UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
PLAINTIFF OPTIWAVE SEMICONDUCTOR CORP.'S CORPORATE DISCLOSURE STATEMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 7.1
I. INTRODUCTION AND BASIS FOR FILING
Plaintiff Optiwave Semiconductor Corp. ("OWS" or "Plaintiff") hereby submits this Corporate Disclosure Statement pursuant to Federal Rule of Civil Procedure 7.1(a). Under Rule 7.1(a), any nongovernmental corporate party to an action in a district court must file a disclosure statement that identifies any parent corporation and any publicly held corporation owning 10% or more of its stock, or states that there is no such corporation. This obligation extends to all nongovernmental corporate parties and is intended to assist the Court and its judicial officers in evaluating possible grounds for recusal or disqualification under 28 U.S.C. § 455.
This Corporate Disclosure Statement is filed in connection with the Complaint for Patent Infringement filed by OWS against Defendant Lumos Photonics, Inc. ("Lumos Photonics") on June 3, 2022, initiating the above-captioned action. OWS files this statement concurrently with, or promptly following, its initial pleading in this matter, in compliance with the timing requirements of Rule 7.1(b)(1) and the Local Rules of the United States District Court for the Northern District of California.
II. IDENTITY OF THE FILING PARTY
The filing party is Optiwave Semiconductor Corp., a corporation duly organized and existing under the laws of the State of Delaware. OWS maintains its principal place of business at 2775 Augustine Drive, Suite 400, San Jose, California 95054.
OWS is a fabless semiconductor design company specializing in silicon photonics integrated circuits for data center interconnects and telecommunications applications. As a fabless company, OWS designs, develops, and markets semiconductor products but does not own or operate semiconductor fabrication facilities. OWS's products include optical transceivers, photonic integrated circuit modules, and related intellectual property used in high-speed data transmission infrastructure.
OWS is a privately held corporation. OWS's stock is not listed on any national securities exchange, is not registered under Section 12 of the Securities Exchange Act of 1934, and is not otherwise publicly traded on any stock exchange or over-the-counter market. OWS has not undertaken an initial public offering and does not file periodic reports with the United States Securities and Exchange Commission.
III. PARENT CORPORATION DISCLOSURE
OWS does not have a "parent corporation" within the strict meaning of Federal Rule of Civil Procedure 7.1(a)(1), as that term is commonly understood to refer to a corporation that owns more than 50% of the stock of the party filing the disclosure. No corporation owns a majority of OWS's outstanding equity.
However, in the interest of full and transparent disclosure to the Court, OWS identifies the following entity that holds a majority ownership interest in OWS:
Vantage Point Capital Partners Fund IV, LP ("Vantage Point Fund IV"), a limited partnership organized under the laws of the State of Delaware, holds approximately sixty-two percent (62%) of OWS's outstanding equity, constituting a majority ownership interest. Vantage Point Fund IV is headquartered at 2600 Sand Hill Road, Suite 200, Menlo Park, California 94025.
Vantage Point Fund IV is a private equity fund with a fund size of approximately $2.1 billion (vintage year 2018). Vantage Point Fund IV is organized as a Delaware limited partnership and is not itself a corporation. It is a private investment fund and is not a publicly held corporation. Vantage Point Fund IV's limited partnership interests are not listed or traded on any public stock exchange or over-the-counter market, and are held exclusively by institutional investors and qualified purchasers in accordance with applicable securities law exemptions.
The general partner of Vantage Point Capital Partners Fund IV, LP is Vantage Point Capital GP IV, LLC, a limited liability company organized under the laws of the State of Delaware. Vantage Point Capital GP IV, LLC manages the investment activities of Vantage Point Fund IV and exercises control over certain governance decisions relating to Vantage Point Fund IV's portfolio companies, including OWS. Vantage Point Capital GP IV, LLC is not a publicly held corporation, and its membership interests are privately held and are not traded on any public exchange or market.
OWS discloses these entities and their relationship to OWS in an abundance of caution and to facilitate the Court's assessment of any potential conflicts of interest, notwithstanding that neither Vantage Point Fund IV nor Vantage Point Capital GP IV, LLC constitutes a "parent corporation" within the meaning of Rule 7.1(a)(1) as that provision is typically applied to corporate entities.
IV. PUBLICLY HELD CORPORATIONS OWNING 10% OR MORE OF OWS'S STOCK
No publicly held corporation owns 10% or more of the stock of Optiwave Semiconductor Corp.
As set forth above, Vantage Point Capital Partners Fund IV, LP holds approximately 62% of OWS's outstanding equity. Vantage Point Fund IV is a private investment fund organized as a Delaware limited partnership and is not a publicly held corporation within the meaning of Federal Rule of Civil Procedure 7.1.
The remaining approximately thirty-eight percent (38%) of OWS's outstanding equity is held by founders, members of management, employees holding equity pursuant to OWS's equity incentive plan, and individual angel investors. None of these stockholders is a publicly held corporation, and no individual stockholder other than Vantage Point Fund IV holds 10% or more of OWS's outstanding equity.
Accordingly, there is no publicly held corporation that owns 10% or more of OWS's stock requiring disclosure under Rule 7.1(a)(2).
V. SUPPLEMENTAL DISCLOSURE REGARDING AFFILIATES AND RELATED ENTITIES
In addition to the disclosures set forth above, and in compliance with the spirit and purpose of Rule 7.1 and the Local Rules of the Northern District of California, OWS provides the following supplemental information regarding its affiliates and related entities:
Vantage Point Capital Partners Fund IV, LP, as the holder of approximately 62% of OWS's outstanding equity, has the right to designate three (3) members of OWS's seven-member Board of Directors pursuant to the terms of an Investors' Rights Agreement dated as of September 14, 2018, as amended. The remaining four (4) Board seats are held by OWS's Chief Executive Officer, two independent directors, and one director designated by the founders.
OWS is aware of no other entity relationship, subsidiary, affiliate, or related entity that requires disclosure under Federal Rule of Civil Procedure 7.1 or under the Civil Local Rules of the United States District Court for the Northern District of California, including Civil Local Rule 3-15 (Disclosure of Related Cases) and General Order No. 44 (Identification of Related Cases). OWS has no subsidiaries, and OWS is not aware of any publicly held corporation that has a direct financial interest in the outcome of this litigation by reason of a stockholding, agreement, or other relationship with OWS.
VI. DUTY TO SUPPLEMENT
OWS acknowledges its ongoing obligation under Federal Rule of Civil Procedure 7.1(b)(2) to promptly file a supplemental disclosure statement if there is any change in the information provided herein. OWS will timely update this Corporate Disclosure Statement in the event of any material change in its corporate ownership structure, including but not limited to: (a) the acquisition by any publicly held corporation of 10% or more of OWS's stock; (b) any change in the identity or ownership percentage of a parent corporation; or (c) any other change in corporate structure or ownership that would affect the accuracy of the disclosures made herein. Any such supplemental disclosure will be filed with the Court and served on all parties in accordance with the Federal Rules of Civil Procedure and the Local Rules of this Court.
Dated: June 6, 2022
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Alan Ngo (Cal. Bar No. 287415) USPTO Reg. No. 52,871 CALDERWOOD & HARKNESS LLP One Embarcadero Center, 34th Floor San Francisco, California 94111 Telephone: (415) 772-1200 Facsimile: (415) 772-1201
Email: ango@calderwoodharkness.com
Attorneys for Plaintiff Optiwave Semiconductor Corp.
CERTIFICATE OF SERVICE
I, Alan Ngo, hereby certify that on June 6, 2022, I caused the foregoing PLAINTIFF OPTIWAVE SEMICONDUCTOR CORP.'S CORPORATE DISCLOSURE STATEMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 7.1 to be electronically filed with the Clerk of the Court using the CM/ECF (Case Management/Electronic Case Filing) system, which will send notification of such filing to all counsel of record registered to receive electronic notifications in this case.
In particular, electronic service was made upon the following counsel for Defendant Lumos Photonics, Inc.:
Victoria Ashworth, Esq. BRANNICK HOWELL & STEIN LLP 555 California Street, Suite 2800 San Francisco, California 94104 Telephone: (415) 836-4500
Email: vashworth@bhslaw.com
Attorneys for Defendant Lumos Photonics, Inc.
________________________________________
Alan Ngo
| OPTIWAVE SEMICONDUCTOR CORP., a Delaware corporation, | Case No. 5:22-cv-03417-EJD |
| <!-- indent:2 -->Plaintiff,<!-- /indent --> | Hon. Edward J. Torvelis |
v.
LUMOS PHOTONICS, INC., a Delaware corporation,
<!-- indent:2 -->Defendant.<!-- /indent -->