LUMENTUM HOLDINGS INC. Item 1.01. Entry into a Material Definitive Agreement.
Merger Agreement
On
Pursuant to the terms of the Merger Agreement,
Pursuant to the terms of the Merger Agreement, and subject to the terms and
conditions set forth therein, at the effective time of the Merger (the
"Effective Time"), each share of the common stock of NeoPhotonics (the
"NeoPhotonics Common Stock") issued and outstanding immediately prior to the
Effective Time (other than (x) shares of NeoPhotonics Common Stock owned by
Pursuant to the terms of the Merger Agreement, (i) each NeoPhotonics restricted
stock unit award (or portion thereof), that is outstanding and vested
immediately prior to the Effective Time (including any portion that vests as a
result of the Merger) (each, a "Cancelled NeoPhotonics RSU") will be
automatically cancelled and converted into the right to receive the Merger
Consideration with respect to each share of NeoPhotonics Common Stock underlying
such Cancelled NeoPhotonics RSU, less applicable tax withholding, and (ii) each
NeoPhotonics restricted stock unit award (or portion thereof) that is
outstanding and unvested as of immediately prior to the Effective Time (and does
not vest as a result of the Merger) will be assumed by
Pursuant to the terms of the Merger Agreement, (i) each NeoPhotonics performance restricted stock unit award (or portion thereof), that is outstanding and vested immediately prior to the Effective Time (or vests as a result of the Merger) (each, a "Cancelled NeoPhotonics PRSU") will be automatically cancelled and converted into the right to receive the Merger Consideration with respect to each share of NeoPhotonics Common Stock that would have been issued to the holder of such Cancelled NeoPhotonics PRSU pursuant to the terms of the NeoPhotonics performance restricted stock unit award agreement and the determination of the achievement of the applicable performance objectives was not yet determined as of the Effective Time, and (ii) each NeoPhotonics performance restricted stock unit award (or portion thereof) that is outstanding and unvested as of immediately prior to the Effective Time (and does not vest as a result of the Merger) (each, an "Assumed
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NeoPhotonics PRSU"), will be assumed by
Pursuant to the terms of the Merger Agreement, (i) each NeoPhotonics option (or
portion thereof), that is outstanding and vested immediately prior to the
Effective Time (or vests as a result of the Merger) (each, a "Cancelled
NeoPhotonics Option") will be automatically cancelled and converted into the
right to receive, for each share of NeoPhotonics Common Stock underlying such
Cancelled NeoPhotonics Option, a cash payment, less applicable tax withholding,
equal to the excess (if any) of: (A) the Merger Consideration less (B) the
exercise price per share of such Cancelled NeoPhotonics Option, and (ii) each
NeoPhotonics option (or portion thereof) that is outstanding and unvested as of
immediately prior to the Effective Time (and does not vest as a result of the
Merger) will be assumed by
Pursuant to the terms of the Merger Agreement, each NeoPhotonics stock appreciation unit (or portion thereof), that is outstanding and vested immediately prior to the Effective Time (each, a "Cancelled NeoPhotonics SAU") will be automatically cancelled and converted into the right to receive, with respect to each share of NeoPhotonics Common Stock underlying such Cancelled NeoPhotonics SAU, a cash payment equal to the excess of: (A) the Merger Consideration, less (B) the exercise or base price per share of such Cancelled NeoPhotonics SAU, less applicable tax withholding.
The Boards of Directors of
The Merger Agreement contains customary representations, warranties and covenants of NeoPhotonics, including, (i) covenants concerning the conduct of its business in the ordinary course consistent with past practice during the interim period between the execution of the Merger Agreement and the Closing, (ii) a covenant that, subject to certain exceptions, the Board of Directors of NeoPhotonics will recommend to its stockholders the adoption of the Merger Agreement, and (iii) a covenant that NeoPhotonics will not solicit, initiate, or knowingly encourage, facilitate or induce the making of an inquiry, offer or proposal that would reasonably be expected to lead to any Acquisition Proposal (as defined in the Merger Agreement).
The Merger Agreement contains certain termination rights for both
The foregoing description of the Merger Agreement and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which is attached hereto as Exhibit 2.1. We
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encourage you to read the Merger Agreement for a more complete understanding of
the transaction. The Merger Agreement has been attached as an exhibit to this
report to provide investors and security holders with information regarding its
terms. The Merger Agreement is not intended to provide any factual information
about
Forward-Looking Statements
This communication contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. Forward-looking statements
generally relate to future events, including the timing of the proposed
transaction and other information related to the proposed transaction. In some
cases, you can identify forward-looking statements because they contain words
such as "may," "will," "should," "expects," "plans," "anticipates," "could,"
"intends," "target," "projects," "contemplates," "believes," "estimates,"
"predicts," "potential" or "continue" or the negative of these words or other
similar terms or expressions that concern the proposed transaction and our
expectations, strategy, plans or intentions regarding it. Forward-looking
statements in this communication include, but are not limited to, (i)
expectations regarding the timing, completion and expected benefits of the
proposed transaction, (ii) plans, objectives and intentions with respect to
future operations, customers and the market, and (iii) the expected impact of
the proposed transaction on the business of the parties. Expectations and
beliefs regarding these matters may not materialize, and actual results in
future periods are subject to risks and uncertainties that could cause actual
results to differ materially from those projected. These risks include the risk
that the transaction may not be completed in a timely manner or at all; the
ability to secure regulatory approvals on the terms expected in a timely manner
or at all; the effect of the announcement or pendency of the transaction on our
business relationships, results of operations and business generally; risks that
the proposed transaction disrupts current plans and operations; the risk of
litigation and/or regulatory actions related to the proposed transaction;
potential impacts of the Covid-19 pandemic; changing supply and demand
conditions in the industry; and general market, political, economic and business
conditions. The forward-looking statements contained in this communication are
also subject to other risks and uncertainties, including those more fully
described in filings with the
The parties undertake no obligation to update the information contained in this communication or any other forward-looking statement.
Additional Information and Where to Find It
This communication is being made in respect of a proposed business combination
involving
LUMENTUM AND NEOPHOTONICS URGE INVESTORS AND SECURITY HOLDERS TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION.
Investors and security holders will be able to obtain these materials (when they
are available and filed) free of charge at the
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description 2.1 Agreement and Plan of Merger, dated as ofNovember 3, 2021 , by and amongLumentum Holdings Inc. , NeoPhotonics Corporation, andNeptune Merger Sub, Inc. * 104 Cover Page Interactive Data File (formatted as Inline XBRL)
* Certain of the exhibits and schedules to this exhibit have been omitted in
accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish
supplementally a copy of all omitted exhibits and schedules to the
request.
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