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
April
3, 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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145
Belmont Drive, Somerset, New Jersey, 08873
Address
of principal executive offices, including zip code
(732)
271-9090
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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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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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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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR
240.13e-4(c))
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Item
1.01 Entry
into a Material Definitive Agreement.
On
April
9, 2007, EMCORE Corporation (the “Company”) entered into a First Supplemental
Indenture (the “2004 Supplemental Indenture”) with Deutsche Bank Trust Company
Americas, as trustee (the “Trustee”), which amends the Indenture, dated as of
February 24, 2004 (the “2004 Indenture”), between the Company and the Trustee,
governing the Company’s 5% Convertible Senior Subordinated Notes due 2011 issued
thereunder (the “2004 Notes”). Also on April 9, 2007, the Company entered into a
First Supplemental Indenture (the “2005 Supplemental Indenture” and together
with the 2004 Supplemental Indenture, the “Supplemental Indentures”) with the
Trustee, which amends the Indenture, dated as of November 16, 2005 (the “2005
Indenture” and together with the 2004 Indenture, the “Indentures”), between the
Company and the Trustee, governing the Company’s 5% Convertible Senior
Subordinated Notes due 2011 issued thereunder (the “2005 Notes” and together
with the 2004 Notes, the “Notes”).
Each
Supplemental Indenture, among other things, increases the interest rate of
the
applicable Notes to 5.5% from 5.0%, reduces the Conversion Price (as defined
in
the applicable Indenture) from $8.09 to $7.01, provides for an increase in
the
Conversion Rate (as defined in the applicable Supplemental Indenture) in
the
event of a Non-Stock Change of Control (as defined in the applicable
Supplemental Indenture), amends the restriction on payment of dividends,
amends
the definition of “Events of Default” and provides for an additional payment in
certain circumstances in which the Company fails to comply with its reporting
obligations under the applicable Indenture. The Supplemental Indentures also
provide a waiver of the Company’s failure to file certain reports with the
Securities and Exchange Commission (the “SEC”). If the Company fails to file
such reports by December 31, 2007, the Company will be required to pay an
additional payment in the amount of .25%,
applied
on an annualized basis, of the principal amount of the Notes then outstanding
until the Company files such reports. If the Company has not filed the reports
by February 29, 2008, the Trustee or the holders of the Notes may declare
the
Notes immediately due and payable in accordance with the provisions of the
Indenture.
The
2004 Supplemental Indenture also amends the cancellation provisions of the
2004
Indenture to allow the Company to hold, exchange and sell 2004 Notes that
it has
purchased.
In
order
to give effect to the Supplemental Indentures, the Company entered into a
Consent to Amendment and Waiver, dated as of April 9, 2007 (the “2004 Consent”),
with certain holders of the 2004 Notes (the “2004 Consenting Holders”), and a
Consent to Amendment and Waiver, dated as of April 9, 2007 (the “2005 Consent”
and together with the 2004 Consent, the “Consents”), with the holder of the 2005
Notes (together with the 2004 Consenting Holders, the “Consenting Holders”),
pursuant to which holders of at least a majority of the outstanding 2004
Notes
and at least a majority of the 2005 Notes consented to the execution and
delivery of the 2004 Supplemental Indenture and the 2005 Supplemental Indenture,
respectively. The Consenting Holders also waived any and all Defaults (as
defined in the applicable Indenture) and Events of Default (as defined in
the
applicable Indenture) relating to any failure of the Company to observe or
perform any covenant or agreement contained in the Notes or the Indentures
as a
result of the Company’s failure to file with the SEC, or with the Trustee, its
Annual Report on Form 10-K for the year ended September 30, 2006, its Annual
Report on Form 10-Q for the quarter ended December 31, 2006 and/or any other
reports that the Company fails to file in a timely manner for reasons in
whole
or in part directly or indirectly attributable to or arising out of the
Company’s review of its historical stock option grants as initially reported in
the Company’s Current Report on Form 8-K filed with the SEC on November 6, 2006.
The Consenting Holders agree to rescind any notice of acceleration delivered
to
the Company with respect to such failure to file.
The
Consents also provide the Company with the option to repurchase an aggregate
of
$11.43 million of the outstanding principal amount of the Notes held by the
Consenting Holders at a purchase price equal to $1,000 per $1,000 principal
amount of the Notes purchased, plus accrued and unpaid interest, if any,
to but
excluding the date of purchase. The 2005 Consent provides that the Company
will
not exercise its option to purchase 2005 Notes unless it is also exercising
its
option to purchase 2004 Notes pursuant to the 2004 Consent and that, as soon
as
reasonably practicable after the Company purchases Notes pursuant to the
Consents, the Company will exchange the 2005 Notes purchased from the holders
thereof with 2004 Notes purchased under the 2004 Consent. The option must
be
exercised by the Company by April 16, 2007. The Company intends to exercise
the
option by such date.
A
copy of
each of the 2004 Supplemental Indenture, 2005 Supplemental Indenture, 2004
Consent and 2005 Consent is attached hereto as Exhibit 4.1, 4.2, 10.1 and
10.2,
respectively. The foregoing summary of the Supplemental Indentures and the
Consents is qualified in its entirety by reference to the Supplemental
Indentures and the Consents, which are filed as exhibits to this Current
Report
on Form 8-K and are hereby incorporated herein by reference thereto.
Item
2.03 Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant.
As
described in Item 1.01 above, certain circumstances will require the
payment of additional interest on the Notes as set forth in the Supplemental
Indentures. The information set forth above under Item 1.01 “Entry into a
Material Definitive Agreement” is incorporated by reference into this
Item 2.03.
Item
2.04 Triggering
Events That Accelerate or Increase a Direct Financial Obligation or an
Obligation Under an Off-Balance Sheet Arrangement.
As
previously disclosed, on January 12, 2007, the Company received two letters
purporting to constitute notices of default from persons claiming to hold
more
than 25% of the 2004 Notes. On January 30, 2007, the Company received three
additional letters purporting to constitute notices of default from Cede
&
Co., the nominee of The Depository Trust Company (“DTC”)
and
the Holder of record of $21,000,000 in aggregate principal amount of the
2004
Notes. The letters alleged that the Company was in default under the 2004
Indenture as a result of the Company’s failure to timely file with the SEC its
Annual Report on Form 10-K for the fiscal year ended September 30, 2006 (the
“10-K”)
by
December 14, 2006. As stated in the prior disclosure, the Company does not
believe that a default has occurred; however, if the Company’s interpretation is
not correct, then unless the Company cured the default by filing with the
SEC
within 60 days of its receipt of the notices, the alleged default under the
Indenture would ripen into an “event of default” under the Indenture, permitting
the Trustee or the holders of 25% in aggregated principal amount of the 2004
Notes to declare all unpaid principal and accrued interest on the Notes then
outstanding to be immediately due and payable.
On
April
5, 2007, the Company received a notice of acceleration (the “Notice
of
Acceleration”)
dated
April 5, 2007, from a single holder of at least 25% in aggregate principal
amount of the 2004 Notes informing the Company that, pursuant to the 2004
Indenture, the holder has declared the 2004 Notes due and payable at their
principal amount together with accrued and unpaid interest. As
described in Item 1.01 above, the 2004 Consent includes a provision whereby
the
2004 Consenting Holders, including the single holder that sent the Notice
of
Acceleration, rescinded the Notice of Acceleration.
Item
3.03 Material
Modifications to Rights of Security Holders.
The
information set forth above under Item 1.01 “Entry into a Material
Definitive Agreement” is incorporated by reference into this
Item 3.03.
Item
8.01 Other
Events.
On
April
3, 2007,
the
Company received notice from the Nasdaq Stock Market that the Nasdaq Listing
Qualifications Panel has granted the Company’s request for continued listing on
the Nasdaq Stock Market subject to certain conditions. The extension is
conditioned on the Company filing both its Form 10-K for the fiscal year
ended
September 30, 2006 and its Form 10-Q for the quarter ended December 31, 2006
with the SEC by no later than May 10, 2007. While the Company is making every
effort to satisfy the terms of the extension, it can provide no assurances
that
it will ultimately be able to do so. If the Company is unable to file both
the
required Forms 10-K and 10-Q with the SEC by May 10, 2007, the Company intends
to request an additional extension from the Panel prior to May 10,
2007.
ITEM
9.01 Financial
Statements and Exhibits.
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Exhibits
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Exhibit
Number
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Exhibit
Description
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4.1
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First
Supplemental Indenture, dated as of April 9, 2007, by and between
EMCORE
Corporation and Deutsche Bank Trust Company Americas, as trustee,
amending
the Indenture, dated as of February 24, 2004, by and between EMCORE
Corporation and Deutsche Bank Trust Company Americas, as
trustee
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4.2
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First
Supplemental Indenture, dated as of April 9, 2007, by and between
EMCORE
Corporation and Deutsche Bank Trust Company Americas, as trustee,
amending
the Indenture, dated as of November 16, 2005, by and between EMCORE
Corporation and Deutsche Bank Trust Company Americas, as
trustee
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10.1
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Consent
to Amendment and Waiver, dated as of April 9, 2007, by and among
EMCORE
Corporation and certain holders of the 2004 Notes party
thereto
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10.2
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Consent
to Amendment and Waiver, dated as of April 9, 2007, by and between
EMCORE
Corporation and the holder of the 2005 Notes
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99.1
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Press
Release, dated April 9, 2007
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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:
April 9, 2007
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By: /s/
Adam Gushard
Name:
Adam Gushard
Title:
Interim Chief Financial
Officer
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EXHIBIT
INDEX
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Exhibit
Number
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Exhibit
Description
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4.1
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First
Supplemental Indenture, dated as of April 9, 2007, by and between
EMCORE
Corporation and Deutsche Bank Trust Company Americas, as trustee,
amending
the Indenture, dated as of February 24, 2004, by and between EMCORE
Corporation and Deutsche Bank Trust Company Americas, as
trustee
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4.2
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First
Supplemental Indenture, dated as of April 9, 2007, by and between
EMCORE
Corporation and Deutsche Bank Trust Company Americas, as trustee,
amending
the Indenture, dated as of November 16, 2005, by and between EMCORE
Corporation and Deutsche Bank Trust Company Americas, as
trustee
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10.1
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Consent
to Amendment and Waiver, dated as of April 9, 2007, by and among
EMCORE
Corporation and certain holders of the 2004 Notes party
thereto
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10.2
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Consent
to Amendment and Waiver, dated as of April 9, 2007, by and between
EMCORE
Corporation and the holder of the 2005 Notes
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99.1
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Press
Release, dated April 9, 2007
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