<PAGE>
As filed with the Securities and Exchange Commission on September 28, 1999
Registration No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
PRECISION OPTICS CORPORATION, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MASSACHUSETTS 04-2795294
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
22 East Broadway
Gardner, Massachusetts 01440
(978) 630-1800
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
JACK P. DREIMILLER
Senior Vice President, Finance, and Chief Financial Officer
PRECISION OPTICS CORPORATION
22 East Broadway
Gardner, Massachusetts 01440
(978) 630-1800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
PATRICK O'BRIEN, ESQUIRE
ROPES & GRAY
One International Place
Boston, MA 02110-2624
(617) 951-7000
---------------------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effectiveness of the Registration Statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / / ________
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /_________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Shares Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share (1) Price (1)
<S> <C> <C> <C> <C>
Common Stock - $.01 Par 2,000,000 $1.03125 $2,062,500 $574
Value
</TABLE>
(1) Estimated, pursuant to Rule 457(c), solely for purposes of calculating
the registration fee based on the average of the high and low sales
prices of the Registrant's Common Stock on September 24, 1999 as
reported on the Nasdaq SmallCap Market, which date is within five
business days of the date of this Registration Statement.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING STOCKHOLDERS MAY NOT SELL THE COMMON STOCK COVERED BY THIS PROSPECTUS
UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL STOCK AND IT IS
NOT SOLICITING AN OFFER TO BUY STOCK IN ANY STATE WHERE AN OFFER AND SALE IS NOT
PERMITTED.
- --------------------------------------------------------------------------------
PROSPECTUS SUBJECT TO COMPLETION
__________ __, 1999
PRECISION OPTICS CORPORATION, INC.
-----------------
We design, develop, manufacture and sell a variety of products that
make use of sophisticated lenses, prisms, mirrors and other devices that detect
and transmit light and visual images. Our products include:
- arthroscopes, which are used in joint surgery;
- laryngoscopes, which are used in the diagnosis of
diseases of the throat;
- laparoscopes, which are used in abdominal surgery;
and
- stereo endoscopes, which are currently being tested
for use in heart surgery.
In addition, we are currently developing a filter component for a device
designed to increase the amount of data that can be transmitted over fiber optic
cable lines.
Our principal executive offices are located at 22 East Broadway,
Gardner, Massachusetts 01440 and our phone number is (978) 630-1800.
The persons listed as "selling stockholders" on page 7 of this
prospectus are using the prospectus to offer for sale a total of 2,000,000
shares of our Common Stock, par value $0.01 per share. We will not receive any
of the proceeds of this offering.
Our Common Stock is traded on the NASDAQ SmallCap Market under the
symbol "POCI." On September 27, 1999, the last reported sale price of our
Common Stock was $1.125 per share.
AN INVESTMENT IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. YOU
SHOULD CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 2 OF THIS
PROSPECTUS.
---------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE COMMON STOCK COVERED BY THIS
PROSPECTUS OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------
The date of this prospectus is __________, 1999
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Risk Factors................................................................ 2
Where You Can Find Additional Information................................... 6
Incorporation of Certain Documents By Reference............................. 7
Use of Proceeds. . . . . . ................................................. 7
Selling Stockholders........................................................ 7
Plan of Distribution........................................................ 8
Legal Matters............................................................... 9
Experts.....................................................................10
</TABLE>
<PAGE>
RISK FACTORS
YOU SHOULD CONSIDER CAREFULLY THE INFORMATION CONTAINED IN THIS SECTION
OF THE PROSPECTUS IN DECIDING WHETHER TO PURCHASE SHARES OF OUR COMMON STOCK.
In this prospectus, and from time to time in public statements made by
our management, we have made and will continue to make forward-looking
statements about our business, including predictions about our future financial
performance. OUR ACTUAL RESULTS MAY DIFFER SIGNIFICANTLY FROM THE RESULTS
PREDICTED IN THIS PROSPECTUS AND IN FUTURE PUBLIC STATEMENTS. Factors that might
cause such a difference include, but are not limited to, the factors discussed
below:
OUR STOCK FACES SIGNIFICANT PRICE AND VOLUME VOLATILITY--AS A RESULT, YOU
COULD ENCOUNTER DIFFICULTY SELLING OUR STOCK AND OUR STOCK PRICE MAY BE
UNSTABLE FROM TIME TO TIME.
Our Common Stock has had a public market since November 1990. The price
of our Common Stock has from time to time experienced significant price and
volume fluctuations. During calendar year 1998, for example, the market price of
our Common Stock decreased by 25% in one single trading day and increased by 31%
in another single trading day. The reasons for these fluctuations are sometimes
unrelated to our own operating performance. For instance, a competitor's product
failure or announcement of a new technology or product may have a significant
impact on the market price of our Common Stock. In addition, our Common Stock
periodically is the subject of limited trading activity and, as a result,
investors may have difficulty buying or selling our Common Stock on any given
trading day. During one four day period in calendar year 1997, for example, no
trading in our Common Stock took place on the Nasdaq SmallCap Market.
WE ARE CURRENTLY INCURRING NET OPERATING LOSSES--WE CANNOT BE CERTAIN THAT WE
WILL ACHIEVE PROFITABILITY IN THE FUTURE.
We have incurred net operating losses in each of the last three fiscal
years ending June 30, 1999, 1998 and 1997, respectively. These net operating
losses totaled approximately $4,072,000 during this three year period, and
we have an accumulated deficit of approximately $3,801,000 at June 30, 1999.
We attribute these recent losses largely to our transition away from
night vision products and services sold primarily under contracts or
subcontracts with the United States Government, and our concentration of
research and product development resources on new products, principally filters
for Wavelength Division Multiplexers (WDMs). Our WDM filters are still in
development and have not yet resulted in appreciable revenues. Given the
uncertainties surrounding the development and
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<PAGE>
marketing of our WDM filters, it remains to be seen whether we will achieve
profitability as a result of our initiatives in the WDM area.
THE SUCCESS OF OUR WDM INITIATIVE IS NOT GUARANTEED--IF THIS INITIATIVE IS
UNSUCCESSFUL, OUR OPERATING RESULTS MAY BE SEVERELY IMPAIRED.
We plan to devote the majority of our research and development
resources to the development and marketing of new products, particularly filters
made of specially treated glass which will be used as components in Wavelength
Division Multiplexers (WDMs). WDMs are devices which, when inserted in fiber
optic cable lines, increase significantly the amount of data that such lines can
carry.
The Company is in the process of developing WDM filter prototypes which
can reliably meet a set of performance requirements supplied to us by potential
customers. We cannot guarantee that these efforts will be successful or that we
will succeed in developing and marketing WDM filters or any other new products.
Also, certain domestic and foreign companies have begun marketing products which
employ technologies similar to our WDM filter technology. We cannot predict
whether our WDM filters, if and when successfully developed, will be perceived
in the marketplace as more cost-effective, efficient or reliable than these
competing products.
Based upon our expectations about market acceptance of our WDM filters,
we expect to continue to increase our research and development expenditures in
the WDM area. Our operating results may be severely impaired if these
development efforts are unsuccessful or if sales of our new products are below
expectations.
OUR QUARTERLY FINANCIAL RESULTS DEPEND ON A LARGE NUMBER OF FACTORS AND
THEREFORE MAY VARY QUARTER TO QUARTER--AS A RESULT, WE CANNOT PREDICT WITH A
HIGH DEGREE OF CERTAINTY OUR OPERATING RESULTS IN ANY PARTICULAR FISCAL
QUARTER.
Our quarterly operating results may vary significantly depending upon
factors such as:
- the timing of completion of significant orders
- the timing and amount of our research and development
expenditures
- the costs of initial product production in connection
with new products
- the timing of new product introductions -- both by us
and by our competitors
- the timing and level of market acceptance of new
products or enhanced versions of our existing
products
We cannot be certain whether we will be able to grow or sustain revenues or
achieve or maintain profitability on a quarterly or annual basis or that levels
of revenue and/or profitability may not vary from one such period to another.
WE RELY ON A SMALL NUMBER OF CUSTOMERS AND CANNOT BE CERTAIN THEY WILL
CONSISTENTLY PURCHASE OUR PRODUCTS IN THE FUTURE.
In the fiscal year ended June 30, 1999, our largest customer
represented approximately 37% of our total revenues. In the fiscal year ended
June 30, 1998, our three largest customers represented approximately 22%, 14%
and 10%, respectively, of our total revenues. In the fiscal year ended June 30,
1997, our two largest customers represented approximately 38% and 23%,
respectively, of our total revenues. No other customer accounted for more than
10% of our revenues during those periods.
Two of the customers described above (one representing 22% of 1998
revenues and 38% of 1997 revenues and one representing 23% of 1997 revenues) no
longer place orders with us. We
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<PAGE>
attribute the loss of their business to two primary factors: declining demand
for their own products (of which our products were components) and the
availability to those customers of lower cost alternatives to our products sold
by foreign manufacturers.
In the future, a small number of customers may continue to represent a
significant portion of our total revenues in any given period. We cannot be
certain that such customers will consistently purchase our products at any
particular rate over any subsequent period.
WE RELY HEAVILY UPON THE TALENTS OF OUR CHIEF EXECUTIVE OFFICER AND OUR VICE
PRESIDENT, OPERATIONS--THE LOSS OF EITHER OF THEM COULD SEVERELY DAMAGE OUR
BUSINESS.
Our performance depends to a large extent on a small number of key
scientific, technical, managerial, and marketing personnel. In particular, we
believe our success is highly dependent upon the services and reputation of both
our Chief Executive Officer, Mr. Richard E. Forkey, and our Vice President,
Operations, Mr. Kumar M. Khajurivala. Loss of either Mr. Forkey's or Mr.
Khajurivala's services and scientific contributions could severely damage our
business.
WE MUST CONTINUE TO BE ABLE TO ATTRACT EMPLOYEES WITH THE SCIENTIFIC AND
TECHNICAL SKILLS THAT OUR BUSINESS REQUIRES--IF WE ARE UNABLE TO ATTRACT AND
RETAIN SUCH INDIVIDUALS, OUR BUSINESS COULD BE SEVERELY DAMAGED.
Our ability to attract employees with a high degree of scientific and
technical talent is crucial to the success of our business. There is intense
competition for the services of such persons, and we cannot guarantee that we
will be able to attract and retain individuals possessing the necessary
qualifications.
WE HAVE A NUMBER OF LARGE, WELL-FINANCED COMPETITORS WHO HAVE RESEARCH AND
MARKETING CAPABILITIES THAT ARE SUPERIOR TO OURS.
The industries in which we compete are highly competitive. Many of our
existing and potential competitors have greater financial resources and
manufacturing capabilities, more established and larger marketing and sales
organizations and larger technical staffs than we have. Other companies, some
with greater experience in the telecommunications, optics, semiconductor or
medical products industries, are seeking to produce products and services that
compete with our products and services.
WE ARE SUBJECT TO A HIGH DEGREE OF REGULATORY OVERSIGHT--WE CANNOT BE CERTAIN
THAT WE WILL CONTINUE TO RECEIVE THE NECESSARY REGULATORY APPROVALS.
The FDA has allowed us to market the medical products we currently sell
in the United States. However, prior FDA approval may be required before we can
market additional medical products that we may develop in the future. We may
also seek to sell current or future medical products in a manner that requires
us to obtain FDA permission to market such products. We may also require the
regulatory approval or license of other federal, state or local agencies or
comparable agencies in other countries.
We cannot be certain that we will continue to receive the FDA's
permission to market our current products or obtain the necessary regulatory
permission, approvals or licenses for the marketing of any of our future
products. Also, we cannot predict the impact on our business of FDA regulations
or determinations arising from future legislation or administrative action.
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<PAGE>
WE FACE RISKS INHERENT IN PRODUCT DEVELOPMENT AND PRODUCTION UNDER FIXED PRICE
CONTRACTS--WE CANNOT BE SURE THAT THESE CONTRACTS WILL BE PROFITABLE OVER TIME.
A significant portion of our business has been devoted to research,
development and production under fixed price contracts. For our purposes, a
fixed price contract is any contract under which we will provide products or
services for a fixed price over an extended period of time (usually six months
to a year, with some government contracts extending as long as three years). In
our 1999, 1998 and 1997 fiscal years, fixed price contracts represented
approximately 62%, 55% and 67%, respectively, of our total revenues. We expect
that revenues from fixed price contracts will continue to represent a
significant portion of our total revenues in future fiscal years.
Because they involve performance over time, we cannot predict with
certainty the expenses involved in meeting our obligations under fixed price
contracts. Therefore, we can never be sure at the time we enter into any single
fixed price contract that such contract will be profitable for us. Although
fixed price contracts were profitable for us overall in each of 1999, 1998 and
1997, cost overruns have caused, and will likely continue to cause, individual
fixed price contracts that we enter into from time to time to be unprofitable.
THIRD PARTIES MAY INFRINGE ON OUR PATENTS--IF A PATENT CLAIM AGAINST US IS
SUCCESSFUL, WE COULD INCUR SIGNIFICANT EXPENSE IN PROTECTING OUR PATENTS OR
NOT HAVE SUFFICIENT RESOURCES TO PROTECT THEM.
We hold a number of patents that are important to our business.
Although we are not currently aware of any past or present infringements of our
patents, we plan to protect these patents from infringement and obtain
additional patents whenever feasible. To this end, we have obtained
confidentiality agreements from our employees and consultants and others who
have access to the design of our products and other proprietary information.
Protecting and obtaining patents, however, is both time consuming and expensive.
We therefore may not have the resources necessary to assert all potential patent
infringement claims or pursue all patents that might be available to us.
THIRD PARTIES MAY CLAIM THAT WE HAVE INFRINGED ON THEIR PATENTS--AS A RESULT, WE
COULD BE PROHIBITED FROM USING ALL OR PART OF ANY TECHNOLOGY USED IN OUR
PRODUCTS.
The technologies used or to be used in our advanced optical systems may
infringe upon patents or proprietary technology held or owned by other persons.
Should these persons claim a proprietary right to all or part of any technology
that we use in our products, such a claim, regardless of its merit, could
involve us in costly litigation. If successful, such a claim could also result
in us being unable to freely to use the technology that was the subject of the
claim, or sell products embodying such technology.
WE DEPEND ON THE AVAILABILITY OF CERTAIN KEY SUPPLIES AND SERVICES THAT ARE
AVAILABLE FROM ONLY A FEW SOURCES--IF WE EXPERIENCE DIFFICULTY WITH A
SUPPLIER, WE MAY HAVE DIFFICULTY FINDING ALTERNATIVE SOURCES OF SUPPLY.
Certain key supplies used in our products, particularly precision grade
optical glass, are available from only a few sources, each of which is located
outside the United States. Also, outside vendors grind and polish certain of our
lenses and other optical components, such as prisms and windows. Based upon our
ordering experience to date, we believe the materials and services required for
the production of our products are currently available in sufficient quantities.
Our requirements are small relative to the total supply, and we are not
currently encountering problems with availability. However, this does not mean
that we will continue to have timely access to adequate supplies of essential
materials and services in the future or that supplies of these materials and
services will be available on satisfactory terms when the need arises. Our
business could be severely damaged if we become unable to procure essential
materials and services in adequate quantities and at acceptable prices.
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<PAGE>
From time to time, certain of our products may be produced for us by
subcontractors, and our business is subject to the risk that these
subcontractors fail to make timely delivery. Our products and services are also
from time to time used as components of the products and services of other
manufacturers. We are therefore subject to the risk that manufacturers that
integrate our products or services into their own products or services are
unable to acquire essential supplies and services from third parties in a timely
fashion.
SPACE CONSTRAINTS MAY REQUIRE US TO OBTAIN ADDITIONAL FACILITIES, AND
ACQUIRING ADDITIONAL SPACE COULD BE EXPENSIVE.
We believe our current facilities are adequate for our existing
operations. However, we may require additional space if we significantly
increase production, acquire substantial new equipment, begin to produce
materials or supplies that we currently purchase from others or otherwise expand
our manufacturing capabilities. Any acquisition of additional facilities could
require us to make significant expenditures.
OUR CUSTOMERS MAY CLAIM THAT THE PRODUCTS WE SOLD THEM WERE DEFECTIVE--IF OUR
INSURANCE IS NOT SUFFICIENT TO COVER A CLAIM, WE WOULD BE LIABLE FOR THE
EXCESS.
Like any manufacturer, we are and always have been exposed to liability
claims resulting from the use of our products. We maintain product liability
insurance to cover us in the event of liability claims, and no such claims have
been asserted or threatened against us to date. However, we cannot be certain
that our insurance will be sufficient to cover all possible future product
liabilities.
WE WOULD BE LIABLE IF OUR BUSINESS OPERATIONS HARMED THE ENVIRONMENT--FAILURE
TO MAINTAIN COMPLIANCE WITH ENVIRONMENTAL LAWS COULD SEVERELY DAMAGE OUR
BUSINESS.
Our operations are subject to a variety of federal, state and local
laws and regulations relating to the protection of the environment. From time to
time, we use hazardous materials in our operations. Although we believe that we
are in compliance with all applicable environmental laws and regulations, our
business could be severely damaged by any failure to maintain such compliance.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We are subject to the reporting requirements of the Securities Exchange
Act of 1934. This Act requires us to file annual and quarterly reports on our
financial and business results, proxy materials and other information with the
SEC. Our annual and quarterly reports, proxy statements and other information
can be inspected and copied at the SEC's Public Reference Room at 450 Fifth
Street, N.W., Washington, D.C. 20549. The public may obtain information on the
operation of the Public Reference Room by calling the Commission at
1-800-SEC-0330. In addition, the Commission maintains a web site (at
http://www.sec.gov) that contains reports, proxy and information statements, and
other information regarding issuers (including Precision Optics Corporation)
that file electronically with the SEC.
We have filed with the SEC a registration statement on Form S-3
covering the shares of Common Stock offered with this prospectus. This
prospectus does not contain all information contained in the registration
statement, certain parts of which are omitted in accordance with the SEC's rules
and regulations. Statements made in this prospectus as to the contents of any
other document (including exhibits to the registration statement) are not
necessarily complete. You should review the document itself for a thorough
understanding of its contents. The registration statement (including exhibits to
the registration statement) may be inspected and copied at the SEC's Public
Reference Room. Also, the registration statement was filed electronically with
the SEC and is available on the SEC's web site (at http://www.sec.gov).
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information filed with the
SEC will update and supersede this information. We incorporate by reference the
documents listed below and any future filings made with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until our
offering is completed.
(i) Our annual report on Form 10-KSB for the fiscal year ended
June 30, 1999, including portions of our Proxy Statement dated
October 14, 1999, relating to our 1999 Annual Meeting of
Stockholders (SEC File No. 001-10647).
(ii) The description of our Common Stock contained in our
registration statement on Form S-1 (SEC File No. 33-43929).
We will provide, upon written or oral request, without charge, to each
person, including any beneficial owner, to whom a copy of this prospectus has
been delivered, a copy of any or all of the documents which have been or may be
incorporated in this prospectus by reference, other than certain exhibits to
such documents. Requests for such copies should be directed to: Jack P.
Dreimiller, Precision Optics Corporation, Inc., 22 East Broadway, Gardner,
Massachusetts 01440, (978) 630- 1800.
USE OF PROCEEDS
We will not receive any of the proceeds of the Common Stock offered by
this prospectus.
SELLING STOCKHOLDERS
The following table sets forth certain information regarding the
ownership of our Common Stock by the selling stockholders as of September 17,
1999, including the number of shares of Common Stock offered with this
prospectus.
<TABLE>
<CAPTION>
Number of Shares Number of Shares Shares of Common
of Common Stock of Common Stock Stock Beneficially
Beneficially Owned Offered with Owned After Offering
SELLING STOCKHOLDER Prior to Offering(2) this Prospectus Number Percent
------------------- -------------------- --------------- ------ -------
<S> <C> <C> <C> <C>
Special Situations Cayman Fund, L.P.(1) 250,000(3) 250,000 -0- **
c/o Special Situations Fund III, L.P.
153 East 53rd Street
New York, NY 10022
Special Situations Fund III, L.P.(1) 1,087,600(4) 750,000 337,600 4.39%
153 East 53rd Street
New York, NY 10022
Special Situations Private Equity Fund, L.P.(1) 1,450,000(5) 700,000 750,000 9.30%
c/o Special Situations Fund III, L.P.
153 East 53rd Street
New York, NY 10022
Special Situations Technology Fund, L.P.(1) 550,000(6) 300,000 250,000 3.20%
c/o Special Situations of Fund III, L.P.
153 East 53rd Street
New York, NY 10022
</TABLE>
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** The number of shares indicated does not exceed one percent of the
number of shares of our Common Stock outstanding.
(1) Austin W. Marxe, a Director of the Company, is the Managing Director
of each of the selling stockholders and could be deemed a beneficial
owner of the shares of the selling stockholders.
(2) Beneficial ownership is determined in accordance with the rules of the
SEC. In computing the number of shares beneficially owned by a person
and the percentage ownership of that person, shares of Common Stock
subject to warrants held by that person that are currently exercisable
or exercisable within 60 days of the date of this prospectus are deemed
outstanding. Such shares, however, are not deemed outstanding for the
purposes of computing the percentage ownership of each other person.
Except as indicated in the footnotes to this table and pursuant to
applicable community property laws, each selling stockholder named in
the table above has sole voting and investment power with respect to
the shares set forth opposite his or its name. Percentage beneficial
ownership is based on 7,687,595 shares of Common Stock outstanding as
of September 17, 1999.
(3) Includes 125,000 shares which may be acquired within 60 days of the
date of this prospectus upon the exercise of outstanding warrants owned
by Special Situations Cayman Fund, L.P. All shares owned by Special
Situations Cayman Fund, L.P. were issued, or are issuable upon the
exercise of warrants issued, to it in a private placement on August 5,
1999. As part of the private placement transaction, we agreed to file
the registration statement which includes this prospectus.
(4) Includes 375,000 shares which may be acquired within 60 days of the
date of this prospectus upon the exercise of outstanding warrants owned
by Special Situations Fund III, L.P. The 750,000 shares owned by
Special Situations Fund III, L.P. were issued, or are issuable upon the
exercise of warrants issued, to it in the August 5, 1999 private
placement described in footnote (3).
(5) Includes 725,000 shares which may be acquired within 60 days of the
date of this prospectus upon the exercise of outstanding warrants owned
by Special Situations Private Equity Fund, L.P. All shares owned by
Special Situations Private Equity Fund, L.P. were issued, or are
issuable upon the exercise of warrants issued, to it in connection with
the August 5, 1999 private placement described in footnote (3) and a
private placement on June 30, 1998.
(6) Includes 275,000 shares which may be acquired within 60 days of the
date of this prospectus upon the exercise of outstanding warrants owned
by Special Situations Technology Fund, L.P. All shares owned by Special
Situations Technology Fund, L.P. were issued, or are issuable upon the
exercise of warrants issued, to it in connection with the August 5,
1999 private placement described in footnote (3) and the June 30, 1998
private placement described in footnote (5).
PLAN OF DISTRIBUTION
The selling stockholders have not advised us of any specific plans for
the distribution of the shares of Common Stock covered by this prospectus. These
shares may be sold from time to time by the selling stockholders or their
successors in interest. Such sales may be made in one or more transactions on
the Nasdaq SmallCap Market or otherwise, at prices and at terms then prevailing
or at prices related to the then current market price, or in negotiated
transactions. These sales may take one or more of the following forms:
- a "block" trade in which a broker or dealer will attempt to
sell the shares as an agent but may position and resell a
portion of the block as a principal to facilitate the
transaction;
- purchases by a broker or dealer as a principal and resale by
such broker or dealer for its own account; and
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- ordinary brokerage transactions and transactions in which the
broker solicits purchasers.
In effecting sales, brokers or dealers engaged by the selling stockholders may
arrange for other brokers or dealers to participate. Brokers or dealers will
receive commissions or discounts from selling stockholders (and, if they act as
agent for the purchaser, from the purchaser). These commissions may, in certain
situations, be negotiated and in excess of customary rates. Any participating
brokers or dealers and certain of the selling stockholders may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933 in connection
with such sales. In addition, any shares covered by this prospectus which
qualify for sale pursuant to Rule 144 under the Securities Act of 1933 may be
sold under Rule 144 rather than under this prospectus.
If we are notified by a selling stockholder that a material arrangement
has been entered into with a broker-dealer for the sale of shares through a
block trade, special offering, exchange distribution or secondary distribution,
or a purchase by a broker-dealer as a principal, a supplemental prospectus will
be filed listing:
- the name of each selling stockholder and of the participating
broker-dealers(s);
- the number of shares involved;
- the price at which such shares were sold;
- the commissions paid or discounts or concessions allowed to
such broker-dealer(s), where applicable; and
- other facts material to the transaction.
We have agreed to pay the cost of registering the shares covered by
this prospectus and the costs of preparing this prospectus and the registration
statement under which it is filed. These expenses are estimated to be
approximately $20,574.
Precision Optics Corporation and the selling stockholders have agreed
to indemnify each other against certain liabilities, including liabilities
arising under the Securities Act of 1933.
We have agreed to use our best efforts to keep the registration
statement of which this prospectus is a part continuously effective until the
earlier of (i) two years from the date on which warrants now held by Special
Situations Private Equity Fund, L.P. and Special Situations Technology Fund,
L.P. have been exercised in full or earlier terminated or (ii) such time as all
of the shares now held by Special Situations Cayman Fund, L.P., Special
Situations Fund III, L.P., Special Situations Private Equity Fund, L.P. and
Special Situations Technology Fund, L.P. have been sold.
LEGAL MATTERS
The validity of the shares of Common Stock being offered under the
prospectus will be passed upon for Precision Optics Corporation by Ropes & Gray,
Boston, Massachusetts.
EXPERTS
The financial statements incorporated in this prospectus by reference
to our Annual Report on Form 10-KSB for the fiscal year ended June 30, 1999 have
been audited by Arthur Andersen LLP, independent auditors, as stated in their
report.
-9-
<PAGE>
NO DEALER, SALES PERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS OFFERING
OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS. IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY PRECISION OPTICS CORPORATION, THE SELLING STOCKHOLDERS OR ANY UNDERWRITER.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF ANY
OFFER TO BUY ANY SHARES OF OUR COMMON STOCK IN ANY JURISDICTION WHERE, OR TO ANY
PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. THE DELIVERY
OF THIS PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT INFORMATION HEREIN IS CORRECT
AS OF ANY TIME SUBSEQUENT TO ITS DATE.
2,000,000 Shares of Common Stock
PRECISION OPTICS CORPORATION, INC.
_____________, 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemization of the expenses incurred or expected to
be incurred by Precision Optics Corporation, Inc. (the "Company") in connection
with the offering described in this registration statement. No portion of such
expenses are expected to be borne by selling stockholders.
(Items marked with an asterisk (*) represent estimated expenses):
<TABLE>
<CAPTION>
<S> <C>
Registration Fee.................................. $ 574.00
Printing Cost*.................................... $ 2,000.00
Legal Fees*....................................... $ 15,000.00
Accounting Fees*.................................. $ 2,000.00
Miscellaneous*.................................... $ 1,000.00
TOTAL*....................................... $ 20,574.00
------------
------------
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Company is organized under the laws of The Commonwealth of
Massachusetts. The Massachusetts Business Corporation Law provides that
indemnification of directors, officers, employees and other agents of a
corporation, and persons who serve at its request as directors, officers,
employees or other agents of another organization, or who serve at its request
in any capacity with respect to any employee benefit plan, may be provided by
the corporation to whatever extent specified in or authorized by its articles of
organization, a by-law adopted by the stockholders or a vote adopted by the
holders of a majority of the shares of stock entitled to vote on the election of
directors, except that no indemnification may be provided for any person with
respect to any matter as to which the person shall have been adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interest of the corporation. Under Massachusetts law, a
corporation can purchase and maintain insurance on behalf of any person against
liability incurred as a director, officer, employee, agent or person serving at
the request of the corporation as a director, officer, employee or other agent
of another organization or with respect to any employee benefit plan, in his
capacity as such, whether or not the corporation would have the power to itself
indemnify him against such liability.
The Company's articles of organization provide that its directors shall
not be liable to the Company or its stockholders for monetary damages for breach
of fiduciary duty as a director, except to the extent that exculpation from
liabilities is not permitted under the Massachusetts Business Corporation Law as
in effect at the time such liability is determined. The by-laws of the Company
provide generally that the Company shall, to the extent legally permissible,
indemnify its directors and officers against all liabilities and expenses
incurred by them in connection with the defense or disposition of any action,
suit or other proceeding in which he may be involved, or by which he may be
threatened, by reason of his being or having been a director or officer, except
with respect to any matter as to which he shall have been adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interest of the Company. In addition, the Company holds a
directors and officers liability policy.
II-1
<PAGE>
ITEM 16. EXHIBITS
The following exhibits are filed herewith:
<TABLE>
<CAPTION>
Exhibit
NO. TITLE
<S> <C>
2.1 Stock Subscription Agreement dated as of August 5, 1999 by and among
the Company, Special Situations Cayman Funds, L.P., Special Situations
Fund III, L.P., Special Situations Private Equity Fund, L.P. and
Special Situations Technology Fund, L.P. (1)
2.2 Stock Subscription Agreement dated as of June 30, 1998 by and among the
Company, Special Situations Private Equity Fund, L.P. and Special
Situations Technology Fund, L.P. (2)
4.1 Articles of Organization of the Company (3)
4.2 By-laws of the Company (4)
4.3 Specimen Common Stock Certificate (3)
4.4 Registration Rights Agreement dated as of August 5, 1999 by and among
the Company, Special Situations Cayman Funds, L.P., Special Situations
Fund III, L.P., Special Situations Private Equity Fund, L.P. and
Special Situations Technology Fund, L.P. (1)
4.5 Common Stock Purchase Warrant dated August 5, 1999 issued to Special
Situations Cayman Fund, L.P. (1)
4.6 Common Stock Purchase Warrant dated August 5, 1999 issued to Special
Situations Fund III, L.P. (1)
4.7 Common Stock Purchase Warrant dated August 5, 1999 issued to Special
Situations Private Equity Fund, L.P. (1)
4.8 Common Stock Purchase Warrant dated August 5, 1999 issued to Special
Situations Technology Fund, L.P. (1)
4.9 Registration Rights Agreement dated as of June 30, 1998 by and among
the Company, Special Situations Private Equity Fund, L.P. and Special
Situations Technology Fund, L.P. (2)
4.10 Common Stock Purchase Warrant dated June 30, 1998 issued to Special
Situations Private Equity Fund, L.P. (2)
4.11 Common Stock Purchase Warrant dated June 30, 1998 issued to Special
Situations Technology Fund, L.P. (2)
5.1 Opinion of Ropes & Gray
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Ropes & Gray (contained in the opinion filed as Exhibit 5 to
this Registration Statement)
</TABLE>
II-2
<PAGE>
24.1 Power of Attorney (included in part II of this Registration Statement
under the caption "Signatures")
(1) Incorporated herein by reference to the Company's 1999 Annual Report on
Form 10-KSB (No. 001-10647).
(2) Incorporated herein by reference to the Company's 1998 Annual Report on
Form 10-KSB (No. 001-10647).
(3) Incorporated herein by reference to the Company's Registration Statement
on Form S-18 (No. 33-36710-B).
(4) Incorporated herein by reference to the Company's 1991 Annual Report on
Form 10-KSB (No. 001-10647).
ITEM 17. UNDERTAKINGS
(a) The Company 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;
(ii) to reflect in the prospectus included within this
registration statement any facts or events arising after the effective
date of this 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 this registration
statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
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 SEC
by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this 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 for 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; and
(4) that, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant, the Company 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
II-3
<PAGE>
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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.
[Remainder of this page intentionally left blank]
II-4
<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-3 and has duly caused this Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Gardner, Massachusetts, on the 28th day of
September, 1999.
PRECISION OPTICS CORPORATION, INC.
/s/ RICHARD E. FORKEY
-----------------------------------
By: Richard E. Forkey
Chairman, Chief Executive Officer
and President
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Precision Optics
Corporation, Inc., hereby severally constitute and appoint Richard E. Forkey and
Jack P. Dreimiller and each of them singly, as true and lawful attorneys, with
full power to them and each of them singly, to sign for us in our names in the
capacities indicated below, all additional amendments to this registration
statement, and generally to do all things in our names and on our behalf in such
capacities to enable Precision Optics Corporation, Inc. to comply with the
provisions of the Securities Act of 1993, as amended, and all applicable
requirements of the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-3 has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
<S> <C> <C>
/s/ RICHARD E. FORKEY Chairman of the September 28, 1999
- ---------------------------------- Board of Directors,
Richard E. Forkey Chief Executive Officer
and President
(principal executive officer)
/s/ JACK P. DREIMILLER Senior Vice President, September 28, 1999
- ---------------------------------- Finance, Chief Financial
Jack P. Dreimiller Officer and Clerk (principal
financial and accounting
officer)
/s/ EDWARD A. BENJAMIN Director September 28, 1999
- ---------------------------------
Edward A. Benjamin
/s/ H. ANGUS MACLEOD Director September 28, 1999
- ----------------------------------
H. Angus Macleod
/s/ AUSTIN W. MARXE Director September 20, 1999
- ----------------------------------
Austin W. Marxe
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
/s/ JOEL R. PITLOR Director September 28, 1999
- ----------------------------------
Joel R. Pitlor
/S/ ROBERT R. SHANNON Director September 28, 1999
- ----------------------------------
Robert R. Shannon
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
NO. TITLE
<S> <C>
2.1 Stock Subscription Agreement dated as of August 5, 1999 by and among
the Company, Special Situations Cayman Funds, L.P., Special Situations
Fund III, L.P., Special Situations Private Equity Fund, L.P. and
Special Situations Technology Fund, L.P. (1)
2.2 Stock Subscription Agreement dated as of June 30, 1998 by and among the
Company, Special Situations Private Equity Fund, L.P. and Special
Situations Technology Fund, L.P. (2)
4.1 Articles of Organization of the Company (3)
4.2 By-laws of the Company (4)
4.3 Specimen Common Stock Certificate (3)
4.4 Registration Rights Agreement dated as of August 5, 1999 by and among
the Company, Special Situations Cayman Funds, L.P., Special Situations
Fund III, L.P., Special Situations Private Equity Fund, L.P. and
Special Situations Technology Fund, L.P. (1)
4.5 Common Stock Purchase Warrant dated August 5, 1999 issued to Special
Situations Cayman Fund, L.P. (1)
4.6 Common Stock Purchase Warrant dated August 5, 1999 issued to Special
Situations Fund III, L.P. (1)
4.7 Common Stock Purchase Warrant dated August 5, 1999 issued to Special
Situations Private Equity Fund, L.P. (1)
4.8 Common Stock Purchase Warrant dated August 5, 1999 issued to Special
Situations Technology Fund, L.P. (1)
4.9 Registration Rights Agreement dated as of June 30, 1998 by and among
the Company, Special Situations Private Equity Fund, L.P. and Special
Situations Technology Fund, L.P. (2)
4.10 Common Stock Purchase Warrant dated June 30, 1998 issued to Special
Situations Private Equity Fund, L.P. (2)
4.11 Common Stock Purchase Warrant dated June 30, 1998 issued to Special
Situations Technology Fund, L.P. (2)
5.1 Opinion of Ropes & Gray
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Ropes & Gray (contained in the opinion filed as Exhibit 5 to
this Registration Statement)
24.1 Power of Attorney (included in part II of this Registration Statement
under the caption "Signatures")
</TABLE>
<PAGE>
<TABLE>
<S> <C>
</TABLE>
(1) Incorporated herein by reference to the Company's 1999 Annual Report on
Form 10-KSB (No. 001-10647).
(2) Incorporated herein by reference to the Company's 1998 Annual Report on
Form 10-KSB (No. 001-10647).
(3) Incorporated herein by reference to the Company's Registration Statement
on Form S-18 (No. 33- 36710-B).
(4) Incorporated herein by reference to the Company's 1991 Annual Report on
Form 10-KSB.
<PAGE>
EXHIBIT 5.1
ROPES & GRAY
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2624
(617) 951-7000
FAX: (617) 951-7050
September 28, 1999
Precision Optics Corporation, Inc.
22 East Broadway
Gardner, MA 01440
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is being furnished to you in connection with a
registration statement on Form S-3 (the "Registration Statement") filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
for the registration of 2,000,000 shares (the "Shares") of Common Stock, $.01
par value, of Precision Optics Corporation, Inc., a Massachusetts corporation
(the "Company").
We have acted as counsel for the Company in connection with the
preparation of the Registration Statement, the issuance and sale of certain of
the shares and the issuance of warrants (the "Warrants") exercisable for the
balance of the Shares. For purposes of this opinion, we have examined and relied
upon such documents, records, certificates and other instruments as we have
deemed necessary.
We express no opinion as to the applicability of, compliance with or
effect of Federal law or the law of any jurisdiction other than The Commonwealth
of Massachusetts.
Based on the foregoing, we are of the opinion that the Shares that have
been issued and sold as of the date of this letter are duly authorized, validly
issued, fully paid and nonassessable, and that the Shares that are issuable upon
exercise of the Warrants have been duly authorized and, if and when any such
Shares are issued and the Company has received the exercise price therefor in
accordance with the terms of the applicable Warrant, such Shares will be validly
issued, fully paid and nonassessable.
<PAGE>
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement and to the use of our name therein and in the related
prospectus under the caption "Legal Matters."
It is understood that this opinion is to be used only in connection
with the offer and sale of the Shares while the Registration Statement is in
effect.
Very truly yours,
/s/ Ropes & Gray
Ropes & Gray
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
incorporated by reference in this registration statement of our report dated
July 27, 1999 included in Precision Optics Corporation, Inc.'s Form 10-KSB for
the year ended June 30, 1999 and to all references to our Firm included in
this registration statement.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
September 27, 1999
