As filed with the Securities and Exchange Commission on March 18, 1997
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
LIGHTPATH TECHNOLOGIES, INC.
- --------------------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
Delaware 86-0708398
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6820 Academy Parkway East, NE, Albuquerque, New Mexico 87109
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Amended Omnibus Incentive Plan
- --------------------------------------------------------------------------------
(Full title of the plan)
Leslie A. Danziger
Chairman & President
6820 Academy Parkway East, NE
Albuquerque, New Mexico 87109
- --------------------------------------------------------------------------------
(Name and address of agent for service)
(505) 342-1100
- --------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
With copy to:
James L. Adler, Esq.
Squire, Sanders & Dempsey
40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
(602) 528-4046
Approximate Date of Commencement of Proposed Sale: As soon as practicable after
the Registration Statement becomes effective.
<PAGE>
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
To Be To Be Price Offering Registration
Registered Registered Per Share * Price * Fee
---------- ---------- ----------- --------- ------------
<S> <C> <C> <C> <C>
Class A 325,000 $5.25 $1,706,250.00 $516.99
Common Stock,
$.01 par value
</TABLE>
- -------------------------
* Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rules 457(c) and 457(h) of the Securities Act
of 1933, on the basis of the average of the bid and asked prices for shares
of Common Stock on March 13, 1997.
================================================================================
2
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to employees in accordance with Form S-8 and Securities
Act Rule 428.
3
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
------------------------------------------------
The following documents are hereby incorporated by reference into
this Registration Statement: (a) the Registrant's Annual Report on Form 10-KSB
for the fiscal year ended June 30, 1996; (b) all reports filed with the
Securities and Exchange Commission pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 subsequent to June 30, 1996; and (c) the
description of the Registrant's capital stock contained in the Registrant's
Registration Statement on Form 8-A filed with the Securities and Exchange
Commission pursuant to Section 12(g) of the Securities Exchange Act of 1934.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior
to the filing of a post-effective amendment to this Registration Statement 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 hereof from the date
of filing such documents.
Item 4. Description of Securities. Not applicable.
-------------------------------------------
Item 5. Interests of Named Experts and Counsel. Not applicable.
--------------------------------------------------------
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Article TENTH of the Company's Certificate of Incorporation, as amended,
provides as follows:
TENTH: No director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that the foregoing clause shall not apply
to any liability of a director (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for any transaction from which the director derived an improper
personal benefit, or (iv) under Section 174 of the Delaware General Corporation
Law. This Article shall not eliminate or limit the liability of a director for
any act or omission occurring prior to the time this Article became effective.
Article VII of the Company's Bylaws provides, in summary, that the
Company is required to indemnify to the fullest extent permitted by applicable
law, any person made or threatened to be made a party or involved in a lawsuit,
action or proceeding by reason that such person is or was an officer, director,
employee or agent of the Company. Indemnification is against all liability and
loss suffered and expenses reasonably incurred. Unless required by law,
4
<PAGE>
no such indemnification is required by the Company of any person initiating such
suit, action or proceeding without board authorization. Expenses are payable in
advance if the indemnified party agrees to repay the amount if he is ultimately
found to not be entitled to indemnification. For a full text of Article VI of
the Bylaws, see Exhibit 3.3 to this Registration Statement.
Item 7. Exemption from Registration Claimed. Not applicable.
-----------------------------------------------------
Item 8. Exhibits.
---------
Exhibit Index located at Page 9.
Item 9. Undertakings.
-------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement;
provided, however, that paragraphs (i) and (ii) do not apply if the registration
statement is on Form S-3 or Form S-8 and the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual
5
<PAGE>
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Albuquerque, and the State of New Mexico, on March
14, 1997.
LIGHTPATH TECHNOLOGIES, INC.
a Delaware corporation
By /s/ Leslie A. Danziger
--------------------------------------
Leslie A. Danziger
Chairman & President
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints Leslie A. Danziger and Donald E. Lawson, and each of them, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Form S-8 Registration Statement, and to file the same with all exhibits
thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that such attorneys-in-fact and agents, or each of them, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Leslie A. Danziger Chairman; President; Chief March 14, 1997
- ---------------------- Executive Officer
Leslie A. Danziger
/s/ Donald E. Lawson Executive Vice President; March 14, 1997
- -------------------- Treasurer (Principal
Donald E. Lawson Financial and Accounting
Officer)
7
<PAGE>
Signature Title Date
- --------- ----- ----
/s/ Milton Klein Director March 14, 1997
- -------------------------
/s/ Louis Leeburg Director March 14, 1997
- -------------------------
Louis Leeburg
/s/ Haydock H. Miller, Jr. Director March 14, 1997
- -------------------------
8
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description Method of Filing
------ ----------- ----------------
4 Amended Omnibus Incentive Plan *
5 Form of opinion rendered by Squire, Sanders *
& Dempsey, counsel for the Registrant
(including consent)
23 Consent of Ernst & Young LLP, *
Independent Auditors
24.1 Consent of Counsel See Exhibit 5
25 Powers of Attorney See Signature Page
- ---------------
* Filed herewith
9
AMENDED LIGHTPATH TECHNOLOGIES, INC.
OMNIBUS INCENTIVE PLAN
SEPTEMBER 30, 1996
1. PURPOSE.
This Amended Omnibus Incentive Plan (the "Plan") is intended as an amendment and
restatement of the previous LightPath Technologies, Inc. Omnibus Incentive Plan.
This Plan is intended to provide incentive compensation to certain employees and
officers of LIGHTPATH TECHNOLOGIES, INC. (the "Company") or of its subsidiary
corporations (the "Subsidiaries", as that term is defined in Section 425 of the
Internal Revenue Code of 1986, as amended from time to time) in the form of cash
or Company stock, to permit Plan participants to acquire or increase their
proprietary interest in the success of the Company, and to encourage them to
continue to perform services on behalf of the Company. The Plan is designed to
meet this intent by offering performance-based stock and cash incentives and
other equity based incentive awards, thereby providing a proprietary interest in
pursuing the long-term growth, profitability and financial success of the
Company.
2. EFFECTIVE DATE.
The effective date of this Plan is September 30, 1996, the date on which the
Board adopted this amendment and restatement.
3. DEFINITIONS.
For purposes of this Plan, the following terms shall have the meanings set forth
below:
(a) "Award" or "Awards" means an award or grant made to a Participant
under Sections 7 through 10, inclusive, of the Plan.
(b) "Award Agreement" means the written document that sets forth the
terms and conditions of an Award, as described in Section 16(e).
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended,
together with the regulations promulgated thereunder.
(e) "Committee" means the Compensation Committee of the Board, or any
committee of the Board performing similar functions, constituted as provided in
Section 4 of the Plan.
(f) "Common Stock" means the Class A Common Stock of the Company or
any security of the Company issued in substitution, exchange or lieu thereof.
(g) "Company" means LightPath Technologies, Inc. or any successor
corporation.
(h) "Disability" means permanent and total disability. An individual
is permanently and totally disabled if he or she is unable to engage in any
substantial gainful activity by reason of any
<PAGE>
medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as
amended and in effect from time to time, or any successor statute.
(j) "Fair Market Value" means on any given date (i) the highest
closing price of the Common Stock on any established national exchange or
exchanges or, if no sale of Common Stock is made on such day, the next preceding
day on which there was a sale of such stock, or (ii) if the Common Stock is
quoted in the over-the-counter market reported by the National Association of
Securities Dealers, Inc., the mean between the closing bid and low asked
quotations of the Common Stock for such date, or (iii) if the Common Stock is
neither quoted on an exchange nor in the over-the-counter market, then the fair
market value as determined by the Committee, taking into account various factors
consistent with the provisions of applicable law pertaining to the valuation of
stock for federal income tax purposes.
(k) "Incentive Stock Option" means any Stock Option (as defined below)
that is intended to be and is specifically designated as an "incentive stock
option" within the meaning of Section 422 of the Code.
(l) "Nonqualified Stock Option" means any Stock Option granted
pursuant to the provisions of Section 7 of the Plan that is not an Incentive
Stock Option.
(m) "Participant" means an employee or officer of the Company or any
Subsidiary, who is granted an Award under the Plan.
(n) "Performance Bonus Award" means an Award of cash and/or shares of
Common Stock granted pursuant to the provisions of Section 10 of the Plan.
(o) "Plan" means this Omnibus Incentive Plan, as set forth herein and
as it may be hereafter amended.
(p) "Restricted Award" means an Award granted pursuant to the
provisions of Section 9 of the Plan.
(q) "Restricted Stock Grant" means an Award of shares of Common Stock
granted pursuant to the provisions of Section 9 of the Plan.
(r) "Restricted Unit Grant" means an Award of units representing
shares of Common Stock granted pursuant to the provisions of Section 9 of the
Plan.
(s) "Stock Appreciation Right" means an Award to benefit from the
appreciation of Common Stock granted pursuant to the provisions of Section 8 of
the Plan.
(t) "Stock Option" means an Award to purchase shares of Common Stock
granted pursuant to the provisions of Section 7 of the Plan.
-2-
<PAGE>
(u) "Subsidiary" means any corporation or entity in which the company
directly or indirectly controls 50% or more of the total voting power of all
classes of its stock having voting power, whether existing at the date of
institution of this Plan or subsequently.
(v) "Ten Percent Shareholder" means a person who owns (or is
considered to own after taking into account the attribution of ownership rules
of Section 424(d) of the Code) more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or any Subsidiary.
4. ADMINISTRATION.
(a) The Plan shall be administered by the Committee, as appointed from
time to time by the Board. The Board may from time to time remove members from,
or add members to, the Committee. In the event the Company becomes subject to
the provisions of the Exchange Act, the Committee shall be constituted so as to
permit the Plan to comply with Rule 16b-3 promulgated by the Securities and
Exchange Commission ("SEC") under the Exchange Act or any successor rule ("Rule
16b-3") and shall be comprised of those members of the Board who are not, during
the one year period prior to service as members of the Committee or any
committee of any similar plan of the Company or any affiliate of the Company, or
during the period in which they serve as members of the Committee, granted or
awarded an equity securities (as determined under Rule 16b-3) pursuant to this
Plan or any similar plan of the Company or any affiliate of the Company.
(b) A majority of the members of the Committee shall constitute a
quorum for the transaction of business. Action approved in writing by a majority
of the members of the Committee then serving shall be as effective as if the
action had been taken by unanimous vote at a meeting duly called and held.
(c) The Committee is authorized to construe and interpret the Plan, to
promulgate, amend, and rescind rules and procedures relating to the
implementation of the Plan, and to make all other determinations necessary or
advisable for the administration of the Plan. Any determination, decision, or
action of the Committee in connection with the construction, interpretation,
administration, or application of the Plan shall be binding upon all
Participants and any person validly claiming under or through any Participant.
(d) The Committee may designate persons other than members of the
Committee to carry out its responsibilities under such conditions and
limitations as it may prescribe, except that in the event the Company becomes
subject to the provisions of the Exchange Act, the Committee may not delegate
its authority with regard to selection for participation of, and the granting of
Awards to, persons subject to Sections 16(a) and 16(b) of the Exchange Act or
who are eligible to receive Awards under the Plan.
(e) The Committee is expressly authorized to make modifications to the
Plan as necessary to effectuate the intent of the Plan as a result of any
changes in the tax, accounting, or securities laws treatment of Participants and
the Plan, subject to those restrictions that are set forth in Section 15 below.
-3-
<PAGE>
(f) The Company shall effect the granting of Awards under the Plan, in
accordance with the determinations made by the Committee, by execution of
instruments in writing in such form as approved by the Committee.
5. ELIGIBILITY.
Persons eligible for Awards under the Plan shall consist of employees and
officers of the Company or its Subsidiaries who from time to time shall be
designated by the Committee.
6. COMMON STOCK SUBJECT TO PLAN.
Shares of Common Stock Subject to Plan. The maximum number of shares of
Class A Common Stock in respect of which Awards may be granted under the Plan
(the "Plan Maximum") shall be 325,000, subject to adjustment as provided in
Section 13 below. Common Stock issued under the Plan may be either authorized
and unissued shares or issued shares which have been reacquired by the Company.
The following terms and conditions shall apply to Common Stock subject to the
Plan:
(i) In no event shall more than the Plan Maximum be cumulatively
available for Awards under the Plan;
(ii) For the purpose of computing the total number of shares of
Common Stock available for Awards under the Plan, there shall
be counted against the foregoing limitations, (A) the number
of shares of Common Stock subject to issuance upon exercise or
settlement of Awards (regardless of vesting), and (B) the
number of shares of Common Stock which equal the value of
Restricted Unit Grants or Stock Appreciation Rights determined
at the dates on which such Awards are granted;
(iii) If any Awards are forfeited, terminated, expire unexercised,
settled in cash in lieu of stock or exchanged for other
Awards, the shares of Common Stock which were previously
subject to the Awards shall again be available for Awards
under the Plan to the extent of such forfeiture or expiration
of the Awards;
(iv) Any shares of Common Stock which are used as full or partial
payment to the Company by a Participant of the purchase price
of shares of Common Stock upon exercise of a Stock Option
shall again be available for Awards under the Plan; and
(v) Any shares of Common Stock that may remain unsold and that are
not subject to outstanding Options at the termination of the
Plan shall cease to be reserved for the purpose of the Plan,
but until termination of the Plan the Company shall at all
times reserve a sufficient number of shares to meet the
requirements of the Plan.
7. STOCK OPTIONS.
Stock Options granted under the Plan may be in the form of Incentive
Stock Options, Deferred Compensation Stock Options, or Non-Qualified Stock
Options (collectively, the "Stock Options").
-4-
<PAGE>
Subject to the provisions of the Code, any Stock Option granted in the
form of an Incentive Stock Option shall continue to be treated as an outstanding
Stock Option hereunder, even if it ceases to be treated as an Incentive Stock
Option under the Code. Such Stock Option shall be treated as a Nonqualified
Stock Option, subsequent to the time it ceases to qualify as an Incentive Stock
Option under the Code.
Stock Options shall be subject to the following terms and conditions,
and each Stock Option shall contain such additional terms and conditions, not
inconsistent with the express provisions of the Plan, as the Committee shall
deem desirable:
(a) Grant. Stock Options shall be granted separately. In no event will
Stock Options or Awards be issued in tandem whereby the exercise of one affects
the right to exercise the other.
(b) Stock Option Price. The exercise price per share of Common Stock
purchasable under a Stock Option shall be determined by the Committee at the
time of grant and set forth in the Award Agreement. The Committee may specify an
exercise price for a Nonqualified Stock Option which is less than, equal to, or
greater than the Fair Market Value of the Common Stock on the date of the grant
of the Nonqualified Stock Option. The Committee may also issue Nonqualified
Stock Options with an exercise price less than the Fair Market Value of the
Common Stock on the date of the grant, in satisfaction of the Company's
obligations to pay deferred compensation. Such Stock Options shall be referred
to hereunder as "Deferred Compensation Stock Options". However, in no event
shall the exercise price of an Incentive Stock Option be less than one hundred
percent (100%) of the Fair Market Value of the Common Stock on the date of the
grant of the Incentive Stock Option. In the case of a Ten Percent Shareholder,
the exercise price of an Incentive Stock Option shall be not less than one
hundred ten percent (110%) of the Fair Market Value of the Common Stock on the
date of the grant.
(c) Option Term. The term of each Nonqualified Stock Option and
Deferred Compensation Stock Options, shall be determined by the Committee and
set forth in the Award Agreement. The term of Incentive Stock Options shall not
exceed ten (10) years after the date the Incentive Stock Option is granted, and
the term of any Incentive Stock Options granted to Ten Percent Shareholders
shall not exceed five (5) years after the date of the grant.
(d) Exercisability.
(i) Incentive Stock Options and Nonqualified Stock Options shall be
exercisable at the time or times determined by the Committee and set
forth in the Award Agreement, provided, however, that except as
provided in sections 1l(a), 1l(b), 1l(c), and 14, no Incentive Stock
Option shall be exercisable prior to the first anniversary of the date
of grant. Notwithstanding the previous sentence, Stock Options may be
exercised at an earlier date, pursuant to the provisions of Section 14
hereof.
(ii) Reload Options shall become exercisable in accordance with
Section 7(h)(iii) hereof. Deferred Compensation Stock Options shall
become exercisable in accordance with the terms of the grant thereof
as established by the Committee and set forth in the Award Agreement.
-5-
<PAGE>
(e) Method of Exercise. Subject to applicable exercise restrictions
set forth in Section 7(d) above, a Stock Option may be exercised, in whole or in
part, by giving written notice of exercise to the Company specifying the number
of shares to be purchased. The notice shall be accompanied by payment in full of
the purchase price. The purchase price may be paid by any of the following
methods, subject to the restrictions set forth in Section 7(f) hereof:
(i) in cash, by certified or cashier's check, by money order or by
personal check (if approved by the Committee) of an amount equal to
the aggregate purchase price of the shares of Common Stock to which
such exercise relates;
(ii) if acceptable to the Committee, by delivery of shares of Common
Stock already owned by the Participant, which shares, including any
cash tendered therewith, have an aggregate Fair Market Value
(determined as of the date preceding the Company's receipt of exercise
notice) equal to the aggregate purchase price of the shares of Common
Stock to which such exercise relates; or
(iii) if acceptable to the Committee, by delivery to the Company of an
exercise notice that requests the Company to issue to the Participant
the full number of shares of Common Stock as to which the Stock Option
is then exercisable, less the number of shares of Common Stock that
have an aggregate Fair Market Value (determined as of the date
preceding the Company's receipt of the exercise notice) equal to the
aggregate purchase price of the shares of Common Stock to which such
exercise relates.
(f) Restrictions on Method of Exercise. Notwithstanding the foregoing
payment provisions, the Committee, in granting Stock Options pursuant to the
Plan, may limit the methods by which a Stock Option may be exercised by any
person and in processing any purported exercise of a Stock Option granted
pursuant to the Plan, may refuse to recognize the method of exercise selected by
the Participant (other than the method of exercise set forth in Section
7(e)(i)), if, in the opinion of counsel to the Company, (i) the Participant is,
or within the six months preceding such exercise was, subject to reporting under
Section 16(a) of the Exchange Act, and (ii) there is a substantial likelihood
that the method of exercise selected by the Participant would subject the
Participant to substantial risk of liability under Section 16 of the Exchange
Act. Furthermore, no Incentive Stock Option may be exercised in accordance with
the methods of exercise set forth in subsections 7(e)(ii) and 7(e)(iii) above
unless, in the opinion of counsel to the Company, such exercise would not have a
material adverse effect upon the incentive stock option tax treatment of any
outstanding Incentive Stock Options or Incentive Stock Options that thereafter
may be granted pursuant to the Plan.
(g) Tax Withholding. In addition to the alternative methods of
exercise set forth in Section 7(e), holders of Nonqualified Stock Options,
subject to the discretion of the Committee, may be entitled to elect at or prior
to the time the exercise notice is delivered to the Company, to have the Company
withhold from the shares of Common Stock to be delivered upon exercise of the
Nonqualified Stock Option the number of shares of Common Stock (determined based
on the Fair Market Value as of the date preceding the Company's receipt of the
exercise notice) that is necessary to satisfy any withholding taxes attributable
to the exercise of the Nonqualified Stock Option; provided, however, that the
amount of the Fair Market Value of the shares so withheld does not exceed the
tax on such exercise at the maximum marginal tax rate. If withholding is
-6-
<PAGE>
made in shares of the Common Stock pursuant to the method set forth above, the
Committee, in its sole discretion, may grant "Reload Option(s)" (as defined in
Section 7(h) below) on the terms specified in Section 7(h) below for the shares
so withheld. Notwithstanding the foregoing provisions, a holder of a
Nonqualified Stock Option may not elect to satisfy his or her withholding tax
obligation in respect of any exercise as contemplated above if, in the opinion
of counsel to the Company, (i) the holder of the Nonqualified Stock Option is,
or within the six months preceding such exercise was, subject to reporting under
Section 16(a) of the Exchange Act, (ii) there is a substantial likelihood that
the election or timing of the election would subject the holder to a substantial
risk of liability under Section 16 of the Exchange Act, or (iii) such
withholding would have an adverse tax or accounting effect to the Company.
(h) Grant of Reload Options. Whenever the Participant holding any
Incentive Stock Option or Nonqualified Stock Option (the "Original Option")
outstanding under this Plan (including any "Reload Options" granted under the
provisions of this Section 7(h)) exercises the Original Option, then the
Committee may, in its sole discretion, grant a new option (the "Reload Option")
for additional shares of Common Stock in an amount to be determined in its sole
discretion. All such Reload Options granted hereunder shall be on the following
terms and conditions:
(i) The Reload Option price per share shall be determined by the
Committee and set forth in the Award Agreement;
(ii) The option exercise period shall expire, and the Reload Option
shall no longer be exercisable, on terms specified in the Reload
Option, as determined by the Committee; and
(iii) Any Reload Option granted under this Section 7(h) shall become
exercisable on terms specified in the Reload Option, as determined by
the Committee.
In the event the Committee determines that the price per share of
Common Stock under a Reload Option is one hundred percent (100%) of the Fair
Market Value of such a share on the date of grant of such option (or one hundred
ten percent (110%) of such Fair Market Value of a share under a grant to a Ten
Percent Shareholder), the Committee in its sole discretion may designate such
Reload Option as an Incentive Stock Option.
Even if the shares of Common Stock which are issued upon exercise of
the Original Option are sold within one (l) year following the exercise of the
Original Option such that the sale constitutes a disqualifying disposition
Incentive Stock Option treatment under the Code, no provision of this Plan shall
be construed as prohibiting such a sale.
(i) Special Rule for Incentive Stock Options. With respect to
Incentive Stock Options granted under the Plan, the aggregate Fair Market Value
(determined as of the date Incentive Stock Options are granted) of the number of
shares with respect to which Incentive Stock Options are exercisable for the
first time by a Participant during any calendar year shall not exceed one
hundred thousand dollars ($100,000) or such other limits as may be required by
the Code.
(j) Incentive Stock Options. Notwithstanding anything in the Plan to
the contrary, no term of this Plan relating to Incentive Stock Options shall be
interpreted, amended, or altered, nor
-7-
<PAGE>
shall any discretion or authority granted under the Plan be so exercised, so as
to disqualify the Plan under Section 422 of the Code or, without the consent of
the Participant(s) affected, to disqualify any Incentive Stock Option under such
Section 422 of the Code. To the extent permitted under Section 422 of the Code
or applicable regulations thereunder or any applicable Internal Revenue Service
pronouncements:
(i) if a Participant's employment is terminated by reason of death or
Disability and the Incentive Stock Option by action of the Committee
becomes exercisable in whole or in part after the post-termination
period specified in Section 11(a) or 11(b), such Stock Option or
portion thereof shall be treated as a Nonqualified Stock Option;
(ii) if the exercise of an Incentive Stock Option is accelerated by
reason of a Change in Control (as defined in Section 14 below), such
that the holding period or term of exercise rules applicable to
Incentive Stock Options are not met, then such Incentive Stock Option
shall be treated as a Nonqualified Stock Option;
(iii) if the Committee so approves, an Incentive Stock Option exercise
may be made which exceeds the $100,000 limitation set forth in Section
7(i) above, with such excess to be treated as a Nonqualified Stock
Option; and
(iv) if the Committee so approves, the option term and the terms of
exercise of the Incentive Stock Option can be changed, with the
consent of the Participant, such that the Incentive Stock Option loses
its status as such under the Code, and the entire Stock Option is
treated as a Nonqualified Stock Option.
8. STOCK APPRECIATION RIGHTS
The grant of Stock Appreciation Rights under the Plan shall be subject
to the following terms and conditions, and shall contain such additional terms
and conditions, not inconsistent with the express terms of the Plan, as the
Committee shall deem desirable:
(a) Stock Appreciation Rights. A Stock Appreciation Right is an Award
entitling a Participant to receive an amount equal to the excess of the Fair
Market Value of a share of Common Stock on the date of exercise over the Fair
Market Value of a share of Common Stock on the date of grant of the Stock
Appreciation Right, (or such other lesser or greater price as may be set by the
Committee), multiplied by the number of shares of Common Stock with respect to
which the Stock Appreciation Right shall have been exercised.
(b) Grant. A Stock Appreciation Right shall be granted separately. In
no event will Stock Appreciation Rights and other Awards be issued in tandem
whereby the exercise of one such Award affects the right to exercise the other.
(c) Exercise. A Stock Appreciation Right may be exercised by a
Participant in accordance with procedures established by the Committee. The
Committee shall establish procedures to provide that, with respect to any
Participant subject to Section 16(b) of the Exchange Act who would receive cash
in whole or in part upon exercise of the Stock Appreciation Right, such exercise
may only occur during an exercise period described in Rule
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16b-3(e)(3)(iii) (as such provision exists from time to time) which, as of the
date of adoption of this Plan, is a period beginning on the third (3rd) business
day following the Company's public release of quarterly or annual summary
statements of sales and earnings and ending on the twelfth (12th) business day
following such public release ("Window Period"). To the extent it is not
inconsistent with the preceding sentence, the Committee, in its discretion, may
provide that a Stock Appreciation Right shall be automatically exercised on one
or more specified dates, or that a Stock Appreciation Right may be exercised
during only limited time periods.
(d) Form of Payment. Payment to the Participant upon exercise of a
Stock Appreciation Right may be made (i) in cash, by certified or cashier's
check or by money order, (ii) in shares of Common Stock, or (iii) any
combination of the above, as the Committee shall determine. The Committee may
elect to make this determination either at the time the Stock Appreciation Right
is granted, or with respect to payments contemplated in clauses (i) and (ii)
above, at the time of the exercise.
9. RESTRICTED AWARDS.
Restricted Awards granted under the Plan may be in the form of either
Restricted Stock Grants or Restricted Unit Grants. Restricted Awards shall be
subject to the following terms and conditions, and may contain such additional
terms and conditions, not inconsistent with the express provisions of the Plan,
as the Committee shall deem desirable:
(a) Restricted Stock Grants. A Restricted Stock Grant is an Award of
shares of Common Stock transferred to a Participant subject to such terms and
conditions as the Committee deems appropriate, as set forth in Section 9(d)
below; provided, however, that the Committee shall require a Participant who has
not been employed by or performed services for the Company as of the date of
grant, to pay an amount at least equal to the par value of the shares of Common
Stock subject to the Restricted Stock Grant within thirty (30) days of the
grant. Failure to pay such amount shall result in the automatic termination of
the Restricted Stock Grant.
(b) Restricted Unit Grants. A Restricted Unit Grant is an Award of
units granted to a Participant subject to such terms and conditions as the
Committee deems appropriate, including, without limitation, the requirement that
the Participant forfeit such units upon termination of employment for specified
reasons within a specified period of time, and restrictions on the sale,
assignment, transfer or other disposition of the units. Based on the discretion
of the Committee at the time a Restricted Unit Grant is awarded to a
Participant, a unit will have a value (i) equivalent to one share of Common
Stock, or (ii) equivalent to the excess of the Fair Market Value of a share of
Common Stock on the date the restriction lapses over the Fair Market Value of a
share of Common Stock on the date of the grant of the Restricted Unit Grant (or
over such other value as the Committee determines at the time of the grant).
(c) Grant of Awards. Restricted Awards shall be granted separately
under the Plan in such form and on such terms and conditions as the Committee
may from time to time approve. Restricted Awards, however, may not be granted in
tandem with other Awards whereby the exercise of one such Award affects the
right to exercise the other. Subject to the terms of the Plan, the Committee
shall determine the number of Restricted Awards to be granted to a
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Participant and the Committee may impose different terms and conditions on any
particular Restricted Award made to any Participant. Each Participant receiving
a Restricted Stock Grant shall be issued a stock certificate in respect of the
shares of Common Stock. The certificate shall be registered in the name of the
Participant, shall be accompanied by a stock power duly executed by the
Participant, and shall bear an appropriate legend referring to the terms,
conditions and restrictions applicable to the Award. The certificates evidencing
the shares shall be held in custody by the Company until the restrictions
imposed thereon shall have lapsed or been removed.
(d) Restriction Period. Restricted Awards shall provide that in order
for a Participant to vest in the Awards, the Participant must continuously
provide services for the Company or its Subsidiaries, subject to relief for
specified reasons, for a period specified by the Committee commencing on the
date of the Award and ending on such later date or dates as the Committee may
designate at the time of the Award ("Restriction Period"). During the
Restriction Period, a Participant may not sell, assign, transfer, pledge,
encumber, or otherwise dispose of shares of Common Stock received under a
Restricted Stock Grant. The Committee, in its sole discretion, may provide for
the lapse of restrictions in installments during the Restriction Period. Upon
expiration of the applicable Restriction Period (or lapse of restrictions during
the Restriction Period where the restrictions lapse in installments), the
Participant shall be entitled to receive his or her Restricted Award or the
applicable portion thereof, as the case may be. Upon termination of a
Participant's employment with the Company or any Subsidiary for any reason
during the Restriction Period, all or a portion of the shares or units, as
applicable, that are still subject to a restriction may vest or be forfeited, in
accordance with the terms and conditions established by the Committee at or
after grant.
(e) Payment of Awards. A Participant shall be entitled to receive
payment for a Restricted Unit Grant (or portion thereof) in an amount equal to
the aggregate Fair Market Value of the units covered by the Award upon the
expiration of the applicable Restriction Period. Payment in settlement of a
Restricted Unit Grant shall be made as soon as practicable following the
conclusion of the respective Restriction Period (i) in cash, by certified or
cashier's check or by money order, (ii) in shares of Common Stock equal to the
number of units granted under the Restricted Unit Grant with respect to which
such payment is made, or (iii) in any combination of the above, as the Committee
shall determine, subject, however, to any applicable Window Period requirement
imposed by the Committee with respect to Restricted Unit Grants settled in whole
or in part in cash. The Committee may elect to make this determination either at
the time the Award is granted, or with respect to payments contemplated in
clause (i) and (ii) above, at the time the Award is settled.
(f) Rights as a Shareholder. A Participant shall have, with respect to
the shares of Common Stock received under a Restricted Stock Grant, all of the
rights of a shareholder of the Company, including the right to vote the shares,
and the right to receive any cash dividends. Stock dividends issued with respect
to the shares covered by a Restricted Stock Grant shall be treated as additional
shares under the Restricted Stock Grant and shall be subject to the same
restrictions and other terms and conditions that apply to shares under the
Restricted Stock Grant with respect to which the dividends are issued
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10. PERFORMANCE BONUS AWARDS.
Performance Bonus Awards granted under the Plan may be in the form of
cash or shares of Common Stock, or a combination thereof. Performance Bonus
Awards may be granted under the Plan in such form as the Committee may from time
to time approve. Subject to the terms of the Plan, the Committee shall determine
the Performance Bonus Awards to be granted to a Participant for any given
calendar year, and the Committee may impose different terms and conditions on
any particular Performance Bonus Award made to any Participant including, but
not limited to, restrictions on the sale, assignment and transfer of Common
Stock covered by a Performance Bonus Award.
11. TERMINATION OF EMPLOYMENT.
The terms and conditions under which an Award (other than an Award of
Incentive Stock Options) may be exercised after a Participant's termination of
employment shall be determined by the Committee and set forth in the Award
Agreement. The conditions under which such post-termination exercises shall be
permitted with respect to Incentive Stock Options shall be determined as
provided below:
(a) Termination by Death. Subject to Section 7(j), if a Participant's
employment by the Company or any Subsidiary terminates by reason of the
Participant's death or if the Participant's death occurs within three months
after the termination of his or her employment, any Award held by such
Participant may thereafter be exercised, to the extent such Award otherwise was
then exercisable by the Participant, by the legal representative of the
Participant's estate or by any person who acquired the Award by will or the laws
of descent and distribution, for a period of one year from the Participant's
termination of employment (as contemplated in this Section 11(a)) or until the
expiration of the stated term of the Award, whichever period is the shorter. Any
right of exercise under a nonvested Award held by a Participant at the time of
his or her death is extinguished and terminated.
(b) Termination by Reason of Disability. Subject to Section 7(j), if a
Participant's employment by the Company or Subsidiary terminates by reason of
Disability, any Award held by such Participant may thereafter be exercised by
the Participant, to the extent such Award otherwise was then exercisable by the
Participant, for a period of one year from the date of such termination of
employment or until the expiration of the stated term of such Award, whichever
period is the shorter; provided, however, that if the Participant dies within
such one-year period, any unexercised Award held by such Participant shall
thereafter be exercisable to the extent to which it was exercisable at the time
such death or until the expiration of the stated term of such Award, whichever
period is shorter. Any right of exercise under a nonvested Award held by the
Participant at the time of his or her termination by reason of Disability is
terminated and extinguished.
(c) Other Termination. Subject to Section 7(j), if a Participant's
employment by the Company or any Subsidiary is terminated for any reason, any
Award held by the Participant at the time of his or her termination shall be
exercisable, to the extent otherwise then exercisable, for the lesser of three
(3) months from the date of such termination or the balance of the term of the
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Award, and any right of exercise under any nonvested Award held by a Participant
at the time of his or her termination is terminated and extinguished. Pursuant
to Section 7(j)(iv), the Committee with the Participant's consent may change the
option term and the terms of exercise of an Incentive Stock Option subject to
this Section 11(c), such that the Incentive Stock Option loses its status as
such under the Code, and the entire Stock Option is treated as a Nonqualified
Stock Option.
12. NON-TRANSFERABILITY OF AWARDS.
No Award under the Plan, and no rights or interest therein, shall be
assignable or transferable by a Participant except by will or the laws of
descent and distribution, after which assignment Section 11 (a) hereof shall
apply to exercise of the Award by the assignee. During the lifetime of a
Participant, Awards are exercisable only by, and payments in settlement of
Awards will be payable only to, the Participant or his or her legal
representative.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, ETC.
(a) The existence of the Plan and the Awards granted hereunder shall
not affect or restrict in any way the right or power of the Board or the
shareholders of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change in the Company's capital
structure or its business, any merger or consolidation of the Company, any issue
of bonds, debentures, preferred or prior preference stocks ahead of or affecting
the Company's Common Stock or the rights thereof, the dissolution or liquidation
of the Company, or any sale or transfer of all or any part of its assets or
business, or any other corporate act or proceeding.
(b) In the event of any change in capitalization affecting the Common
Stock of the Company, such as a stock dividend, stock split, recapitalization,
merger, consolidation, split-up, combination, exchange of shares, other form of
reorganization, or any other change affecting the Common Stock, the Board, in
its discretion, may make proportionate adjustments it deems appropriate to
reflect such change with respect to (i) the maximum number of shares of Common
Stock which may be sold or awarded to any Participant, (ii) the number of shares
of Common Stock covered by each outstanding Award, and (iii) the price per share
in respect of the outstanding Awards. Notwithstanding the foregoing, the Board
may only increase the aggregate number of shares of Common Stock for which
Awards may be granted under the Plan solely to reflect the change, if any, of
the capitalization of the Company or a Subsidiary.
(c) The Committee may also make such adjustments in the number of
shares covered by, and the price or other value of any outstanding Awards in the
event of a spin-off or other distribution (other than normal cash dividends) of
Company assets to shareholders.
14. CHANGE OF CONTROL.
(a) In the event of Change of Control (as defined in Paragraph (b)
below) of the Company, and except as the Board may expressly provide otherwise
in resolutions adopted prior to the date of the Change of Control:
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(i) All Stock Options or Stock Appreciation Rights then outstanding
with respect to an affected Participant shall become fully exercisable
as of the applicable date; and
(ii) All restrictions and conditions of all Restricted Stock Grants,
Restricted Unit Grants and Performance Bonus Awards then outstanding
with respect to an affected Participant shall be deemed satisfied as of
the applicable date.
For purposes of this subsection (a), "applicable date" shall mean the
earlier of the three dates on which occur the events described in subsections
(b)(i) through (b)(ii) below:
(b) A "Change of Control" shall be deemed to have occurred with respect
to a Participant upon the occurrence of any one of the following events, other
than a transaction with another person controlled by the Company or its officers
or directors, or a benefit plan or trust established by the Company for its
employees:
(i) Any person, including a group as defined in Section 13(d)(3) of the
Exchange Act, becomes owner of shares of Common Stock of the Company
with respect to which fifty-one (51 %) or more of the total number of
votes for the election of the Board may be cast;
(ii) The stockholders of the Company approve an agreement providing for
the sale or other disposition of all or substantially all of the assets
of the Company; or
15. AMENDMENT AND TERMINATION.
(a) Amendments Without Shareholder Approval. Except as set forth in
Sections 15(b) and 15(c) below, the Board may, without further approval of the
shareholders, at any time amend, alter, discontinue or terminate this Plan, in
such respects as the Board may deem advisable.
(b) Amendments Requiring Shareholder Approval. Except as set forth in
Section 15(c) below, to comply with the restrictions set forth in Rule 16b-3
promulgated under the Exchange Act, as amended and in effect from time to time
(or any successor rule) and to comply with the Code and accompanying
regulations, but subject to changes in law or other legal requirements
(including any change in the provisions of Rule 16b-3 and the Code and
accompanying Regulations that would permit otherwise), the Board must obtain
approval of the shareholders to make any amendment that would (a) increase the
aggregate number of shares of Common Stock that may be issued under the Plan
(except for adjustments pursuant to Section 13 of the Plan), (b) materially
modify the requirements as to eligibility for participation in the Plan, or (c)
materially increase the benefits accruing to Participants under the Plan.
(c) Prohibited Amendments. Notwithstanding Sections 15(a) and l5(b),
under no circumstances may the Board or Committee (i) amend, alter, discontinue
or terminate the requirements set forth in Sections 7(b), 7(c), 7(i) and 7(j)
with respect to Incentive Stock Options (except as otherwise permitted in
Section 7), unless (a) such modifications are made to comply with changes in the
tax laws, or (b) the Plan is completely terminated, or (ii) make any amendment,
alteration or modification to the Plan that would impair the vested rights of a
Participant under any Award theretofore granted under this Plan, except as
provided in Section 16(c).
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16. MISCELLANEOUS MATTERS.
(a) Tax Withholding. In addition to the authority set forth in Section
7(g) above, the Company shall have the right to deduct from a Participant's
wages or from any settlement, including the delivery of shares, made under the
Plan any federal, state, or local taxes of any kind required by law to be
withheld with respect to such payments, or to take such other action as may be
necessary in the opinion of the Company to satisfy all obligations for the
payment of such taxes.
(b) No Right to Employment. Neither the adoption of the Plan nor the
granting of any Award shall confer upon any Participant any right to continue
employment with the Company or any Subsidiary, as the case may be, nor shall it
interfere in any way with the right of the Company or a Subsidiary to terminate
the employment of any Participant at any time, with or without cause.
(c) Annulment of Awards. The grant of any Award under the Plan payable
in cash is provisional until cash is paid in settlement thereof. The grant of
any Award payable in Common Stock is provisional until the Participant becomes
entitled to the certificates in settlement thereof. In the event the employment
of a Participant is terminated for cause (as defined below), any Award which is
provisional shall be annulled as of the date of such termination for cause. For
the purpose of this Section 16(c), the term "terminated for cause" means any
discharge for violation of the policies and procedures of the Company or a
Subsidiary or for other job performance or conduct which is detrimental to the
best interests of the Company or a Subsidiary.
(d) Securities Law Restrictions. No shares of Common Stock shall be
issued under the Plan unless counsel for the Company shall be satisfied that
such issuance will be in compliance with applicable Federal and state securities
laws. Certificates for shares of Common Stock delivered under the Plan may be
subject to such stock-transfer orders and other restrictions as the Committee
may deem advisable under the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange upon which the Common
Stock is then listed, and any applicable Federal or state securities law. The
Committee may cause a legend or legends to be put on any such certificates to
refer to those restrictions.
(e) Award Agreement. Each Participant receiving an Award under the
Plan shall enter into an, Award Agreement with the Company in a form specified
by the Committee agreeing to the terms and conditions of the Award and such
related as the Committee, in its sole discretion, shall determine.
(f) Costs of Plan. The costs and expenses of administering the Plan
shall be borne by the Company.
(g) Governing Law. The Plan and all actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of Delaware.
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Squire, Sanders & Dempsey
L.L.P.
Counsellors ay Law
Telephone (602) 528-4000 Two Renaissance Square Direct Dial Number
40 North Central Avenue, Suite 2700 LIG08 013-6
Telecopier (602) 253-8129 Phoenix, Arizona 85004 (602) 528-4037
March 17, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: LightPath Technologies, Inc.
Amended and Restated Omnibus Incentive Plan (the "Plan")
Ladies and Gentlemen:
We have acted as counsel to LightPath Technologies, Inc., a Delaware
corporation (the "Company") in connection with its Registration Statement on
Form S-8 (the "Registration Statement") filed under the Securities Act of 1933
relating to the registration of 325,000 shares of its Class A Common Stock, $.01
par value (the "Shares"), issuable pursuant to the Plan.
In that connection, we have examined such documents, corporate records
and other instruments as we have deemed necessary or appropriate for purposes of
this opinion, including the Certificate of Incorporation, as amended, and the
Bylaws of the Company.
Based upon the foregoing, we are of the opinion that:
(1) the Company has been duly organized and is validly existing as a
corporation under the laws of the State of Delaware.
(2) the Shares, when issued and sold in accordance with the terms of
the Plan, will be validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
SQUIRE, SANDERS & DEMPSEY LLP
Bratislava * Brussels * Budapest * Cleveland * Columbus * Jacksonville * Kyiv
London * Miami * Moscow * New York * Prague * Washington
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Amended Omnibus Incentive Plan of LightPath Technologies,
Inc. of our report dated August 2, 1996, with respect to the financial
statements of LightPath Technologies, Inc. included in its Annual Report (Form
10-KSB) for the year ended June 30, 1996, filed with the Securities and Exchange
Commission.
Ernst & Young LLP
/s/ Ernst & Young LLP
Tucson, Arizona
March 14, 1997
