S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on June 30, 2009
As
filed with the Securities and Exchange Commission on June 30, 2009
Registration
No. 333-____
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 2000
Employee Stock Purchase 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)(2)
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Proposed
maximum
offering
price per
share
(3)
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Proposed
maximum
aggregate
offering
price
(3)
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Amount
of
registration
fee(3)
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Common
Stock, no par value
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2,500,000
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$1.35
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$3,375,000
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$188.33
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(1)
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Plus
an indeterminate number of additional shares of Common Stock that may be
offered and issued pursuant to stock dividends, stock splits, or similar
transactions.
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(2)
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This
registration statement is being filed for purposes of registering
2,500,000 additional shares of Common Stock of EMCORE Corporation,
issuable pursuant to our 2000 Employee Stock Purchase Plan, as amended and
restated (the “Plan”). We have previously registered an aggregate
2,000,000 shares pursuant to a registration statement on Form S-8
(File Nos. 333-37306 and 333-132318) under the Plan. The
registration fee for the previously registered shares was paid at the time
that the previous registration statement was filed.
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(3)
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Estimated
pursuant to Rule 457(h) of the General Rules and Regulations under the
Securities Act of 1933, as amended (the “Securities Act”), for the purpose
of computing the registration fee, based on the average of the high and
low sales price on The NASDAQ National Market on June 26,
2009.
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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 2,500,000 shares of its common stock, no par value per
share (the “Common Stock”), under the Plan.
On May
18, 2000 and March 11, 2006, the Registrant filed registration statements (the
“Prior Registration Statements”) on Form S-8 (File No. 333-37306 and 333-132318,
respectively) with respect to the issuance of an aggregate 2,000,000 shares
(post-split) of Common Stock under the Plan. The contents of the Prior
Registration Statements are hereby incorporated in this Registration Statement
by reference.
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)
All
Current Reports filed (not furnished) 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 (other than filings or portions filings
that are furnished under applicable SEC rules rather than filed) (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.
Item
8. Exhibits
The
exhibits filed as part of this Registration Statement are as
follows:
Exhibit
No. ExhibitDescription
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4.1
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2000
Employee Stock Purchase Plan, as amended and restated on April 30, 2009
(incorporated by reference to Exhibit 10.2 of the Registrant’s Current
Report on Form 8-K filed on May 6,
2009.
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4.2
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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).
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4.3
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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).
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5.1
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Opinion
of Dillon, Bitar & Luther,
L.L.C.*
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23.1
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Consent
of Dillon, Bitar & Luther, L.L.C (included in its opinion
filed as Exhibit 5.1 in this Registration
Statement).*
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23.2
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Consent
of Deloitte & Touche LLP.*
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24.1
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Powers
of Attorney (included on the signature pages to this Registration
Statement).*
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* Filed
herewith.
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 30, 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, 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 30, 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
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4.1
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2000
Employee Stock Purchase Plan, as amended and restated on April 30, 2009
(incorporated by reference to Exhibit 10.2 of the Registrant’s Current
Report on Form 8-K filed on May 6,
2009.
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4.2
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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).
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4.3
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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).
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5.1
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Opinion
of Dillon, Bitar & Luther,
L.L.C.*
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23.1
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Consent
of Dillon, Bitar & Luther, L.L.C (included in its opinion
filed as Exhibit 5.1 in this Registration
Statement).*
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23.2
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Consent
of Deloitte & Touche LLP.*
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24.1
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Powers
of Attorney (included on the signature pages to this Registration
Statement).*
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