<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)
FOUR OPTION PLANS FOR TWO DIRECTORS AND ONE CONSULTANT
------------------------------------------------------
(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
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
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 - 68,000 shares $1.296875-$1.375 $89,750 273.21
$.01 Par Value
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Of the 68,000 shares to be registered hereunder, 20,000 shares are subject
to options at an exercise price of $1.375 per share, and 48,000 shares are
subject to options at an exercise price of $1.296875.
(2) The registration fee was calculated pursuant to Section 6(b) and Rule
457(g). The registration fee is $273.21, which equals the sum of i) $206.98
($1,034,875 (the number of shares to be registered multiplied by $15.21875,
which is the average of the high and low stock prices on January 3, 2000)
divided by 1,000,000 and then multiplied by $200, as provided in Section
6(b)(3)) and ii) $66.23 ($1,034,875 divided by 1,000,000 and then multiplied
by $64, as provided in Section 6(b)(4)(A)).
<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
(ii) The Registrant's Quarterly Report on Form 10-QSB for
the third quarter ended September 30, 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Edward A. Benjamin, who serves as a member of the Board of Directors
of the Registrant, is a retired partner in the law firm of Ropes & Gray,
Boston, Massachusetts. Contained in Exhibit 5.1 to this Registration
Statement is a Ropes & Gray opinion as to the validity of the securities being
registered herein. As of December 31, 1999, Mr. Benjamin beneficially owned
5000 shares of the Registrant's Common Stock and held options to purchase
50,000 shares of the Registrant's Common Stock, of which 37,500 shares may be
acquired within sixty days upon the exercise of outstanding stock options.
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 Stock Option dated December 15, 1994 granted by the Registrant to Edward
A. Benjamin for 7,500 Shares.
4.2 Stock Option dated December 15, 1994 granted by the Registrant to Robert R.
Shannon for 7,500 Shares.
<PAGE>
4.3 Stock Option dated December 15, 1994 granted by the Registrant to Werner
Thiel for 5,000 Shares.
4.4 Replacement Stock Option dated December 16, 1999 evidencing the grant by
the Registrant on July 13, 1995 to Werner Thiel of an option to purchase
48,000 Shares.
4.5 Articles of Organization of the Registrant (1)
4.6 By-laws of the Registrant (2)
4.7 Specimen Common Stock Certificate (1)
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 5.1 to
this Registration Statement)
24.1 Power of Attorney (set forth on the signature page hereto)
(1) Incorporated herein by reference to the Registrant's Registration Statement
on Form S-18 (No. 33-36710-B).
(2) 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.
<PAGE>
(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.
<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 31st day of December,
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 1933, 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 December 31, 1999
- ---------------------------- Board of Directors,
Richard E. Forkey Chief Executive Officer
and President
(principal executive officer)
/s/ Jack P. Dreimiller Senior Vice President, December 31, 1999
- ---------------------------- Finance, Chief Financial
Jack P. Dreimiller Officer and Clerk (principal
financial and accounting officer)
/s/ Edward A. Benjamin
- ---------------------------- Director December 31, 1999
Edward A. Benjamin
/s/ H. Angus Macleod
- ---------------------------- Director December 31, 1999
H. Angus Macleod
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Austin W. Marxe
- ---------------------------- Director December 31, 1999
Austin W. Marxe
/s/ Joel R. Pitlor
- ---------------------------- Director December 31, 1999
Joel R. Pitlor
/s/ Robert R. Shannon
- ---------------------------- Director December 31, 1999
Robert R. Shannon
</TABLE>
<PAGE>
EXHIBIT INDEX
NO. TITLE
4.1 Stock Option dated December 15, 1994 granted by the Registrant to Edward A.
Benjamin for 7,500 Shares.
4.2 Stock Option dated December 15, 1994 granted by the Registrant to Robert R.
Shannon for 7,500 Shares.
4.3 Stock Option dated December 15, 1994 granted by the Registrant to Werner
Thiel for 5,000 Shares.
4.4 Replacement Stock Option dated December 16, 1999 evidencing the grant by
the Registrant on July 13, 1995 to Werner Thiel of an option to purchase
48,000 Shares.
4.5 Articles of Organization of the Registrant (1)
4.6 By-laws of the Registrant (2)
4.7 Specimen Common Stock Certificate (1)
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 5.1 to
this Registration Statement)
24.1 Power of Attorney (set forth on the signature page hereto)
(1) Incorporated herein by reference to the Registrant's Registration Statement
on Form S-18 (No. 33-36710-B).
(2) Incorporated herein by reference to the Registrant's 1991 Annual Report on
Form 10-KSB.
<PAGE>
EXHIBIT 4.1
PRECISION OPTICS CORPORATION, INC.
STOCK OPTION
Stock Option granted by Precision Optics Corporation, Inc., a
Massachusetts corporation (the "Company"), to Edward A. Benjamin, (the
"Optionee").
1. GRANT OF OPTION.
This certificate evidences the grant by the Company on December 15,
1994 to the Optionee of an option to purchase, in whole or in part, on the terms
herein provided, a total of 7,500 shares of common stock of the Company (the
"Shares") at $1.375 per Share. The Final Exercise Date of this option is ten
years from the date hereof.
2. EXERCISE OF OPTION.
This option is exercisable in the following installments prior to the
Final Exercise Date.
1,875 shares immediately;
1,875 shares on and after December 15, 1995;
1,875 shares on and after December 15, 1996; and
1,875 shares on and after December 15, 1997.
Each election to exercise this option shall be in writing, signed by
the Optionee or by his or her executor or administrator or the person or persons
to whom this option is transferred by will or the applicable laws of descent and
distribution (the "Legal Representative"), and received by the Company at its
principal office, accompanied by this certificate, and payment in full as
provided herein. The purchase price may be paid by delivery of (i) cash,
certified check or cashier's check, bank draft, or money order payable to the
order of the Company, (ii) common stock of the Company duly owned by the
Optionee and for which the Optionee has good title, free of liens and
encumbrances, having a fair market value on the day immediately preceding the
date of exercise equal to the purchase price (and which, in the case of stock
acquired from the Company, has been held by the Optionee for at least six
months), (iii) the delivery of an unconditional and irrevocable undertaking by a
broker to deliver promptly to the Company sufficient funds to pay the purchase
price, or (iv) by delivery of a combination of the foregoing, subject to the
provisions herein. In the event that this option is exercised by the Optionee's
Legal Representative, the Company shall be under no obligation to deliver Shares
hereunder unless and until the Company is satisfied as to the authority of the
person or persons exercising this option.
<PAGE>
The Optionee shall not have the rights of a stockholder with regard to
awards under this grant except as to the Shares actually received by him under
this grant.
The Company shall not be obligated to deliver any of the Shares (a)
until, in the opinion of the Company's counsel, all applicable federal and state
laws and regulations have been complied with, and (b) if the outstanding Stock
is at the time listed on any stock exchange, until the Shares to be delivered
have been listed or authorized to be listed on such exchange upon official
notice of issuance, and (c) until all other legal matters in connection with the
issuance and delivery of such Shares have been approved by the Company's
counsel. If the sale of Stock has not been registered under the Securities Act
of 1933, as amended, the Company may require, as a condition to exercise of the
option, such representations or agreements as counsel for the Company may
consider appropriate to avoid violation of such Act and may require that the
certificates evidencing such Shares bear an appropriate legend restricting
transfer.
3. APPLICATION OF STOCK TRANSFER AGREEMENT.
If at the time when this option is exercised the Company is a party to
any agreement restricting the transfer of any outstanding shares of its Stock,
this option may be exercised only if the Shares so acquired are made subject to
the transfer restrictions set forth in that agreement (or if more than one such
agreement is then in effect, the agreement specified by the Board of Directors
of the Company).
4. NONTRANSFERABILITY OF OPTION.
This option is not transferable by the Optionee otherwise than by will
or the laws of descent and distribution, and is exercisable during the
Optionee's lifetime only by the Optionee.
5. TERMINATION
Upon the Optionee's death, all options held by the Optionee shall
terminate to the extent not exercisable immediately prior to his death. The
Legal Representative of the Optionee's estate shall have the right for a period
of 90 days following the Optionee's death to exercise each such option to the
extent it was exercisable immediately before the Optionee's death. At the end of
the 90-day period, all such options shall terminate. The Company shall be under
no obligation under this Section 5 until the Company is satisfied as to the
authority of the person or persons seeking to exercise options hereunder.
-2-
<PAGE>
6. MERGERS, ETC.
In the event of a consolidation or merger in which the Company is not
the surviving corporation or which results in the acquisition of substantially
all the Company's outstanding Stock by a single person or entity or by a group
of persons and/or entities acting in concert, or in the event of the sale or
transfer of substantially all the Company's assets, all outstanding options
hereunder shall terminate.
IN WITNESS WHEREOF, the Company has caused this option to be executed
under its corporate seal by its duly authorized officer. This option shall take
effect as a sealed instrument.
PRECISION OPTICS CORPORATION, INC.
By: /s/ Richard E. Forkey
-------------------------
Richard E. Forkey
President
Dated: December 15, 1994
-3-
<PAGE>
Exhibit 4.2
PRECISION OPTICS CORPORATION, INC.
STOCK OPTION
Stock Option granted by Precision Optics Corporation, Inc., a
Massachusetts corporation (the "Company"), to Robert Shannon, (the "Optionee").
1. GRANT OF OPTION.
This certificate evidences the grant by the Company on December 15,
1994 to the Optionee of an option to purchase, in whole or in part, on the terms
herein provided, a total of 7,500 shares of common stock of the Company (the
"Shares") at $1.375 per Share. The Final Exercise Date of this option is ten
years from the date hereof.
2. EXERCISE OF OPTION.
This option is exercisable in the following installments prior to the
Final Exercise Date.
1,875 shares immediately;
1,875 shares on and after December 15, 1995;
1,875 shares on and after December 15, 1996; and
1,875 shares on and after December 15, 1997.
Each election to exercise this option shall be in writing, signed by
the Optionee or by his or her executor or administrator or the person or persons
to whom this option is transferred by will or the applicable laws of descent and
distribution (the "Legal Representative"), and received by the Company at its
principal office, accompanied by this certificate, and payment in full as
provided herein. The purchase price may be paid by delivery of (i) cash,
certified check or cashier's check, bank draft, or money order payable to the
order of the Company, (ii) common stock of the Company duly owned by the
Optionee and for which the Optionee has good title, free of liens and
encumbrances, having a fair market value on the day immediately preceding the
date of exercise equal to the purchase price (and which, in the case of stock
acquired from the Company, has been held by the Optionee for at least six
months), (iii) the delivery of an unconditional and irrevocable undertaking by a
broker to deliver promptly to the Company sufficient funds to pay the purchase
price, or (iv) by delivery of a combination of the foregoing, subject to the
provisions herein. In the event that this option is exercised by the Optionee's
Legal Representative, the Company shall be under no obligation to deliver Shares
hereunder unless and until the Company is satisfied as to the authority of the
person or persons exercising this option.
<PAGE>
The Optionee shall not have the rights of a stockholder with regard to
awards under this grant except as to the Shares actually received by him under
this grant.
The Company shall not be obligated to deliver any of the Shares (a)
until, in the opinion of the Company's counsel, all applicable federal and state
laws and regulations have been complied with, and (b) if the outstanding Stock
is at the time listed on any stock exchange, until the Shares to be delivered
have been listed or authorized to be listed on such exchange upon official
notice of issuance, and (c) until all other legal matters in connection with the
issuance and delivery of such Shares have been approved by the Company's
counsel. If the sale of Stock has not been registered under the Securities Act
of 1933, as amended, the Company may require, as a condition to exercise of the
option, such representations or agreements as counsel for the Company may
consider appropriate to avoid violation of such Act and may require that the
certificates evidencing such Shares bear an appropriate legend restricting
transfer.
3. APPLICATION OF STOCK TRANSFER AGREEMENT.
If at the time when this option is exercised the Company is a party to
any agreement restricting the transfer of any outstanding shares of its Stock,
this option may be exercised only if the Shares so acquired are made subject to
the transfer restrictions set forth in that agreement (or if more than one such
agreement is then in effect, the agreement specified by the Board of Directors
of the Company).
4. NONTRANSFERABILITY OF OPTION.
This option is not transferable by the Optionee otherwise than by will
or the laws of descent and distribution, and is exercisable during the
Optionee's lifetime only by the Optionee.
5. TERMINATION
Upon the Optionee's death, all options held by the Optionee shall
terminate to the extent not exercisable immediately prior to his death. The
Legal Representative of the Optionee's estate shall have the right for a period
of 90 days following the Optionee's death to exercise each such option to the
extent it was exercisable immediately before the Optionee's death. At the end of
the 90-day period, all such options shall terminate. The Company shall be under
no obligation under this Section 5 until the Company is satisfied as to the
authority of the person or persons seeking to exercise options hereunder.
6. MERGERS, ETC.
-2-
<PAGE>
In the event of a consolidation or merger in which the Company is not
the surviving corporation or which results in the acquisition of substantially
all the Company's outstanding Stock by a single person or entity or by a group
of persons and/or entities acting in concert,or in the event of the sale or
transfer of substantially all the Company's assets, all outstanding options
hereunder shall terminate.
IN WITNESS WHEREOF, the Company has caused this option to be executed
under its corporate seal by its duly authorized officer. This option shall take
effect as a sealed instrument.
PRECISION OPTICS CORPORATION, INC.
By: /s/ Richard E. Forkey
-------------------------
Richard E. Forkey
President
Dated: December 15, 1994
<PAGE>
EXHIBIT 4.3
PRECISION OPTICS CORPORATION, INC.
Stock Option
Stock Option granted by Precision Optics Corporation, Inc., a
Massachusetts corporation (the "Company"), to Werner Thiel, (the "Optionee").
1. GRANT OF OPTION.
This certificate evidences the grant by the Company on December 15,
1994 to the Optionee of an option to purchase, in whole or in part, on the terms
herein provided, a total of 5,000 shares of common stock of the Company (the
"Shares") at $1.375 per Share. The Final Exercise Date of this option is ten
years from the date hereof.
2. EXERCISE OF OPTION.
This option is exercisable in the following installments prior to the
Final Exercise Date:
833 shares immediately;
833 shares on and after December 15, 1995;
833 shares on and after December 15, 1996;
833 shares on and after December 15, 1997;
834 shares on and after December 15, 1998; and
834 shares on and after December 15, 1999.
Each election to exercise this option shall be in writing, signed by
the Optionee or by his or her executor or administrator or the person or persons
to whom this option is transferred by will or the applicable laws of descent and
distribution (the "Legal Representative"), and received by the Company at its
principal office, accompanied by this certificate, and payment in full as
provided herein. The purchase price may be paid by delivery of (i) cash,
certified check or cashier's check, bank draft, or money order payable to the
order of the Company, (ii) common stock of the Company duly owned by the
Optionee and for which the Optionee has good title, free of liens and
encumbrances, having a fair market value on the day immediately preceding the
date of exercise equal to the purchase price (and which, in the case of stock
acquired from the Company, has been held by the Optionee for at least six
months), (iii) the delivery of an unconditional and irrevocable undertaking by a
broker to deliver promptly to the Company sufficient funds to pay the purchase
price, or (iv) by delivery of a combination of the foregoing, subject to the
provisions herein. In the event that this option is exercised by the Optionee's
Legal
<PAGE>
Representative, the Company shall be under no obligation to deliver Shares
hereunder unless and until the Company is satisfied as to the authority of the
person or persons exercising this option.
The Optionee shall not have the rights of a stockholder with regard to
awards under this grant except as to the Shares actually received by him under
this grant.
The Company shall not be obligated to deliver any of the Shares (a)
until, in the opinion of the Company's counsel, all applicable federal and state
laws and regulations have been complied with, and (b) if the outstanding Stock
is at the time listed on any stock exchange, until the Shares to be delivered
have been listed or authorized to be listed on such exchange upon official
notice of issuance, and (c) until all other legal matters in connection with the
issuance and delivery of such Shares have been approved by the Company's
counsel. If the sale of Stock has not been registered under the Securities Act
of 1933, as amended, the Company may require, as a condition to exercise of the
option, such representations or agreements as counsel for the Company may
consider appropriate to avoid violation of such Act and may require that the
certificates evidencing such Shares bear an appropriate legend restricting
transfer.
3. APPLICATION OF STOCK TRANSFER AGREEMENT.
If at the time when this option is exercised the Company is a party to
any agreement restricting the transfer of any outstanding shares of its Stock,
this option may be exercised only if the Shares so acquired are made subject to
the transfer restrictions set forth in that agreement (or if more than one such
agreement is then in effect, the agreement specified by the Board of Directors
of the Company).
4. NONTRANSFERABILITY OF OPTION.
This option is not transferable by the Optionee otherwise than by will
or the laws of descent and distribution, and is exercisable during the
Optionee's lifetime only by the Optionee.
5. TERMINATION
Upon the Optionee's death, all options held by the Optionee shall
terminate to the extent not exercisable immediately prior to his death. The
Legal Representative of the Optionee's estate shall have the right for a period
of 90 days following the Optionee's death to exercise each such option to the
extent it was exercisable immediately before the Optionee's death. At the end of
the 90-day period, all such options shall terminate. The Company shall be under
no obligation under this Section 5 until the Company is satisfied as to the
authority of the person or persons seeking to exercise options hereunder.
-2-
<PAGE>
6. MERGERS, ETC.
In the event of a consolidation or merger in which the Company is not
the surviving corporation or which results in the acquisition of substantially
all the Company's outstanding Stock by a single person or entity or by a group
of persons and/or entities acting in concert, or in the event of the sale or
transfer of substantially all the Company's assets, all outstanding options
hereunder shall terminate.
IN WITNESS WHEREOF, the Company has caused this option to be executed
under its corporate seal by its duly authorized officer. This option shall take
effect as a sealed instrument.
PRECISION OPTICS CORPORATION, INC.
By: /s/ Richard E. Forkey
-------------------------
Richard E. Forkey
President
Dated: December 15, 1994
-3-
<PAGE>
Exhibit 4.4
PRECISION OPTICS CORPORATION, INC.
Replacement Stock Option
Stock Option granted by Precision Optics Corporation, Inc., a
Massachusetts corporation (the "Company"), to Werner Thiel, (the "Optionee").
1. GRANT OF OPTION.
This certificate evidences the grant by the Company on July 13, 1995 to
the Optionee of an option to purchase, in whole or in part, on the terms herein
provided, a total of 48,000 shares of common stock of the Company (the "Shares")
at $1.296875 per Share. The Final Exercise Date of this option is ten years from
the date hereof.
2. EXERCISE OF OPTION.
This option is exercisable in full on and after the date hereof and
prior to the Final Exercise Date; PROVIDED, HOWEVER, that in the event that the
consulting agreement between the Company and the Optionee shall terminate prior
to the vesting of any shares, then no additional shares shall be exercisable
after such termination.
Each election to exercise this option shall be in writing, signed by
the Optionee or by his or her executor or administrator or the person or persons
to whom this option is transferred by will or the applicable laws of descent and
distribution (the "Legal Representative"), and received by the Company at its
principal office, accompanied by this certificate, and payment in full as
provided herein. The purchase price may be paid by delivery of (i) cash,
certified check or cashier's check, bank draft, or money order payable to the
order of the Company, (ii) common stock of the Company duly owned by the
Optionee and for which the Optionee has good title, free of liens and
encumbrances, having a fair market value on the day immediately preceding the
date of exercise equal to the purchase price (and which, in the case of stock
acquired from the Company, has been held by the Optionee for at least six
months), (iii) the delivery of an unconditional and irrevocable undertaking by a
broker to deliver promptly to the Company sufficient funds to pay the purchase
price, or (iv) by delivery of a combination of the foregoing, subject to the
provisions herein. In the event that this option is exercised by the Optionee's
Legal Representative, the Company shall be under no obligation to deliver Shares
hereunder unless and until the Company is satisfied as to the authority of the
person or persons exercising this option.
The Optionee shall not have the rights of a stockholder with regard to
awards under this grant except as to the Shares actually received by him under
this grant.
<PAGE>
The Company shall not be obligated to deliver any of the Shares (a)
until, in the opinion of the Company's counsel, all applicable federal and state
laws and regulations have been complied with, and (b) if the outstanding Stock
is at the time listed on any stock exchange, until the Shares to be delivered
have been listed or authorized to be listed on such exchange upon official
notice of issuance, and (c) until all other legal matters in connection with the
issuance and delivery of such Shares have been approved by the Company's
counsel. If the sale of Stock has not been registered under the Securities Act
of 1933, as amended, the Company may require, as a condition to exercise of the
option, such representations or agreements as counsel for the Company may
consider appropriate to avoid violation of such Act and may require that the
certificates evidencing such Shares bear an appropriate legend restricting
transfer.
3. APPLICATION OF STOCK TRANSFER AGREEMENT.
If at the time when this option is exercised the Company is a party to
any agreement restricting the transfer of any outstanding shares of its Stock,
this option may be exercised only if the Shares so acquired are made subject to
the transfer restrictions set forth in that agreement (or if more than one such
agreement is then in effect, the agreement specified by the Board of Directors
of the Company).
4. NONTRANSFERABILITY OF OPTION.
This option is not transferable by the Optionee otherwise than by will
or the laws of descent and distribution, and is exercisable during the
Optionee's lifetime only by the Optionee.
5. TERMINATION
Upon the Optionee's death, all options held by the Optionee shall
terminate to the extent not exercisable immediately prior to his death. The
Legal Representative of the Optionee's estate shall have the right for a period
of 90 days following the Optionee's death to exercise each such option to the
extent it was exercisable immediately before the Optionee's death. At the end of
the 90-day period, all such options shall terminate. The Company shall be under
no obligation under this Section 5 until the Company is satisfied as to the
authority of the person or persons seeking to exercise options hereunder.
6. MERGERS, ETC.
In the event of a consolidation or merger in which the Company is not
the surviving corporation or which results in the acquisition of substantially
all the Company's outstanding Stock by a single person or entity or by a group
of persons and/or entities acting in concert, or in the event of the sale or
transfer of substantially all the Company's assets, all outstanding options
hereunder shall terminate.
-2-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this option to be executed
under its corporate seal by its duly authorized officer. This option shall take
effect as a sealed instrument.
PRECISION OPTICS CORPORATION, INC.
By: /s/ Richard E. Forkey
-----------------------------
Richard E. Forkey
President
Dated: December 16, 1999
-3-
<PAGE>
EXHIBIT 5.1
ROPES & GRAY
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2624
(617) 951-7000
FAX: (617) 951-7050
January 5, 2000
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 68,000 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 the stock
option awards listed on Schedule 1 hereto (the "Option Awards").
We have acted as counsel to the Company in connection with the
issuance of the Option Awards and the preparation of the Registration
Statement. 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 applicable Option Awards, 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>
Schedule 1 to
-------------
Ropes & Gray
------------
Opinion dated
-------------
January 5, 2000
---------------
1. Stock Option dated December 15, 1994 granted by the Registrant to Edward A.
Benjamin for 7,500 Shares.
2. Stock Option dated December 15, 1994 granted by the Registrant to Robert R.
Shannon for 7,500 Shares.
3. Stock Option dated December 15, 1994 granted by the Registrant to Werner
Thiel for 5,000 Shares.
4. Replacement Stock Option dated December 16, 1999 evidencing the grant by the
Registrant on July 13, 1995 to Werner Thiel of an option to purchase 48,000
shares.
<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 Anderson LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
January 4, 1999
