As filed with the Securities and Exchange Commission on March 24, 2016

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

2011 Inducement Award 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):

 

 

 

 

 

 

 

Large Accelerated filer

 

☐

 

Accelerated filer

 

☒

Non-accelerated Filer

 

☐ (Do not check if a smaller reporting company)

 

Smaller reporting company

 

☐

CALCULATION OF REGISTRATION FEE

 

 

 

 

 

 

 

 

 

Title of Securities
to be Registered

 

Amount to be
Registered (1)

 

Proposed Maximum
Offering Price Per Share (5)

 

Proposed Maximum
Aggregate
Offering Price (5)

 

Amount of
Registration Fee (5)

Common Stock, par value $0.0025 per share

 

1,434,499 shares (2)

 

$11.50

 

$16,496,739

 

$1,661

Common Stock, par value $0.0025 per share

 

600,000 shares (3)

 

$11.50

 

$6,900,000

 

$695

Common Stock, par value $0.0025 per share

 

100,000 shares (4)

 

$11.50

 

$1,150,000

 

$116

Total

 

2,134,499 shares

 

$11.50

 

$24,546,739

 

$2,472

 

(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) Represents an increase in the number of shares of Common Stock reserved for issuance under the NeoPhotonics Corporation 2011Inducement Award Plan as approved by the registrant’s board of directors.

(5) 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 ($11.77) and low ($11.22) sales prices of the Registrant’s Common Stock on March 15, 2016, 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 2,134,499 shares of the Registrant’s Common Stock reserved for issuance under the Registrant’s equity incentive plans, as follows: 1,434,499 shares issuable pursuant to the Registrant’s 2010 Equity Incentive Plan, 600,000 shares issuable pursuant to the Registrant’s 2010 Employee Stock Purchase Plan and 100,000 shares issuable pursuant to the Registrant’s 2011 Inducement Award 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), October 13, 2011 (File No. 333-177306), February 10, 2012 (File No. 333-179453), June 25, 2013 (File No. 333-189577), July 25, 2014 (File No. 333-197657), and March 24, 2015 (File No. 333-202942), relating to the Registrant’s 2010 Equity Incentive Plan, the Registrant’s 2010 Employee Stock Purchase Plan and the Registrant’s 2011 Inducement Award 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, 2015, filed with the Commission on March 15, 2016;

(b) The Registrant’s Quarterly Report on Form 10-Q for the quarters ended March 31, 2015, June 30, 2015 and September 30, 2015, filed with the Commission on May 11, 2015, August 10, 2015 and November 6, 2015;

(c) 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, March 3, 2015, April 1, 2015, April 3, 2015, April 21, 2015, May 7, 2015, July 15, 2015, July 24, 2015, August 6, 2015 and November 2, 2015; and

 

(d) 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.

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.

99.3 (6)

NeoPhotonics Corporation 2011 Inducement Award 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.

(6) Filed as Exhibit 99.1 to the Registration Statement on Form S-8 (333-177306), filed with the Commission on October 13, 2011, 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 24, 2016.

 

 

 

 

NeoPhotonics Corporation

 

 

 

 

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 Clyde Raymond Wallin , 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

President, Chief Executive Officer and

March 24, 2016

Timothy S. Jenks

Chairman of the Board of Directors

 

 

(Principal Executive Officer)

 

 

 

 

/s/ Clyde Raymond Wallin

Chief Financial Officer (Principal

March 24, 2016

Clyde Raymond Wallin

Financial and Accounting Officer)

 

 

 

 

/s/ Charles J. Abbe

Director

March 24, 2016

Charles J. Abbe

 

 

 

 

 

/s/ Dmitry Akhanov

Director

March 24, 2016

Dmitry Akhanov

 

 

 

 

 

/s/ Bandel L. Carano

Director

March 24, 2016

Bandel L. Carano

 

 

 

 

 

/s/ Michael J. Sophie

Director

March 24, 2016

Michael J. Sophie

 

 

 

 

 

Director

 

Rajiv Ramaswami

 

 

 

 

 

/s/ Ihab Tarazi

Director

March 24, 2016

Ihab Tarazi

 

 

 

 

 

 

 

 

 

/s/ Lee S. Ting

Director

March 24, 2016

Lee S. Ting

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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.

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.

99.3 (6)

NeoPhotonics Corporation 2011 Inducement Award 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.

(6) Filed as Exhibit 99.1 to the Registration Statement on Form S-8 (333-177306), filed with the Commission on October 13, 2011, and incorporated herein by reference.

 

Exhibit 5.1

PICTURE 2

March 24, 2016

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 1,434,499 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 ”), up to 600,000 shares of Common Stock issuable pursuant to the Company’s 2010 Employee Stock Purchase Plan (the “ 2010 ESPP Shares ”) and up to 100,000 shares of Common Stock issuable pursuant to the Company’s 2011 Inducement Award Plan (the “ 2011 IAP 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 ”), the Company’s 2011 Inducement Award Plan (“ 2011 IAP ”) 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, 2010 ESPP Shares and the 2011 IAP Shares, when sold and issued in accordance with the 2010 EIP, 2010 ESPP and 2011 IAP, 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.

[Remainder of Page Intentionally Left Blank]

 

 

 

 

 

Sincerely,

 

Very truly yours,

 

Cooley LLP

 

 

 

By: /s/John H. Sellers

John H. Sellers

 

 

 

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 14, 2016, appearing in the Annual Report on Form 10-K of NeoPhotonics Corporation for the year ended December 31, 2015.

/s/ Deloitte & Touche LLP

San Jose, California

March 24, 2016