Item 1.02. Termination of a Material Definitive Agreement.
In connection with the Merger, the Company terminated that certain Amended and
Restated Credit Agreement, dated as of June 29, 2021 (as amended by that certain
First Amendment to Amended and Restated Credit Agreement, dated as of
January 14, 2022, and as further amended, restated, supplemented or otherwise
modified from time to time prior to the date thereof, the "Credit Agreement"),
by and among the lenders party thereto from time to time (each, individually, a
"Lender" and, collectively, the "Lenders"), Wells Fargo Bank, National
Association, a national banking association, as administrative agent for each
member of the Lender Group (as that term is defined in the Credit Agreement) and
the Bank Product Providers (as that term is defined in the Credit Agreement),
and NeoPhotonics, as borrower. The disclosure under the Introductory Note is
incorporated herein by reference.
Item 2.01. Completion of Acquisition or Disposition of Assets.
As described in the Introductory Note, on the Closing Date, the Merger was
completed. Upon the consummation of the Merger, NeoPhotonics became a wholly
owned subsidiary of Lumentum. The disclosure under the Introductory Note is
incorporated herein by reference.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing.
In connection with the closing of the Merger, on August 3, 2022 NeoPhotonics
(i) notified the New York Stock Exchange ("NYSE") of the consummation of the
Merger and (ii) requested that the NYSE (A) suspend trading of the shares of
NeoPhotonics Common Stock on the NYSE and (B) file with the SEC a Notification
of Removal from Listing and/or Registration under Section 12(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on Form 25 to
effect the delisting shares of NeoPhotonics Common Stock from the NYSE and to
deregister shares of NeoPhotonics Common Stock under Section 12(b) of the
Exchange Act. As a result, NeoPhotonics Common Stock will no longer be listed on
the NYSE. In addition, NeoPhotonics intends to file with the SEC a Certification
and Notice of Termination of Registration on Form 15 requesting that
NeoPhotonics reporting obligations under Sections 13 and 15(d) of the Exchange
Act be suspended. The disclosure under the Introductory Note and Items 2.01 is
incorporated herein by reference.
Item 3.03. Material Modification to Rights of Security Holders.
At the Effective Time, each holder of NeoPhotonics Common Stock prior to
completion of the Merger ceased to have any rights as stockholders of
NeoPhotonics other than the right to receive the Merger Consideration in
accordance with the Merger Agreement. The disclosure under the Introductory Note
and Items 2.01, 3.01 and 5.03 is incorporated herein by reference.
Item 5.01. Changes in Control of Registrant.
The disclosure under the Introductory Note and Items 2.01, 3.01, 5.02 and 5.03
is incorporated herein by reference.
As a result of the Merger, a change in control of the Company occurred, and
NeoPhotonics became a wholly owned subsidiary of Lumentum.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
The disclosure under the Introductory Note and Item 2.01 is incorporated herein
by reference.
Effective as of the Effective Time, all of the directors of NeoPhotonics ceased
serving as directors of NeoPhotonics. Pursuant to the Merger Agreement, as of
the Effective Time, Judy Hamel and Matt Sepe, the directors of Merger Sub
immediately prior to the Effective Time, became the directors of NeoPhotonics as
the surviving entity of the Merger.
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Effective as of the Effective Time, all of the officers of NeoPhotonics ceased
serving in their capacity as officers of NeoPhotonics. Pursuant to the Merger
Agreement, as of the Effective Time, Judy Hamel and Matt Sepe, the officers of
Merger Sub immediately prior to the Effective Time, became the officers of
NeoPhotonics as the surviving entity of the Merger.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change of Fiscal
Year.
Pursuant to the Merger Agreement, effective as of the Effective Time, the
amended and restated certificate of incorporation of NeoPhotonics and the
amended and restated bylaws of NeoPhotonics were each amended and restated in
their entirety, as set forth in Exhibits 3.1 and 3.2, respectively, to this
Current Report on Form 8-K, which are incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No. Description
2.1(1)(2) Agreement and Plan of Merger, dated as of November 3, 2021.
3.1 Amended and Restated Certificate of Incorporation of NeoPhotonics
Corporation.
3.2 Amended and Restated Bylaws of NeoPhotonics Corporation
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
(1) Previously filed as Exhibit 2.1 to the Company's Periodic Report on Form 8-K
(File No. 001-35061), filed with the Securities and Exchange Commission on
November 8, 2021, and incorporated herein by reference.
(2) Schedules omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company
agrees to furnish supplemental copies of any omitted schedules to the SEC
upon its request.
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