Form S-8

As filed with the Securities and Exchange Commission on February 10, 2012

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):

 

Large Accelerated filer   ¨     Accelerated filer   ¨
Non-accelerated Filer   x   (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(4)

  

Proposed Maximum

Aggregate

Offering Price(4)

  

Amount of

Registration Fee(4)

Common Stock, par value $0.0025 per share

   870,190 shares(2)   $ 5.77   $ 5,020,996   $ 575

Common Stock, par value $0.0025 per share

   600,000 shares(3)  

$ 5.77

   $ 3,462,000   $ 397

Total

   1,470,190 shares   N/A   $ 8,482,996   $ 972

 

 

(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 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 ($5.86) and low ($5.67) sales prices of the Registrant’s Common Stock on February 6, 2011, 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 1,470,190 shares of the Registrant’s Common Stock to be issued under the Registrant’s equity incentive plans pursuant to evergreen provisions contained therein, as follows: 870,190 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), relating to the Registrant’s 2010 Equity Incentive Plan and 2010 Employee Stock Purchase Plan, is 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, 2010, filed with the Commission on March 28, 2011;

(b) The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2011, filed with the Commission on May 12, 2011;

(c) The Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011, filed with the Commission on August 11, 2011;

(d) The Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2011, filed with the Commission on November 10, 2011;

(e) 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 June 22, 2011, July 5, 2011, August 4, 2011, August 29, 2011, October 4, 2011 and December 16, 2011; and

(f) 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 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 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 (Reg. No. 333-166096), filed with the Commission on May 17, 2010, and incorporated herein by reference.
(4) Filed as Exhibit 10.4 to the Annual Report on Form 10-K (File No. 001-35061), filed with the Commission on March 28, 2011, 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 19, 2010, and incorporated by reference herein.

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 February 10, 2012.

 

NEOPHOTONICS CORPORATION
By:  

/s/ Timothy S. Jenks

  Timothy S. Jenks
  President, Chief Executive Officer and Chairman of the Board of Directors

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints TIMOTHY S. JENKS and JAMES D. FAY, 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 10, 2012

/s/ James D. Fay

James D. Fay

    Chief Financial Officer (Principal Financial and Accounting Officer)   February 10, 2012

/s/ Bandel L. Carano

Bandel L. Carano

    Director   February 10, 2012

/s/ Allan Kwan

Allan Kwan

    Director   February 10, 2012

/s/ Björn Olsson

Björn Olsson

    Director   February 10, 2012

/s/ Michael J. Sophie

Michael J. Sophie

    Director   February 10, 2012

/s/ Lee Sen Ting

Lee Sen Ting

    Director   February 10, 2012

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 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 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 (Reg. No. 333-166096), filed with the Commission on May 17, 2010, and incorporated herein by reference.
(4) Filed as Exhibit 10.4 to the Annual Report on Form 10-K (File No. 001-35061), filed with the Commission on March 28, 2011, 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 19, 2010, and incorporated by reference herein.