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 & Restated Directors Stock Option 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 75,000 $5.25 $393,750 $119.31
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 the Directors 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 TEN 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 report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and,
5
<PAGE>
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
- --------------------------
Milton Klein
/s/ Louis Leeburg Director March 14, 1997
- --------------------------
Louis Leeburg
/s/ Haydock H. Miller, Jr. Director March 14, 1997
- --------------------------
Haydock H. Miller, Jr.
8
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description Method of Filing
- ------- ----------- ----------------
4 Amended & Restated Directors Stock Option *
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
LIGHTPATH TECHNOLOGIES, INC.
AMENDED AND RESTATED
DIRECTORS STOCK OPTION PLAN
1. PURPOSE.
This Amended and Restated LightPath Technologies, Inc. Directors Stock
Option Plan (the Plan") is intended as an amendment and restatement of the
LightPath Technologies, Inc. Directors Stock Option Plan. The options granted
under this Plan are intended as an incentive to retain as independent directors
on the Board of Directors of LightPath Technologies, Inc. persons of training,
experience and ability, to encourage the sense of proprietorship of such persons
and to stimulate the active interests of such persons in the development and
financial success of LightPath Technologies, Inc. The options issued pursuant to
this Plan shall constitute non-qualified stock options within the meaning of
Section 83 of the Internal Revenue Code of 1986, as amended.
2. EFFECTIVE DATE AND TERM OF PLAN.
The effective date of this Plan, as amended and restated, is July 1,
1996. The Plan shall terminate on the earlier of: (i) the effective date of
termination of the Plan by the Board in accordance with Section 9; or (ii) the
date on which all shares of Common Stock reserved under the Plan are subject to
Options granted under the Plan.
3. DEFINITIONS.
For purposes of this Plan, the following terms shall have the meanings
set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended,
together with the regulations promulgated thereunder.
(c) "Common Stock" means the Class A Common Stock of the Company or
any security of Company issued in substitution, exchange or lieu
thereof.
(d) "Company" means LightPath Technologies, Inc. or any successor
corporation.
(e) "Director" means an individual who: (i) is a member of the Board
as a director; (ii) is not an employee of the Company or any
Subsidiary; and (iii) in the event the Company becomes subject to the
provisions of the Exchange Act, is not eligible, and has not been
eligible for at least one year prior to becoming a non-employee
director of the Company, to receive a grant or award of equity
securities pursuant to a plan of the Company or any affiliate of the
Company that is administered by any person having discretion with
respect to the selection of participants and/or the amount of awards,
as determined under Rule 16b-3 promulgated under the Exchange Act.
(f) "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
<PAGE>
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.
(g) "Eligibility Date" means the date as of which an individual first
becomes a Director.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended and in effect from time to time, or any successor statute.
(i) "Fair Market Value" means on any given date (i) the highest
closing price of a share 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 Board, taking into account
various factors consistent with the provisions of applicable law
pertaining to the valuation of stock for federal income tax purposes.
(j) "Plan" means this Directors Stock Option Plan, as set forth herein
and as it may be hereafter amended.
(k) "Option" means an option to purchase shares of Common Stock
granted pursuant to the provisions of Section 5 of the Plan.
(l) "Option Agreement" means the written document that sets forth the
terms and conditions of an Option, as described in Section 16(e).
(m) "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.
4. COMMON STOCK SUBJECT TO PLAN.
Shares of Common Stock Subject to Plan. The maximum number of shares of
Common Stock in respect of which Options shall be granted under the Plan (the
"Plan Maximum") shall be 75,000, subject to adjustment as provided in Section 6
below. Common Stock issued under the Plan may be either authorized and un-issued
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 Options under the Plan;
(ii) For the purpose of computing the total number of shares of Common
Stock available for Options under the Plan, there shall be counted
against the foregoing limitations, the number of shares of Common
Stock subject to issuance upon exercise or settlement of Options
(regardless of exercisability);
<PAGE>
(iii) If any Options are forfeited, terminated or expire un-exercised,
the shares of Common Stock which were previously subject to the
Options shall again be available for Options under the Plan to the
extent of such forfeiture or expiration of the Options;
(iv) Any shares of Common Stock which are used as full or partial
payment to the Company by a Director of the purchase price of shares
of Common Stock upon exercise of an Option shall again be available
for Options 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.
5. FORMULA FOR AUTOMATIC GRANT OF OPTIONS.
(a) General. An Option shall be granted pursuant to Subsections (b)
and (c), below, to each person who is a Director. Each Option shall be
evidenced by an Option Agreement in a form specified by the Board
containing such terms and conditions that are consistent with the
terms of this Plan or applicable law. An Option granted to a Director
under this Plan shall be in addition to regular directors' fees or
other benefits with respect to the Director's position with the
Company or any of its Subsidiaries. Neither the Plan nor any Option
granted under the Plan shall confer upon any person any right to
continue to serve as a director of the Company.
(b) Initial Automatic Grant. A Director shall be granted, effective as
of the Director's Eligibility Date, an option to purchase a maximum of
10,000 shares of Common Stock. A Director who receives an Option grant
under this Subsection (b) may exercise the Option in accordance with
the following schedule:
(i) with respect to one third (1/3) of the shares subject to
the Option (3,333 shares) commencing as of eleven (11) months
after the effective date of the grant;
(ii) with respect to two-thirds (2/3) of the shares subject to
the Option (6,667 shares) commencing as of the second
anniversary of the effective date of the grant;
(iii) with respect to all shares subject to the Option (10,000
shares) commencing as of the third anniversary of the
effective date of the grant.
An Option shall be exercisable pursuant to clause (i), (ii), or (iii),
above, only if the Director has continued to perform services as a director of
the Company during the period beginning on the date the Option is first granted
and ending on the date the relevant portion of the Option is first exercisable
pursuant to clause (i), (ii) or (iii), as the case may be. The exercisability of
an Option upon cessation of such services is set forth in Subsection (h), below.
The term of an Option grant pursuant to this Subsection (b) shall be
ten (10) years commencing as of the effective date of the grant, regardless of
whether the relationship between the individual and the Company terminates or
changes. The exercise price for a share of Common Stock under an Option grant
pursuant to this Subsection (b) shall be the Fair Market Value of a share of
Common Stock as of the effective date of the grant.
<PAGE>
(c) Subsequent Automatic Grants. An individual who is a Director on
the date of each annual meeting of stockholders of the Company that
occurs more than eleven (11) months after the Director's Eligibility
Date, shall be granted an Option to purchase a maximum of three
thousand (3,000) shares of Common Stock, effective as of the date of
such meeting. A Director who receives an Option grant under this
Subsection (c) may exercise the Option commencing on the date of such
grant. The exercise price for a share of Common Stock under an Option
grant pursuant to this Subsection (c) shall be the Fair Market Value
of a share of Common Stock as of the effective date of the grant. The
term of an Option grant pursuant to this Subsection (c) shall be ten
(10) years commencing as of the effective date of the grant,
regardless of whether the relationship between the individual and the
Company terminates or changes.
(d) Method of Exercise. Subject to applicable exercise restrictions
set forth herein, an 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
Subsection (e), below:
(i) in cash, by certified or cashier's check, by money order
or by personal check (if approved by the Board) 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 Board, by delivery of shares of
Common Stock already owned by the Director, 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 Board, by delivery to the Company
of an exercise notice that requests the Company to issue to
the Director the full number of shares of Common Stock as to
which the 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.
(e) Restrictions on Method of Exercise. Notwithstanding the foregoing
payment provisions, the Board may refuse to recognize the method of
exercise selected by the Director (other than the method of exercise
set forth in Subsection (d)(i)), above, if, in the opinion of counsel
to the Company, (i) the Director 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 Director would subject the
Director to substantial risk of liability under Section 16 of the
Exchange Act.
(f) Tax Withholding. In addition to the alternative methods of
exercise set forth in Subsection (e), a Director may 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 Option the number of shares of Common Stock
<PAGE>
(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
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. Notwithstanding the foregoing provisions, a
Director 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 Director 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 Director 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.
(g) Grant of Reload Options. Whenever a Director holding any Option
(the "Original Option") outstanding under this Plan (including any
"Reload Options" granted under the provisions of this Subsection (g))
exercises the Original Option and makes payment of the option price by
tendering shares of Common Stock previously held by him or her, then
the Board 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 of up to one hundred percent (100%)
of the number of shares tendered by the Director in payment of the
option price for the Original Option being exercised, including those
shares withheld pursuant to Subsection (f). All such Reload Options
granted hereunder shall be on the following terms and conditions:
(i) The Reload Option exercise price per share shall be an
amount equal to the then current Fair Market Value of a share
of Common Stock, determined as of the date of the Company's
receipt of the exercise notice for the Original Option;
(ii) The option exercise period shall expire, and the Reload
Option shall no longer be exercisable, on the expiration of
the option period of the Original Option or two (2) years from
the date of the grant of the Reload Option, whichever is
later,
(iii) Any Reload Option granted under this Subsection (g)
shall become exercisable one (1) year following the date of
exercise of the Original Option; and
(iv) All other terms of Reload Options granted hereunder
shall be identical to the terms and conditions of the Original
Option, the exercise of which gives rise to the grant of the
Reload Option.
(h) Exercisability of Options Upon Termination of Relationship with
the Company. Notwithstanding anything in the Plan to the contrary, a
Director who ceases to perform services as a director of the Company
for any reason (including death and Disability) shall be entitled to
exercise any outstanding Options for the remainder of each Option's
term, but only to the extent the Option was exercisable as of the date
of such cessation of services. In the event of the death of the
Director, the Director's beneficiary shall be entitled to exercise any
outstanding Options to the extent permitted in accordance with the
preceding sentence.
<PAGE>
(i) Non-transferability of Options. No Option and no rights or
interest therein shall be assignable or transferable by a Director
except by will or the laws of descent and distribution. During the
lifetime of the Director or the Director's beneficiary, as the case
may be, Options are exercisable only by the Director, or the
Director's beneficiary, as the case may be, or the legal
representative of the Director or the Director's beneficiary.
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, ETC.
(a) General. The existence of the Plan and the Options granted
hereunder shall not affect or restrict in any way the right or power
of the Board or the stockholders of the Company to make or authorize
any adjustment, re-capitalization, 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) Change in Capitalization. In the event of any change in
capitalization affecting the Common Stock of the Company, such as a
stock dividend, stock split, re-capitalization, 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
Director, (ii) the number of shares of Common Stock covered by each
outstanding Option, and (iii) the price per share in respect of the
outstanding Options. Notwithstanding the foregoing, the Board may only
increase the aggregate number of shares of Common Stock for which
Options may be granted under the Plan solely to reflect the change, if
any, of the capitalization of the Company or a Subsidiary.
(c) Sale of Assets. The Board may also make such adjustments in the
number of shares covered by, and the price or other value of any
outstanding Options in the event of a spin-off or other distribution
(other than normal cash dividends) of Company assets to stockholders.
7. CHANGE OF CONTROL.
(a) General. In the event of Change of Control (as defined in
Subsection (b) below) of the Company, Options then outstanding with
respect to an affected Director shall become fully exercisable as of
the applicable date. For purposes of this Subsection (a), "applicable
date" shall mean the earliest of the three dates on which occur the
events described in subsections (b)(i) through (b)(ii) below:
(b) Definition. A "Change of Control" shall be deemed to have occurred
with respect to a Director 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:
<PAGE>
(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; or
(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.
8. SECURITIES LAWS RESTRICTIONS.
Each person exercising an Option may be required by the Company to give
a representation in writing that he or she is acquiring shares of Common Stock
for his or her own account for investment and not with a view to, or for sale in
connection with, the distribution of any part thereof (regardless of whether the
Option and shares of Common Stock covered by the Plan are registered under the
Securities Act of 1933, as amended). As a condition of transfer of the
certificate evidencing shares of Common Stock, the Board may obtain such other
agreements or undertakings, if any, that it may deem necessary or appropriate to
assume compliance with any provisions of the Plan or any law or regulation.
Certificates for shares of Common Stock delivered under the Plan may be subject
to such stock-transfer orders and other restrictions as the Board may deem
advisable under the rules, regulations, and other requirements of the Securities
and Exchange Commission, any stock exchange upon which the shares of Common
Stock are then listed, and any applicable Federal or state securities laws. The
Board may cause a legend or legends to be put on any such certificate to refer
to those restrictions.
9. AMENDMENT AND TERMINATION.
(a) Amendments Without Stockholder Approval. Except as set forth in
Subsections (b) and (c) below, the Board may, without further approval
of the stockholders, amend or terminate this Plan for purposes of
meeting or addressing any changes in legal requirements applicable to
the Plan or for any other reason permitted by law.
(b) Amendments Requiring Stockholder Approval. The Board must obtain
approval of the stockholders to make any amendment to the Plan for
which stockholder approval is required 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).
(c) Prohibited Amendments. Notwithstanding Subsections (a) and (b),
the provisions of Section 5 regarding eligibility and automatic grants
of Options under the Plan shall not be amended more than once every
six (6) months, except for such amendments as may be
<PAGE>
necessary to comply with the applicable provisions of the Code or the
rules and regulations promulgated thereunder.
16. MISCELLANEOUS MATTERS.
(a) Government Regulations. The Plan and the granting and exercise of
Options hereunder, and the obligations of the Company to sell and
deliver shares of Common Stock under such Options, shall be subject to
all applicable laws, rules and regulations, and to such approvals by
any governmental agencies or national securities exchanges as may be
required.
(b) Costs of Plan. The costs and expenses of administering the Plan
shall be borne by the Company.
(c) Interpretation. If any provision of the Plan is held invalid for
any reason, such holding shall not affect the remaining provisions of
the Plan, but instead the Plan shall be construed and enforced as if
such provisions had never been included in the Plan. Headings
contained in the Plan are for convenience only and shall in no manner
be construed as part of this Plan. Any reference to the masculine,
feminine or neuter gender shall be a reference to such other gender as
is appropriate.
(d) Section 83(b) Election. If as a result of exercising an Option, a
Director receives shares of Common Stock that are subject to a
"substantial risk of forfeiture" and are not "transferable" as those
terms are defined for purposes of Section 83(b) of the Code, then such
Director may elect under Section 83(b) to include in his gross income,
for the taxable year in which the shares of Common Stock are
transferred to him, the excess of the fair market value of such shares
at the time of transfer (determined without regard to any restriction
other than one which by its tams will never lapse), over the amount
paid for such shares. If the Director makes the Section 83(b) election
described above, the Director shall (i) make the election in a manner
that is satisfactory to the Board; (ii) provide the Company with a
copy of such election; (iii) agree to promptly notify the Company if
any Internal Revenue Service or state tax agent, on audit or
otherwise, questions the validity or correctness of such election or
of the amount of income reportable on account of such election; and
(iv) agree to such withholding as the Board may reasonably require.
(e) Option Agreement and Beneficiary Designation. Each Director
receiving an Option grant under the Plan shall enter into an Option
Agreement with the Company in a form specified by the Board agreeing
to the terms and conditions of the Option. Each Director receiving an
Option grant under the Plan shall designate one or more beneficiaries
who may elect to exercise any Options exercisable upon or after the
death of the Director.
(f) 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.
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 Directors' Stock Option 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 75,000 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 and Restated Directors Stock Option 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
