SC TO-I: Issuer tender offer statement
Published on November 19, 2008
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
________________________
SCHEDULE
TO
(Rule
13e-4)
TENDER
OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF
THE SECURITIES EXCHANGE ACT OF 1934
________________________
EMCORE
CORPORATION
(Name
of Subject Company (Issuer) and Filing Person (Offeror))
Options
to Purchase Shares of common stock, Par Value $0.01 Per Share
(Title
of Class of Securities)
290846104
(CUSIP
Number of Class of Securities)
(Underlying
Common Stock)
________________________
Keith
Kosco
Chief
Legal Officer and Corporate Secretary
EMCORE
CORPORATION
10420
Research Road SE
Albuquerque,
New Mexico 87123
(505)
332-5044
________________________
(Name,
Address and Telephone Number of Person Authorized to Receive Notices and
Communications on Behalf of Filing Person)
Copy
to:
Edward B.
Winslow
Jones
Day
77 West
Wacker, Suite 3500
Chicago,
Illinois 60601-1692
(312)
782-3939
________________________
CALCULATION
OF FILING FEE
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Transaction
valuation*
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Amount
of filing fee**
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$378,815.88
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$14.90
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*
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The
“transaction valuation” set forth above is based on the Black-Scholes
option valuation model and assumes that all eligible outstanding options
to purchase 164,088 shares of common stock of EMCORE CORPORATION will be
amended pursuant to this offer, which may not occur.
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**
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The
amount of the filing fee, calculated in accordance with Rule 0-11 under
the Securities Exchange Act of 1934, as amended, as modified by Fee
Advisory No. 6 for fiscal year 2008, equals $39.30 per $1,000,000 of
transaction valuation. The transaction valuation set forth
above was calculated for the sole purpose of determining the filing fee,
and should not be used or relied upon for any other
purpose.
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¨
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Check
box if any part of the fee is offset as provided by Rule 0-11(a)(2) and
identify the filing with which the offsetting fee was previously
paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its
filing.
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Amount
Previously Paid: _________________
Form
or Registration No.: _________________
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Filing
party: _______________________
Date
filed: _________________________
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¨
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Check
the box if the filing relates solely to preliminary communications made
before the commencement of a tender offer.
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Check
the appropriate boxes below to designate any transactions to which the
statement relates:
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¨ third
party tender offer subject to Rule 14d-1.
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ý issuer
tender offer subject to Rule 13e-4.
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¨ going-private
transaction subject to Rule 13e-3.
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¨ amendment
to Schedule 13D under Rule 13d-2.
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Check
the following box if the filing is a final amendment reporting the results
of the tender offer: ¨
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Item
1.
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Summary
Term Sheet.
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The
information set forth under “Summary Term Sheet” in the Offer to Amend, dated
November19, 2008 (the “Offer to Amend”), attached hereto as Exhibit (a)(1), is
incorporated herein by reference.
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Item
2.
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Subject
Company Information.
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(a) The name
of the issuer is EMCORE CORPORATION, a Delaware corporation (the
“Company”). The address of the Company’s principal executive offices
is 10420 Research Road SE, Albuquerque, New Mexico, and
its telephone number at that location is (505) 332-5044. The
information set forth in the Offer to Amend under Section 11 (“Information
Concerning EMCORE Corporation”) is incorporated herein by
reference.
(b) This
Tender Offer Statement on Schedule TO relates to an offer by the Company to
amend outstanding Eligible Options (as defined in the Offer to Amend) held by
individuals who are, on the date of the Offer to Amend and the Expiration Date
(as defined below) of the Offer (as defined below), current employees of the
Company and subject to income taxation in the United States with respect to
their Eligible Options (“Eligible Optionees”) so that they may avoid potential
adverse tax consequences under Section 409A of the Internal Revenue Code, which
would be based on a determination that incorrect grant dates were utilized with
respect to certain of the Company’s outstanding stock options. Each
Eligible Optionee may elect to amend his or her Eligible Option to increase the
exercise price per share of the Company’s common stock, no par value, currently
in effect for that Eligible Optionee to the closing price per share of the
Company’s common stock on the date which has been determined to be the correct
date of grant, on The NASDAQ Global Market and to receive from the Company a
special Cash Payment (as defined in the Offer to Amend), all upon the terms and
subject to the conditions set forth in the Offer to Amend and the related Letter
of Transmittal attached hereto as Exhibit (a)(3) (together with the Offer to
Amend and the Stock Option Amendment and Cash Payment Agreement, as each may be
amended or supplemented from time to time, the “Offer”). The Offer is
currently set to expire at 11:59 p.m., Mountain Time, on December17,
2008, but may be extended (the “Expiration Date”). As of October 31,
2008, Eligible Options to purchase 8,754,360 shares of the Company’s common
stock were outstanding.
The
information set forth in the Offer to Amend on the introductory pages and under
“Summary Term Sheet,” Section 1 (“Eligible Optionees; Eligible Options;
Amendment of Eligible Options and Cash Payment; Expiration Date; Additional
Considerations”), Section 3 (“Status of Eligible Options Not Amended”), Section
6 (“Acceptance of Eligible Options for Amendment and Commitment to Make Cash
Payment”) and Section 9 (“Source and Amount of Consideration; Terms of Amended
Options”) is incorporated herein by reference.
(c) The
information set forth in the Offer to Amend under Section 8 (“Price Range of
Common Stock Underlying the Options”) is incorporated herein by
reference.
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Item
3.
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Identity
and Background of Filing Person.
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(a) The
Company is the filing person. The information set forth under Item
2(a) above is incorporated herein by reference. The information set
forth in Schedule I to the Offer to Amend (“Information Concerning the Executive
Officers and Directors of EMCORE Corporation”) is incorporated herein by
reference.
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Item
4.
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Terms
of the Transaction.
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(a) The
information set forth in the Offer to Amend on the introductory pages and under
“Summary Term Sheet,” Section 1 (“Eligible Optionees; Eligible Options;
Amendment of Eligible Options and Cash Payment; Expiration Date; Additional
Considerations”), Section 3 (“Status of Eligible Options Not Amended”), Section
4 (“Procedures for Tendering Eligible Options”), Section 5 (“Withdrawal
Rights”), Section 6 (“Acceptance of Eligible Options for Amendment and
Commitment to Make Cash Payment”), Section 7 (“Conditions of This Offer”),
Section 9 (“Source and Amount of Consideration; Terms of Amended Options”),
Section 10 (“Amended Options Will Not Differ from Eligible Options”), Section 13
(“Status of Options Amended by Us in This Offer; Accounting Consequences of This
Offer”), Section 14 (“Legal Matters; Regulatory Approvals”), Section 15
(“Material U.S. Federal Income Tax Consequences”), Section 16 (“Extension of
This Offer; Termination; Amendment”) and Section 19 (“Forward-Looking
Statements; Miscellaneous”) is incorporated herein by reference.
(b) EMCORE
’s executive officers and directors will not participate in this Offer, although
it is expected that following this Offer two of our current executive officers,
who were not Section 16(b) officers at the time they were granted options that
would otherwise constitute Eligible Options, will be given an opportunity to
amend the exercise price of those options on terms no more favorable than those
made available to all other Eligible Optionees in this Offer. The
information set forth in the Offer to Amend under Section 12 (“Interests of
Executive Officers and Directors; Transactions and Arrangements Concerning the
Options and Other Securities of the Company; Material Agreements with Executive
Officers and Directors”) is incorporated herein by reference.
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Item
5.
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Past
Contacts, Transactions, Negotiations and
Agreements.
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(e) The
information set forth in the Offer to Amend under Section 9 (“Source and Amount
of Consideration; Terms of Amended Options”) and Section 12 (“Interests of
Executive Officers and Directors; Transactions and Arrangements Concerning the
Options and Other Securities of the Company; Material Agreements with Executive
Officers and Directors”) is incorporated herein by reference. The
EMCORE Corporation 2000 Incentive Stock Option Plan, as amended and
restated, pursuant to which the Eligible Options have been granted is attached
hereto as Exhibit (d)(1) and contains information regarding the subject
securities.
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Item
6.
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Purposes
of the Transaction and Plans or
Proposals.
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(a) The
information set forth in the Offer to Amend under Section 2 (“Purpose of This
Offer”) is incorporated herein by reference.
(b) The
information set forth in the Offer to Amend under Section 6 (“Acceptance of
Eligible Options for Amendment and Commitment to Make Cash Payment”) and Section
13 (“Status of Options Amended by Us in This Offer; Accounting Consequences of
This Offer”) is incorporated herein by reference.
(c) The
information set forth in the Offer to Amend under Section 1 (“Eligible
Optionees; Eligible Options; Amendment of Eligible Options and Cash Payment;
Expiration Date; Additional Considerations”) is incorporated herein by
reference.
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Item
7.
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Source
and Amount of Funds or Other
Consideration.
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(a) The
information set forth in the Offer to Amend under Section 9 (“Source and Amount
of Consideration; Terms of Amended Options”) and Section 17 (“Fees and
Expenses”) is incorporated herein by reference.
(b) The
information set forth in the Offer to Amend under Section 7 (“Conditions of This
Offer”) is incorporated herein by reference.
(d) Not
applicable.
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Item
8.
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Interest
in Securities of the Subject
Company.
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(a) The
information set forth in the Offer to Amend under Section 12 (“Interests of
Executive Officers and Directors; Transactions and Arrangements Concerning the
Options and Other Securities of the Company; Material Agreements with
Executive Officers and Directors”) is incorporated herein by
reference.
(b) The
information set forth in the Offer to Amend under Section 12 (“Interests of
Executive Officers and Directors; Transactions and Arrangements Concerning the
Options and Other Securities of the Company; Material Agreements with
Executive Officers and Directors”) is incorporated herein by
reference.
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Item
9.
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Persons/Assets,
Retained, Employed, Compensated or
Used.
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(a) Not
applicable.
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Item
10.
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Financial
Statements.
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(a) The
information set forth in the Offer to Amend under Section 11 (“Information
Concerning EMCORE Corporation”) and Section 18 (“Additional Information”) is
incorporated herein by reference. Item 8 (“Financial Statements and
Supplementary Data”) of the Company’s Annual Report on Form 10-K for the fiscal
year ended September 30, 2007, as amended and Item 1 (“Financial Statements”) of
the Company’s Quarterly Reports on Form 10-Q for the quarterly periods ended
December 31, 2007, March 31, 2008 and June 30, 2008, are incorporated herein by
reference.
(b) Not
applicable.
(c) Summary
Information. The information set forth in the Offer to Amend under
Section 11 (“Information Concerning EMCORE Corporation”) is incorporated herein
by reference.
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Item
11.
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Additional
Information.
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(a) The
information set forth in the Offer to Amend under Section 12 (“Interests of
Executive Officers and Directors; Transactions and Arrangements Concerning the
Options and Other Securities of the Company; Material Agreements with Executive
Officers and Directors”) and Section 14 (“Legal Matters; Regulatory Approvals”)
is incorporated herein by reference.
(b) Not
applicable.
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Item
12.
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Exhibits.
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Exhibit
No.
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Document
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(a)(1)
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Offer
to Amend Eligible Options, dated November 19, 2008.
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(a)(2)
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Form
of Announcement of Offer to Amend, dated November 19,
2008.
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(a)(3)
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Form
of Letter of Transmittal and Instructions.
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(a)(4)
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Form
of Withdrawal Form.
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(a)(5)
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Form
of Acknowledgement of Receipt of Letter of Transmittal or Withdrawal
Form.
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(a)(6)
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Form
of Reminder of Expiration Date.
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(a)(7)
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Form
of Notice of Expiration of Offer, Amendment of Eligible Options and
Commitment to Make Cash Payment.
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(a)(8)
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Form
of Stock Option Amendment and Cash Payment Agreement.
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(a)(9)
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Frequently
Asked Questions.
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(a)(10)
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Form
of Acknowledgment of Receipt of Documents Relating to the Offer to
Amend.
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(a)(11)
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Form
of Employee Stock Option Award Agreement
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(a)(12)
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EMCORE
CORPORATION Annual Report on Form 10-K for the fiscal year ended September
30, 2007, filed with the Securities and Exchange Commission (the “SEC”) on
December 31, 2007, as amended by Form 10-K/A filed with the EC on January
28, 2008, is incorporated herein by reference.
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(a)(13)
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EMCORE
CORPORATION Quarterly Report on Form 10-Q for the quarterly period ended
December 31, 2007 filed with the SEC on February 11, 2008, is
incorporated herein by reference.
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(a)(14)
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EMCORE
CORPORATION Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2008 filed with the SEC on May 12, 2008, is incorporated herein
by reference.
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(a)(15)
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EMCORE
CORPORATION Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 2008 filed with the SEC on August 11, 2008, is
incorporated herein by reference.
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(b)
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Not
applicable.
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(d)(1)
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EMCORE
CORPORATION 2000 Incentive Stock Option Plan, as amended, incorporated by
reference to the Company's Definitive Proxy Statement filed with the
Securities and Exchange Commission on March 4, 2008
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(d)(2)
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Form
of EMCORE CORPORATION Employee Stock Option Award
Agreement
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(g)
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Not
applicable.
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(h)
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Not
applicable.
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Item
13.
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Information
Required By Schedule 13E-3.
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(a)
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Not
applicable.
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SIGNATURE
After due
inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this Schedule TO is true, complete and
correct.
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EMCORE
CORPORATION
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By:
/s/ Hong
Hou
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Hong
Hou
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President,
Chief Executive Officer and Director
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Date: November 19,
2008
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INDEX
OF EXHIBITS
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Exhibit
No.
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Document
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(a)(1)
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Offer
to Amend Eligible Options, dated November 19, 2008.
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(a)(2)
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Form
of Announcement of Offer to Amend, dated November 19,
2008.
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(a)(3)
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Form
of Letter of Transmittal and Instructions.
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(a)(4)
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Form
of Withdrawal Form.
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(a)(5)
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Form
of Acknowledgement of Receipt of Letter of Transmittal or Withdrawal
Form.
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(a)(6)
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Form
of Reminder of Expiration Date.
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(a)(7)
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Form
of Notice of Expiration of Offer, Amendment of Eligible Options and
Commitment to Make Cash Payment.
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(a)(8)
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Form
of Stock Option Amendment and Cash Payment Agreement.
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(a)(9)
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Frequently
Asked Questions.
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(a)(10)
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Form
of Acknowledgment of Receipt of Documents Relating to the Offer to
Amend.
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(a)(11)
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Press
Release dated November 19, 2008 annnouncing Tender
Offer
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| (a)(12) | Form of Transmittal of E-mail to Employees |
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(a)(13)
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EMCORE
CORPORATION Annual Report on Form 10-K for the fiscal year ended September
30, 2007, filed with the Securities and Exchange Commission (the “SEC”) on
December 31, 2007, as amended by Form 10-K/A filed with the EC on January
28, 2008, is incorporated herein by reference.
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(a)(14)
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EMCORE
CORPORATION Quarterly Report on Form 10-Q for the quarterly period ended
December 31, 2007 filed with the SEC on February 11, 2008, is
incorporated herein by reference.
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(a)(15)
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EMCORE
CORPORATION Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2008 filed with the SEC on May 12, 2008, is incorporated herein
by reference.
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(a)(16)
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EMCORE
CORPORATION Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 2008 filed with the SEC on August 11, 2008, is
incorporated herein by reference.
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(b)
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Not
applicable.
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(d)(1)
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EMCORE
CORPORATION 2000 Incentive Stock Option Plan, as amended, incorporated by
reference to the Company's Definitive Proxy Statement filed with the
Securities and Exchange Commission on March 4, 2008
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(d)(2)
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Form
of EMCORE CORPORATION Employee Stock Option Award
Agreement
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(g)
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Not
applicable.
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(h)
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Not
applicable.
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