Securities Registration: Employee Benefit Plan (s-8)
March 02 2020 - 4:56PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on March 2, 2020
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
Applied
Optoelectronics, Inc.
(Exact name of registrant as specified in
its charter)
Delaware
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76-0533927
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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13139 Jess
Pirtle Blvd.
Sugar Land, TX 77478
(281) 295-1800
(Address, including zip code, and telephone number,
including area code, of Registrant’s principal executive offices)
Applied Optoelectronics, Inc. Amended and Restated 2013 Equity Incentive Plan
(Full title of the plan)
Stefan J. Murry
Chief Financial Officer
Applied Optoelectronics, Inc.
13139 Jess Pirtle Blvd.
Sugar Land, TX 77478
(281) 295-1800
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
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David C. Kuo
General Counsel
Applied Optoelectronics, Inc.
13139 Jess Pirtle Blvd.
Sugar Land, TX 77478
(281) 295-1800
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Indicate by check
mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company,
or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
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Accelerated filer
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x
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Non-accelerated filer
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o
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Smaller reporting company
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o
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Emerging growth company
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o
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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. o
CALCULATION OF REGISTRATION FEE
Title of securities
to be registered
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Amount to be
registered (1)
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Proposed
maximum offering
price per share
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Proposed
maximum aggregate
offering price
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Amount of
registration fee
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Common Stock, par value $0.001 per share
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— To be issued under the Amended and Restated 2013 Equity Incentive Plan
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333,333(2)
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$9.14(3)
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$3,046,663.62
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$395.46
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Total
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$395.46
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “1933 Act”), this Registration Statement
shall also cover any additional shares of Applied Optoelectronics, Inc. (the “Registrant”) common stock that become
issuable under the Applied Optoelectronics, Inc. Amended and Restated 2013 Equity Incentive Plan (the “2013 Plan”)
by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s
receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock.
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(2)
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Represents an automatic annual increase to the number of shares of Registrant’s common stock reserved for issuance under
the 2013 Plan as provided for in the 2013 Plan of 333,333 shares as of January 1, 2020. Such amounts were calculated pursuant to
the terms of the 2013 Plan, after taking into account the effect of the 30:1 reverse stock split that the Company effected on August
20, 2013, after the Company’s adoption of the 2013 Plan.
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(3)
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Estimated in accordance with paragraphs (c) and (h) of Rule 457 under the Securities Act solely for purposes of
calculating the registration fee. The price for the Common Stock being registered hereby is based on a price of $9.14 per
share of Common Stock, which is the average of the high and low trading prices for a share of Common Stock of the Registrant
on February 28, 2020, as reported on the NASDAQ Global Market.
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EXPLANATORY NOTE
The Registration Statement on Form S-8 registers
an additional 333,333 shares of common stock of the Registrant to be issued pursuant to the Registrant’s 2013 Plan. Accordingly,
the contents of the Registration Statements on Form S-8 relating to the 2013 Plan previously filed by the Registrant with the Securities
and Exchange Commission (the “Commission”) on November 19, 2013 (File No. 333-192407), May 10, 2017 (File No. 333-217871),
March 1, 2018 (File No. 333-223347) and on March 13, 2019 (File No. 333-230243) are incorporated by reference into this Registration
Statement pursuant to General Instruction E of Form S-8. The additional shares of common stock to be registered hereunder have
become reserved for issuance as a result of the operation of the “evergreen” provisions in the Registrant’s 2013
Plan, which provides that the total number of shares subject to the 2013 Plan will be increased each year pursuant to a specified
formula.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of documents by reference
The Registrant hereby incorporates by reference
into this Registration Statement the following documents previously filed with the Commission:
b.
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The Registrant’s Current Report on Form 8-K filed on February 27, 2020 and February 28, 2020, and all other reports filed with the Commission pursuant to Sections 13(a) or 15(d) since the end of the fiscal year covered by the Registrant’s Annual Report referred to in a. above;
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c.
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The description of the Registrant’s common stock, par value $0.001, contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-36083) filed with the Commission on September 23, 2013 pursuant to Section 12(b) of the Securities Exchange Act of 1934 (the “1934 Act”), including any amendment or report filed for the purpose of updating such description.
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All reports and definitive proxy or information
statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this Registration Statement (except
for any portions of the Registrant’s Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 thereof and
any corresponding exhibits thereto not filed with the Commission) and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to
be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 6. Indemnification of Directors
and Officers.
Delaware
law provides a detailed statutory framework covering indemnification of directors, officers, employees or agents against liabilities
and expenses arising out of legal proceedings brought against them by reason of their status or service as directors, officers,
employees or agents. Section 145 of the DGCL ("Section 145") provides that a director, officer, employee or
agent of a corporation (i) shall be indemnified by the corporation for expenses actually and reasonably incurred in defense
of any action or proceeding if such person is sued by reason of his service to the corporation, to the extent that such person
has been successful in defense of such action or proceeding, or in defense of any claim, issue or matter raised in such litigation,
(ii) may, in actions other than actions by or in the right of the corporation (such as derivative actions), be indemnified
for expenses actually and reasonably incurred, judgments, fines and amounts paid in settlement of such litigation, even if he is
not successful on the merits, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation (and in a criminal proceeding, if he did not have reasonable cause to believe his conduct was unlawful),
and (iii) may be indemnified by the corporation for expenses actually and reasonably incurred (but not judgments or settlements)
in any action by the corporation or of a derivative action (such as a suit by a stockholder alleging a breach by the director or
officer of a duty owed to the corporation), even if he is not successful, provided that he acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the corporation, provided that no indemnification is permitted
without court approval if the director has been adjudged liable to the corporation. Delaware law also permits a corporation to
elect to indemnify its officers, directors, employees and agents under a broader range of circumstances than that provided under
Section 145.
Provisions
in the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws limit or eliminate
the personal liability of the Registrant’s directors to the fullest extent permitted by the DGCL, as it now exists or may
in the future be amended. Consequently, a director will not be personally liable to the Registrant or the Registrant’s stockholders
for monetary damages or breach of fiduciary duty as a director, except for liability for:
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any breach of the director's duty of loyalty to the Registrant or
the Registrant’s stockholders;
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any act or omission not in good faith or that involves intentional
misconduct or a knowing violation of law;
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any unlawful payments related to dividends or unlawful stock purchases,
redemptions or other distributions; or
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any transaction from which the director derived an improper personal
benefit.
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These
limitations of liability do not alter director liability under the federal securities laws and do not affect the availability of
equitable remedies such as an injunction or rescission.
In
addition, the Registrant’s amended and restated bylaws provide that:
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the Registrant will indemnify its directors, officers and, in the
discretion of the Registrant’s board of directors, certain employees to the fullest extent permitted by the DGCL, as it now
exists or may in the future be amended; and
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the Registrant will advance reasonable expenses, including attorneys'
fees, to its directors and, in the discretion of the Registrant’s board of directors, to its officers and certain employees,
in connection with legal proceedings relating to their service for or on behalf of the Registrant, subject to limited exceptions.
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The
Registrant has entered into indemnification agreements with each of its directors and certain of its executive officers. These
agreements provide that the Registrant will indemnify each of its directors and certain of its executive officers to the fullest
extent permitted by Delaware law.
The
Registrant also maintains general liability insurance which covers certain liabilities of its directors and officers arising out
of claims based on acts or omissions in their capacities as directors or officers, including liabilities under the Securities Act.
Reference is made to the underwriting
agreement filed as Exhibit 1.1 to Registrant’s Registration Statement on Form S-1 (Registration No. 333-190591), as amended,
declared effective by the Commission on September 25, 2013, and the underwriting agreement filed as Exhibit 1.1 to Registrant’s
Registration Statement on Form S-1 (Registration No. 333-194379), as amended, declared effective by the Commission on March 19,
2014, the equity distribution agreement filed as Exhibit 1.1 to Registrant’s Current Report on Form 8-K filed on July 14,
2015, with respect to the Registrant’s Registration Statement on Form S-3 (Registration No. 333-204703) that was declared
effective by the Commission on June 23, 2015, and the equity distribution agreement filed as Exhibit 1.1 to Registrant’s
Current Report on Form 8-K filed on November 14, 2016, with respect to the Registrant’s Registration Statement on Form S-3
(Registration No. 333-214146), declared effective by the Commission on November 1, 2016, and the equity distribution agreement
filed as Exhibit 1.1 to Registrant's Current Report on Form 8-K filed on February 28, 2020, with respect to the Registrant's Registration
Statement on Form S-3 (Registration No. 333-234310), declared effective by the Commission on January 9, 2020, pursuant to which
the underwriters have agreed to indemnify the Registrant’s officers and directors against certain liabilities under the
1933 Act.
See the Index to Exhibits immediately following
the signature pages to this Registration Statement on Form S-8, which is incorporated by reference herein.
EXHIBIT INDEX
* Filed herewith.
SIGNATURES
Pursuant to the requirements of the Securities
Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Sugar Land, State of Texas on March 2, 2020.
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APPLIED OPTOELECTRONICS, INC.
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By:
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/s/ Chih-Hsiang (Thompson) Lin
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Chih-Hsiang (Thompson) Lin
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints Chih-Hsiang (Thompson) Lin and Dr. Stefan J. Murry, and each
of them, his true and lawful attorneys-in-fact and agents, with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement
and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents 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 and to all intents and purposes as they might or could not in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act, this registration statement has been signed by the following persons in the capacities and on March 2, 2020.
Signature
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Date
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/s/
Chih-Hsiang (Thompson) Lin
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Chih-Hsiang (Thompson) Lin,
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President, Chief Executive Officer and
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March 2, 2020
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Chairman of the Board of Directors
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(principal executive officer)
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/s/ STEFAN J. MURRY
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Stefan J. Murry,
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Chief Financial Officer
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March 2, 2020
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(principal financial officer and
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principal accounting officer)
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/s/ William H. Yeh
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William H. Yeh,
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March 2, 2020
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Director
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/s/ Richard B. Black
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Richard B. Black,
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March 2, 2020
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Director
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/s/ Che-Wei Lin
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Che-Wei Lin,
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March 2, 2020
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Director
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/s/ Alex Ignatiev
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Alex Ignatiev,
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March 2, 2020
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Director
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/s/ Alan Moore
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Alan Moore,
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March 2, 2020
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Director
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/s/ Min-Chu (Mike) Chen
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Min-Chu (Mike) Chen,
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March 2, 2020
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Director
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