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): January 2, 2015
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)
Registrants 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 DEFINITIVE MATERIAL AGREEMENT. |
On October 22, 2014, NeoPhotonics Corporation (the Company) and EMCORE Corporation (EMCORE) entered into an Asset Purchase Agreement (the Agreement) pursuant to which the Company agreed to purchase the assets and assume certain liabilities of EMCOREs tunable laser product lines for $17.5 million in total consideration. On January 2, 2015, the Company and EMCORE amended the Agreement to, among other things, (i) revise the nature and timing of the financial deliverable requirements of EMCORE to the Company under the Agreement and (ii) remove inventory and purchase orders related to the T-XFP and T-TOSA product lines from the Companys purchase of certain assets and assumption of certain liabilities of EMCOREs telecommunications business. The foregoing summary of the Amendment is subject in all respects to the actual terms of the Amendment to Asset Purchase Agreement by and between the Company and EMCORE, dated January 2, 2015 (the Amendment), a copy of which is attached as Exhibit 99.1 to this Form 8-K.
ITEM 8.01 OTHER EVENTS.
On January 2, 2015, the Company closed its previously announced acquisition of the tunable laser product lines of EMCORE for approximately $17.5 million. The acquisition was made pursuant to the terms of the Agreement, as amended by the Amendment. Consideration for the transaction consisted of $1.5 million in cash and a promissory note of approximately $16.0 million, which is subject to certain adjustments for inventory, net accounts receivable and pre-closing revenues. The promissory note will bear interest of 5% per annum for the first year and 13% per annum for the second year; the interest will be payable semi-annually in cash, and the note will mature two years from the closing of the transaction. In addition, the promissory note will be subject to prepayment under certain circumstances and will be secured by certain of the assets to be sold pursuant to the Asset Purchase Agreement. The note is subordinated to the Companys existing bank debt in the U.S. The Company will account for the acquisition as a business combination.
The foregoing description of the Agreement and transactions contemplated by the Agreement does not purport to be complete and is qualified in its entirety by the provisions of (i) the Agreement, which was filed as Exhibit 10.1 with the Companys Current Report on Form 8-K filed with the Securities and Exchange Commission on October 27, 2014, and (ii) the Amendment, a copy of which is attached as Exhibit 99.1 to this Form 8-K.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(d) | Exhibits. |
Exhibit
Number |
Description | |
99.1 | Amendment to Asset Purchase Agreement by and between NeoPhotonics Corporation and EMCORE Corporation, dated January 2, 2015. |
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: January 8, 2015 | NEOPHOTONICS CORPORATION | |||||
By: |
/s/ Clyde R. Wallin |
|||||
Clyde R. Wallin | ||||||
Senior Vice President and Chief Financial Officer |
INDEX TO EXHIBITS
Exhibit
Number |
Description | |
99.1 | Amendment to Asset Purchase Agreement by and between NeoPhotonics Corporation and EMCORE Corporation, dated January 2, 2015. |
Exhibit 99.1
AMENDMENT
TO
ASSET PURCHASE AGREEMENT
This AMENDMENT TO ASSET PURCHASE AGREEMENT, dated as of January 2, 2015 (this Amendment ), is entered into by and between EMCORE Corporation, a New Jersey corporation ( Seller ) and NeoPhotonics Corporation, a Delaware corporation ( Purchaser ). Seller and Purchaser are each referred to individually as a Party and collectively as the Parties . Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Agreement (as defined below).
RECITALS
WHEREAS, Purchaser and Seller entered into that certain Asset Purchase Agreement (the Agreement ), dated as of October 22, 2014; and
WHEREAS, the Parties desire to amend the Agreement and certain schedules to the Agreement as described in this Amendment and acknowledge certain matters as set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
AMENDMENT
1.1. Amendment to Section 1.1 .
(a) Section 1.1 of the Agreement is hereby amended by adding the following paragraph in the appropriate alphabetical position in such Section:
Tunable Inventory means the inventory and finished goods of the Business that represent tunable transmitter optical subassemblies (T-TOSA) or small form factor pluggable (T-XFP) transceivers for 10 gigabits per second transmission application.
(b) Section 1.1 of the Agreement is hereby amended by amending and restating the following paragraph in the appropriate alphabetical position in such Section:
Tangible Personal Property means all machinery, tooling, equipment, parts, tools, supplies, office equipment and supplies, vehicles, tools, spare parts, production supplies, furniture, fixtures, furnishings, signage, leasehold improvements and other items of tangible personal property (other than Inventory and Tunable Inventory) owned by Seller and used exclusively or primarily in connection with the ownership, maintenance or operation of the Business.
1.2 Amendment to Section 2.1 .
(a) Section 2.1(a) of the Agreement is hereby amended and restated in its entirety to read as follows:
(a) the inventory, finished goods, raw materials, work in progress, packaging, supplies and parts used in the Business other than Tunable Inventory ( Inventory ), a list of which as of June 30, 2014 is set forth on Schedule 2.1(a) of the Seller Disclosure Schedule and a list of which as of December 29, 2014 is set forth on Schedule 2.1(a)-1 of the Seller Disclosure Schedule;
(b) Section 2.1(f) of the Agreement is hereby amended and restated in its entirety to read as follows:
(f) all purchase orders outstanding as of the Closing Date other than (i) purchase orders exclusively related to Tunable Inventory and (ii) purchase orders with ZTE Kangxun Telecom Co. Ltd. (the Assumed Purchase Orders ); a list of outstanding purchase orders as of October 1, 2014 is set forth on Schedule 2.1(f) of the Seller Disclosure Schedule and a list Assumed Purchase Orders as of December 29, 2014 is set forth on Schedule 2.1(f)-1 of the Seller Disclosure Schedule;
(c) The last paragraph of Section 2.1 of the Agreement is hereby amended and restated in its entirety to read as follows:
Seller and Purchaser shall review, update as necessary and use their respective reasonable best efforts to finalize each section of the Seller Disclosure Schedule referred to in this Section 2.1 (collectively, the Asset Lists ) no later than January 1, 2015; provided that nothing in this updating process shall relieve Seller of its obligations to comply with the covenants set forth in Section 7.1 .
1.3 Amendment to Schedule 2.1(a) . Schedule 2.1(a) of the Seller Disclosure Schedule is hereby amended and restated in its entirety to read in the form attached hereto as Exhibit A .
1.4. Amendment to Section 2.2 . Section 2.2 of the Agreement is hereby amended by adding the following as a new subsection (m):
(m) the Tunable Inventory, purchase orders exclusively related to the Tunable Inventory and purchase orders with ZTE Kangxun Telecom Co. Ltd..
1.6 Amendment to Schedule 2.2(d) . Schedule 2.2(d) to the Agreement is hereby amended to add the contract(s) listed on Exhibit B hereto at the end of such Schedule 2.2(d) .
1.7 Amendment to Section 3.1 .
(a) The words fifteen million dollars ($17,500,000) are hereby replaced with the words seventeen million five hundred thousand dollars ($17,500,000).
1.8 Amendment to Section 4.1(a) . The last sentence of Section 4.1(a) of the Agreement is hereby amended and restated to read as follows:
The Closing shall be deemed to be effective (x) for purposes of operations in Asia at 11:59 p.m. Bangkok, Thailand time on the Closing Date and (y) for all other purposes at 11:59 p.m. Los Angeles Time on the Closing Date.
1.9 Amendment to Schedule 5.6(a) . Schedule 5.6(a) to the Agreement is hereby amended to add the items listed on Exhibit C hereto at the end of such Schedule 5.6(a) .
1.10 Amendment to Section 7.2(b) . Section 7.2(b) of the Agreement is hereby amended and restated in its entirety to read as follows:
(b) Seller acknowledges and understands that Purchaser will be required to provide pro forma and historical financial statements for the Business as part of its periodic public reporting obligations in the period following Closing. Seller agrees to reasonably cooperate with Purchaser (at no incremental cost to Purchaser) in the preparation of such financial statements set forth on Schedule 7.2(b) , and shall use commercially reasonable efforts to deliver all items set forth on Schedule 7.2(b) within the timeframes set forth therein. None of Seller or any Seller Indemnified Party or any of their respective Representatives shall have, and Purchaser agrees that none of such Persons shall have, any liability to Purchaser or any Purchaser Indemnified Party or any other Person (including any Person asserting claims on behalf of or in right of Purchaser) in connection with or as a result of any failure by Purchaser to meet its public reporting obligations.
1.11 Amendment to Schedule 7.2(b) . Schedule 7.2(b) to the Agreement is hereby amended and restated in its entirety to read in the form attached hereto as Exhibit D .
1.12 Amendment to Section 7.2(c) .
(a) The words at least three (3) Business Days prior to the scheduled Closing Date in the first sentence are hereby replaced with the words no later than December 30, 2014.
(b) The words no later than the third (3rd) Business Day prior to the scheduled Closing Date in the third sentence are hereby replaced with the words no later than December 30, 2014.
1.13 Amendment to Section 7.10(a) . Section 7.10(a) to the Agreement is hereby amended by replacing the language or (iii) own any interests in any mutual or other investment fund registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended in its entirety to read:
(iii) own any interests in any mutual or other investment fund registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended; or (iv) sell, transfer or dispose of any Tunable Inventory
1.14 Amendment to Schedule 10.3(c) . The second bullet on Schedule 10.3(c) is hereby amended and restated in its entirety to read in the form attached hereto as Exhibit E .
1.15 Release of Security Interest in Patent . Seller agrees to use its commercially reasonable best efforts to secure the release of any security interests or purported security interests held or granted by Newport Corporation in patents of Seller that are included in the Purchased Assets and are not released at Closing, and to correct any public filings related to the same, within thirty (30) days of the Closing Date.
ARTICLE II
GENERAL PROVISIONS
2.1. Effect on Agreement . Except as expressly contemplated by this Amendment, the Agreement and the schedules thereto remain in full force and effect and is not otherwise amended or modified hereby.
2.2. Binding Effect . This Amendment shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
2.3. Governing Law . This Amendment shall be construed and enforced in accordance with the Laws of the State of Delaware without regard to the conflicts of Laws provisions thereof.
2.4. Counterparts . The Parties may execute this Agreement (including by electronic transmission) in one or more counterparts, and each fully executed counterpart shall be deemed an original.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed by their respective duly authorized officers as of the date first above written.
NEOPHOTONICS CORPORATION | ||||
By: |
/s/ Timothy S. Jenks |
|||
Name: | Timothy S. Jenks | |||
Title: | CEO | |||
EMCORE CORPORATION | ||||
By: |
/s/ Mark Weinswig |
|||
Name: | Mark Weinswig | |||
Title: | CFO |
[ Signature Page to Amendment to Asset Purchase Agreement ]