As filed with the Securities and Exchange Commission on December 8, 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.
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(Exact name of Registrant as specified in its charter)
Delaware 86-0708398
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6820 Academy Parkway East, NE, Albuquerque, New Mexico 87109
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(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
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(Name and address of agent for service)
(505) 342-1100
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(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.
1
<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 1,500,000 $7.31 $10,965,000 $3,322.72
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 457th) of the Securities
Act of 1933, on the basis of the closing price for shares of the
Company's Class A Common Stock on November 25, 1997.
2
<PAGE>
Except as otherwise set forth herein, the contents of the Registrant's
Registration Statement on Form S-8 (File No. 333-23515) dated March 18, 1997, is
incorporated herein by reference.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I will be
delivered to participants in the Registrant's Amended Omnibus Incentive Plan in
accordance with the requirements of Form S-8 and Securities Act Rule 428.
PART II
Item 5. Interest of Named Experts and Counsel.
--------------------------------------
On October 13, 1997, James L. Adler, Jr. was appointed to serve as a
Director of the Registrant for a two year term, Mr. Adler is a partner of the
law firm of Squire, Sanders & Dempsey L.L.P.
Item 8. Exhibits.
---------
4 Amended Omnibus Plan
5 Opinion of Squire, Sanders & Dempsey L.L.P.
23.1 Consent of Squire, Sanders & Dempsey L.L.P.
23.2 Consent of KPMG Peat Marwick L.L.P.
23.3 Consent of Ernst & Young L.L.P.
25 Powers of Attorney
3
<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 November
26, 1997.
LIGHTPATH TECHNOLOGIES, INC.
a Delaware corporation
By /s/ Leslie A Danziger
------------------------------------
Leslie A. Danziger
Chairman of the Board and
Chief Executive Officer
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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Leslie A. Danziger Chairman of the Board (Principal November 26, 1997
- ----------------------------
Leslie A. Danziger Executive Officer)
/s/ Donald E. Lawson President and November 26, 1997
- ---------------------------- Treasurer (Principal
Donald E. Lawson Financial and Accounting
Officer)
/s/ Milton Klein Director November 26, 1997
- ----------------------------
Milton Klein
/s/ Louis Leeburg Director November 26, 1997
- ----------------------------
Louis Leeburg
/s/ Haydock H. Miller, Jr. Director November 26, 1997
- ----------------------------
Haydock H. Miller, Jr.
/s/ James L. Adler, Jr. Director November 26, 1997
- -----------------------
James L. Adler, Jr.
</TABLE>
4
<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)
23.1 Consent of Squire, Sanders
& Dempsey L.L.P. See Exhibit 5
23.2 Consent of KPMG Peat Marwick LLP *
23.3 Consent of Ernst & Young LLP *
25 Powers of Attorney See Signature Page
- --------------
* Filed herewith
5
EX-4
OMNIBUS INCENTIVE PLAN
AMENDED LIGHTPATH TECHNOLOGIES, INC.
OMNIBUS INCENTIVE PLAN
NOVEMBER 12, 1997
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 August 19, 1997, 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) "Consultants" means any person who performs services on behalf of
the Company from time to time on an independent contractor basis; provided,
however, that such services shall not be in connection with the offer and sale
of securities in a capital-raising transaction.
6
<PAGE>
(i) "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 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.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended and in effect from time to time, or any successor statute.
(k) "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.
(l) "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.
(m) "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.
(n "Participant" means an employee or officer of the Company or any
Subsidiary, who is granted an Award under the Plan.
(o) "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.
(p) "Plan" means this Omnibus Incentive Plan, as set forth herein and
as it may be hereafter amended.
(q) "Restricted Award" means an Award granted pursuant to the
provisions of Section 9 of the Plan.
(r) "Restricted Stock Grant" means an Award of shares of Common Stock
granted pursuant to the provisions of Section 9 of the Plan.
(s) "Restricted Unit Grant" means an Award of units representing shares
of Common Stock granted pursuant to the provisions of Section 9 of the Plan.
(t) "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.
(u) "Stock Option" means an Award to purchase shares of Common Stock
granted pursuant to the provisions of Section 7 of the Plan.
(v) "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.
7
<PAGE>
(w) "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.
(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,
officers and Consultants 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 1,825,000, subject to adjustment as provided in
Section 13 below. Common Stock issued under the Plan may be either authorized
and
8
<PAGE>
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").
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
9
<PAGE>
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
11(a), 11(b), 11(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.
(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
10
<PAGE>
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 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 (1) 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
11
<PAGE>
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 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 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
12
<PAGE>
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 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
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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
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
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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
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.
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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:
(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 15(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).
16. MISCELLANEOUS MATTERS.
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(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.
17
Squire, Sanders & Dempsey
L.L.P.
Counsellors at Law Telephone (602) 528-4000
Two Renaissance Square Telecopier (602) 253-8129
40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004 File No. LIG08 013-6
November 30, 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 1,500,000 shares of its Class A Common Stock,
$.0l par value (the "Shares"), issuable pursuant to the Plan.
In that connection, we have examined minutes of a meeting of the
Company's Board of Directors held on September 11, 1997 at which the Shares were
authorized for issuance under the Plan. We have further 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 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
Exhibit 23.2
Consent of KPMG Peat Marwick LLP, Independent Auditors
The Board of Directors
LightPath Technologies, Inc.
We consent to the use of our report incorporated herein by reference in the
prospectus.
Our report dated August 1, 1997, contains an explanatory paragraph that states
that the Company has suffered recurring losses from operations and is dependent
on external sources of capital, which raise substantial doubt about its ability
to continue as a going concern. The financial statements do not include any
adjustments that might result from the outcome of that uncertainty.
KPMG Peat Marwick LLP
Albuquerque, New Mexico
December 4, 1997
Exhibit 23.3
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 statements of
operations, stockholders' equity (deficiency in net assets), and cash flows of
LightPath Technologies, Inc. for the year ended June 30, 1996, included in the
Annual Report (Form 10KSB) for the year ended June 30, 1997.
Ernst & Young LLP
Tucson, Arizona
December 4, 1997
