<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 4, 1998
REGISTRATION NO. _________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
LUMEN TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3868804
(State or other jurisdiction (I.R.S. Employer Identification No.)
of Incorporation)
555 THEODORE FREMD AVENUE
SUITE B-302
RYE, NEW YORK 10580
(Address of Principal Executive Offices and Zip Code)
--------------------
LUMEN TECHNOLOGIES, INC.
1996 STOCK INCENTIVE PLAN
(AMENDED AND RESTATED AS OF MARCH 11, 1997)
(Full Title of Plan)
--------------------
MARTIN E. FRANKLIN
CHAIRMAN OF THE BOARD OF DIRECTORS
LUMEN TECHNOLOGIES, INC.
555 THEODORE FREMD AVENUE
SUITE B-302
RYE, NEW YORK 10580
(914) 967-9400
(Name, address and telephone number, including area code, of agent for service)
With a copy to:
KANE KESSLER, P.C.
1350 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019
(212) 541-6222
ATTN: ROBERT L. LAWRENCE, ESQ.
Approximate date of commencement of proposed sale to the public: As
soon as practicable after the effective date of this Registration Statement
becomes effective.
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
AMOUNT TO BE OFFERING OFFERING PRICE2 REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED1 PRICE PER SHARE2 FEE
======================================== ================== ====================== =================== ====================
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 2,075,000 shares $8 5/8(2) $17,896,875 $5,279.58
======================================== ================== ====================== =================== ====================
</TABLE>
- --------------------------------
(1) The 1996 Stock Incentive Plan (Amended and Restated as of
March 11, 1997) (the "Plan") authorizes the issuance of a maximum of 4,250,000
shares of Common Stock which are reserved for issuance pursuant to the grant
of stock based awards under the Plan. Prior to the effectiveness of this
Registration Statement, the Company has previously registered 2,175,000 shares
of the Company's Common Stock reserved for issuance under the Plan.
(2) Estimated solely for the purpose of calculating the registration
fee. Pursuant to Rule 457(h), the proposed maximum offering price per share is
based upon a price of $8 5/8 (the average of the high and low price of the
Registrant's Common Stock as reported on The New York Stock Exchange on July
29, 1998.
<PAGE>
EXPLANATORY NOTE
----------------
This Registration Statement has been prepared in accordance with the
requirements of Form S-8 and Form S-3 pursuant to the Securities Act of 1933,
as amended (the "Securities Act"). The Form S-8 portion of this Registration
Statement will be used for offers of shares of Common Stock (the "Common
Stock") of Lumen Technologies, Inc., a Delaware corporation (the "Company" or
the "Registrant"), pursuant to the Plan. In accordance with the Note to Part I
of Form S-8, the information specified by Part I for Form S-8 has been omitted
from this Registration Statement. Shares of the Company's Common Stock covered
by this Registration Statement also may be sold pursuant to Rule 144 under the
Securities Act rather than pursuant to this Registration Statement. The
Prospectus filed as a part of this Registration Statement has been prepared in
accordance with the requirements of Part I of Form S-3 and will be used for
reofferings or resales of shares of the Common Stock of the Company which are
deemed to be control securities, which have been acquired or will be acquired
by control persons, pursuant to the Plan. A Cross Reference Sheet is provided
for such Prospectus.
<PAGE>
LUMEN TECHNOLOGIES, INC.
------------------------
<TABLE>
<CAPTION>
CROSS REFERENCE SHEET PURSUANT TO REGULATION S-K, ITEM 501(B)
Form S-3 Item Number and Caption Location in Prospectus
- -------------------------------- ----------------------
<S> <C>
1. Forepart of Registration Statement and Outside Front
Cover of Prospectus........................................................ Outside Front Cover
2. Inside Front and Outside Back Cover Pages of
Prospectus................................................................. Inside Front and Outside Back Cover Page
3. Summary Information, Risk Factors and Ratio of
Earnings to Fixed Charges.................................................. Risk Factors
4. Use of Proceeds............................................................ Use of Proceeds
5. Determination of Offering Price *
6. Dilution................................................................... *
7. Selling Security Holders................................................... Selling Stockholders
8. Plan of Distribution....................................................... Front Cover Page;
Plan of Distribution
9. Description of Securities to be registered................................. *
10. Interests of Named Experts and Counsel..................................... *
11. Material Changes........................................................... The Company
12. Incorporation of Certain Information Incorporation of Documents
by Reference............................................................... by Reference
13. Disclosure of Commission Position of Indemnification for Securities Act
Liabilities................................................................*
</TABLE>
- ----------------------------
* Not applicable or answer is in the negative.
<PAGE>
REOFFER PROSPECTUS
LUMEN TECHNOLOGIES, INC.
2,075,000 SHARES OF COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
This Prospectus may be used by certain persons (the "Selling
Stockholders") who may be deemed to be affiliates of Lumen Technologies, Inc.
(f/k/a BEC Group, Inc.), a Delaware corporation (the "Company" or the
"Registrant"), to sell a maximum of 2,075,000 shares of the Company's Common
Stock (the "Common Stock"), $0.01 par value per share (the "Shares"), which
will be purchased or acquired by the Selling Stockholders pursuant to the
Company's 1996 Stock Incentive Plan (Amended and Restated as of March 11,
1997) (the "Plan"). Prior to the effectiveness of this Registration Statement,
the Company has previously registered 2,175,000 shares of Common Stock (taking
into effect a one-for-two reverse stock split) reserved for issuance under the
Plan.
All or a portion of the Shares offered hereby may be offered for sale,
from time to time, on The New York Stock Exchange, or otherwise, at prices and
terms then obtainable. All brokers' commissions or discounts will be paid by
the Selling Stockholders. However, any securities covered by this Prospectus
which qualify for sale pursuant to Rule 144 under the Securities Act of 1933,
as amended (the "Securities Act"), may be sold under Rule 144 rather than
pursuant to this Prospectus. See "Plan of Distribution." The Company will
receive none of the proceeds of this offering, although the Company will
receive cash upon the sale of stock to the Selling Stockholders under the Plan.
See "Use of Proceeds." All expenses incurred in connection with the preparation
and filing of this Prospectus and the related Registration Statement are being
borne by the Company. See "Expenses."
SEE "RISK FACTORS" ON PAGE 9 HEREOF FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CAREFULLY CONSIDERED BY PROSPECTIVE PURCHASERS.
The Company's Common Stock is listed on The New York Stock Exchange.
On July 29, 1998, the closing price of the Company's Common Stock was $8 5/8
per share.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------
The date of this Prospectus is August 4, 1998
<PAGE>
No person is authorized to give any information or to make any
representation other than as contained in this Prospectus in connection with
the offer made hereby, and, if given or made, such information or
representation must not be relied upon as having been authorized by the
Company. The delivery of this Prospectus at any time does not imply that the
information herein is correct as of any time subsequent to its date. This
Prospectus does not constitute an offer to sell, or a solicitation of an offer
to buy, any securities other than the specific registered securities to which
it relates or an offer or solicitation with respect to those securities in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction.
--------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith is required to file periodic reports, proxy statements and
other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information filed by
the Company can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, as well as the Regional Offices of the SEC at Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven World Trade
Center, Suite 1300, New York, New York 10048. Copies of such materials can be
obtained from the Public Reference Section of the Commission at its principal
office at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 at the
prescribed rates. In addition, similar information can be inspected at The New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005. The
Commission also maintains a site on the World Wide Web that contains reports,
proxy and information statements and other information regarding registrants
that file electronically. The address of such site is http://www.sec.gov.
This Prospectus omits certain of the information contained in the
Registration Statement of which this Prospectus is a part (the "Registration
Statement"), covering the Common Stock, which pursuant to the Securities Act is
on file with the Commission. For further information with respect to the
Company and the Common Stock, reference is made to the Registration Statement
including the exhibits incorporated therein by reference or filed therewith.
Statements herein contained concerning the provisions of any document are not
necessarily complete and, in each instance, reference is made to the copy of
such document filed as an exhibit or incorporated by reference to the
Registration Statement. The Registration Statement and the Exhibits may be
inspected without charge at the offices of the Commission or copies thereof
obtained at prescribed rates from the public reference section of the
Commission at the addresses set forth above.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission pursuant to the Exchange Act, are hereby incorporated by reference,
except as superseded or modified herein:
1. The Company's Registration Statement on Form S-1 (the "Registration
Statement"), filed with the Commission on March 5, 1996 (Reg.
No.33-33186).
2. The description of the Company's Common Stock contained in the
Company's Registration Statement including any amendments or
reports filed for the purpose of updating such description.
3. Description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the
Commission on May 3, 1996 pursuant to Section 12 of the Exchange
Act, including any amendments or reports filed for the purpose of
updating such description.
4. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
5. The Company's Current Reports on Form 8-K (Date of Event - July 10,
1997) filed on July 24, 1997, Form 8-K/A filed on September 22,
1997 and Form 8-K/A-2 filed on January 15, 1998 and Form 8-K/A-3
filed on February 6, 1998.
6. The Company's Current Report on Form 8-K (Date of Event - March 11,
1998) filed on March 26, 1998.
7. The Company's Registration Statement on Form S-4, declared
effective by the Commission on February 6, 1998 (Reg. No.
333-40519).
8. The Company's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1998.
9. The Company's proxy statement, filed with the Commission on
July 9, 1998.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of the offering of Common Stock shall
be deemed to be incorporated in and made a part of this Prospectus by reference
from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be
3
<PAGE>
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any subsequently filed document that is also
incorporated by reference herein modifies or replaces such statement. Any
statements so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each
person, including any beneficial owner of the Common Stock, to whom this
Prospectus is delivered, on written or oral request of any such person, a copy
of any or all of the foregoing documents incorporated herein by reference
(other than exhibits to such documents). Written or oral requests for such
copies should be directed to Attention: Investor Relations, Lumen Technologies,
Inc., 555 Theodore Fremd Avenue, Rye, Suite B-302, New York 10580, telephone
(914) 967-9400.
4
<PAGE>
THE COMPANY
GENERAL
Lumen Technologies, Inc., a Delaware corporation (the "Company" or
Lumen"), is a manufacturer and marketer of products and systems for specialty
light source markets. On March 12, 1998, the company completed the merger of
ILC Technology, Inc. ("ILC") into a wholly-owned subsidiary of the Company (the
"ILC Merger"), and on March 11, 1998 the Company consummated the Bolle Spinoff
(as defined below). Prior to March 12, 1998, the Company was known as BEC Group,
Inc. ("BEC"). The Company was incorporated on December 28, 1995, under the name
BEC Group, Inc., as a wholly owned subsidiary of Benson Eyecare Corporation, a
Delaware corporation ("Benson"). As a result of the ILC Merger and the Bolle
Spinoff (as defined below), the Company is presently positioned to focus on its
specialty lighting and related businesses. Although the consummation of these
transactions occurred after the end of the fiscal year reported herein, the
information set forth in the Annual Report on Form 10-K is limited to the
Company's continuing businesses as constituted as of the date hereof, without
descriptive narrative of discontinued operations. Financial Statements
incorporated herein reflect the Bolle operations as discontinued, but do not
reflect the ILC Merger.
The Company was formed in connection with the Essilor Merger (as
defined below), pursuant to which Benson stockholders received all of the
outstanding shares of common stock of the Company in a pro rata distribution
(the "BEC Spinoff"). The BEC Spinoff and merger of Essilor Acquisition
Corporation with and into Benson (the "Essilor Merger") occurred on May 3, 1996
(the "Effective Date"). On May 3, 1996, Benson also consummated the sale to the
Monsanto Company of the assets of its Orcolite ophthalmic lens manufacturing
operation (the "Asset Sale"). Prior to the BEC Spinoff, Benson contributed to
the Company all of the assets of its then non-prescription eyewear and optics
related businesses and the Company assumed all of the liabilities of Benson's
non prescription eyewear and optics related businesses.
In December 1996, the Company sold to Foster Grant Holdings, Inc.
("Holdings") all of the issued and outstanding shares of capital stock of the
entities comprising the Foster Grant Group ("FGG"). Holdings, a Delaware
corporation, is a subsidiary of Accessaries Associates, Inc. ("AAI"), a Rhode
Island corporation.
Following the divestiture of its prescription eyewear business in
May 1996 in connection with the Essilor Merger and Asset Sale and the sale of
FGG in December 1996, the Company had two core businesses: ORC Technologies,
Inc ("ORC"), which manufactures and distributes lightning, electronic and
electroformed products to a diverse customer base, and Bolle America, Inc.
("Bolle America"), the exclusive marketer and distributor of Bolle (Registered
Trademark) premium sunglasses, sport shields and goggles in the U.S., Mexico
and Costa Rica. On July 10, 1997, the Company, through its then subsidiary
Bolle Inc. ("Bolle") acquired
5
<PAGE>
Holdings B.F. ("Bolle France"), a French holding company owning the Bolle
(Registered Trademark) trademark and Bolle design and manufacturing rights
worldwide, together with certain additional distribution rights. The Company
thereby combined in Bolle worldwide rights to the Bolle (Registered Trademark)
trademark and brand and the associated design manufacturing rights, as well as
substantial worldwide distribution network.
Effective March 11, 1998, the Company distributed to its stockholders
of record as of such date, on a pro rata basis, all of the Company's equity
interest in Bolle and the Bolle business (the "Bolle Spinoff"). The Company's
stockholders of record on that date received one share of Bolle common stock
for every three shares of the Company's common stock then held. In connection
with the Bolle Spinoff, the Company assigned to Bolle, and Bolle assumed, all
of the Company's business, assets and liabilities then existing, other than
those relating to the Company's specialty lighting business, ORC Electronics
Products and ORC Electroformed Products and certain additional assets and
liabilities retained by the Company. The Bolle operations are, for accounting
purposes, treated as discontinued operations in the consolidated financial
statements incorporated herein.
On March 12, 1998, the Company effected the merger of ILC with and
into BILC Acquisition Corp., a wholly owned subsidiary of the Company pursuant
to the terms of an Agreement and Plan of Merger, dated as of October 30, 1997,
as amended (the ILC Merger Agreement"). ILC designs, develops, manufactures and
markets high intensity lamps and lighting products for the medical, industrial,
aerospace, scientific, entertainment and military industries. The Company also
holds 50% of the outstanding common stock of Voltarc Technologies, Inc., a
Delaware corporation ("Voltarc") and an option to acquire the remaining equity
of Voltarc. Voltarc also is engaged in the design, manufacture and distribution
of specialty lighting products.
BUSINESS AND PRODUCTS
The Company conducts its core business primarily through its primary
subsidiaries, ORC and ILC which are involved in the design, manufacture and
distribution of specialty lighting products.
ORC's operations consists of three related businesses located at the
Company's facilities in Azusa, California: Lighting Products, Electronic
products and Electroformed Products. ILC's operations are located at the
Company's facilities in Sunnyvale, California and through its wholly owned
subsidiary, Q-Arc, located in Cambridge, England.
The Company's specialty lighting operations design, manufacture and
market lighting products for the medical, industrial, aerospace, scientific,
entertainment, cinema and military industries. Its products are used in a
variety of applications, including high intensity illumination systems and
mini-systems that incorporate lamps, optics and electronic systems. Lamps for
the industrial market are used in photo exposure systems, specialty lighting
6
<PAGE>
applications and in various other high technology equipment. The medical market
is serviced with fiber optic illumination components and systems used with
medical endoscopes as illumination for diagnostic and minimally invasive
surgical procedures. Products include a specially designed ceramic lamp with
integral parabolic reflector, optical components, power supply and fiber optic
illumination systems. The Company supports the worldwide cinema market with a
wide range of short-arc xenon lamps used in projectors and buildings, stadium
and theater lighting.
The Company's products include pulsed and direct current arc lamps
that are designed to satisfy a wide variety of laser and industrial
applications requiring rigorous, high-performance standards ("flashlamps");
Cermax (Registered Trademark) lamps, which are short arc xenon lamps that are
optically pre-aligned, encased in a safe ceramic body bonded to a metallized
sapphire window, and are capable of transmitting the full spectrum from
infrared to UV wavelengths and fully-encased and open frame power supplies,
lamp holders, fiber optic light sources and other equipment to support its
Cermax (Registered Trademark) product line; high intensity lamps for video
projection utilizing the Company's proprietary Daymax (Registered Trademark)
and Cermax (Registered Trademark) technologies and, mercury xenon short arc
lamps which are used to expose patterns during the fabrication of semiconductor
products ("Stepper lamps"). The Company's other products include mercury
capillary lamps, Daymax (Registered Trademark) metal halide lamps and products
for the aerospace and military markets.
The primary market for the Company's Cermax (Registered Trademark)
product line is fiber optic illumination for medical procedures such as
endoscopy. The market for Cermax (Registered Trademark) lightsources and
related equipment used in endoscopy is composed of two segments: a
high-intensity or critical segment and a low-intensity or non-critical segment.
Critical endoscopy applications require high-intensity Cermax (Registered
Trademark) lightsources with specialized power supplies. The low-intensity
market is dominated by manufacturers of halogen lightsources. Ancillary
industrial uses for Cermax (Registered Trademark) lightsources include
illuminating areas that are difficult to inspect, such as nuclear reactors or
jet engines; also analytical instruments, and, spot UV curing lightsources.
Daymax (Registered Trademark) lamps simulate stable daylight conditions. These
products are used primarily in the entertainment business. Applications
include: indoor and outdoor lighting for motion picture and television
productions, high speed and special effects lighting, concert and stadium
lighting and theatrical lighting. The Company also has developed a series of
integral low-power metal halide lamps (less than 500 watts) for commercial
projection, stage and medical applications. The Company also manufactures
mercury capillary lamps using technology and processes that are similar to
those developed for stepper lamps. The primary applications for mercury
capillary lamps include the photolithography of grid patters on color
television screens and printed circuit boards for computers. In the aerospace
market, the Company offers standard, modified and customer systems covering the
visible, infrared and UV spectrum to meet each space lighting requirement. The
Company is the only domestic manufacturer of space lighting qualified to serve
NASA and other government agencies in Japan and Europe. The Company's products
for the military market include infrared lamps used by the military on tanks
and aircraft to deflect offensive heat seeking missiles.
7
<PAGE>
ORC Electronic Products manufactures photoexposure systems, including
the Opti-Beam (Registered Trademark) and ProForm (Registered Trademark) lines.
These highly sophisticated systems are used in the production of high density,
fine-line circuit boards, microcircuits, flexible circuits and flat panel
displays. The business has focused on the upper end of the market where its
proprietary optics technology, vision alignment systems and superior automated
material handling capabilities allow for imaging fine line circuitry with
exceptional throughput.
ORC Electroformed Products supplies a wide range of electroformed
products to a variety of industrial customers. Its products include (i)
electroformed nickel and copper components such as cold shields, flashlight and
search light reflectors, abrasion resistant shields for use on airplane and
helicopter rotor blades and highly polished spheres, parabolas and ellipses for
industrial uses and, (ii) tooling used in the manufacture of hard resin and
polycarbonate ophthalmic lenses.
* * *
The Company's principal executive offices are located at 555 Theodore
Fremd Avenue, Rye, New York, 10580. Its telephone number is (914) 967-9400.
8
<PAGE>
RISK FACTORS
The Shares of Common Stock being offered hereby involve a high degree of risk
and prospective purchasers of Common Stock offered hereby should carefully
consider the following specific factors as well as other information contained
in this Prospectus prior to making an investment decision.
EFFECTS OF THE ILC MERGER
The realization of the benefits sought from the ILC Merger depends on
the ability of the Company to use product development capabilities, sales and
marketing capabilities, administrative organizations and facilities better than
either ILC or the Company could do separately. There can be no assurance that
these benefits will be achieved or that the activities of the Company and ILC
will be coordinated in a timely and efficient manner. Combining the operations
of the two companies to realize the potential strategic benefits of the ILC
Merger also will require the dedication of management resources, which may
temporarily distract such person's attention from the day-to-day business of
the individual companies. There can be no assurance that the integration will
be completed without disrupting the Company's or ILC's business. Any inability
of Company to better use resources or to achieve such combination in a timely
and coordinated fashion could result in a material adverse effect on Company's
financial condition, operating results and cash flows.
It is expected that the Company will incur additional expenses due
the ILC Merger which reflects the costs of combining the two companies. If the
anticipated savings in operating costs are not achieved, or if the ILC Merger
has other adverse effects that are not currently anticipated, the ILC Merger
could result in a reduction in per share earnings of the Company as computed to
the per share earnings that either or both the Company or ILC would have
achieved if the ILC Merger had not occurred. Furthermore, even if the results
of the ILC Merger are as anticipated, there can be no assurance that future
earnings will not be adversely affected by any number of economic, market or
other factors that are not related to the ILC Merger.
RISKS ASSOCIATED WITH FUTURE ACQUISITIONS
A key element of the Company's growth strategy is the acquisition of
businesses and assets that will complement its current businesses. There can be
no assurance that the Company will be able to identify attractive acquisition
opportunities, obtain financing for acquisitions on satisfactory terms or
successfully acquire identified targets. In addition, there can be no assurance
that the Company will be successful in integrating acquired businesses into its
existing operations or that such integration will not result in unanticipated
liabilities or unforeseen operational difficulties, which may be material, or
require a disproportionate amount of management's attention. Such acquisitions
may result in the Company incurring additional
9
<PAGE>
indebtedness or issuing preferred stock or additional Common Stock. There can
be no assurance that competition for acquisition opportunities in the industry
will not escalate, thereby increasing the cost to the Company of making
acquisitions or causing the Company to refrain from making further
acquisitions.
ACCOUNTING TREATMENT
The Company's total goodwill and intangible assets are approximately
$44.4 million. These assets are currently being amortized at a rate of
approximately $1.1 million a year. This amortization expense will act to
decrease the Company's income over the life of the assets being amortized.
The carrying value of long lived assets will be reviewed regularly and there
is no guarantee that the Company will not suffer a significant charge in the
future from the impairment of long lived assets. The Company may continue to
acquire businesses using purchase accounting which may create more intangible
assets and goodwill amortization. While the Company believes its accounting
treatment for goodwill and intangible assets has been and will continue to be
appropriate, there can be no assurance that additional goodwill and intangible
amortization or write-offs will not have a material adverse effect on the
Company's results of operations.
INTENSE COMPETITION
The markets for Company's products are highly competitive. Many of the
Company's competitors have established operating histories, are larger than the
Company and have financial and other resources substantially greater than those
of the Company. There can be no assurance that changes in market conditions or
price competition will not adversely affect the Company's operations in the
future and that the Company will be able to compete successfully.
ENVIRONMENTAL CONTINGENCIES
The Company's operations will be subject to federal, state and local
laws and regulations governing, among other things, emissions to air, discharge
to waters and the generation, handling, storage, transportation, treatment and
disposal of waste and other materials as well as laws relating to occupational
health and safety. The Company believes that its business, operations and
facilities are being operated in compliance in all material respects with
environmental and health and safety laws and regulations, many of which provide
for substantial fines and criminal sanctions for violations. However, the
operations of manufacturing plants entail risks in these areas, and there can
be no assurance that the Company will not incur material costs or liabilities.
In addition, potentially significant expenditures could be required to comply
with evolving environmental and health and safety laws, regulations or
requirements that may be adopted or imposed in the future.
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DEPENDENCE UPON NEW PRODUCT INTRODUCTIONS
The Company's future success may depend upon its ability to develop
and introduce innovative products, and there can be no assurance of the
Company's ability to do so. Even if new products are developed for a particular
type of lighting fixture or application, such products may not be commercially
successful. In addition, competitors occasionally have followed the Company's
introduction of successful products with similar product offerings. As a result
of these and other factors, there can be no assurance that the Company will be
successful in introducing new products in a timely and cost-effective manner,
or that any new products will achieve or sustain market acceptance.
LIMITED PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
The Company will rely on trade secret protection, trademark, patent
and intellectual property laws to protect its rights to certain aspects of its
products, including proprietary manufacturing processes and technologies,
product research and concepts and trademarks, all of which the Company believes
are important to the success of its products and its competitive position.
There can be no assurance that the actions taken by the Company to protect its
proprietary rights will be adequate to prevent imitation of its products,
processes or technology; that the Company's proprietary information will not
become known to competitors; that the Company can effectively protect its
rights to unpatented proprietary information; or, that others will not
independently develop substantially equivalent or better products that do not
infringe on the Company's intellectual property rights. No assurance can be
given that others will not assert rights in, and ownership of, the patents and
other proprietary rights of the Company.
CYCLICAL RESULTS
The industries in which the Company operates have been cyclical in
nature and historically experienced periodic downturns. Such downturns are
characterized by diminished product demand, erosion of average selling prices
and production over-capacity. The Company may also experience substantial
period-to-period fluctuations in future operating results due to industry
conditions or events occurring in the general economy. Even during periods of
reduced revenues, in order to remain competitive, the Company will be required
to continue to invest in research and development and to maintain extensive
ongoing worldwide customer service and support capability.
RESTRICTED DIVIDEND POLICY
Neither the Company nor its predecessors have paid any cash dividends
in the past (except for the stock dividends associated with the corporate
reorganizations of BEC). The Company does not currently intend to declare or
pay any dividends on the shares of the
11
<PAGE>
Company's Common Stock. Pursuant to the terms of its credit facility, the
Company is generally restricted from issuing dividends without the consent of
its lenders.
VOLATILITY OF STOCK PRICE
The market price of the Common Stock may be subject to significant
fluctuations in response to variations in quarterly operating results and other
factors. In addition, the securities markets have experienced significant price
and volume fluctuations from time to time in recent years that have often been
unrelated or disproportionate to the operating performance of particular
companies. These broad fluctuations may adversely affect the market price of
the Common Stock.
OPERATIONAL ISSUES ARISING FROM RAPID GROWTH THROUGH ACQUISITIONS
The Company has been formed through a series of acquisitions. The
Company intends to continue this strategy of aggressive growth through
strategic acquisitions. Historically, this strategy increased the
Company's asset base and debt significantly.
The management of the entities acquired has required and will continue
to require, among other things, continued development of financial and
management controls, further controls of operating expenses as well as other
costs, increased marketing activities and the training of new personnel. There
can be no assurance that the Company will be able to successfully manage this
growth and development. As the Company continues this strategy of growth
through acquisitions, there can be no assurance that the Company will be able
to identify other suitable acquisition candidates on acceptable terms, that it
will be able to obtain the necessary financing for any future acquisitions or
that it will be able to effectively and profitably integrate into the Company
any operations that are acquired in the future. Additionally, there can be no
assurance that any future acquisitions will not have a material adverse effect
on the Company's operating results or on the market price of the Company's
Common Stock, particularly during the period immediately following such
acquisitions.
DEPENDENCE ON KEY PERSONNEL
The Company's business will be managed by a small number of executive
officers and key employees, most of whom have employment contracts with the
Company. Although the Company will maintain $10 million of key man life
insurance on the life of Martin E. Franklin, its Chairman of the Board, the
loss of his services or the services of other executive officers or key
employees could have a material adverse effect on the Company. The Company
believes that its future success will depend in large part on its ability to
attract and retain highly skilled and qualified personnel. Although the Company
will aggressively seek to attract and retain such personnel, there can be no
assurance that its recruiting efforts will be successful.
12
<PAGE>
POTENTIAL ANTI-TAKEOVER EFFECT OF CERTAIN CHARTER PROVISIONS
The Company has 500,000 shares of authorized blank check preferred
stock. The Company's Board of Directors is authorized to determine the price,
rights, preferences, privileges and restrictions, including voting rights, of
the shares of blank check preferred stock without any further vote or action by
the Company's stockholders. The rights of the holders of Company Common Stock
will be subject to, and may be adversely affected by, the rights of the holders
of any preferred stock that may be issued in the future. The issuance of
preferred stock, while providing desirable flexibility in connection with
possible acquisitions and other corporate purposes, could have the effect of
making it more difficult for a third party to acquire a majority of the
outstanding voting stock of the Company. The blank check preferred stock could
be issued to a third party selected by management or used as the basis for a
stockholders' rights plan, which could have the effect of deterring a potential
acquirer. The ability of the Company's Board of Directors to establish the
terms and provisions of different series of preferred stock could discourage
unsolicited takeover bids from third parties.
DILUTIVE EFFECT OF THE CONVERSION OF CONVERTIBLE NOTES
As of July 29, 1998, $12.6 million of the Company's 8% Convertible
Subordinated Notes (the "Convertible Notes") remain outstanding. The holders of
these Convertible Notes will retain their conversion rights, at an adjusted
conversion price of approximately $9.88 per share. The shares issuable upon any
such conversion have been registered under the Securities Act and accordingly,
will be freely tradable without restriction. In addition, the accrued interest
on the Convertible Notes is payable in cash or stock at the Company's option.
If the accrued interest is paid in stock, such stock would have a further
dilutive effect on Company stockholders.
CERTAIN REGULATORY MATTERS
Certain of the products sold by the Company must comply with quality
control standards set by various governmental entities, including the Food and
Drug Administration (the "FDA"). The FDA regulates the manufacture and sale of
ophthalmic products under the Federal Food, Drug and Cosmetic Act, as amended
by the 1976 Medical Device Amendments and certain subsequent amendments.
Recently, the FDA has become more restrictive in the regulatory process and has
increased its surveillance over existing products and manufacturing facilities.
The FDA has authority to suspend or remove a product from the market or to
cause a manufacturer to cease operations either at a facility or company-wide
if it deems a product or a manufacturing process to be outside regulatory
guidelines.
RISKS ASSOCIATED WITH INTERNATIONAL OPERATIONS
The Company has international operations and sales. International
business is subject to a number of special risks, including foreign government
regulations, unexpected changes in, or
13
<PAGE>
imposition of, regulatory requirements, tariffs, import and export restrictions
and other barriers and restrictions, longer payment cycles, greater difficulty
in collecting accounts receivable, potentially adverse tax consequences, the
burdens of complying with a variety of foreign laws, general geopolitical
risks, such as political and economic instability, hostilities with neighboring
countries and changes in diplomatic and trade relationships, and other factors
beyond the control of the Company. The Company's products, including those sold
internationally, are routinely invoiced and paid for in U.S. dollars. An
increase in the value of the U.S. dollar relative to foreign currencies could
make the Company's products more expensive and, therefore, potentially less
competitive in foreign markets.
SHARES ELIGIBLE FOR FUTURE SALE
Sales of substantial numbers of shares of the Company's Common Stock
in the public market in the future could adversely affect the market price of
the Company's Common Stock and could impair the Company's ability to raise
additional capital through the sale of its equity securities. As of the date
hereof, there were 20,710,586 shares of the Company's Common Stock outstanding.
All of such shares are or will be freely tradeable without restriction under
the Securities Act, except for certain volume limitations and manner of sale
requirements that apply to shares of the Company's Common Stock held by
affiliates of the Company and former affiliates of ILC. As of the date hereof,
the Company had outstanding under the Plan options to purchase up to
approximately 3,608,325 shares of the Company's Stock. A significant portion of
the options could be exercisable at prices below the market prices for the
Company's Common Stock. Since the Company in the past has issued, and the
Company may continue to issue, a significant number of shares of the Company's
Common Stock in connection with acquisitions or otherwise, the number of
outstanding shares of the Company's Common Stock that are likely to be eligible
for sale in the future could increase significantly.
In addition, as of the date hereof 1,278,517 shares of Company's Stock
will be issuable upon the conversion of the Convertible Notes. Ths shares
issuable upon any such conversion have been registered under the Securities Act
and accordingly, will be freely tradable without restriction. In addition, the
accrued interest on the Convertible Notes is payable in cash or stock at the
Company's option. If the accrued interest is paid in stock, such stock would
have a further dilutive effort on the Company's stockholders.
14
<PAGE>
SELLING STOCKHOLDERS
The Shares of Common Stock covered by this Prospectus will be offered
by an undetermined number of officers and directors of the Company who are
deemed affiliates of the Company and who have or may acquire Shares under the
Plan. The names of the Selling Stockholders currently known and the amount of
Shares that they will offer for sale, are set forth below. The names of
additional selling stockholders and the amount of Shares to be offered by sale
by such additional Selling Stockholders, will be added by a Post-Effective
Amendment to this Prospectus. There is no assurance that any of such Selling
Stockholders will offer for sale or sell any or all of the Company's Common
Stock offered by them pursuant to this Prospectus.
<TABLE>
<CAPTION>
PERCENTAGE
NUMBER OF OF COMMON PERCENTAGE OF
SHARES NUMBER OF STOCK COMMON
OWNED PRIOR NUMBER OF SHARES TO BE OWNED PRIOR STOCK TO BE
TO THE SHARES TO OWNED AFTER TO THE OWNED AFTER
NAME OF SELLER OFFERING(1) BE OFFERED THE OFFERING OFFERING THE OFFERING
- -------------- -------- ---------- ------------ -------- ------------
<S> <C> <C> <C> <C> <C>
Martin E. Franklin 1,033,432(2) 1,058,750 647,807 4.9% 3.1%
Chairman of the Board
Richard D. Capra 312,338(3) 308,588 3,750 1.5% *
Chief Executive Officer
Ian G.H. Ashken 228,125(4) 375,000 100,000 1.1% *
Chief Financial Officer
and Assistant Secretary
Harrison H. Augur 136,660(5) 120,210 16,450 * *
Director
George B. Clairmont 392,127 10,000 392,127 1.9% 1.9%
Director
David L. Moore 10,487(6) 16,250 7,675 * *
Director
William T. Sullivan 189,048(7) 157,500 41,548 * *
Director
</TABLE>
- ----------------------
*Less than 2%
(1) Shares not outstanding but deemed beneficially owned by virtue of the right
of an individual to acquire them within 60 days upon the exercise of an
option are treated as outstanding for purposes of determining beneficial
ownership and the percent beneficially owned by such individual and for the
executive officers and directors as a group.
(2) Includes 402,250 shares that Mr. Franklin has a right to acquire within 60
days upon the exercise of options. Excludes 7,691 shares held in trust for
Mr. Franklin's minor children, as to which shares Mr. Franklin disclaims
beneficial ownership.
(3) Includes 308,588 shares that Mr. Capra has right to acquire within 60 days
upon exercise of options.
(4) Includes 121,875 shares that Mr. Ashken has a right to acquire within 60
days upon the exercise of options. Excludes 2,500 shares held in trust for
Mr. Ashken's minor children, as to which shares Mr. Ashken disclaims
beneficial ownership.
(5) Includes 110,210 shares that Mr. Augur has right to acquire within 60 days
upon exercise of options.
(6) Includes 2,500 shares that the Director has a right to acquire within 60
days upon the exercise of options.
(7) Includes 147,500 shares that Mr. Sullivan has a right to acquire within 60
days upon the exercise of options and 848 shares with respect to which Mr.
Sullivan shares voting and investment power with his spouse.
15
<PAGE>
PLAN OF DISTRIBUTION
The Selling Stockholders (or their pledgees, donees, transferees, or
other successors in interest) from time to time may sell all or a portion of
the Shares "at the market" to or through a marketmaker or into an existing
trading market, in private sales, including direct sales to purchasers, or
otherwise at prevailing market prices or at negotiated or fixed prices. By way
of example, and not by way of limitation, the Shares may be sold by one or more
of the following methods: (a) a block trade in which the broker or dealer so
engaged will attempt to sell the Shares as agent but may purchase and resell a
portion of the block as principal to facilitate the transaction; (b) purchases
by a broker or dealer as principal and resale by such broker or dealer for its
account pursuant to this Prospectus; (c) an exchange distribution in accordance
with the rules of such exchange; and (d) ordinary brokerage transactions and
transactions in which the broker solicits purchasers. In effecting sales,
brokers or dealers engaged by the seller may arrange for other brokers or
dealers to participate. Brokers or dealers will receive commissions or
discounts from the seller in amounts to be negotiated immediately prior to the
sale. Such brokers or dealers and any other participating brokers or dealers
may be deemed to be "underwriters" within the meaning of the Securities Act in
connection with such sales. In addition, any securities covered by this
Prospectus which qualify for sale pursuant to Rule 144 under the Securities Act
may be sold under Rule 144 rather than pursuant to this Prospectus.
The Selling Stockholders may agree to indemnify any agent, dealer or
broker-dealer that participates in transactions involving sales of the Shares
against certain liabilities, including liabilities arising under the Securities
Act. Any commissions paid or any discounts or concessions allowed to any such
broker-dealer which purchases Shares as principal or any profits received on
the resale of such Shares may be deemed to be underwriting discounts and
commissions under the Securities Act.
In order to comply with certain state securities law, if applicable,
the Common Stock will not be sold in a particular state unless the Common Stock
has been registered or qualified for sale in such state or an exemption from
registration or qualification is available and is complied with.
Each Selling Stockholder will deliver a Prospectus in connection with
the sale of the Shares.
EXPENSES
All expenses of this Offering, including the expenses of the
registration of the Shares of Common Stock offered hereby, will be borne by the
Company. It is estimated that the total amount of such expenses will not exceed
$30,000.
USE OF PROCEEDS
The Company will receive no proceeds from the sale of the Shares of
Common Stock by the Selling Stockholders, but will receive funds from the sale
of stock to the Selling Stockholders, which funds will be used by the Company
for working capital.
16
<PAGE>
LEGALITY
Certain legal matters in connection with the securities offered
hereunder will be passed upon for the Company by Kane Kessler, P.C., 1350
Avenue of the Americas, New York, New York 10019.
EXPERTS
The financial statements incorporated in this Prospectus by reference
to the Company's Annual Report on Form 10-K for the year ended December 31,
1997 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in accounting and auditing.
17
<PAGE>
This Prospectus contains information concerning the Company, but does
not contain all of the information set forth in the Registration Statement and
the Exhibits relating thereto, which the Company has filed with the Securities
and Exchange Commission, Washington, D.C., under the Securities Act of 1933, as
amended, and to which reference is hereby made.
-------------------
TABLE OF CONTENTS
Page
----
AVAILABLE INFORMATION.............................................. 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.................... 3
THE COMPANY........................................................ 5
RISK FACTORS....................................................... 9
SELLING STOCKHOLDERS............................................... 15
PLAN OF DISTRIBUTION............................................... 16
EXPENSES........................................................... 16
USE OF PROCEEDS.................................................... 16
LEGALITY........................................................... 17
EXPERTS............................................................ 17
-------------------
No dealer, salesman or other person has been authorized to give any
information or to make any representation not contained in this Prospectus and,
if given or made, such information or representation must not be relied upon as
having been authorized by the Company. This Prospectus does not constitute an
offer to sell or a solicitation of an offer to buy any of the securities
offered hereby in any jurisdiction to any person to whom it is unlawful to make
such offer in such jurisdiction. Neither the delivery of this Prospectus nor
any sale made hereunder shall under any circumstances create any implication
that there have been no changes in the affairs of the Company since the date
hereof.
18
<PAGE>
PART II
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Company are incorporated as of their
respective dates in this Registration Statement by reference:
1. The Company's Registration Statement on Form S-1 (the "Registration
Statement"), filed with the Commission on March 5, 1996 (Reg.
No.33-33186).
2. The description of the Company's Common Stock contained in the
Company's Registration Statement including any amendments or
reports filed for the purpose of updating such description.
3. Description of the Company's common Stock contained in the
Company's Registration Statement on Form 8-A filed with the
Commission on May 3, 1996 pursuant to Section 12 of the Exchange
Act, including any amendments or reports filed for the purpose of
updating such description.
4. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
5. The Company's Current Reports on Form 8-K (Date of Event - July 10,
1997) filed on July 24, 1997, Form 8-K/A filed on September 22,
1997 and Form 8-K/A-2 filed on January 15, 1998 and Form 8-K/A-3
filed on February 6, 1998.
6. The Company's Current Report on Form 8-K (Date of Event - March 11,
1998) filed on March 26, 1998.
7. The Company's Registration Statement on Form S-4, declared
effective by the Commission on February 6, 1998 (Reg. No.
333-40519).
8. The Company's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1998.
9. The Company's proxy statement filed with the Commission on
July 9, 1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, are incorporated by reference
in this registration statement and are a part hereof from the date of filing
such documents. Any
II-1
<PAGE>
statement contained in a document incorporated or deemed to be 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 herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
empowers a Delaware corporation to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. A corporation may, in advance of the final disposition of any
civil, criminal, administrative or investigative action, suit or proceeding,
pay the expenses (including attorneys' fees) incurred by any officer, director,
employee or agent in defending such action, provided that the director or
officer undertakes to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the corporation. A corporation may
indemnify such person against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding 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, with respect to any criminal action or
proceeding, had reasonable cause to believe his conduct was unlawful.
A Delaware corporation may indemnify officers and directors in an
action by or in the right of the corporation to procure a judgment in its favor
under the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise
II-2
<PAGE>
in the defense of any action referred to above, the corporation must indemnify
him against the expenses (including attorneys' fees) which he actually and
reasonably incurred in connection therewith. The indemnification provided is
not deemed to be exclusive of any other rights to which an officer or director
may be entitled under any corporation's by-law, agreement, vote or otherwise.
In accordance with Section 145 of the DGCL, Lumen Technologies, Inc. (the
"Company") Restated Certificate of Incorporation, as amended (the "Restated
Certificate") and Article VI, Sections 1-3, of the Company's By-laws (the
"By-laws"). The Company shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit, proceeding or claim by or in the right of the Company to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprises against expenses (including attorney's fees and expenses) actually
and reasonably incurred by him and to the extent permitted by applicable law in
connection with the defense or settlement of such action or suit 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 Company; except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Company unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnification for such expenses and amounts which the
Court of Chancery or such other court shall deem proper.
Any indemnification under the By-laws Article VI (unless ordered by a
court) shall be made by the Company only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable standard
of conduct set forth in the By-laws. Such determination and other
determinations under the By-laws shall be made (i) by the Board of Directors of
the Company by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders. To the extent, however, that a director or officer, employee or
agent of the Company has been successful on the merits or otherwise in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees and expenses) actually and reasonably incurred by
him in connection therewith, without the necessity of authorization in the
specific case.
Section 9 of Article VI of the By-laws provides that the Company may
purchase and maintain insurance on behalf of its directors, officers, employees
and agents against any liabilities asserted against such persons arising out of
such capacities.
II-3
<PAGE>
The Company has entered into indemnification agreements with each of
its current directors and certain of its officers and other key personnel,
pursuant to which the Company has agreed to indemnify each indemnitee to the
fullest extent authorized by law, against any and all damages, judgments,
settlements and fines ("losses") in connection with any action, suit,
arbitration or proceedings, or any inquiry or investigation, whether brought by
or in the right of the Company or otherwise, whether civil, criminal,
administrative, investigative or other, or any appeal therefrom, by reason of
an indemnitee's serving as a director of the Company. An indemnitee is not
entitled to indemnification for any losses that are (i) based or attributable
to the indemnitee gaining in fact any personal profit or advantage to which the
indemnitee is not entitled, (ii) for the return by the indemnitee of any
remuneration paid to the indemnitee without the previous approval of the
stockholders of the Company which is illegal, (iii) for violations of Section
16 of the Securities Exchange Act of 1934 or similar provisions of state law,
(iv) based upon knowingly fraudulent, dishonest or willful misconduct and (v)
not permitted to be covered by applicable law. The agreements provide that the
indemnification under the agreement is not exclusive of any other rights the
indemnitee may have under the Restated Certificate, the By-Laws, the DGCL or
any agreement or vote of shareholders.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Number Description
- ------ -----------
4.2 1996 Stock Incentive Plan of the Company (Amended and Restated as of
March 11, 1997)*
5.1 Opinion of Kane Kessler, P.C.
23.1 Consent of Kane Kessler, P.C. (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (contained on the signature page hereto)
- -----------------------------------
II-4
<PAGE>
* Incorporated by reference to the Company's Registration Statement/Joint Proxy
Statement on Form S-4 declared effective by the Securities and Exchange
Commission on February 6, 1998 (No. 333-40519).
II-5
<PAGE>
Item 9. Undertakings.
A. 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;
(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 A(1)(i) and A(1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(B) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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.
II-6
<PAGE>
(C) The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act;
and, where interim financial information required to be presented by Article 3
of Regulation S-X are not set forth in the prospectus, to deliver or cause to
be delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(D) Insofar as indemnification for liabilities arising under the
Securities Act 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 and will be governed by the final adjudication of such issue.
II-7
<PAGE>
SIGNATURES
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-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on the 3rd day of
August, 1998.
LUMEN TECHNOLOGIES, INC.
By: /s/ Martin Franklin
-------------------
Name: Martin Franklin
Title: Chairman
We, the undersigned officers and directors of Lumen Technologies,
Inc., and each of us, do hereby constitute and appoint Martin E. Franklin and
Ian G.H. Ashken, or any of them, our true and lawful attorneys and agents, each
with full power of substitution, to do any and all acts and things in our name
and behalf in our capacities as directors or officers and to execute any and
all instruments for us and in our names in the capacities listed below, which
attorneys and agents, or any of them, may deem necessary or advisable to enable
said corporation to comply with the Securities Act, as amended, and any rules,
regulations, and requirements of the Securities and Exchange Commission, in
connection with the Registration Statement, including specifically, but without
limitation, power and authority to sign for us or any of us in our names in the
capacities indicated below, any and all amendments (including post-effective
amendments) hereto; and we do hereby ratify and confirm all that said attorneys
and agents, or their substitute or substitutes, or any of them, shall do or
cause to be done by virtue thereof.
II-8
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Martin E. Franklin Chairman of the Board of August 3, 1998
- ------------------------ Directors (Principal Executive
Martin E. Franklin Officer)
/s/ Richard D. Capra
- ------------------------ Chief Executive Officer August 3, 1998
Richard D. Capra and Director
/s/ Ian G.H. Ashken
- ------------------------ Chief Financial Officer August 3, 1998
Ian G.H. Ashken (Principal Financial and
Accounting Officer),
Assistant Secretary and Director
/s/ David L. Moore
- ------------------------ Director August 3, 1998
David L. Moore
/s/ William T. Sullivan
- ------------------------ Director August 3, 1998
William T. Sullivan
/s/ Harrison H. Augur
- ------------------------ Director July 8, 1998
Harrison H. Augur
/s/ Henry C. Baumgartner
- ------------------------ Director July 13, 1998
Henry C. Baumgartner
/s/ George B. Clairmont
- ------------------------ Director August 3, 1998
George B. Clairmont
/s/ Nora A. Bailey
- ------------------------ Director July 8, 1998
Nora A. Bailey
</TABLE>
II-9
<PAGE>
EXHIBIT INDEX
DESCRIPTION
-----------
THE FOLLOWING DOCUMENTS ARE INCORPORATED BY REFERENCE:
4.1 1996 Stock Incentive Plan of the Company (Amended and Restated as of
October 30, 1997) (Incorporated by reference to Exhibit 4.6 of the
Company's Registration Statement/Joint Proxy Statement on Form S-4 (No.
333-40519))
THE FOLLOWING DOCUMENTS ARE FILED HEREWITH:
PAGE
- -----
5.1* Opinion of Kane Kessler, P.C. regarding the legality of the Common
Stock being registered
23.1* Consent of Kane Kessler, P.C. regarding the legality of the Common
Stock being registered (included in Exhibit 5.1)
23.2* Consent of Price Waterhouse LLP
24.1* Power of Attorney (included in the signature page hereto)
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* Filed herewith.
<PAGE>
EXHIBIT 5.1
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KANE KESSLER, P.C.
1350 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-4896
(212) 541-6222
August 4, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Lumen Technologies, Inc.
Registration Statement on Form S-8
----------------------------------
Gentlemen:
We have acted as special counsel to Lumen Technologies, Inc. a
Delaware corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") pertaining to
the registration by the Company under the Securities Act of 1933, as amended,
of an offering of up to an aggregate of 2,075,000 shares of the Company's
Common Stock, $.01 par value per share (the "Shares"), pursuant to the
Company's 1996 Stock Incentive Plan (Amended and Restated as of
March 11, 1997) (the "Plan").
We have made such legal and factual examinations and inquiries,
including an examination of originals or copies certified or otherwise
identified to our satisfaction of such documents, corporate records and
instruments, as we have deemed necessary or appropriate for purposes of this
opinion. In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, and the
conformity to authentic original documents of all documents submitted to us as
copies.
<PAGE>
Securities and Exchange Commission
August 4, 1998
Page 2
We have assumed for purposes of this opinion that the Company will
cause certificates representing Shares issued in the future to be properly
executed and delivered and will take all other actions appropriate for the due
and proper issuance of such Shares, and that the options issued under the Plan
and the Shares issuable upon exercise of such options have been duly
authorized and granted under the Plan. We express no opinion regarding any
shares reacquired by the Company after initial issuance.
We are members of the Bar of the State of New York and are not
admitted to practice law in any other jurisdiction. We do not hold ourselves
out as being conversant with, and express no opinion as to, the laws of any
jurisdiction other than the laws of the State of New York and the General
Corporation Law of the State of Delaware.
Subject to the limitations stated in this letter, it is our opinion
that the Shares issued by the Company, upon due exercise of any option under
and in accordance with the Plan, will, upon delivery thereof and receipt by the
Company of all and adequate consideration owed to the Company under the terms
of such option and the Plan, be validly issued, fully paid and nonassessable.
The foregoing assumes that the aforesaid Registration Statement will
become and remain effective under the Securities Act of 1933, as amended, prior
to any offering of the Shares pursuant to the terms thereof and will be
amended, as appropriate, and that there will be compliance with all applicable
state securities laws in connection with the offering of such securities, as
well as compliance with the terms of the offering set forth in the Registration
Statement.
<PAGE>
Securities and Exchange Commission
August 4, 1998
Page 3
This opinion is rendered solely for your benefit and may not be relied
upon by any other person or entity. This opinion is provided to you as of the
date hereof. We undertake no, and hereby disclaim any obligation to advise you
of any change in any matter set forth herein. Without our prior written
consent, this opinion may not be quoted in whole or in part or otherwise
referred to in any report or document furnished to any person or entity.
We consent to the filing of this letter as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Kane Kessler
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Kane Kessler, P.C.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-8 of our report
dated April 9, 1998 appearing on page 16 of the Lumen Technologies, Inc's
Annual Report on Form 10-K for the year ended December 31, 1997. We also
consent to the reference to us under the heading "Experts in such Prospectus."
PricewaterhouseCoopers LLP
Dallas, Texas
August 4, 1998
