8-K: Current report filing
Published on January 19, 2007
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
January
12, 2007
Date
of Report (Date of earliest event reported)
EMCORE
CORPORATION
Exact
Name of Registrant as Specified in its Charter
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New
Jersey
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0-22175
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22-2746503
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State
of Incorporation
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Commission
File Number
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IRS
Employer Identification Number
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145
Belmont Drive, Somerset, New Jersey, 08873
Address
of principal executive offices, including zip code
(732)
271-9090
Registrant's
telephone number, including area code
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
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ITEM
2.04 Triggering
Events that Accelerate or Increase a Direct Financial Obligation or an
Obligation under an Off-Balance Sheet Arrangement.
As
previously reported in its Form 12b-25 filed December 15, 2006, EMCORE
Corporation (the “Company”) has delayed filing its Annual Report on Form 10-K
for the fiscal year ended September 30, 2006 due to the Company's voluntary
review of its stock option granting practices and the need to correct its
financial statements for previous periods to account for additional stock-based
compensation expense. On January 12, 2007, the Company was faxed two letters
purporting to constitute notices of default from persons claiming to hold
certain of its 5% Convertible Senior Subordinated Notes due 2011. The letters
allege a violation of the Company’s Indenture, dated as of February 24, 2004
(the “Indenture”), between the Company and Deutsche Bank Trust Company Americas,
as trustee. Specifically, the letters allege that the delay in filing the
Company’s Annual Report on Form 10-K constitutes a default under Section 6.03 of
the Indenture, which requires the Company to furnish to the holders of notes
copies of reports which the Company may be required to file with the SEC
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934,
as amended.
The
Company believes it is not in default under the Indenture and will contest
any
attempt to declare an Event of Default under the Indenture based on the delay
in
filing the Form 10-K. The Company plans to file its Form 10-K for the year
ended
September 30, 2006 as soon as reasonably practicable.
The
Indenture provides that the Company has 60 days from receipt of a notice of
default to cure the default before an Event of Default occurs under the
Indenture. If an Event of Default occurs and is continuing under the Indenture,
the trustee or holders of at least 25% in aggregate principal amount of the
notes have the contractual right to declare all unpaid principal and accrued
interest on the notes then outstanding to be immediately due and payable unless
the Company were able to obtain a waiver of the Event of Default from the
holders of a majority in aggregate principal amount of the notes. Approximately
$80,276,000 aggregate principal amount of the Company’s 5% Convertible Senior
Subordinated Notes due 2011 are outstanding under the Indenture. As of November
15, 2006 (the last payment date), all required interest and principal payments
have been timely made on the notes.
*
* *
*
Statements
contained in this Current Report on Form 8-K that disclose the Company’s
intentions, expectations or predictions of the future, including statements
about claims of default with respect to the Company’s 5% Convertible Senior
Subordinated Notes due 2011 and potential consequences are forward-looking
statements within the meaning of the Private Securities Litigation Reform Act.
These statements involve risks and uncertainties and other factors that may
cause results to differ materially from those anticipated at the time such
statements are made. In addition, potential risks and uncertainties regarding
the Company include but
are
not limited to (a) the finalization and audit of the Company’s unaudited fourth
quarter and fiscal year 2006 results, (b) the effects of the Company’s voluntary
review of its historic stock option granting practices, including (i) risks
and
uncertainties relating to developments in regulatory and legal guidance
regarding stock option grants and accounting for such grants, (ii) the
possibility that the Company will not be able to file additional reports with
the Securities and Exchange Commission in a timely manner, (iii) the possibility
that the Company in consultation with the Company's independent public
accountants or the SEC, may determine that additional stock-based compensation
expenses and other additional expenses be recorded in connection with affected
option grants (iv) the Company may incur negative tax consequences arising
out
of the stock option review, (v) the possible delisting of the Company’s stock
from the Nasdaq National Market pursuant to Nasdaq Marketplace Rule 4310(c)(14),
(vi) the timing and outcome of the Nasdaq appeal hearing, (vii) the impact
of
any actions that may be required or taken as a result of such review or the
Nasdaq hearing and review process, (viii) the possibility of other bondholders
alleging a default under the Company’s indenture as a result of the delay in
filing the 10-K and (ix) risk of litigation arising out of or related to the
Company’s stock option grants or a restatement of the Company’s financial
statements, and (c) factors discussed from time to time in reports filed by
the
Company with the Securities and Exchange Commission. The forward-looking
statements contained in this Current Report on Form 8-K are made as of the
date
hereof and the Company does not assume any obligation to update the reasons
why
actual results could differ materially from those projected in the
forward-looking statements.
SIGNATURE
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 hereunto
duly authorized.
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EMCORE
CORPORATION
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Dated:
January 19, 2007
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By: /s/
Thomas G. Werthan
Name:
Thomas G. Werthan
Title:
Chief Financial Officer
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