NEOPHOTONICS CORP (Form: S-8, Received: 02/02/2011 17:19:17)

Large Accelerated filer

Accelerated filer

Non-accelerated Filer

x (Do not check if a smaller reporting company)

Smaller reporting company

As filed with the Securities and Exchange Commission on February 2, 2011

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

NEOPHOTONICS CORPORATION

(Exact name of registrant as specified in its charter)

Delaware

94-3253730

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification No.)

NeoPhotonics Corporation

2911 Zanker Road

San Jose, California 95134

(408) 232-9200

(Address of principal executive offices)

2004 Stock Option Plan

2010 Equity Incentive Plan

2010 Employee Stock Purchase Plan

(Full title of the plans)

Timothy S. Jenks

Chief Executive Officer

c/o NeoPhotonics Corporation

2911 Zanker Road

San Jose, California 95134

(408) 232-9200

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

John H. Sellers, Esq.

Cooley LLP

3175 Hanover Street

Palo Alto, California 94304

(650) 843-5000

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):

CALCULATION OF REGISTRATION FEE



Title of Securities to be Registered	Amount to be Registered ⁽¹⁾	Proposed Maximum Offering Price Per Share ⁽²⁾	Proposed Maximum Aggregate Offering Price ⁽²⁾	Amount of Registration Fee
Common Stock, par value $0.0025 per share	3,211,778 shares	$5.8741- $11.00	$25,058,331	$2,909.27

(1)

Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s Common Stock that become issuable under the plans set forth herein by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of the Registrant’s Common Stock.

(2)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act. The offering price per share and the aggregate offering price are based upon (a) the weighted average exercise price for outstanding options granted under the Registrant’s 2004 Stock Option Plan, as amended, (b) the initial public offering price set forth on the cover page of the Registrant’s prospectus dated February 1, 2011 relating to its initial public offering which forms a part of a registration statement on Form S-1 (No. 333-166096). The chart below details the calculations of the proposed maximum aggregate offering price:


Securities	Number of Shares			Offering Price Per Share ⁽²⁾⁽³⁾			Aggregate Offering Price
Shares issuable upon the exercise of outstanding options granted under the 2004 Stock Option Plan		2,003,790		$	5.8741	^(2)(a)	$	11,770,463
Shares reserved for future grant under the 2010 Equity Incentive Plan		865,420	⁽³⁾	$	11.00	^(2)(b)	$	9,519,620
Shares reserved for future grant under the 2010 Employee Stock Purchase Plan		342,568	⁽⁴⁾	$	11.00	^(2)(b)	$	3,768,248
Proposed Maximum Aggregate Offering Price							$	25,058,331

(3)

The number of shares reserved for issuance under the Registrant’s 2010 Equity Incentive Plan will automatically increase on January 1st each year, starting on January 1, 2012 and continuing through January 1, 2020, by 3.5% of the total number of shares of the Registrant’s Common Stock outstanding on the last day of the preceding calendar year, or such number of shares of Common Stock as determined by the Registrant’s board of directors.

(4)

The number of shares reserved for issuance under the Registrant’s 2010 Employee Stock Purchase Plan will automatically increase on January 1st each year, starting January 1, 2012 and continuing through January 1, 2020, by the lesser of 3.5% of the total number of shares of the Registrant’s Common Stock outstanding on the last day of the preceding calendar year, 600,000 shares, or such number of shares of Common Stock as determined by the Registrant’s board of directors.

INCORPORATION OF DOCUMENTS BY REFERENCE

The following documents filed by NeoPhotonics Corporation (the “Registrant”) with the Securities and Exchange Commission (the “Commission”) are incorporated by reference into this Registration Statement:

(a) The Registrant’s prospectus filed on February 2, 2011 pursuant to Rule 424(b) under the Securities Act, relating to the registration statement on Form S-1 (File No. 333-166096), as amended, which contains audited financial statements for the Registrant’s latest fiscal year for which such statements have been filed.

(b) The description of the Registrant’s Common Stock which is contained in a registration statement on Form 8-A filed on January 28, 2011 (File No. 001-35061), under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

(c) All other reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment 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 herein and to be a part of this registration statement from the date of the filing of such reports and documents.

DESCRIPTION OF SECURITIES

Not applicable.

INTERESTS OF NAMED EXPERTS AND COUNSEL

Not applicable.

INDEMNIFICATION OF DIRECTORS AND OFFICERS

The Registrant’s certificate of incorporation, as in effect upon completion of the initial public offering, includes a provision that eliminates, to the fullest extent permitted by law, the personal liability of a director for monetary damages resulting from breach of his fiduciary duty as a director.

The Registrant’s bylaws, as in effect upon completion of the initial public offering, provide that:

•

the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions;

•

the Registrant may indemnify its other employees and agents as provided in indemnification contracts entered into between the Registrant and its employees and agents;

•

the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions; and

•

the rights conferred in the bylaws are not exclusive.

In addition to the indemnification required in the Registrant’s certificate of incorporation and bylaws, the Registrant has entered into indemnity agreements with each of its current directors and officers. These agreements provide for the indemnification of the Registrant’s directors and officers for all reasonable expenses and liabilities incurred in connection with any action or proceeding brought against them by reason of the fact that they are or were agents of the Registrant. The Registrant has also obtained directors’ and officers’ insurance to cover its directors, officers and some of its employees for liabilities, including liabilities under securities laws. The Registrant believes that these indemnification provisions and agreements and this insurance are necessary to attract and retain qualified directors and officers.

A stockholder’s investment may be adversely affected to the extent the Registrant pays the costs of settlement and damage awards against directors and officers as required by these indemnification provisions. At present, there is no pending litigation or proceeding involving any of the Registrant’s directors, officers or employees regarding which indemnification by us is sought, nor is the Registrant aware of any threatened litigation that may result in claims for indemnification.

EXEMPTION FROM REGISTRATION CLAIMED

Not applicable.

EXHIBITS


Exhibit Number		Exhibit Title

3.1 ⁽¹⁾		Amended and Restated Certificate of Incorporation of NeoPhotonics Corporation, as currently in effect.

3.2 ⁽²⁾		Form of Amended and Restated Certificate of Incorporation of NeoPhotonics Corporation, to be effective immediately upon the closing of the initial public offering.

3.3 ⁽³⁾		Bylaws of NeoPhotonics Corporation, as currently in effect.

3.4 ⁽⁴⁾		Form of Amended and Restated Bylaws of NeoPhotonics Corporation, to be effective upon the closing of the initial public offering.

4.1 ⁽⁵⁾		Specimen Common Stock Certificate of NeoPhotonics Corporation.

5.1		Opinion of Cooley LLP .

23.1		Consent of Cooley LLP (included in Exhibit 5.1).

23.2		Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.

24.1		Power of Attorney (reference is made to the signature page of this Form S-8).

99.1 ⁽⁶⁾		NeoPhotonics Corporation 2004 Stock Option Plan, as amended, and related documents.

99.2 ⁽⁷⁾		2010 Equity Incentive Plan and forms of agreement thereunder.

99.3 ⁽⁸⁾		2010 Employee Stock Purchase Plan.

(1)	Previously filed as the like numbered exhibit to Amendment No. 5 to the Registrant’s Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on January 18, 2011, and incorporated by reference herein.

(2)	Previously filed as Exhibit 3.3 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on November 19, 2010, and incorporated by reference herein.

(3)	Previously filed as Exhibit 3.4 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on November 19, 2010, and incorporated by reference herein.

(4)	Previously filed as Exhibit 3.5 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on November 19, 2010, and incorporated by reference herein.

(5)	Previously filed as the like numbered exhibit to the Registrant’s Registration Statement or Form S-1, as amended (333-166096), originally filed with the Commission on April 15, 2010, and incorporated by reference herein.

(6)	Previously filed as Exhibit 10.2 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on November 19, 2010, and incorporated by reference herein.

(7)	Previously filed as Exhibit 10.4 to Amendment No. 5 to the Registrant’s Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on January 18, 2011, and incorporated by reference herein.

(8)	Previously filed as Exhibit 10.5 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on November 19, 2010, and incorporated by reference herein.

UNDERTAKINGS

1 .	The undersigned Registrant hereby undertakes:

(a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;

(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference herein.

(b) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(d) That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;

(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;

(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and

(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.

The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, 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 San Jose, State of California, on this 2nd day of February, 2011.


N EO P HOTONICS C ORPORATION

By:		/s/ Timothy S. Jenks
		Timothy S. Jenks
		President, Chief Executive Officer and Chairman of the Board of Directors

POWER OF ATTORNEY

K NOW A LL P ERSONS B Y T HESE P RESENTS , that each person whose signature appears below constitutes and appoints T IMOTHY S. J ENKS and J AMES D. F AY , jointly and severally, as his true and lawful attorneys-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.


Signature	Title	Date

/s/ Timothy S. Jenks Timothy S. Jenks	President, Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer)	February 2, 2011

/s/ James D. Fay James D. Fay	Chief Financial Officer (Principal Financial and Accounting Officer)	February 2, 2011

/s/ Bandel L. Carano Bandel L. Carano	Director	February 2, 2011

/s/ Stephen T. Jurvetson Stephen T. Jurvetson	Director	February 2, 2011

/s/ Allan Kwan Allan Kwan	Director	February 2, 2011

/s/ Björn Olsson Björn Olsson	Director	February 2, 2011

/s/ Yat Bun Peng Yat Bun Peng	Director	February 2, 2011



/s/ Michael J. Sophie Michael J. Sophie	Director	February 2, 2011

/s/ T. Peter Thomas T. Peter Thomas	Director	February 2, 2011

/s/ Lee Sen Ting Lee Sen Ting	Director	February 2, 2011

EXHIBITS


Exhibit Number		Exhibit Title

3.1 ⁽¹⁾		Amended and Restated Certificate of Incorporation of NeoPhotonics Corporation, as currently in effect.

3.2 ⁽²⁾		Form of Amended and Restated Certificate of Incorporation of NeoPhotonics Corporation, to be effective immediately upon the closing of the initial public offering.

3.3 ⁽³⁾		Bylaws of NeoPhotonics Corporation, as currently in effect.

3.4 ⁽⁴⁾		Form of Amended and Restated Bylaws of NeoPhotonics Corporation, to be effective upon the closing of the initial public offering.

4.1 ⁽⁵⁾		Specimen Common Stock Certificate of NeoPhotonics Corporation.

5.1		Opinion of Cooley LLP .

23.1		Consent of Cooley LLP (included in Exhibit 5.1).

23.2		Consent of PricewaterhouseCoopers LLP , independent registered public accounting firm.

24.1		Power of Attorney (reference is made to the signature page of this Form S-8).

99.1 ⁽⁶⁾		NeoPhotonics Corporation 2004 Stock Option Plan, as amended, and related documents.

99.2 ⁽⁷⁾		2010 Equity Incentive Plan and forms of agreement thereunder.

99.3 ⁽⁸⁾		2010 Employee Stock Purchase Plan.

(1)	Previously filed as the like numbered exhibit to Amendment No. 5 to the Registrant’s Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on January 18, 2011, and incorporated by reference herein.

(2)	Previously filed as Exhibit 3.3 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on November 19, 2010, and incorporated by reference herein.

(3)	Previously filed as Exhibit 3.4 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on November 19, 2010, and incorporated by reference herein.

(4)	Previously filed as Exhibit 3.5 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on November 19, 2010, and incorporated by reference herein.

(5)	Previously filed as the like numbered exhibit to the Registrant’s Registration Statement or Form S-1, as amended (333-166096), originally filed with the Commission on April 15, 2010, and incorporated by reference herein.

(6)	Previously filed as Exhibit 10.2 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on November 19, 2010, and incorporated by reference herein.

(7)	Previously filed as Exhibit 10.4 to Amendment No. 5 to the Registrant’s Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on January 18, 2011, and incorporated by reference herein.

(8)	Previously filed as Exhibit 10.5 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on November 19, 2010, and incorporated by reference herein.

Exhibit 5.1

February 2, 2011

NeoPhotonics Corporation

2911 Zanker Road

San Jose, California 95134

Ladies and Gentlemen:

You have requested our opinion with respect to certain matters in connection with the filing by NeoPhotonics Corporation (the “ Company ”) of a Registration Statement on Form S-8 (the “ Registration Statement ”) with the U.S. Securities and Exchange Commission covering the offering of up to (i) two million three thousand seven hundred ninety (2,003,790) shares of the Company’s Common Stock, par value $0.0025 per share (the “ Common Stock ”), pursuant to the Company’s 2004 Stock Option Plan (the “ 2004 Plan Shares ”); (ii) eight hundred sixty-five thousand four hundred twenty (865,420) shares of Common Stock pursuant to the Company’s 2010 Equity Incentive Plan (the “ 2010 EIP Shares ”); and (iii) three hundred forty-two thousand five hundred sixty-eight (342,568) shares of Common Stock pursuant to the Company’s 2010 Employee Stock Purchase Plan (the “ 2010 ESPP Shares ”).

In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the Company’s Amended and Restated Certificate of Incorporation and Bylaws, as currently in effect, (c) the Company’s Amended and Restated Certificate of Incorporation, filed as Exhibit 3.2 to the Company’s Registration Statement on Form S-1, as amended (the “ S-1 ”), and the Company’s Amended and Restated Bylaws, filed as Exhibit 3.4 to the S-1, each of which shall be in effect upon the closing of the offering contemplated by the S-1, (d) the Company’s 2004 Stock Option Plan (the “ 2004 Plan ”), the Company’s 2010 Equity Incentive Plan (the “ 2010 EIP ”), the Company’s 2010 Employee Stock Purchase Plan (the “ 2010 ESPP ”), and (e) the originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. As to certain factual matters, we have relied upon a certificate of officers of the Company and have not sought to independently verify such matters. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof.

Our opinion is expressed only with respect to the federal laws of the United States of America and the General Corporation Law of the State of Delaware. We express no opinion as to whether the laws of any particular jurisdiction other than those identified above are applicable to the subject matter hereof.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the 2004 Plan Shares, the 2010 EIP Shares and the 2010 ESPP Shares, when sold and issued in accordance with the 2004 Plan, the 2010 EIP and the 2010 ESPP, respectively, and the Registration Statement and related prospectuses, will be validly issued, fully paid and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and non-assessable when such deferred payments are made in full).

We consent to the filing of this opinion as an exhibit to the Registration Statement.


Sincerely,
Very truly yours,
C OOLEY LLP

By:		/s/ John H. Sellers
		John H. Sellers

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated April 15, 2010, except for Note 18, as to which the date is June 7, 2010 and except for Note 17, as to which the date is November 30, 2010, relating to the financial statements which appears in NeoPhotonics Corporation’s Amendment No. 7 to the Registration Statement on Form S-1 (No. 333-166096).

/s/ PricewaterhouseCoopers LLP

San Jose, CA

February 2, 2011