<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PRECISION OPTICS CORPORATION, INC.
- --------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS
- --------------------------------------------------------------------------------
(State or Other Jurisdiction of Incorporation or Organization)
04-2795294
- --------------------------------------------------------------------------------
(I.R.S. Employer Identification No.)
22 EAST BROADWAY, GARDNER, MA 01440
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
1997 INCENTIVE PLAN
- --------------------------------------------------------------------------------
(Full Title of the Plan)
JACK P. DREIMILLER
SENIOR VICE PRESIDENT, FINANCE AND CHIEF FINANCIAL OFFICER
PRECISION OPTICS CORPORATION , INC.
22 EAST BROADWAY
GARDNER, MASSACHUSETTS 01440
- --------------------------------------------------------------------------------
(Name and Address of Agent For Service)
(978) 630-1800
- --------------------------------------------------------------------------------
Telephone Number, Including Area Code, of Agent for Service.
Please send copies of all communications to:
PATRICK O'BRIEN, ESQ.
ROPES & GRAY
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110
(617) 951-7000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities to Amount To Be Proposed Maximum Proposed Maximum Amount of
be Registered Registered Offering Price Per Aggregate Offering Registration Fee (2)
Share (1) Price (1)
<S> <C> <C> <C> <C>
Common Stock - 525,000 shares $1.312-$3.844 $1,593,825 $444
$.01 Par Value
</TABLE>
(1) Of the 525,000 shares to be registered hereunder, 350,000 shares are subject
to options at an exercise price of $3.844 per share, and 25,000 shares are
subject to options at an exercise price of $1.312. An offering price of
$1.4375 per share for the remaining 150,000 shares not described above has been
estimated, pursuant to Section 457(c) and (h) on the basis of the average of
the high and low prices of shares as reported by the Nasdaq SmallCap Market on
October 27, 1999, solely for the purpose of calculating the registration fee.
(2) Registration fee consists of (a) $374.02 payable in respect of 350,000
shares subject to options at an exercise price of $3.844 per share on the
date hereof, (b) $9.12 payable in respect of 25,000 shares subject to options
at an exercise price of $1.312 and (c) $59.94 payable in respect of 150,000
shares not described above.
<PAGE>
PART I
ITEM 1. PLAN INFORMATION
Not required to be filed with this registration statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed with this registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates the following documents herein by
reference:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal
year ended June 30, 1999.
(b) All other reports filed by the Registrant with the Securities
and Exchange Commission pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") since June 30, 1999, which are listed below:
(i) The Registrant's Current Report on Form 8-K filed on
August 16, 1999
(c) The description of the Registrant's Common Stock , $.01 par
value per share, contained in the Registrant's Registration
Statement on Form S-1 (No. 33-43929).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, 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, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
thereof from the date of filing of such documents.
-2-
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant 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 Registrant's articles of organization provide that its directors
shall not be liable to the Registrant 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 Registrant provide generally that the Registrant 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 Registrant. In
addition, the Registrant holds a directors and officers liability policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 1997 Incentive Plan (1)
4.2 Articles of Organization of the Registrant (2)
4.3 By-laws of the Registrant (3)
-3-
<PAGE>
4.4 Specimen Common Stock Certificate (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
(1) Incorporated herein by reference to the Registrant's 1997 Proxy
Statement on Schedule 14A.
(2) Incorporated herein by reference to the Registrant's Registration
Statement on Form S-18 (No. 33-36710-B).
(3) Incorporated herein by reference to the Registrant's 1991 Annual Report
on Form 10-KSB.
ITEM 9. UNDERTAKINGS.
(a) The 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 to;
(i) Include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) shall 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; and
(3) to file a post-effective amendment to this Registration Statement
to remove from registration any of the securities being registered which remain
unsold at the termination of the offering.
-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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Gardner, Massachusetts on this 29th day of
October, 1999.
PRECISION OPTICS CORPORATION, INC.
By: /s/ Richard E. Forkey
-------------------------------------
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-8 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 October 29, 1999
- ----------------------------------- Board of Directors,
Richard E. Forkey Chief Executive Officer
and President
(principal executive officer)
/s/ Jack P. Dreimiller Senior Vice President, October 29, 1999
- ----------------------------------- Finance, Chief Financial
Jack P. Dreimiller Officer and Clerk (principal
financial and accounting
officer)
/s/ Edward A. Benjamin Director October 29, 1999
- -----------------------------------
Edward A. Benjamin
/s/ H. Angus Macleod Director October 29, 1999
- -----------------------------------
H. Angus Macleod
</TABLE>
-5-
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Austin W. Marxe Director October 29, 1999
- ----------------------------------
Austin W. Marxe
/s/ Joel R. Pitlor Director October 29, 1999
- -----------------------------------
Joel R. Pitlor
/s/ Robert R. Shannon Director October 29, 1999
- ---------------------------------
Robert R. Shannon
</TABLE>
-6-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER TITLE OF EXHIBIT
<S> <C>
4.1 1997 Incentive Plan (1)
4.2 Articles of Organization of the Registrant (2)
4.3 By-laws of the Registrant (3)
4.4 Specimen Common Stock Certificate (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>
(1) Incorporated herein by reference to the exhibit to the Registrant's
1997 Proxy Statement on Schedule 14A.
(2) Incorporated herein by reference to the Registrant's Registration
Statement on Form S-18 (No. 33-36710-B).
(3) Incorporated herein by reference to the Registrant's 1991 Annual Report
on Form 10-KSB.
-7-
<PAGE>
EXHIBIT 5.1
ROPES & GRAY
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2624
(617) 951-7000
FAX: (617) 951-7050
October 29, 1999
Precision Optics Corporation, Inc.
22 East Broadway Street
Gardner, Massachusetts 01440
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration
statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, for the registration of 525,000 shares of Common Stock,
$0.01 par value per share (the "Shares"), of Precision Optics Corporation, Inc.,
a Massachusetts corporation (the "Company"), issuable pursuant to awards granted
under the Company's 1997 Incentive Plan (the "Plan").
We have acted as counsel to the Company in connection with the
preparation of the Registration Statement and the Plan and the issuance of
awards under the Plan. For purposes of this opinion we have examined and relied
upon such documents, records, certificates and other instruments as we have
deemed necessary and appropriate.
Based upon the foregoing, we are of the opinion that the Shares have
been duly authorized and, when the Shares have been issued and sold, and the
consideration therefor has been received by the Company, in accordance with the
terms of the Plan, such Shares will be validly issued, fully paid and
nonassessable.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement.
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.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
October 29, 1999
