-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OGosBvVZVt9oLA/4HoMa97knBnWy1V/ImUIIkiz7Zv4SGVzroSbgrbcy4Dz2pBuU FniPT2eL7EVEsl/7q/hWNQ== 0000950144-00-000058.txt : 20000107 0000950144-00-000058.hdr.sgml : 20000107 ACCESSION NUMBER: 0000950144-00-000058 CONFORMED SUBMISSION TYPE: 10-K/A PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 19990930 FILED AS OF DATE: 20000106 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EMCORE CORP CENTRAL INDEX KEY: 0000808326 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPONENTS & ACCESSORIES [3670] IRS NUMBER: 222746503 FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 10-K/A SEC ACT: SEC FILE NUMBER: 000-22175 FILM NUMBER: 502448 BUSINESS ADDRESS: STREET 1: 394 ELIZABETH AVENUE CITY: SOMERSET STATE: NJ ZIP: 08873 BUSINESS PHONE: 908271-909 MAIL ADDRESS: STREET 1: 394 ELIZABETH AVE CITY: SOMERSET STATE: NJ ZIP: 08873 10-K/A 1 EMCORE CORPORATION 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-K/A [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended September 30, 1999 [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from _______ to _______ Commission File Number: 0-22175 EMCORE CORPORATION (Exact name of registrant as specified in its charter) NEW JERSEY 22-2746503 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 394 ELIZABETH AVENUE, SOMERSET, NJ 08873 (Address of principal executive offices) (zip code) Registrant's telephone number, including area code: (732) 271-9090 Securities registered pursuant to Section 12(b) of the Act: NONE Securities registered pursuant to Section 12(g) of the Act: COMMON STOCK, NO PAR VALUE Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ] Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein and will not be contained, to the best of the registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [ ] The aggregate market value of common stock held by non-affiliates of the registrant as of December 1, 1999 was approximately $205,186,625 (based on the closing sale price of $23 15/16 per share). The number of shares outstanding of the registrant's no par value common stock as of December 1, 1999 was 13,565,769. DOCUMENTS INCORPORATED BY REFERENCE Portions of the registrant's definitive Proxy Statement for the 2000 Annual Meeting of Shareholders (to be filed with the Securities and Exchange Commission on or before January 28, 2000) are incorporated by reference in Part III of this Form 10-K/A. -1- 2 PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K.
PAGE REFERENCE --------- 14(a)(1) FINANCIAL STATEMENTS: Included in Part II, Item 8 of this report: Consolidated Balance Sheets as of September 30, 1998 and 1999 31 Consolidated Statements of Operations for the years ended September 30, 1997, 1998 and 1999 32 Consolidated Statements of Shareholders' Equity for the years ended September 30, 1997, 1998 and 1999 33 Consolidated Statements of Cash Flows for the years ended September 30, 1997, 1998 and 1999 34-35 Notes to financial statements 36-54 Report of independent accountants 55 14(a)(2) FINANCIAL STATEMENT SCHEDULE: Included in Part IV of this report: Schedule II - Valuation and qualifying accounts and reserves 63
Other schedules have been omitted since they are either not required or not applicable. -58- 3 14(A)(3) EXHIBITS
EXHIBIT NO. DESCRIPTION 3.1 Restated Certificate of Incorporation, dated March 31, 1999.+ 3.2 Amended By-Laws, as amended January 11, 1989 (incorporated by reference to Exhibit 3.2 to Amendment No. 1 to the 1997 S-1). 4.1 Specimen certificate for shares of common stock (incorporated by reference to Exhibit 4.1 to Amendment No. 3 to the 1997 S-1). 4.2 Form of $11.375 Warrant (incorporated by reference to Exhibit 4.2 to EMCORE's filing on Form 10-K, dated December 29, 1998). 10.1 1995 Incentive and Non-Statutory Stock Option Plan (incorporated by reference to Exhibit 10.1 to Amendment No. 1 to the 1997 S-1). 10.2 1996 Amendment to Option Plan (incorporated by reference to Exhibit 10.2 to Amendment No. 1 to the 1997 S-1). 10.3 Specimen Incentive Stock Option Agreement (incorporated by reference to Exhibit 10.3 to Amendment No. 1 to the 1997 S-1). 10.4 Second Amended and Restated Distribution Agreement dated as of March 31, 1998 between EMCORE and Hakuto (incorporated by reference to Exhibit 10.4 to EMCORE's filing on Form 10-K/A, dated May 17, 1999). Confidential Statement has been requested by EMCORE for portions of this document. Such portions are indicated by "[*]". 10.5 Amendment to Lease for premises at 394 Elizabeth Avenue, Somerset, New Jersey 08873 (incorporated by reference to Exhibit 10.5 to Amendment No. 1 to the 1997 S-1). 10.6 Registration Rights Agreement relating to September 1996 warrant issuance (incorporated by reference to Exhibit 10.6 to Amendment No. 1 to the 1997 S-1). 10.7 Registration Rights Agreement relating to December 1996 warrant issuance (incorporated by reference to Exhibit 10.7 to Amendment No. 1 to the 1997 S-1). 10.8 Form of 6% Subordinated Note Due May 1, 2001 (incorporated by reference to Exhibit 10.8 to Amendment No. 1 to the 1997 S-1). 10.9 Form of 6% Subordinated Note Due September 1, 2001 (incorporated by reference to Exhibit 10.9 to Amendment No. 1 to the 1997 S-1). 10.10 Form of $4.08 Warrant (incorporated by reference to Exhibit 10.10 to Amendment No. 1 to the 1997 S-1).
4 EXHIBIT INDEX - (CONTINUED)
EXHIBIT NO. DESCRIPTION 10.11 Form of $10.20 Warrant (incorporated by reference to Exhibit 10.12 to Amendment No. 1 to the 1997 S-1). 10.12 Consulting Agreement dated December 6, 1996 between EMCORE and Norman E. Schumaker (incorporated by reference to Exhibit 10.14 to Amendment No. 1 to the 1997 S-1). 10.13 Purchase Order issued to EMCORE by General Motors Corporation on November 17, 1996. (incorporated by reference to Exhibit 10.15 to Amendment No. 1 to the 1997 S-1). Confidential treatment has been requested by EMCORE with respect to portions of this document. Such portions are indicated by "[*]". 10.14 Acquisition Agreement, dated as of December 5, 1997, between EMCORE and MicroOptical Devices, Inc. (incorporated by reference to Exhibit 2 to EMCORE's filing on Form 8-K, dated December 22, 1997). 10.15 Purchase Agreement, dated November 30, 1998, by and between EMCORE, Hakuto UMI and UTC (incorporated by reference to Exhibit 10.15 to EMCORE's filing on Form 10-K, dated December 29, 1998). 10.16 Registration Rights Agreement, dated November 30, 1998 by and between EMCORE, Hakuto, UMI and UTC (incorporated by reference to Exhibit 10.16 to EMCORE's filing on Form 10-K, dated December 29, 1998). 10.17 Long Term Purchase Agreement dated November 24, 1998 by and between EMCORE and Space Systems/Loral, Inc. (incorporated by reference to Exhibit 10.17 to EMCORE's filing on Form 10-K/A, dated May 17, 1999). Confidential treatment has been requested by EMCORE for portions of this document. Such portions are indicated by "[*]". 10.18 Note Purchase Agreement dated as of May 26, 1999 by and between EMCORE and GE Capital Equity Investements, Inc. (incorporated by reference to Exhibit 10.18 to Amendment No. 2 to the 1998 S-3 filed on June 9, 1999). 10.19 Registration Rights Agreement dated as of May 26, 1999 by and between EMCORE and GE Capital Equity Investements, Inc. (incorporated by reference to Exhibit 10.19 to Amendment No. 2 to the 1998 S-3 filed on June 9, 1999). 10.20 $22.875 Warrant issued to General Electric Company (incorporated by reference to Exhibit 10.20 to Amendment No. 2 to the 1998 S-3 filed on June 9, 1999). 10.21 Transaction Agreement dated January 20, 1999 between General Electric Company and EMCORE (incorporated by reference to Exhibit 10.1 to EMCORE's filing on Form 10-Q/A, dated May 17, 1999). Confidential treatment has been requested by EMCORE for portions of this document. Such portions are indicated by "[*]". 10.22 Third Amendment to Revolving Loan and Security Agreement, dated as of December 1, 1999 between EMCORE and First Union National Bank.+
5 16 Letter of PricewaterhouseCoopers LLP ("PwC") dated January 4, 2000 regarding the Company's change in accountants and PwC's refusal to consent to the inclusion of its auditor's report for the Company's 1997 financial statements.* 21 Subsidiaries of the registrant.+ 23.1 Consent of Deloitte & Touche LLP.+ 27 Financial Data Schedule.+ - ---------- * Filed herewith + Filed previously 6 SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Somerset, State of New Jersey, on January 5, 2000. EMCORE CORPORATION By: /s/ REUBEN F. RICHARDS, JR. -------------------------------------------- Name: Reuben F. Richards, Jr. TITLE: PRESIDENT AND CHIEF EXECUTIVE OFFICER Pursuant to the requirements of the Securities Exchange Act of 1934, this report on Form 10-K has been signed below by the following persons on behalf of EMCORE Corporation in the capacities indicated, on January 5, 2000. SIGNATURE TITLE --------- ----- /s/ THOMAS J. RUSSELL Chairman of the Board and Director - ------------------------------ Thomas J. Russell /s/ REUBEN F. RICHARDS, JR. President, Chief Executive Officer and Director - ------------------------------ (Principal Executive Officer) Reuben F. Richards, Jr. /s/ THOMAS G. WERTHAN Vice President, Chief Financial Officer - ------------------------------ and Director (Principal Accounting and Thomas G. Werthan Financial Officer) /s/ HOWARD W. BRODIE Vice President and Secretary - ------------------------------ Howard W. Brodie /s/ RICHARD A. STALL Director - ------------------------------ Richard A. Stall /s/ ROBERT LOUIS-DREYFUS Director - ------------------------------ Robert Louis-Dreyfus /s/ HUGH H. FENWICK Director - ------------------------------ Hugh H. Fenwick /s/ SHIGEO TAKAYAMA Director - ------------------------------ Shigeo Takayama /s/ CHARLES T. SCOTT Director - ------------------------------ Charles T. Scott /s/ JOHN HOGAN Director - ----------------------------- John Hogan -61- EX-16 2 LETTER OF PRICEWATERHOUSECOOPERS 1 EXHIBIT 16 PRICEWATERHOUSECOOPERS - -------------------------------------------------------------------------------- PricewaterhouseCoopers LLP Brian J. Armstrong Office of the General Counsel 1301 Avenue of the Americas New York NY 10019-6013 Telephone (212) 259 1000 Facsimile (212) 259 1301 January 4, 2000 Direct phone 212-707-6728 Direct Fax 212-707-6717 Howard W. Brodie, Esq. Vice President and General Counsel Emcore Corporation 394 Elizabeth Avenue Somerset, New Jersey 08873 Re: Emcore Corporation Dear Mr. Brodie: In your letter of December 29, 1999 you have requested on behalf of Emcore Corporation (the "Company") that PricewaterhouseCoopers LLP ("PwC") promptly furnish the Company with a letter addressed to the Commission stating whether it agrees with the statements made by the Company in response to this Item 304(a) and, if not, stating the respects in which it does not agree." (A copy of your letter is enclosed herewith. We also enclose a copy of recent correspondence between the Company's litigation counsel and PwC.) This is PwC's response: 1. With respect to the first paragraph of the Company's Item 304(a) (the "Item"), PwC agrees with the first sentence, but does not have sufficient information to know whether the remainder of the paragraph is completely accurate. 2. With respect to the second paragraph of the Item, PwC does not have sufficient information to know whether the paragraph is completely accurate. PwC believes that Deloitte & Touche LLP was engaged earlier that May 13, 1999, and the Company appears to have acknowledged this in the fifth paragraph of the Item. 3. The statements in the third paragraph of the Item are accurate. 2 PricewaterhouseCoopers Howard W. Brodie, Esq. January 4, 2000 Page Two 4. With respect to the fourth paragraph of the Item, while PwC does not have information sufficient to state whether the paragraph is completely accurate, PwC is not aware of any "reportable events" as defined. 5. With respect to the fifth paragraph of the Item, PwC does not have sufficient information to know whether the paragraph is completely accurate. (See paragraph 2 above.) 6. With respect to the sixth paragraph of the Item, PwC disagrees with the implication that because PwC has provided consents in the past it is obligated to undertake a new engagement with respect to the Company's most recent request for a consent. 7. With respect to the seventh paragraph of the Item, PwC is not able to express a view on the accuracy of the Company's statement concerning the Company's belief. However, without regard to whatever the Company's belief may be, the statement that "PwC has refused to provide a report and written consent solely in retaliation to [sic] a lawsuit that the Company recently filed against PwC" is not accurate. As PwC previously has advised the Company in writing, the performance of procedures necessary to the provision of a written report and consent involves a new engagement. PwC is entitled and required to make a judgment as to whether it should undertake such a new engagement. For reasons that we believe to be sound, PwC has determined that it should not undertake the proposed engagement. Among other factors, PwC has taken into consideration that the Company has accused PwC of "racketeering" and fraud and, more recently, through the Company's outside litigation counsel, has threatened PwC with further legal action if the requested report and consent are not promptly forthcoming. These and other actions for which the management of the Company are responsible have led PwC to the conclusion not only that it should not, but that it cannot, enter into a new engagement -- no matter how limited -- with the Company. 3 PricewaterhouseCoopers Howard W. Brodie, Esq. January 4, 2000 Page Three 8. With respect to the eighth paragraph of the Item, the first two sentences of the paragraph are accurate. PwC does not have sufficient information to know whether the final sentence is accurate. Very truly yours, /s/ Brian J. Armstrong Brian J. Armstrong BJA/mi Enclosures cc: W. Scott Bayless, Esq. (with enclosures) -----END PRIVACY-ENHANCED MESSAGE-----