NEOPHOTONICS CORP (Form: S-8, Received: 03/24/2015 06:02:51)

Large Accelerated filer

Accelerated filer

Non-accelerated Filer

¨ (Do not check if a smaller reporting company)

Smaller reporting company

As filed with the Securities and Exchange Commission on March 23, 2015

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)

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 ⁽⁴⁾	Proposed Maximum Aggregate Offering Price ⁽⁴⁾	Amount of Registration Fee ⁽⁴⁾
Common Stock, par value $0.0025 per share	1,146,325 shares ⁽²⁾	$6.09	$6,981,120	$811
Common Stock, par value $0.0025 per share	600,000 shares ⁽³⁾	$6.09	$3,654,000	$425
Total	1,746,325 shares	$6.09	$10,635,120	$1,236

(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)	Represents an increase in the number of shares of Common Stock reserved for issuance under the NeoPhotonics Corporation 2010 Equity Incentive Plan, as amended, pursuant to an evergreen provision contained therein.

(3)	Represents an increase in the number of shares of Common Stock reserved for issuance under the NeoPhotonics Corporation 2010 Employee Stock Purchase Plan pursuant to an evergreen provision contained therein.

(4)

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 aggregate offering price are based on the average of the high ($6.31) and low ($5.87) sales prices of the Registrant’s Common Stock on March 19, 2015, as reported on the New York Stock Exchange.

EXPLANATORY NOTE

This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 1,746,325 shares of the Registrant’s Common Stock reserved for issuance under the Registrant’s equity incentive plans pursuant to evergreen provisions contained therein, as follows: 1,146,325 shares issuable pursuant to the Registrant’s 2010 Equity Incentive Plan and 600,000 shares issuable pursuant to the Registrant’s 2010 Employee Stock Purchase Plan.

The Registrant’s Form S-8 Registration Statements filed with the Securities and Exchange Commission (the “ Commission ”) on February 2, 2011 (File No. 333-172031), February 10, 2012 (File No. 333-179453), June 25, 2013 (File No. 333-189577) and July 25, 2014 (File No. 333-197657), relating to the Registrant’s 2010 Equity Incentive Plan and the Registrant’s 2010 Employee Stock Purchase Plan, are incorporated herein by reference and made a part hereof.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents previously filed by the Registrant with the Commission (File No. 001-35061) are incorporated into this Registration Statement on Form S-8 by reference:

(a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed with the Commission on March 16, 2015;

(b) The Registrant’s Current Reports on Form 8-K (excluding any information and exhibits furnished under either Item 2.02 or Item 7.01 thereof) filed with the Commission on January 8, 2015, January 28, 2015, March 2, 2015 and March 3, 2015; and

(c) The description of the Registrant’s Common Stock contained in the Registration Statement on Form 8-A filed with the Commission on January 28, 2011, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

All reports and other documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be part hereof from the date of filing of such reports and documents.

Any statement contained in a report or document incorporated or deemed to be incorporated by reference into this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed report or document which is also or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

EXHIBITS


Exhibit Number		Exhibit Title

4.1 ⁽¹⁾		Amended and Restated Certificate of Incorporation of NeoPhotonics Corporation.

4.2 ⁽²⁾		Amended and Restated Bylaws of NeoPhotonics Corporation.

4.3 ⁽³⁾		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 Deloitte & Touche LLP, independent registered public accounting firm.

23.3		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 ⁽⁴⁾		NeoPhotonics Corporation 2010 Equity Incentive Plan, as amended, and forms of agreement thereunder.

99.2 ⁽⁵⁾		NeoPhotonics Corporation 2010 Employee Stock Purchase Plan.

(1)	Filed as Exhibit 3.1 to the Current Report on Form 8-K (File No. 001-35061), filed with the Commission on February 10, 2011, and incorporated herein by reference.

(2)	Filed as Exhibit 3.4 to the Registration Statement on Form S-1, as amended (File No. 333-166096), filed with the Commission on November 22, 2010, and incorporated herein by reference.

(3)	Filed as Exhibit 4.1 to the Registration Statement on Form S-1, as amended (File. No. 333-166096), filed with the Commission on May 17, 2010, and incorporated herein by reference.

(4)	Filed as Exhibit 99.1 to the Registration Statement on Form S-8 (File No. 333-189577), filed with the Commission on June 25, 2013, and incorporated herein by reference.

(5)	Filed as Exhibit 10.5 to the Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on November 22, 2010, and incorporated herein by reference.

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 March 23, 2015.


N EOPHOTONICS 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 C LYDE R AYMOND W ALLIN , 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)	March 23, 2015

/s/ Clyde Raymond Wallin Clyde Raymond Wallin	Chief Financial Officer (Principal Financial and Accounting Officer)	March 23, 2015

/s/ Charles J. Abbe Charles J. Abbe	Director	March 23, 2015

/s/ Dmitry Akhanov Dmitry Akhanov	Director	March 23, 2015

/s/ Bandel L. Carano Bandel L. Carano	Director	March 23, 2015



/s/ Allan Kwan Allan Kwan	Director	March 23, 2015

/s/ Rajiv Ramaswami Rajiv Ramaswami	Director	March 23, 2015

/s/ Michael J. Sophie Michael J. Sophie	Director	March 23, 2015

/s/ Lee Sen Ting Lee Sen Ting	Director	March 23, 2015

EXHIBITS


Exhibit Number		Exhibit Title

4.1 ⁽¹⁾		Amended and Restated Certificate of Incorporation of NeoPhotonics Corporation.

4.2 ⁽²⁾		Amended and Restated Bylaws of NeoPhotonics Corporation.

4.3 ⁽³⁾		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 Deloitte & Touche LLP, independent registered public accounting firm.

23.3		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 ⁽⁴⁾		NeoPhotonics Corporation 2010 Equity Incentive Plan, as amended, and forms of agreement thereunder.

99.2 ⁽⁵⁾		NeoPhotonics Corporation 2010 Employee Stock Purchase Plan.

(1)	Filed as Exhibit 3.1 to the Current Report on Form 8-K (File No. 001-35061), filed with the Commission on February 10, 2011, and incorporated herein by reference.

(2)	Filed as Exhibit 3.4 to the Registration Statement on Form S-1, as amended (File No. 333-166096), filed with the Commission on November 22, 2010, and incorporated herein by reference.

(3)	Filed as Exhibit 4.1 to the Registration Statement on Form S-1, as amended (File No. 333-166096), filed with the Commission on May 17, 2010, and incorporated herein by reference.

(4)	Filed as Exhibit 99.1 to the Registration Statement on Form S-8 (File No. 333-189577), filed with the Commission on June 25, 2013, and incorporated herein by reference.

(5)	Filed as Exhibit 10.5 to the Registration Statement on Form S-1, as amended (333-166096), filed with the Commission on November 22, 2010, and incorporated herein by reference.

Exhibit 5.1

LOGO

JOHN SELLERS

(650) 843-5070

jsellers@cooley.com

March 23, 2015

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 1,146,325 shares of the Company’s Common Stock, par value $0.0025 per share (the “ Common Stock ”), issuable pursuant to the Company’s 2010 Equity Incentive Plan, as amended (the “ 2010 EIP Shares ”) and up to 600,000 shares of Common Stock issuable pursuant to the Company’s 2010 Employee Stock Purchase Plan (the “ 2010 ESPP Shares ”).

In connection with this opinion, we have examined the Registration Statement and related prospectuses, the Company’s Amended and Restated Certificate of Incorporation, the Company’s Amended and Restated Bylaws, the Company’s 2010 Equity Incentive Plan, as amended (the “ 2010 EIP ”), the Company’s 2010 Employee Stock Purchase Plan (the “ 2010 ESPP ”) and 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 2010 EIP Shares and 2010 ESPP Shares, when sold and issued in accordance with the 2010 EIP and 2010 ESPP, respectively, and the Registration Statement and related prospectuses, will be validly issued, fully paid and nonassessable.

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

[R EMAINDER OF P AGE I NTENTIONALLY L EFT B LANK ]


Sincerely,

Very truly yours,

C OOLEY LLP


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

[S IGNATURE P AGE TO 5.1 O PINION (F ORM S-8)]

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports relating to the consolidated financial statements and the effectiveness of internal control over financial reporting dated March 16, 2015, appearing in the Annual Report on Form 10-K of NeoPhotonics Corporation for the year ended December 31, 2014.

/s/ Deloitte & Touche LLP

San Jose, California

March 23, 2015

Exhibit 23.3

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 March 15, 2013, except for the effects of the revision discussed in Note 1 (not presented herein) to the consolidated financial statements appearing under Item 8 of the Company’s 2013 Annual Report on Form 10-K as to which the date is May 30, 2014, relating to the consolidated financial statements, which appears in NeoPhotonics Corporation’s Annual Report on Form 10-K for the year ended December 31, 2014.

/s/ PricewaterhouseCoopers LLP

San Jose, California

March 23, 2015