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
Date of Report (Date of earliest event reported): March 6, 2014
NEOPHOTONICS CORPORATION
(Exact name of registrant as specified in its charter)
| DELAWARE | 001-35061 | 94-3253730 | ||
| (State of incorporation) | (Commission File No.) | (IRS Employer Identification No.) |
NeoPhotonics Corporation
2911 Zanker Road
San Jose, California 95134
(Address of principal executive offices and zip code)
Registrant’s telephone number, including area code: (408) 232-9200
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 (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| ITEM 1.01 | ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT. |
On March 6, 2014, NeoPhotonics Corporation (the “ Company ”) entered into a Third Amendment to Credit Agreement (the “ Amendment ”) to that certain Revolving Credit and Term Loan Agreement (the “ Credit Agreement ”), dated as of March 21, 2013, with Comerica Bank, as Administrative Agent and Lead Arranger (the “ Agent ”), and the lenders from time to time party thereto. The Amendment provided for an extension until April 7, 2014 (or such later date as may be approved by the lenders) for the delivery of the Company’s financial statements and related reports for the first three fiscal quarters of the fiscal year ending December 31, 2013. This Amendment does not change the provisions of the previous amendment to Credit Agreement that provides that the financial statements of the Company and related annual report for the full fiscal year ending December 31, 2013 shall be delivered by the Company to the Agent as soon as the Company files such annual financial statements with the Securities and Exchange Commission on its Annual Report on Form 10-K, but in any event no later than May 1, 2014.
The foregoing description of the Amendment is not intended to be complete and is qualified in its entirety by reference to the full text of the Amendment, a copy of which is filed as Exhibit 10.1 hereto and incorporated by reference herein.
| ITEM 5.02 | DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS |
(d) Election of Director.
On March 6, 2014, the Board of Directors of the Company appointed Rajiv Ramaswami to the Board of Directors of the Company, to serve as a Class III director with a term to expire at the Company’s 2016 Annual Meeting of Stockholders or until such time as his successor is duly elected and qualified, or until the earlier of his death, resignation or removal.
Dr. Ramaswami will receive compensation for his service as a director in accordance with the Company’s compensation policies for non-employee directors, which are described under the caption “Director Compensation” in the Company’s definitive proxy statement filed with the Securities and Exchange Commission on April 26, 2013.
The Company intends to enter into its standard form of indemnification agreement with Dr. Ramaswami (the “Indemnity Agreement”). The Indemnity Agreement provides, among other things, that the Company will indemnify Dr. Ramaswami, under the circumstances and to the extent provided for therein, for certain expenses which he may be required to pay in connection with certain claims to which he may be made a party by reason of his service to the Company as a director, and otherwise to the fullest extent under applicable law.
| ITEM 9.01 | FINANCIAL STATEMENTS AND EXHIBITS. |
| (d) | Exhibits. |
| Exhibit Number | Description | |
| 10.1 | Third Amendment to Credit Agreement, dated March 6, 2014, by and among NeoPhotonics Corporation, Comerica Bank, as Agent, and the lenders party thereto. | |
SIGNATURES
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.
| Date: March 7, 2014 | NEOPHOTONICS CORPORATION | |||||
| By: | /s/ Clyde R. Wallin | |||||
| Clyde R. Wallin | ||||||
| Senior Vice President and Chief Financial Officer | ||||||
INDEX TO EXHIBITS
| Exhibit Number | Description | |
| 10.1 | Third Amendment to Credit Agreement, dated March 6, 2014, by and among NeoPhotonics Corporation, Comerica Bank, as Agent, and the lenders party thereto. | |
Exhibit 10.1
Execution Copy
THIRD AMENDMENT TO CREDIT AGREEMENT
This Third Amendment to Credit Agreement (“Third Amendment”) to Revolving Credit and Term Loan Agreement is made as of March 6, 2014, by and among NeoPhotonics Corporation (the “Borrower”), the Lenders (as defined below) and Comerica Bank, as Administrative Agent for the Lenders (in such capacity, the “Agent”).
RECITALS
A. Borrower entered into that certain Revolving Credit and Term Loan Agreement dated as of March 21, 2013 (as amended or otherwise modified, the “Credit Agreement”), with certain financial institutions from time to time parties thereto (the “Lenders”) and Agent.
B. Borrower has requested that Agent and the Lenders make certain amendments to the Credit Agreement and Agent and the Lenders are willing to do so, but only on the terms and conditions set forth in this Third Amendment.
NOW, THEREFORE , in consideration of the Recitals and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Borrower, Agent and Lenders agree as follows:
1. The reference to “March 7, 2014” in Section 7.1(b) of the Credit Agreement is hereby deleted and replaced with “ April 7, 2014 ( or such later date as may be approved by the Majority Lenders ).”
2. The reference to “March 7, 2014” in Section 7.1(c) of the Credit Agreement is hereby deleted and replaced with “ April 7, 2014 ( or such later date as may be approved by the Majority Lenders ).”
3. This Third Amendment shall become effective (according to the terms hereof) on the date (the “Third Amendment Effective Date”) that the following conditions have been fully satisfied by the Borrower:
| (a) | Agent shall have received counterpart signature pages to this Third Amendment, duly executed and delivered by the Agent, Borrower and the Lenders. |
| (b) | Borrower shall have paid to the Agent and the Lenders all reasonable costs and expenses, if any, that are due and owing to the Agent and the Lenders as of the date of this Third Amendment. |
4. Borrower hereby represents and warrants that, after giving effect to the amendments to the Credit Agreement contained herein, (a) the execution and delivery of this Third Amendment are within such party’s corporate or limited liability company powers, have been duly authorized, are not in contravention of any law applicable to such party or the terms of its organizational documents, and except as have been previously obtained do not require the
consent or approval, material to the amendments contemplated in this Third Amendment, of any governmental body, agency or authority, and this Third Amendment and the Credit Agreement (as amended herein) will constitute the valid and binding obligations of such undersigned party, enforceable in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (b) the representations and warranties set forth in Article 6 of the Credit Agreement are true and correct in all material respects on and as of the date hereof (other than any representation or warranty that expressly speaks only as of a certain date), and (c) as of the Third Amendment Effective Date, no Default or Event of Default shall have occurred and be continuing.
5. Except as specifically set forth above, this Third Amendment (i) shall not be deemed to amend or alter in any respect the terms and conditions of the Credit Agreement (including without limitation all conditions and requirements for Advances and any financial covenants), any of the Notes issued thereunder or any of the other Loan Documents; and (ii) shall not constitute a waiver or release by the Agent or the Lenders of any right, remedy, Default or Event of Default under or a consent to any transaction not meeting the terms and conditions of the Credit Agreement, any of the Notes issued thereunder or any of the other Loan Documents. Furthermore, this Third Amendment shall not affect in any manner whatsoever any rights or remedies of the Lenders with respect to any other non-compliance by Borrower with the Credit Agreement or the other Loan Documents, whether in the nature of a Default or Event of Default, and whether now in existence or subsequently arising, and shall not apply to any other transaction.
6. Borrower and each other Credit Party hereby acknowledges and agrees that this Third Amendment and the amendments contained herein do not constitute any course of dealing or other basis for altering (i) any obligation of Borrower, any other Credit Party or any other party or (ii) any rights, privilege or remedy of the Lenders under the Credit Agreement, any other Loan Document, any other agreement or document, or any contract or instrument.
7. Except as specifically defined to the contrary herein, capitalized terms used in this Third Amendment shall have the meanings set forth in the Credit Agreement.
8. This Third Amendment may be executed in counterparts in accordance with Section 13.9 of the Credit Agreement.
9. This Third Amendment shall be construed in accordance with and governed by the laws of the State of California, without regard to principles of conflict of laws that would result in the application of the laws of a different jurisdiction.
2
IN WITNESS WHEREOF, Borrower, the Lenders and Agent have each caused this Third Amendment to be executed by their respective duly authorized officers or agents, as applicable, all as of the date first set forth above.
| COMERICA BANK , as Agent and a Lender | ||
| By: |
/s/ Benjamin Yu |
|
| Name: | Benjamin Yu | |
| Title: | Vice President | |
Signature Page to Third Amendment to Credit Agreement
(3297168)
IN WITNESS WHEREOF, Borrower, the Lenders and Agent have each caused this Third Amendment to be executed by their respective duly authorized officers or agents, as applicable, all as of the date first set forth above.
| EAST WEST BANK, as a Lender | ||
| By: |
/s/ Nader Maghsoudnia |
|
| Name: | Nader Maghsoudnia | |
| Title: | Senior Relationship Manager | |
Signature Page to Third Amendment to Credit Agreement
(3297168)
IN WITNESS WHEREOF, Borrower, the Lenders and Agent have each caused this Third Amendment to be executed by their respective duly authorized officers or agents, as applicable, all as of the date first set forth above.
| NEOPHOTONICS CORPORATION | ||
| By: |
/s/ Clyde R. Wallin |
|
| Name: | Clyde R. Wallin | |
| Its: | Senior Vice President and Chief Financial Officer | |
Signature Page to Third Amendment to Credit Agreement
(3297168)