NT 10-K: Notice under Rule 12b25 of inability to timely file all or part of a Form 10-K, 10-KSB, or 10-KT
Published on December 14, 2007
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
12b-25
NOTIFICATION
OF LATE FILING
SEC
FILE
NUMBER: 0-22175
CUSIP
NUMBER: 290846104
(CHECK
ONE)ýForm
10-K¨ Form
20-F ¨ Form
11-K ¨Form 10-Q ¨
Form N-SAR ¨ Form N-CSR
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For
Period Ended: September 30, 2007
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¨
Transition Report on
Form 10-K
¨
Transition Report on
Form 20-F
¨
Transition Report on
Form 11-K
¨
Transition Report on
Form 10-Q
¨
Transition Report on
Form N-SAR
For
the
Transition Period Ended: __________________
If
the
notification relates to a portion of the filing checked above, identify the
Item(s) to which the notification relates: Not applicable
PART
I - REGISTRANT INFORMATION
Full
Name
of
Registrant: EMCORE
Corporation
Former
Name if
Applicable: Not
applicable
Address
of Principal Executive Office (Street and
Number): 10420
Research Road, SE
City,
State and Zip
Code: Albuquerque,
NM 87123
PART
II -- RULES 12b-25(b) AND (c)
If
the
subject report could not be filed without unreasonable effort or expense and
the
registrant seeks relief pursuant to Rule 12b-25(b), the following should be
completed. (Check box if appropriate) ý
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(a)
The reasons described in reasonable detail in Part III of this form
could
not be eliminated without unreasonable effort or
expense;
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(b)
The subject annual report, semi-annual report, transition report
on Form
10-K, Form 20-F, Form 11-K, Form N-SAR or Form N-CSR, or portion
thereof,
will be filed on or before the fifteenth calendar day following the
prescribed due date; or the subject quarterly report of transition
report
on Form 10-Q, or portion thereof will be filed on or before the fifth
calendar day following the prescribed due date;
and
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(c)
The accountant's statement or other exhibit required by Rule 12b-25(c)
has
been attached if applicable.
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PART
III -- NARRATIVE
State
below in reasonable detail the reasons why Forms 10-K, 20-F, 11-K, 10-Q, N-SAR,
N-CSR, or the transition report portion thereof, could not be filed within
the
prescribed time period.
On
November 15, 2006, EMCORE Corporation (the “Company”) announced that a Special
Committee of the Company’s Board of Directors, comprised solely of independent
directors, completed a voluntary review of the Company’s historical stock option
grant procedures initiated by senior management. The key findings and
conclusions of the Special Committee are summarized in a Current Report on
Form
8-K and a press release filed on November 15, 2006.
The
Special Committee recommended, among other things, that the Company should
recognize, for accounting purposes, additional compensation expense with respect
to certain stock option grants. The Company reviewed the specific facts of
the
Company’s stock option grants, and the relevant authoritative accounting
guidance, including the guidance regarding stock option granting practices
recently published by the SEC to determine (i) the precise amount of non-cash
compensation charges for equity-based compensation, (ii) the related tax
consequences to the Company and its employees, (iii) for which specific prior
periods a restatement of its historical financial statements may be required,
and (iv) the precise impact of the additional non-cash compensation charges,
tax
consequences and restatements, if any, on its financial statements for the
fiscal year ended September 30, 2006 and the quarters ended December 31, 2006,
March 31, 2007, and June 30, 2007. Accordingly, the Company was
unable to file its fiscal 2006 Form 10-K and fiscal 2007 Form 10-Qs within
the
prescribed time periods.
On
November 1, 2007, the Company announced that following the completion of its
voluntary review of historical stock option granting practices, the Company
filed with the Securities and Exchange Commission its Annual Report on Form
10-K
for the fiscal year ended September 30, 2006 and its Quarterly Reports on Form
10-Q for the quarters ended December 31, 2006, March 31, 2007, and June 30,
2007. The Company solicited proxies on November 16, 2007 and held its
annual shareholders’ meeting on December 3, 2007.
The
Company seeks relief pursuant to Rule 12b-25 because the filing delays discussed
above have not allowed sufficient time for the completion of our fiscal 2007
audit by December 14, 2007. The Company anticipates that it will be
able to file its fiscal 2007 Form 10-K within the fifteen-day period, or
December 31, 2007, the extended deadline provided under Rule
12b-25(b)(2)(ii).
PART
IV-- OTHER INFORMATION
(1) Name
and telephone number of person to contact in regard to this
notification
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Keith
J. Kosco
(Name)
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(505)
(Area
Code)
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332-5000
(Telephone
Number)
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(2) Have
all other periodic reports required under Section 13 or 15(d) of the Securities
Exchange Act of 1934 or Section 30 of the Investment Company Act of 1940 during
the preceding 12 months or for such shorter period that the registrant was
required to file such report(s) been filed? If answer is no, identify report(s).
ýYes ¨No
(3) Is
it anticipated that any significant change in results of operations from the
corresponding period for the last fiscal year will be reflected by the earnings
statements to be included in the subject report or portion
thereof? ýYes ¨No
If
so,
attach an explanation of the anticipated change, both narratively and
quantitatively, and, if appropriate, state the reasons why a reasonable estimate
of the results cannot be made.
Based
on
preliminary unaudited results for the fourth quarter and fiscal year ended
September 30, 2007, the Company expects to report a net loss of $57.3 million
or
$1.12 loss per basic share for the year ended September 30, 2007. For
the year ended September 30, 2006, the Company reported net income of $54.9
million or $1.11 income per basic share. Financial highlights
include:
Fiscal
2007:
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In
November 2006, EMCORE invested $13.5 million in WorldWater & Solar
Technologies Corporation in return for convertible preferred stock
and
warrants.
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In
April 2007, EMCORE modified its convertible subordinated notes to
resolve
an alleged default event. The interest rate was increased from
5% to 5.5% and the conversion price was decreased from $8.06 to
$7.01. EMCORE also repurchased $11.4 million of outstanding
notes to reduce interest expense and share
dilution.
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In
April 2007, EMCORE acquired privately-held Opticomm Corporation for
$4.0
million in cash.
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Fiscal
2007 operating expenses included:
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$10.6 million related to our review of historical stock option granting
practices;
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$9.4 million related to our new terrestrial solar power division;
and,
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$8.9 million related to patent litigation against Optium Corporation
and
severance-related charges associated with facility closures and
consolidation of operations.
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Fiscal
2006:
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In
November 2005, EMCORE exchanged $14.4 million of convertible subordinated
notes due in May 2006 for $16.6 million of newly issued convertible
senior
subordinated notes due May 15, 2011. As a result of this transaction,
EMCORE recognized approximately $1.1 million in the first quarter
of
fiscal 2006 related to the early extinguishment of
debt.
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EMCORE
received manufacturing equipment valued at $2.0 million less tax
of $0.1
million as a final earn-out payment from Veeco in connection with
the sale
of the TurboDisc division.
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In
August 2006, EMCORE sold its Electronic Materials & Device (EMD)
division to IQE plc (IQE) for $16.0 million. The net gain associated
with
the sale of the EMD business totaled approximately $7.6 million,
net of
tax of $0.5 million. The results of operations of the EMD
division have been reclassified to discontinued operations for all
periods
presented.
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In
August 2006, EMCORE sold its 49% membership interest in GELcore,
LLC for
$100.0 million to General Electric Corporation, which prior to the
transaction owned the remaining 51% membership interest in
GELcore. EMCORE recorded a net gain of $88.0 million, before
tax, on the sale of GELcore, after netting EMCORE’s investment in this
joint venture of $10.8 million and transaction expenses of $1.2
million.
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EMCORE
recorded approximately $2.2 million of impairment charges on goodwill
and
intellectual property associated with the June 2004 acquisition of
Corona
Optical Systems.
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Fiscal
2006 operating expense included $1.3 million related to our review
of
historical stock option granting practices and $1.3 million related
to our
new terrestrial solar power
division.
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Other
expense included a charge of $0.5 million associated with the write-down
of the Archcom investment.
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EMCORE
recognized a provision for income taxes of $1.9 million from continuing
operations for the year ended September 30,
2006.
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***
This
notification of late filing on Form 12b-25 contains forward-looking statements
regarding the Company’s expectations concerning the filing of its fiscal 2007
Annual Report on Form 10-K. These forward-looking statements are
based on the Company’s current expectations and are subject to the completion of
the audit of the Company’s results for the fiscal year ended September 30, 2007
and risks and uncertainties that could cause actual results to differ materially
from those expressed in the forward-looking statements. Readers are cautioned
not to place undue reliance on these forward-looking statements, which speak
only as of the date hereof, and the Company undertakes no obligation to update
these forward-looking statements to reflect subsequent events or
circumstances.
EMCORE
Corporation
(Name
of
Registrant as Specified in Charter)
has
caused this notification to be signed on its behalf by the undersigned hereunto
duly authorized.
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Date:
December 14, 2007
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By: /s/
Adam Gushard
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Name:
Adam Gushard
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Title: Interim
Chief Financial Officer
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INSTRUCTION:
The form may be signed by an executive officer of the registrant or by any
other
duly authorized representative. The name and title of the person signing the
form shall be typed or printed beneath the signature. If the statement is signed
on behalf of the registrant by an authorized representative (other than an
executive officer), evidence of the representative's authority to sign on behalf
of the registrant shall be filed with the form.
________________________________________________________________________________
ATTENTION
Intentional
misstatements or omissions of fact constitute Federal Criminal Violations (See
18 U.S.C. 1001).