EMKR 10-K Annual Report Sept. 30, 2023 | Alphaminr
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EMKR 10-K Fiscal year ended Sept. 30, 2023

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EMCORE CORP
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TABLE OF CONTENTS
Part IItem 1. BusinessItem 1A. Risk FactorsItem 1B. Unresolved Staff CommentsItem 2. PropertiesItem 3. Legal ProceedingsItem 4. Mine Safety DisclosuresPart IIItem 5. Market For Registrant S Common Equity, Related Stockholder Matters and Issuer Purchases Of Equity SecuritiesItem 6. [reserved]Item 7. Management S Discussion and Analysis Of Financial Condition and Results Of OperationsItem 7A. Quantitative and Qualitative Disclosures About Market RiskItem 8. Financial Statements and Supplementary DataNote 1. Description Of BusinessNote 2. Summary Of Significant Accounting PoliciesNote 3. AcquisitionsNote 4. Cash, Cash Equivalents, and Restricted CashNote 5. Accounts Receivable, NetNote 6. InventoryNote 7. Property, Plant, and Equipment, NetNote 8. Intangible Assets and GoodwillNote 9. Benefit PlansNote 10. Accrued Expenses and Other Current LiabilitiesNote 11. Credit AgreementNote 12. Income and Other TaxesNote 13. Commitments and ContingenciesNote 14. EquityNote 15. Revenue InformationNote 16. Discontinued OperationsNote 17. Subsequent EventsItem 9. Changes in and Disagreements with Accountants on Accounting and Financial DisclosureItem 9A. Controls and ProceduresItem 9B. Other InformationItem 9C. Disclosure Regarding Foreign Jurisdictions That Prevent InspectionsPart IIIItem 10. Directors, Executive Officers and Corporate GovernanceItem 11. Executive CompensationItem 12. Security Ownership Of Certain Beneficial Owners and Management and Related Stockholder MattersItem 13. Certain Relationships and Related Transactions, and Director IndependenceItem 14. Principal Accountant Fees and ServicesPart IVItem 15. Exhibit and Financial Statement SchedulesItem 16. Form 10-k Summary

Exhibits

2.1 Asset Purchase Agreement, dated as of August 9, 2021, by and among EMCORE Corporation, Shenzhen Fastrain Technology Co., Ltd. and Hong Kong Fastrain Company Limited (incorporated by reference to Exhibit 2.1 to the Companys Current Report on Form 8-K filed on August 11, 2021). 2.2 Sale Agreement, dated as of February 14, 2022, by and among EMCORE Corporation, Ringo Acquisition Sub, Inc., and L3Harris Technologies, Inc. (incorporated by reference to Exhibit 2.1 to the Companys Current Report on Form 8-K filed on February 15, 2022). 2.3 First Amendment to Sale Agreement, dated as of March 1, 2022, by and among EMCORE Corporation, Ringo Acquisition Sub, Inc., and L3Harris Technologies, Inc. (incorporated by reference to Exhibit 2.2 to the Companys Current Report on Form 8-K filed on May 2, 2022). 2.4 Second Amendment to Sale Agreement, dated as of March 31, 2022, by and among EMCORE Corporation, Ringo Acquisition Sub, Inc., and L3Harris Technologies, Inc. (incorporated by reference to Exhibit 2.3 to the Companys Current Report on Form 8-K filed on May 2, 2022). 2.5 Third Amendment to Sale Agreement, dated as of April 29, 2022, by and among EMCORE Corporation, Ringo Acquisition Sub, Inc., and L3Harris Technologies, Inc. (incorporated by reference to Exhibit 2.4 to the Companys Current Report on Form 8-K filed on May 2, 2022). 2.6 Asset Purchase Agreement, dated as of August 9, 2022, by and among EMCORE Corporation, Delta Acquisition Sub, Inc., and KVH Industries, Inc. (incorporated by reference to Exhibit 1.1 to the Companys Current Report on Form 8-K filed on August 9, 2022). 2.7 Purchase and Sale Agreement, dated as of November 1, 2022, by andbetweenEMCORE Chicago Inertial Corporation and HSRE Fund VII Holding Company, LLC (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed on November 3, 2022). 2.8 Asset Purchase Agreement, dated as of October 11, 2023, by and among EMCORE Corporation, Photonics Foundries, Inc. and Ortel LLC (incorporated by reference to Exhibit 2.1 to the Companys Current Report on Form 8-K filed on October 12, 2023). 3(i).1 Restated Certificate of Incorporation, dated April4, 2008 (incorporated by reference to Exhibit3.1 to the Companys Current Report on Form8-K filed on April4, 2008). 3(i).2 Certificate of AmendmenttotheRestated Certificate of Incorporation of EMCORE Corporation, dated February15, 2012 (incorporated by reference to Exhibit3.1 to the Companys Current Report on Form8-K filed on February16, 2012). 3(i).3 Certificate of Amendment to the Restated Certificate of Incorporation of EMCORE Corporation, dated September 18, 2014 (incorporated by reference to Exhibit 3.1 to the Companys Current Report on Form 8-K filed on September 18, 2014). 3(i).4 Certificate of Amendment to the Restated Certificate of Incorporation,dated March 19, 2018 (incorporated by reference to Exhibit3.1 to the Companys Current Report on Form8-K filed on March20, 2018). 3(i).5 Certificate of Amendment to the Restated Certificate of Incorporation,dated May 12, 2021 (incorporated by reference to Exhibit 3.1 to the Companys Current Report on Form 8-K filed on May 13, 2021). 3(i).6 Certificate of Designation Establishing the SeriesA Junior Participating Preferred Stock and Fixing the Powers, Designations, Preferences and Relative, Participating, Optional and Other Special Rights, and the Qualifications, Limitations and Restrictions, of the SeriesA Junior Participating Preferred Stock, dated September18, 2014 (incorporated by reference to Exhibit3.1 to the Companys Current Report on Form8-K filed on September18, 2014). 3(i).7 Certificate of Designation of Series B Junior Participating Preferred Stock of EMCORE Corporation (incorporated by reference to Exhibit 3.1 to the Companys Current Report on Form 8-K filed on September 28, 2023). 3(ii).1** By-Laws of EMCORE Corporation, as amended through November 2, 2022. 4.1 Specimen Certificate for Shares of Common Stock (incorporated by reference to Exhibit4.1 to the Companys Annual Report on Form10-K filed on December6, 2017). 4.2** Description of EMCORE Corporation Capital Stock. 4.3 Section 382 Tax Benefits Preservation Plan, dated as of September 28, 2023, by and betweenEMCORE Corporationand Equiniti Trust Company, LLC, as Rights Agent (incorporated by reference to Exhibit 4.1 to the Companys Current Report on Form 8-K filed on September 28, 2023). 10.1 Form of Pre-Funded Warrant (incorporated by reference to Exhibit 4.1 to the Companys Current Report on Form 8-K filed on August 17, 2023). 10.2 Stipulation of Compromise and Settlement, dated as of November28, 2007, executed byEMCORECorporationand the other defendants and the plaintiffs in the Federal Court Action and the State Court Actions (incorporated by reference to Exhibit10.19 to the Companys Annual Report on Form10-K filed on December31, 2007). 10.3 Directors Compensation Policy (effective March18, 2021) (incorporated by reference to Exhibit10.2 to the Companys Quarterly Report on Form10-Q filed on May7, 2021). 10.4 Officer and Director Share Purchase Plan (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed on January 27, 2011). 10.5 Formof Indemnification Agreement entered into with directors and executive officers (incorporated by reference to Exhibit10.2 of the Companys Quarterly Report on Form10-Q filed on August 8, 2020). 10.6 Employment Agreement, dated December10, 2014, by and between EMCORE Corporation and Jeff Rittichier (incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed on December11, 2014). 10.7 Employment Agreement, dated August7, 2019, by and between EMCORE Corporation and Tom Minichiello (incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed on August12, 2019). 10.8 Separation and General Release Agreement, entered into as of January 3, 2023, by and between EMCORE Corporation and Albert Lu (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed on January 9, 2023). 10.9** Executive Severance and Change In Control Agreement, dated May 17, 2023, by and between EMCORE Corporation and Iain Black. 10.10 2010 Equity Incentive Plan, as amended and restated on June 14, 2011 (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed on June 16, 2011). 10.11 Amended and Restated EMCORE Corporation 2019 Equity Incentive Plan, as amended and restated on December8, 2022(incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed on March 14, 2023). 10.12 Formof Time-Based Restricted Stock Unit Award under the EMCORE Corporation 2019 Equity Incentive Plan (incorporated by reference to Exhibit10.2 to the Companys Current Report on Form8-K filed on March27, 2019). 10.13 Formof Performance-Based Restricted Stock Unit Award under the EMCORE Corporation 2019 Equity Incentive Plan (incorporated by reference to Exhibit10.3 to the Companys Current Report on Form8-K filed on March27, 2019). 10.14 Form of Time-Based Restricted Stock Unit Award (for directors) under the Amended and Restated EMCORE Corporation 2019 Equity Incentive Plan (as of March 2021) (incorporated by reference to Exhibit 10.3 to the Companys Quarterly Report on Form 10-Q filed on May 7, 2021). 10.15 Form of Performance-Based Restricted Stock Unit Award (for executive officers) under the Amended and Restated EMCORE Corporation 2019 Equity Incentive Plan (incorporated by reference to Exhibit 10.4 to the Companys Quarterly Report on Form 10-Q filed on May 7, 2021). 10.16 Form of Performance-Based Restricted Stock Unit Award (for executive officers) under the Amended and Restated EMCORE Corporation 2019 Equity Incentive Plan (incorporated by reference to Exhibit 10.3 to the Companys Quarterly Report on Form 10-Q filed on May 5, 2022). 10.17 Form of Performance-Based Restricted Stock Unit Award (for executive officers) under the Amended and Restated EMCORE Corporation 2019 Equity Incentive Plan (incorporated by reference to Exhibit 10.5 to the Companys Quarterly Report on Form 10-Q filed on May 10, 2023). 10.18 EMCORE Corporation Short-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K filed on June 15, 2022). 10.19 EMCORE Corporation 2022 New Employee Inducement Plan (incorporated by reference to Exhibit 99.1 to the Company's Form S-8 Registration Statement filed on August 10, 2022). 10.20 Manufacturing Supply Agreement, dated as of August 9, 2021, by and among EMCORE Corporation, Shenzhen Fastrain Technology Co., Ltd. and Hong Kong Fastrain Company Limited (incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form 8-K filed on August 11, 2021). 10.21 Amendment to Manufacturing Supply Agreement, dated as of February 25, 2022,by and among EMCORE Corporation, Shenzhen Fastrain Technology Co., Ltd. and Hong Kong Fastrain Company Limited (incorporated by reference to Exhibit 10.1 to the Companys Quarterly Report on Form 10-Q filed on May 5, 2022). 10.22 Single-Tenant Triple Net Lease, dated as of February 10, 2020, by and between Systron Donner Inertial, Inc. and Eagle Rock Holdings, LP (incorporated by reference to Exhibit 10.3 to the Companys Current Report on Form 8-K filed on February 11, 2020). 10.23 Standard Industrial/Commercial Single-Tenant Lease Net, dated as of October 1, 2017, by and between EMCORE Corporation and CHESTNUT2015 LLC (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed on November 2, 2021). 10.24 First Amendment to Standard Industrial/Commercial Single-Tenant Lease Net, dated as of March 31, 2019, by and between EMCORE Corporation and CHESTNUT2015 LLC (incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form 8-K filed on November 2, 2021). 10.25 Second Amendment to Standard Industrial/Commercial Single-Tenant Lease Net, dated as of November 1, 2021, by and between EMCORE Corporation and CHESTNUT2015 LLC (incorporated by reference to Exhibit 10.3 to the Companys Current Report on Form 8-K filed on November 2, 2021). 10.26 Third Amendment to Industrial/Commercial Single-Tenant LeaseNet, dated as of November 10, 2022, by and between EMCORE Corporation and CHESTNUT2015 LLC (incorporated by reference to Exhibit 10.25 to the Company's Annual Report on Form 10-K filed on December 28, 2022). 10.27 Credit Agreement, dated as of August 9, 2022, among EMCORECorporation, EMCORE Space & Navigation Corporation, the lenders party thereto and Wingspire Capital LLC, as administrative agent for the lenders (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed on August 9, 2022). 10.28 First Amendment to Credit Agreement, dated as of October 25, 2022, among EMCORECorporation, the Domestic Subsidiaries of the Company party thereto, the lenders party thereto and Wingspire Capital LLC, as administrative agent for the lenders(incorporated by reference to Exhibit 10.29 to the Company's Annual Report on Form 10-K filed on December 28,2022). 10.29^ Single-Tenant Triple Net Lease, dated as of December 13, 2022, by and between EMCORE Chicago Inertial Corporation and 8400 W 185TH STREET INVESTORS, LLC (incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form 8-K filed on December 15,2022). 10.30 Lease Guaranty, dated as of December 13, 2022, by and between EMCORE Chicago Inertial Corporation and 8400 W 185TH STREET INVESTORS, LLC (incorporated by reference to Exhibit 10.3 to the Companys Current Report on Form 8-K filed on December 15, 2022). 10.31 Subsidiaries of the Company. 21.1** Consent of KPMG LLP, independent registered public accounting firm. 24.1 Certificate of Chief Executive Officer Pursuant to Section302 of the Sarbanes-Oxley Act of 2002. 31.1** Certificate of Chief Financial Officer Pursuant to Section302 of the Sarbanes-Oxley Act of 2002. 31.2** Certificate of Chief Executive Officer Pursuant to Section906 of the Sarbanes-Oxley Act of 2002. 32.1*** Certificate of Chief Financial Officer Pursuant to Section906 of the Sarbanes-Oxley Act of 2002. 32.2*** EMCORE Corporation Clawback Policy.