty
expense as a cost of revenue. We estimate the costs of our warranty
obligations based on our historical experience of known product failure rates,
use of materials to repair or replace defective products and service delivery
costs incurred in correcting product failures. In addition, from time to time,
specific warranty accruals may be made if unforeseen technical problems arise.
Should our actual experience relative to these factors differ from our
estimates, we may be required to record additional warranty reserves.
Alternatively, if we provide more reserves than we need, we may reverse a
portion of such provisions in future periods.
Revenue Recognition.
Revenue is recognized upon shipment provided persuasive evidence of a contract
exists, (such as when a purchase order or contract is received from a customer),
the price is fixed, the product meets its specifications, title and ownership
have transferred to the customer, and there is reasonable assurance of
collection of the sales proceeds. In those few instances where a given sale
involves post shipment obligations, formal customer acceptance documents, or
subjective rights of return, revenue is not recognized until all post-shipment
conditions have been satisfied and there is reasonable assurance of collection
of the sales proceeds. The majority of our products have shipping terms that are
free on board (FOB) or free carrier alongside (FCA) shipping point, which means
that the Company fulfills its delivery obligation when the goods are handed over
to the freight carrier at our shipping dock. This means the buyer bears all
costs and risks of loss or damage to the goods from that point. In certain
cases, the Company ships its products cost insurance and freight (CIF). Under
this arrangement, revenue is recognized under FCA shipping point terms, but the
Company pays (and bills the customer) for the cost of shipping and insurance to
the customer's designated location. The Company accounts for shipping and
related transportation costs by recording the charges that are invoiced to
customers as revenue, with the corresponding cost recorded as cost of revenue.
In those instances where inventory is maintained at a consigned location,
revenue is recognized only when our customer pulls product for its use and title
and ownership have transferred to the customer. Revenue from time and material
contracts is recognized at the contractual rates as labor hours and direct
expenses are incurred. The Company also generates service revenue
from hardware repairs and calibrations that is recognized as revenue upon
completion of the service. Any cost of warranties and remaining
obligations that are inconsequential or perfunctory are accrued when the
corresponding revenue is recognized.
Distributors - The Company
uses a number of distributors around the world. In accordance with Staff
Accounting Bulletin No. 104, Revenue Recognition, the
Company recognizes revenue upon shipment of product to these distributors. Title
and risk of loss pass to the distributors upon shipment, and our distributors
are contractually obligated to pay the Company on standard commercial terms,
just like our other direct customers. The Company does not sell to
its distributors on consignment and, except in the event of product
discontinuance, does not give distributors a right of return.
Solar Panel and Solar Power Systems
Contracts - The Company records revenues from certain solar
panel and solar power systems contracts using the
percentage-of-completion method in accordance with AICPA Statement of Position
81-1 ("SOP 81-1"), Accounting
for Performance of Construction-Type and Certain Production-Type
Contracts. Revenue is recognized in proportion to actual costs incurred
compared to total anticipated costs expected to be incurred for each contract.
If estimates of costs to complete long-term contracts indicate a loss, a
provision is made for the total loss anticipated. The Company has numerous
contracts that are in various stages of completion. Such contracts require
estimates to determine the appropriate cost and revenue recognition. The Company
uses all available information in determining dependable estimates of the extent
of progress towards completion, contract revenues, and contract costs. Estimates
are revised as additional information becomes available. Due to
the fact that the Company accounts for these contracts under the
percentage-of-completion method, unbilled accounts receivable represent revenue
recognized but not yet billed pursuant to contract terms or accounts billed
after the period end.
Government R&D Contracts
- - R&D contract revenue represents reimbursement by various U.S. Government
entities, or their contractors, to aid in the development of new technology. The
applicable contracts generally provide that the Company may elect to retain
ownership of inventions made in performing the work, subject to a non-exclusive
license retained by the U.S. Government to practice the inventions for
governmental purposes. The R&D contract funding may be based on a cost-plus,
cost reimbursement, or a firm fixed price arrangement. The amount of funding
under each R&D contract is determined based on cost estimates that include
both direct and indirect costs. Cost-plus funding is determined based on actual
costs plus a set margin. As we incur costs under cost reimbursement type
contracts, we record revenue. Contract costs include material, labor, special
tooling and test equipment, subcontracting costs, as well as an allocation of
indirect costs. An R&D contract is considered complete when all significant
costs have been incurred, milestones have been reached, and any reporting
obligations to the customer have been met. Government contract
revenue is primarily recognized as service revenue.
The
Company also has certain cost-sharing R&D arrangements. Under
such arrangements in which the actual costs of performance are divided between
the U.S. Government and the Company on a best efforts basis, no revenue is
recorded and the Company’s R&D expense is reduced for the amount of the
cost-sharing receipts.
The U.S.
Government may terminate any of our government contracts at their convenience as
well as for default based on our failure to meet specified performance
measurements. If any of our government contracts were to be terminated for
convenience, we generally would be entitled to receive payment for work
completed and allowable termination or cancellation costs. If any of our
government contracts were to be terminated for default, generally the U.S.
Government would pay only for the work that has been accepted and can require us
to pay the difference between the original contract price and the cost to
re-procure the contract items, net of the work accepted from the original
contract. The U.S. Government can also hold us liable for damages resulting from
the default.
Stock-Based
Compensation. The Company uses the Black-Scholes option-pricing model and
the straight-line attribution approach to determine the fair-value of
stock-based awards under SFAS 123(R), Share-Based Payment (revised
2004). The Company elected to use the modified prospective transition
method as permitted by SFAS 123(R) and accordingly prior periods were not
restated to reflect the impact of SFAS 123(R). The modified prospective
transition method requires that stock-based compensation expense be recorded for
all new and unvested stock options and employee stock purchase plan shares that
are ultimately expected to vest as the requisite service is rendered beginning
on October 1, 2005, the first day of the Company’s fiscal year
2006. The option-pricing model requires the input of highly
subjective assumptions, including the option’s expected life and the price
volatility of the underlying stock. The Company’s expected term represents the
period that stock-based awards are expected to be outstanding and is determined
based on historical experience of similar awards, giving consideration to the
contractual terms of the stock-based awards, vesting schedules and expectations
of future employee behavior as influenced by changes to the terms of its
stock-based awards. The expected stock price volatility is based on the
Company’s historical stock prices (see Note 3 - Equity).
The above
listing is not intended to be a comprehensive list of all of our accounting
policies. In many cases, the accounting treatment of a particular transaction is
specifically dictated by U.S. GAAP. There also are areas in which
management's judgment in selecting any available alternative would not produce a
materially different result. For complete discussion of our accounting policies
and other required U.S. GAAP disclosures, we refer you to our Annual Report on
Form 10-K for the fiscal year ended September 30, 2007.
Results of
Operations
The
following table sets forth the condensed consolidated statements of operations
data of the Company expressed as a percentage of total revenues for the three
and six months ended March 31, 2008.
Condensed
Statement of Operations Data
|
|
Three
Months Ended
March
31,
|
|
|
Six
Months Ended
March
31,
|
|
|
|
2008
|
|
|
2007
|
|
|
2008
|
|
|
2007
|
|
Product
revenue
|
|
|
85.8
|
% |
|
|
85.1
|
% |
|
|
89.9
|
% |
|
|
88.7
|
% |
Service
revenue
|
|
|
14.2 |
|
|
|
14.9 |
|
|
|
10.1 |
|
|
|
11.3 |
|
Total
revenue
|
|
|
100.0 |
|
|
|
100.0 |
|
|
|
100.0 |
|
|
|
100.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost
of product revenue
|
|
|
74.9 |
|
|
|
71.1 |
|
|
|
75.1 |
|
|
|
75.6 |
|
Cost
of service revenue
|
|
|
13.3 |
|
|
|
11.3 |
|
|
|
8.7 |
|
|
|
8.5 |
|
Total
cost of revenue
|
|
|
88.2 |
|
|
|
82.4 |
|
|
|
83.8 |
|
|
|
84.1 |
|
Gross
profit
|
|
|
11.8 |
|
|
|
17.6 |
|
|
|
16.2 |
|
|
|
15.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling,
general, and administrative
|
|
|
18.2 |
|
|
|
33.2 |
|
|
|
21.4 |
|
|
|
32.8 |
|
Research
and development
|
|
|
16.6 |
|
|
|
19.0 |
|
|
|
16.2 |
|
|
|
18.1 |
|
Total
operating expenses
|
|
|
34.8 |
|
|
|
52.2 |
|
|
|
37.6 |
|
|
|
50.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
loss
|
|
|
(23.0
|
) |
|
|
(34.6 |
) |
|
|
(21.4
|
) |
|
|
(35.0 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
expense (income):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(0.4
|
) |
|
|
(3.0
|
) |
|
|
(0.6
|
) |
|
|
(3.6
|
) |
|
|
|
0.7 |
|
|
|
3.2 |
|
|
|
1.5 |
|
|
|
3.2 |
|
Loss
from conversion of subordinated notes
|
|
|
8.3 |
|
|
|
- |
|
|
|
4.5 |
|
|
|
- |
|
Stock–based
compensation expense from tolled options (income from expired tolled
options)
|
|
|
(0.1
|
) |
|
|
- |
|
|
|
4.2 |
|
|
|
- |
|
Gain
from insurance proceeds
|
|
|
- |
|
|
|
(0.9
|
) |
|
|
- |
|
|
|
(0.5
|
) |
Loss
on disposal of equipment
|
|
|
- |
|
|
|
- |
|
|
|
0.1 |
|
|
|
- |
|
|
|
|
(0.3
|
) |
|
|
- |
|
|
|
(0.2
|
) |
|
|
- |
|
Total
other expense (income)
|
|
|
8.2 |
|
|
|
(0.7 |
) |
|
|
9.5 |
|
|
|
(0.9
|
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss
|
|
|
(31.1
|
)% |
|
|
(33.9
|
)% |
|
|
(30.9
|
)% |
|
|
(34.1
|
)
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comparison of three and six
months ended March 31, 2008 and 2007
Consolidated
Revenue
Consolidated
revenue for the quarter ended March 31, 2008 totaled approximately $56.3
million. This represents a revenue increase of over 42% when compared to $39.6
million of revenue reported in the same period last year. This also
represents a revenue increase of 20% when compared to the prior quarter.
Consolidated revenue for the six months ended March 31, 2008 totaled
approximately $103.2 million. Both of the Company’s operating
segments posted increases in quarterly revenue when compared year-over-year and
quarter-over-quarter. For the three months ended
March 31, 2008, international sales increased $5.0 million or 45%, when compared
to the same period last year. For the three months ended March 31, 2008, revenue
from government contracts, which are primarily service contracts, decreased $3.9
million or 66% to $2.0 million from $5.9 million, as reported in the same period
last year. For the six months ended March 31, 2008, international
sales increased $12.2 million or 51% when compared to the same
period last year. For the six months ended March 31, 2008, revenue
from government contracts, decreased $3.6 million or 40% to $5.3 million from
$8.9 million, as reported in the same period last year. A comparison
of revenue achieved at each of the Company’s reportable segments
follows:
Fiber
Optics.
Over the
past several years, communications networks have experienced dramatic growth in
data transmission traffic due to worldwide Internet access, e-mail, and
e-commerce. As Internet content expands to include full motion video on-demand,
HDTV, multi-channel high quality audio, online video conferencing, image
transfer, online multi-player gaming, and other broadband applications, the
delivery of such data will place a greater demand on available bandwidth and
require the support of higher capacity networks. The bulk of this traffic, which
continues to grow at a very high rate, is already routed through the optical
networking infrastructure used by local and long distance carriers, as well as
internet service providers. Optical fiber offers substantially greater bandwidth
capacity, is less error prone, and is easier to administer than older copper
wire technologies. As greater bandwidth capability is delivered closer to the
end user, increased demand for higher content, real-time, interactive visual and
audio content is expected. We believe that the Company is well positioned to
benefit from the continued deployment of these higher capacity fiber optic
networks. Customers for the Fiber Optics segment include: Avago
Technologies, Inc., Alcatel, Aurora Networks, BUPT-GUOAN Broadband, C-Cor
Electronics, Cisco Systems, Inc., Finisar, Hewlett-Packard Corporation, Intel
Corporation, Jabil, JDSU, Motorola, Network Appliance, Sycamore Networks, Inc.,
and Tellabs.
For the
three months ended March 31, 2008, revenue from the Company’s Fiber Optics
segment increased $11.4 million or 44% to $37.6 million from $26.2 million, as
reported in the same period last year. For the six months ended March
31, 2008, Fiber Optics revenue increased $20.0 million or 39% to $71.6 million
from $51.6 million, as reported in the same period last year. The increase in
revenue was due to our acquisition of the telecom related assets of
Intel’s Optical Platform Division and a significant increase in quarterly
revenue from the Company;s datacom product lines.
The
communications industry in which we participate continues to be dynamic. The
driving factor is the competitive environment that exists between cable
operators, telephone companies, and satellite and wireless service providers.
Each are rapidly investing capital to deploy a converging multi-service network
capable of delivering “triple play services”, i.e. digitalized video, voice and
data content, bundled as a service provided by a single communication provider.
As a market leader in RF transmission over fiber products for the CATV industry,
the Company enables cable companies to offer multiple forms of communications to
meet the expanding demand for high-speed Internet, on-demand and interactive
video, and other new services (such as HDTV and VOIP). Television is also
undergoing a major transformation, as the U.S. Government requires television
stations to broadcast exclusively in digital format, abandoning the analog
format used for decades. Although the transition date for digital transmissions
is not expected for several years, the build-out of these television networks
has already begun. To support the telephone companies plan to offer competing
video, voice and data services through the deployment of new fiber-based
systems, the Company has developed and maintains customer qualified FTTP
components and subsystem products. Our CATV and FTTP products include broadcast
analog and digital fiber optic transmitters, quadrature amplitude modulation
(QAM) transmitters, video receivers, and passive optical network (PON)
transceivers.
There was
no government contract revenue during the three and six months ended March 31,
2008 and 2007. Fiber optics revenue represented 67% and 66% of the
Company's total revenue for the three months ended March 31, 2008 and 2007,
respectively and 69% and 66% of the Company’s total revenue for the six months
ended March 31, 2008 and 2007 respectively.
Photovoltaics.
The
Company provides advanced compound semiconductor solar cell products and solar
panels, which are more resistant to radiation levels in space and convert
substantially more power from sunlight than silicon-based
solutions. The Company’s Photovoltaics segment designs and
manufactures multi-junction compound semiconductor solar cells for both
commercial and military satellite applications as well as for use in terrestrial
concentrating photovoltaic solar power systems. Customers for the Photovoltaics
segment include Boeing, General Dynamics, the Indian Space Research Organization
(“ISRO”), Lockheed Martin, Space Systems/Loral, Green and Gold Energy, CS La
Mancha and ES Systems.
Photovoltaics
revenue for the three months ended March 31, 2008 increased $5.2 million or 39%
to $18.6 million from $13.4 million as reported in the same period last
year. For the six months ended March 31, 2008, Photovoltaics revenue
increased $5.0 million or 19% to $31.6 million from $26.6 million, as reported
in the same period last year. The significant increase in revenue was due to new
product and business introduction of concentrator photovoltaics (CPV) for solar
power applications. Total revenue from CPV components and systems was
$4.4 million for the three months ended March 31, 2008. During the
quarter, the Company also experienced increased demand for its satellite solar
cells and CICs products. Government contract revenues for
photovoltaics products were $2.0 million and $5.6 million for the three months
ended March 31, 2008 and 2007 respectively. Government contract
revenues for photovoltaics products were $5.3 million and $8.5 million for the
six months ended March 31, 2008 and 2007 respectively. Photovoltaics
revenue represented 33% and 34% of the Company's total revenues for the three
months ended March 31, 2008 and 2007, respectively. Photovoltaics
revenues represented 31% and 34% of the Company’s total revenues for the six
months ended March 31, 2008 and 2007, respectively.
We see
additional areas for growth resulting from the successful deployment of
terrestrial solar power systems that relay on our multi-junction solar cells and
CPV components. Concentrating PV systems have the potential to
provide cost effective solar power in regions of high solar resource and several
countries such as Italy, Spain and Greece have provided favorable feed in
tariffs for utility-scale solar power installations. The Company has
developed high efficiency multi-junction solar cells and integrated PV
components that function as the engine in concentrating photovoltaic systems and
we are well positioned to provide the enabling components in these large-scale
deployments. In the satellite industry, we see increased opportunity
in the commercial area as the number of geosynchronous communication satellite
launches have recovered from the decline observed earlier in the decade, with
Space Systems Loral winning a substantial share of the awards over the last
several years. Government and military procurement remains steady, and we have
succeeded in gaining market share in that area. We have recently been awarded
solar panel government contracts for military and science missions, and this
represents an expansion of our customer base.
Gross
Profit
Consolidated
gross profit for the quarter ended March 31, 2008 decreased to $6.6 million from
$7.0 million as reported in the same period last year. Consolidated
gross profit for the six months ended March 31, 2008 totaled $16.8 million,
which represents an increase of $4.3 million or 34% from gross profit of $12.5
million as reported in the same period last year. Consolidated gross
margin for the quarter ended March 31, 2008 was approximately 12%, which
represents a decrease from 18% gross margin as reported in the same period last
year. Consolidated gross margin for the six months ended March
31, 2008 was approximately 16%, which was slightly higher than gross margin
reported in the same period last year. In fiscal 2008, gross margin in our
fiber optics segment increased due
to increased revenue, facility consolidation, and other restructuring efforts
completed by the Company in the prior year. During
the quarter ended March 31, 2008, the Company took one-time charges of
approximately $6.3 million in its Photovoltaics segment for inventory
write-downs and start-up costs in our solar cell receiver line and CPV system
business.
Actions
designed to improve our gross margins (through product mix improvements, cost
reductions associated with product transfers and product rationalization,
maximizing production yields on high-performance devices and quality
improvements, among other things) continue to be a principal focus for
us. The establishment of a modern solar panel manufacturing facility,
adjacent to our solar cell fabrication operations, should facilitate
consistency, as well as reduce manufacturing costs. The benefit of having these
operations located at one site is expected to provide high quality, high
reliability and cost-effective solar components. We focus our activities on
developing new process control and yield management tools that enable us to
accelerate the adoption of new technologies into full-volume production, while
minimizing their associated risks.
Operating
Expenses
Selling, General, and
Administrative. For the three months ended March 31, 2008, SG&A
expenses decreased $2.8 million or 21% to $10.3 million from $13.1 million, as
reported in the same period last year. For the six months
ended March 31, 2008, SG&A expenses decreased $3.6 million or 14% to $22.1
million from $25.7 million, as reported in the same period last
year. Consistent with prior years, SG&A expense includes
corporate overhead expenses. As a percentage of revenue for the three
months ended March 31, 2008 and 2007, SG&A decreased to 18% from 33%,
respectively. As a percentage of revenue for the six months ended
March 31, 2008 and 2007, SG&A decreased to 21% from 33%,
respectively. A significant portion of the quarter-over-quarter and
year-over-year increase in operating expenses was due to acquisition-related and
new product and business introduction costs. During the quarter ended
March 31, 2008, the Company incurred over $1.7 million in operating expenses
associated with the acquisition of Intel’s telecom division and transitional
services being provided by Intel. Operating expenses also increased
approximately $1.3 million in the quarter due to costs incurred developing new
business opportunities for the Company’s new terrestrial solar power product
lines.
Research and Development.
Our R&D efforts have been sharply focused to maintain our
technological leadership position by working to improve the quality and
attributes of our product lines. We also invest significant resources to develop
new products and production technology to expand into new market opportunities
by leveraging our existing technology base and infrastructure. Our efforts are
focused on designing new proprietary processes and products, on improving the
performance of our existing materials, components, and subsystems, and on
reducing costs in the product manufacturing process. In addition to using our
internal capacity to develop and manufacture products for our target markets,
the Company continues to expand its portfolio of products and technologies
through acquisitions.
For the
three months ended March 31, 2008, R&D expenses increased $1.8 million or
24% to $9.3 million from $7.5 million, as reported in the same period last year.
As a percentage of revenue, R&D decreased to 17% from 19% for the three
months ended March 31, 2008 and 2007, respectively. As a percentage
of revenue R&D decreased to 16% from 18% for the six months ended March 31,
2008 and 2007, respectively. We believe that recently completed
R&D projects in our terrestrial solar power division have the potential to
greatly improve our competitive position and drive revenue growth in the next
few years.
As part
of the ongoing effort to cut costs, many of our projects are to develop lower
cost versions of our existing products and of our existing processes, while
improving quality. Also, we have implemented a program to focus research and
product development efforts on projects that we expect to generate returns
within one year. Our technology and product leadership is an important
competitive advantage. Driven by current and anticipated demand, we will
continue to invest in new technologies and products that offer our customers
increased efficiency, higher performance, improved functionality, and/or higher
levels of integration.
Other
Income & Expenses
Interest
Income. The Company realized a significant decrease of $0.4
million and $1.7 million for the three and six months ended March 31, 2008,
respectively, in interest income due to its decreased cash, cash equivalents and
marketable securities position.
Interest
Expense. The Company realized a significant decrease of $1.2
million and $1.3 million for the three and six months ended March 31, 2008,
respectively, in interest expense due to the conversion of its convertible
senior subordinated notes to equity (see Note 11 – Debt).
Loss from Conversion of Subordinated
Notes. In January 2008, the Company entered into agreements
with holders of approximately 97.5%, or approximately $83.3 million of its
outstanding 5.50% convertible senior subordinated notes due 2011 (the "Notes")
pursuant to which the holders converted their Notes into the Company's common
stock. In addition, the Company called for redemption all of its
remaining outstanding Notes. Upon conversion of the Notes, the Company issued
shares of its common stock, based on a conversion price of $7.01, in accordance
with the terms of the Notes. To incentivize certain holders to convert their
Notes, the Company made cash payments to such holders equal to 4% of the
principal amount of the Notes converted, plus accrued interest. By
February 20, 2008, all Notes were redeemed and converted into the Company common
stock. As a result of this transaction, 12.2 million shares of the Company
common stock were issued. The Company recognized a loss
totaling $4.7 million on the conversion of Notes to equity. The Notes
conversion resulted in a reduction of future interest payments of approximately
$4.7 million, on an annual basis, through May 2011.
Stock-based compensation expense
from tolled options. Under the terms of stock option
agreements issued under the 2000 Plan, terminated employees who have vested and
exercisable stock options have 90 days after the date of termination to exercise
stock options. In November 2006, the Company announced suspension of reliance on
previously issued financial statements, which in turn caused the Company’s Form
S-8 registration statements for shares of common stock issuable under the Option
Plans not to be available. Therefore, terminated employees were precluded from
exercising their stock options during the remaining contractual term (the
“Blackout Period”). To address this issue, the Company’s Board of
Directors agreed in April 2007 to approve a stock option grant “modification”
for these individuals by extending the normal 90-day exercise period after
termination date to a date after which the Company became compliant with its SEC
filings and the registration of the stock option shares was once again
effective. The Company communicated the terms of the tolling
agreement with its terminated employees in November 2007. The
Company’s Board of Directors approved an extension of the stock option
expiration date equal to the number of calendar days during the Blackout Period
before such stock option would have otherwise expired (the “Tolling
Period”). Former employees were able to exercise their vested
stock options beginning on the first day after the lifting of the Blackout
Period for a period equal to the Tolling Period. The Company
accounted for the modification of stock options issued to terminated employees
as additional compensation expense in accordance with SFAS 123(R) in the first
quarter of fiscal 2008 and adjusted the stock options to market value in the
first and second quarters of 2008. All tolled options were either
exercised or expired by January 29, 2008. No tolled stock options
were outstanding as of March 31, 2008. The liability related to any
unexercised options at the end of the tolling period was reversed to the
statement of operations. The amount was approximately
$58,000.
Foreign exchange
gain. The Company recognized a gain on foreign currency
exchange primarily due to operations in Spain, the Netherlands and
China.
Liquidity
and Capital Resources
Conclusion
We
believe that our current liquidity should be sufficient to meet our cash needs
for working capital through the next twelve months. If cash generated from
operations and cash on hand are not sufficient to satisfy the Company's
liquidity requirements, the Company will seek to obtain additional equity or
debt financing. Additional funding may not be available when needed,
or on terms acceptable to the Company. If the Company is required to raise
additional financing and if adequate funds are not available or not available on
acceptable terms, our ability to continue to fund expansion, develop and enhance
products and services, or otherwise respond to competitive pressures may be
severely limited. Such a limitation could have a material adverse effect on the
Company's business, financial condition, results of operations, and cash
flow.
Credit
Market Conditions
Currently,
the U.S. capital markets are experiencing turbulent conditions in the credit
markets, as evidenced by tightening of lending standards, reduced availability
of credit vehicles, and reduction of certain asset values. This
potentially impacts the Company’s ability to obtain additional funding through
financing or asset sales.
Auction
Rate Securities
Historically,
the Company has invested in securities with an auction reset feature (“auction
rate securities”). In February 2008, the auction market failed for
the Company’s auction rate securities, which meant the Company was unable to
sell its investments. At March 31, 2008, the Company had invested
approximately $5.3 million in auction rate securities, of which the underlyings
for $4.0 million are currently AAA rated, the highest rating by a rating
agency. The remaining $1.3 million of investments are securities
whose underlying assets are primarily student loans which are substantially
backed by the federal government.
As of
March 31, 2008, approximately $1.0 million of the Company’s auction rate
securities are classified as a current asset since the underlying securities are
expected to be redeemed at par value within several months. The
remaining $4.3 million of securities are classified as non-current
assets. The Company also recorded a temporary unrealized loss of
approximately $0.2 million to accumulated other comprehensive loss, a component
of shareholders’ equity, primarily due to these liquidity
factors. Based on expected operating cash flows, and our other
sources of cash, the Company does not anticipate the potential lack of liquidity
on these investments will affect its ability to execute on its current business
plan.
There are
no assurances that successful auctions of these types of securities will resume,
and as a result, the Company’s ability to liquidate its securities and fully
recover the carrying value of its investment in the near term may be limited or
not exist. If the issuers are unable to successfully close future
auctions and their credit ratings deteriorate, the Company may be required to
record further temporary or permanent impairment charges on these
securities.
Working
Capital
As of
March 31, 2008, the Company had working capital of approximately $72.6 million
compared to $63.2 million as of September 30, 2007. Cash, cash
equivalents, and marketable securities at March 31, 2008 totaled $23.7 million,
which reflects a net decrease of $17.5 million from September 30,
2007. Including long-term investments and restricted cash, cash and
cash equivalents totaled $30.5 million as of March 31, 2008. The decrease is
primarily due to payment of professional fees incurred with our review of
historical stock option granting practices, legal costs associated with our
patent infringement lawsuits against Optium Corporation, interest and redemption
payments on our convertible senior subordinated notes, capital expenditures, and
various other increases in net working capital requirements.
Cash
Flow
Net Cash Used for
Operations
For the
six months ended March 31, 2008, net cash used by operations decreased $3.1
million to $29.0 million from net cash used for operations of $32.1 million, as
reported in the same period last year. For the six months ended March
31, 2008, significant changes in working capital include an increase in
receivables of $14.7 million, a decrease in inventory of $3.6 million, an
increase in accounts payable of $5.3 million and a decrease in accrued expenses
of $4.0 million. For the six months ended March 31, 2007, significant changes in
working capital include an increase in receivables of $9.3 million, an increase
in inventory of $4.0 million, a decrease in accounts payable of $1.1 million and
a decrease in accrued expenses of $0.6 million.
Net Cash Used for Investing
Activities
For the
six months ended March 31, 2008, net cash used for investing activities
increased by $99.3 million to $61.4 million from net cash provided by investing
activities of $37.9 million, as reported in the same period last year. Changes
in investing cash flows for the six months ended March 31, 2008 and 2007
consisted primarily of:
·
|
Cash
purchase of the telecom assets from Intel of $75.0 million in fiscal 2008,
plus direct transactions costs of $0.5
million.
|
·
|
An
increase in capital expenditures to $9.6 million from $2.7 million, as
reported in the prior year.
|
·
|
An
investment of $13.7 million, inclusive of $0.2 million in transaction
costs, in WorldWater during fiscal
2007.
|
·
|
Net
sales of $23.8 million in marketable securities compared to $53.0 million
for the same period in the prior
year.
|
Net Cash Provided by
Financing Activities
Cash
provided by financing activities was $101.0 million for the six months ended
March 31, 2008 compared to $0.4 million for the six months ended March 31,
2007. The increase in cash was due to proceeds from a private
placement of common stock and warrants in fiscal 2008 of $93.8 million, plus the
proceeds from the exercise of stock options of $6.8 million.
On
February 20, 2008, the Company consummated the sale of $100 million of
restricted common stock and warrants. In this transaction, investors
purchased 8 million shares of our common stock, no par value, and warrants to
purchase an additional 1.4 million shares of our common stock. The
purchase price was $12.50 per share, priced at the 20 day volume-weighted
average price. The warrants grant the holder the right to purchase
one share of our common stock at a price of $15.06 per share, representing a
20.48% premium over the purchase price. The warrants are immediately
exercisable and remain exercisable until February 20, 2013. In
addition, the Compnay entered into a registration rights agreement with the
investors to register for resale the shares of common stock issued in this
transaction and the shares of common stock to be issued upon exercise of the
warrants. Beginning two years after their issuance, the warrants may
be called by the Company for a price of $0.01 per underlying share if the
closing price of its common stock has exceeded 150% of the exercise price for at
least 20 trading days within a period of any 30 consecutive trading days and
other conditions are met. In addition, in the event of certain
fundamental transactions, principally the purchase of the Company’s outstanding
common stock for cash, the holders of the warrants may demand that EMCORE
purchase the unexercised portions of their warrants for a price equal to the
Black-Scholes Value of such unexercised portions as of the time of the
fundamental transaction. Total agent fees incurred were 5.75% of the
gross proceeds, or $5.8 million. The Company used a substantial
portion of the net proceeds to acquire the telecom assets of Intel's Optical
Platform Division and is using the remainder for working capital
requirements.
In the
registration rights agreement, the Company agreed that if (i) a registration
statement covering all of the registrable securities required to be covered
thereby and required to be filed by the Company is (A) not filed with the SEC on
or before March 22, 2008 (EMCORE filed a registration statement on March 21,
2008 and has therefore met this deadline) or (B) not declared
effective by the SEC on or before May 21, 2008 (or June 20, 2008 if the SEC
elects to review the registration statement) (ii) on any day after
the date such registration statement is declared effective (the “Effective
Date”) sales of all of the registrable securities required to be included on
such Registration Statement cannot be made; or (iii) after the date six months
following the date of the private placement, EMCORE fails to file with the SEC
any required reports under Section 13 or 15(d) of the 1934 Act such that it is
not in compliance with Rule 144(c)(1) as a result of which holders are unable to
sell registrable securities without restriction under Rule 144 then, EMCORE
shall pay as liquidated damages to each holder of registrable securities
relating an amount in cash equal to one (1) percent (1%) of the aggregate
purchase price of such holder’s registrable securities included in such
registration statement on the day that such a failure first occurs and on
every thirtieth day thereafter until such failure is cured.
Liquidated damages shall be paid on the earlier of (i) the last day of the
calendar month during which such damages are incurred and (ii) the third
business day after the event or failure giving rise to the damages is
cured. In the event EMCORE fails to make such payments in a timely
manner, such liquidated damages shall bear simple interest at the rate of four
(4) percent (4%) per month until paid in full. In no event shall the
aggregate amount of liquidated damages exceed, in the aggregate, ten (10)
percent (10%) of the aggregate purchase price of the common stock sold in the
private placement. EMCORE also agreed not to issue shares in certain
capital raising transactions or file registration statements relating to the
same until 45 days after the earlier of the Effective Date and six months after
the private placement.
The
Company accounted for the various components of the private placement
transaction using the provisions of EITF Issue No. 00-19 Accounting for Derivative Financial
instruments Indexed to, and Potentially Settled in a Company’s Own Stock;
and FASB Staff Position EITF 00-19-2, Accounting for Registration Payment
Arrangements. Warrants issued to the investors were accounted for as
equity transaction with a value of $9.8 million recorded to common stock. The
potential future payments to the investors are considered as a contingent
liability in accordance with SFAS No. 5 Accounting for Contingencies.
As of March 31, 2008, the Company did not record any contingent liability
associated with the liquidated damages clause.
The costs
associated with this offering were $6.1 million which was recorded as an offset
to common stock.
Share
Dilution
A
following table summarizes the Company’s equity transactions and effect on share
dilution for the six months ended March 31, 2008:
|
|
Number
of
Common
Stock Shares Outstanding
|
Common
stock shares outstanding – as of October 1, 2007
|
|
|
|
|
|
|
|
|
|
Conversion
of convertible senior subordinated notes to equity (see Note 11 -
Debt)
|
|
|
|
|
Private
placement transaction (see Note 3 - Equity)
|
|
|
|
|
Acquisition
of Intel’s Optical Platform Division (see Note 4 –
Acquisitions)
|
|
|
|
|
Stock
option exercises and other compensatory stock
issuances
|
|
|
|
|
|
|
|
|
|
Common
stock shares outstanding – as of March 31, 2008
|
|
|
|
|
See Note
15 – Subsequent Event for further discussion of shares of common stock issued
subsequent to March 31, 2008.
Contractual
Obligations and Commitments
EMCORE’s
contractual obligations and commitments over the next five years are summarized
in the table below:
As
of March 31, 2008
(in
millions)
|
|
Total
|
|
|
2008
|
|
|
2009
to 2010
|
|
|
2011
to 2012
|
|
|
2013
and
later
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
lease obligations
|
|
$ |
7.1 |
|
|
$ |
0.7 |
|
|
$ |
2.2 |
|
|
$ |
1.3 |
|
|
$ |
2.9 |
|
|
|
|
2.7 |
|
|
|
2.7 |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
|
259.9 |
|
|
|
34.3 |
|
|
|
134.9 |
|
|
|
90.7 |
|
|
|
- |
|
Total
contractual cash obligations and
|
|
$ |
269.7 |
|
|
$ |
37.7 |
|
|
$ |
137.1 |
|
|
$ |
92.0 |
|
|
$ |
2.9 |
|
_______________
(1)
|
The
purchase commitments primarily represent the value of purchase agreements
issued for raw materials and services that have been scheduled for
fulfillment over the next three to five
years.
|
Operating
leases include non-cancelable terms and exclude renewal option periods, property
taxes, insurance and maintenance expenses on leased properties.
ITEM
3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We are
exposed to financial market risks, including changes in currency exchange rates
and interest rates. We do not use derivative financial instruments for
speculative purposes.
Currency Exchange Rates.
Although the Company enters into transactions denominated in foreign currencies
from time to time, the total amount of such transactions is not material.
Accordingly, fluctuations in foreign currency values would not have a material
adverse effect on our future financial condition or results of operations.
However, some of our foreign suppliers may adjust their prices (in $US) from
time to time to reflect currency exchange fluctuations, and such price changes
could impact our future financial condition or results of
operations. The Company does not currently hedge its foreign currency
exposure.
Interest Rates. We maintain
an investment portfolio in a variety of high-grade (AAA), short-term debt and
money market instruments such as auction-rate securities, which carry a minimal
degree of interest rate risk. Due in part to these factors, our future
investment income may be slightly less than expected because of changes in
interest rates, or we may suffer insignificant losses in principal if forced to
sell securities that have experienced a decline in market value because of
changes in interest rates. The Company does not currently hedge its
interest rate exposure.
Credit
Market Conditions
Currently,
the U.S. capital markets are experiencing turbulent conditions in the credit
markets, as evidenced by tightening of lending standards, reduced availability
of credit vehicles, and reduction of certain asset values. This
potentially impacts the Company’s ability to obtain additional funding through
financing or asset sales.
Auction
Rate Securities
Historically,
the Company has invested in securities with an auction reset feature (“auction
rate securities”). In February 2008, the auction market failed for
the Company’s auction rate securities, which meant the Company was unable to
sell its investments. At March 31, 2008, the Company had invested
approximately $5.3 million in auction rate securities, of which the underlyings
for $4.0 million are currently AAA rated, the highest rating by a rating
agency. The remaining $1.3 million of investments are securities
whose underlying assets are primarily student loans which are substantially
backed by the federal government.
As of
March 31, 2008, approximately $1.0 million of the Company’s auction rate
securities are classified as a current asset since the underlying securities are
expected to be redeemed at par value within several months. The
remaining $4.3 million of securities are classified as non-current
assets. The Company also recorded a temporary unrealized loss of
approximately $0.2 million to accumulated other comprehensive loss, a component
of shareholders’ equity, primarily due to these liquidity
factors. Based on expected operating cash flows, and our other
sources of cash, the Company does not anticipate the potential lack of liquidity
on these investments will affect its ability to execute on its current business
plan.
Disclosure
Controls and Procedures
The
Company maintains disclosure controls and procedures designed to provide
reasonable assurance that information required to be disclosed in reports filed
under the Securities Exchange Act of 1934 (the “Act”) is recorded, processed,
summarized and reported within the specified time periods and accumulated and
communicated to management, including its Chief Executive Officer (Principal
Executive Officer) and Interim Chief Financial Officer (Principal Financial
Officer), as appropriate to allow timely decisions regarding required
disclosure.
Management,
under the supervision and with the participation of its Chief Executive Officer
(Principal Executive Officer) and Interim Chief Financial Officer (Principal
Financial Officer), evaluated the effectiveness of the Company’s disclosure
controls and procedures (as defined in Rules 13a-15(e) or 15d-15(e)
promulgated under the Act), as of the end of the period covered by this report.
Based on that evaluation, management concluded that, as of that date, the
Company’s disclosure controls and procedures were effective at the reasonable
assurance level.
Attached
as exhibits to this Quarterly Report on Form 10-Q are certifications of the
Company’s Chief Executive Officer (Principal Executive Officer) and Interim
Chief Financial Officer (Principal Financial Officer), which are required in
accordance with Rule 13a-14 of the Act. This Disclosure Controls and
Procedures section includes information concerning management’s evaluation of
disclosure controls and procedures referred to in those certifications and, as
such, should be read in conjunction with the certifications of the Company’s
Chief Executive Officer (Principal Executive Officer) and Interim Chief
Financial Officer (Principal Financial Officer).
Changes
in Internal Control Over Financial Reporting
There
have been no changes in the Company’s internal control over financial reporting
that have materially affected, or are reasonably likely to materially affect,
the Company’s internal control over financial reporting.
Management
excluded from its assessment of the effectiveness of the Company’s disclosure
controls and procedures and internal control over financial reporting, the
disclosure controls and procedures and internal controls of the OPD business
which was acquired on February 22, 2008. Management was unable to assess the
effectiveness of the disclosure controls and procedures and internal control
over financial reporting of the OPD business because of the timing of the
acquisition. Management expects to update its assessment of the effectiveness of
the disclosure controls and procedures and internal control over financial
reporting to include the OPD business as soon as practicable but in any event,
no later than in the Form 10-Q for the quarterly period ended March 31,
2009.
The
Company is subject to various legal proceedings and claims that are discussed
below. The Company is also subject to certain other legal proceedings and claims
that have arisen in the ordinary course of business and which have not been
fully adjudicated. The Company does not believe it has a potential
liability related to current legal proceedings and claims that could
individually or in the aggregate have a material adverse effect on its financial
condition, liquidity or results of operations. However, the results of legal
proceedings cannot be predicted with certainty. Should the Company fail to
prevail in any legal matters or should several legal matters be resolved against
the Company in the same reporting period, the operating results of a particular
reporting period could be materially adversely affected.
On
February 1, 2007, Plaintiff Lewis Edelstein filed a purported stockholder
derivative action (the “Federal Court Action”) on behalf of the Company against
certain of its present and former directors and officers (the “Individual
Defendants”), as well as the Company as nominal defendant, in the U.S. District
Court for the District of New Jersey, Edelstein v. Brodie, et.
al., Case No. 3:07-cv-00596-FLW-JJH (D.N.J.). On May 22,
2007, Plaintiffs Kathryn Gabaldon and Michael Sackrison each filed a purported
stockholder derivative action against the Individual Defendants, and the Company
as nominal defendant, in the Superior Court of New Jersey, Somerset County,
Gabaldon v. Brodie,
et. al., Case No. 3:07-cv-03185-FLW-JJH (D.N.J.) and Sackrison v. Brodie, et.
al., Case No. 3:07-cv-00596-FLW-JJH (D.N.J.) (collectively, the “State
Court Actions”).
Both the
Federal Court Action and the State Court Actions alleged, using essentially
identical contentions that the Individual Defendants engaged in improprieties
and violations of law in connection with the Company’s historical issuances of
stock options. Each of the actions seeks the same relief on behalf of
the Company, including, among other things, damages, equitable relief, corporate
governance reforms, an accounting, rescission, restitution and costs and
disbursements of the lawsuit. On July 10, 2007, the State Court
Actions were removed to the U.S. District Court for the District of New
Jersey.
On
September 26, 2007, the plaintiff in the Federal Court Action signed an
agreement in principle with the Individual Defendants and the Company to settle
that litigation in accordance with the Memorandum of Understanding (the “MOU”)
filed as Exhibit 10.10 to the Annual Report on Form 10-K for the year ended
September 30, 2006. That same day, the plaintiffs in the State Court
Actions advised the Federal Court that the settlement embodied in the MOU would
also constitute the settlement of the State Court Actions.
The MOU
provides that the Company will adhere to certain policies and procedures
relating to the issuance of stock options, stock trading by directors, officers
and employees, the composition of its Board of Directors, and the functioning of
the Board’s Audit and Compensation Committees. The MOU also provides
for the payment of $700,000 relating to plaintiff’s attorneys’ fees, costs and
expenses, which the Company’s insurance carrier has committed to pay on behalf
of the Company.
On
November 28, 2007, a Stipulation of Compromise and Settlement (the
“Stipulation”) substantially embodying the terms previously contained in the MOU
was fully executed by the Company and the other defendants and the plaintiffs in
the Federal Court Action and the State Court Actions. The Stipulation was filed
as Exhibit 10.19 to the Annual Report on Form 10-K for the year ended September
30, 2007.
The
Stipulation provides that the Company will adhere to certain policies and
procedures relating to the issuance of stock options, stock trading by
directors, officers and employees, the composition of its Board of Directors,
and the functioning of the Board’s Audit and Compensation
Committees. The Stipulation also provides for the payment of $700,000
relating to plaintiffs’ attorneys’ fees, costs and expenses, which the Company’s
insurance carrier has committed to pay on behalf of the Company. A
motion to approve the settlement reflected in the Stipulation was filed with the
U.S. District Court for the District of New Jersey on December 3,
2007. The Court granted the motion for preliminary approval of
the settlement on January 3, 2008, and, at a hearing held on March 28, 2008, the
Court issued an order giving final approval to the
settlement. The settlement has become final and effective upon
the expiration of the appeal period on April 30, 2008. Thus, the
settlement is now binding on all parties and represents a final settlement of
both the Federal Court Action and the State Court Actions.
SEC
Investigation
On
February 27, 2008, the Company received a letter from the SEC’s Division of
Enforcement stating that the staff had completed its informal investigation of
EMCORE Corporation regarding the Company’s historical stock option granting
practices. The letter further advised the Company that the
staff of the Division of Enforcement did not intend to recommend any enforcement
action against the Company.
Indemnification
Obligations
Subject
to certain limitations, we are obligated to indemnify our current and former
directors, officers and employees in connection with the Special Committee’s
investigation of our historical stock option practices, the related SEC
non-public investigation and shareholder litigation. These obligations arise
under the terms of our restated certificate of incorporation, our bylaws,
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.
Intellectual
Property Lawsuits
We
protect our proprietary technology by applying for patents where appropriate and
in other cases by preserving the technology, related know-how and information as
trade secrets. The success and competitive position of our product lines is
significantly impacted by our ability to obtain intellectual property protection
for our R&D efforts.
We have,
from time to time, exchanged correspondence with third parties regarding the
assertion of patent or other intellectual property rights in connection with
certain of our products and processes. Additionally, on September 11, 2006, we
filed a lawsuit against Optium Corporation (Optium) in the U.S. District Court
for the Western District of Pennsylvania for patent infringement. In the suit,
the Company and JDS Uniphase Corporation (JDSU) allege that Optium is infringing
on U.S. patents 6,282,003 and 6,490,071 with its Prisma II 1550nm transmitters.
On March 14, 2007, following denial of a motion to add additional claims to its
existing lawsuit, the Company and JDSU filed a second patent suit in the same
court against Optium alleging infringement of JDSU's patent 6,519,374 ("the '374
patent"). On March 15, 2007, Optium filed a declaratory judgment
action against the Company and JDSU. Optium sought in this litigation a
declaration that certain products of Optium do not infringe the '374 patent and
that the patent is invalid, but the District Court dismissed the action on
January 3, 2008 without addressing the merits. The '374 patent is assigned to
JDSU and licensed to the Company.
On
December 20, 2007, the Company was served with a complaint in another
declaratory relief action which Optium had filed in the Federal District Court
for the Western District of Pennsylvania. This action seeks to have
U.S. patents 6,282,003 and 6,490,071 declared invalid or unenforceable because
of certain conduct alleged to have occurred in connection with the grant of
these patents. These allegations are substantially the same as those
brought by Optium by motion in the Company’s own case against Optium, which
motion had been denied by the Court. On January 30, 2008, the Company
and JDSU moved to dismiss the declaratory judgment action, and the parties are
presently awaiting a ruling from the Court on that motion to
dismiss.
ITEM
1A. RISK FACTORS
We
have a history of incurring significant net losses and our future profitability
is not assured.
We
commenced operations in 1984 and as of March 31, 2008, we had an accumulated
deficit of $375.8 million. We incurred a net loss of $31.9 million in the six
months ended March 31, 2008, net loss of $58.7 million in fiscal 2007, net
income of $54.9 million in fiscal 2006 and a net loss of $13.5 million in fiscal
2005. Fiscal 2006 results include the sale of our GELcore joint
venture that resulted in a net gain, before tax, of $88.0
million. Our operating results for future periods are subject to
numerous uncertainties and we cannot assure you that we will not continue to
experience net losses for the foreseeable future. Although our
revenue has grown in recent years, we may be unable to sustain such growth rates
in light of potential changes in market or economic conditions. In
addition, if we are not able to increase revenue and reduce our costs, we may
not be able to achieve profitability.
Our
future revenue is inherently unpredictable. As a result, our
operating results are likely to fluctuate from period to period, which may cause
volatility in our stock price and may cause our stock price to
decline.
Our
quarterly and annual operating results have fluctuated substantially in the past
and are likely to fluctuate significantly in the future due to a variety of
factors, some of which are outside of our control. Factors that could
cause our quarterly or annual operating results to fluctuate
include:
|
•
|
market
acceptance of our products;
|
|
•
|
market
demand for the products and services provided by our
customers;
|
|
•
|
disruptions
or delays in our manufacturing processes or in our supply of raw materials
or product components;
|
|
•
|
changes
in the timing and size of orders by our
customers;
|
|
•
|
cancellations
and postponements of previously placed
orders;
|
|
•
|
reductions
in prices for our products or increases in the costs of our raw materials;
and
|
|
•
|
the
introduction of new products and manufacturing
processes.
|
In
addition, the limited lead times with which several of our customers order our
products restrict our ability to forecast revenue. We may also
experience a delay in generating or recognizing revenue for a number of
reasons. For example, orders at the beginning of each quarter
typically represent a small percentage of expected revenue for that quarter and
are generally cancelable at any time. We depend on obtaining orders during each
quarter for shipment in that quarter to achieve our revenue objectives. Failure
to ship these products by the end of a quarter may adversely affect our results
of operations.
As a
result of the foregoing, we believe that period-to-period comparisons of our
results of operations should not be relied upon as indications of future
performance. In addition, our results of operations in one or more
future quarters may fail to meet the expectations of securities analysts or
investors, which would likely result in a decline in the trading price of our
common stock.
We
enter into long-term firm fixed-price contracts in our Photovoltaics division,
which could subject us to losses if we have cost overruns.
Many of
our contracts in our Photovoltaics division are contracted on a firm fixed-price
basis. While firm fixed-price contracts allow us to benefit from cost
savings, they also expose us to the risk of cost overruns. If the initial
estimates we used to determine the contract price and the cost to perform the
work prove to be incorrect, we could incur losses. In addition, some of our
contracts have specific provisions relating to cost, schedule, and performance.
If we fail to meet the terms specified in those contracts, then our cost to
perform the work could increase or our price could be reduced, which would
adversely affect our financial condition. These programs have risk for
reach-forward losses if our estimated costs exceed our estimated
price.
Fixed-price
development work inherently has more uncertainty than production contracts and,
therefore, more variability in estimates of the cost to complete the work. Many
of these development programs have very complex designs. As technical or quality
issues arise, we may experience schedule delays and cost impacts, which could
increase our estimated cost to perform the work or reduce our estimated price,
either of which could adversely affect our financial condition. Some fixed-price
development contracts include initial production units in their scope of work.
Successful performance of these contracts depends on our ability to meet
production specifications and delivery rates. If we are unable to
perform and deliver to contract requirements, our contract price could be
reduced through the incorporation of liquidated damages, termination of the
contract for default, or other financially significant exposure. Management uses
its best judgment to estimate the cost to perform the work and the price we will
eventually be paid on fixed-price development programs. While we believe the
cost and price estimates incorporated in the financial statements are
appropriate, future events could result in either favorable or unfavorable
adjustments to those estimates.
Our
ability to achieve operational and material cost reductions and to realize
production efficiencies for our operations is critical to our ability to achieve
long-term profitability.
We have
implemented a number of operational and material cost reductions and
productivity improvement initiatives, particularly with regards to our Fiber
Optics segment. Cost reduction initiatives often involve facility consolidation
and re-design of our products, which requires our customers to accept and
qualify the new designs, potentially creating a competitive disadvantage for our
products. These initiatives can be time-consuming and disruptive to
our operations and costly in the short-term. Successfully
implementing these and other cost-reduction initiatives throughout our
operations is critical to our future competitiveness and ability to achieve
long-term profitability. However, there can be no assurance that these
initiatives will be successful.
We
are substantially dependent on a small number of customers and the loss of any
one of these customers could adversely affect our business, financial condition
and results of operations.
In fiscal
2007, 2006 and 2005, our top five customers accounted for 49%, 39%, and 49%,
respectively of our total annual consolidated revenue. There can be
no assurance that we will continue to achieve historical levels of sales of our
products to our largest customers. The loss of or a reduction in
sales to one or more of our largest customers could have a material adverse
affect on our business, financial condition and results of
operations.
The
market for utility-scale applications of our terrestrial solar technology may
take time to develop.
We have
invested and intend to continue to invest significant resources in the
adaptation of our high-efficiency compound semiconductor-based GaAs solar cell
products for terrestrial applications, and in mid-2006, we established a
wholly-owned subsidiary, EMCORE Solar Power, Inc. (“ESP”) to conduct this
business. ESP is in the development stages and the terrestrial solar
power business will require substantial additional funding for the hiring of
employees, research and development and investment in capital
equipment. Factors such as changes in energy prices or the
development of new and efficient alternative energy technologies could limit
growth in or reduce the market for terrestrial solar power
products. In addition, we may experience difficulties in applying our
satellite-based solar products to terrestrial applications in competing with new
and emerging terrestrial solar power products, an in obtaining financing for
utility-scale projects utilizing our technology. The sale of
concentrated photovoltaic (“CPV”) systems involve the design, manufacture and
installation of large and complex structures intended for outdoor operation,
regarding which the Company has had no previous experience. In
addition, it is expected that much of the market for our CPV systems will be
outside the U.S. and will involve partnering with non-U.S. entities and
evaluation and compliance with non-U.S. laws, regulations, and government
electric supply contracts, which are also new areas for the
Company. There can be no assurance that our bids on solar power
installations will be accepted, that we will win any of these bids or that our
solar power concentrator systems will be qualified for these
projects. If our terrestrial solar cell products are not cost
competitive or accepted by the market, our business, financial condition and
results of operations may be materially and adversely affected.
We
are a party to several significant U.S. Government contracts, which are subject
to unique risks.
In 2007,
13% of our revenue was derived from U.S. Government contracts. In addition to
normal business risks, our contracts with the U.S. Government are subject to
unique risks, some of which are beyond our control. We
have had government contracts modified, curtailed or terminated in the past and
we expect this will continue to happen from time to time.
The funding of U.S. Government
programs is subject to congressional appropriations. Many of the U.S.
Government programs in which we participate may extend for several years;
however, these programs are normally funded annually. Long-term government
contracts and related orders are subject to cancellation if appropriations for
subsequent performance periods are not made. The termination of funding for a
U.S. Government program would result in a loss of anticipated future revenue
attributable to that program, which could have a material adverse effect on our
operations.
The U.S. Government may modify,
curtail, or terminate our contracts. The U.S. Government may modify,
curtail, or terminate its contracts and subcontracts without prior notice at its
convenience upon payment for work done and commitments made at the time of
termination. Modification, curtailment or termination of our major programs or
contracts could have a material adverse effect on our results of operations and
financial condition.
Our contract costs are subject to
audits by U.S. Government agencies. U.S. Government representatives may
audit the costs we incur on our U.S. Government contracts, including allocated
indirect costs. Such audits could result in adjustments to our contract costs.
Any costs found to be improperly allocated to a specific contract will not be
reimbursed, and such costs already reimbursed must be refunded. We have recorded
contract revenue based upon costs we expect to realize upon final audit.
However, we do not know the outcome of any future audits and adjustments and we
may be required to reduce our revenue or profits upon completion and final
negotiation of audits. If any audit uncovers improper or illegal activities, we
may be subject to civil and criminal penalties and administrative sanctions,
including termination of contracts, forfeiture of profits, suspension of
payments, fines and suspension or prohibition from doing business with the U.S.
Government. We have been audited in the past by the U.S. Government
and expect that we will be in the future.
Our business is subject to potential
U.S. Government review. We are sometimes subject to certain U.S.
Government reviews of our business practices due to our participation in
government contracts. Any such inquiry or investigation could potentially result
in a material adverse effect on our results of operations and financial
condition.
Our U.S. Government business is also
subject to specific procurement regulations and other requirements. These
requirements, although customary in U.S. Government contracts, increase our
performance and compliance costs. These costs might increase in the future,
reducing our margins, which could have a negative effect on our financial
condition. Failure to comply with these regulations and requirements could lead
to suspension or debarment, for cause, from U.S. Government contracting or
subcontracting for a period of time and could have an adverse effect on our
reputation and ability to secure future U.S. Government contracts.
If
we do not keep pace with rapid technological change, our products may not be
competitive.
We
compete in markets that are characterized by rapid technological change,
frequent new product introductions, changes in customer requirements, evolving
industry standards, continuous improvement in products and the use of our
existing products in new applications. We may not be able to develop
the underlying core technologies necessary to create new products and
enhancements at the same rate as or faster than our competitors, or to license
the technology from third parties that is necessary for our
products.
Product
development delays may result from numerous factors, including:
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changing
product specifications and customer
requirements;
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unanticipated
engineering complexities;
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expense
reduction measures we have implemented and others we may
implement;
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difficulties
in hiring and retaining necessary technical personnel;
and
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difficulties
in allocating engineering resources and overcoming resource
limitations.
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We cannot
assure you that we will be able to identify, develop, manufacture, market or
support new or enhanced products successfully, if at all, or on a timely, cost
effective or repeatable basis. Our future performance will depend on our
successful development and introduction of, as well as market acceptance of, new
and enhanced products that address market changes as well as current and
potential customer requirements and our ability to respond effectively to
product announcements by competitors, technological changes or emerging industry
standards. Because it is generally not possible to predict the amount of time
required and the costs involved in achieving certain research, development and
engineering objectives, actual development costs may exceed budgeted amounts and
estimated product development schedules may be extended. If we incur budget
overruns or delays in our research and development efforts, our business,
financial condition and results of operations may be materially adversely
affected.
The
competitive and rapidly evolving nature of our industry has in the past resulted
and is likely in the future to result in reductions in our product prices and
periods of reduced demand for our products.
We face
substantial competition in each of our reporting segments from a number of
companies, many of which have greater financial, marketing, manufacturing and
technical resources than us. Larger-sized competitors often spend more on
research and development, which could give those competitors an advantage in
meeting customer demands and introducing technologically innovative products
before we do. We expect that existing and new competitors will improve the
design of their existing products and will introduce new products with enhanced
performance characteristics.
The
introduction of new products and more efficient production of existing products
by our competitors has resulted and is likely in the future to result in price
reductions and increases in expenses and reduced demand for our
products. In addition, some of our competitors may be willing to
provide their products at lower prices, accept a lower profit margin or expend
more capital in order to obtain or retain business. Competitive
pressures have required us to reduce the prices of some of our products. These
competitive forces could diminish our market share and gross margins, resulting
in a material adverse affect on our business, financial condition and results of
operations.
New
competitors may also enter our markets, including some of our current and
potential customers who may attempt to integrate their operations by producing
their own components and subsystems or acquiring one of our competitors, thereby
reducing demand for our products. In addition, rapid product
development cycles, increasing price competition due to maturation of
technologies, the emergence of new competitors in Asia with lower cost
structures and industry consolidation resulting in competitors with greater
financial, marketing and technical resources could result in lower prices or
reduced demand for our products.
Expected
and actual introductions of new and enhanced products may cause our customers to
defer or cancel orders for existing products and may cause our products to
become obsolete. A slowdown in demand for existing products ahead of a new
product introduction could result in a write-down in the value of inventory on
hand related to existing products. We have in the past experienced a slowdown in
demand for existing products and delays in new product development and such
delays may occur in the future. To the extent customers defer or cancel orders
for existing products due to a slowdown in demand or in anticipation of a new
product release or if there is any delay in development or introduction of our
new products or enhancements of our products, our business, financial condition
and results of operations could be materially adversely affected.
We
may not be successful in implementing our growth strategy if we are unable to
identify and acquire suitable acquisition targets. In addition, our
acquisitions may not have the anticipated effect on our financial
results.
Finding and consummating acquisitions
is an important component of our growth strategy. Our continued ability to grow
by acquisition is dependent upon the availability of suitable acquisition
candidates and may be dependent on our ability to obtain acquisition financing
on acceptable terms. We experience competition from larger companies with
significantly greater resources in making acquisitions. There can be no
assurance that we will be able to procure the necessary funds to effectuate our
acquisition strategy on commercially reasonable terms, or at all.
Future
acquisitions by us may involve the following:
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use
of significant amounts of cash;
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potentially
dilutive issuances of equity securities on potentially unfavorable terms;
and
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incurrence
of debt on potentially unfavorable
terms.
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In
addition, acquisitions involve numerous risks, including:
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inability
to achieve anticipated synergies;
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difficulties
in the integration of the operations, technologies, products and personnel
of the acquired company;
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diversion
of management’s attention from other business
concerns;
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risks
of entering markets in which we have limited or no prior
experience;
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potential
loss of key employees of the acquired company or of us;
and
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risk
of assuming unforeseen liabilities or becoming subject to
litigation.
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If these
factors limit our ability to integrate the operations of our acquisitions
successfully or on a timely basis, our expectations of future results of
operations may not be met. In addition, our growth and operating strategies for
businesses we acquire may be different from the strategies that such business
currently is pursuing. If our strategies are not the proper strategies for a
company we acquire, it could materially adversely affect our business, financial
condition and results of operations. Further, there can be no assurance that we
will be able to maintain or enhance the profitability of any acquired business
or consolidate the operations of any acquired business to achieve cost
savings.
In
addition, there may be liabilities that we fail, or are unable, to discover in
the course of performing due diligence investigations on each company, business
or asset we have already acquired or may acquire in the future. Such liabilities
could include those arising from employee benefits contribution obligations of a
prior owner or non-compliance with, or liability pursuant to, applicable
federal, state or local environmental requirements by prior owners for which we,
as a successor owner, may be responsible. In addition, there may be additional
costs relating to acquisitions including, but not limited to, possible purchase
price adjustments. We cannot assure you that rights to indemnification by
sellers of assets to us, even if obtained, will be enforceable, collectible or
sufficient in amount, scope or duration to fully offset the possible liabilities
associated with the business or property acquired. Any such liabilities,
individually or in the aggregate, could materially adversely affect our
business, financial condition and results of operations.
In the
past several years we have completed several acquisitions, which have broadened
our product lines within our target markets and increased the level of vertical
integration within those product lines. However, if customer demand in these
markets does not meet current expectations, our revenue could be significantly
reduced and we could suffer a material adverse affect on our business, financial
condition and results of operations.
The
market price for our common stock has experienced significant price and volume
volatility and is likely to continue to experience significant volatility in the
future. This volatility may impair our ability to finance strategic
transactions with our stock and otherwise harm our business.
The
closing price of our common stock fluctuated from a low of $5.64 per share to a
high of $15.10 per share during the six months ended March 31,
2008. Our stock price is likely to experience significant volatility
in the future as a result of numerous factors outside our
control. Significant declines in our stock price may interfere with
our ability to raise additional funds through equity financing or to finance
strategic transactions with our stock. We have historically used
equity incentive compensation as part of our overall compensation
arrangements. The effectiveness of equity incentive compensation in
retaining key employees may be adversely impacted by volatility in our stock
price. In addition, there may be increased risk of securities
litigation following periods of fluctuations in our stock
price. These and other consequences of volatility in our stock price
could have the effect of diverting management’s attention and could materially
harm our business.
Our
products are difficult to manufacture. Our production could be
disrupted and our results will suffer if our production yields are low as a
result of manufacturing difficulties.
We
manufacture many of our wafers and devices in our own production facilities.
Difficulties in the production process, such as contamination, raw material
quality issues, human error or equipment failure, can cause a substantial
percentage of wafers and devices to be nonfunctional. Lower-than-expected
production yields may delay shipments or result in unexpected levels of warranty
claims, either of which can materially adversely affect our results of
operations. We have experienced difficulties in achieving planned yields in the
past, particularly in pre-production and upon initial commencement of full
production volumes, which have adversely affected our gross margins. Because the
majority of our manufacturing costs are fixed, achieving planned production
yields is critical to our results of operations. Because we manufacture many of
our products in a single facility, we have greater risk of interruption in
manufacturing resulting from fire, natural disaster, equipment failures, or
similar events than we would if we had back-up facilities available for
manufacturing these products. We could also incur significant costs
to repair and/or replace products that are defective and in some cases costly
product redesigns and/or rework may be required to correct a
defect. Additionally, any defect could adversely affect our
reputation and result in the loss of future orders.
We
face lengthy sales and qualifications cycles for our new products and, in many
cases, must invest a substantial amount of time and funds before we receive
orders.
Most of
our products are tested by current and potential customers to determine whether
they meet customer or industry specifications. The length of the qualification
process, which can span a year or more, varies substantially by product and
customer, and thus can cause our results of operations to be unpredictable.
During a given qualification period, we invest significant resources and
allocate substantial production capacity to manufacture these new products prior
to any commitment to purchase by customers. In addition, it is difficult to
obtain new customers during the qualification period as customers are reluctant
to expend the resources necessary to qualify a new supplier if they have one or
more existing qualified sources. If we are unable to meet applicable
specifications or do not receive sufficient orders to profitably use the
allocated production capacity, our business, financial condition and results of
operations could be materially adversely affected.
Our
historical and future budgets for operating expenses, capital expenditures,
operating leases and service contracts are based upon our assumptions as to the
future market acceptance of our products. Because of the lengthy lead times
required for product development and the changes in technology that typically
occur while a product is being developed, it is difficult to accurately estimate
customer demand for any given product. If our products do not achieve an
adequate level of customer demand, our business, financial condition and results
of operations could be materially adversely affected.
If
our contract manufacturers fail to deliver quality products at reasonable prices
and on a timely basis, our business, financial condition and results of
operations could be materially adversely affected.
We are
increasing our use of contract manufacturers located outside of the U.S. as a
less-expensive alternative to performing our own manufacturing of certain
products. Contract manufacturers in Asia currently manufacture a
substantial portion of our high-volume parts. If these contract
manufacturers do not fulfill their obligations to us, or if we do not properly
manage these relationships and the transition of production to these contract
manufacturers, our existing customer relationships may suffer. For example, in
the past, we experienced difficulties filling orders in our
fiber-to-the-premises business due to capacity limitations at one of our
contract manufacturers. In addition, by undertaking these activities, we run the
risk that the reputation and competitiveness of our products and services may
deteriorate as a result of the reduction of our ability to oversee and control
quality and delivery schedules.
The use
of contract manufacturers located outside of the U.S. also subjects us to the
following additional risks that could significantly impair our ability to source
our contract manufacturing requirements internationally, including:
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unexpected
changes in regulatory requirements;
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legal
uncertainties regarding liability, tariffs and other trade
barriers;
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inadequate
protection of intellectual property in some
countries;
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greater
incidence of shipping delays;
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greater
difficulty in hiring talent needed to oversee manufacturing operations;
and
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potential
political and economic instability.
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Prior to
our customers accepting products manufactured at our contract manufacturers,
they must requalify the product and manufacturing processes. The qualification
process can be lengthy and expensive, with no guarantee that any particular
product qualification process will lead to profitable product sales. The
qualification process determines whether the product manufactured at our
contract manufacturer achieves our customers’ quality, performance and
reliability standards. Our expectations as to the time periods required to
qualify a product line and ship products in volumes to customers may be
erroneous. Delays in qualification can impair the expected timing of the
transfer of a product line to our contract manufacturer and may impair the
expected amount of sales of the affected products. We may, in fact, experience
delays in obtaining qualification of products produced by our contract
manufacturers and, therefore, our operating results and customer relationships
could be materially adversely affected.
Our
supply chain and manufacturing processes rely on accurate forecasting to provide
us with optimal margins and profitability. Because of market uncertainties,
forecasting is becoming much more difficult. In addition, as we come to rely
more heavily on contract manufacturers, we may have fewer personnel with
expertise to manage these third-party arrangements.
Protecting our trade secrets and
obtaining patent protection is critical to our ability to effectively
compete.
Our
success and competitive position depend on protecting our trade secrets and
other intellectual property. Our strategy is to rely on trade secrets and
patents to protect our manufacturing and sales processes and products. Reliance
on trade secrets is only an effective business practice if trade secrets remain
undisclosed and a proprietary product or process is not reverse engineered or
independently developed. We take measures to protect our trade secrets,
including executing non-disclosure agreements with our employees, customers and
suppliers. If parties breach these agreements or the measures we take are not
properly implemented, we may not have an adequate remedy. Disclosure of our
trade secrets or reverse engineering of our proprietary products, processes, or
devices could materially adversely affect our business, financial condition and
results of operations.
There is
also no assurance that any patents will afford us commercially significant
protection of our technologies or that we will have adequate financial resources
to enforce our patents. Nor can there be any assurance that the
significant number of patent applications that we have filed and are pending, or
those we may file in the future, will result in patents being
issued. In addition, the laws of certain other countries may not
protect our intellectual property to the same extent as U.S. laws.
Our
failure to obtain or maintain the right to use certain intellectual property may
materially adversely affect our business, financial condition and results of
operations.
The
compound semiconductor, optoelectronics and fiber optic communications
industries are characterized by frequent litigation regarding patent and other
intellectual property rights. From time to time we have received, and may
receive in the future, notice of claims of infringement of other parties’
proprietary rights and licensing offers to commercialize third party patent
rights. Although we are not currently involved in any litigation relating to
claims of infringement from other parties’ intellectual property, there can be
no assurance that:
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infringement
claims (or claims for indemnification resulting from infringement claims)
will not be asserted against us or that such claims will not be
successful;
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future
assertions will not result in an injunction against the sale of infringing
products, which could significantly impair our business and results of
operations;
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any
patent owned or licensed by us will not be invalidated, circumvented or
challenged; or
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we
will not be required to obtain licenses, the expense of which may
adversely affect our results of operations and
profitability.
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In
addition, effective copyright and trade secret protection may be unavailable or
limited in certain foreign countries. Litigation, which could result in
substantial cost and diversion of our resources, may be necessary to defend our
rights or defend us against claimed infringement of the rights of
others. In certain circumstances, our intellectual property rights
associated with government contracts may be limited.
In
our Fiber Optics business, we generally do not have long-term contracts with our
customers and we typically sell our products pursuant to purchase orders with
short lead times. As a result, our customers could stop purchasing
our products at any time and we must fulfill orders in a timely manner to keep
our customers.
Generally,
we do not have long-term contracts with customers that purchase our fiber optic
products. As a result, our agreements with our customers do not
provide any assurance of future sales. Risks associated with the
absence of long-term contracts with our customers include the
following:
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our
customers can stop purchasing our products at any time without
penalty;
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our
customers may purchase products from our competitors;
and
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our
customers are not required to make minimum
purchases.
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We
generally sell our products pursuant to individual purchase orders, which often
have extremely short lead times. If we are unable to fulfill these
orders in a timely manner, it is likely that we will lose sales and
customers. In addition, we sell some of our products to the U.S.
Government and governmental entities. These contracts are generally
subject to termination for convenience provisions and may be cancelled at any
time.
We
have significant international sales, which expose us to additional risks and
uncertainties.
Sales to
customers located outside the U.S. accounted for approximately 27% of our
consolidated revenue in fiscal 2007, 24% of our revenue in fiscal 2006 and 17%
of our revenue in fiscal 2005. Sales to customers in Asia represent the majority
of our international sales. We believe that international sales will continue to
account for a significant percentage of our revenue and we are seeking
international expansion opportunities. Because of this, the following
international commercial risks may materially adversely affect our
revenue:
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political
and economic instability or changes in U.S. Government policy with respect
to these foreign countries may inhibit export of our devices and limit
potential customers’ access to U.S. dollars in a country or region in
which those potential customers are
located;
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we
may experience difficulties in the timeliness of collection of foreign
accounts receivable and be forced to write off these
receivables;
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tariffs
and other barriers may make our devices less cost
competitive;
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the
laws of certain foreign countries may not adequately protect our trade
secrets and intellectual property or may be burdensome to comply
with;
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potentially
adverse tax consequences to our customers may damage our cost
competitiveness;
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currency
fluctuations may make our products less cost competitive, affecting
overseas demand for our products;
and
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language
and other cultural barriers may require us to expend additional resources
competing in foreign markets or hinder our ability to effectively
compete.
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In
addition, certain foreign laws and regulations place restrictions on the
concentration of certain hazardous materials, including, but not limited to,
lead, mercury and cadmium, in our products. Failure to comply with such laws and
regulations could subject us to future liabilities or result in the limitation
or suspension of the sale or production of our products. These regulations
include the European Union’s (“EU”) Restrictions on Hazardous Substances,
Directive on Waste Electrical and Electronic Equipment and the directive on End
of Life for Vehicles. Failure to comply with environmental and health and safety
laws and regulations may limit our ability to export products to the EU and
could materially adversely affect our business, financial condition and results
of operations.
We
will lose sales if we are unable to obtain government authorization to export
our products.
Exports
of our products are subject to export controls imposed by the U.S. Government
and administered by the U.S. Departments of State and Commerce. In certain
instances, these regulations may require pre-shipment authorization from the
administering department. For products subject to the Export
Administration Regulations (“EAR”) administered by the Department of Commerce’s
Bureau of Industry and Security, the requirement for a license is dependent on
the type and end use of the product, the final destination and the identity of
the end user. Virtually all exports of products subject to the
International Traffic in Arms Regulations (“ITAR”) regulations administered by
the Department of State’s Directorate of Defense Trade Controls require a
license. Most of our fiber optics products and our terrestrial solar
power products are subject to EAR; however, certain fiber optics products and
all of our commercially available solar cell satellite power products are
currently subject to ITAR.
Given the
current global political climate, obtaining export licenses can be difficult and
time-consuming. Failure to obtain export licenses for product
shipments could significantly reduce our revenue and could materially adversely
affect our business, financial condition and results of operations. Compliance
with U.S. Government regulations may also subject us to additional fees and
costs. The absence of comparable restrictions on competitors in those countries
may adversely affect our competitive position.
Our
operating results could be harmed if we lose access to sole or limited sources
of materials, components or services.
We
currently obtain some materials, components and services used in our products
from limited or single sources. We generally do not carry significant
inventories of any raw materials. Because we often do not account for a
significant part of our suppliers’ businesses, we may not have access to
sufficient capacity from these suppliers in periods of high demand. For example,
in the past, we experienced difficulties filling orders in our
fiber-to-the-premises business due to limited available capacity of one of our
contract manufacturers. In addition, since we generally do not have guaranteed
supply arrangements with our suppliers, we risk serious disruption to our
operations if an important supplier terminates product lines, changes business
focus, or goes out of business. Because some of these suppliers are located
overseas, we may be faced with higher costs of purchasing these materials if the
U.S. dollar weakens against other currencies. If we were to change any of our
limited or sole source suppliers, we would be required to re-qualify each new
supplier. Re-qualification could prevent or delay product shipments that could
materially adversely affect our results of operations. In addition, our reliance
on these suppliers may materially adversely affect our production if the
components vary in quality or quantity. If we are unable to obtain timely
deliveries of sufficient components of acceptable quality or if the prices of
components for which we do not have alternative sources increase, our business,
financial condition and results of operations could be materially adversely
affected.
A
failure to attract and retain technical and other key personnel could reduce our
revenue and our operational effectiveness.
Our
future success depends, in part, on our ability to attract and retain certain
key personnel, including scientific, operational, financial, and managerial
personnel. The competition for attracting and retaining these employees
(especially scientists, technical and financial personnel) is intense. Because
of this competition for skilled employees, we may be unable to retain our
existing personnel or attract additional qualified employees in the future. If
we are unable to retain our skilled employees and attract additional qualified
employees to the extent necessary to keep up with our business demands and
changes, our business, financial condition and results of operations may be
materially adversely affected.
We
depend on senior management and key personnel to manage our business effectively
and may not be successful in attracting and retaining such
personnel.
We depend on the performance of our
senior management team and other key employees. Our success also depends on our
ability to attract, integrate, train, retain and motivate these individuals and
additional highly skilled technical and sales and marketing personnel, both in
the United States and abroad. The loss of the services of any of our
senior management team or other key employees or failure to attract, integrate,
train, retain and motivate additional key employees could harm our
business.
Failure
to comply with environmental and safety regulations, resulting in improper
handling of hazardous raw materials used in our manufacturing processes, could
result in costly remediation fees, penalties or damages.
We are
subject to laws and regulations and must obtain certain permits and licenses
relating to the use of hazardous materials. Our production activities involve
the use of certain hazardous raw materials, including, but not limited to,
ammonia, gallium, phosphine and arsine. If our control systems are unsuccessful
in preventing a release of these materials into the environment or other adverse
environmental conditions or human exposures occur, we could experience
interruptions in our operations and incur substantial remediation and other
costs or liabilities. In addition, certain foreign laws and
regulations place restrictions on the concentration of certain hazardous
materials, including, but not limited to, lead, mercury and cadmium, in our
products. Failure to comply with such laws and regulations could subject us to
future liabilities or result in the limitation or suspension of the sale or
production of our products. These regulations include the European Union’s
(“EU”) Restrictions on Hazardous Substances, Directive on Waste Electrical and
Electronic Equipment and the directive on End of Life for Vehicles. Failure to
comply with environmental and health and safety laws and regulations may limit
our ability to export products to the EU and could materially adversely affect
our business, financial condition and results of operations.
We
are subject to risks associated with the availability and coverage of
insurance.
For
certain risks, the Company does not maintain insurance coverage because of cost
and/or availability. Because the Company retains some portion of its insurable
risks, and in some cases self-insures completely, unforeseen or catastrophic
losses in excess of insured limits may have a material adverse effect on the
Company’s results of operations and financial position.
We
are increasing operations in China, which exposes us to risks inherent in doing
business in China.
In May
2007, EMCORE Hong Kong, Ltd., a wholly owned subsidiary of EMCORE Corporation,
announced the opening of a new manufacturing facility in Langfang, China. Our
new company, Langfang EMCORE Optoelectronics Co. Ltd., is located approximately
30 miles southeast of Beijing and currently occupies a space of 22,000 square
feet with a Class-10,000 clean room for optoelectronic device
packaging. Another 60,000 square feet is available for future
expansion. We have begun the transfer of our most cost sensitive
optoelectronic devices to this facility. This facility, along with a
strategic alignment with our existing contract-manufacturing partners, should
enable us to improve our cost structure and gross margins across product lines.
We expect to develop and provide improved service to our global customers by
having a local presence in Asia. As we continue to consolidate
our manufacturing operations, we will incur additional costs to transfer product
lines to our China facility, including costs of qualification testing with our
customers, which could have a material adverse impact on our operating results
and financial condition.
Our
China-based activities are subject to greater political, legal and economic
risks than those faced by our other operations. In particular, the
political, legal and economic climate in China (both at national and regional
levels) is extremely fluid and unpredictable. Our ability to operate in China
may be adversely affected by changes in Chinese laws and regulations, such as
those relating to taxation, import and export tariffs, environmental
regulations, land use rights, intellectual property and other matters, which
laws and regulations remain highly underdeveloped and subject to change, with
little or no prior notice, for political or other reasons. Moreover, the
enforceability of applicable existing Chinese laws and regulations is
uncertain. In addition, we may not obtain the requisite legal permits
to continue to operate in China and costs or operational limitations may be
imposed in connection with obtaining and complying with such permits. Our
business could be materially harmed by any changes in the political, legal or
economic climate in China or the inability to enforce applicable Chinese laws
and regulations.
As a
result of a government order to ration power for industrial use, operations in
our China facility may be subject to possible interruptions or shutdowns,
adversely affecting our ability to complete manufacturing commitments on a
timely basis. If we are required to make significant investments in generating
capacity to sustain uninterrupted operations at our facility, we may not realize
the reductions in costs anticipated from our expansion in China. In addition,
future outbreaks of avian influenza, or other communicable diseases, could
result in quarantines or closures of our facility, thereby disrupting our
operations and expansion in China.
We intend
to export the majority of the products manufactured at our facilities in China.
Accordingly, upon application to and approval by the relevant governmental
authorities, we will not be subject to certain Chinese taxes and are exempt from
customs duty assessment on imported components or materials when the finished
products are exported from China. We are, however, required to pay income taxes
in China, subject to certain tax relief. As the Chinese trade regulations are in
a state of flux, we may become subject to other forms of taxation and duty
assessments in China or may be required to pay for export license fees in the
future. In the event that we become subject to any increased taxes or new forms
of taxation imposed by authorities in China, our results of operations could be
materially and adversely affected.
Our
corporate or business strategy may change.
We continuously evaluate our assets on
an ongoing basis with a view to maximizing their value to us and determining
which are core to our operations. We also regularly evaluate our
corporate and business strategies, and they are influenced by factors beyond our
control, including changes in the competitive landscape we face. Our
corporate and business strategies are, therefore, subject to
change.
In March 2008, our Board of Directors
authorized the management of the
Company to prepare a comprehensive operational and strategic plan for the
separation of the Company's Fiber Optics and Photovoltaic businesses into
separate corporations. The purpose of the review is to
determine whether there exists the potential for unlocking additional
stockholder value with respect to these strategic assets through some type of
separation transaction. A separation may take the form of a spin-off
transaction or a public offering of securities, and we may have discussions from
time-to-time with third parties involving these possibilities. There
can be no assurances that our strategic review will lead to the completion of
any separation transactions or as to the impact of these transactions on
stockholder value or on us.
Our
business and operations would be adversely impacted in the event of a failure of
our information technology infrastructure.
We rely
upon the capacity, reliability and security of our information technology
hardware and software infrastructure and our ability to expand and update this
infrastructure in response to our changing needs. We are constantly updating our
information technology infrastructure. Any failure to manage, expand and update
our information technology infrastructure or any failure in the operation of
this infrastructure could harm our business.
Despite
our implementation of security measures, our systems are vulnerable to damages
from computer viruses, natural disasters, unauthorized access and other similar
disruptions. Any system failure, accident or security breach could result in
disruptions to our operations. To the extent that any disruptions or security
breach results in a loss or damage to our data, or inappropriate disclosure of
confidential information, it could harm our business. In addition, we may be
required to incur significant costs to protect against damage caused by these
disruptions or security breaches in the future.
If
we fail to remediate deficiencies in our current system of internal controls, we
may not be able to accurately report our financial results or prevent fraud. As
a result, our business could be harmed and current and potential investors could
lose confidence in our financial reporting, which could have a negative effect
on the trading price of our debt and equity securities.
The
Company is subject to the ongoing internal control provisions of Section 404 of
the Sarbanes-Oxley Act of 2002. These provisions provide for the identification
of material weaknesses in internal control over financial reporting, which is a
process to provide reasonable assurance regarding the reliability of financial
reporting for external purposes in accordance with U.S. GAAP. If we
cannot provide reliable financial reports or prevent fraud, our brand, operating
results and the market value of our equity securities could be harmed. We have
in the past discovered, and may in the future discover, areas of our internal
controls that need improvement. In fiscal 2006 and 2007, the Company
identified deficiencies in our internal controls over financial
reporting.
We have
devoted significant resources to remediate and improve our internal controls. We
have also been monitoring the effectiveness of these remediated measures. We
cannot be certain that these measures will ensure adequate controls over our
financial processes and reporting in the future. We intend to continue
implementing and monitoring changes to our processes to improve internal
controls over financial reporting. Any failure to implement required new or
improved controls, or difficulties encountered in their implementation,
could harm our operating results or cause us to fail to meet our reporting
obligations.
Inadequate
internal controls could also cause investors to lose confidence in our reported
financial information, which could have a negative effect on the trading price
of our equity securities. Further, the impact of these events could also make it
more difficult for us to attract and retain qualified persons to serve on our
Board of Directors or as executive officers, which could harm our business. The
additions of our manufacturing facility in China and acquisitions increase the
burden on our systems and infrastructure, and impose additional risk to the
ongoing effectiveness of our internal controls, disclosure controls, and
procedures. Consequently, we expect to expend significant resources
and effort in this regard, but are not certain that our efforts will be
successful.
Our
cost reduction programs may be insufficient to achieve long-term
profitability.
We are
undertaking cost reduction measures intended to reduce our expense structure at
both the cost of goods sold and the operating expense levels. We believe these
measures are a necessary response to, among other things, declining average
sales prices across our product lines. These measures may be unsuccessful in
creating profit margins sufficient to sustain our current operating structure
and business.
Shifts
in industry-wide demands and inventories could result in significant inventory
write-downs.
The life
cycles of some of our products depend heavily upon the life cycles of the end
products into which our products are designed. Products with short life cycles
require us to manage production and inventory levels closely. We evaluate our
ending inventories on a quarterly basis for excess quantities, impairment of
value and obsolescence. This evaluation includes analysis of sales levels by
product and projections of future demand based upon input received from our
customers, sales team and management estimates. If inventories on hand are in
excess of demand, or if they are greater than 12-months old, appropriate
reserves are provided. In addition, we write off inventories that are considered
obsolete based upon changes in customer demand, manufacturing process changes
that result in existing inventory obsolescence or new product introductions,
which eliminate demand for existing products. Remaining inventory balances are
adjusted to approximate the lower of our manufacturing cost or market
value.
If future
demand or market conditions are less favorable than our estimates, inventory
write-downs may be required. We cannot assure investors that obsolete or excess
inventories, which may result from unanticipated changes in the estimated total
demand for our products and/or the estimated life cycles of the end products
into which our products are designed, will not affect us beyond the inventory
charges that we have already taken.
Certain
provisions of New Jersey law and our charter may make a takeover of EMCORE
difficult even if such takeover could be beneficial to some of our
shareholders.
New
Jersey law and our certificate of incorporation, as amended, contain certain
provisions that could delay or prevent a takeover attempt that our shareholders
may consider in their best interests. Our Board of Directors is divided into
three classes. Directors are elected to serve staggered three-year terms and are
not subject to removal except for cause by the vote of the holders of at least
80% of our capital stock. In addition, approval by the holders of 80% of our
voting stock is required for certain business combinations unless these
transactions meet certain fair price criteria and procedural requirements or are
approved by two-thirds of our continuing directors. We may in the future adopt
other measures that may have the effect of delaying or discouraging an
unsolicited takeover, even if the takeover were at a premium price or favored by
a majority of unaffiliated shareholders. Certain of these measures may be
adopted without any further vote or action by our shareholders and this could
depress the price of our common stock.
Additional
litigation may arise in the future relating to our historical stock option
practices and other issues.
Although
we have received final court approval of the settlement of the three derivative
actions which were filed against certain of our current and former directors and
officers relating to historical stock options practices, and the SEC has
indicated that it has terminated its investigation of the matters, additional
securities-related litigation (including possible litigation involving
employees) may still arise. Additional lawsuits, regardless of their
underlying merit, could become time consuming and expensive, and if they result
in unfavorable outcomes, there could be material adverse effect on our business,
financial condition, results of operations and cash flows. We may be
required to pay substantial damages or settlement costs in excess of our
insurance coverage related to these matters, which would have a further material
adverse effect on our financial condition or results of operations.
In
addition, subject to certain limitations, we are obligated to indemnify our
current and former directors, officers and employees in connection with certain
types of expenses, including certain litigation-related expenses.
It
may be difficult or costly to obtain director and officer insurance coverage as
a result of our historical stock option granting practices.
Although
we have recently renewed our directors and officer insurance coverage on what we
believe to be favorable terms, it may become more difficult to obtain director
and officer insurance coverage in the future. If we are able to obtain
this coverage, it could be significantly more expensive than in the past, which
would have an adverse effect on our financial results and cash flow. As a result
of this and related factors, our directors and officers could face increased
risks of personal liability in connection with the performance of their duties.
As a result, we may have difficultly attracting and retaining qualified
directors and officers, which could adversely affect our business.
We
have significant liquidity and capital requirements and may require additional
capital in the future. If we are unable to obtain the additional
capital necessary to meet our requirements, our business may be adversely
affected.
Historically,
the Company has consumed cash from operations. We had negative cash
flow from operations of approximately $29 million during the six months ended
March 31, 2008. We currently have approximately $73 million in
working capital as of March 31, 2008. On a go forward basis we do
expect significant improvement from our operations. However, if our cash
on hand is not sufficient to fund the cash used by our operating activities and
meet our other liquidity requirements, we will seek to obtain additional equity
or debt financing or dispose of assets to provide additional working capital in
the future.
Due to
the unpredictable nature of the capital markets, particularly in the technology
sector, we cannot assure you that we will be able to raise additional capital if
and when it is required, especially if we experience disappointing operating
results. If adequate funds are not available or not available on
acceptable terms, our ability to continue to fund expansion, develop and enhance
products and services, or otherwise respond to competitive pressures may be
severely limited. Such a limitation could have a material adverse
effect on our business, financial condition, results of operations and cash
flow.
If
the recent weakness in credit markets conditions continues or worsens, it could
adversely impact our investment portfolio.
Historically,
the Company has invested in securities with an auction reset feature (“auction
rate securities”). In February 2008, the auction market failed for
auction rate securities, which meant the Company was unable to sell its
investments. At March 31, 2008, the Company had invested
approximately $5.3 million in auction rate securities, of which the underlyings
for $4.0 million are currently AAA rated, the highest rating by a rating
agency. The remaining $1.3 million of investments are securities
whose underlying assets are primarily student loans which are substantially
backed by the federal government. It could take until the final
maturity of the underlying securities (up to 30 years) to realize their carrying
value.
As of
March 31, 2008, approximately $1.0 million of the Company’s auction rate
securities are classified as a current asset since the underlying securities are
expected to be redeemed at par value within several months. The
remaining $4.3 million of securities are classified as non-current
assets. The Company also recorded a temporary unrealized loss of
approximately $0.2 million, as a cost of liquidity, to accumulated other
comprehensive loss, a component of shareholders’ equity, primarily due to these
liquidity factors. Based on expected operating cash flows, and our
other sources of cash, the Company does not anticipate the potential lack of
liquidity on these investments will affect its ability to execute on the current
business plan.
There are
no assurances that successful auctions of these types of securities will resume,
and as a result, the Company’s ability to liquidate its securities and fully
recover the carrying value of its investment in the near term may be limited or
not exist. If the issuers are unable to successfully close future
auctions and their credit ratings deteriorate, the Company may be required to
record a further temporary or permanent impairment charge on these
securities.
On
February 20, 2008, the Company consummated the sale of $100 million of
restricted common stock and warrants. In this transaction, investors
purchased 8 million shares of our common stock, no par value, and warrants to
purchase an additional 1.4 million shares of our common stock. The
purchase price was $12.50 per share, priced at the 20 day volume-weighted
average price. The warrants grant the holder the right to purchase
one share of our common stock at a price of $15.06 per share. The
warrants are immediately exercisable and remain exercisable for a period of 5
years from the closing date. In addition, the Company entered into a
registration rights agreement with the investors to register for resale the
shares of common stock issued in this transaction and the shares of common stock
to be issued upon exercise of the warrants. Agent fees incurred
totaled 5.75% of the gross proceeds, or $5.8 million. The Company
used the net proceeds to acquire the telecom assets of Intel's Optical Platform
Division and for working capital requirements.
On
February 22, 2008, the Company acquired assets of the telecom portion of Intel’s
Optical Platform Division. The telecom assets acquired include inventory, fixed
assets, intellectual property, and technology comprised of tunable lasers,
tunable transponders, 300-pin transponders, and integrated tunable laser
assemblies. The purchase price was $75 million in cash and $10
million in the Company’s common stock, priced at a volume-weighted average price
of $13.84 per share, or 722,688 shares. Under the terms of the asset purchase
agreement, the purchase price of $85 million is subject to adjustment based on
an inventory true-up, plus specifically assumed liabilities.
On April
20, 2008, the Company completed the acquisition of the enterprise and storage
assets of Intel’s Optical Platform Division as well as Intel’s Connects Cables
business. The assets acquired include inventory, fixed assets,
intellectual property, and technology relating to optical transceivers for
enterprise and storage customers, as well as optical cable interconnects for
high-performance computing clusters. As consideration for the
purchase of the assets, the Company issued to Intel 3.7 million restricted
shares of the Company’s common stock. In addition, the Company may be
required to make an additional payment to Intel based on the Company’s stock
price twelve months after the closing of the transaction. See
EMCORE’s Current Report on Form 8-K/A (Commission File No. 000-22175), dated
April 18, 2008.
The
issuance and sale of the common stock to Intel in connection with the asset
purchases described above were made in reliance on the exemptions from
registration provided by Section 4(2) of the Securities Act of 1933 and/or Rule
506 of Regulation D promulgated thereunder.
Not
Applicable
|
(a)
|
The
Registrant held its 2008 Annual Meeting of Shareholders on March 31,
2008.
|
(b)
|
Mr.
Reuben Richards was elected to the newly-created position of Executive
Chairman. Dr. Thomas Russell will remain on the Board as Chairman
Emeritus. Dr. Hong Hou was elected to the position of Chief Executive
Officer. Mr. Thomas Werthan tendered his resignation from the
Board.
|
(c) (i)
|
Dr.
Thomas Russell, Mr. Reuben Richards, and Mr. Robert Bogomolny were each
reelected to the Board for a term of three years (expiring in 2011). The
total shares voted in the election of Directors were
57,889,705. There were no broker non-votes. The shares voted for
each Nominee were:
|
|
Dr.
Thomas J. Russell
|
For
|
55,897,067
|
|
Withheld
|
1,992,636
|
|
Mr.
Reuben F. Richards, Jr.
|
For
|
56,013,116
|
|
Withheld
|
1,876,587
|
|
Mr.
Robert Bogomolny
|
For
|
57,366,706
|
|
Withheld
|
522,997
|
|
(ii)
|
The
Shareholders ratified the appointment of Deloitte & Touche LLP as
the independent registered public accounting firm of the Company as
follows:
|
For
|
56,781,447
|
Against
|
1,080,827
|
Abstain
|
27,428
|
(iii)
|
The
Shareholders approved the amendment to the restated Certificate of
Incorporation to increase the number of authorized shares of common
stock.
|
For
|
50,718,329
|
Against
|
7,041,383
|
Abstain
|
129,990
|
Broker
Non-Votes
|
-
|
(iv)
|
The
Shareholders approved an increase in the number of shares reserved for
issuance under the Company’s 2000 stock option
plan.
|
For
|
33,774,999
|
Against
|
7,086,049
|
Abstain
|
73,525
|
Broker
Non-Votes
|
16,955,132
|
Not
Applicable
ITEM
6. EXHIBITS
Exhibit
No.
|
Description
|
|
|
2.1*
|
Asset
Purchase Agreement, dated April 9, 2008, between EMCORE Corporation and
Intel Corporation
|
2.2+
|
Securities
Purchase Agreement, dated February 15, 2008, between EMCORE Corporation
and each investor identified on the signature pages
thereto
|
4.1+
|
Registration
Rights Agreement, dated February 15, 2008, between EMCORE Corporation and
the investors identified on the signature pages thereto
|
4.2+
|
Form
of Warrant, dated February 15, 2008
|
10.1*
|
Executive
Bonus Plan
|
31.1*
|
Certification
by Chief Executive Officer pursuant to Rule 13a-14(a) under the Securities
Exchange Act of 1934, as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
|
31.2*
|
Certification
by Interim Chief Financial Officer pursuant to Rule 13a-14(a) under the
Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
|
32.1*
|
Certification
by Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
32.2*
|
Certification
by Interim Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002.
|
__________
* Filed herewith
+ Filed as part of the Company’s
Current Report on Form 8-K, Commission file no. 000-22175, dated February 20,
2008, and incorporated herein by reference.
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
|
EMCORE
CORPORATION
|
|
|
Date: May
12, 2008
|
By:
/s/ Hong Q. Hou,
Ph.D.
|
|
Hong
Q. Hou, Ph.D.
|
|
Chief
Executive Officer
(Principal
Executive Officer)
|
|
|
|
|
Date: May
12, 2008
|
By:
/s/ Adam Gushard
|
|
Adam
Gushard
|
|
Interim
Chief Financial Officer
(Principal
Financial and Accounting Officer)
|
Exhibit
No.
|
Description
|
|
|
2.1*
|
Asset
Purchase Agreement, dated April 9, 2008, between EMCORE Corporation and
Intel Corporation
|
2.2+
|
Securities
Purchase Agreement, dated February 15, 2008, between EMCORE Corporation
and each investor identified on the signature pages
thereto
|
4.1+
|
Registration
Rights Agreement, dated February 15, 2008, between EMCORE Corporation and
the investors identified on the signature pages thereto
|
4.2+
|
Form
of Warrant, dated February 15, 2008
|
10.1*
|
Executive
Bonus Plan
|
31.1*
|
Certification
by Chief Executive Officer pursuant to Rule 13a-14(a) under the Securities
Exchange Act of 1934, as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
|
31.2*
|
Certification
by Interim Chief Financial Officer pursuant to Rule 13a-14(a) under the
Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
|
32.1*
|
Certification
by Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
32.2*
|
Certification
by Interim Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002.
|
__________
* Filed herewith
+ Filed as part of the Company’s
Current Report on Form 8-K, Commission file no. 000-22175, dated February 20,
2008, and incorporated herein by reference.
ex2-1.htm
EXHIBIT 2.1
ASSET
PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT, dated as of April 9, 2008 (the “Agreement”), is by
and between Intel Corporation, a Delaware corporation (the “Seller”), and EMCORE
Corporation, a New Jersey corporation (the “Buyer”). Seller
and Buyer are sometimes referred to as the “Parties” and each
individually as a “Party.” All
capitalized terms have the meanings ascribed to such terms in Article I or as
otherwise defined herein.
RECITALS
A. Seller
and certain of its Subsidiaries desire to sell to Buyer, and Buyer desires to
acquire from Seller and certain of its Subsidiaries, the Transferred Assets, and
Buyer is willing to assume the Assumed Liabilities, all upon the terms and
conditions set forth in this Agreement.
B. In
connection with the transactions contemplated by this Agreement, Buyer and
Seller also intend to enter into certain other agreements, including, but not
limited to, the Transition Services Agreement and the Intellectual Property
Agreement.
NOW,
THEREFORE, in consideration of the foregoing premises, the mutual
representations, warranties, covenants and agreements hereinafter set forth, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
1.01 Definitions
. Capitalized
terms used in this Agreement shall have the respective meanings ascribed to such
terms in Appendix A to
this Agreement.
1.02 Defined Terms
Generally
. The
definitions set forth in Appendix A or
otherwise referred to in this Agreement shall apply equally to both the singular
and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words “include”, “includes” and “including” shall
be deemed to be followed by the phrase “without limitation”. The
words “hereof”, “herein” and “hereunder” and words of similar import, when used
in this Agreement, refer to this Agreement as a whole and not to any particular
provision of this Agreement. All references herein to Articles,
Sections, Exhibits and Schedules shall be deemed to be references to Articles
and Sections of, and Exhibits and Schedules to, this Agreement unless the
context shall otherwise require. The table of contents and headings
for this Agreement are for reference purposes only and do not affect in any way
the meaning or interpretation of this Agreement. Unless the context
shall otherwise require, any reference to any contract, instrument, statute,
rule or regulation is a reference to it as amended and supplemented from time to
time (and, in the case of a statute, rule or regulation, to any successor
provision). Any reference in this Agreement to a “day” or a number of
“days” (without the explicit qualification of “Business”) shall be interpreted
as a reference to a calendar day or number of calendar days. If any
action is to be taken by any Party hereto pursuant to this Agreement on a day
that is not a Business Day, such action shall be taken on the next Business Day
following such day. All acts and proceedings to be taken and all
documents to be executed and delivered by the Parties at the Closing shall be
deemed to have been taken and executed simultaneously, and, except as permitted
hereunder, no acts or proceedings shall be deemed taken nor any documents
executed or delivered until all have taken, executed and delivered.
TRANSFER
OF ASSETS
2.01 Transferred
Assets
. Upon
the terms and subject to the conditions of this Agreement (including Section 2.05),
at the Closing, Buyer shall acquire from Seller and its Subsidiaries, and Seller
and its Subsidiaries shall sell, transfer, assign and convey to Buyer, or cause
to be sold, transferred, assigned and conveyed to Buyer, free and clear of all
Liens other than Permitted Liens, all of the right, title and interest of Seller
or its Subsidiaries, as the case may be, in, to and under the following assets,
as the same shall exist as of the Effective Time (collectively, the “Transferred
Assets”):
(a) the
Transferred Product Materials and Information;
(b) the
Transferred Equipment;
(c) the
Transferred Contracts;
(d) the
Transferred Patents;
(e) the
Transferred Trade Secrets
(f) the
Transferred Copyrights;
(g) the
Business Inventory with a value of $16,500,000 (the “Prepaid Inventory”)
and the Additional Inventory; (provided that title to the
Prepaid Inventory shall pass to Buyer at such time and subject to the conditions
set forth in the Transition Services Agreement and that title to the Additional
Inventory shall pass to Buyer at the time of the last Changeover Date as defined
in the Transition Services Agreement);
(h) all
Prepayments associated with Contracts that are Transferred
Contracts;
(i) all
permits, licenses, franchises, approvals, certificates, consents, waivers,
concessions, exemptions, orders, registrations, notices or other authorizations
of any Government Authority held by Seller or any of its Subsidiaries that are
used exclusively in connection with the Transferred Assets and that are by their
terms transferable to Buyer (the “Business Permits”)
provided that Buyer pay any fees required for such transfer; and
(j) the Books
and Records.
The
Transferred Intellectual Property (including the assets identified in clauses
(d) through (f) above) shall be subject to any (i) licenses retained by Seller
or granted to Seller pursuant to any Acquisition Document, (ii) Contracts with
use restrictions or
non-exclusive licenses to or with any Person existing on the date hereof granted
to or by Seller or its Subsidiaries and (iii) Contracts with use restrictions or
non-exclusive licenses to or with any Person entered into by a Seller or its
Subsidiaries in the ordinary course of business not in violation of this
Agreement prior to the Closing Date. The Transferred
Intellectual Property may be further obligated (either prior to the date hereof
or in the ordinary course of business between the date hereof and the Closing
Date) to be non-exclusively licensed, with or without receipt of payment, as a
result of Seller’s or its Subsidiaries’ participation in various Special
Interest Groups (SIGs), Standard Definition Organizations (SDOs) and similar
organizations which may impose obligations to non-exclusively license the
Transferred Intellectual Property to third parties. To the extent
that Seller or any of its Subsidiaries is required to ensure that successors
with respect to the Transferred Intellectual Property assume such obligations to
license, Buyer shall assume such obligations as of the Closing.
2.02 Excluded
Assets
. Buyer
and Seller expressly understand and agree that all assets of Seller and its
Subsidiaries, other than the Transferred Assets (the “Excluded Assets”),
shall be excluded from the Transferred Assets, including, but not limited
to:
(a) all
assets, tangible or intangible, real or personal that are not specifically
identified in Section 2.01,
including all Intellectual Property other than the Transferred Intellectual
Property;
(b) all
Contracts that are not Transferred Contracts;
(c) all
Prepayments associated with Contracts that are not Transferred Contracts or
other obligations not assumed by Buyer;
(d) all
Seller Accounts Receivable;
(e) all Cash
and Cash Equivalents;
(f) all
Seller Inventory that is not Prepaid Inventory or Additional
Inventory;
(g) all
Employee Plans;
(h) all
Claims that relate to any of the other Excluded Assets or any of the Excluded
Liabilities;
(i) all
Claims that relate to events or breaches occurring on or prior to the Effective
Time that relate to the Transferred Assets, including causes of action, claims
and rights which Seller or its Subsidiaries may have under any insurance
contracts or policies insuring the Transferred Assets;
(j) all
rights to or claims for refunds of Taxes (including penalties) paid by Seller or
its Subsidiaries, including those imposed on property, income or payrolls, to
the extent such refunds of amounts were paid with respect to a Pre-Closing Tax
Period;
(k) all
rights, properties, and assets which have been used in the Business and which
shall have been transferred (including transfers by way of sale) licensed or
otherwise disposed of (either prior to the date hereof or in the ordinary course
of business between the date hereof and the Closing Date) not in violation of
the terms of this Agreement;
(l) all
enterprise software, databases and networks of Seller or its Subsidiaries,
including all sales management, engineering, materials, business planning,
manufacturing, logistics, finance and accounting systems utilized by the
Business;
(m) all
permits, licenses, franchises, approvals, certificates, consents, waivers,
concessions, exemptions, orders, registrations, notices or other authorizations
of any Government Authority held by Seller or any of its Subsidiaries other than
the Business Permits; and
(n) all of
the assets specifically identified on Schedule
2.02(n).
2.03 Assumed
Liabilities
. Upon
the terms and subject to the conditions of this Agreement, effective at the
Effective Time, Buyer shall assume, and shall pay, perform, fulfill and
discharge, the following Liabilities of Seller or its Subsidiaries
(collectively, the “Assumed
Liabilities”):
(a) all
Liabilities accruing from, arising out of or related to the Transferred
Contracts that are incurred or required to be paid, performed or otherwise
discharged on or after the Effective Time;
(b) all
Liabilities accruing from, arising out of or related to Buyer’s operation of the
Business and the ownership and operation of the Transferred Assets on or after
the Effective Time;
(c) all
Liabilities that are assumed by operation of Applicable Law related to the
Transferred Employees whose primary place of employment is outside the United
States, including those specified in Schedule 2.03(c);
(d) all
Product Obligations;
(e) any Taxes
to be paid by Buyer pursuant to Section 5.09;
and
(f) all
Liabilities to be performed by Buyer or its Subsidiaries under this Agreement
and the Ancillary Agreements.
The
assumption by Buyer of the Assumed Liabilities and the transfer of the Assumed
Liabilities by Seller and its Subsidiaries shall in no way expand the rights or
remedies of any Person against Buyer or Seller and its Subsidiaries or their
respective officers, directors, employees, shareholders and advisors as compared
to the rights and remedies that such Person would have had against such Parties
had Buyer not assumed the Assumed Liabilities. Without limiting the
generality of the foregoing, the assumption by Buyer of the Assumed Liabilities
shall not create any third-party beneficiary rights.
2.04 Excluded
Liabilities
. Notwithstanding
any provision of this Agreement to the contrary (and without implication that
Buyer is assuming any Liability of Seller not expressly listed in Section 2.03), except
for those Liabilities expressly assumed by Buyer pursuant to Section 2.03 and
Section 5.09,
Buyer shall not assume and shall not be liable for, and Seller shall retain and
remain, as between Seller and Buyer, solely liable for and obligated to pay,
perform or discharge, all Liabilities of Seller and its Subsidiaries not
included in the Assumed Liabilities (the “Excluded
Liabilities”), including the following:
(a) all
Liabilities accruing from, arising out of or related to the Transferred
Contracts that are incurred or required to be paid, performed or otherwise
discharged prior to the Effective Time and all Liabilities for breaches by
Seller or its Subsidiaries of the Transferred Contracts prior to the Effective
Time;
(b) all
Pre-Closing Product Obligations;
(c) all
Liabilities for income Taxes, franchise Taxes or other Taxes based on income,
revenue, gross receipts, capital or net worth, and all Liabilities for other
Taxes not specifically provided for in Section 5.09 to the extent such other
Taxes arise from or relate to any Pre-Closing Tax Period;
(d) all
Seller Accounts Payable;
(e) except as
set forth in Section 2.03(c),
any Liabilities under Employee Plans and Employee Agreements;
(f) all
Liabilities accruing or arising from any Proceeding to the extent it is based on
the operation or ownership by Seller or its Subsidiaries of the Business or the
Transferred Assets prior to the Effective Time;
(g) all
Liabilities accruing or arising from Seller’s or its Subsidiaries’ failure to
comply with Applicable Laws with respect to the Business or the Transferred
Assets prior to the Effective Time;
(h) any
Liability for or in respect of any loan or other indebtedness for money borrowed
(including capital leases and guarantees) of Seller or any of its Subsidiaries
or Affiliates;
(i) any
Liability accruing from, arising out of or relating to Seller or its
Subsidiaries failure to comply with Environmental Law in connection with Seller
and its Subsidiaries’ use and occupation of the Leased Property prior the
Effective Time;
(j) any
Liability for actual or alleged infringement of any Intellectual Property that
relates to Products sold or shipped by Seller or its Subsidiaries prior to the
Effective Time;
(k) all
Liabilities accruing from, arising out of or relating to the Excluded Assets;
and
(l) all
Liabilities to be performed by Seller or its Subsidiaries under this Agreement
and the Ancillary Agreements.
2.05 Assignment of Contracts and
Rights.
(a) Anything
in this Agreement or any other Acquisition Document to the contrary
notwithstanding, this Agreement shall not constitute an agreement to assign any
Transferred Asset or any claim or right or any benefit arising thereunder or
resulting therefrom if an attempted assignment thereof, without the consent of a
party thereto or the receipt of any Government Approvals or the satisfaction of
any other requirement thereof or applicable thereto, would constitute a breach
or other contravention thereof or in any way adversely affect the rights of
Buyer, Seller or any of Seller’s Subsidiaries thereunder. Seller and
Buyer will use commercially reasonable efforts (but without any payment of money
by Seller or Buyer) to obtain the consent of the other parties to any such
Transferred Asset or to obtain any claim or right or any benefit arising
thereunder for the assignment thereof to Buyer as Buyer may reasonably request;
provided, however, that Seller shall
have no obligation to assign or transfer any licenses of any Intellectual
Property or any licenses granted by Seller in connection with the sale,
distribution and license of the Products in the ordinary course of business that
are not Transferred Contracts. If such consent or Government Approval
is not obtained, or if an attempted assignment thereof would be ineffective or
would adversely affect the rights of Seller or any of Seller’s Subsidiaries
thereunder prior to the Closing or Buyer thereunder on or after the Closing so
that Buyer would not in fact receive all such rights, Seller and Buyer will
cooperate in a mutually agreeable arrangement under which Buyer would obtain the
benefits and assume the obligations thereunder from and after the Effective Time
in accordance with this Agreement, including sub-contracting, sub-licensing, or
sub-leasing to Buyer, or under which Seller would enforce for the benefit of
Buyer, with Buyer assuming Seller’s obligations, any and all rights of Seller
against a third party thereto.
(b) No other
rights are granted hereunder, by implication, estoppel, statute or otherwise,
except as expressly provided in this Agreement or in any other Acquisition
Document.
2.06 Consideration
.
(a) The
aggregate consideration (collectively, the “Consideration”)
payable by Buyer to Seller for the Transferred Assets shall be:
(i)
|
3,700,000
shares of Buyer Common Stock (the “Share
Consideration”); and
|
(ii)
|
the
assumption of the Assumed Liabilities by Buyer;
and
|
(iii)
|
the
Additional Payment, if any, set forth in Section
2.09.
|
(b) If there
is a stock split, reverse stock split, stock dividend (including any dividend or
distribution of securities convertible into capital stock), reorganization,
reclassification, combination, recapitalization or other like change with
respect to shares of Buyer Common Stock occurring after the date of this
Agreement and before the Effective Time, all references in this Agreement to
specified numbers of shares of any class or series affected thereby, and all
calculations provided for that are based upon numbers of shares of any class or
series (or trading prices therefore) affected thereby, shall be equitably
adjusted to the extent necessary to provide the parties the same economic effect
as contemplated by this Agreement prior to such stock split, reverse stock
split, stock dividend, reorganization, reclassification, combination,
recapitalization or other like change. No fraction of a share of
Buyer Common Stock will be issued in connection with the transactions
contemplated by this Agreement, and in lieu thereof Seller shall receive from
Buyer an amount of cash equal to such fraction of a share multiplied by the
Buyer Common Stock Price.
2.07 Closing
. The
closing of the purchase and sale of the Transferred Assets hereunder (the “Closing”) shall take
place at the offices of Gibson, Dunn & Crutcher LLP, 1881 Page Mill Road,
Palo Alto, California 94304 on April 18, 2008 or at such other time and place or
in such manner as the Parties may agree. At the Closing:
(a) Seller
shall deliver to Buyer the Bill of Sale and, simultaneously with the
consummation of the transactions contemplated hereby, Seller, through its
officers, agents and employees, will put Buyer into possession of all tangible
Transferred Assets at the facilities where they are located as of the Closing
Date;
(b) Seller
and Buyer each shall execute and deliver the other Ancillary Agreements to which
it is a party;
(c) Buyer
shall deliver to Seller certificates representing the shares of Buyer
Common Stock delivered as Share Consideration;
(d) Buyer and
Seller shall execute and deliver a delivery protocol relating to the manner for
delivery of any software that is a Transferred Asset;
(e) Seller
shall deliver to Buyer a certificate of the secretary or an assistant secretary
of Seller attaching and certifying (i) the certificate of incorporation and
Bylaws of Seller as then in effect, (ii) the resolutions of the Board of
Directors of Seller delegating authority to certain authorized officers to
approve the transactions contemplated hereby; and
(f) Buyer
shall deliver to Seller a certificate of the secretary of Buyer attaching and
certifying (i) the certificate of incorporation and Bylaws of Seller
as then in effect, (ii) the resolutions of the Board of Directors of Buyer
approving the transactions contemplated hereby, including the issuance of the
shares of Buyer Common Stock issued as Consideration.
2.08 Accounting
(a) . From
and after the Effective Time, Buyer shall have the right and authority to
collect for its own account all items that are included in the Transferred
Assets.
2.09 Payment of Additional
Payment
.
(a) If the
Average Buyer Trading Price, as determined on the date that is the one year
anniversary of the Closing Date (or if such day is not a trading day, the first
trading day thereafter) (the "Determination Date"),
is less than $9.46, Buyer shall pay to Seller a payment equal to (A) $9.46 minus
the Average Buyer Trading Price determined as of the Determination Date
multiplied by (B) 3,700,000 (the "Additional
Payment"). At Buyer's option, Buyer may pay the Additional
Payment by delivering cash or shares of Buyer Common Stock, or a combination
thereof. Any shares of Buyer Common Stock delivered as part of the
Additional Payment shall be valued at the Average Buyer Trading Price determined
as of the Determination Date. The amount of the Additional Payment
may be subject to adjustment pursuant to clause 2.09(b), but in no event shall
the Additional Payment be reduced below zero (i.e., in no event shall Seller owe
Buyer any payment of any kind pursuant to this Section 2.09). In no
event shall the Additional Payment exceed (i) if paid in shares of Buyer Common
Stock, 1,300,000 shares of Buyer Common Stock, or (ii) if paid in cash, an
amount equal to 1,300,000 shares of Buyer Common Stock multiplied by the Average
Buyer Trading Price. If 1,000,000 or more shares of Buyer Common
Stock are to be delivered by Buyer as part of the Additional Payment, such
shares must be freely tradable by Seller immediately upon receipt by
Seller.
(b) If, prior
to the Determination Date, Seller has sold any of the Share Consideration at a
price per share equal to or greater than $9.46, then the Additional Payment will
be reduced by an amount equal to the number of shares of Share Consideration so
sold by Seller multiplied by the price per share at which such shares were
sold. If, prior to the Determination Date, Seller has sold any of the
Share Consideration at a price per share lower than $9.46, then the Additional
Payment will be reduced by an amount equal to the number of shares of Share
Consideration so sold by Seller multiplied by $9.46. The parties
acknowledge that Buyer paid shares of Buyer Common Stock as Stock Consideration
pursuant to the Lassen Asset Purchase Agreement and that sale of such Stock
Consideration shall not reduce any Additional Payment. For the
avoidance of doubt, any sale of shares of Buyer Common Stock by Seller shall be
deemed to be a sale of the Stock Consideration paid to Seller pursuant to the
Lassen Purchase Agreement until such time as all of such Stock Consideration has
been sold, and no sale of such Stock Consideration shall reduce the Additional
Payment.
(c) The
“Average Buyer Trading
Price” shall be the volume weighted average price of the Buyer Common
Stock (as reported, absent manifest error, on Nasdaq.com) for the 15 consecutive
trading days ending on and including the trading day that is the Determination
Date.
(d) On the
Business Day before the Determination Date, Seller shall notify Buyer whether it
has sold any Share Consideration prior to such date, and if so, at what price
per share.
(e) By 4:30
p.m., Eastern time, on the Determination Date, Buyer shall notify Seller whether
it intends to deliver any Additional Payment due in cash or shares of Buyer
Common Stock, or a combination thereof. On the fifth Business Day
following the Determination Date, if the Additional Payment is due to Seller in
accordance with this Section 2.09, Buyer shall pay to Seller the amount of such
Additional Payment as calculated pursuant to this Section 2.09. Buyer
shall deliver to Seller any cash used to pay such Additional Payment by wire
transfer of immediately available funds to the account of Seller set forth on
Schedule 2.09 and Buyer shall deliver to Seller certificates or book entry
shares representing any shares of Buyer Common Stock used to pay such Additional
Payment.
(f) If there
is a stock split, reverse stock split, stock dividend (including any dividend or
distribution of securities convertible into capital stock), reorganization,
reclassification, combination, recapitalization or other like change (a “Fundamental Change”)
with respect to shares of Buyer Common Stock occurring after the date of this
Agreement and before the Determination Date, all references in this Agreement to
any class or series affected thereby, and all calculations provided for that are
based upon numbers of shares of any class or series (or trading prices therefor,
including the $9.46 price used in the calculations in this Section 2.09)
affected thereby, shall be equitably adjusted to the extent necessary to provide
the parties the same economic effect as contemplated by this Agreement prior to
such stock split, reverse stock split, stock dividend, reorganization,
reclassification, combination, recapitalization or other Fundamental
Change. If in such Fundamental Change, the holders of Buyer Common
Stock receive securities of another Person or other property then any such
adjustments shall include delivery of an appropriate amount of such securities
or other property if any shares of Buyer Common Stock are delivered as part of
the Additional Payment.
(g) With
respect to any shares of Buyer Common Stock delivered as part of the Additional
Payment, (i) until the first anniversary of date such shares are delivered,
Buyer shall make publicly available the information required by Rule 144(c)(1)
under the Securities Act and (ii) in the event that Buyer files a registration
statement registering shares of Buyer Common Stock (other than a registration
statement relating to a business combination or employee benefit plan) before
the date that is six months following date the Additional Payment is delivered,
if requested by Seller, Buyer shall use commercially reasonable efforts to
include the shares of Buyer Common Stock delivered in the Additional Payment in
such registration statement and Buyer and Seller shall negotiate in good faith
the terms of such inclusion; provided, however, that Buyer
shall not be required to include such shares in such registration statement for
an underwritten offering if the managing underwriter for such underwritten
offering advises Buyer that that marketing factors require a limitation of the
number of securities to be underwritten. In no event shall shares of
Buyer Common Stock issued as part of the Additional Payment be subject to any
contractual lockup provisions.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF SELLER
Subject
to the exceptions to the representations and warranties in this Article III that are
disclosed in the disclosure letter delivered to Buyer by Seller on the date
hereof (the “Seller
Disclosure Letter”), Seller hereby represents and warrants to Buyer, as
of the date of this Agreement and as of the Closing Date, as
follows:
3.01 Existence and Good
Standing
. Seller
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all corporate power and authority required
to own, license, lease and operate the Transferred Assets as now owned,
licensed, leased and operated by it. Seller is qualified to conduct
business and is in good standing in each jurisdiction in which it conducts the
Business other than such jurisdictions where the failure to be so qualified
would not reasonably be expected to have a Seller Material Adverse Effect. Each Subsidiary
of Seller that is transferring any Transferred Assets (any such Subsidiary, a
“Transferring
Subsidiary”) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization (to the
extent such concepts apply in such jurisdiction) and has all corporate power and
authority required to own, license, lease and operate the Transferred Assets as
now owned, licensed, leased and operated by it. Each Transferring
Subsidiary is qualified to conduct business and is in good standing in each
jurisdiction in which it conducts the Business other than such jurisdictions
where the failure to be so qualified would not reasonably be expected to have a
Seller Material Adverse Effect.
3.02 Authorization and
Enforceability
. Seller
has the corporate power and authority to execute, deliver and perform under this
Agreement and to effect the transactions contemplated hereby, and each of Seller
and each Transferring Subsidiary has the corporate power and authority to
execute, deliver and perform the Ancillary Agreements and the other Acquisition
Documents to which it is a party and to effect the transactions contemplated
thereby. The execution, delivery and performance by Seller of this
Agreement and by Seller and each Transferring Subsidiary of the Ancillary
Agreements to which Seller or such Transferring Subsidiary is a party, and the
consummation of the transactions contemplated hereby and thereby have been, and
the execution, delivery and performance by Seller and each Transferring
Subsidiary of any other Acquisition Documents to which Seller or such
Transferring Subsidiary is a party and the consummation of the transactions
contemplated thereby will be prior to the Closing Date, duly authorized by all
necessary corporate action of the Seller or the relevant Transferring
Subsidiary. This Agreement has been and, when executed and
delivered at the Closing, the other Acquisition Documents will have been, duly
and validly executed by Seller or the relevant Transferring Subsidiary and,
assuming the due execution and delivery of this Agreement and the other
Acquisition Documents to which it is a party by Buyer, will constitute the
legal, valid and binding agreements of Seller or such Transferring Subsidiary,
enforceable against it in accordance with their respective terms, subject to any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect relating to creditors’ rights generally or to general
principles of equity.
3.03 Governmental or Other
Authorization
. The
execution, delivery and performance by Seller of this Agreement and the
execution, delivery and performance by Seller and each Transferring Subsidiary
of the other Acquisition Documents to which it is a party, and the consummation
by it of the transactions contemplated hereby and thereby, require no Seller
Governmental Approvals.
3.04 Non-Contravention
. The
execution, delivery and performance by Seller of this Agreement and the
execution, delivery and performance by Seller and each Transferring Subsidiary
of the other Acquisition Documents to which it is a party, and the consummation
of the transactions contemplated hereby and thereby, do not and will not
contravene or conflict with the certificate of incorporation or bylaws of Seller
or any Transferring Subsidiary, or, except for matters that would not reasonably
be expected to have a Seller Material Adverse Effect, (a) assuming receipt
of any Seller Approvals that are Governmental Approvals, contravene or conflict
with or constitute a violation of any provision of any Applicable Law binding
upon or applicable to Seller, any Transferring Subsidiary or the Transferred
Assets or (b) assuming receipt of the Seller Contractual Consents, (i)
constitute a default under, give rise to any right of termination, cancellation,
modification, or acceleration of, or a loss of any material benefit under any
material Transferred Contract, (ii) result in the creation or imposition of any
Lien (other than Permitted Liens) on the Transferred Assets, or (iii) constitute
a breach, default or violation of any settlement agreement, judgment, injunction
or decree binding on or applicable to the Transferred Assets.
3.05 Personal
Property
. Seller
or one of its Subsidiaries has good and marketable title to, or a valid and
subsisting leasehold interest in, all of the material tangible personal property
that is a Transferred Asset. None of such personal property is
subject to any Lien other than (a) Permitted Liens, (b) Liens that would not
reasonably be expected to have a Seller Material Adverse Effect and (c) any
restriction contemplated by this Agreement or any of the other Acquisition
Documents.
3.06 Real
Property
. Seller
or one of its Subsidiaries has good and marketable title to the any real
property included in the Transferred Assets and a valid and subsisting leasehold
interest in all of the leased real property that is a Transferred Asset, except
as would not reasonably be expected to have a Seller Material Adverse
Effect. None of such real property is subject to any Lien created by
Seller or its Subsidiaries other than (a) Permitted Liens, (b) Liens that would
not reasonably be expected to have a Seller Material Adverse Effect and (c) any
restriction contemplated by this Agreement or any of the other Acquisition
Documents.
3.07 Litigation
. There
are no Proceedings pending or, to Seller’s Knowledge, any Proceedings threatened
in writing or investigations pending or threatened in writing: (a) by or against
Seller or any of its Subsidiaries relating to any of the Transferred Assets that
would reasonably be expected to have a Seller Material Adverse Effect; or (b)
that seeks to prevent, enjoin, alter or delay the transactions contemplated by
this Agreement or any of the other Acquisition Documents. To Seller’s
Knowledge, there are no material existing orders, judgments or decrees of any
Governmental Authority against the Seller or its Subsidiaries relating to the
Transferred Assets or Assumed Liabilities that would be binding on Buyer or its
Subsidiaries after the Effective Time.
3.08 Transferred
Contracts
. Except
as would not reasonably be expected to have a Seller Material Adverse Effect,
each Transferred Contract is a valid and binding obligation of Seller or one of
its Subsidiaries that is a party thereto and, to the Knowledge of Seller, is a
valid and binding obligation of each other Person who is a party thereto,
enforceable against it in accordance with its material terms, subject to any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect relating to creditors’ rights generally or to general
principles of equity, and except for breaches or defaults that would not
reasonably be expected to have a Seller Material Adverse Effect, none of Seller,
any of its Subsidiaries or, to the Knowledge of Seller, any other party thereto
is in material breach under any Transferred Contract.
3.09 Compliance with Applicable
Laws
. Seller
and its Subsidiaries have complied in all material respects with all Applicable
Laws relating to the Transferred Assets, except where the failure to comply
would not reasonably be expected to have a Seller Material Adverse
Effect. To the Knowledge of Seller, it has not received written
notice from any third party regarding any unresolved actual, alleged or
potential material violation of any Applicable Law with respect to the
Transferred Assets.
3.10 Tax
Matters.
(a) Except to
the extent that the failure to do so would not reasonably be expected to have a
Seller Material Adverse Effect, Seller and its Subsidiaries have paid or cause
to be paid all material Taxes relating to the Transferred Assets allocable (as
provided in Section
5.09) to the Pre-Closing Tax Period that could become a liability of
Buyer by reason of the transfer of the Transferred Assets to Buyer as described
herein, other than non-delinquent Taxes incurred in the ordinary course of
business since the Financial Information Date in amounts consistent with prior
periods (as adjusted for changes in Tax rates and ordinary course fluctuations
in operating results). Neither Seller nor any of its Subsidiaries
have an actual or contingent liability for Taxes that will become a liability of
Buyer by reason of the transactions described herein, other than such
non-delinquent Taxes described in the immediately preceding sentence for which
Buyer may become liable by reason of statutory successor liability (or similar
liability) under Applicable Law.
(b) To the
Knowledge of Seller, no Governmental Authority has claimed that the Transferred
Assets or the Business are subject to Tax in a jurisdiction in which the
required Tax Returns have not been filed by the Seller or its
Subsidiaries.
(c) To the
Knowledge of Seller, no material issues have been raised in writing in any
audits, examinations or disputes pertaining to Taxes arising from the
Transferred Assets or the Business that would reasonably be expected to be
raised in similar examinations of Buyer following the Closing.
(d) The
representations and warranties contained in this Section 3.10 are the
only representations and warranties being made with respect to tax
matters.
3.11 Intellectual
Property.
(a) Each
material Transferred Copyright and Transferred Patent is free and clear of any
Liens other than Permitted Liens. To Seller’s Knowledge, either
Seller or one of its Subsidiaries owns or is licensed to, all works of
authorship and all associated Copyrights that are embodied in the
Products. Seller or a Transferring Subsidiary has good and marketable
title to the material Transferred Copyrights and the Transferred
Patents.
(b) To the
Knowledge of Seller, neither (i) the current use of the Transferred Intellectual
Property by Seller or any of its Subsidiaries in its current operation of the
Transferred Assets nor (ii) the current manufacture, marketing, distribution or
sale of any of the Products by Seller or its Subsidiaries in their current
operation of the Transferred Assets infringes any Copyrights or Trade Secrets of
any third party. Seller, to its Knowledge, has not received any
written claims currently pending from any Person claiming that the Products
infringe or misappropriate the Copyrights, Trade Secrets or Patents of any
Person. For the avoidance of doubt, a Product shall not be deemed to
infringe or misappropriate a Copyright, Trade Secret or Patent of any Person and
Seller shall not be deemed to have received a claim from a Person for purposes
of this Section
3.11(b) based on (w) any manufacturing method or process generally used
by Seller and not limited to the Transferred Assets, (x) alleged or actual
infringement by an underlying component unless such component is material and
unique to the Products currently available from Seller; (y) alleged or actual
infringement required for the advertised compliance with an industry standard or
recognized specification available for licensing through an adopters group or
other organization; or (z) reference in the designs, specifications or
documentation of such Product to a product, specification or design of a third
party.
(c) Seller
has taken commercially reasonable steps to protect its rights in Trade Secrets
of Seller embodied in the Products including taking commercially reasonable
steps to have all of its respective current and former employees, consultants
and contractors employed in the Business execute and deliver to Seller a
proprietary information and assignment agreement. To the Knowledge of
Seller, it has not received written notice of any violation of or non-compliance
with such agreements.
(d) To
Seller’s Knowledge, neither Seller nor any of its Subsidiaries is a party to any
outstanding decree, order or judgment of any Governmental Authority that
restricts in any material manner the use, transfer or licensing of the
Transferred Copyrights, the Transferred Patents or the Products.
(e) All
registered Transferred Patents are currently in material compliance with formal
legal requirements involving the payment of fees to Governmental Authorities
(including payment of filing, examination and maintenance fees). To
the Knowledge of Seller, there are no proceedings or actions pending before any
court or tribunal (including the PTO or equivalent authority anywhere in the
world) to which Seller has been named as party and served with process that
involve the validity, scope or priority of Transferred Patents. None
of the Transferred Copyrights are registered Copyrights.
(f) To
Seller’s Knowledge, no software covered in its entirety by a Transferred
Copyright is subject to any “open source license” as that term is defined by the
Open Source Initiative.
(g) To
Seller’s Knowledge, none of the Transferred Intellectual Property was developed
by or on behalf of, or using grants or any other subsidies from, any
Governmental Authority or any university, and no government funding, facilities,
faculty or students of a university, college, other educational institution or
research center was used in the development of any Transferred Intellectual
Property.
(h) The
representations and warranties contained in this Section 3.11 are the
only representations and warranties being made, including with respect to
compliance with Applicable Laws, relating to intellectual property
matters.
3.12 Employee
Matters.
(a) Certain Employee
Plans. Each Employee Plan that is intended to be qualified
under Section 401(a) of the Code (i) has been maintained, operated and
administered in all material respects in compliance with its terms and
applicable Laws, and (ii) has received a favorable determination letter from the
Internal Revenue Service, and nothing has occurred since the date of any such
determination that could reasonably be expected to give the Internal Revenue
Service grounds to revoke such determination.
(b) Multiemployer
Plans. At no time has Seller or any other Person or entity
under common control with Seller within the meaning of Section 414(b), (c), (m)
or (o) of the Code and the regulations issued thereunder, contributed to or been
obligated to contribute to any Multiemployer Plan or any plan maintained
pursuant to a collective bargaining agreement, in either case with respect to
Business Employees or former Business Employees.
(c) Labor. No
work stoppage or labor strike against Seller or any of its Subsidiaries is
pending or, to Seller’s Knowledge, threatened in writing with respect to the
Business Employees. Seller has no Knowledge of any activities or
proceedings of any labor union to organize any Business Employees who are not
currently represented by a labor or trade union or employee representative
body. To Seller’s Knowledge, there are no actions, suits, claims,
labor disputes or grievances pending, or, to the Knowledge of Seller, threatened
in writing relating to any labor, safety or discrimination matters involving any
Business Employee, including charges of unfair labor practices or discrimination
complaints, which, if adversely determined, would be reasonably expected to have
a Seller Material Adverse Effect. Neither Seller nor any of its
Subsidiaries is presently, nor has it been in the past, a party to, or bound by,
any collective bargaining agreement or union contract with respect to Business
Employees and no collective bargaining agreement is being negotiated by Seller
with respect to the Business Employees.
(d) Business Employee
List. All of the employees of Seller and its Subsidiaries who
work directly and primarily with the Transferred Assets as of the date hereof
(including (i) those on military leave and family and medical leave,
(ii) those on approved leaves of absence, and (iii) those on short-term
disability under the short-term disability program of Seller or its
Subsidiaries) regardless of the company payroll on which such individuals appear
(the “Business
Employees”), together with the country in which each such Business
Employee is based, are listed on Section 3.12 of
the Seller Disclosure Letter.
(e) Nature of Representations
and Warranties. The representations and warranties contained
in this Section
3.12 are the only representations and warranties being made with respect
to employee and employment matters.
3.13 Financial
Information.
(a) Seller
has delivered to Buyer copies of the estimated unaudited pro forma
consolidated statement of finished goods inventory of the Business at September
29, 2007 (the “Financial Information
Date”) and of manufacturing fixed assets and R&D/other fixed assets
of the Business at the Financial Information Date, and the related estimated unaudited
consolidated statement of net revenues and direct expenses of the Business for
the years ended each of December 25, 2004, December 31, 2005 and
December 30, 2006 (collectively, the “Financial
Statements”). The Financial Statements have been
prepared internally by Seller for management reporting purposes
only.
(b) The
Financial Statements have been derived from the books and records of Seller and
have not been separately audited. The Financial
Statements present fairly in all material respects the financial
condition and results of operations of the Business as of the date indicated or
the period indicated; provided, however, that the
Financial Statements (i) do not contain all adjustments necessary to comply with
GAAP (ii) do not reflect the assets, liabilities, revenues and expenses that
would have resulted if the Business had operated as an unaffiliated independent
company; (iii) include estimations for allocation of various revenues, costs and
expenses on a reasonable basis and (iv) have not been audited by any independent
certified public accountants or auditors.
3.14 Absence of Certain
Changes
. From
the Financial Information Date through the date of this Agreement, other than
with respect to the transactions contemplated by this Agreement and the other
Acquisition Documents, the Business has been conducted in the ordinary course of
business, and there has not been:
(a) any
creation, assumption or sufferance of (whether by action or omission) the
existence of any Lien on any of the Transferred Assets, except, in each case, in
the ordinary course of business, other than (i) Permitted Liens and (ii) Liens
that would not reasonably be expected to have a Seller Material Adverse
Effect;
(b) any
waiver, amendment, termination or cancellation of any material Transferred
Contract or any relinquishment of any material rights thereunder by Seller, or
to the Knowledge of Seller, any other party, other than, in each such case, in
the ordinary course of business or that are not material with respect to the
Business;
(c) any
material change by Seller in its accounting principles, methods or practices as
they relate to the manner in which the Seller keeps its accounting books and
records relating to the Business, except (i) any such change required by a
change in GAAP or (ii) any change that results from any preparation or audit of
any of the Business Financial Statements;
(d) any
damage, destruction or other casualty loss that is material to the Transferred
Assets, taken as a whole;
(e) any
Seller Material Adverse Effect or any event, occurrence, development or state of
circumstances or facts that has had or would reasonably be expected to have a
Seller Material Adverse Effect; or
(f) any
agreement for Seller to take any of the actions specified in paragraphs (a)
through (d) above.
3.15 Environmental
Matters.
(a) Except as
would not reasonably be expected to have a Seller Material Adverse Effect, to
the Knowledge of Seller: (i) Seller and each of its Subsidiaries is in material
compliance with all material applicable Environmental Laws in connection with
the ownership or use of the Transferred Assets; and (ii) there are no written
claims pursuant to any Environmental Law pending or threatened in writing
against Seller or any of its Subsidiaries in connection with the ownership or
use of the Transferred Assets.
(b) The
representations and warranties contained in this Section 3.15 are the
only representations and warranties being made with respect to compliance with
or liability under Environmental Laws, or with respect to any environmental,
health or safety matter, including natural resources, related to the Business,
the Transferred Assets or Seller’s or its Subsidiaries’ ownership or operation
thereof.
3.16 Product
Warranties
. A
copy of Seller’s product warranties currently in effect with respect to the
Products as set forth in the order acknowledgement forms for the Products is set
forth on Section
3.16 of the Seller Disclosure Letter. To the Knowledge
of Seller, there are no material outstanding claims with respect to product
warranties relating to the Products.
3.17 Transferred
Assets
. Except
for the Excluded Assets and the benefits received by the Business by virtue of
it being operated by Seller or one of its Subsidiaries, the Transferred Assets
and the assets made available to Buyer under the Acquisition Documents, or to be
used by Seller or its Subsidiaries in the performance of the Transition Services
Agreement, will, as of the Closing, constitute all material assets (other than
Intellectual Property) necessary for the conduct of the Business as it is
conducted by Seller and its Subsidiaries as of the date hereof.
3.18 Customers
. Section 3.18 of the
Seller Disclosure Letter lists the names of the 10 largest customers to whom the
Seller or its Subsidiaries has sold Products during the year ended
December 30, 2006 (based on dollar amount of net billings in connection
with the sale of such Products during such year). To Seller’s
Knowledge, neither Seller nor any of its Subsidiaries has received any written
statement from any customer whose name appears on Section 3.18 of the
Seller Disclosure Letter that such customer will not continue as a customer of
the Business after the Closing.
3.19 Advisory
Fees
. There
is no investment banker, broker, finder or other intermediary or advisor that
has been retained by or is authorized to act on behalf of Seller, who will be
entitled to any fee, commission or reimbursement of expenses from Seller, or any
Affiliate of Seller, upon consummation of the transactions contemplated by this
Agreement, the nonpayment of which could result in a claim against, or
obligation of, Buyer or any of its Affiliates.
3.20 Disclaimer of
Warranties
. EXCEPT
WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES SPECIFICALLY SET FORTH IN
THIS ARTICLE III
(WHICH MAY BE RELIED UPON BY BUYER), ALL OF THE TRANSFERRED ASSETS ARE BEING
SOLD “AS IS, WHERE IS,” AND SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, WHETHER OF MERCHANTABILITY, SUITABILITY, NONINFRINGEMENT OR FITNESS
FOR A PARTICULAR PURPOSE, OR QUALITY AS TO THE TRANSFERRED ASSETS OR ANY PART OR
ITEM THEREOF, OR AS TO THE CONDITION, DESIGN, OBSOLESCENCE, WORKING ORDER OR
WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR
OTHERWISE, AND SELLER HEREBY DISCLAIMS ANY SUCH OTHER REPRESENTATIONS AND
WARRANTIES.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF BUYER
Subject
to the exceptions to the representations and warranties in this Article IV that are
disclosed in the disclosure letter delivered to Seller by Buyer on the date
hereof (the “Buyer
Disclosure Letter”), Buyer hereby represents and warrants to Seller, as
of the date of this Agreement and as of the Closing Date, as
follows:
4.01 Existence and Good
Standing
. Buyer
is a corporation duly organized, validly existing and in good standing under the
laws of the State of New Jersey and has all corporate power and authority
required to carry on its business. Buyer is qualified to conduct
business in and is in good standing in each jurisdiction in which it conducts
business other than such jurisdictions where the failure to be so qualified
would not reasonably be expected to have a Buyer Material Adverse
Effect.
4.02 Authorization and
Enforceability
. Buyer
has the corporate power and authority to execute, deliver and perform under this
Agreement and to effect the transactions contemplated hereby, and Buyer has the
corporate power and authority to execute, deliver and perform the Ancillary
Agreements and the other Acquisition Documents to which it is a party and to
effect the transactions contemplated thereby. The execution, delivery and
performance by Buyer of this Agreement and the Ancillary Agreements, and the
consummation of the transactions contemplated hereby and thereby have been, and
the execution, delivery and performance by Buyer of any other Acquisition
Documents to which Buyer is a party and the consummation of the transactions
contemplated thereby will be prior to the Closing Date, duly authorized by all
necessary corporate action of Buyer. This Agreement has been and,
when executed at the Closing, the other Acquisition Documents to which it is a
party will have been, duly and validly executed by Buyer, and, assuming the due
execution and delivery of this Agreement and the other Acquisition Documents by
Seller and the Transferring Subsidiaries, as applicable, will constitute the
legal, valid and binding agreements of Buyer, enforceable against it in
accordance with their respective terms, subject to any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws now or hereafter in
effect relating to creditors’ rights generally or to general principles of
equity.
4.03 Governmental or Other
Authorization
. The
execution, delivery and performance by Buyer of this Agreement and the other
Acquisition Documents to which it is a party, and the consummation by it of the
transactions contemplated hereby and thereby, require no Buyer
Approvals.
4.04 Non-Contravention
. Except
for matters that would not reasonably be expected to have a Buyer Material
Adverse Effect, the execution, delivery and performance by Buyer of this
Agreement and the other Acquisition Documents to which it is a party, and the
consummation of the transactions contemplated hereby and thereby, do not and
will not (a) contravene or conflict with the certificate of incorporation
or bylaws of Buyer, (b) assuming receipt of any Buyer Approvals that are
Governmental Approvals, contravene or conflict with or constitute a material
violation of any provision of any Applicable Law binding upon or applicable to
Buyer, or (c) assuming receipt of Buyer Approvals that are not Governmental
Approvals, constitute a material default under, give rise to any right of
termination, cancellation, modification or acceleration of or a loss of any
material benefit under any material agreement to which Buyer is a
party.
4.05 Capital Stock of
Buyer
.
(a) The
authorized capital stock of Buyer consists of 100,000,000 shares of Buyer Common
Stock, of which 73,573,467 shares were issued and outstanding as of March 31,
2008, and 5,882,352 shares of preferred stock, no par value per share, of which
no shares are issued and outstanding. All of such outstanding shares
are or have been, and all of the shares of Buyer Common Stock to be issued to
Seller on the Closing Date, when so issued, will be, duly authorized, validly
issued, fully paid and nonassessable, free of preemptive rights and Liabilities
created by statute, Buyer’s certificate of incorporation or by-laws or any
agreement to which Buyer is a party or by which Buyer is bound, and issued in
compliance with all applicable state and federal laws concerning the issuance of
securities. No shareholder approval or any other approvals are
required for the issuance of the shares of the Buyer Common Stock to be issued
to Seller at the Closing, and Buyer has reserved such shares for issuance to
Seller.
(b) Except as
disclosed in the Buyer SEC Documents, (i) no option, warrant, call, subscription
right, conversion right or other contract or commitment of any kind exists of
any character, written or oral, which may obligate Buyer to issue or sell, or by
which any shares of capital stock may otherwise become outstanding and (ii)
Buyer has no obligation (contingent or otherwise) to purchase, redeem or
otherwise acquire any of its equity securities or any interests therein or to
pay any dividend or make any distribution in respect thereof.
4.06 Buyer SEC
Reports
. Buyer
has filed all required documents with the Securities and Exchange Commission
(the “SEC”)
since December 31, 2004 (the “Buyer SEC
Documents”). As of their respective dates, the Buyer SEC
Documents complied in all material respects with the requirements of the
Securities Act of 1933, as amended (the "Securities Act") or the Exchange Act,
as the case may be, and, at the respective times they were filed, none of the
Buyer SEC Documents contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except to the extent corrected in a subsequent Buyer SEC
Document filed prior to the date of this Agreement. The consolidated
financial statements (including, in each case, any notes thereto) of Buyer
included in the Buyer SEC Documents complied as to form in all material respects
with applicable accounting requirements and the published rules and regulations
of the SEC with respect thereto, were prepared in accordance with GAAP (except
as may be indicated in the notes thereto, in the case of the unaudited
statements, as permitted by Form 10-Q of the SEC) applied on a consistent
basis during the periods involved (except as may be indicated therein or in the
notes thereto) and fairly presented in all material respects the consolidated
financial position of Buyer and its consolidated Subsidiaries as at the
respective dates thereof and the consolidated results of their operations and
their consolidated cash flows for the periods then ended (except as otherwise
noted therein and subject, in the case of unaudited statements, to normal
year-end audit adjustments and to any other adjustments described
therein).
4.07 Absence of Certain
Changes
. Except
as disclosed in the Buyer SEC Documents, the business of Buyer and its
Subsidiaries has been conducted in the ordinary course consistent with past
practice, and since December 31, 2007 there has not been:
(a) any
event, occurrence, development or state of circumstances or facts that has had
or would reasonably be expected to have a Buyer Material Adverse
Effect;
(b) any
amendment of any material term of any outstanding security of
Buyer;
(c) any sale
of a material amount of assets (tangible or intangible) of Buyer, other than
sales of products in the ordinary course of business consistent with past
practices;
(d) any
change in any method of accounting or accounting principles or practice by Buyer
or any of its Subsidiaries, except for any such change required by reason of a
concurrent change in GAAP; or
(e) any
agreement by Buyer or any officer thereof in their capacities as such to do any
of the things described in the preceding clauses (a) through (d).
4.08 Litigation
(a) . There
are no Proceedings pending or, to Buyer’s Knowledge, any Proceedings threatened
in writing or investigations pending or threatened in writing: (a) by or
against Buyer or any of its Subsidiaries, or their respective activities,
properties or assets that would reasonably be expected to have a Buyer Material
Adverse Effect; or (b) that seeks to prevent, enjoin, alter or delay the
transactions contemplated by this Agreement or any of the other Acquisition
Documents. There are no existing orders, judgments or decrees of any
Governmental Authority against Buyer or its Subsidiaries or relating to any of
their respective business or properties, except for such orders, judgments or
decrees as would not reasonably be expected to have a Buyer Material Adverse
Effect.
4.09 Compliance with Applicable
Laws
. Buyer
and its Subsidiaries have complied in all material respects with any Applicable
Laws relating to their business and properties, except where the failure to
comply would not reasonably be expected to have a Buyer Material Adverse
Effect.
4.10 Financing
. Buyer
has, or will have as of the Closing Date, sufficient funds to permit the Buyer
to consummate the transactions contemplated by this Agreement and the other
Acquisition Documents. Notwithstanding anything to the contrary
contained herein, the Parties acknowledge and agree that it shall not be a
condition to the obligations of the Buyer to consummate the transactions
contemplated hereby that the Buyer have sufficient funds for payment of the
Consideration.
4.11 Export
Compliance
. Buyer
acknowledges that the Transferred Assets include technology that is “controlled
technology” under the U.S. Export Administration Regulations, including
technology that is classified as ECCN 5A991 of the U.S. Export Administration
Regulations.
4.12 Advisory
Fees
. There
is no investment banker, broker, finder or other intermediary or advisor that
has been retained by or is authorized to act on behalf of Buyer, who will be
entitled to any fee, commission or reimbursement of expenses from Buyer, or any
Affiliate of Buyer, upon consummation of the transactions contemplated by this
Agreement, the nonpayment of which could result in a claim against, or
obligation of, Seller, its Subsidiaries or any of its Affiliates.
4.13 Reliance
. Buyer acknowledges that
(a) the representations and warranties of Seller contained in Article III
constitute the sole and exclusive representations and warranties of Seller to
Buyer in connection with this Agreement and the transactions contemplated
hereby, and (b) all other representations and warranties are specifically
disclaimed and may not be relied upon or serve as a basis for a claim against
Seller. BUYER ACKNOWLEDGES THAT SELLER DISCLAIMS ALL REPRESENTATIONS
AND WARRANTIES OTHER THAN THOSE EXPRESSLY CONTAINED IN ARTICLE III OF THIS
AGREEMENT AS TO THE TRANSFERRED ASSETS AND THE BUSINESS, WHETHER EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY FOR FITNESS FOR A
PARTICULAR PURPOSE. BUYER IS ACQUIRING THE PURCHASED ASSETS ON AN “AS
IS, WHERE IS” BASIS.
4.14 Investigation
. Buyer
is a sophisticated purchaser and has conducted such investigation and
inspection of the Transferred Assets, the Assumed Liabilities, the Business and
the Products that Buyer has deemed necessary or appropriate for the purpose of
entering into this Agreement and consummating the transactions contemplated by
this Agreement. In executing this Agreement, except for the
representations and warranties expressly contained in Article III of this
Agreement, Buyer is relying on its own investigation in electing to acquire the
Transferred Assets on the terms and subject to the conditions set forth in this
Agreement and the other Acquisition Documents, and on the provisions set forth
herein and therein, and not on any other statements, presentations,
representations, warranties or assurances of any kind made by Seller, any of its
Subsidiaries, its or their representatives or any other Person. Neither the
Seller nor any of its affiliates or representatives shall have any liability to
the Buyer or any of its affiliates or representatives resulting from the use of
any information, documents or materials made available to Buyer, whether orally
or in writing, in any confidential information memoranda, "data rooms",
management presentations, due diligence discussions or in any other form in
expectation of the transactions contemplated by this Agreement and the other
Acquisition Documents.
ARTICLE
V
COVENANTS
5.01 Access to
Information.
(a) Between
the date hereof and the Closing, Seller agrees to provide to Buyer and its
employees, financial advisors, attorneys and accountants reasonable access to
the offices and properties where Seller conducts the Business and the Books and
Records, upon reasonable prior notice, during normal business hours, under
Seller’s supervision and at Buyer’s expense, in order to conduct a review of the
Transferred Assets and the Business; provided, however, that
nothing in this Section 5.01(a) shall
be deemed to require any Party to disclose any information that it is prohibited
from disclosing under any non-disclosure agreement entered into prior to the
date of this Agreement or in the ordinary course of business after the date of
this Agreement. Each of the Parties hereto will hold, and will cause
its employees, financial advisors, attorneys and accountants to hold,
in confidence all documents and information furnished to it by or on behalf of
another party to this Agreement in connection with the transactions contemplated
by this Agreement and the other Acquisition Documents pursuant to the terms of
the Confidentiality Agreement.
(b) Buyer
shall maintain for six years after the Closing Date all of the Books and
Records. After the Closing, Buyer shall provide Seller and its
employees, financial advisors, attorneys and accountants, during normal business
hours and upon reasonable notice from Seller, with reasonable access to the
Books and Records and with the ability to make, retain and use copies of such
books and records. If, at any time after the sixth anniversary of the
Closing Date, Buyer proposes to dispose of any of the Books and Records, Buyer
shall first offer to deliver the same to Seller at the expense of
Seller.
(c) Following
the Closing, each Party (the “Possessing Party”)
will afford the other Party (the “Receiving Party”),
its employees, financial advisors, attorneys and accountants, during normal
business hours and upon reasonable notice from the Receiving Party, reasonable
access to information relating to the Transferred Assets, the Assumed
Liabilities and the Business in the Possessing Party’s possession and, to the
extent reasonably requested, will provide copies and extracts therefrom, all to
the extent that such access may be reasonably required by the Receiving Party in
connection with (i) the preparation of Tax Returns, (ii) compliance with the
requirements of any Governmental Authority, (iii) the resolution of
claims made by a third party against or incurred by Seller or Buyer pertaining
to the Transferred Assets, the Assumed Liabilities or the Business, or (iv) the
preparation by Buyer of financial statements relating to the Business, the
Transferred Assets and the Assumed Liabilities to be filed with the SEC; provided, however, that
nothing in this Section 5.01(c) shall
be deemed to require any Party to disclose any information that it is prohibited
from disclosing under any non-disclosure agreement entered into prior to the
date of this Agreement or in the ordinary course of business after the date of
this Agreement. The Receiving Party shall reimburse the Possessing
Party for reasonable out-of-pocket costs and expenses incurred by the Possessing
Party in providing such information and in rendering such
assistance.
(a) . If
on the Closing Date or any date prior to the Closing Date, any of the
information in any schedule or the Seller Disclosure Letter or the Buyer
Disclosure Letter, as the case may be, is not true, accurate and complete in all
material respects on and as of such date, either Party shall be entitled to
amend the schedules or the Seller Disclosure Letter or Buyer Disclosure Letter,
as the case may be, to make additions to or modifications of such schedules
necessary to make the information set forth therein true, accurate and complete
in all material respects; provided, however, that (x) any such
amendment, addition or modification shall not be deemed to modify
such Party’s representations and warranties for purposes of Article VI or Article VII of this
Agreement if (i) such amendment, addition or modification relates to matters
occurring or arising prior to the date hereof that should have been disclosed in
the Seller Disclosure Letter or Buyer Disclosure Letter, as the case may be, as
of the date hereof but were not so disclosed or (ii) such amendment, addition or
modification relates to actions by such Party after the date hereof and before
the Closing Date in breach of this Agreement and (y) no such amendment shall add
any new Contracts to the list of Transferred Contracts, amend Schedule 2.03(c) or
add any Assumed Liabilities not contemplated by Section 2.03 without
the prior written consent of Buyer. Between the date hereof and
the Closing Date, each of Buyer and Seller shall notify the other party if Buyer
or Seller, as the case may be, obtains Knowledge of any condition or event that
would reasonably be expected to result in such Party being unable to satisfy the
closing condition set forth in Section 6.01(a), in
the case of Seller, or Section 6.02(a), in
the case of Buyer. Between the date hereof and the Closing Date,
Buyer shall notify Seller if it obtains Knowledge of any condition or event that
would be reasonably likely to result in a material breach by Seller of its
representations and warranties hereunder as of the Closing Date.
5.03 Compliance with Terms of
Governmental Approvals and Consents. From and after the
Closing Date, Buyer shall comply at its own expense with all conditions and
requirements imposed on Buyer as set forth in (a) Buyer Approvals that are
Governmental Approvals, to the extent necessary such that all such Governmental
Approvals will remain in full force and effect assuming, if applicable,
continued compliance with the terms thereof by Seller and (b) all Buyer
Approvals of Persons other than Governmental Authorities, to the extent
necessary such that all such consents and approvals will remain effective and
enforceable against the Persons giving such consents and approvals, assuming, if
applicable, continued compliance with the terms thereof by
Seller. From and after the Closing Date, Seller shall comply at its
own expense with all conditions and requirements imposed on Seller as set forth
in (a) Seller Governmental Approvals, to the extent necessary such that all
such Seller Governmental Approvals will remain in full force and effect
assuming, if applicable, continued compliance with the terms thereof by Buyer
and (b) all Seller Contractual Consents to the extent necessary such that
all such consents and approvals will remain effective and enforceable against
the Persons giving such consents and approvals, assuming, if applicable,
continued compliance with the terms thereof by Buyer.
5.04 Use of
Marks
. Notwithstanding
any other provision of this Agreement, no interest in or right to use the name
“Intel” or any derivation thereof or any other Trademarks, service marks or
tradenames of Seller other than the Transferred Trademarks, if any (the “Retained Marks”), is
being transferred or otherwise licensed to Buyer pursuant to the transactions
contemplated by this Agreement. Buyer agrees not to use any materials
bearing Retained Marks or sell, transfer or ship any products or related
materials bearing Retained Marks (a) unless requested to do so by Seller, (b)
except to the extent displayed on the hardcopy (non-electronic) form of such
materials delivered to Buyer at the Closing or (c) except as required under
Transferred Contracts with customers until, in all cases, the earlier of (i)
such time as Buyer shall have qualified the use of its logo, Trademarks or
tradenames with each such customer and (ii) 90 days after the Closing Date, or
such later date as may be permitted pursuant to the terms of the Transition
Services Agreement solely for the purposes as may be set forth therein, not to
exceed one year from the Closing Date. The foregoing rights are
subject to Seller’s standard Trademark usage guidelines, a copy of which has
been provided to Buyer, and Seller reserves the right to practice quality
control with regard to its marks and any products or services marketed or sold
thereunder. Upon the expiration of the foregoing license, all
materials bearing any Retained Mark in the possession of Buyer, any of its
Subsidiaries or any of their respective agents shall be promptly
destroyed. Prior to any distribution of any materials bearing
Retained Marks, Buyer shall use its reasonable best efforts to redact or modify
such materials in order to minimize or eliminate the use of the Retained
Marks.
5.05 Cooperation in Third Party
Litigation
.
(a) After the
Closing, each Party shall provide such assistance and cooperation as the other
Party or its counsel may reasonably request in connection with any Claims or
Proceedings relating to the Business and the Transferred Assets, the Assumed
Liabilities or the Business; provided that such duty to
assist and cooperate shall be at the cost of the Party making such
request.
(b) Without
limiting the generality of the foregoing, with respect to the Transferred
Employees, Buyer shall, upon Seller's reasonable request and at Seller's
expense, make each such Transferred Employee reasonably available to Seller for
meetings and/or teleconferences in preparation for depositions or any judicial
proceedings in connection with any Claims or Proceedings relating to the
Business and the Transferred Assets, the Assumed Liabilities or the Business,
provided that such
availability does not materially interfere with the Transferred Employees
performance of his or her duties. In addition, Seller shall be permitted to
retain copies of and use all documents (whether hard copy, electronic or
otherwise) transferred as part of the Transferred Assets, or in the possession
of the Transferred Employees, that relate to any Claims, Proceedings or
investigations relating to the Business and the Transferred Assets, the Assumed
Liabilities or the Business.
5.06 Assignments
. Seller
will reasonably cooperate with Buyer in transferring applications and
registrations for the Transferred Copyrights, the Transferred Patents and the
Transferred Trade Secrets to the extent that Seller has applied for or obtained
registrations therefor; provided, however, that on and after
the Closing Date, Seller shall not have or incur any further obligations or
expenses in connection therewith, and it shall be the sole responsibility of
Buyer to pursue, protect or perfect any such rights as it may see fit in its
sole discretion.
. Each
Party agrees to execute and deliver such other documents, certificates,
agreements and other writings and to take such other commercially reasonable
actions as may be reasonably necessary or desirable in order to
(a) consummate or implement expeditiously the transactions contemplated by
this Agreement and the other Acquisition Documents or (b) obtain any Seller
Contractual Consents and, in connection therewith, obtain the release of Seller
and/or its Affiliates from the Assumed Liabilities under the Transferred
Contracts. Each Party agrees to execute and deliver such other
documents, certificates, agreements and other writings and to take such other
commercially reasonable actions as may be reasonably necessary or desirable to
obtain from Governmental Authorities and other Persons all consents, approvals,
authorizations, qualifications and orders as are necessary for the consummation
of the transactions contemplated by this Agreement and the Acquisition
Documents. Seller and Buyer shall keep each other timely apprised of
the status of any communications with, and any inquiries from, the United States
Federal Trade Commission and the United States Department of Justice, and shall
comply promptly with any such inquiry or request. Notwithstanding the
foregoing, no Party shall have any obligation to expend any funds or to incur
any other obligation in connection with the consummation of the transactions
contemplated hereby (including, by way of illustration only, any payment in
connection with obtaining the Seller Contractual Consents, Seller Governmental
Approvals or Buyer Approvals) other than normal out-of-pocket expenses (such as
fees of counsel, accountants and auditors) reasonably necessary to consummate
such transactions. Notwithstanding the foregoing, Seller shall not be
required to assist Buyer to obtain any third party licenses.
5.08 Public Announcements;
Customer Contacts
.
(a) Neither
Buyer nor Seller nor any of their respective Affiliates, officers, directors,
employees or other representatives shall issue any press release or otherwise
make any public statements with respect to this Agreement or any of the other
Acquisition Documents, or the transactions contemplated hereby or thereby
without the prior written consent of Buyer (in the case of Seller) or Seller (in
the case of Buyer), except as may be required by Applicable Law, or by the rules
and regulations of, or pursuant to any agreement with, the Nasdaq Global Select
Market. If any Party determines, with the advice of counsel, that it
is required by Applicable Law or the rules and regulations of, or pursuant to
any agreement with the Nasdaq Global Select Market to make any public statement
regarding or otherwise publicly disclose this Agreement, any of the other
Acquisition Documents, or any terms hereof or thereof, it shall, within a
reasonable time before making any public disclosure, consult with the other
Party regarding such disclosure and seek confidential treatment for such terms
or portions of this Agreement or such other Acquisition Document as may be
requested by the other Party.
(b) Notwithstanding
anything in this Agreement to the contrary, prior to the Closing, Buyer and its
officers, directors, employees or other representatives shall not, without the
prior written consent of Seller: (i) contact any of Seller’s
customers or employees (other than those employees expressly designated by
Seller to Buyer as members of its transaction team with respect to the
Acquisition Documents) for the purpose of discussing the Business, the
Transferred Assets or the transactions contemplated by this Agreement or any of
the other Acquisition Documents; or (ii) discuss the Business, the Transferred
Assets or the transactions contemplated by this Agreement or any of the other
Acquisition Documents in any way whatsoever in the event of any contact with
such customer employee (other than those employees expressly designated by
Seller to Buyer as members of its transaction team with respect to the
Acquisition Documents) not in violation of subsection (i) above.
5.09 Allocation of
Expenses.
(a) Allocation of Non-Tax
Operating Expenses. All utility charges, gas charges, electric
charges, water charges, water rents, sewer rents and Prepayments (including
lease expenses but excluding Taxes), if any, shall be apportioned between Buyer
and Seller as of the Closing Date, computed on the basis of the most recent
meter charges or, in the case of annual charges, on the basis of the established
fiscal year or other applicable time period to which the expenses
apply. Seller shall be responsible for the proportionate amount of
such operating expenses attributable to the period prior to the Effective Time
and Buyer shall be liable for the proportionate amount of such operating
expenses attributable to the period on and after the Effective
Time. Within 90 days after the Closing, Seller and Buyer shall
present a statement to the other setting forth the amount of reimbursement to
which each is entitled under this Section 5.09(a),
together with such supporting evidence as is reasonably necessary to calculate
the proration amount. Such prorated amount shall be paid by the Party
owing it to the other within 10 days after delivery of such
statement.
(b) Allocation of Property
Taxes. All real property taxes, personal property taxes and
similar ad valorem
obligations levied with respect to the Transferred Assets (the “Property Tax”) for a
taxable period that includes (but does not end on) the Closing Date shall be
apportioned between Seller and Buyer as of the Closing Date based on the number
of days of such taxable period included in the Pre-Closing Tax Period and the
number of days of such taxable period included in the Post-Closing Tax
Period. Seller shall be liable for the proportionate amount of such
Property Taxes that is attributable to the Pre-Closing Tax Period, and Buyer
shall be liable for the proportionate amount of such Property Taxes that is
attributable to the Post-Closing Tax Period. Seller shall notify
Buyer upon receipt of any bill for such Property Taxes relating to the
Transferred Assets, part or all of which are attributable to the Post-Closing
Tax Period, and shall promptly deliver such bill to Buyer who shall pay the same
to the appropriate taxing authority; provided, that if such bill
covers any part of the Pre-Closing Tax Period, Seller shall also remit prior to
the due date of such Property Taxes to Buyer payment for the proportionate
amount of such bill that is attributable to the Pre-Closing Tax
Period. In the event that either Seller or Buyer shall thereafter
make a payment for which it is entitled to reimbursement under this Section 5.09(b),
the other Party shall make such reimbursement promptly, but in no event later
than thirty days after the presentation of a statement setting forth the amount
of reimbursement to which the presenting Party is entitled along with such
supporting evidence as is reasonably necessary to calculate the amount of
reimbursement. Any payment required under this Section 5.09(b)
and not made when due shall bear interest at the rate of ten percent per
annum.
(c) Payment of
Taxes. Taxes described in Section 5.09(f) shall
be timely paid, and all applicable Tax Returns shall be filed, as provided by
Applicable Law. The paying party, if it is not the party responsible
for paying the Taxes under Section 5.09(f),
shall be entitled to reimbursement from the non-paying party to the extent the
paying party is not responsible for the payment of the Taxes under Section
5.09(f). Upon payment of such Tax, the paying party shall
present a statement to the non-paying party setting forth the amount of
reimbursement to which the paying party is entitled under Section 5.09(f), along with
such supporting evidence as is reasonably necessary to calculate the amount of
reimbursement. Any payment required under this Section 5.09(c) and
not made when due shall bear interest at the rate of ten percent per
annum
(d) Cooperation. As
to the Taxes that are subject to Section 5.09(b) and
Section 5.09(f)
from and after the Closing Date, the Parties hereto agree to furnish or cause to
be furnished to one another, upon request, as promptly as practicable, such
information and assistance relating to the Transferred Assets and the Business
as is reasonably necessary for the filing of all Tax Returns, the preparation
for any audit by any taxing authority, and the prosecution or defense of any
claim or Proceeding relating to any Tax Return. The Parties hereto
shall cooperate with each other in the conduct of any audit or other Proceeding
related to Taxes involving the Business and each shall execute and deliver such
powers of attorney and other documents as are necessary to carry out the intent
of this Section 5.09(d).
(e) Responsibility for Payment
of Taxes. Taxes attributable to the Transferred Assets or the
Business other than those treated specifically in Section 5.09(b) and
Section
5.09(f), shall be borne by the Party incurring such Taxes (other than
solely by reason of successor liability or similar provisions of law) under
Applicable Law, and each Party shall indemnify, defend and hold the other Party
harmless from and against all Taxes for which such Party is liable pursuant to
this Section 5.09(e). The
provisions of Section
5.09(c) regarding payment, verification, and interest shall apply to the
Taxes that are subject to this Section
5.09(e).
(f) Sales and Use
Taxes. All excise, value added, registration, stamp,
recording, documentary, conveyancing, transfer, sales, use and any other Taxes
arising out of the transfer of the Transferred Assets (the “Sales Tax”) shall be
determined as soon as possible after Closing based on the allocation described
in Section 5.10 and
shall be paid 100% by Buyer to the appropriate taxing
authority. Seller shall reimburse Buyer for 50% of any Sales Tax due
as a post-Closing adjustment to the Consideration. To the extent
permitted by Applicable Law, Buyer and Seller shall cooperate fully in
minimizing the Sales Tax. To the extent a taxing authority provides
notice to Seller of an audit of the Sales Tax, Seller shall immediately notify
Buyer and Buyer shall assume responsibility for such audit and shall pay when
due any additional Sales Tax ultimately assessed with respect to the
transactions contemplated by this Agreement. Upon notice from Buyer
of any additional amount due upon completion of such audit, Seller shall remit
to Buyer 50% of any such amount as an additional adjustment to the
Consideration. Buyer shall have authority to control, settle or
defend any proposed adjustment to the Sales Tax subject to Seller’s approval,
and Seller shall cooperate fully with Buyer, in its defense or settlement of any
proposed adjustment to the Sales Tax; provided that Buyer shall
promptly reimburse Seller for any out-of-pocket expenses Seller incurs in
connection with such cooperation.
(g) Taxes Imposed on
Consideration. All payments of Consideration shall be made at
the Closing free and clear without deduction for any and all present and future
Taxes or duties imposed by any Governmental Authority. In the event
that Buyer is prohibited by Applicable Law from making such payments unless such
deductions are made or withheld therefrom, then Buyer shall pay additional
amounts at the Closing as are necessary in order that the net Consideration
received by Seller, after such deduction or withholding, equals the amounts
which would have been received if such deduction or withholding had not
occurred. Buyer shall promptly furnish Seller with a copy of an
official Tax receipt or other appropriate evidence of any Taxes imposed on
payments made under this Agreement, including Taxes on any additional amounts
paid. In the event that such Taxes or duties are legally imposed
initially on Seller or Seller is later assessed by any Governmental Authority,
then Seller shall be promptly reimbursed by Buyer for such Taxes or duties plus
any interest and penalties suffered by Seller.
5.10 Allocation of
Consideration
. The
Consideration shall be allocated in accordance with Schedule 5.10
(as such allocation shall be determined prior to Closing and attached hereto
immediately prior to the Closing). Each of the Parties hereto agrees
to report the transactions contemplated hereby for state, federal and foreign
Tax purposes in accordance with such allocation of the
Consideration. Seller shall prepare Schedule 5.10
subject to Buyer’s approval, which approval shall not be unreasonably
withheld. The Parties shall treat all indemnification payments made
under this Agreement as an adjustment to the Consideration for applicable Tax
purposes, to the extent allowable under Applicable Law.
5.11 Accounts
Receivable.
(a) Following
the Closing: (i) if Buyer or any of its Subsidiaries receives any payment,
refund or other amount that is an Excluded Asset or is otherwise properly due
and owing to Seller or any of its Subsidiaries in accordance with the terms of
this Agreement or any other Acquisition Document including, without limitation,
any Seller Accounts Receivable, Buyer shall forward to Seller, or cause one of
its Subsidiaries to forward to Seller, immediately upon receipt thereof, such
amounts to Seller; and (ii) if Seller or any of its Subsidiaries receives any
payment, refund or other amount that is a Transferred Asset or is otherwise
properly due and owing to Buyer or any of its Subsidiaries in accordance with
the terms of this Agreement or any other Acquisition Document, including,
without limitation, any Buyer Accounts Receivable, Seller shall forward to
Buyer, or cause one of its Subsidiaries to forward to Buyer, immediately upon
receipt thereof, such amounts to Buyer.
(b) In
determining whether a payment received by either Party is a payment of an
Account Receivable of Seller or Buyer, the receiving Party may rely on any
invoice or contract number referred to on the payment or in correspondence
accompanying such payment. To the extent any payment, refund or other
amount received by Seller or Buyer from a customer or other account debtor does
not specify which outstanding invoice or receivable it is in payment of, such
payment shall be applied to the earliest invoice outstanding with respect to
indebtedness of such customer or other account debtor, except for those invoices
which are subject to a dispute to the extent of such
dispute. Following the Closing, Buyer will provide such cooperation
as Seller shall reasonably request, at Seller’s expense, in connection with
Seller’s collection of outstanding Seller Accounts Receivable.
(c) Following
the Closing, the Parties shall cooperate in promptly advising customers to
direct to the appropriate Party any future payments by such
customers.
5.12 Accounts
Payable
. Unless
otherwise set forth in the Transition Services Agreement, to the extent that
Buyer receives any invoices for Seller Accounts Payable or statements evidencing
amounts owed by Seller or any of its Subsidiaries to another Person, Buyer will
promptly deliver such documents to Seller. To the extent that Seller
receives any invoices for Buyer Accounts Payable or statements evidencing
amounts owed by Buyer to another Person, Seller will promptly deliver such
documents to Buyer.
5.13 Bulk Sales
Laws
. The
Parties agree to waive the applicability of any provisions of any bulk sales
laws in any jurisdiction.
5.14 Operation of the Business
Prior to
Closing
. Between
the date of this Agreement and the Closing Date, except as contemplated in this
Agreement, any of the other Acquisition Documents or as set forth in Schedule 5.14, or
unless Buyer shall otherwise agree in writing (which consent shall not be
unreasonably withheld or delayed), Seller shall use commercially reasonable
efforts to:
(a) operate
the Business in the ordinary course of business in all material
respects;
(b) maintain
the tangible assets that are Transferred Assets as a whole in all material
respects in at least as good condition as they are being maintained on the date
hereof, subject to normal wear and tear;
(c) (i) not
sell, assign, license or transfer any of the Transferred Assets, except
transfers of immaterial Transferred Assets, sales of Business Inventory in the
ordinary course of business and licenses of the Transferred Assets pursuant to
non-exclusive licenses with third parties in the ordinary course of business and
(ii) not permit any of the Transferred Assets to be subjected to any Lien, other
than the Permitted Liens;
(d) not fail
to pay or discharge when due any Liability of which the failure to pay or
discharge would cause any material damage or loss to the Transferred Assets,
taken as a whole;
(e) not amend
any material term of or terminate any material Transferred Contract, other than
in the ordinary course of business;
(f) not
initiate any Proceeding that relates exclusively to the Transferred
Assets;
(g) not make
any material change in its accounting principles, methods or practices as they
relate to the manner in which Seller keeps its accounting books and records
relating to the Business, except for (i) any such change required by a change in
GAAP or (ii) any change resulting from the preparation or audit of the Business
Financial Statements;
(h) not grant
to any Business Employee any increase in compensation or in severance or
termination pay, grant any severance or termination pay, or enter into any
employment deferred compensation agreement or any similar agreement with any
such employee, except as may be (i) required under Applicable Law, Seller’s
termination policy (whether existing as of the date hereof or adopted hereafter)
or any employment or termination agreement in effect on the date hereof or (ii)
in the ordinary course of business; and
(i) not enter
into any agreement to take any action that would violate in any material respect
any of the foregoing.
5.15 Employees
Matters.
(a) Employment
Offers. Subject to Applicable Law, Buyer may make offers of
employment to each Business Employee to be effective as of the Closing or on
such other date as may be agreed by the Parties. The offers of
employment for each such Business Employee to whom Buyer makes an offer will (i)
include employment terms that are substantially similar to terms offered to
similarly situated employees of Buyer, and (ii) supersede any prior agreements
with the Seller regarding the terms and conditions of employment with such
Business Employee as in effect prior to the Closing Date; provided, however, that in no event
shall any prior agreement with respect to Intellectual Property be superseded,
except that all Transferred Employees shall be permitted to disclose to Buyer
all information in their possession or otherwise known by them that relate
directly to the Business and not related to Patents or confidential information
of Seller. Buyer shall be responsible for all liabilities, salaries,
benefits and similar employer obligations that arise after Closing under Buyer’s
compensation and benefit plans and policies for all Transferred Employees or
pursuant to Section
2.03(c). In particular, Buyer shall be responsible for
liabilities with respect to the termination of any Transferred Employees by
Buyer after the Closing, including health care continuation coverage with
respect to plans established or maintained by Buyer after the Closing to the
extent that the Transferred Employees participate therein, and damages or
settlements arising out of any claims of wrongful or illegal termination by
Buyer following the Closing, and for complying with the requirements of all
Applicable Laws with respect to any such termination by Buyer after the
Closing. Seller shall be solely responsible for (i) any
Liabilities or obligations with respect to the Business Employees including the
Transferred Employees, that arise prior to the Closing, (ii) any liabilities or
obligations with respect to any Business Employees who do not become Transferred
Employees, and (iii) subject to Section 2.03(c),
any liabilities or obligations with respect to Transferred Employees under the
Employee Plans or the Employee Agreements that arise following the
Closing.
(b) Employee Information and
Access. Seller hereby agrees to use its commercially
reasonable efforts, and to cause each Subsidiary of Seller to use its
commercially reasonable efforts, to assist Buyer in making offers to the
Business Employees, including providing Buyer with access to such Business
Employees during the period from the date of this Agreement until Closing, provided that such access
does not unreasonably interfere with the performance of such Business Employees’
duties. Seller
agrees to provide to Buyer certain general information concerning Seller’s
compensation and benefit programs and specific information relating to
individual Business Employees, subject to Applicable Law and, to the extent
required, any such employee’s proper consent, solely for the purpose of Buyer
formulating offers of employment to such employees; provided, however, that Seller will not
make personnel records available for inspection or copying.
5.16 Non-Compete
Agreement.
(a) Beginning
on the Closing Date and ending on the one-year anniversary of the Closing Date,
Seller shall not directly or through any of its Subsidiaries, without the prior
written consent of Buyer, engage in a Competitive Business Activity anywhere in
the world except as may be contemplated by this Agreement or any of the other
Ancillary Agreements. The foregoing shall not prohibit Seller from
making an investment in any Person engaged in Competitive Business Activities or
from acquiring a Person or engaging in a divestiture transaction with any Person
that derives all or a portion of its revenue from Competitive Business
Activities.
(b) The
covenants contained in Section 5.16(a) shall
be construed as a series of separate covenants, one for each country, province,
state, city or other political subdivision of the world. Except for
geographic coverage, each such separate covenant shall be deemed identical in
terms to the covenant contained in Section
5.16(a). If, in any judicial proceeding, a court refuses to
enforce any of such separate covenants (or any part thereof), then such
unenforceable covenant (or such part) shall be eliminated from this Agreement to
the extent necessary to permit the remaining separate covenants (or portions
thereof) to be enforced. In the event that the provisions of Section 5.16(a) are
deemed to exceed the time, geographic or scope limitations permitted by
applicable law, then such provisions shall be reformed to the maximum time,
geographic or scope limitations, as the case may be, permitted by Applicable
Laws.
(c) Seller
shall not be deemed to be in breach of Section 5.16(a)
unless and until Buyer provides notice to Seller of the operations of Seller
that Buyer believes constitute a violation of Section 5.16(a) and a
period of 90 days following receipt of such notice has expired without
resolution by the Parties. Such notice shall specify in reasonable
detail the basis for such alleged breach. The senior management of
the Parties shall meet and attempt in good faith to negotiate a resolution of
such dispute. If the Parties resolve their dispute or Seller either
ceases or divests itself of the Competitive Business Activity within the 90 day
notice period, or within 180 days following the good faith determination of the
Parties that such dispute cannot be resolved, Seller shall not be deemed to have
been in violation of Section
5.16(a).
(d) Notwithstanding
any other clause of this Agreement to the contrary, Buyer agrees that monetary
damages shall be the sole remedy in the event that any of the provisions of
Section 5.16(a)
are not performed in accordance with their specific terms or are otherwise
breached, regardless of whether such non-performance or breach by Seller is
willful, and no other legal or equitable relief or remedy, including injunctive
relief to prevent breaches of Section 5.16(a)
of this Agreement, or to enforce specifically the terms and provisions of Section 5.16(a)
of this Agreement shall be available from any Governmental
Authority.
(e) The
activities of Seller and its Affiliates pursuant to and permitted by any of the
other Acquisition Documents shall not constitute Competitive Business Activity
nor otherwise violate the covenants and agreements of the Parties in this
Agreement.
5.17 Non-Solicitation
Agreements.
(a) Following
the Closing, Buyer agrees that it shall not directly or indirectly (through
its Subsidiaries or any of Buyer’s or its Subsidiaries respective
officers, directors, employees or other agents) solicit for employment any
person who is employed, contracted or engaged by Seller or any of its
Subsidiaries (except if such person is otherwise subject to a Seller
redeployment employee action or a Seller Voluntary Separation Program) until the
date that is one year after the Closing Date (or, if this Agreement is
terminated prior to Closing, until the date that is one year after the date of
such termination), nor shall it directly or indirectly induce any person to
breach any contractual agreement(s) that they may have with Seller or any of its
Subsidiaries, unless Seller consents in writing thereto.
(b) Seller
agrees that it shall not directly or indirectly (through its officers,
directors, employees or other agents) solicit for employment any of the
Transferred Employees until the date that is one year after the Closing Date,
nor shall it directly or indirectly induce any person to breach any contractual
agreement(s) that they may have with Buyer or any of its Subsidiaries, unless
Buyer consents in writing thereto. Following the Closing, Seller
agrees that its Embedded and Communications Group (the “Selling Group”) will
not directly or indirectly, solicit for employment any employee of Buyer or its
Subsidiaries who became known to the Selling Group in connection with its
consideration of the transactions contemplated by this Agreement until the date
that is one year after the Closing Date, nor shall it directly or indirectly
induce any person to breach any contractual agreement(s) that they may have with
Buyer or any of its Subsidiaries, unless Buyer consents in writing
thereto.
(c) The
parties hereto acknowledge and agree that general postings or advertisements of
job openings and the retention of search firms to assist in filling open job
requisitions shall not be deemed to be a violation of the provisions of this
Section
5.17.
5.18 Protection of
Privacy
. The
data related to customers of the Business which is included in the Transferred
Assets (the “Customer
Data”) has
been collected by Seller over the internet under the conditions set forth in the
Seller Privacy Policy attached as Schedule 5.18 to this
Agreement (the “Privacy Policy”) and
is transferred to Buyer subject to the obligations set forth in the Privacy
Policy. Buyer covenants and agrees that it will not use the Customer
Data in any manner that conflicts with the terms of the Privacy Policy and
agrees to indemnify and hold Seller harmless from any third party claim arising
out of Buyer’s use or misuse of the Customer Data.
5.19 Business Financial
Statements
. Seller
shall use commercially reasonable efforts to provide Buyer on or before May 7,
2008, at Seller’s expense, with a single audited statement of assets to be
acquired and liabilities to be assumed of both the Business and of the Lassen
Business as of December 30, 2006 and December 29, 2007 and a single statement of
net revenues and direct expenses of both the Business and the Lassen Business
for the fiscal years ended December 31, 2005, December 30, 2006 and December 29,
2007 (collectively, “Business Financial
Statements”). Effective as of the Closing Date, the parties
agree that the provisions of Section 5.19 of the Lassen Purchase Agreement shall
be of no further force and effect and Seller shall have no obligations
thereunder.
5.20 Export
Compliance
. From
and after the Closing Date, Buyer and each of its Subsidiaries shall comply at
its own expense with all conditions and requirements imposed on Buyer or such
Subsidiary by applicable U.S. Export Administration Regulations and such other
similar regulations that are imposed on the Transferred Assets. Buyer
agrees that it will not export, either directly or indirectly, through any of
its Subsidiaries or otherwise, any Product or associated technology or systems
incorporating such Product without first obtaining any required license or other
approval from the appropriate host Governmental Authority with appropriate
authority.
5.21 Confidentiality.
(a) The
information contained herein, in schedules to this Agreement and the Seller
Disclosure Letter and delivered to Buyer or its authorized representatives
pursuant hereto shall be subject to the Confidentiality Agreement as
Confidential Information (as defined in the Confidentiality Agreement) of Seller
until the Closing and, for that purpose and to that extent, the terms of the
Confidentiality Agreement are incorporated herein by reference. All
obligations of Buyer under the Confidentiality Agreement in respect of the
Transferred Assets shall terminate simultaneously with the Closing.
(b) From and
after the Closing, any and all non-public information included in the
Transferred Assets or the Assumed Liabilities shall be shall be subject to the
Confidentiality Agreement as Confidential Information (as defined in the
Confidentiality Agreement) of Buyer and Buyer shall be deemed the disclosing
party with respect to such information under the Confidentiality
Agreement. For that purpose and to that extent, the terms of the
Confidentiality Agreement are incorporated herein by reference.
(c) Notwithstanding
the foregoing, nothing herein shall restrict Seller or Buyer, any of their
respective Affiliates or any of their respective representatives, as applicable,
from using or disclosing any Confidential Information (i) to the extent that
such disclosure is required by Applicable Law, provided, however, that
Seller, Buyer, any of its Affiliates or any of their respective representatives,
as applicable, promptly notifies the disclosing party of such requirement in
order that the disclosing party may seek an appropriate protective or similar
order or (ii) in connection with any proceeding before or filed with, or other
disclosure made to, a court, arbitration tribunal or mediation service to
enforce any of a Party’s rights arising in connection with the termination of
this Agreement.
5.22 Availability of Information;
Registration Statement
. With
respect to the Share Consideration, (i) until the first anniversary of the
Closing Date, Buyer shall make publicly available the information required by
Rule 144(c)(1) under the Securities Act and (ii) in the event that Buyer files a
registration statement registering shares of Buyer Common Stock other than under
the Buyer Registration Rights Agreement (other than a registration statement
relating to a business combination or employee benefit plan) before the date
that is six months following the Closing Date, if requested by Seller, Buyer
shall use commercially reasonable efforts to include the Share Consideration in
such registration statement and Buyer and Seller shall negotiate in good faith
the terms of such inclusion; provided, however, that Buyer
shall not be required to include the Share Consideration in such registration
statement for an underwritten offering if the managing underwriter for such
underwritten offering advises Buyer that that marketing factors require a
limitation of the number of securities to be underwritten.
5.23 Lease
. Seller
is a party to a lease agreement dated as of April 14, 2000, as such lease has
been amended from time to time (the “Seller Lease”) with
ProLogis Limited Partnership I (“Landlord”) with
respect to the property at (i) 8678 Thornton Avenue, Building A, Newark, CA
94560 (“Newark
Facility TB2”) and (ii) 8674 Thornton Avenue, Building 2, Newark CA 94560
(“Newark Facility
TB1”).
(a) Buyer
shall use commercially reasonable efforts to enter into a new lease, on terms
and conditions acceptable to Buyer in its sole discretion, as soon as
practicable after the date of this Agreement with respect to Newark Facility TB1
and Newark Facility TB2. Such lease shall provide for termination of
the Seller Lease with respect to Newark Facility TB1 and Newark Facility TB2 as
of the effective date of the Buyer’s lease without any further obligation or
payment by Seller with respect to Newark Facility TB1 and Newark Facility TB2,
including a full release by the Landlord of Seller from Seller’s obligation to
remove Tenant Made Alterations, Trade Fixtures and any leasehold improvements to
the Original Premises (the “Removal Costs”) (any
such lease, the “Buyer
Lease”). Such Buyer Lease may be executed in connection with
or combined with the Buyer Lease that Buyer expects to execute pursuant to the
Lassen Purchase Agreement.
(b) Only in
the event that Buyer executes and delivers a Buyer Lease with Landlord prior to
April 30, 2008, Seller shall transfer to Buyer all of Seller’s right, title and
interest in the assets listed on Schedule 5.23 (the
“Facility
Assets”). If the Buyer executes and delivers a Buyer Lease
with Landlord prior to the Closing Date, Seller shall deliver to Buyer at
Closing a Bill of Sale transferring all of Seller’s right, title and interest to
the Facility Assets to Buyer as of such date and Buyer shall deliver to Seller a
fully executed Buyer Lease.
5.24 Continuity of Services by
Foxconn. Seller shall use commercially reasonable efforts to
encourage Hon Hai Precision Industry Co Ltd (“Foxconn”) to continue
to provide to Buyer supply and manufacturing services in connection with the
Transferred Assets on terms and conditions, including pricing, substantially
similar to those services it provided to Seller in connection with the Business
until the earlier of (a) Buyer’s execution of a new agreement with Foxconn,
or (b) the expiration or termination of the manufacturing-related services in
the Transition Services Agreement.
5.25 Lockup. Until
the Lockup Termination Date, Seller may not sell, offer to sell, enter into any
contract or agreement to sell, hypothecate, pledge, grant any option to
purchase, make any "short sale" or otherwise dispose of or agree to dispose of,
directly or indirectly, any securities of Buyer issued to Seller as Share
Consideration pursuant to this Agreement, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the SEC promulgated
thereunder, with respect to any securities of Buyer issued to Seller as Share
Consideration pursuant to this Agreement and owned by Seller (including holding
as a custodian) or with respect to which Seller has beneficial
ownership within the rules and regulations of the SEC, in each case, or enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of any securities of Buyer
issued to Seller as Share Consideration pursuant to this
Agreement. "Short sales" for
purposes of this paragraph shall have the meaning as defined in Rule 200 of
Regulation SHO adopted under the Exchange Act and all types of direct
and indirect stock pledges forward sale contracts, options, puts, calls, short
sales, swaps and similar arrangements (including on a total return basis), and
sales and other transactions through non-US broker-dealers or foreign regulated
brokers having the effect of hedging the securities of Buyer. The
"Lockup Termination
Date" means the earlier of (i) the date that is 45 days after the
Registration Statement on Form S-1 filed by Buyer with the SEC on March 13, 2008
is declared effective by the SEC and (ii) the date that is 45 days after the
date as of which all Registrable Securities covered by such Registration
Statement may be sold without restriction by any Person that is not an Affiliate
of Buyer pursuant to Rule 144 (or any successor thereto) promulgated under the
Securities Act. For the avoidance of doubt, this Section 5.25 shall
apply only to the shares of Buyer Common Stock issued to Seller as Share
Consideration pursuant to this Agreement. This Section 5.25 shall not
apply to shares of Buyer Common Stock issued to Seller as Stock Consideration
under the Lassen Purchase Agreement or to shares of Buyer Common Stock acquired
by Seller in the open market or otherwise from a party other than Buyer and its
Affiliates. Seller agrees that a legend with respect to the
restrictions set forth in this Section 5.25 shall be placed on all certificates
representing the Share Consideration issued to Seller pursuant to this
Agreement.
ARTICLE
VI
CONDITIONS
TO CLOSING
. The
obligations of Buyer to consummate the Closing are subject to the satisfaction
or waiver by Buyer of each of the following conditions (it being understood that
each such condition is solely for the benefit of Buyer and may be waived by
Buyer in its sole discretion without notice or liability to any
Person):
(a) Performance by
Seller. (i) Seller shall have performed and satisfied in
all material respects its obligations hereunder required to the extent required
to be performed and satisfied by it on or prior to the Closing Date,
(ii) the representations and warranties of Seller contained herein, as the
same may be amended pursuant to Section 5.02 or Section 9.03, shall
be true and correct in all respects at and as of the Closing as if made as of
the Closing Date, other than representations and warranties which address
matters only as of a certain date which shall have been true and correct in all
respects as of such certain date and except, in any case, (disregarding for
these purposes any exception set forth in such representations and warranties
relating to materiality or a Seller Material Adverse Effect) for failures of
such representations and warranties to be true and correct that have not had and
would not reasonably be expected to have a Seller Material Adverse Effect, and
(iii) Buyer shall have received a certificate signed by a duly authorized
executive officer of Seller to the foregoing effect.
(b) No
Violation. No Governmental Authority shall have enacted,
issued, promulgated or entered any Applicable Law which is in effect on the
Closing Date which has or would have the effect of prohibiting, restraining or
enjoining the consummation of the transactions contemplated by this
Agreement. No temporary restraining order, preliminary or permanent
injunction, cease and desist order or other order issued by any court or other
Governmental Authority that has the effect of making the transactions
contemplated hereby illegal or otherwise prohibiting consummation of the
transfers contemplated hereby or the consummation of the Closing, or imposing
upon Buyer material fines or penalties in respect thereof, shall be in effect as
of the Closing Date, and there shall be no pending or threatened actions or
proceedings by any Governmental Authority (or determinations by any Governmental
Authority) challenging or in any manner seeking to prohibit the transfer
contemplated hereby or the consummation of the Closing.
(c) Closing
Documents. Seller shall have executed and delivered to Buyer
all Ancillary Agreements and each of the other documents required to be
delivered by Seller in accordance with Section
2.07.
6.02 Conditions to Obligations of
Seller
. The
obligations of Seller to consummate the Closing are subject to the satisfaction
or waiver by Seller of each of the following conditions (it being understood
that each such condition is solely for the benefit of Seller and may be waived
by Seller in its sole discretion without notice or liability to any
Person):
(a) Performance by
Buyer. (i) Buyer shall have performed and satisfied in
all material respects its obligations hereunder required to the extent required
to be performed and satisfied by it on or prior to the Closing Date,
(ii) the representations and warranties of Buyer contained herein shall be
true and correct in all respects at and as of the Closing as if made as of the
Closing Date, other than representations and warranties which address matters
only as of a certain date which shall have been true and correct in all respects
as of such certain date and except, in any case, (disregarding for these
purposes any exception in such representations and warranties relating to
materiality or a Buyer Material Adverse Effect) for failures of such
representations and warranties to be true and correct that have not had and
would not reasonably be expected to have a Buyer Material Adverse Effect, and
(iii) Seller shall have received a certificate signed by a duly authorized
executive officer of Buyer to the foregoing effect.
(b) No
Violation. No Governmental Authority shall have enacted,
issued, promulgated or entered any Applicable Law which is in effect on the
Closing Date which has or would have the effect of prohibiting, restraining or
enjoining the consummation of the transactions contemplated by this
Agreement. No temporary restraining order, preliminary or permanent
injunction, cease and desist order or other order issued by any court or other
Governmental Authority that has the effect of making the transactions
contemplated hereby illegal or otherwise prohibiting consummation of the
transfers contemplated hereby or the consummation of the Closing, or imposing
upon Seller material fines or penalties in respect thereof, shall be in effect
as of the Closing Date, and there shall be no pending or threatened actions or
proceedings by any Governmental Authority (or determinations by any Governmental
Authority) challenging or in any manner seeking to prohibit the transfer
contemplated hereby or the consummation of the Closing.
(c) Closing
Documents. Buyer shall have executed and delivered to Seller
all Ancillary Agreements and each of the other documents required to be
delivered by Buyer in accordance with Section 2.07.
ARTICLE
VII
INDEMNIFICATION
7.01 General
Survival
. The
Parties agree that, regardless of any investigation made by the Parties, the
representations and warranties and the indemnification obligations with respect
to the representations and warranties of the Parties contained in this Agreement
shall survive for a period beginning on the date hereof and ending at 5:00 p.m.,
California time, on the date that is 12 months after the Closing
Date. Upon the expiration of the indemnification period for a
representation or warranty pursuant to this Section 7.01, unless
written notice of a claim based on such representation or warranty specifying in
reasonable detail the facts on which the claim is based shall have been
delivered to the Indemnitor prior to the expiration of such representation or
warranty, such representation or warranty shall be deemed to be of no further
force or effect, as if never made, and no action may be brought based on the
same, whether for indemnification, breach of contract, tort or under any other
legal theory. If written notice of a claim based on a representation
or warranty as described in the prior sentence shall have been delivered to the
Indemnitor prior to the date that is 12 months after the Closing Date, then such
representation or warranty described in such notice shall survive until the
related claim for indemnification has been resolved in accordance with this
Article
VII. All covenants and agreements of the Parties set forth in
this Agreement with respect to the actions of the Parties following the Closing
shall survive indefinitely to the extent necessary to give effect to their
terms.
7.02 Indemnification.
(a) Indemnification Provisions
for Buyer. Subject to the provisions of Section 7.01,
from and after the Closing Date, Buyer and its Affiliates, officers, directors,
stockholders, employees, representatives and agents (collectively the “Buyer Indemnitees”)
shall be indemnified and held harmless by Seller from and against and in respect
of any and all Losses incurred by any Buyer Indemnitee arising out of or
resulting from:
(i)
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any
inaccuracy in or breach of any of Seller’s representations or warranties
contained in this Agreement;
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(ii)
|
any
misrepresentation contained in any certificate furnished to Buyer by
Seller pursuant to Section 2.07(e)
or Section
6.01(a);
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(iii)
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any
breach of any covenant made or to be performed by Seller pursuant to this
Agreement;
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(iv)
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any
failure of Seller to satisfy any Excluded Liabilities;
and
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(v)
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any
Taxes or expenses required to be paid by Seller under this
Agreement.
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(b) Indemnification Provisions
for Seller. Subject to the provisions of Section 7.01, from
and after the Closing Date, Seller and their Affiliates, officers, directors,
stockholders, employees, representatives and agents (collectively, the “Seller Indemnitees”)
shall be indemnified and held harmless by Buyer from and against and in respect
of any and all Losses incurred by any Seller Indemnitee arising out of or
resulting from:
(i)
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any
inaccuracy in or breach of any of Buyer’s representations or warranties,
contained in this Agreement;
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(ii)
|
any
misrepresentation contained in any certificate furnished to Seller by
Buyer pursuant to Section 2.07(f)
or Section
6.02(a);
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(iii)
|
any
breach of covenant made or to be performed by Buyer pursuant to this
Agreement;
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(iv)
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any
failure of Buyer to satisfy any Assumed Liabilities and any Liabilities
arising from or relating to the Transferred Assets and arising subsequent
to the Closing; and
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(v)
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any
Taxes or expenses required to be paid by Buyer under this
Agreement.
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(c) For
purposes of this Agreement, the term “Indemnitee” shall mean either
Buyer Indemnitee or a Seller Indemnitee, as the case may be, and the term “Indemnitor” shall
mean either Buyer Indemnitor or a Seller Indemnitor, as the case may
be.
(d) For
purposes of this Agreement, the term, “Losses” means any and
all deficiencies, judgments, settlements, demands, claims, suits, actions or
causes of action, proceedings, assessments, liabilities, losses, Taxes, damages
(excluding indirect, incidental or consequential damages), interest, fines,
penalties, costs, fees and expenses (including reasonable court, legal,
accounting and other costs and expenses) incurred in connection with
investigating, defending, settling or satisfying any and all demands, claims,
actions, causes of action, suits, proceedings, assessments, judgments or
appeals, and in seeking indemnification therefor. Notwithstanding the
above, Losses shall not include expenses incurred in connection with
investigations except in connection with claims made by a third party against
the Indemnitee.
(e) No Buyer
Indemnitee shall be entitled to indemnification for any Losses covered by Sections 7.02(a)(i) or
(ii) until the aggregate amount of all such Losses of the Buyer
Indemnitees shall exceed $350,000 (the “Basket”), at which
time all such Losses incurred by the Buyer Indemnitees shall be subject to
indemnification by the relevant Indemnitor hereunder (subject to the limitations
set forth in this Agreement). The Basket shall not apply to Losses
covered by Sections
7.02(a)(iii)-(v) or that result from fraud. No Seller
Indemnitee shall be entitled to indemnification for any Losses covered by Section 7.02(b)(i) or
(ii) until the aggregate amount of all such Losses of the Seller
Indemnitees shall exceed the Basket, at which time all such Losses incurred by
the Seller Indemnitees shall be subject to indemnification by the relevant
Indemnitor hereunder (subject to the limitations set forth in this
Agreement). The Basket shall not apply to Losses covered by Sections
7.02(b)(iii)-(v) or that result from fraud.
(f) The
amount of any Losses otherwise recoverable under this Section 7.02
shall be reduced by (i) any amounts to which the Indemnitees actually receive
under insurance policies, the Parties hereby acknowledging and agreeing that
prior to asserting any Indemnification Claim, the Indemnitee must first seek
reimbursement for any and all Losses from any applicable insurance coverage (and
that any compensation provided under this Agreement is not to be deemed
insurance for any purpose); and (ii) any Tax adjustments, benefits, savings or
reductions actually realized by the Indemnitee, provided that no Indemnitee
shall be required to actually realize any such Tax adjustments, benefits,
savings or reductions before making a claim pursuant to this Article
VII.
7.03 Manner of
Indemnification.
(a) Each
indemnification claim shall be made only in accordance with this Article VII.
(b) If an
Indemnitee wishes to make a claim for Losses under Article VII of
this Agreement, Indemnitee shall deliver a written notice (a “Notice of Claim”) to
the applicable Indemnitor promptly after becoming aware of the facts giving rise
to such claim. The Notice of Claim shall (i) specify in
reasonable detail the nature of the claim being made, and (ii) state the
aggregate dollar amount of such claim (or a reasonable and good faith estimate
of such aggregate dollar amount if the actual aggregate dollar amount is not
known).
(c) Following
receipt by Indemnitor of a Notice of Claim, the Parties shall promptly meet to
agree on the rights of the respective Parties with respect to each of such
claims. If the Parties should so agree, a memorandum setting forth
such agreement shall be prepared and signed by both Parties and amounts agreed
upon shall be promptly paid. Any dispute between the Parties that
remains unresolved after ten Business Days following the delivery of a Notice of
Claim shall be resolved in accordance with Section 9.12 and
Section 9.13
and the other applicable provisions of this Agreement.
7.04 Third-Party
Claims
. If
an Indemnitee becomes aware of a claim of a third party (including for all
purposes of this Section 7.04, any
Governmental Authority) (a “Third Party Action”)
that such Indemnitee believes, in good faith, may result in a claim by it
against an Indemnitor, such Indemnitee shall notify the applicable Indemnitor of
such claim as promptly as practicable, provided, however, that the failure to
so notify the Indemnitor shall not affect rights to indemnification hereunder
except to the extent that the Indemnitor is materially prejudiced by such
failure. The Indemnitor shall have the right to assume and conduct
the defense of such claim; provided, however, that Indemnitor may
not assume control of the defense of any Third Party Action if (i) the Third
Party Action seeks injunctive relief against the Indemnitee but not against the
Indemnitor or (ii) if the Losses of Indemnitee in respect of claims subject to
the Indemnification Cap in such Third Party Action would reasonably be expected
to be in excess of the Indemnification Cap . The Indemnitor shall
conduct such defense in a commercially reasonable manner at its own expense, and
shall be authorized to settle any such claim without the consent of the
Indemnitee; provided,
however, that: (a) the Indemnitor shall not be authorized to encumber any
assets of the Indemnitee or agree to any restriction that would apply to the
Indemnitee or the conduct of the Indemnitee’s business; (b) the Indemnitor shall
have paid or caused to be paid any amounts arising out of such settlement; and
(c) a condition to any such settlement shall be a complete release of the
Indemnitee with respect to such third party claim. The Indemnitee
shall be entitled to participate in (but not control, except as set forth in the
proviso to the second sentence of this Section 7.04) the defense of any Third
Party Action with its own counsel and at its own expense. The
Indemnitee shall cooperate fully with the Indemnitor in the defense of any Third
Party Action. If the Indemnitor chooses not to assume the defense of
any Third Party Action in accordance with the provisions hereof, the Indemnitee
may defend such Third Party Action in a commercially reasonable manner and may
settle such Third Party Action after giving written notice of the terms thereof
to the Indemnitor. If the Indemnitor may not assume the control of
the defense of a Third Party Action pursuant to the proviso to the second
sentence of this Section 7.04, (x) the Indemnitee shall conduct such defense in
a commercially reasonable manner at its own expense, and shall not settle any
such claim without the consent of the Indemnitor (which shall not be
unreasonably withheld) unless (a) the Indemnitee shall not be authorized to
encumber any assets of the Indemnitor or agree to any restriction that would
apply to the Indemnitor or the conduct of the Indemnitor’s business; (b) the
Indemnitee shall have paid or caused to be paid any amounts arising out of such
settlement and Indemnitor shall not be liable to any Indemnitee or any other
Person for any such amounts; and (c) a condition to any such settlement shall be
a complete release of the Indemnitor with respect to such third party claim and
(y) the Indemnitor shall be entitled to participate in such Third Party Action
with its own counsel and at its own expense.
7.05 Exclusive
Remedy
.
(a) Notwithstanding
any other provision of this Agreement to the contrary, except for Losses that
result from fraud, the provisions of this Article VII shall be
the sole and exclusive remedy for monetary damages of the Indemnitees from and
after the Closing Date for any Losses arising under this Agreement or relating
to the transactions contemplated by this Agreement, including claims of breach
of any representation, warranty or covenant in this Agreement; provided, however, that the
foregoing clause of this sentence shall not be deemed a waiver by any Party of
any right to specific performance or injunctive relief but shall be deemed a
waiver of any rights of rescission. Except as set forth in Section
9.14, no Indemnitee’s rights under this Article VII shall be adversely affected
by any investigation conducted, or any knowledge acquired by such Indemnitee at
any time after the execution and delivery of this Agreement.
(b) Notwithstanding
any other provision of this Agreement, the maximum aggregate liability of Seller
to the Buyer Indemnitees pursuant to this Article VII or
otherwise under this Agreement, Applicable Law or otherwise shall be limited to
$3,500,000(the “Indemnification
Cap”), provided,
however, that the Indemnification Cap shall not apply to Losses to
covered by Sections
7.02(a)(iv)-(v); and provided, further, only if the
Indemnification Cap is reached with respect to Losses of Buyer Indemnitees based
on claims for Losses based on breach by Seller of representations, warranties or
covenants other than Section 3.13, then
Buyer Indemnitees shall be entitled to make claims for Losses based on breach by
Seller of the representation and warranty set forth in Section 3.13 up to an
additional amount equal to the Indemnification Cap. Notwithstanding
any other provision of this Agreement, the maximum aggregate liability of Buyer
to the Seller Indemnitees pursuant to this Article VII or
otherwise under this Agreement, Applicable Law or otherwise shall be limited to
the Indemnification
Cap, provided,
however, that the Indemnification Cap shall not apply to Losses to
covered by Sections
7.02(b)(iv)-(v).
(c) Nothing
in this Agreement limits or otherwise affects in any way the rights and remedies
of either Party with respect to causes of action arising under the Intellectual
Property Agreement and the Transition Services Agreement, or any rights and
remedies of Seller or Buyer vis-à-vis any Person other than Seller or Buyer or
their respective Affiliates with respect to any infringement or misappropriation
of any Intellectual Property of Seller or Buyer, as the case may be (including
any right of Seller or Buyer to seek equitable or injunctive relief in
connection therewith), all of which rights and remedies are expressly
reserved.
7.06 Subrogation
. If
an Indemnitor makes any payment under this Article VII in
respect of any Losses, such Indemnitor shall be subrogated, to the extent of
such payment, to the rights of the Indemnitee against any insurer or third party
with respect to such Losses; provided, however, that such
Indemnitor shall not have any rights of subrogation with respect to the other
Party hereto or any of its Affiliates or any of its or its Affiliates’ officers,
directors, agents or employees.
7.07 Damages
. Notwithstanding
anything to the contrary elsewhere in this Agreement or any other Acquisition
Document, no Party (or its Affiliates) shall, in any event, be liable to the
other Party (or its Affiliates) for any indirect, incidental, punitive or
consequential damages, including, but not limited to, loss of revenue or income,
cost of capital, or loss of business reputation or opportunity relating to the
breach or alleged breach of this Agreement. Each Party agrees that it
will not seek punitive damages as to any matter under, relating to or arising
out of the transactions contemplated by this Agreement or the other Acquisition
Documents. The Parties agree that indirect, incidental, punitive or
consequential damages awarded to a third party by a court of competent
jurisdiction in a Third Party Action which a Party is obligated to pay to such
third party shall be deemed actual Losses of such Party.
ARTICLE
VIII
TERMINATION
8.01 Grounds for
Termination
. This
Agreement may be terminated at any time prior to the Closing:
(a) by mutual
written agreement of the Parties;
(b) by
written notice from either Buyer or Seller to the other if:
(i)
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the
Closing has not been effected on or prior to the close of business on
April 25, 2008 (the “Termination
Date”); provided,
however, that the right to terminate this Agreement pursuant to
this Section
8.01(b)(i) shall not be available to any Party whose failure to
fulfill any of its obligations contained in this Agreement has been the
cause of, or resulted in, the failure of the Closing to have occurred on
or prior to the aforesaid date;
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(ii)
|
any
Applicable Law shall be enacted or become applicable that makes the
transactions contemplated hereby or the consummation of the Closing
illegal or otherwise prohibited;
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(iii)
|
any
judgment, injunction, order or decree enjoining either party hereto from
consummating the transactions contemplated hereby is entered, and such
judgment, injunction, order or decree shall become final and
nonappealable;
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(iv)
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such
Party is not in material breach of its obligations under this Agreement
and the other Party is in material breach or material default of any
representation, warranty, covenant, or agreement contained herein or there
are any inaccuracies or misrepresentations in the other party’s
representations or warranties which have had, or if not cured prior to the
Closing Date would reasonably be expected to have, a Seller Material
Adverse Effect or Buyer Material Adverse Effect, as the case may be, and
such breach, default, misrepresentation or inaccuracy shall not be cured
or waived within 20 Business Days after written notice is delivered to the
non-breaching party specifying, in reasonable detail, such claimed
material breach, default, misrepresentation or inaccuracy and demanding
its cure or satisfaction; or
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(v)
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there
shall have occurred any event that constitutes a Change of Control with
respect to the other party.
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8.02 Effect of
Termination
. Other
than as set forth in subsection (b) below, if this Agreement is terminated
pursuant to Section
8.01, all obligations of the Parties hereunder (except for this Section 8.02, Section 5.08 (Public
Announcements), Section 5.17
(Non-Solicitation Agreements), Section 9.04
(Expenses), Section
9.06 (Governing Law), Section 9.12 (Dispute
Resolution) and Section 9.13
(Submission to Jurisdiction; Waiver of Jury Trial) shall terminate without
Liability of any Party to any other Party, the representations and warranties
made herein shall not survive beyond a termination of this Agreement and no
Party shall have any Liability for breach of any representation or warranty upon
a termination of this Agreement prior to the Closing. Nothing
contained in this Section 8.02 shall
relieve any Party of Liability for any breach of any covenant contained in this
Agreement that occurred prior to the date of termination of this
Agreement.
ARTICLE
IX
MISCELLANEOUS
9.01 Notices
. All
notices and other communications pursuant to this Agreement shall be in writing
and shall be deemed given if delivered personally, sent by facsimile, sent by
nationally-recognized overnight courier or mailed by registered or certified
mail (return receipt requested), postage prepaid, to the Parties at the
addresses set forth below or to such other address as the Party to whom notice
is to be given may have previously furnished to the other Party in writing in
accordance herewith. Any such notice or communication shall be deemed
to have been delivered and received (a) in the case of personal delivery,
on the date of such delivery, (b) in the case of facsimile transmission, on the
date sent if confirmation of receipt is received and such notice is also
promptly mailed by registered or certified mail (return receipt requested), (c)
in the case of a nationally-recognized overnight courier in circumstances under
which such courier guarantees next Business Day delivery, on the next Business
Day after the date when sent and (d) in the case of mailing, on the third
Business Day following that on which the piece of mail containing such
communication is posted:
if to
Seller, to:
Intel
Corporation
2200
Mission College Blvd.
Santa
Clara, California 95052-8199
Attention: Treasurer
Fax: (408)
765-6038 with copies to:
Intel
Corporation
2200
Mission College Blvd.
Santa
Clara, California 95052-8199
Attention: General
Counsel
Fax: (408)
653-8050
and
Gibson,
Dunn & Crutcher LLP
1881 Page
Mill Road
Palo
Alto, California 94304
Attention: Russell
Hansen
Stewart L.
McDowell
Telephone: (650)
849-5383
Fax: (650)
849-5333
if to
Buyer, to:
EMCORE
Corporation
10420
Research Road, SE
Albuquerque,
New Mexico 87123
Attention: General
Counsel
Telephone: (505)
332-5000
Fax: (505)
332-5038
with a
copy to:
Jones
Day
1755
Embarcadero Road
Palo
Alto, California 94303
Attention: Sean
M. McAvoy
Telephone: (650)
739-3917
Fax: (650)
739-3900
and
Jones
Day
51
Louisiana Avenue, N.W.
Washington,
DC 20001
Attention: John
Welch
Telephone: (202)
879-3939
Fax: (202)
626-1700
Any Party
hereto may give any notice, request, demand, claim or other communication
hereunder using any other means (including ordinary mail or electronic mail),
but no such notice, request, demand, claim or other communication shall be
deemed to have been duly given unless and until it actually is received by the
individual for whom it is intended.
9.02 Notice of Change of
Control
. Promptly
upon an announcement by Buyer or any other Person of a Change of Control of
Buyer, Buyer shall give Seller written notice thereof, describing in reasonable
detail the applicable Change of Control and identifying each “person” or, to the
Knowledge of Buyer, “group” (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act) that is a party to such transaction or
transactions.
9.03 Amendments;
Waivers.
(a) Any
provision of this Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and signed, in the case of an amendment, by
all Parties, or in the case of a waiver, by the Party against whom the waiver is
to be effective.
(b) No waiver
by a Party of any default, misrepresentation or breach of a warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation or breach of a warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent default, misrepresentation or breach of warranty or covenant
hereunder. No failure or delay by a Party hereto in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise of any right, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided under Applicable
Law.
9.04 Expenses
. All
costs and expenses incurred in connection with this Agreement and the other
Acquisition Documents and in closing and carrying out the transactions
contemplated hereby and thereby shall be paid by the Party incurring such cost
or expense, whether or not such transactions are consummated. In the
event of termination of this Agreement, the obligation of each Party to pay its
own expenses will be subject to any rights of such Party arising from a breach
of this Agreement by the other.
9.05 Successors and
Assigns
. This
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successors, heirs, personal representatives and permitted
assigns. No Party hereto may transfer or assign either this Agreement
or any of its rights, interests or obligations hereunder, whether directly or
indirectly, by operation of law, merger or otherwise, without the prior written
approval of each other Party. No such transfer or assignment shall
relieve the transferring or assigning Party of its obligations hereunder if such
transferee or assignee does not perform such obligations. The closing
or other consummation of a transaction constituting a Change of Control,
including a Change of Control pursuant to which the contracting Parties to this
Agreement remain unchanged, shall be deemed to be an assignment of this
Agreement.
9.06 Governing
Law
. This
Agreement shall be construed in accordance with and any disputes or
controversies related hereto shall be governed by the internal laws of the State
of New York without giving effect to the conflicts of laws principles thereof
that would apply the laws of any other jurisdiction.
9.07 Counterparts;
Effectiveness
. This
Agreement may be signed in any number of counterparts and the signatures
delivered by facsimile transmission, each of which shall be an original, with
the same effect as if the signatures were upon the same instrument and delivered
in person. This Agreement shall become effective when each Party
hereto shall have received a counterpart hereof signed by the other
Parties.
9.08 Entire
Agreement
. This
Agreement (including the schedules and exhibits referred to herein, which are
hereby incorporated by reference), the other Acquisition Documents and the
Confidentiality Agreement constitute the entire agreement between the Parties
with respect to the subject matter hereof and thereof and supersede all prior
and contemporaneous agreements, understandings and negotiations, both written
and oral, between and among the Parties with respect to the subject matter of
this Agreement. No representation, warranty, promise, inducement or
statement of intention has been made by either Party that is not embodied in
this Agreement or the other Acquisition Documents, and neither party shall be
bound by, or be liable for, any alleged representation, warranty, promise,
inducement or statement of intention not embodied herein or
therein.
9.09 Captions
. The
captions herein are included for convenience of reference only and shall be
ignored in the construction or interpretation hereof. All references
to an article, section, exhibit or schedule are references to an article,
section, exhibit or schedule of this Agreement, unless otherwise specified, and
include all subparts thereof.
9.10 Severability
. If
any provision of this Agreement, or the application thereof to any Person, place
or circumstance, shall be held by a court of competent jurisdiction to be
invalid, unenforceable or void, the remainder of this Agreement and such
provisions as applied to other Persons, places and circumstances shall remain in
full force and effect only if, after excluding the portion deemed to be
unenforceable, the remaining terms shall provide for the consummation of the
transactions contemplated hereby in substantially the same manner as originally
set forth at the later of the date this Agreement was executed or last
amended. The Parties further agree to replace such invalid,
unenforceable or void provision with a valid and enforceable provision that will
achieve, in a commercially reasonable manner, the economic, business and other
purposes of such invalid, unenforceable or void provision.
9.11 Construction
. The
Parties intend that each representation, warranty, and covenant contained herein
shall have independent significance. If any Party has breached any
representation, warranty or covenant contained herein in any respect, the fact
that there exists another representation, warranty or covenant relating to the
same subject matter (regardless of the relative levels of specificity) that the
Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty or
covenant.
9.12 Dispute
Resolution.
(a) All
disputes arising directly under the express terms of this Agreement, including
the grounds for termination thereof shall be resolved as follows: The
senior management of the Parties to the dispute shall meet to attempt to resolve
such disputes. In the event that senior management cannot resolve
these disputes, any Party may make a written demand for formal dispute
resolution and specify therein the scope of the dispute. As promptly
as practicable, and in any event within thirty days after such written
notification, the Parties agree to meet for one day with an impartial mediator
and consider dispute resolution alternatives other than
litigation. If an alternative method of dispute resolution is not
agreed upon within 30 days after the one day mediation, either Party may begin
litigation proceedings.
(b) Notwithstanding
the provisions of Section 9.12(a)
above, except as otherwise provided in this Agreement, each Party shall have the
right, without the requirement of first seeking a remedy through meeting of
senior management, mediation or any other alternative dispute resolution
methods, to seek preliminary injunctive or other equitable relief in any proper
court in the event that such Party determines that eventual redress through such
other methods will not provide a sufficient remedy for any violation of this
Agreement by any other Party.
(c) In the
event a proceeding is brought to enforce or interpret any provision of this
Agreement, the prevailing Party shall be entitled to recover reasonable
attorney’s fees and costs in an amount to be fixed by the court.
9.13 Submission to Jurisdiction;
Waiver of Jury Trial.
(a) The
Parties hereby irrevocably submit to the jurisdiction of the courts of the State
of New York and the Federal courts of the United States of America, in each case
located in New York City solely in respect of the interpretation and enforcement
of the provisions of this Agreement, all Exhibits and Schedules hereto and the
other Acquisition Documents and in respect of the transactions contemplated
hereby, and hereby waive, and agree not to assert, as a defense in any
proceeding for the interpretation or enforcement hereof or of any such document,
that it is not subject thereto or that such proceeding may not be brought or is
not maintainable in said courts or that the venue thereof may not be appropriate
or that this Agreement or any such document may not be enforced in or by such
courts, and the Parties hereto irrevocably agree that all claims with respect to
such proceeding shall be heard and determined in the courts of the State of New
York and the Federal courts of the United States of America, in each case
located in New York City. The Parties hereby consent to and grant any
such court jurisdiction over the person of such Parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in
this Section 9.13 or
in such other manner as may be permitted by Applicable Law, shall be valid and
sufficient service thereof.
(b) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES
THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH
PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER,
(iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH
SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.13.
9.14 Knowledge of Breach;
Disclosure Letters
. No
fact, event, misrepresentation or occurrence that, in the absence of this Section 9.14, would
constitute a breach or breaches of any representation or warranty of Seller or
Buyer, as the case may be, under this Agreement shall be deemed to constitute a
breach or breaches by Seller or Buyer, as the case may be, of its
representations or warranties under this Agreement if Seller or Buyer, as the
case may be, has actual knowledge of such breach or breaches on or before the
date hereof. The disclosure of any information on any section of the
Seller Disclosure Letter or the Buyer Disclosure Letter as the case may be,
shall be deemed to constitute the disclosure of such information on all other
sections of the Seller Disclosure Letter or the Buyer Disclosure Letter as the
case may be, applicable to such information.
9.15 Third Party
Beneficiaries
. No
provision of this Agreement shall create any third party beneficiary rights in
any Person, including any employee or former employee of Seller or any Affiliate
thereof (including any beneficiary or dependent thereof).
9.16 Specific
Performance
. The
Parties hereby acknowledge and agree that the breach of or failure of any Party
to perform its agreements and covenants hereunder, including its failure to take
all actions as are necessary on its part to the consummation of the transactions
contemplated herein, may cause irreparable injury to the other Party, for which
damages, even if available, may not be an adequate
remedy. Accordingly, except as provided in Section 5.16(d), each
Party hereby consents to the issuance of injunctive relief by any court of
competent jurisdiction to compel performance of such Party’s obligations and to
the granting by any court of the remedy of specific performance of its
obligations hereunder.
9.17 No Presumption Against
Drafting Party
. Each
of Buyer and Seller acknowledges that it has been represented by counsel in
connection with the negotiation and execution of this Agreement and the other
Acquisition Documents. Accordingly, any rule of law or any legal
decision that would require interpretation of any claimed ambiguities in this
Agreement or any of the other Acquisition Documents against the drafting party
has no application and is expressly waived.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the Parties here caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above
written.
INTEL
CORPORATION
By: /s/ Arvind
Sodhani
Name: Arvind
Sodhani
Title: Executive
Vice President, Intel Corporation
President,
Intel Capital
EMCORE
CORPORATION
By: /s/ Hong
Hou
Name: Hong
Hou
Title: Chief
Executive Officer
ASSET
PURCHASE AGREEMENT
BY
AND BETWEEN
INTEL
CORPORATION
AND
EMCORE
CORPORATION
DATED
AS OF APRIL 9, 2008
TABLE
OF CONTENTS
Page No.
Exhibits:
Exhibit
A Assignment
and Assumption Agreement
Exhibit
B Bill
of Sale
Exhibit
C Intellectual
Property Agreement
Exhibit
D Patent
Assignment
Exhibit
E Transition
Services Agreement
Exhibit
F Warranty
Services Agreement
Schedules:
Schedule
1.01(b) List
of Individuals for Purposes of Knowledge
Schedule
1.01(d) List
of Products
Schedule
1.01(e) Transferred
Contracts
Schedule
1.01(f) Transferred
Equipment
Schedule
1.01(g) Transferred
Patents
Schedule
2.02(n) Excluded
Assets
Schedule
2.09 Seller’s
Wire Instructions
Schedule
5.10 Allocation
of Consideration
Schedule
5.18 Privacy
Policy
Schedule
5.23 Facilities
Assets
Appendix
A
to
Asset Purchase Agreement
The
following terms, as used in the Agreement, have the following
meanings:
“Acquisition
Documents” means this Agreement, the Ancillary Agreements and any other
document or agreement executed in connection with any of the foregoing, together
with any exhibits and schedules thereto, and in each case as modified, amended,
supplemented, restated or renewed from time to time.
“Additional Inventory”
means Business Inventory that is characterized as obsolete by Seller as of the
Effective Time.
“Affiliate” with
respect to any Person, means any other Person directly or indirectly
controlling, controlled by or under common control with, such
Person. For purposes of this definition, “control” (including, with
correlative meanings, the terms “controlling”, “controlled by” or “under common
control with”), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
“Ancillary Agreements”
means the Assignment and Assumption Agreement, Bill of Sale, the Patent
Assignment, the Intellectual Property Agreement, the Transition Services
Agreement and the Warranty Services Agreement.
“Applicable Law”
means, with respect to any Person, any federal, state, local or foreign statute,
law, ordinance, rule, administrative interpretation, regulation, order, writ,
injunction, directive, judgment, decree or other requirement of any Governmental
Authority applicable to such Person or any of its Affiliates or any of their
respective properties, assets, officers, directors, employees, consultants or
agents.
“Assignment and Assumption
Agreement” means the Assignment and Assumption Agreement to be entered
into by Buyer and Seller as of the Closing Date in substantially the form
attached hereto as Exhibit A.
“Bill of Sale” means
any Bill of Sale to be executed by Seller in favor of Buyer as of the Closing
Date in substantially the form attached hereto as Exhibit B and
any other bill of sale required to transfer Transferred Assets in non-U.S.
jurisdictions, which shall be in a form agreed by the Parties, conforming as
closely to Exhibit B as possible in light of the law of the applicable
jurisdiction.
“Books and Records”
means the books and records of Seller and its Subsidiaries that were prepared
for and relate exclusively to the Business and that are necessary for the
operation of the Transferred Assets after the Closing (excluding all personnel
records or any employee information for any Business Employees).
“Business” means the
business conducted by Seller and its Subsidiaries that consists of the
development, sale and support of the Products as of the date of this
Agreement.
“Business Day” means
each day other than a Saturday, Sunday or other day on which commercial banks in
San Francisco, California or Albuquerque, New Mexico, are authorized or required
by law to close.
“Business Inventory”
means the Seller Inventory owned by Seller or its Subsidiaries and used or held
for use exclusively in the Business as of the Closing Date.
“Buyer Accounts
Payable” means all accounts payable owing by Buyer or any of its
Subsidiaries in connection with the Business for raw materials or supplies
received by or services rendered to Buyer or any of its Subsidiaries on or after
the Effective Time.
“Buyer Accounts
Receivable” means all accounts receivable, notes receivable and other
current rights to payment of Buyer or any of its Subsidiaries, together with any
unpaid interest or fees accrued thereon or other amounts receivable with respect
thereto, and any claim, remedy or other right related to any of the foregoing,
in each case generated by the operation of the Business by Buyer and its
Subsidiaries on or after the Effective Time.
“Buyer Approval” means
any Governmental Approval or any consent, waiver or approval of any other Person
necessary for Buyer to consummate the transactions contemplated by this
Agreement and the other Acquisition Documents.
“Buyer Material Adverse
Effect” means any event, change or circumstance that, individually or in
the aggregate with all other such events, changes or circumstances, results in
or would reasonably be expected in the future to result in a material adverse
effect on, or material adverse change in, the operations, financial condition,
earnings, results of operations, assets or Liabilities of Buyer or any event,
change or circumstance that is materially adverse to the ability of Buyer to
perform its obligations under this Agreement or any of the other the Acquisition
Documents to which it will be a party, to consummate the transactions
contemplated hereby or thereby or to own or operate the Transferred Assets and
pay the Assumed Liabilities other than such events, changes, or
circumstances reasonably attributable to: (a) economic, capital market or
political conditions generally in the United States or foreign economies in any
locations where the Buyer has material operations or sales, provided the events, changes,
or circumstances do not have a materially disproportionate effect (relative to
other industry participants) on the Buyer; (b) conditions generally affecting
the industry in Buyer operates, provided the events, changes,
or circumstances do not have a materially disproportionate effect (relative to
other industry participants) on Buyer; (c) outbreak of hostilities or war, acts
of terrorism or acts of God; (d) Buyer’s compliance with its obligations,
performance under or the satisfaction of the conditions to the closing of the
transactions contemplated by the Acquisition Documents; or (e) any action taken
by Buyer with the prior written consent of Seller.
“Buyer Registration Rights
Agreement” means the registration rights agreement dated as of February
15, 2008 between Buyer and certain purchasers of shares of Buyer Common
Stock.
“Cash and Cash
Equivalents” means all cash on hand and cash equivalents of Seller and
its Subsidiaries (whether or not related to the Business), including currency
and coins, negotiable checks, bank accounts, marketable securities, commercial
paper, certificates of deposit, treasury bills, surety bonds and money market
funds.
“Change of Control” of
a Person shall mean the occurrence of (or any public announcement of, or entry
into any agreement by such Person or any of its Subsidiaries to engage in or
effect, a transaction that would result in) any of the following events or
circumstances, whether accomplished directly or indirectly, or in one or a
series of related transactions:
(A) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) becomes the “beneficial owner” (as defined in Rule l3d-3 under the
Exchange Act) of more than 50% of the total voting power of the outstanding
capital stock of such Person;
(B) such
Person merges with or into, or consolidates with, or consummates any
reorganization or similar transaction with, another Person and, immediately
after giving effect to such transaction, less than 50% of the total voting power
of the outstanding capital stock of the surviving or resulting Person is
“beneficially owned” (within the meaning of Rule 13d-3 under the Exchange
Act) in the aggregate by the shareholders of such Person immediately prior to
such transaction;
(C) such
Person (including through one or more of its Subsidiaries and including through
any liquidation or dissolution, other than a liquidation or dissolution in
connection with a reorganization or similar transaction in which the holders of
the voting stock of such Person immediately prior to such transaction continue
to “beneficially own” (within the meaning of Rule 13d-3 under the Exchange Act)
more than 50% of the total voting power of the outstanding capital stock of the
surviving entity immediately after giving effect to such transaction) sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of the assets and properties (including capital stock of
Subsidiaries) of such Person, but excluding sales, assignments, conveyances,
transfers, leases or other dispositions of assets and properties (including
capital stock of Subsidiaries) by such Person or any of its Subsidiaries to any
direct or indirect Subsidiary of such Person; or
(D) individuals
who as of the date hereof constituted the members of the Board of Directors of
such Person (together with any new or replacement directors whose election by
such Board of Directors or whose nomination for election by the shareholders of
such Person was approved by a vote of a majority of the members of the Board of
Directors then in office who either were members of the Board of Directors as of
the date hereof or whose election or nomination was previously so approved)
cease for any reason to constitute a majority of the Board of Directors of such
Person then in office.
“Claims” means all
causes of action, claims, demands, rights and privileges against third parties,
whether liquidated or unliquidated, fixed or contingent, choate or
inchoate.
“Closing Date” means
the date of the Closing.
“Code” means the
Internal Revenue Code of 1986, as amended.
“Competing Product”
means any stand-alone product that: (a) is substantially in conformity with
Seller’s or its Subsidiaries’ product specifications or data sheets
corresponding to a Product; and (b) does not contain or embody substantial
additional functionality; and (c) is not an Excluded Seller Product or a Core
Seller Product.
“Confidentiality
Agreement” means that certain Corporate Non-Disclosure Agreement #8000533
between Buyer and Seller dated January 25, 2001, as amended by an addendum
thereto effective September 14, 2007.
“Competitive Business
Activity” means the marketing or selling of any Competing
Product.
“Contract” means each
contract, agreement, option, lease, license, sale and purchase order, commitment
and other instrument of any kind, whether written or oral.
“Copyrights” means
copyrights and mask work rights (whether or not registered) registrations and
applications therefor.
“Core Seller Products”
shall mean Seller Compatible Processors, Seller Compatible Chipsets, Seller
Architecture Emulators, Seller Compatible Compilers, any product that implements
any Seller Bus and Flash Memory Products.
“Effective Time”
means, unless otherwise agreed by the Parties, 12:01 a.m. California time on the
Closing Date.
“Employee Agreement”
means each management, employment, severance, consulting, relocation,
repatriation or expatriation Contract between Seller or any of its Subsidiaries
and any Business Employee directly relating to such Business Employee’s terms or
conditions of employment.
“Employee Plan” means
any plan, program, policy, practice, agreement or other arrangements providing
for compensation, severance, termination pay, pension benefits, retirement
benefits, deferred compensation, performance awards, stock or stock-related
awards, fringe benefits (including health, dental, vision, life, disability,
sabbatical, accidental death and dismemberment benefits), or other employee
benefits or remuneration of any kind, whether written, unwritten or otherwise,
funded or unfunded, including each “employee benefit plan,” within the meaning
of Section 3(3) of ERISA, excluding any Employee Agreement, which is or has been
maintained by Seller or its Affiliates for the benefit of any Business
Employee.
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended.
“Environmental Laws”
means any Applicable Laws of any Governmental Authority in effect as of the date
hereof relating to pollution or protection of the environment.
“Excluded Seller
Product” shall mean any product of Seller or any of its Subsidiaries
(including revisions of such product) that: (a) is marketed or sold by Seller or
any of its Subsidiaries as of the Closing Date, or has been announced to the
public with a future intention of being marketed or sold by Seller, other than
the Products; or (b) contains substantially greater or different functionality
from any Product.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Flash Memory
Products” shall mean non-volatile Integrated Circuits capable of storing
data that are electrically programmable and electrically erasable, or
magnetically alterable to define a logical state, including without limitation
both floating gate and non-floating gate designs.
“GAAP” means generally
accepted accounting principles in the United States of America, applied on
a consistent basis, as in effect as of the date hereof.
“Governmental
Approval” means an authorization, consent, approval, permit or license
issued by, or a registration or filing with, or notice to, or waiver from, any
Governmental Authority.
“Governmental
Authority” means any international, supranational, foreign or domestic
federal, territorial, state, provincial, regional, municipal or local
governmental authority, quasi-governmental authority, instrumentality, court,
government or self-regulatory organization, commission, tribunal or organization
or any regulatory, administrative or other agency, or any political or other
subdivision, department or branch of any of the foregoing or any private body
exercising any regulatory, taxing, importing or other governmental or
quasi-governmental authority.
“Integrated Circuit”
shall mean an integrated unit comprising one or more active and/or passive
circuit elements associated on one or more substrates, such unit forming, or
contributing to the formation of, a circuit for performing electrical functions
(including, if provided therewith, housing and or supporting
means). The definition of Integrated Circuit shall also include any
and all firmware, microde or drivers, if needed to cause such circuit to perform
substantially all of its intended hardware functionality, whether or not such
firmware, microde or drivers are shipped with such integrated unit or installed
at a later time.
“Intellectual
Property” means intellectual property rights arising from or in respect
of Copyrights, Trade Secrets, Patents and Trademarks.
“Intellectual Property
Agreement” means the Intellectual Property Agreement to be entered into
by Buyer and Seller as of the Closing Date in substantially the form attached
hereto as Exhibit C.
“IRS” means the
Internal Revenue Service of the United States.
“Knowledge” means,
with respect to any Person, the actual knowledge of such
Person. Without limiting the generality of the foregoing, with
respect to any Person that is a corporation, limited liability company,
partnership or other business entity, actual knowledge shall be deemed to
include the actual knowledge of all directors, officers, partners and members of
any such Person; provided,
however, that with respect each Party, actual knowledge shall be deemed
to be solely the actual knowledge of the individuals identified on Schedule
1.01(b).
"Lassen Business"
means the Business as defined in the Lassen Purchase Agreement.
"Lassen Purchase
Agreement" means the Asset Purchase Agreement dated as of December 17,
2007 between Buyer and Seller.
“Liability” means,
with respect to any Person, any debt, liability or obligation of such Person of
any kind, character or description, whether known or unknown, absolute or
contingent, matured or unmatured, asserted or unasserted, accrued or unaccrued,
liquidated or unliquidated, secured or unsecured, joint or several, due or to
become due, vested or unvested, absolute, contingent, executory, determined,
determinable or otherwise and whether or not the same is required to be accrued
on the financial statements of such Person.
“Lien” means, with
respect to any asset, any mortgage, title defect or objection, lien, pledge,
charge, security interest, encumbrance or hypothecation in respect of such
asset; provided,
however, that any license of Intellectual Property shall not be
considered a Lien on such Intellectual Property, including, but not limited to
any licenses pursuant to this Agreement or any of the other Acquisition
Documents.
“Multiemployer Plan”
means any employee pension benefit plan within the meaning of Section 3(2) of
ERISA that is a “multiemployer plan,” as defined in Section 3(37) of
ERISA.
“Patent Assignment”
means any Patent Assignment to be executed by Seller in favor of Buyer as of the
Closing Date in substantially the form attached hereto as Exhibit D and
any other patent assignment required to transfer Transferred Patents in non-U.S.
jurisdictions, which shall be in a form agreed by the Parties, conforming as
closely to Exhibit D as possible in light of the law of the applicable
jurisdiction.
“Patents” means
patents and applications therefor, including continuation, divisional,
continuation in part, reexamination or reissue patent applications and patents
issuing thereon.
“Permitted Liens”
means (a) Liens for Taxes or governmental assessments, charges or claims
the payment of which is not yet due or which is being contested in good faith,
(b) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other similar Persons and other Liens imposed by
Applicable Law incurred in the ordinary course of business which are either for
sums not yet delinquent or are immaterial in amount, and (c) easements and other
imperfections of title or other encumbrances, if any, which imperfections or
encumbrances would not reasonably be expected to materially devalue the property
involved or materially impair Buyer’s ability to use the Transferred
Assets in the manner in which they are currently used by the Seller and its
Subsidiaries .
“Person” means an
individual, corporation, partnership, association, limited liability company,
proprietorship, joint venture, union, trust, estate or other similar business
entity or organization, including a Governmental Authority.
“Pre-Closing Product
Obligations” means Liabilities relating to any product liability,
warranty, refund or similar claims or returns, adjustments, allowances, repairs
or returns, accrued or arising based on Products shipped by Seller or its
Subsidiaries before the Effective Time.
“Post-Closing Tax
Period” means any Tax period (or portion thereof) beginning after the
Effective Time and the portion of any other Tax period ending on or after the
Effective Time.
“Pre-Closing Tax
Period” means any Tax period (or portion thereof) ending prior to the
Effective Time.
“Prepayments” means
all prepaid items and deposits paid by Seller or any of its Subsidiaries in
connection with the Business, and any claim, remedy or other right related to
any of the foregoing.
“Proceedings” means
any claim, action, suit, audit, investigation, arbitration or proceeding by or
before any Governmental Authority.
“Processor” means any
Integrated Circuit or combination of Integrated Circuits capable of processing
digital data, such as a microprocessor or coprocessor (including, without
limitation, a math coprocessor, graphics coprocessor, or digital signal
processor.
“Product Obligations”
means Liabilities relating to any product liability, warranty, refund or similar
claims or returns, adjustments, allowances, repairs or returns, accrued or
arising based on Products shipped on or after the Effective Time.
“Products” means the
products listed on Schedule
1.01(d).
“PTO” means the United
States Patent and Trademark Office.
“Seller Accounts
Payable” means all accounts payable owing by Seller or any of its
Subsidiaries for raw materials or supplies received by or services rendered to
Seller or any of its Subsidiaries.
“Seller Accounts
Receivable” means all accounts receivable, notes receivable and other
current rights to payment of Seller or any of its Subsidiaries, together with
any unpaid interest or fees accrued thereon or other amounts receivable with
respect thereto, and any claim, remedy or other right related to any of the
foregoing.
“Seller Architecture
Emulator” shall mean software, firmware or hardware that, through
emulation, simulation or any other process, allows a computer that does not
contain a Seller Compatible Processor (or a Processor that is not a Seller
Compatible Processor) to execute binary code that is capable of being executed
on a Seller Compatible Processor.
“Seller Bus” shall
mean a proprietary bus or other data path first introduced by Seller or any of
its Subsidiaries: (a) that is capable of transmitting and/or receiving
information within an Integrated Circuit or between two or more Integrate
Circuits, together with the set of protocols defining the electrical, physical,
timing and functional characteristics, sequences and control procedures of such
bus or data path; (b) which neither Seller nor any of its Subsidiaries (during
the time that any such Subsidiary of Seller has met the requirements of being a
Subsidiary of Seller) has granted a license or committed to grant a license
through its participation in a government sponsored, industry sponsored or
contractually formed group or any similar organization that is dedicated to
creating publicly available standards or specifications; and (c) which neither
Seller nor any of its Subsidiaries (during the time that any such Subsidiary of
Seller has met the requirements of being a Subsidiary of Seller) has publicly
disclosed without an obligation of confidentiality.
“Seller Compatible
Chipsets” shall mean one or more Integrated Circuits that alone or
together are capable of electrically interfacing directly (with or without
buffering or pin re-assignment) with a Seller Compatible Processor to form the
connection between the Seller Compatible Processor and any other device (or
group of devices) including Processors, input/output devices, networks and
memory.
“Seller Compatible
Compiler” shall mean a compiler that generates object code that can, with
or without additional linkage processing, be executed on any Seller
Processor.
“Seller Compatible
Processor” shall mean any Processor that (a) can perform substantially
the same functions as a Seller Processor by compatibly executing or otherwise
processing: (i) a substantial portion of the instruction set of a Seller
Processor, (ii) object code versions of applications or other software targeted
to run on or with a Seller Processor or (iii) binary code that is capable of
being executed on a Seller Processor, in order to achieve substantially the same
result as a Seller Processor, or (b) is substantially compatible with a Seller
Bus.
“Seller Contractual
Consent” means any consent, waiver or approval of the other party or
parties to a Transferred Contract that is necessary for Seller or one of its
Subsidiaries to assign such Transferred Contract to Buyer as contemplated by
this Agreement.
“Seller Governmental
Approval” means a Governmental Approval necessary for Seller to
consummate the transactions contemplated by this Agreement and the other
Acquisition Documents.
“Seller Inventory”
means finished goods, unfinished goods, supplies, packaging materials and other
inventories owned by Seller or its Subsidiaries.
“Seller Material Adverse
Effect” means any event, change or circumstance that, individually or in
the aggregate with all other such events, changes or circumstances, results in a
material adverse effect on, or material adverse change in, the Transferred
Assets, taken as a whole, or any event, change or circumstance that is
materially adverse to the ability of Seller to perform its obligations under
this Agreement or any of the other Acquisition Documents to which it will be a
party or to consummate the transactions contemplated hereby or thereby other
than such events, changes, or circumstances reasonably attributable
to: (a) economic, capital market or political conditions generally in the United
States or foreign economies in any locations where the Business has material
operations or sales, provided the events, changes,
or circumstances do not have a materially disproportionate effect (relative to
other industry participants) on the Business; (b) conditions generally affecting
the industry in which Seller or the Business operates, provided the events, changes,
or circumstances do not have a materially disproportionate effect (relative to
other industry participants) on Seller or the Business; (c) the announcement or
pendency of the transactions contemplated by the Acquisition Documents; (d)
outbreak of hostilities or war, acts of terrorism or acts of God; (e) Seller’s
compliance with its obligations, performance under or the satisfaction of the
conditions to the closing of the transactions contemplated by the Acquisition
Documents; (f) any action taken by Seller with the prior written consent of
Buyer; or (g) operation of the Business in accordance in the ordinary course of
business.
Seller Processor”
shall mean any Processor, or proprietary extension of a third party Processor,
first developed by, for or with substantial participation by Seller or any of
its Subsidiaries, or the design of which has been purchased or otherwise
acquired by Seller or any of its Subsidiaries, including the Seller x86
architecture, Core™, Celeron®, Pentium®, Xeon™, Itanium®, MXP, IXP, 80860 and
80960 microprocessor families and the 8097, 80287 and 80387 math coprocessor
families.
“Seller Voluntary Separation
Program” means Seller’s program that allows an eligible employee the
opportunity to choose to voluntarily separate from Seller or one of its
Subsidiaries in return for a separation package.
“Subsidiary” means,
with respect to any Person, (a) any corporation, limited liability company or
other similar organization as to which more than 50% of the outstanding capital
stock or other securities having voting rights or power is owned or controlled,
directly or indirectly, by such Person and/or by one or more of such Person’s
direct or indirect subsidiaries and (b) any partnership, joint venture or other
similar relationship between such Persons and any other Person.
“Taxes” means
(a) all foreign, federal, state, local and other net income, gross income,
gross receipts, sales, use, ad
valorem, value added, intangible, unitary, capital gain, transfer,
franchise, profits, license, lease, service, service use, withholding, backup
withholding, payroll, employment, estimated, excise, severance, stamp,
occupation, premium, property, prohibited transactions, windfall or excess
profits, customs, duties or other taxes, fees, assessments or charges of any
kind whatsoever, whether disputed or not, together with any interest and any
penalties, additions to tax or additional amounts with respect thereto,
(b) any Liability for payment of amounts described in clause (a) whether as
a result of transferee Liability, of being a member of an affiliated,
consolidated, combined or unitary group for any period, or otherwise through
operation of law and (c) any Liability for the payment of amounts described
in clause (a) or (b) as a result of any tax sharing, tax indemnity or tax
allocation agreement or any other express or implied agreement to indemnify any
other Person for Taxes; and the term “Tax” means any one of
the foregoing Taxes.
“Tax Returns” means
any and all written or electronic returns, certificates, declarations, reports,
statements, information statements, forms or other documents filed or required
to be filed with respect to any Tax, amendments thereof, and schedules and
attachments thereto.
“Trademarks” means
trademarks and registrations and applications therefor.
“Trade Secrets” means
confidential know how, inventions, discoveries, concepts, ideas, methods,
processes, designs, formulae, technical data, source code, drawings,
specifications (including logic specifications), data bases, data sheets,
customer lists, Customer Data and other confidential information that constitute
trade secrets under applicable law, in each case excluding any rights in respect
of any of the foregoing that comprise Copyrights, mask work rights or
Patents.
“Transferred
Contracts” means the Contracts identified on Schedule
1.01(e).
“Transferred
Copyrights” means the Copyrights owned by Seller and its Subsidiaries as
of the Closing Date that are embodied in the Products and used exclusively in
the Business and not embodied or used in or with any other current product or
services or planned product or service of Seller or any of its
Subsidiaries.
“Transferred
Employees” means the Business
Employees who accept an offer of employment from Buyer and who begin their
employment with Buyer immediately upon Closing or on such other date as may be
otherwise agreed to by the Parties.
“Transferred
Equipment” means the equipment listed on Schedule
1.01(f).
“Transferred Intellectual
Property” means, collectively, the Transferred Copyrights, Transferred
Patents and Transferred Trade Secrets.
“Transferred Patents”
means those Patents identified on Schedule 1.01(g).
“Transferred Product
Materials and Information” means certain collateral materials, brochures,
manuals, promotional materials, sales materials, display materials and product
information materials exclusively related to the Products;
“Transferred Trade
Secrets” means any Trade Secrets owned by Seller and its Subsidiaries as
of the Closing Date that are embodied in the Products and used exclusively in
the Business and not embodied or used in or with any other current product or
service or planned product or service of Seller or any of its Subsidiaries;
provided, however, that such term shall
not include any rights in Trade Secrets that are described within a Patent
issuing after the Closing Date related to a patent application that was filed
prior to the Closing Date.
“Transition Services
Agreement” means the Transition Services Agreement to be entered into by
Buyer and Seller as of the Closing Date in substantially the form attached
hereto as Exhibit E.
“Warranty Services
Agreement” means the Warranty Services Agreement to be entered into by
Buyer and Seller as of the Closing Date in substantially the form attached
hereto as Exhibit
F.
In
addition to those terms defined above in this Appendix A, the following is an
index of other defined terms, which have the respective meanings given thereto
in the Sections indicated in the table below.
Definition Location
Additional
Payment Section 2.09 7
Agreement Preamble
0; 1
Assumed
Liabilities Section 2.03 4
Average
Buyer Trading
Price Section 2.09 8
Basket Section 7.02(e) &
#160; 37
Business
Employees Section 3.12(d) 15
Business
Financial
Statements Section 5.19 32
Business
Permits Section 2.01(i) 2
Buyer
Disclosure
Letter Article
IV 18
Buyer
Indemnitees Section 7.02(a) 36
Buyer
Lease Section 5.23 33
Buyer Preamble
160; 1
Buyer SEC
Documents Section 4.06 19
Closing Section 2.07
60; 7
Consideration Section 2.06
60; 6
Customer
Data Section 5.18 31
Determination
Date Section 2.09 7
Excluded
Assets Section 2.02 3
Excluded
Liabilities Section 2.04 5
Facility
Assets Section 5.23 33
Financial
Statements Section 3.13(a) 15
Foxconn Section 5.24
60; 33
Fundamental
Change Section 2.09(f) 10
Indemnification
Cap Section 7.05 39
Indemnitee
Section 7.02(c)
37
Indemnitor Section 7.02(c)
60; 37
Landlord Section 5.23
160; 33
Lockup
Termination
Date Section 5.25 34
Losses Section 7.02(d) &
#160; 37
Newark
Facility
TB1 Section 5.23 33
Newark
Facility
TB2 Section 5.23 33
Notice of
Claim Section 7.03(b) 38
Parties Preamble
1
Party Preamble
160; 1
Possessing
Party Section 5.01(c) 22
Prepaid
Inventory Section 2.01(g) 2
Privacy
Policy Section 5.18 31
Property
Tax Section 5.09(b) 25
Receiving
Party Section 5.01(c) 22
Removal
Costs Section 5.23 33
Retained
Marks Section 5.04 23
Sales
Tax Section 5.09(f) 27
SEC Section 4.06 &
#160; 19
Securities
Act Section 4.06 19
Seller
Disclosure
Letter Article
III 10
Seller
Indemnitees Section 7.02(b) 37
Seller
Lease Section 5.23 33
Seller Preamble &
#160; 1
Selling
Group Section 5.17 31
Share
Consideration Section 2.06 6
Termination
Date
Section 8.01 40
Third
Party
Action Section 7.04 38
Transferred
Assets Section 2.01 2
Transferring
Subsidiary Section 3.01 11
ex10-1.htm
EXHIBIT
10.1
EXECUTIVE
BONUS PLAN
The
following is a description of the EMCORE Corporation (“EMCORE”) Fiscal 2008
Executive Bonus Plan (the “Fiscal 2008 Executive Bonus Plan”). This
constitutes a written description of a compensatory plan when no formal document
contains the compensation information.
On March
31, 2008, the Board of Directors of EMCORE adopted the Fiscal 2008 Executive
Bonus Plan. The purpose of the Fiscal 2008 Executive Bonus Plan is to
establish and implement a consistent, market-driven, performance-based approach
to compensation that is compatible with EMCORE’s compensation policy and
supports EMCORE’s strategic business plan and goals.
Under the
Fiscal 2008 Executive Bonus Plan, a bonus target for each executive is created,
representing a percentage of that executive’s base salary. The
following targets have been set based for the indicated officers:
Executive
Chairman and Chief Executive Officer: 80% of base salary
Chief
Financial Officer: 50% of base salary
General
Counsel/Chief Legal Officer and Chief Technical Officer: 35% of base
salary
The
portion of the individual officers’ targets to be paid is based on both
corporate and individual performance. Corporate performance is
evaluated based on the company’s attainment of revenue and EBITDA goals, as set
forth in EMCORE’s Fiscal 2008 Budget (the “Fiscal 2008 Budget”), both of which
goals are weighted equally. A threshold level of 75% of revenue goals
and 70% of EBITDA goals is set. Achievement of 100% of revenue and
EBITDA goals correlates to payment of 100% of the bonus targets, and attainment
of lesser percentages of the revenue and EBITDA goals correlates to payment of
lesser percentages of the bonus targets. Attainment of 110% of the
revenue and EBITDA goals will result in eligibility for 120% of the bonus
targets.
The
individual performance component acts as a multiplier and can accelerate or
decelerate the target bonus percentage based upon individual performance as
determined by the Chief Executive Officer and the Compensation
Committee. The multiplier ranges from 0% to 140% of the executive’s
target bonus. The Chief Executive’s individual performance is
reviewed by the Compensation Committee. The Chief Operating Officer’s
and other executive officers’ individual performance is reviewed by the Chief
Executive Officer and approved by the Compensation Committee.
Payment
of bonuses (if any) is normally made after the end of the performance period
during which the bonuses were earned. Bonuses normally will be paid in cash in a
single lump sum, subject to payroll taxes and tax withholdings.
The
Compensation Committee and the Chief Executive Officer retain the ability to
modify individual executive bonuses based upon individual performance and the
successful completion of business projects and other management performance
objectives. In addition, the Compensation Committee makes long-term
incentive grants to executive officers and employees which are not covered under
the terms of the Fiscal 2008 Executive Bonus Plan.
ex31-1.htm
Exhibit
31.1
EMCORE
CORPORATION
CERTIFICATION
PURSUANT TO SECTION 302
OF
THE SARBANES-OXLEY ACT OF 2002
I, Hong
Q. Hou, Ph.D., certify that:
1.
|
I
have reviewed this Quarterly Report on Form 10-Q of EMCORE
Corporation ("Report");
|
2.
|
Based
on my knowledge, this Report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
Report;
|
3.
|
Based
on my knowledge, the financial statements, and other financial information
included in this Report, fairly present in all material respects the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
Report;
|
4.
|
The
registrant’s other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
|
a.
|
Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this Report is being
prepared;
|
b.
|
Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles;
|
c.
|
Evaluated
the effectiveness of the registrant’s disclosure controls and procedures
and presented in this Report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period
covered by this Report based on such evaluation;
and
|
d.
|
Disclosed
in this Report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of an
annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control over financial
reporting; and
|
5.
|
The
registrant’s other certifying officer(s) and I have disclosed, based on
our most recent evaluation of internal control over financial reporting,
to the registrant’s auditors and the audit committee of the registrant’s
board of directors (or persons performing the equivalent
functions):
|
a.
|
All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record,
process, summarize and report financial information;
and
|
b.
|
Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant’s internal control
over financial reporting.
|
Date: May
12,
2008 By: /s/ Hong Q. Hou,
Ph.D.
Hong Q. Hou,
Ph.D.
Chief Executive
Officer
(Principal Executive
Officer)
ex31-2.htm
Exhibit
31.2
EMCORE
CORPORATION
CERTIFICATION
PURSUANT TO SECTION 302
OF
THE SARBANES-OXLEY ACT OF 2002
I, Adam
Gushard, certify that:
1.
|
I
have reviewed this Quarterly Report on Form 10-Q of EMCORE
Corporation ("Report");
|
2.
|
Based
on my knowledge, this Report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
Report;
|
3.
|
Based
on my knowledge, the financial statements, and other financial information
included in this Report, fairly present in all material respects the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
Report;
|
4.
|
The
registrant’s other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
|
|
a.
|
Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this Report is being
prepared;
|
|
b.
|
Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles;
|
a.
|
Evaluated
the effectiveness of the registrant’s disclosure controls and procedures
and presented in this Report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period
covered by this Report based on such evaluation;
and
|
b.
|
Disclosed
in this Report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of an
annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control over financial
reporting; and
|
5.
|
The
registrant’s other certifying officer(s) and I have disclosed, based on
our most recent evaluation of internal control over financial reporting,
to the registrant’s auditors and the audit committee of the registrant’s
board of directors (or persons performing the equivalent
functions):
|
|
a.
|
All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record,
process, summarize and report financial information;
and
|
|
b.
|
Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant’s internal control
over financial reporting.
|
Date: May
12,
2008 By: /s/ Adam
Gushard
Adam
Gushard
Interim Chief
Financial Officer
(Principal
Financial and Accounting Officer)
ex32-1.htm
Exhibit
32.1
STATEMENT
REQUIRED BY 18 U.S.C. §1350, AS ADOPTED
PURSUANT
TO §906 OF THE SARBANES-OXLEY ACT OF 2002
In
connection with the Quarterly Report on Form 10-Q of EMCORE Corporation (the
"Company") for the quarter ended March 31, 2008, as filed with the Securities
and Exchange Commission on the date hereof (the "Report"), I, Hong Q. Hou,
Ph.D., Chief Executive Officer (Principal Executive Officer) of the Company,
certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the
Sarbanes-Oxley Act of 2002, that:
1) The
Report fully complies with the requirements of Section 13(a) or 15(d) of the
Securities Exchange Act of 1934; and
2) The
information contained in the Report fairly presents, in all material respects,
the financial condition and results of operations of the Company.
Date: May
12,
2008 By: /s/ Hong Q. Hou,
Ph.D.
Hong Q. Hou,
Ph.D.
Chief
Executive Officer
(Principal
Executive Officer)
A
signed original of this written statement required by Section 906 has been
provided to EMCORE Corporation and will be retained by EMCORE Corporation and
furnished to the Securities and Exchange Commission or its staff upon request.
This certification has not been, and shall not be deemed to be, filed with the
Securities and Exchange Commission.
ex32-2.htm
Exhibit
32.2
STATEMENT
REQUIRED BY 18 U.S.C. §1350, AS ADOPTED
PURSUANT
TO §906 OF THE SARBANES-OXLEY ACT OF 2002
In
connection with the Quarterly Report on Form 10-Q of EMCORE Corporation (the
"Company") for the quarter ended March 31, 2008, as filed with the Securities
and Exchange Commission on the date hereof (the "Report"), I, Adam Gushard,
Interim Chief Financial Officer (Principal Financial and Accounting Officer) of
the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906
of the Sarbanes-Oxley Act of 2002, that:
1) The
Report fully complies with the requirements of Section 13(a) or 15(d) of the
Securities Exchange Act of 1934; and
2) The
information contained in the Report fairly presents, in all material respects,
the financial condition and results of operations of the Company.
Date: May
12,
2008 By: /s/ Adam
Gushard
Adam
Gushard
Interim Chief
Financial Officer
(Principal Financial
and Accounting Officer)
A
signed original of this written statement required by Section 906 has been
provided to EMCORE Corporation and will be retained by EMCORE Corporation and
furnished to the Securities and Exchange Commission or its staff upon request.
This certification has not been, and shall not be deemed to be, filed with the
Securities and Exchange Commission.