_____________________
Approximate date of commencement of proposed sale to the public: public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933,
as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering.offering: ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrantRegistrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”filer,” “smaller reporting company” and “smaller reporting“emerging growth 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 | Smaller reporting☐
|
| | | | | Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act._____________________
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities
to be Registered | | Amount to be
Registered | | Proposed Maximum
Offering Price Per
Share(1) | | Proposed Maximum
Aggregate Offering
Price(1) | | Amount of
Registration Fee(1) |
Primary Offering: | | | | | | | | |
Common Stock, par value $0.0025 per share | | (2) | | (2) | | $80,000,000 | | $9,272 |
Secondary Offering:(3) | | | | | | | | |
Common Stock, par value $0.0025 per share | | 8,261,882 (3) | | $16.19 | | $133,759,870 | | $15,503 (4) |
Total Registration Fee | | | | | | | | $24,775 (4) |
| (1)
| | The proposed maximum offering price per share and proposed maximum aggregate offering price has been calculated (a) pursuant to Rule 457(o) under the Securities Act with respect to the primary offering securities, and (b) Rule 457(c) of the Securities Act with respect to the secondary offering shares of common stock based on the average high and low prices reported for the Registrant's common stock traded on the New York Stock Exchange on October 3, 2016.
|
| | | | | | | | | | | | | | | | | | | | | | | | | | |
Title of Each Class of Securities to be Registered | | Amount to be Registered (1) | | Proposed Maximum Offering Price Per Unit | | Proposed Maximum Aggregate Offering Price | | Amount of Registration Fee (2) |
| Common Stock, par value $0.0025 per share | | (3) | | (4) | | (4) | | — |
| Preferred Stock, par value $0.0025 per share | | (3) | | (4) | | (4) | | — |
| Debt Securities | | (3) | | (4) | | (4) | | — |
| Warrants | | (3) | | (4) | | (4) | | — |
| Total | | (3) | | | | $150,000,000 | | $16,365 |
| (2)
| |
(1) Pursuant to Rule 416 under the Securities Act, the shares being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.
(2) Calculated pursuant to Rule 457(o) under the Securities Act.
(3) There are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate principal amount of debt securities and such indeterminate number of warrants to purchase common stock, preferred stock and/or debt securities to be sold by the Registrant from time to time, which together shall have an aggregate initial offering price not to exceed $150,000,000. Any securities registered hereunder may be sold separately or in combination with the other securities registered hereunder. The securities registered hereunder also include such indeterminate number of shares of common stock and preferred stock and amount of debt securities as may be issued upon conversion of or exchange for preferred stock or debt securities that provide for conversion or exchange, upon exercise of warrants or pursuant to the antidilution provisions of any such securities.
(4) The proposed maximum aggregate offering price per class of security will be determined from time to time by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act. _____________________
The Registrant which shall have an aggregate initial offering price not to exceed $80,000,000. The proposed maximum offering price per share will be determined, from time to time, by the Registrant in connection with the issuance by the Registrant of the shares registered hereunder. |
| (3)
| | Pursuant to Rule 416 under the Securities Act, the shares being registered hereunder include such indeterminate number of shares of common stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.
|
| (4)
| | Pursuant to Rule 415(a)(6) and Rule 457(p) under the Securities Act, the registrant hereby offsets the total registration fee due under this registration statement by the amount of the filing fee associated with the unsold securities from the registrant’s Form S-1 Registration Statement, filed with the Commission on April 6, 2015 (SEC File No. 333-203240), which were 4,972,905 shares of our common stock to be sold by the selling stockholder named in the prospectus (the “Prior Registration Statement”). The associated filing fee of $3,543.00 for the $30,483,908.00 of securities remaining under the Prior Registration Statement is hereby used to offset the current registration fee due, resulting in an additional registration fee in the amount of $21,232 due in connection with the filing of this registration statement. Pursuant to Rule 415(a)(6), the offering of such securities registered under the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this registration statement.
|
The registrant hereby amends this registration statementRegistration Statement on such date or dates as may be necessary to delay its effective date until the registrantRegistrant shall file a further amendment whichthat specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this preliminary prospectus is not complete and may be changed. WeThese securities may not sell these securities or accept an offer to buy these securitiesbe sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities andnor does it is not soliciting offersseek an offer to buy these securities in any statejurisdiction where suchthe offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
OCTOBER 5, 2016PROSPECTUS
AUGUST 16, 2021
Common Stock
8,261,882 Shares of Common
Preferred Stock
Offered by Selling Stockholders________________
Debt Securities
Warrants
_____________________
From time to time, we may offer and sell up to an aggregate amount of
$80,000,000$150,000,000 of
common stock.In addition, selling stockholders to be namedany combination of the securities described in athis prospectus, supplementeither individually or in combination. We may also offer and sell, from time to time, up to 8,261,882 shares of our common stock. To the extent that any selling stockholder resells any securities, the selling stockholder may be required to provide you with this prospectus and a prospectus supplement identifying and containing specific information about the selling stockholder and the terms of the securities being offered. We will not receive any proceeds from the sale of our common stock by selling stockholders.
or preferred stock upon conversion of debt securities, common stock upon conversion of preferred stock, or common stock, preferred stock or debt securities upon the exercise of warrants.
We will provide the specific terms of these offerings
and securities in one or more supplements to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any related free writing prospectus may also add, update or change information contained in this prospectus. You should carefully read this prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference, before buying any of the
shares of common stocksecurities being offered.
Our common stock is listed on the New York Stock Exchange under the
trading symbol “NPTN.” On
October 3, 2016,August 13, 2021, the last reported sale price
forof our common stock
was $8.52 per share. The applicable prospectus supplement will contain information, where applicable, as to other listings, if any, on the New York Stock Exchange
was $16.12 per share.or other securities exchange of the securities covered by the applicable prospectus supplement.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” contained in the applicable prospectus supplement and in any free writing prospectuses we have authorized for use in connection with a specific offering, and under similar headings in the other documents that are incorporated by reference into this prospectus.
This prospectus may not be used to consummate a sale of securities unless accompanied by a prospectus supplement.
The securities may be sold directly by us to investors, through agents designated from time to time or to or through underwriters or dealers, on a continuous or delayed basis. The supplements to this prospectus will provide the specific terms of the plan of distribution. If any agents or underwriters are involved in the sale of any securities with respect to which this prospectus is being delivered, the names of such agents or underwriters and any applicable fees, commissions, discounts and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds that we expect to receive from such sale will also be set forth in a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
_____________________The date of this prospectus is ,
2016.2021.
____________________
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf” registration process. Under this shelf registration statement, we may, from time to time, offer and sell, either individually or in combination, in one or more offerings, up to a total dollar amount of
$80,000,000$150,000,000 of any of the securities described in this prospectus.
In addition, under this shelf process, the selling stockholders to be named in a supplement to this prospectus may, from time to time, offer or sell up to 8,261,882 shares of our common stock. This prospectus provides you with a general description of the securities we
or the selling stockholders may offer.
This prospectus provides you with a general description of the securities we and the selling stockholders may offer.
Each time we
and/or the selling stockholders offer securities under this prospectus, we will provide a prospectus supplement that will contain more specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change any of the information contained in this prospectus or in the documents that we have incorporated by reference into this prospectus. We urge you to read carefully this prospectus, any applicable prospectus supplement and any free writing prospectuses we have authorized for use in connection with a specific offering, together with the information incorporated herein by reference as described under the heading “Incorporation of Certain Information by Reference,” before buying any of the securities being offered.
This prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
You should rely only on the information contained in, or incorporated by reference into, this prospectus and any applicable prospectus supplement, along with the information contained in any free writing prospectuses we have authorized for use in connection with a specific offering.
Neither we nor the selling stockholdersWe have
not authorized anyone to provide you with different or additional information.
You must not rely upon any information or representation not contained or incorporated by reference in this prospectus, the accompanying prospectus supplement or in any related free writing prospectus that we may authorize to be provided to you. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so.
The information appearing in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate only as of the date on the front of the document and any information we have incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing prospectus, or any sale of a security. Our business, financial condition, results of operations and prospects may have changed since those dates.
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the section
entitledcaptioned “Where You Can Find More Information.”
This prospectus contains and incorporates by reference market data and industry statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe these sources are reliable, we do not
guarantee the accuracy or completeness of this information and we have not independently verified this information. Although we are not aware of any misstatements regarding the market and industry data presented in this prospectus and the documents incorporated herein by reference, these estimates involve risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.
For investors outside the United States: We have not done anything that would permit this offering or possession or distribution of this
This prospectus
in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the shares of common stock and the distribution of this prospectus outside the United States.To the extent there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in any documentincorporated herein by reference include trademarks, service marks and trade names owned by us or other companies. All trademarks, service marks and trade names included or incorporated by reference filed with the Securities and Exchange Commission (SEC) before the date ofinto this prospectus, onany applicable prospectus supplement or any related free writing prospectus are the other hand, you should rely on the information in this prospectus. If any statement in a document incorporated by reference is inconsistent with a statement in another document incorporated by reference having a later date, the statement in the document having the later date modifies or supersedes the earlier statement.
property of their respective owners.
CONVENTIONS THAT APPLY IN THIS PROSPECTUS
Unless otherwise indicated, references in this prospectus to:
| ·
| | “100G products” collectively refers to all products sold by us designed for use at 100Gbps (“100G”), and in coherent transmission systems designed for use at 100Gbps or higher data rates. Some customers may use components designed for use at 100G at lower speeds. Our 100G products include both coherent transmission products and 100G network products that are not coherent;
|
| ·
| | “Advanced Hybrid Photonic Integration” refers to state-of-the-art integration of multi-platform materials and devices;
|
| ·
| | “Coherent” refers to optical transmission systems that encode information in the phase of an optical signal and decode such information through comparison with an independent laser at the receiver and digital signal processing;
|
| ·
| | “Flex Coherent” refers to a class of 100G transceivers and line cards in which the modulation format, and hence the reach and data-rate, can be altered by software command such that the same optical hardware can be used for metro, long-haul or, in some cases, datacenter interconnect applications.
|
| ·
| | “High Speed Products” refers to transmitter and receiver products as well as switching and other component products for 100G optical transmission applications over distances of 2 to 2,000 kilometers. Our high speed 100G and beyond products are based on our Advanced Hybrid Photonic Integration technology. These technologies support encoding 100 gigabits or more per second of information for transmitting over a single channel and decoding the information at the receiver. Through 2014, our use of this term included our products designed for use at 40Gbps (“40G”) and that comprised less than 1% of our total revenue and approximately 1% of our revenue from high speed products in the year ended December 31, 2014. From 2015 onward, High Speed Products refers exclusively to products sold by us and designed for use at 100Gbps or higher data rates;
|
| ·
| | “Network Products and Solutions” collectively refers to all products sold by us for use in optical communications networks and a variety of other applications that are designed for use at data rates that are less than 100Gbps, including 40G, 10G and lower data rates. These products include certain passive products that do not explicitly have a data rate specification, but that are most commonly used in networks at these data rates. From 2015 onward, Network Products and Solutions includes products sold by us and designed for use at 40G that, prior to 2015, were included with High Speed Products; and
|
| ·
| | “PIC” refers to Photonic Integrated Circuit.
|
Unless the context indicates otherwise, we use the terms “NeoPhotonics,” “we,” “us,” “our” and “the Company” in this prospectus to refer to NeoPhotonics Corporation and, where appropriate, its subsidiaries.
PROSPECTUS SUMMARY
The following
This summary highlights selected information contained
elsewhere in this prospectus or incorporated by reference
elsewhere in this prospectus and does not contain all of the information that you
shouldneed to consider in making your investment decision.
Before investing in our common stock, youYou should carefully read
thisthe entire prospectus, the applicable prospectus supplement and any related free writing prospectus, including
the risks of investing in our
financial statements and the related notes and other documents incorporated by reference in this prospectus, as well as the informationsecurities discussed under the
captionheading “Risk Factors”
herein andcontained in the applicable prospectus supplement
and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus.
Business You should also carefully read the information incorporated by reference into this prospectus, including our financial statements, and the exhibits to the registration statement of which this prospectus is a part.
References in this prospectus to “NeoPhotonics”, “the Company,” “we”, “us” and “our” refer to NeoPhotonics Corporation, a Delaware corporation, and its consolidated subsidiaries, if any, unless otherwise specified.
We develop, manufacture and sell optoelectronic products that transmit and receive and switch high speedhigh-speed digital optical signals for communicationsthat connect the Cloud and hyperscale data center and telecom networks. We referare the world's primary supplier of ultra-pure light tunable lasers that are required for the highest speed-over-distance fiber optic communications links. "Cloud" refers to our product groups as “High Speed Products”the vast constellation of servers that are located in data centers around the world and “Network Productswhich are accessed through the internet, along with the associated software and Solutions”. High Speed Products includes those designeddatabases that run on them and the communications links that interconnect them.
Our products deliver, for 100Geach wavelength, 400 Gigabits per Second ("G"), 600G and 800G and beyond suchdata rates. We sell high performance integrated pluggable coherent optical transceiver modules which directly transmit high-speed data using industry standard Internet Protocol ("IP") coding over Dense Wavelength Division Multiplexing ("DWDM"), greatly simplifying data networks, thereby reducing costs and power consumption.
With adoption of coherent transmission using pluggable high-speed optical modules in Cloud and hyperscale data centers, we believe our total addressable market is rapidly expanding.
Our recently introduced 400ZR and 400ZR+ pluggable transceiver modules enable new, lower cost network architectures using IP over DWDM protocols that address new, rapidly expanding major market segments. Such modules can replace a chassis-based line card with a form factor that is much smaller and pluggable, so that interconnects between data centers can be as atsimple as interconnects within a data center.
Over the past decade, we have been first to deliver commercial mass production volumes of coherent optical components for each of the speed advances as maximum speeds per wavelength, or color, have advanced from 100G to 200G, 400G, 600G and 600Gnow 800G.
We believe that we are well positioned to continue world market leadership in these laser, component and module solutions based on our leadership in the ultra-pure light lasers which power them and our comprehensive technologies for Silicon Photonics, Indium Phosphide Photonic Integrated Circuits ("PICs") and Optical Integrated Circuits ("ICs").
Our high-speed optical communications products use coherent technology to encode optical signals from electronic signals for transmission and to decode it for receiving. Ultra-high speeds require coherent technology that encodes information using the phase, amplitude and polarization of an optical wavelength, packing in far more information than simple on/off encoding. We believe that we are a global leader in coherent transmission technology, based on our achieved data rates
or speeds, over distance, leadership in ultra-pure light tunable lasers and optical integration for
telecomminiaturization and
datacenter or content provider networks and applications. The high speed 100G and beyond market, which requires advanced photonic integration technology, is the core focus of our strategy. In addition to the telecommunications infrastructure, the datacenter market is also emerging as an important and fast growing market for our High Speed products.Our High Speed Products were 58% of our total revenues in the year ended December 31, 2015, and increased to 65% of our total revenue in the first half of 2016. Revenues from High Speed products have grown at a 47% compound annual growth rate, or CAGR, from 2012 to 2015. 100G and beyond networks are among the highest growth segments of the optical communications market, supporting the rapid expansion of telecom backbone and content provider networks and accommodating increased mobile traffic. Prior to 2016 our High Speed product revenue growth has been mainly driven by the adoption of 100G in the Long Haul market sector. Over the next several years our growth in 100G and beyond is expected to be mainly driven by adoption of 100G in the much larger Metro market sector.
In the first half of 2016 approximately 86% of our High Speed revenues were derived from coherent products that enable network system designers to implement the highest speed optical transmission. low power consumption.
Coherent transmission uses not only amplitude but also phase and polarization to increase data rates tenfold or more over conventional “on-off” transmission protocols. Coherent transmission is also necessary for next-generation flexible and efficient switching of the signal on each individual wavelength without conflict or contention between wavelengths, a feature important for Software Defined Networks. Coherent transmission has become the technology of choice for the most advanced high speed telecommunicationsover distance data transmission in Cloud infrastructure and data center interconnection, in addition to telecom networks. The move to 400G and above transmission speeds is a fulcrum for the industry as it marks the next major step-up in speed. 400G is becoming the basic building block for network deployments for all distances greater than 40km, all of which require coherent transmission technology.
We sell to virtually all of the leading telecom network equipment companies such as Ciena, Cisco Systems, including its acquisition Acacia Communications, Fiberhome, Fujitsu, Huawei, Infinera, NEC, Nokia and ZTE.
We believe we are at the beginning of broad market expansion for 400ZR and 400ZR+ based networks and applications. This expansion has started with adoption of coherent interconnects into cloud service provider metro networks. Rapid adoption of 400ZR and 400ZR+ cloud metro applications will be followed by cloud content providers similarly adopting 400ZR and 400ZR+ for longer distance interconnects, significantly expanding our served market. The cloud and hyperscale interconnect market is expected to soon rival the size of the telecom market in connections. Artificially intelligent enabled applications such as autonomous vehicles and machine learning will rapidly expand traffic and bandwidth requirements in the edge cloud. These are megatrends that we believe will expand ZR applications and deliver accelerated growth with each overlapping cycle for at least several years.
Our 400ZR modules have completed Telcordia reliability qualification and have passed 2000 hours of High Temperature Operating Life ("HTOL") tests. Our 400ZR modules are now in General Availability and are shipping to customers while undergoing qualifications at hyperscalers and other customers.
Our extended reach 400ZR+ QSFP-DD pluggable modules serve metro distances. Our ultra-pure light tunable lasers and high performance coherent components, coupled with the latest 7 nm generation digital signal processors ("DSPs"), increase the reach of our QSFP-DD modules far beyond Data Center Interconnect ("DCI") distances to metro reaches, expanding our served market.
Our solutions are often unique in their ability to provide high integrity signals across longer distances. It is more challenging and expensive to transmit a signal a thousand kilometers or across a continent than it is to send the same information a few hundred meters across a data center or campus network.
For speed over distance, state of the art and best of breed optics are essential, and increasingly so as distances extend and data rates increase. For distances of 80 kilometers to a few hundred kilometers, i.e. ZR and ZR+ distances; then further to 2000 kilometers, or long haul reaches, specialized technologies are needed for each. The benefits of coherent transmission have made it the preferred technology for these state-of-the-art high speed over distance networks. We believe that our Silicon Photonics Integration and our ultra-pure light tunable lasers are enabling technologies, and our Advanced Hybrid Photonic Integration technologies effectively address the challenges
ofinherent in precision and high volume manufacturing of optical components for coherent transmission
demands the capabilities provided by advanced hybrid photonic integration.In addition, within our High Speed category, we serve the highest performance segments of the datacenter and enterprise market which require the fastest speeds transmitted over relatively longwhen distances within datacenters. Our position in this market is driven by our leadership in electro-absorptively modulated lasers (EMLs), and our transceiver modules incorporating these EMLs. EMLs deliver high power and pure modulation for superior speed and distance performance
Our “Network Products and Solutions” product group comprises all products designed for applications below 100G, and includes 40G and 10G products. This group also includes passive optical products that do not have a specific data rate and are generally used in 10G and other low speed networks. In the first half of 2016 Network Products and Solutions represented 35% of our revenue.
We sell our productsextend to the world’s leading network equipment manufacturers, including Nokia Corporation (formerly Alcatel-Lucent SA, which was acquired by Nokia in January 2016), Ciena Corporation, Cisco Systems, Inc.longest reaches.
We believe the changes at 400G and
Huawei Technologies Co., Ltd. These four companies accounted for approximately 79% of our revenue in 2015 and approximately 68% of our revenue in 2014. During the first two quarters of 2016 these four companies accounted for approximately 76% of our revenues. The others among our seven leading customersabove data rates are
FiberHome Telecommunications Technologies Co., Limited,driving a
major Chinese telecommunications system provider, Acacia Communications Inc., a fast growing vendor of optical interconnect modules and Oclaro Inc., a vendor of optical modules. Our leading customers serve the telecom market and also the datacenter market. These large network equipment and optical module companies, together with emerging content providers and datacenter operators, are the focus of our strategy due to their important positionssea change in high speed network architectures to more efficiently implement the 400G and related communications networks markets.
above technologies we provide. We believe our Advanced Hybrid Photonic Integration technology is well positionedcoherent techniques and PICs will enable this forecasted significant change in network architecture. Today, a data center or central office equipment rack contains complex and self-contained elements as the key parts of chassis-based systems. These circuit boards or line cards, are usually supplied by a separate network equipment manufacturer ("NEM"), to serveprovide the highest speedfiber optic link. However, this results in a complex and most demanding applications. costly architecture.
Our
coherent 100G and beyond products require our Advanced Hybrid Photonic Integration technology. We produce photonic integrated circuits (PICs) that comprise both arrayed and individual photonic functional elements using optimized materials systems and processes from our in-house Silicon, Indium Phosphide and Gallium Arsenide wafer fabrication. These individual PICs from different materials are then combined using our hybrid integration
technology totechnologies make
complete products, such as our Integrated Coherent Receiver (ICR) and our Multi-cast Switch (MCS)it possible for
100G coherent transport and Metro applications and our 100G to 400G CFPx transceivers for datacenter and client networks.100G and beyond coherent technology has become widely used in the Long Haul market segment over the last several years, but has only recently begun to penetrate the much larger Metro sector of the market. While the cost per port deployed declines every year due to both technology advances, we believe 100G coherent port demand represents a high growth opportunity for suppliers of components, modules and systems for the 100G coherent Metro market. In addition, Metro coherent ports include ports that have “flex coherent” features, which can be used not only in the Metro market but also in the Long Haul market.
Our important products for the rapidly growing coherent Metro market, include Integrated Coherent Receivers, ultra-narrow linewidth tunable lasers and multi-cast switches. Our multi-cast switches similarly are usedlong distance transmission by webscale content providers for software definition of their network configuration. Also, we have additionally introduced coherentpluggable transceiver modules that are importantconnect directly into switches and routers inside data centers that have thus far been used only for short reach connections within data centers. Such dis-aggregated Open Line Systems can manage optical signals between data centers, sometimes called IP over DWDM, with all needed channel management, amplification, traffic planning and monitoring functions. Connections between data centers then become as simple as connections within data centers which is a major breakthrough in reducing costs.
We believe that substantially lower costs associated with 400ZR+ pluggable modules will drive the
Metro market as well asextension of coherent modules into metro networks through elimination of network equipment proprietary chassis, and reduction in the
datacenter interconnect market, such as high speed dual rate coherent CFP2-ACO transceivers.The following tables indicate our major product families for high speed communications and the market sectors they serve.
Market Sectors Served By Representative High Speed Products
| | | | | | | |
Products
| | Long Haul
| | Metro
| | Datacenter
| |
COHERENT PRODUCT FAMILIES
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Integrated Coherent Receiver
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Ultra Narrow Line Width Tunable Laser
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100G / 200G Multirate CFP2-ACO Analog Coherent Transceiver
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Multi-Cast Switch for 100G Coherent ROADM Node
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CLIENT SIDE / DATACENTER PRODUCT FAMILIES
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28GBaud and 56GBaud EML Lasers/Photodiodes and Semiconductor Drivers
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CFP2-LR4 (100G 10 km Transceiver)
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QSFP28-LR4 (100G 10 km Transceiver)
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| |
For eachnumber of the major product families shown, the following table illustrates the key material-based technology platformsReconfigurable Optical Add Drop Multiplexers ("ROADMs") that are core for Advanced Hybrid Photonic Integration.
required in current network architectures.Hybrid Photonic Integration
| | | | | | | |
| | | | | | | |
Products
| | Indium Phosphide
| | Silicon/Silica
| | Gallium
Arsenide/Silicon
Germanium
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COHERENT PRODUCT FAMILIES
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Integrated Coherent Receiver
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Ultra Narrow Line Width Tunable Laser
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100G / 200G Multirate CFP2-ACO Analog Coherent Transceiver
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Multi-Cast Switch for 100G Coherent ROADM Node
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CLIENT SIDE / DATACENTER PRODUCT FAMILIES
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28GBaud and 56GBaud EML Lasers/Photodiodes and Semiconductor Drivers
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CFP2-LR4 (100G 10 km Transceiver)
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QSFP28-LR4 (100G 10 km Transceiver)
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In order to strengthen our technology leadership we have made the strategic acquisitions noted below over the last five years.
In October 2011, we acquired Santur Corporation (Santur), a leading producer of tunable lasers and modulators for coherent transmission and of 100G client side transceiver modules. Santur’s capabilities included array DFB (distributed feedback) lasers, silicon photonics and photonic integration of such active elements as lasers, modulators and photodiodes.
In March 2013, we acquired the optical component business unit of LAPIS Semiconductor Co., Ltd., located in Japan, now known as NeoPhotonics Semiconductor. This business is a leading producer of high performance communications laser and photodiode devices which enable our leading market positions in coherent products including ultra-narrow linewidth tunable lasers and coherent receivers. NeoPhotonics Semiconductor also produces industry leading high speed lasers and control semiconductors for high speed client side applications.
In January 2015, we acquired the ultra-narrow linewidth tunable laser business of EMCORE Corporation (EMCORE) expanding NeoPhotonics position in this key component and to expand NeoPhotonics’ position as a supplier of tunable lasers for coherent communications. The EMCORE ultra narrow linewidth tunable laser products are used in the industry’s highest speed applications and are critical components that are used with our highest speed and highest bandwidth receiver products for data rates of 400G and 600G.
above have accounted for more than 10% of our revenue since 2018 and have nearly doubled from $44 million in 2019 to $86 million in 2020. Revenue from products for 400G and above applications was $61 million in the first half of 2021, representing 49% of the Company's total revenues. We have researchbelieve that the market for 400G and developmentabove products will grow at a 5-year compound annual growth rate of approximately 70% through 2024. We therefore expect our 400G and wafer fabrication facilitiesabove revenues will continue to grow at an accelerated rate over the immediate and longer term.
Our core capabilities in San Josecoherent optics technology are now gaining traction in new market applications including inter-satellite communication links for low earth orbit ("LEO") satellites, and Fremont, Californiafor industrial and in Tokyo, Japantransportation applications of LiDAR.
Our operations and products support essential communications networks globally. We continue to adjust comprehensive business continuity plans to ensure that
coordinatewe are able to deliver for our customers. We are working closely with our
researchsupply chain partners globally to ensure we have access to critical components, as we see strong demand for our products supporting increased network bandwidth, and
development and manufacturing facilities in Dongguan, Shenzhen and Wuhan, China and Ottawa, Canada. We additionally do limited research and development and manufacturing in Moscow, Russia. We use proprietary design tools and design-for-manufacturing techniques to align our design process with our precision nanoscale, vertically integrated manufacturing and testing. We believe we are one of the highest volume PIC manufacturers in the world and that we can further expand our manufacturing capacity to meet market needs. Corporateas key semiconductor components globally have moved into shortage.
We were incorporated in October 1996 in the State of Delaware. Our principal executive offices are located at 29113081 Zanker Road, San Jose, California 95134, USA, and our telephone number is +1(408)+1 (408) 232-9200. Our website address is www.neophotonics.com. Information contained on our website is not incorporated by reference into this prospectus, and you should not consider information
contained on our website to be part of this prospectus or in deciding whether to purchase shares of our common stock. We changed our name to NeoPhotonics Corporation in 2002 after having been incorporated as NanoGram Corporation.
Our name is a registered trademark of NeoPhotonics Corporation. This prospectus and the documents incorporated by reference in this prospectus contain additional trade names and trademarks of NeoPhotonics and of other companies.
Risks
Risk Factors Associated with
ourOur Business
Our business is subject to numerous risks, as described under the heading “Risk Factors” contained in the applicable prospectus supplement and in any free writing prospectuses we have authorized for use in connection with a specific offering, and under similar headings in the documents that are incorporated by reference into this prospectus.
The
Shares of Common StockSecurities We May Offer
We may offer shares of our common stock and preferred stock, various series of debt securities and/or warrants to purchase any of such securities, either individually or in combination, up to a total dollar amount of $80,000,000,$150,000,000, from time to time under this prospectus, together with the applicable prospectus supplement and any related free writing prospectus, at prices and on terms to be determined by market conditions at the time of any offering. In addition,We may also offer common stock, preferred stock and/or debt securities
upon the
selling stockholders to be named in a supplement to this prospectus may offer or sell, from time to time, up to 8,261,882 sharesexercise of
our common stock.warrants. This prospectus provides you with a general description of the
common stocksecurities we
or the selling stockholders may offer. Each time we
offer a type or
the selling stockholders offer common stockseries of securities under this prospectus, we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms of the
offering. securities, including, to the extent applicable:
•designation or classification;
•aggregate principal amount or aggregate offering price;
•maturity date, if applicable;
•original issue discount, if any;
•rates and times of payment of interest or dividends, if any;
•redemption, conversion, exercise, exchange or sinking fund terms, if any;
•conversion or exchange prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion or exchange prices or rates and in the securities or other property receivable upon conversion or exchange;
•ranking;
•restrictive covenants, if any;
•voting or other rights, if any; and
•material or special U.S. federal income tax considerations, if any.
The applicable prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change any of the information contained in this prospectus or in the documents we have incorporated by reference. However, no prospectus supplement or free writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness of the registration statement of which this prospectus is a part.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SHARES OF OUR COMMON STOCK UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
We
or the selling stockholders may sell the
common stocksecurities directly to investors or to or through agents, underwriters or dealers. We, and
the selling stockholders, and our
or their agents or underwriters, reserve the right to accept or reject all or part of any proposed purchase of
common stock.securities. If we
or the selling stockholders do offer
common stocksecurities to or through agents or underwriters, we will include in the applicable prospectus supplement:
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•the names of those agents or underwriters; | ·
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•applicable fees, discounts and commissions to be paid to them;
•details regarding over-allotment options, if any; and
•the net proceeds to us.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Common Stock. We may issue shares of our common stock from time to time. The selling stockholders may offer shares of our common stock to the extent such shares were issued and outstanding, or issuable upon exercise or conversion of securities issued and outstanding, prior to the original date of filing of the registration statement to which this prospectus relates. The holders of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of stockholders. Subject to preferences that may be applicable to any outstanding shares of preferred stock, the holders of common stock are entitled to receive ratably such dividends as may be declared by our board of directors out of legally available funds. Upon our liquidation, dissolution or winding up, holders of our common stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preferences of any outstanding shares of preferred stock. Holders of common stock have no preemptive rights and no right to convert their common stock into any other securities. There are no redemption or sinking fund provisions applicable to our common stock. In this prospectus, we have summarized certain general features of theour common stock under “Description of Capital Stock—Stock — Common stock.Stock.” We urge you, however, to read the applicable prospectus supplement (and any related free writing prospectus that we may authorize to be provided to you) related to any common stock being offered.
Preferred Stock. We may issue shares of our preferred stock from time to time, in one or more series. Our board of directors will determine the designations, voting powers, preferences and rights of the preferred stock, as well as the qualifications, limitations or restrictions thereof, including dividend rights, conversion rights, preemptive rights, terms of redemption or repurchase, liquidation preferences, sinking fund terms and the number of shares constituting any series or the designation of any series. Convertible preferred stock will be convertible into our common stock or exchangeable for other securities. Conversion may be mandatory or at the holders’ option and would be at prescribed conversion rates.
If we sell any series of preferred stock under this prospectus, we will fix the designations, voting powers, preferences and rights of the preferred stock of each series we issue under this prospectus, as well as the qualifications, limitations or restrictions thereof, in the certificate of designation relating to that series. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of any certificate of designation that contains the terms of the series of preferred stock we are offering. In this prospectus, we have summarized certain general
Use of Proceeds
Except as described in any applicable prospectus supplement or in any free writing prospectuses we have authorized for use in connection with a specific offering, we currently intend to use the net proceeds from the salefeatures of the commonpreferred stock offered by us hereunder, if any, for general corporate purposes, which may include costsunder “Description of developing our technologies, addingCapital Stock — Preferred Stock.” We urge you, however, to our production capacity, making additions to our working capital, funding future acquisitions or for any other purpose we describe in the applicable prospectus supplement. We will not receive any proceeds from the sale of shares of our common stock by any selling stockholder. See “Use of Proceeds” in this prospectus.
NYSE Listing
Our common stock is listed on the New York Stock Exchange under the symbol “NPTN.” The applicable prospectus supplement will contain information, where applicable, as to other listings, if any, of the shares of our common stock covered by the applicable prospectus supplement.
RISK FACTORS
Investing in our common stock involves a high degree of risk. You should consider carefully the risks and uncertainties described in the section entitled “Risk Factors” contained in read the applicable prospectus supplement and(and any related free writing prospectus and discussed underthat we may authorize to be provided to you) related to the section entitled "Risk Factors" contained in our in our most recent Annual Report on Form 10-K and our most recent Quarterly Report on Form 10-Q, series of preferred stock being offered, as well as any amendments thereto reflected in subsequent filings with the SEC, which descriptions are incorporated in this prospectus by reference in its entirety, as well as in any prospectus supplement hereto. These risks and uncertainties are notcomplete certificate of designation that contains the only risks and uncertainties we face. Additional risks and uncertainties not currently known to us, or that we currently view as immaterial, may also impair our business. If anyterms of the risksapplicable series of preferred stock.
Debt Securities. We may issue debt securities from time to time, in one or uncertaintiesmore series, as either senior or subordinated debt or as senior or subordinated convertible debt. The senior debt securities will rank equally with any other unsecured and unsubordinated debt. The subordinated debt securities will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument governing the debt, to all of our SEC filingssenior indebtedness. Convertible debt securities will be convertible into or any additional risks and uncertainties actually occur, our business, financial condition, results of operations and cash flow could be materially and adversely affected. In that case, the trading price ofexchangeable for our common stock could declineor other securities. Conversion may be mandatory or at the holders’ option and you might lose allwould be at prescribed conversion rates.
Any debt securities issued under this prospectus will be issued under one or
part of your investment. SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Thismore documents called indentures, which are contracts between us and a national banking association or other eligible party, as trustee. In this prospectus, including the information that we incorporate by reference, contains forward-looking statements within the meaninghave summarized certain general features of the Private Securities Litigation Reform Actdebt securities under “Description of 1995 that involve substantial risks and uncertainties. All statements other than statements of historical facts contained in this prospectus, including statements regarding our future financial condition, business strategy and plans and objectives of management for future operations, are forward-looking statements. Forward-looking statements include statements that are not historical facts and can be identified by terms such as “anticipates,Debt Securities.” “believes,” “could,” “seeks,” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,” “predicts, “projects,” “should,” “will,” “would” or similar expressions and the negatives of those terms.
Forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievementsWe urge you, however, to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. Given these uncertainties, you should not place undue reliance on these forward-looking statements. Also, forward-looking statements represent our management’s beliefs and assumptions only as of the date of this prospectus. You should read this prospectus, the applicable prospectus supplement and(and any related free writing prospectus together with the information that we incorporate by reference,may authorize to be provided to you) related to the series of debt securities being offered, as well as the complete indentures that contain the terms of the debt securities. We have filed the form of indenture as an exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the documents that we haveterms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part completely andor will be incorporated by reference from reports that we file with the understanding that our actual future resultsSEC.
Warrants. We may be materially different from whatissue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants independently or in combination with common stock, preferred stock and/or debt securities. In this prospectus, we expect. Important factors that could cause actual resultshave summarized certain general features of the warrants under “Description of Warrants.” We urge you, however, to differ materially from our expectations are disclosed under “Risk Factors” and elsewhere in this prospectus,read the applicable prospectus supplement and(and any related free writing prospectus that we may authorize to be provided to you) related to the particular series of warrants being offered, as well as any warrant agreements and inwarrant certificates that contain the informationterms of the warrants. We have filed forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants that wemay be offered as exhibits to the registration statement of which this prospectus is a part. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference including, without limitation, in conjunctionfrom reports that we file with the forward-looking statements appearing elsewhereSEC, the form of warrant and/or the warrant agreement and warrant certificate, as applicable, that contain the terms of the particular series of warrants we are offering, and any supplemental agreements, before the issuance of such warrants.
Any warrants issued under this prospectus may be evidenced by warrant certificates. Warrants also may be issued under an applicable warrant agreement that we enter into with a warrant agent. We will indicate the name and address of the warrant agent, if applicable, in
this prospectus,the applicable prospectus supplement and any related free writing prospectus, and inrelating to the information that we incorporate by reference. Except as required by law, we assume no obligation to update these forward-looking statements, or to update the reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new information becomes available in the future.
USE OF PROCEEDS
particular series of warrants being offered.
Use of Proceeds
Except as described in any applicable prospectus supplement or in any free writing prospectuses we have authorized for use in connection with a specific offering, we currently intend to use the net proceeds from the sale of the securities offered by us hereunder, if any, for working capital,
to continue to expand our existing businesscapital equipment and general corporate purposes.
See “Use of Proceeds” in this prospectus.
The New York Stock Exchange Listing
Our common stock is listed on the New York Stock Exchange under the symbol “NPTN.” The applicable prospectus supplement will contain information, where applicable, as to other listings, if any, on the New York Stock Exchange or any other securities market or other exchange of the securities covered by the applicable prospectus supplement.
RISK FACTORS
Investing in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks and uncertainties described under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and discussed under the section captioned “Risk Factors” contained in our most recent Annual Report on Form 10-K and in our most recent Quarterly Report on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC, which are incorporated by reference into this prospectus in their entirety, together with other information in this prospectus, the documents incorporated by reference and any free writing prospectus that we may authorize for use in connection with this offering. The risks described in these documents are not the only ones we face, but those that we consider to be material. There may be other unknown or unpredictable economic, business, competitive, regulatory or other factors that could have material adverse effects on our future results. Past financial performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate results or trends in future periods. If any of these risks actually occurs, our business, financial condition, results of operations or cash flow could be seriously harmed. This could cause the trading price of our common stock to decline, resulting in a loss of all or part of your investment. Please also read carefully the section below captioned “Special Note Regarding Forward-Looking Statements.”
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents we have filed with the SEC that are incorporated by reference contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. These statements relate to future events or to our future operating or financial performance and involve known and unknown risks, uncertainties and other factors which may cause our actual results, performance or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements. Forward-looking statements include, but are not limited to, statements about:
•our potential growth opportunities;
•our expectations regarding the effects of competition;
•our expectations regarding the devotion of our resources;
•our expected uses of the net proceeds to us from any specific offering;
•our estimates of our expenses, future revenue, capital requirements and our needs for or ability to obtain additional financing;
•our expectations regarding our future financial performance; and
•developments and projections relating to our competitors or our industry.
In some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,” “could,” “would,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “project,” “predict,” “potential” and similar expressions intended to identify forward-looking statements. These statements reflect our current views with respect to future events and are based on assumptions and are subject to risks and uncertainties. Given these uncertainties, you should not place undue reliance on these forward-looking statements. We discuss in greater detail many of these risks under the heading “Risk Factors” contained in the applicable prospectus supplement, in any free writing prospectuses we may authorize for use in connection with a specific offering, and in our most recent annual report on Form 10-K and in our most recent quarterly report on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC, which are incorporated by reference into this prospectus in their entirety. Also, these forward-looking statements represent our estimates and assumptions only as of the date of the document containing the applicable statement. Unless required by law, we undertake no obligation to update or revise any forward-looking statements to reflect new information or future events or developments. Thus, you should not assume that our silence over time means that actual events are bearing out as expressed or implied in such forward-looking statements. You should read this prospectus, any applicable prospectus supplement, together with the documents we have filed with the SEC that are incorporated by reference and any free writing prospectus that we may authorize for use in connection with this offering completely and with the understanding that our actual future results may be materially different from what we expect. We qualify all of the forward-looking statements in the foregoing documents by these cautionary statements.
In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this prospectus supplement, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.
USE OF PROCEEDS
Except as described in any applicable prospectus supplement or in any free writing prospectuses we have authorized for use in connection with a specific offering, we currently intend to use the net proceeds from the sale of the securities offered by us hereunder, if any, for working capital, capital equipment and general corporate purposes.
The amounts and timing of our use of the net proceeds from this offering will depend on a number of factors, such as the timing and progress of our research and development efforts
and clinical trials, the timing and progress of any partnering and commercialization efforts, technological advances and the competitive environment for our products. As of the date of this prospectus, we cannot specify with certainty all of the particular uses for the net proceeds to us from the sale of the securities offered by us hereunder.
We Accordingly, our management will not receive anyhave broad discretion in the timing and application of these proceeds. Pending application of the net proceeds fromas described above, we intend to temporarily invest the sale of shares of our common stock by any selling stockholder.
proceeds in short-term, interest-bearing instruments.
DESCRIPTION OF CAPITAL STOCK
Our authorized
The following description of our capital stock consists of 100,000,000 shares of common stock, $0.0025 par value per share,does not purport to be complete and 10,000,000 shares of preferred stock, $0.0025 par value per share. A description ofis subject in all respects to applicable Delaware law and to the material terms and provisions of our amended and restated certificate of incorporation, and our amended and restated bylaws affecting the rights of holders of our capital stock is set forth below. The description is intended as a summary, and is qualified in its entirety by reference to the form of ourbylaws.
General
Our amended and restated certificate of incorporation
provides for common stock and
authorized shares of undesignated preferred stock, the
formrights, preferences and privileges of
which may be designated from time to time by our
amendedboard of directors. Our authorized capital stock consists of 110,000,000 shares, all with a par value of $0.0025 per share, of which 100,000,000 shares are designated as common stock and
restated bylaws.10,000,000 shares are designated as preferred stock.
Dividend rights.rights. Subject to preferences that may apply to shares of preferred stock outstanding at the time, the holders of outstanding shares of our common stock are entitled to receive dividends out of funds legally available if our board of directors, in its discretion, determines to issuedeclare dividends and then only at the times and in the amounts that our board of directors may determine.
Voting rights.rights. Each holder of common stock is entitled to one vote for each share of common stock held on all matters submitted to a vote of stockholders. Our certificate of incorporation does not provide for the right of stockholders to cumulate votes for the election of directors. Our certificate of incorporation establishes a classified board of directors, to bewhich is divided into three classes with staggered three-year terms. Only one class of directors iswill be elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three-year terms. These provisions in our amended and restated certificate of incorporation could discourage potential takeover attempts. See “Anti-Takeover Effects of Delaware Law and Our Charter Documents” below.
No preemptive or similar rights.rights. Our common stock is not entitled to preemptive rights and is not subject to conversion redemption or sinking fundredemption provisions. The rights, preferences and privileges of the holders of our common stock are subject to, and may be adversely affected by, the rights of the holders of any series of our preferred stock that we may designate and issue in the future.
Right to receive liquidation distributions.distributions. Upon our dissolution, liquidation or winding-up, the assets legally available for distribution to our stockholders are distributable ratably among the holders of our common stock, subject to prior satisfaction of all outstanding debt and liabilities and the preferential rights and payment of liquidation preferences, if any, on any outstanding shares of preferred stock.Fully paid and non-assessable. All of our outstanding shares of
Preemptive or Similar Rights. Our common stock is fully paidnot entitled to preemptive rights and non-assessable.is not subject to conversion, redemption or sinking fund provisions.
The rights of the holders of our common stock are subject to, and may be adversely affected by, the rights of holders of shares of any preferred stock that we may designate and issue in the future.
We haveare authorized, subject to limitations prescribed by Delaware law, to issue up to 10,000,000 shares of preferred stock in one or more series established by our board of directors. Our board of directors is authorized to establish from time to time the number of shares to be included in each series and to fix the designation, powers, preferences and rights of the shares of each series and any of its qualifications, limitations or restrictions. Our board of directors can also increase or decrease the number of shares of any series, but not below the number of shares of that series then outstanding, without any further vote or action by our stockholders. Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of the common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring, discouraging or preventing a change in control of our company and may adversely affect the market price of our common stock and the voting and other rights of the holders of our common stock.
We
have no current planwill fix the designations, voting powers, preferences and rights of the preferred stock of each series we issue under this prospectus, as well as the qualifications, limitations or restrictions thereof, in the certificate of designation relating to
issuethat series. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of any
sharescertificate of designation that contains the terms of the series of preferred
stock. Anti-takeover effects of provisions of our amended and restated certificate of incorporation, our bylaws and Delaware law
Certificate of incorporation and bylaws to be in effect upon the completion of this offering
Our amended and restated certificate of incorporation provides for our board of directors to be divided into three classes with staggered three-year terms. Only one class of directors is elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three-year terms. Because our stockholders do not have cumulative voting rightsstock we are offering. We will describe in the election of directors, stockholders holding a majorityapplicable prospectus supplement the terms of the sharesseries of commonpreferred stock outstanding is able to elect all of our directors. Our board of directors is able to elect a director to fill a vacancy created by the expansion of the board of directors or duebeing offered, including, to the resignation or departure of an existing board member. Our amendedextent applicable:
•the title and restated certificate of incorporation and amended and restated bylaws also provide that all stockholder actions must be effected at a duly called meeting of stockholders and not by a consent in writing, and that only our chairman of stated value;
•the board, Chief Executive Officer or the board of directors pursuant to a resolution adopted by a majority of the total number of authorized directors may call a special meeting of stockholders. In addition, our amended and restated bylaws also include a requirement for the advance notice of nominations for election to the board of directors or for proposing matters that can be acted upon at a stockholders’ meeting. Our amended and restated certificate of incorporation provide for the ability of the board ofshares we are offering;
directors•the liquidation preference per share;
•the purchase price;
•the dividend rate, period and payment date and method of calculation for dividends;
•whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
•the procedures for any auction and remarketing, if applicable;
•the provisions for a sinking fund, if applicable;
•the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to issue, without stockholder approval,exercise those redemption and repurchase rights;
•any listing of the preferred stock on any securities exchange or market;
•whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be calculated, and the conversion period;
•whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated, and the exchange period;
•voting rights of the preferred stock;
•preemptive rights, if any;
•restrictions on transfer, sale or other assignment;
•whether interests in the preferred stock will be represented by depositary shares;
•a discussion of material United States federal income tax considerations applicable to the preferred stock;
•the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up to 10,000,000 sharesour affairs;
•any limitations on the issuance of any class or series of preferred stock with terms set by the board of directors, which rights could beranking senior to thoseor on a parity with the series of preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our commonaffairs; and
•any other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock.
Anti-Takeover Effects of Delaware Law and Our amended and restated certificateCharter Documents
Some of
incorporation and amended and restated bylaws also provide that approval of at least 66 2/3% of the shares entitled to vote at an election of directors is required to adopt, amend or repeal our amended and restated bylaws, or repeal the provisions of our amended and restated certificate of incorporation regarding the election and removal of directors and the inability of stockholders to take action by written consent in lieu of a meeting.The foregoing provisions will make it more difficult for our existing stockholders to replace our board of directors, as well as for another party to obtain control of us by replacing our board of directors. Since our board of directors has the power to retain and discharge our officers, these provisions could also make it more difficult for existing stockholders or another party to effect a change in management. In addition, the authorization of undesignated preferred stock makes it possible for our board of directors to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to change our control.
These provisions are intended to enhance the likelihood of continued stability in the composition of our board of directors and its policies and to discourage certain types of transactions that may involve an actual or threatened acquisition of us. These provisions are also designed to reduce our vulnerability to an unsolicited acquisition proposal and to discourage certain tactics that may be used in proxy fights. However, such provisions could have the effect of discouraging others from making tender offers for our shares andDelaware law may have the effect of deterring hostile takeoversdelaying, deferring, discouraging or delaying changes in ourpreventing another person from acquiring control or management. As a consequence, these provisions also may inhibit fluctuations in the market price of our stock that could result from actual or rumored takeover attempts.
Section 203 of the Delaware General Corporation Law
Company.
We are subject to the provisions of Section 203 of the Delaware General Corporation Law, regulating corporate takeovers. This section prevents somewhich prohibits a Delaware corporationscorporation from engaging under some circumstances, in aany business combination which includes a merger or sale of at least 10% of the corporation’s assets with any interested stockholder meaningfor a period of three years after the date that such stockholder became an interested stockholder, with the following exceptions:
•before such date, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;
•upon closing of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction began, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned by (1) persons who are directors and also officers and (2) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
•on or after such date, the business combination is approved by the board of directors and authorized at an annual or special meeting of the stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder.
In general, Section 203 defines business combination to include the following:
•any merger or consolidation involving the corporation and the interested stockholder;
•any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;
•subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;
•any transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class or series of the corporation beneficially owned by the interested stockholder; or
•the receipt by the interested stockholder of the benefit of any loss, advances, guarantees, pledges or other financial benefits by or through the corporation.
In general, Section 203 defines an “interested stockholder” as an entity or person who, together with
the person’s affiliates and associates,
beneficially owns, or within three years prior to the
time of determination of interested stockholder status did own, 15% or more of the
corporation’s outstanding voting stock
unless:of the corporation. | ·
| | the transaction is approved by the board of directors prior to the time that the interested stockholder became an interested stockholder;
|
| ·
| | upon consummation of the transaction which resulted in the stockholder’s becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced; or
|
| ·
| | at or subsequent to such time that the stockholder became an interested stockholder the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders by at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder.
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A Delaware corporation may “opt out” of these provisions with an express provision in its original certificate of incorporation or an express provision in its certificate orof incorporation or bylaws resulting from a stockholders’ amendment approved by at least a majority of the outstanding voting shares. We dohave not planelected to “opt out” of these provisions. The statute could prohibit or delay mergers or other takeover or change in control attempts and, accordingly, may discourage attempts to acquire us.
Certain provisions in our certificate of incorporation and our amended and restated bylaws could have an effect of delaying, deferring or preventing a change in control.
Choice of Forum
Our certificate of incorporation provides that the Court of Chancery of the State of Delaware will be the exclusive forum for any derivative action or proceeding brought on our behalf, any action asserting a breach of fiduciary duty owed by any director, officer or employee to us or our stockholders, any action asserting a claim against us arising pursuant to the Delaware General Corporation Law or any action asserting a claim against us that is governed by the internal affairs doctrine. However, several lawsuits involving other companies have been brought challenging the validity of choice of forum provisions in certificates of incorporation, and it is possible that a court could rule that such provision is inapplicable or unenforceable.
Our common stock is listed on the New York Stock Exchange under the
trading symbol “NPTN.”
The applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on the New York Stock Exchange or any securities market or other exchange of the other securities covered by such prospectus supplement.
Transfer
agentAgent and
registrarRegistrar
Our transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC. The transfer agent’s address is 6201 15th Avenue, Brooklyn, New York 11219.
SELLING STOCKHOLDERS
ThisDESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus, also relates towe will describe the possible resale by certainparticular terms of our stockholders, whoany debt securities that we may offer in more detail in the applicable prospectus supplement. The terms of any debt securities offered under a prospectus supplement may differ from the terms described below. Unless the context requires otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures that specify the terms of a particular series of debt securities.
We will issue the debt securities under the indenture that we will enter into with the trustee named in this prospectusthe indenture. The indenture will be qualified under the Trust Indenture Act of 1939, as amended, or the “selling stockholders,”Trust Indenture Act. We have filed the form of upindenture as an exhibit to 8,261,882 shares of our common stock that were issued and outstanding, or issuable upon exercise or conversion of securities issued and outstanding, prior to the original date of filing of the registration statement of which this prospectus formsis a part, including sharesand supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
The following summary of material provisions of the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indenture that contains the terms of the debt securities.
General
The indenture does not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other provisions designed to give holders of any debt securities protection against changes in our operations, financial condition or transactions involving us.
We may issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms of the debt securities. Material U.S. federal income tax considerations applicable to debt securities issued with OID will be described in more detail in any applicable prospectus supplement.
We will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
•the title of the series of debt securities;
•any limit upon the aggregate principal amount that may be owned by affiliates. Of issued;
•the 8,261,882 shares of our common stock being offered by maturity date or dates;
•the selling stockholders, 4,972,905form of the sharesdebt securities of the series;
•the applicability of any guarantees;
•whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
•whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination;
•if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another security or the method by which any such portion shall be determined;
•the interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;
•our right, if any, to defer payment of interest and the maximum length of any such deferral period;
•if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions;
•the date or dates, if any, on which, and the price or prices at which we are held by one selling stockholderobligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable;
•the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof;
•any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that purchased the shares in April 2012. 2,730,000 shares are held by one selling stockholder that purchased preferred stock priorseries and any security for our obligations with respect to the company’s initial public offeringsuch debt securities and were subsequently converted to common stockany other terms which may be advisable in connection with the conversionmarketing of alldebt securities of that series;
•whether the preferred stock in connection with the closingdebt securities of the offering. 558,977 shares are held by certainseries shall be issued in whole or in part in the form of a global security or securities; the terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other individual securities; and the depositary for such global security or securities;
•if applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at our executive officersoption or the holders’ option) conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange;
•if other employees who acquiredthan the shares upon exercise or vestingfull principal amount thereof, the portion of stock awards under our equity compensation plans, or will acquire the shares upon exercise of vested stock options currently outstanding under our equity compensation plans. Information about the selling stockholders, where applicable, including their identities, theprincipal amount of sharesdebt securities of the series which shall be payable upon declaration of acceleration of the maturity thereof;
•additions to or changes in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation, merger or sale covenant;
•additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to be due and payable;
•additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
•additions to or changes in the provisions relating to satisfaction and discharge of the indenture;
•additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued under the indenture;
•the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
•whether interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and conditions upon which the election may be made;
•the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any and principal amounts of the debt securities of the series to any holder that is not a “United States person” for federal tax purposes;
•any restrictions on transfer, sale or assignment of the debt securities of the series; and
•any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes in the provisions of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
Conversion or Exchange Rights
We will set forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common stock owned by each selling stockholder prioror our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory, at the offering,option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations under the indenture or the debt securities, as appropriate.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default under the indenture with respect to any series of debt securities that we may issue:
•if we fail to pay any installment of interest on any series of debt securities, as and when the same shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest
payment period by us in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest for this purpose;
•if we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established with respect to such series; provided, however, that a valid extension of the maturity of such debt securities in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of principal or premium, if any;
•if we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written notice of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and
•if specified events of bankruptcy, insolvency or reorganization occur.
If an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
•the direction so given by each selling stockholderthe holder is not in conflict with any law or the applicable indenture; and
•subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding.
A holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies only if:
•the holder has given written notice to the trustee of a continuing event of default with respect to that series;
•the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request,
•such holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred by the trustee in compliance with the request; and
•the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer.
These limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and the trustee may change an indenture without the consent of any holders with respect to specific matters:
•to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series;
•to comply with the provisions described above under “Description of Debt Securities—Consolidation, Merger or Sale;”
•to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
•to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for the benefit of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred upon us in the indenture;
•to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication and (if more than one percent)delivery of debt securities, as set forth in the indenture;
•to make any change that does not adversely affect the interests of any holder of debt securities of any series in any material respect;
•to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above under “Description of Debt Securities—General” to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities;
•to evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or
•to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act.
In addition, under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may make the following changes only with the consent of each holder of any outstanding debt securities affected:
•extending the fixed maturity of any debt securities of any series;
•reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption of any series of any debt securities; or
•reducing the percentage of common stockdebt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver.
Discharge
Each indenture provides that we can elect to be owned by each selling stockholder after completiondischarged from our obligations with respect to one or more series of debt securities, except for specified obligations, including obligations to:
•provide for payment;
•register the transfer or exchange of debt securities of the offering,series;
•replace stolen, lost or mutilated debt securities of the series;
•pay principal of and premium and interest on any debt securities of the series;
•maintain paying agencies;
•hold monies for payment in trust;
•recover excess money held by the trustee;
•compensate and indemnify the trustee; and
•appoint any successor trustee.
In order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company, or DTC, or another depositary named by us and identified in the applicable prospectus supplement with respect to that series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms relating to any book-entry securities will be set forth in anthe applicable prospectus supplement.
At the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement, documents incorporatedthe holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities of any series, we will not be required to:
•issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or
•register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.
Information Concerning the Trustee
The trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing Law
The indenture and the debt securities will be governed by and construed in accordance with the internal laws of the State of New York, except to the extent that the Trust Indenture Act of 1939 is applicable.
DESCRIPTION OF WARRANTS
The following description, together with the additional information that we include in any applicable prospectus supplement and in any related free writing prospectus that we may authorize to be distributed to you, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which may be issued in one or more series. Warrants may be offered independently or in combination with other securities offered by any prospectus supplement. While the terms we have summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of warrants in more detail in the applicable prospectus supplement. The following description of warrants will apply to the warrants offered by this prospectus unless we provide otherwise in the applicable prospectus supplement. The applicable prospectus supplement for a particular series of warrants may specify different or additional terms.
We have filed forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants that may be offered as exhibits to the registration statement of which this prospectus is a part. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference or in a free writing prospectusfrom reports that we file with the SEC. SEC, the form of warrant and/or the warrant agreement and warrant certificate, as applicable, that contain the terms of the particular series of warrants
we are offering, and any supplemental agreements, before the issuance of such warrants. The following summaries of material terms and provisions of the warrants are subject to, and qualified in their entirety by reference to, all the provisions of the form of warrant and/or the warrant agreement and warrant certificate, as applicable, and any supplemental agreements applicable to a particular series of warrants that we may offer under this prospectus. We urge you to read the applicable prospectus supplement related to the particular series of warrants that we may offer under this prospectus, as well as any related free writing prospectuses, and the complete form of warrant and/or the warrant agreement and warrant certificate, as applicable, and any supplemental agreements, that contain the terms of the warrants.
General
We will describe in the applicable prospectus supplement the terms of the series of warrants being offered, including:
•the offering price and aggregate number of warrants offered;
•the currency for which the warrants may be purchased;
•if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security;
•in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
•in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
•the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
•the terms of any rights to redeem or call the warrants;
•any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
•the dates on which the right to exercise the warrants will commence and expire;
•the manner in which the warrant agreements and warrants may be modified;
•a discussion of any material or special U.S. federal income tax considerations of holding or exercising the warrants;
•the terms of the securities issuable upon exercise of the warrants; and
•any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
•in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
•in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus supplement. The warrants may be exercised as set forth in the prospectus supplement relating to the warrants offered. Unless we otherwise specify in the applicable prospectus supplement, warrants may be exercised at any time up to the close of business on the expiration date set forth in the prospectus supplement relating to the warrants offered thereby. After the close of business on the expiration date, unexercised warrants will become void.
Upon receipt of payment and the warrant or warrant certificate, as applicable, properly completed and duly executed at the corporate trust office of the warrant agent, if any, or any other office, including ours, indicated in the prospectus supplement, we will, as soon as practicable, issue and deliver the securities purchasable upon such exercise. If less than all of the warrants (or the warrants represented by such warrant certificate) are exercised, a new warrant or a new warrant certificate, as applicable, will be issued for the remaining warrants.
Governing Law
Unless we otherwise specify in the applicable prospectus supplement, the warrants and any warrant agreements will be governed by and construed in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent, if any, will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee, depositary or warrant agent maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security is registered is recognized as the holder of that security. Securities issued in global form will be registered in the name of the depositary or its participants. Consequently, for securities issued in global form, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in a book-entry security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities in non-global form. In these cases, investors may choose to hold their securities in their own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution.
For securities held in street name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form.
For example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular provision of the indenture or for other purposes. In such an event, we would seek approval only from the holders, and not the indirect holders, of the securities. Whether and how the holders contact the indirect holders is up to the holders.
Special Considerations For Indirect Holders
If you hold securities through a bank, broker or other financial institution, either in book-entry form or in street name, you should check with your own institution to find out:
•the performance of third party service providers;
•how it handles securities payments and notices;
•whether it imposes fees or charges;
•how it would handle a request for the holders’ consent, if ever required;
•whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future;
•how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and
•if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters.
Global Securities
A global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms.
Each security issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, DTC will be the depositary for all securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under the section captioned “Special Situations When a Global Security Will Be Terminated” in this prospectus. As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular security indicates that the security will be issued in global form only, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations For Global Securities
The rights of an indirect holder relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.
If securities are issued only in the form of a global security, an investor should be aware of the following:
•an investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below;
•an investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above;
•an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form;
•an investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective;
•the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in a global security;
•we and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in a global security, nor do we or any applicable trustee supervise the depositary in any way;
•the depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and
•financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and other matters relating to the securities.
There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations When a Global Security Will Be Terminated
In a few special situations described below, the global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own name, so that they will be direct holders. We have described the rights of holders and street name investors above.
Unless we provide otherwise in the applicable prospectus supplement, the global security will terminate when the following special situations occur:
•if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days;
•if we notify any applicable trustee that we wish to terminate that global security; or
•if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived.
The applicable prospectus supplement
willmay also
disclose whetherlist additional situations for terminating a global security that would apply only to the particular series of securities covered by the applicable prospectus supplement. When a global security terminates, the depositary, and not we or any
applicable trustee, is responsible for deciding the names of the
selling stockholders has held any position or office with, has been employed by or otherwise has had a material relationship with us duringinstitutions that will be the
three years prior to the date of the prospectus supplement.The selling stockholders shall not sell any shares of our common stock pursuant to this prospectus until we have identified such selling stockholders and the shares being offered for resale by such selling stockholders in a subsequent prospectus supplement. However, the selling stockholders may sell or transfer all or a portion of their shares of our common stock pursuant to any available exemption from the registration requirements of the Securities Act.
initial direct holders.
We
or the selling stockholders may sell the
shares of our common stocksecurities from time to time pursuant to underwritten public offerings, direct sales to the public, negotiated transactions, block trades or a combination of these methods. We
or the selling stockholders may sell the
shares of our common stocksecurities to or through underwriters or dealers, through agents, or directly to one or more purchasers. We may distribute
shares of our common stocksecurities from time to time in one or more transactions:
| ·
| | at a fixed price or prices, which may be changed;
|
| ·
| | at market prices prevailing at the time of sale;
|
•at a fixed price or prices, which may be changed; | ·
| | at prices related to such prevailing market prices; or
|
•at market prices prevailing at the time of sale;
•at prices related to such prevailing market prices; or
•at negotiated prices.
A prospectus supplement or supplements (and any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of the
shares of our common stock,securities, including, to the extent applicable:
| ·
| | the name or names of the underwriters, if any;
|
| ·
| | the purchase price of the shares of our common stock or other consideration therefor, and the proceeds, if any, we will receive from the sale;
|
•the name or names of the underwriters, if any; | ·
| | any over-allotment options under which underwriters may purchase additional shares of our common stock from us;
|
| ·
| | any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
|
•the purchase price of the securities or other consideration therefor, and the proceeds, if any, we will receive from the sale; | ·
| | any public offering price;
|
| ·
| | any discounts or concessions allowed or reallowed or paid to dealers; and
|
•any over-allotment or other options under which underwriters may purchase additional securities from us; | ·
| | any securities exchange or market on which the shares of our common stock may be listed.
|
•any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
•any public offering price;
•any discounts or concessions allowed or reallowed or paid to dealers; and
•any securities exchange or market on which the securities may be listed.
Only underwriters named in the prospectus supplement will be underwriters of the
shares of our common stocksecurities offered by the prospectus supplement.
If underwriters are used in the sale, they will acquire the shares of our common stocksecurities for their own account and may resell the shares of our common stocksecurities from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the shares of our common stocksecurities will be subject to the conditions set forth in the applicable underwriting agreement. We or the selling stockholders may offer the shares of our common stocksecurities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the shares of our common stocksecurities offered by the prospectus supplement, other than shares of our common stocksecurities covered by any over-allotment option. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from time to time. We or the selling stockholders may use underwriters with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We
or the selling stockholders may sell
shares of our common stocksecurities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of
shares of our common stocksecurities and we will describe any commissions we
or the selling stockholders will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our
or the selling stockholders’ agent will act on a best-efforts basis for the period of its appointment.
We
or the selling stockholders may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase
shares of common stocksecurities from us
or the selling stockholders at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we
or the selling stockholders must pay for solicitation of these contracts in the prospectus supplement.
We
or the selling stockholders may provide agents and underwriters with indemnification against civil liabilities, including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters may engage in transactions with, or perform services for, us
or the selling stockholders in the ordinary course of business.
All securities we may offer, other than common stock, will be new issues of securities with no established trading market. Any underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidity of the trading markets for any securities.
Any underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve purchases of the
shares of our common stock,securities, either through exercise of the over-allotment option or in the open market after the distribution is completed, to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the
shares of our common stocksecurities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the
shares of our common stocksecurities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
Any underwriters or agents that are qualified market makers on the New York Stock Exchange
may engage in passive market making transactions in
theour common stock on the New York Stock Exchange
in accordance with Regulation M under the Exchange Act, during the business day prior to the pricing of the offering, before the commencement of offers or sales of
theour common stock. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making may stabilize the market price of the
shares of our common stocksecurities at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
In compliance with guidelines
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, Cooley LLP will pass upon the validity of the
Financial Industry Regulatory Authority, or FINRA, the maximum consideration or discount to be receivedsecurities offered by
any FINRA member or independent broker dealer may not exceed 8% of the aggregate amount of the shares of common stock offered pursuant to this prospectus and any
applicable prospectus supplement.LEGAL MATTERS
The validitysupplement thereto. As of the date of this prospectus, a partner of Cooley LLP owns 2,000 shares of our common stock being offered by this prospectus will be passed upon for us by Cooley LLP, Palo Alto, California.
stock. The consolidated financial statements as of December 31, 2020 and for the year then ended and management's assessment of the effectiveness of internal control over financial reporting as of December 31, 2020, incorporated by reference in this Prospectus by reference fromprospectus have been so incorporated in reliance on the Company’sreports of BDO USA, LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
The financial statements as of and for the two years in the period ended December 31, 2019, included in the Company's Annual Report on Form 10-K
andfor the
effectiveness of NeoPhotonics Corporation’s internal control over financial reportingyear ended December 31, 2020 incorporated by reference in this prospectus, have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their
reports,report, which
areis incorporated by reference herein. Such
consolidated financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of the registration statement on Form S-3 we filed with the SEC under the Securities Act and does not contain all the information set forth in the registration statement. Whenever a reference is made in this prospectus to any of our
contracts, agreements or other documents, the reference may not be complete and you should refer to the exhibits that are a part of the registration statement or the exhibits to the reports or other documents incorporated by reference into this prospectus for a copy of such contract, agreement or other document. Because we are subject to the information and reporting requirements of the
Securities Exchange Act,
of 1934, as amended, we file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov.
You may also read and copy any document we file at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. In addition, any person to whom this prospectus is delivered may request copies of this prospectus and any related amendments or supplements or documents incorporated by reference, without charge, by written or telephonic request directed to Clyde R. Wallin, Senior Vice President and Chief Financial Officer, NeoPhotonics Corporation, 2911 Zanker Road, San Jose, California 95134; telephone: (408) 232-9200; E-mail: ray.wallin@neophotonics.com. We maintain a website at www.neophotonics.com. Information found on, or accessible through, our website is not a part of, and is not incorporated into, this prospectus, and you should not consider it part of this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” information from other documents that we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus. Information in this prospectus supersedes information incorporated by reference that we filed with the SEC prior to the date of this prospectus, while information that we file later with the SEC will automatically update and supersede the information in this prospectus.
We incorporate by reference into this prospectus and the registration statement of which this prospectus is a part the information or documents listed below that we have filed with the SEC (Commission File No. 001-35061):
•our Annual Report on Form 10-K for the year ended December 31, 2020, which was filed on February 25, 2021;
•our Quarterly Report on Form 10-Q for the quarter ended March 31, 2021, which was filed on April 29, 2021;
•our Quarterly Report on Form 10-Q for the quarter ended June 30, 2021, which was filed on August 3, 2021;
•the information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2020 from our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 16, 2021;
•the description of our common stock contained in our registration statement on Form 8-A filed with the SEC on January 28, 2011, including any amendments or reports filed for the purposes of updating this description.
All filings filed by us pursuant to the Exchange Act after the date of the initial filing of the registration statement of which this prospectus is a part and prior to effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus.
We also incorporate by reference any future filings
we will make(other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC
under Sectionpursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
(i)including those made after the date of the initial filing of the registration statement of which this prospectus is a part and prior to effectiveness of such registration statement,
and (ii) from the date of this prospectus but prior tountil we file a post-effective amendment that indicates the termination of the offering of the securities
coveredmade by this prospectus
(other than Current Reports or portions thereof furnished under Item 2.02 or 7.01 of Form 8-K): | ·
| | our Annual Report on Form 10-K for the year ended December 31, 2015, filed with the SEC on March 15, 2016;
|
| ·
| | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2016, filed with the SEC on May 10, 2016;
|
| ·
| | our Quarterly Report on Form 10-Q for the quarter ended June 30, 2016, filed with the SEC on August 9, 2016;
|
| ·
| | our Current Reports on Form 8-K, filed with the SEC on April 22, 2016, April 25, 2016, June 10, 2016, July 5, 2016, August 8, 2016, September 16, 2016, September 20, 2016 and September 27, 2016;
|
| ·
| | the information specifically incorporated by reference in our Annual Report on Form 10-K for the year ended December 31, 2015, from our definitive proxy statement relating to our 2016 annual meeting of stockholders, which was filed on April 26, 2016; and
|
| ·
| | the description of our common stock contained in our registration statement on Form 8-A filed with the SEC on January 28, 2011, including any amendments or reports filed for the purposes of updating this description.
|
We will furnish without charge to you, on written or oral request,become a copy of any or all of the documents incorporated by reference in this prospectus, including exhibits to these documents. You should direct any requests for documents to Clyde R. Wallin, Senior Vice President and Chief Financial Officer, NeoPhotonics Corporation, 2911 Zanker Road, San Jose, California 95134; telephone: (408) 232-9200; E-mail: ray.wallin@neophotonics.com.
You also may access these filings on our website at www.neophotonics.com. We do not incorporate the information on our website into this prospectus or any supplement to this prospectus and you should not consider any information on, or that can be accessed through, our website as part of this prospectus orfrom the date that such documents are filed with the SEC. Information in such future filings updates and supplements the information provided in this prospectus. Any statements in any supplementsuch future filings will automatically be deemed to this prospectus (other than those filingsmodify and supersede any information in any document we previously filed with the SEC that we specifically incorporate by reference into this prospectus or any supplement to this prospectus).
Any statement contained in a documentis incorporated or deemed to be incorporated herein by reference in this prospectus will be deemed modified, superseded or replaced for purposes of this prospectus to the extent that a statement containedstatements in this prospectus modifies, supersedesthe later filed document modify or replacesreplace such statement.
earlier statements.
You can request a copy of these filings, at no cost, by writing or telephoning us at the following address or telephone number:
NeoPhotonics Corporation
2911
San Jose, California 95134
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution. Distribution
The following table sets forth
an estimate of the
costsfees and expenses, other than
the underwriting discounts and commissions,
to be paidpayable by
the registrantus in connection with the
saleissuance and distribution of the
shares of common stocksecurities being
registered hereby.registered. All
the amounts
shown are estimates, except for the SEC registration fee.
| | Amount
| |
SEC registration fee
| | $
| 24,775 | |
New York Stock Exchange listing fee
| | | | (1)
|
FINRA filing fee (if applicable)
| | | | (1)
|
Accounting fees and expenses
| | | | (1)
|
Legal fees and expenses
| | | | (1)
|
Transfer agent and registrar fees and expenses
| | | | (1)
|
Printing and miscellaneous fees and expenses
| | | | (1)
|
|
|
|
|
|
Total
| | $
| | (1)
|
|
|
|
|
|
| (1)
| | These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
|
| | | | | | | | | | | |
| | | Amount |
| SEC registration fee | | $ | 16,365 |
| The New York Stock Exchange listing fee | | | * |
| FINRA filing fee | | | * |
| Accounting fees and expenses | | | * |
| Legal fees and expenses | | | * |
| Transfer agent and registrar fees and expenses | | | * |
| Printing and miscellaneous fees and expenses | | | * |
| | | |
| Total | | $ | * |
* These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
Item 15. Indemnification of Directors and
Officers. Officers
We are incorporated under the General Corporation Law of the State of Delaware (the “Delaware General Corporation Law”). Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the Delaware General Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act.
As permitted by the Delaware General Corporation Law, our certificate of incorporation includes a provision that eliminates, to the fullest extent permitted by law, the personal liability of a director for monetary damages resulting from breach of his fiduciary duty as a director.
As permitted by the Delaware General Corporation Law, our bylaws provide that:
| ·
| | we are required to indemnify our directors and officers to the fullest extent permitted by the Delaware General Corporation Law;
|
| ·
| | we may indemnify our other employees and agents as provided in indemnification contracts entered into between us and our employees and agents;
|
| ·
| | we are required to advance expenses, as incurred, to our directors and officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law; and
|
•we are required to indemnify our directors and officers to the fullest extent permitted by the Delaware General Corporation Law; | ·
| | the rights conferred in the bylaws are not exclusive.
|
•we may indemnify our other employees and agents as provided in indemnification contracts entered into between us and our employees and agents;
•we are required to advance expenses, as incurred, to our directors and officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law; and
•the rights conferred in the bylaws are not exclusive.
Our policy is to enter into separate indemnification agreements with each of our directors and officers that provide the maximum indemnity allowed to directors and executive officers by Section 145 of the Delaware General Corporation Law and also provide for certain additional procedural protections. We currently carry liability insurance for our directors and officers. At present, there is no pending litigation or proceeding involving one of our directors or officers regarding which indemnification is sought, nor are we aware of any threatened litigation that may result in claims for indemnification.
These indemnification provisions and the indemnification agreements entered into between us and our officers and directors may be sufficiently broad to permit indemnification of our officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.
We maintain insurance policies that indemnify our directors and officers against various liabilities arising under the Securities Act and the Exchange Act of 1934, as amended, that might be incurred by any director or officer in his capacity as such.
In any underwriting agreement we enter into in connection with the sale of our securities being registered hereby the underwriters may agree to indemnify, under certain circumstances, us, our officers, our directors, and our controlling persons within the meaning of the Securities Act, against certain liabilities.
Item 16.
Exhibits. The exhibitsExhibits
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Exhibit Number | | Exhibit Description | | Incorporation by Reference | | Filed Herewith |
| Form | | File Number | | Exhibit/ Appendix Reference | | Filing Date | |
| 1.1* | | Form of Underwriting Agreement. | | | | | | | | | | |
| 3.1 | | | | 8-K | | 001-35061 | | 3.1 | | 2/10/2011 | | |
| 3.2 | | | | S-1/A | | 333-166096 | | 3.5 | | 11/22/2010 | | |
| 4.1 | | Reference is made to Exhibits 3.1 through 3.2. | | | | | | | | | | |
| 4.2* | | Specimen Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock | | | | | | | | | | |
| 4.5 | | | | | | | | | | | | X |
| 4.6* | | Form of Debt Securities | | | | | | | | | | |
| 4.7 | | | | | | | | | | | | X |
| 4.8 | | | | | | | | | | | | X |
| 4.9 | | | | | | | | | | | | X |
| 5.1 | | | | | | | | | | | | X |
| 23.1 | | | | | | | | | | | | X |
| 23.2 | | | | | | | | | | | | X |
| 23.3 | | | | | | | | | | | | |
| 24.1 | | | | | | | | | | | | |
| 25.1** | | Statement of Eligibility of Trustee under the Debt Indenture | | | | | | | | | | |
* To be filed by amendment or as an exhibit to
the registration statement are listed in the Exhibit Index attached heretoa Current Report on Form 8-K and incorporated
herein by reference,
herein. if applicable.
** To be filed separately under electronic form type 305B2, if applicable.
Item 17.
Undertakings. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. (5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for the purpose of determining liability of the registrant under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) That, for purposes of determining any liability under the Securities Act of 1933:
(i) the information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the registrant pursuant to Rule 424(b)(l) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be a part of the registration statement as of the time it was declared effective; and
(ii) each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(8) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 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 the 4th day of October, 2016.August 16, 2021.
| NeoPhotonics Corporation
| | | | | | | |
| | NeoPhotonics Corporation |
| By:
| |
| 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 constituteconstitutes and appointappoints Timothy S. Jenks and Clyde Raymond Wallin,Elizabeth Eby, and each one of them, as his true and lawful attorneys-in-fact and agents, with full powerpowers of substitution and resubstitution, for himthem and in histheir name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, and all post-effective amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the SEC, and generally to do all such things in their names and behalf in their capacities as officers and directors to enable NeoPhotonics Corporation to comply with the provisions of the Securities Act of 1933 and Exchange Commission,all requirements of the SEC, 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 or she 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 or theirher substitutes or substitute, or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature
| | Title
| | Date
| | | | | | | | | | |
| Signatures | | Title | | Date |
| | |
| /s/ Timothy S. Jenks | | President, Chief Executive Officer, Director and | | October 4, 2016
|
Timothy S. Jenks
| | Chairman of the Board of Directors | | |
| | (Principal Executive Officer) | | August 16, 2021 |
| | | | Timothy S. Jenks |
| | |
/s/ Clyde Raymond WallinElizabeth Eby | | Senior Vice President, Finance and Chief Financial Officer (Principal | | October 4, 2016
|
Clyde Raymond Wallin
| | (Principal Financial and Accounting Officer) | | August 16, 2021 |
| | | | Elizabeth Eby |
| | | | |
/s/ Charles J. Abbe | | Lead Director and Director | | October 4, 2016
August 16, 2021 |
Charles J. Abbe | | | | |
| | | | |
/s/ Dmitry Akhanov
| | Director
| | October 4, 2016
|
Dmitry Akhanov
| | | | |
| | | | |
/s/ Bandel L. Carano | | Director | | October 4, 2016
August 16, 2021 |
Bandel L. Carano | | | | |
| | | | |
/s/ Kimberly Chainey | | Director | | August 16, 2021 |
| Kimberly Chainey | | | | |
| | |
| /s/ Yanbing Li | | Director | | August 16, 2021 |
| Yanbing Li |
| | | | |
| /s/ Rajiv Ramaswami | | Director | | August 16, 2021 |
| Rajiv Ramaswami |
| | | | |
| /s/ Sheri Savage | | Director | | August 16, 2021 |
| Sheri Savage | | | | |
| | |
| /s/ Michael J. Sophie | | Director | | October 4, 2016
August 16, 2021 |
Michael J. Sophie | | | | |
| | | | |
/s/ Rajiv Ramaswami
| | Director
| | October 4, 2016
|
Rajiv Ramaswami
| | | | |
| | | | |
/s/ Ihab Tarazi | | Director | | October 4, 2016
August 16, 2021 |
Ihab Tarazi | | | | |
EXHIBIT INDEX
| | | | | | | | | | | | |
Exhibit no. | | Description of exhibit | | Form | | SEC File No. | | Exhibit | | Filing Date | | Filed
Herewith |
| | | | | | | | | | | | |
1.1* | | Form of Underwriting Agreement. | | | | | | | | | | |
2.1 | | Agreement and Plan of Merger, dated as of September 29, 2011, by and among NeoPhotonics Corporation, Dulcimer Acquisition Corp., Santur and Shareholder Representative Services LLC, solely in its capacity as the Stockholder Representative. | | Form 8-K | | 001-35061 | | 2.1 | | October 18, 2011 | | |
2.2 | | Agreement and Plan of Demerger, dated as of January 18, 2013, by and among NeoPhotonics Corporation, LAPIS Semiconductor Co., Ltd., and NeoPhotonics Semiconductor GK. | | Form 10-K | | 001-35061 | | 2.2 | | March 15, 2013 | | |
2.3 | | Asset Purchase Agreement by and between NeoPhotonics Corporation and EMCORE Corporation, dated October 22, 2014. | | Form 8-K | | 001-35061 | | 10.1 | | October 27, 2014 | | |
2.4 | | Amendment to Asset Purchase Agreement by and between NeoPhotonics Corporation and EMCORE Corporation dated January 2, 2015 | | Form 8-K | | 001-35061 | | 99.1 | | January 8, 2015 | | |
| | | | | | | | | | | | |
2.5 | | True-Up Confirmation Agreement, dated as of April 16, 2015, by and between NeoPhotonics Corporation and EMCORE Corporation | | Form 8-K | | 001-35061 | | 10.2 | | April 21, 2015 | | |
| | | | | | | | | | | | |
4.1 | | Amended and Restated Certificate of Incorporation of NeoPhotonics Corporation. | | Form 8-K | | 001-35061 | | 3.1 | | February 10, 2011 | | |
| | | | | | | | | | | | |
4.2 | | Amended and Restated Bylaws of NeoPhotonics Corporation. | | Form S-1 | | 333-166096 | | 3.4 | | November 22, 2010 | | |
| | | | | | | | | | | | |
4.3 | | Specimen Common Stock Certificate of NeoPhotonics Corporation. | | Form S-1 | | 333-166096 | | 4.1 | | May 17, 2010 | | |
| | | | | | | | | | | | |
5.1 | | Opinion of Cooley LLP. | | | | | | | | | | X |
| | | | | | | | | | | | |
23.1 | | Consent of Deloitte & Touche LLP, independent registered public accounting firm. | | | | | | | | | | X |
| | | | | | | | | | | | |
23.2 | | Consent of Cooley LLP (contained in Exhibit 5.1). | | | | | | | | | | |
| | | | | | | | | | | | |
24.1 | | Power of Attorney (incorporated by reference to the signature page of our Registration Statement on Form S-1). | | | | | | | | | | X |
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated herein by reference, if applicable.
