8-K: Current report filing
Published on June 15, 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
June
11, 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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10420
Research Road, SE, Albuquerque, New Mexico 87123
Address
of principal executive offices, including zip code
(505)
332-5000
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
8.01 Other
Events
NASDAQ
As
previously disclosed, on April 3, 2007, the NASDAQ Listing Qualifications Panel
(the “Panel”) granted EMCORE Corporation (the “Company”) continued listing on
the NASDAQ Stock Market. The continued listing was subject to certain
conditions, including that the Company file its Form 10-K for the fiscal year
ended September 30, 2006 and its Form 10-Q for the quarter ended December 31,
2006 no later than May 10, 2007. Also, as previously disclosed, the Company
received notice from the NASDAQ Stock Market on May 10, 2007 that the Panel
had
granted the Company’s request filed on May 4, 2007 for an extension of the May
10, 2007 deadline. The extension was subject to certain conditions, including
that the Company file its Form 10-K for the fiscal year ended September 30,
2006, its Form 10-Q for the quarter ended December 31, 2006 and its Form 10-Q
for the quarter ended March 31, 2006 with the SEC by no later than June 18,
2007.
On
May
25, 2007, the Company appealed the May 10, 2007 decision of the Panel by
requesting that the NASDAQ Listing and Hearing Review Council (the “Listing
Council”) review the Panel’s decision to grant the extension only through June
18, 2007. On
June
8, 2007, the Company requested that the Listing Council stay the previously
reported May 10, 2007 decision of the Panel to suspend the Company’s securities
from trading on NASDAQ if the Company fails to file its reports with the SEC
by
June 18, 2007.
On
June
12, 2007, the Company received an acknowledgement letter stating that the
Listing Council would consider the Company’s appeal in August 2007. In addition,
on
June
15, 2007, the Company received a letter from The NASDAQ Stock Market, stating
that the Listing Council has stayed the previously reported May 10, 2007
decision of the Panel and any future Panel determinations to suspend the
Company’s securities from trading on NASDAQ, pending further review by the
Listing Council. Consequently, the Company’s securities will continue to be
listed and tradable on the NASDAQ National Market System until further action
by
the Listing Council to lift the stay, which will not occur prior to August
10,
2007. While there can be no assurance that the Company will become compliant
with NASDAQ requirements that it file its periodic reports and restatement
before the Listing Council takes any action lifting the stay, the Company
continues to work diligently to do so.
Derivative
Actions
On
June
11, 2007, the Company learned that on May 22, 2007, two individual shareholders
each filed a derivative action purportedly on behalf of the Company against
certain members of the Company’s Board of Directors and certain current and
former executives of the Company in the Superior Court of New Jersey. The
Company has been named as a nominal defendant in each of the actions. The
complaints, which were served on the Company on June 11, 2007, allege
improprieties and violations of law in connection with the Company’s historical
issuances of stock options. Each of the actions seeks on behalf of the Company,
among other things, damages, equitable relief, corporate governance reforms,
an
accounting, rescission, restitution and costs and disbursements of the lawsuit.
The Company’s Board of Directors intends to fully review the allegations in
these lawsuits and will respond appropriately; however, upon initial review
the
complaints appear to be substantially similar to those raised in the derivative
action previously reported on February 8, 2007, which remains
ongoing.
*
* *
*
Statements
contained in this Current Report on Form 8-K that disclose the Company’s
intentions, expectations or predictions of the future 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), and (vi) risk of additional
litigation arising out of or related to the Company’s stock option grants or a
restatement of the Company’s financials, 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:
June 15, 2007
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By: /s/
Adam Gushard
Name:
Adam Gushard
Title:
Interim Chief Financial Officer
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