Mail Stop 0306
February 11, 2005
Via: US Mail and Facsimile to (732) 271- 0477
Mr. Thomas G. Werthan
Executive Vice President and Chief Financial Officer
Emcore Corporation
145 Belmont Drive
Somerset, NJ 08873
RE: Emcore Corporation
Form 10-K for the fiscal year ended September 30, 2004
File No. 000-22175
Dear Mr. Werthan:
We have reviewed your filing and have the following
comments.
We have limited our review to only your financial statements and
related disclosures and will make no further review of your
documents. Where indicated, we think you should revise your
document
in future filings in response to these comments. If you disagree,
we
will consider your explanation as to why our comment is
inapplicable
or a revision is unnecessary. Please be as detailed as necessary
in
your explanation. In some of our comments, we may ask you to
provide
us with supplemental information so we may better understand your
disclosure. After reviewing this information, we may or may not
raise additional comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
Form 10-K for the fiscal year ended September 30, 2004
Item 7. Management`s Discussion and Analysis
Results of Operations - Page 49
Discontinued Operations
1. We see that you sold your TurboDisc business in 2003. In future
filings, consider including the followings in your MD&A discussion
related to the discontinued business:
a. Discuss the likely effects on reported results and liquidity of
material contingent liabilities, such as product or environmental
liabilities or litigation, that may remain with you
notwithstanding
disposal of the underlying business;
b. If you retain a financial interest in the discontinued
component
or in the buyer of that component that is material to you, include
a
discussion of known trends, events, and uncertainties, such as the
financial condition and operating results of the issuer of the
security that may be reasonably expected to affect the amounts
ultimately realized on the investments.
Refer to SAB Topic 5-Z and FIN 45.
Severance Charges/Restructuring - Page 52
2. We see your MD&A disclosure of your severance/restructuring
charges. In future filings provide the following additional
disclosures for each separate restructuring activity:
a. Describe the specific conditions or events leading management
to
realign or consolidate certain operations, including specific
factors
related to products, processes, customers and/or market
conditions;
b. Identify the number and describe the nature of the positions
being
eliminated;
c. Disclose the intended effects of your restructuring on your
financial position, future operating results and liquidity;
d. Discuss details of each of the charges and how these amounts
were
determined;
e. Quantify the anticipated and actual cost savings derived from
your
restructuring efforts during the periods presented.
Refer to SFAS 146, EITF 94-3 and SAB Topic 5-P.
Impairment Charges - Page 54
3. We note your disclosure of $30.8 million non-cash impairment
charges related to fixed assets in fiscal 2002. Supplementally
tell
us and in future filings include the following additional
disclosures:
(a) Describe the facts and circumstances leading to the
impairment.
What specific events occurred that caused the impairment and when
did
those events occur?
(b) Disclose the method and significant assumptions used to
determine
the fair value.
4. In addition, supplementally and in future filings provide more
details of the inventory impairments recorded during each of the
periods. Please clarify whether the impaired inventory is
subsequently sold, scraped or otherwise disposed. The impact of
any
sales of this inventory on gross margins should also be addresses
in
future filings.
Liquidity and Capital Resources - Page 57
5. We note that your accounts receivable balance increased
significantly for the fiscal year ended 2004 when compared with
the
fiscal year ended 2003. In future filings provide details of the
reasons for the significant changes in balance sheet amounts.
6. In future filings, remove the subtotal and caption "adjusted
loss
from continuing operations" from the disclosures on page 58 or
tell
us how this non-GAAP measure complies with the requirements of
Item
10 of Regulation S-K.
7. Please provide details of how the $12.3 million gain on early
extinguishment of debt was determined. In addition, tell us
whether
the conversion price of $8.06 per share represents fair market
value
at the date of the note exchange.
Financial Statements
Note 2: Summary of Significant Accounting Principles and Policies
Valuation of Goodwill and Intangible Assets- Page 71
8. Supplementally and in future filings provide more details of
the
goodwill impairment test, including when the test is performed
each
year and the reporting units identified and used in the test. In
addition, provide more details of the results of the most recent
test, which did not result in any impairment.
Revenue Recognition - Page - 72
9. We note on page 22 that you utilize distributors to market
products in certain foreign locations. Please tell us whether you
recognize revenue upon shipment of product to distributors or upon
shipment of product to third party customers of distributors. If
you
recognize revenue on shipment of product to distributors, tell us
why
you believe this practice is appropriate. Clarify whether these
arrangements have any rights of return, customer acceptance, price
protection, sales incentives or other discounts that impact
revenue
recognition. In future filings, revise to expand your revenue
recognition policy to specifically address transactions with
distributors.
10. With respect to product sales, revise and expand future
filings
to describe the nature and extent of any post shipment
obligations,
customer acceptance or rights of return and how those obligations
are
considered in your revenue practices.
11. In future filings clarify the accounting for contract revenue.
Are these amounts included in revenue or is this reflected as a
reduction to expenses as a cost reimbursement activity? Clarify
the
basis for the accounting treatment.
Product Warranty Reserves - Page 73
12. Revise and expand future filings to include all the disclosure
requirements of FIN 45. Refer to paragraphs 13 through 16 of FIN
45.
Note 3 - Stock Options and Warrants - Page 75
13. We note that you issued a total of 2,972,149 options in
exchange
for tendered options on May 1, 2003. Clarify the accounting for
these options and those not tendered. Tell us how you considered
paragraph 171 of EITF 00-23 in the voluntary stock options
exchange.
Revise future filings as necessary.
Note 6 - Impairment and Severance Charges - Page 78
14. For each restructuring program, supplementally provide us with
a
roll-forward reconciliation of the beginning and ending liability
balances showing separately the changes during the period
attributable to costs incurred and charges to expenses, costs paid
or
settled, and any adjustments to the liability. Refer to SFAS 146
for
guidance. Revise future filings as necessary.
Note 7 - GELcore (HB-LED) Joint Venture- Page 79
15. Provide the summarized financial information required by Rule
4-
08 (g) of Regulation S-X for the equity investment in GELcore in
future filings or tell us why this information is not required.
Note 13 - Related Parties - Page 85
16. Revise future filings to state separately on the face of the
balance sheet, amounts receivable from related parties since the
total related party notes receivable exceeded 10 percent of total
receivables. Refer to Rule 5-02-3(a) and (b) of Regulation S-X.
Note 14 - Segment Data and Related Information - Page 86
17. It appears that you have several different operating segments;
based on the nature of the products that you sell and the types of
customers that you have. Additionally, it appears that your chief
operating decision maker has access to and reviews detailed
financial
information, such as total sales to customers in several different
markets. Please revise future filings to comply with the
disclosure
requirements of SFAS 131 or tell us how you applied the guidance
in
paragraphs 10 through 24.
* * * *
As appropriate, please respond to these comments within 10
business days or tell us when you will provide us with a response.
Please furnish a cover letter with your response that keys your
responses to our comments and provides any requested supplemental
information. Detailed cover letters greatly facilitate our
review.
Please file your cover letter on EDGAR. Please understand that we
may have additional comments after reviewing your responses to our
comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require.
Since the company and its management are in possession of all
facts
relating to a company`s disclosure, they are responsible for the
accuracy and adequacy of the disclosures they have made.
In connection with responding to our comments, please
provide,
in writing, a statement from the company acknowledging that
* the company is responsible for the adequacy and accuracy of the
disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the company may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in our review of your filing or in
response to our comments on your filing.
You may contact Patrick Enunwaonye, Staff Accountant, at
(202)
824-5529 or me, at (202) 942-1791 if you have questions regarding
comments on the financial statements and related matters. In this
regard, do not hesitate to contact Martin James, Senior Assistant
Chief Accountant, at (202) 942-1984 with any other concerns.
Sincerely,
Brian Cascio
Accounting Branch Chief
??
??
??
??
Mr. Thomas G. Werthan
Emcore Corporation
February 11, 2005
Page 1 of 6