As
filed with the Securities and Exchange Commission on June 4, 2009
Registration
No.______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
EMCORE
CORPORATION
(Exact
name of registrant as specified in its charter)
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New Jersey
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22-2746503
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(State
or Other Jurisdiction of Incorporation or
Organization)
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(I.R.S.
Employer Identification No.)
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10420
Research Road SE
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Albuquerque, New Mexico
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87123
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(Address
of Principal Executive Offices)
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(Zip
Code)
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EMCORE Corporation 2007
Directors’ Stock Award Plan
(Full
title of the plan)
Keith
J. Kosco, Esq
Chief
Legal Officer and Secretary
EMCORE
Corporation
10420
Research Road SE
Albuquerque, New Mexico
87123
(Name and
address of agent for service)
(505) 332-5000
(Telephone
number, including area code, of agent for service)
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
the 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
CALCULATION
OF REGISTRATION FEE
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Title
of each class of
securities
to be registered
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Amount
to be
registered
(1)
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Proposed
maximum
offering
price per
share
(1)
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Proposed
maximum
aggregate
offering
price
(1)
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Amount
of
registration
fee
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Common
Stock, no par value (2)
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N/A
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N/A
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$750,000
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$41.85
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(1)
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See
Introduction.
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(2)
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The
shares of common stock being registered are to be issued pursuant to the
EMCORE Corporation 2007 Directors’ Stock Award Plan (the “Plan”). Pursuant to Rule
416(a) under the Securities Act of 1933, as amended, this registration
statement (the “Registration Statement”) also covers an indeterminate
number of shares that may be offered or issued as a result of stock
splits, stock dividends, or similar
transactions.
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This
Registration Statement shall become effective upon filing in accordance with
Rule 462(a) under the Securities Act of 1933.
INTRODUCTION
Pursuant
to General Instruction E of Form S-8, the registrant, EMCORE Corporation (the
“Registrant”), is filing this Registration Statement with respect to the
issuance of an additional $750,000 of its common stock (valued as of the date of
issue), no par value per share (the “Common Stock”), under the
Plan.
PART I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. Plan
Information
The documents containing the information specified in Part I of
Form S-8 have been or will be sent or given to participants in the Plan as
specified by Rule 428(b)(1) of the Securities Act. Such
documents are not being filed with the Securities and Exchange Commission (the
“Commission”) either as part of this Registration Statement or as prospectuses,
or prospectus supplements pursuant to Rule 424 of the Securities Act, but
constitute (along with the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II hereof) a prospectus
that meets the requirements of Section 10(a) of the Securities
Act.
Item
2. Registrant Information and
Employee Plan Annual Information
The Registrant will, upon written or oral request, provide without charge to any
persons to whom the prospectuses relating to this Registration Statement are
delivered, a copy of any and all of the information which has been incorporated
by reference in such prospectuses and this Registration Statement (pursuant to
Item 3 of Part II hereof). Such requests should be directed to the
Secretary, EMCORE Corporation, 10420 Research Road SE, Albuquerque, New Mexico
87123 (505) 332-5000.
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents
by Reference
The following
documents which have been filed by the Registrant with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are
incorporated by reference herein and shall be deemed to be a part
hereof:
(a)
The Registrant’s Annual Report on Form 10-K for the year ended September 30,
2008;
(b) The
Registrant’s Quarterly Report on Form 10-Q for the quarter ended December 31,
2008;
(c) The
Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2009;
(d) Current
Reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the
Exchange Act since September 30, 2008;
and
(e) The
description of the Registrant’s Common Stock contained in the Registrant’
registration statement on Form 8-A filed with the Commission on February
26,
1997, including
any amendments thereto or reports filed for the purpose of updating such
description.
In addition, all documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment to this Registration
Statement, which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and made a part hereof
from their respective dates of filing (such documents, and the documents
enumerated above, being hereinafter referred to as “Incorporated
Documents”).
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Albuquerque, State of New Mexico, on June 3, 2009.
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EMCORE
CORPORATION
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By:
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/s/ Keith J. Kosco
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Keith
J. Kosco, ESQ
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Chief
Legal Officer and Secretary
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POWER OF
ATTORNEY
Each
person whose signature appears below constitutes and appoints and hereby
authorizes Hong Q. Hou, Ph.D. and, severally, such person’s true and lawful
attorneys-in-fact, with full power of substitution or resubstitution, for such
person and in his name, place and stead, in any and all capacities, to sign on
such person’s behalf, individually and in each capacity stated below, any and
all amendments, including post-effective amendments to this Form S-8, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission granting unto said attorneys-in-fact, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this report has been signed
below by the following persons on behalf of the Registrant in the capacities
indicated, on June 3, 2009.
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Signature
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Title
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/s/ Thomas J.
Russell
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Chairman
Emeritus and Lead Director
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Thomas
J. Russell, Ph.D
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/s/
Reuben F. Richards, Jr.
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Executive
Chairman & Chairman of the Board
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Reuben
F. Richards, Jr.
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/s/
Hong Q. Hou
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Chief
Executive Officer and Director (Principal Executive
Officer)
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Hong
Q. Hou, Ph.D
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/s/
John
M. Markovich
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Chief
Financial Officer (Principal Financial and Accounting
Officer)
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John
M. Markovich
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/s/
Charles T. Scott
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Director
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Charles
T. Scott
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/s/
John Gillen
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Director
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John
Gillen
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/s/
Robert Bogomolny
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Director
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Robert
Bogomolny
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INDEX
TO EXHIBITS
Exhibit
No.
Exhibit Description
4.1 Restated
Certificate of Incorporation, dated April 4, 2008 (incorporated by reference to
Exhibit 3.1 to Registrant's Current Report on Form 8-K filed on April 4,
2008).
4.2
Amended
By-Laws, as amended through August 7, 2008 (incorporated by reference to Exhibit
3.1 to Registrant’s Current Report on Form 8-K filed on August 13,
2008).
5.1 Legal Opinion of Dillon, Bitar & Luther, L.L.C.*
23.1 Consent
of Dillon, Bitar & Luther, L.L.C. (included in its opinion filed
as Exhibit 5.1 in this Registration Statement).*
23.2
Consent of Deloitte & Touche LLP.*
24.1
Powers of Attorney (included on the signature pages to this Registration
Statement).*
99.1
Registrant’s 2007 Directors’ Stock Award Plan.*
EXHIBIT
5.1
DILLON,
BITAR & LUTHER L.L.C.
53 MAPLE
AVENUE
MORRISTOWN,
NJ 07960
June 3, 2009
EMCORE
Corporation
10420
Research Road, S.E.
Albuquerque,
NM 87123
Re: EMCORE
Corporation
Registration Statement on
Form S-8
Ladies
and Gentlemen:
We are
providing this opinion letter in our capacity as special counsel to EMCORE
Corporation, a New Jersey corporation (the "Company"), in connection with the
filing by the Company of a registration statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with the United States Securities and Exchange Commission (the
"Commission"). The Registration Statement relates to the registration
of the Company's common stock in an aggregate amount of $750,000 (the “Shares”)
that may be acquired by certain Directors of the Company pursuant to the terms
and provisions of the Company's Directors' Stock Award Plan (the
“Plan”).
You have requested that we render the opinion set forth in this letter and we are furnishing this opinion in accordance with the requirements of Part II, Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K promulgated by the Commission under the Securities Act.
In
connection with the foregoing registration, we have examined originals, or
copies certified or otherwise identified to our satisfaction of, (i) the
Registration Statement as filed with the Commission, (ii) the Company's Restated
Certificate of Incorporation, as amended and restated to date (the "Certificate
of Incorporation"), (iii) the Company's By-Laws, as amended and/or restated to
date (the "By-Laws"), (iv) certain resolutions of the Board of Directors of the
Company relating to the Shares and the registration thereof, and (v) such other
documents as we have deemed necessary or appropriate for purposes of rendering
the opinion set forth herein.
In our
examination, we have assumed the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted to us
as certified or photostatic copies and the authenticity of the originals of such
latter documents. As to any facts material to the opinion expressed
herein that were not independently established or verified, we have relied upon
statements and representations of officers and other representatives of the
Company and others.
We do not express or purport to express any opinions with respect to laws other than the Federal laws of the United States and the laws of the State of New Jersey.
Based
upon and subject to the foregoing, we are of the opinion that the Shares will,
if issued and delivered in accordance with the terms and provisions of the Plan,
be validly issued, fully paid and nonassessable.
We hereby
consent to the filing of this opinion with the Commission as an Exhibit to the
Registration Statement. In giving this consent, we do not hereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations of the Commission
promulgated thereunder.
This
opinion is limited to the specific issues addressed herein, and no opinion may
be inferred or implied beyond that expressly stated herein. We assume
no obligation to revise or supplement this opinion should present Federal laws
or the present laws of the State of New Jersey be changed by legislative action,
judicial decision or otherwise.
Very truly yours,
/s/ Dillon, Bitar &
Luther, L.L.C.
DILLON, BITAR & LUTHER, L.L.C.
Exhibit
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form
S-8 of our reports relating to the consolidated financial statements of EMCORE
Corporation and subsidiaries (which report expresses an unqualified opinion and
includes an explanatory paragraph relating to EMCORE Corporation’s ability to
continue as a going concern) and the effectiveness of EMCORE Corporation's
internal control over financial reporting dated December 30, 2008, appearing in
the Annual Report on Form 10-K of EMCORE Corporation for the year ended
September 30, 2008.
/s/ Deloitte & Touche
LLP
Deloitte
& Touche LLP
Dallas,
Texas
June 1,
2009
Exhibit
99.1
EMCORE
CORPORATION 2007 DIRECTORS’ STOCK AWARD PLAN
1. The
purposes of the 2007 Directors' Stock Award Plan (the “Plan”) are (a) to attract
and retain highly qualified individuals to serve as Directors of EMCORE
Corporation (the “Corporation”), (b) to increase non-employee Directors' stock
ownership in the Corporation and (c) to relate non-employee Directors'
compensation more closely to the Corporation's performance and its shareholders'
interest.
2. The
Plan shall become effective upon its approval by the shareholders of the
Corporation. It shall continue in effect for a term of ten (10) years unless
sooner terminated under Section 7 of the Plan.
3. “Plan
Year” shall mean each 12-month period beginning on January 1 and ending on
December 31.
4.
“Annual Stock Award Amount” shall mean the amount of fees a non-employee
Director will be entitled to receive pursuant to the Plan for serving as a
Director in a relevant Plan Year. The amount of each non-employee Director’s
Annual Stock Award Amount shall be determined by adding (A) $3,500 for each
meeting of the Board of Directors attended by such non-employee Director during
the relevant Plan Year, (B) $500 for each meeting of a committee of the Board of
Directors attended by such non-employee Director during the relevant Plan Year
and (C) an additional $500 for each meeting of a committee of the Board of
Directors at which such non-employee Director served as Chairman.
5. A
non-employee Director may forego the portion of his or her Annual Stock Award
Amount that relates to any one or more meeting(s) of the Board of Directors or
committee thereof by giving irrevocable written notice to such effect to the
Secretary of the Corporation 30 days prior to the date of such
meeting.
6. Each
non-employee Director shall receive, one month after the beginning of each Plan
Year (or, if such date is not a business day, on the next succeeding business
day) (the “Grant Date”), the number of shares of the Company’s common stock, no
par value per share (“Common Stock”) determined by dividing his or her Annual
Stock Award Amount by the closing price of the Common Stock as published in the
Wall Street Journal (the “Fair Market Value”) on the Grant Date. The number of
shares distributed to each non-employee Director shall be rounded down to the
nearest whole number, and any fractional shares that would otherwise have been
paid in Common Stock shall be paid in cash based upon the Fair Market Value of
the Common Stock on the Grant Date.
7. This
Plan shall be construed in accordance with the laws of the State of New Jersey
and may be amended or terminated at any time by action of the Board of Directors
of the Corporation; provided, however, that the Corporation will seek
shareholder approval for any change to the extent required by applicable
law.