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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
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PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 1, 1998
Commission file number 000-27548
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LIGHTPATH TECHNOLOGIES, INC.
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(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 87109
Albuquerque, New Mexico (ZIP Code)
(Address of principal executive offices)
Registrant's telephone number, including area code:
(505)342-1100
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<PAGE>
LigthPath Technologies, Inc.
Form 8-K
Index
Item Page
---- ----
Item 5. Other Events.
a) Press release regarding Shareholder Rights Plan 2
b) Stockholder letter 3
c) Summary of Rights to Purchase Preferred Stock 4
Exhibits 6
Signatures 6
1
<PAGE>
LigthPath Technologies, Inc.
Form 8-K
Item 5. Other Events.
On February 25, 1998, the Board of Directors of LightPath Technologies,
Inc. (the "Company") declared a dividend distribution of a right to purchase (a
"Right") one share of Series D Participating Preferred Stock for each
outstanding share of Class A Common Stock, $0.01 par value (the "Common
Shares"), of the Company. The dividend is payable on May 1, 1998 (the "Record
Date") to stockholders of record as of the close of business on that date. Each
Right entitles the registered holder to purchase from the Company one
one-hundredth of a share of Series D Participating Preferred Stock, $.01 par
value, of the Company (the "Preferred Shares"), subject to adjustment, at a
price of $35.00 per share, subject to adjustment (the "Purchase Price"). The
description and terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement"), dated as of May 1, 1998 between the Company and Continental
Stock Transfer & Trust Company, as Rights Agent (the "Rights Agent"). A copy of
the Rights Agreement, including the Certificate of Designation, the form of
Rights Certificate and the Summary of Rights to Purchase Preferred Stock to be
provided to stockholders of the Company, is attached as Exhibit 1 to the
Company's Registration Statement on Form 8-A, dated April 28, 1998 and is
incorporated herein by reference.
a) Press Release
LIGHTPATH TECHNOLOGIES, INC. ADOPTS STOCKHOLDER RIGHTS PLAN
Albuquerque, New Mexico (May 1, 1998) --The Board of Directors of LightPath
Technologies, Inc. (Nasdaq-LPTHA/LPTHU) today adopted a Stockholder Rights Plan
("Plan")and declared a dividend distribution of one preferred share purchase
right for each share of common stock held of record as of the close of business
on May 1, 1998.
The adoption of the Plan is consistent with the routine activities of many other
publicly traded companies. LightPath is taking this step as a matter-of-course
action to deter any potential coercive takeover tactics and prevent an acquirer
from gaining control of the Company without offering a fair price to all of the
Company's stockholders. The Plan is not in response to any known effort to
acquire control of the Company
The Rights become exercisable only if a person or group acquires beneficial
ownership of 20% or more of LightPath common stock or commences a tender or
exchange offer for 20% or more of LightPath's common stock, unless the tender or
exchange offer is for all outstanding shares of the Company upon terms
determined by LightPath's Continuing Directors (as defined in the Plan) to be in
the best interests of the Company and its stockholders. When exercisable, the
Rights would entitle the holders (other than the acquirer) to buy shares of
LightPath common stock having a market value equal to two times the Right's
exercise price, or, in certain circumstances, to buy shares of the acquiring
company having a market value equal to two times the Right's exercise price.
The Plan provides that LightPath may redeem the Rights for $.01 per Right at any
time before the 10th business day after a public announcement that a 20%
position has been acquired. The Rights expire on February 25, 2008.
LightPath Technologies, Inc. is the developer, manufacturer and marketer of
GRADIUM glass products for high-performance telecommunications, data
communications, imaging and other photonic and industrial applications. GRADIUM
glass is the only material that can precisely "steer" light internally, collect
and
2
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concentrate energy, separate wavelengths of high-speed data and be manufactured
cost-effectively in all sizes and volumes. LightPath manufactures GRADIUM
products at its headquarters in Albuquerque. The Company has 14 patents
associated with the process to manufacture GRADIUM glass and currently has 11
additional patents pending. LightPath common stock trades on the NASDAQ Small
Cap Market under the stock symbol LPTHA. LightPath units, comprised of common
stock and warrants, trade under the symbol LPTHU.
# # #
This news release includes statements that may constitute forward-looking
statements made pursuant to the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995. This information may involve risks and
uncertainties that could cause actual results to differ materially from such
forward-looking statements. Factors that could cause or contribute to such
differences include, but are not limited to, factors detailed by LightPath
Technologies, Inc. in its public filings with the Securities and Exchange
Commission.
For Media Inquiries: For Investor Inquiries:
Frank Sommerfield Communications, Inc. RCG Capital Markets Group, Inc.
(212) 255-8386 (602) 675-0400
[email protected] [email protected]
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b) Stockholder Letter
Dear Stockholder:
To ensure our ability to protect the interests of our stockholders in
the event of a hostile takeover attempt, your Board of Directors has adopted a
Stockholder Rights Plan, which provides for the granting of Rights to holders of
LightPath Technologies, Inc. common stock. The Board of Directors declared a
dividend distribution of one preferred share purchase Right for each share of
common stock held on May 1, 1998.
Like hundreds of other companies, LightPath Technologies, Inc. has
adopted a Stockholder Rights Plan to assure that any acquisition or change in
control of the Company would take place under circumstances in which your Board
of Directors can secure the best available transaction for all stockholders. The
mere granting of the Rights should not deter any prospective buyer willing to
negotiate with your Board of Directors or make an offer for all shares at a fair
price.
FOLLOWING IS A SUMMARY OF THE STOCKHOLDER RIGHTS PLAN. THE ADOPTION OF
THE PLAN IS NOT IN RESPONSE TO ANY KNOWN EFFORT TO ACQUIRE CONTROL OF THE
COMPANY. THIS PLAN IS NOT INTENDED TO PREVENT THE ACQUISITION OF THE COMPANY ON
TERMS THAT ARE IN THE BEST INTERESTS OF ALL STOCKHOLDERS. NO RIGHTS CERTIFICATES
WILL BE ISSUED UNTIL THEY ARE EXERCISABLE. YOU ARE NOT REQUIRED TO TAKE ANY
ACTION AT THIS TIME WITH RESPECT TO THE RIGHTS AND YOU SHOULD NOT RETURN ANY
SHARE CERTIFICATES WHICH YOU MAY HOLD.
Leslie A. Danziger Donald Lawson
Chairman of the Board President
3
<PAGE>
c) Summary of Rights to Purchase Preferred Stock
On February 25, 1998, the Board of Directors of LightPath Technologies,
Inc. (the "Company") declared a dividend distribution of one Right for each
share of Company Common Stock to stockholders of record at the close of business
on May 1, 1998. Each Right entitles the registered holder to purchase from the
Company one one-hundredth of a share of Series D Participating Preferred Stock,
$.10 par value (the "Preferred Stock"), at a Purchase Price of $35 per one
one-hundredth of a share, subject to adjustment. The description and terms of
the Rights are set forth in the Rights Agreement (the "Rights Agreement")
between the Company and Continental Stock Transfer & Trust Company, as Rights
Agent.
Initially, the Rights will be attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the Common Stock and a
"Distribution Date" will occur upon the earlier of (i) 10 business days
following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of 20% or more of the outstanding shares of
Common Stock (the "Stock Acquisition Date"), or (ii) 10 business days (or such
later date as the Board of Directors shall determine) following the commencement
of a tender offer or exchange offer that would result in a person or group
beneficially owning 20% or more of such outstanding shares of Common Stock.
Until the Distribution Date, (i) the Rights will be evidenced by the Common
Stock certificates and will be transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued after May 1, 1998 will
contain a notation incorporating the Rights Agreement by reference, and (iii)
the surrender for transfer of any certificates for Common Stock outstanding will
also constitute the transfer of the Rights associated with the Common Stock
represented by such certificates. Pursuant to the Rights Agreement, the Company
reserves the right to require prior to the occurrence of a Triggering Event (as
defined below) that, upon any exercise of Rights, a number of Rights be
exercised so that only whole shares of Preferred Stock will be issued.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on February 25, 2008 unless earlier redeemed by
the Company as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as otherwise determined by
the Board of Directors, only shares of Common Stock outstanding prior to the
Distribution Date will be issued with Rights.
In the event that an Acquiring Person becomes the beneficial owner of
20% or more of the then outstanding shares of Common Stock (unless such
acquisition is made pursuant to a tender or exchange offer for all outstanding
shares of the Company, upon terms and conditions determined by a majority of the
Continuing Directors (as defined below) to be in the best interests of the
Company and its stockholders (a "Qualifying Offer")), each holder of a Right
will thereafter have the right to receive, upon exercise, Common Stock (or, in
certain circumstances, cash, property or other securities of the Company),
having a value equal to two times the Exercise Price of the Right. The Exercise
Price is the Purchase Price times the number of shares of Common Stock
associated with each Right (initially, one). Notwithstanding any of the
foregoing, following the occurrence of the event set forth in this paragraph,
all Rights that are, or (under certain circumstances specified in the Rights
Agreement) were, beneficially owned by any Acquiring Person will be null and
void.
For example, at an exercise price of $50 per Right, each Right not
owned by an Acquiring Person (or by certain related parties or transferees)
following the event set forth in the preceding paragraph would entitle its
holder to purchase $100 worth of Common Stock (or other consideration, as noted
above) for $50. Assuming that the Common Stock had a per share market price of
$10 at such time, the holder of each valid Right would be entitled to purchase
10 shares of Common Stock for $50.
In the event that at any time following the Stock Acquisition Date, (i)
the Company is acquired in a merger or business combination transaction in which
the Company is not the surviving corporation (other than a merger consummated
pursuant to a Qualifying Offer); (ii) the Company is the surviving corporation
in a consolidation or merger pursuant to which all or part of the outstanding
shares of Common Stock are
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changed or exchanged for stock or other securities of any other person or cash
or any other property; or (iii) more than 50% of the combined assets or earning
power is sold or transferred (in each case other than certain consolidations
with, mergers with and into, or sales of assets or earning power by or to
subsidiaries of the Company as specified in the Rights Agreement), each holder
of a Right (except Rights which have previously been voided as set forth above)
shall thereafter have the right to receive, upon exercise thereof, Common Stock
of the acquiring company having a value equal to two times the Exercise Price of
the Right. The events described in this paragraph and in the second preceding
paragraph are referred to as the "Triggering Events."
The Purchase Price payable, the number and kind of shares covered by
each Right and the number of Rights outstanding are subject to adjustment from
time to time to prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Preferred Stock, (ii) if
holders of the Preferred Stock are granted certain rights or warrants to
subscribe for Preferred Stock or securities convertible into Preferred Stock at
less than the current market price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of evidences of indebtedness,
cash (excluding regular quarterly cash dividends), assets (other than dividends
payable in Preferred Stock) or of subscription rights or warrants (other than
those referred to in (ii) immediately above).
With certain exceptions, no adjustments in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional shares of Preferred Stock are required to be issued (other
than fractions which are integral multiples of one one-hundredth of a share of
Preferred Stock) and, in lieu thereof, the Company may make an adjustment in
cash based on the market price of the Preferred Stock on the last trading date
prior to the date of exercise.
At any time until ten business days following the Stock Acquisition
Date, the Company may redeem the Rights in whole, but not in part, at a price of
$.01 per Right (payable in cash, shares of Common Stock or other consideration
deemed appropriate by the Board of Directors). Immediately upon the action of
the Board of Directors ordering redemption of the Rights, the Rights will
terminate and the only right of the holders of Rights will be to receive the
$.01 redemption price.
The term "Continuing Director" means any member of the Board of
Directors of the Company who was a member of the Board prior to the date of the
Rights Agreement, and any person who is subsequently elected to the Board if
such person is recommended or approved by a majority of the Continuing
Directors, but shall not include an Acquiring Person, or an affiliate or
associate of an Acquiring Person, or any representative of the foregoing
entities.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights will not
be taxable to stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company as set
forth above or in the event that the Rights are redeemed.
Other than those provisions relating to the principal economic terms of
the Rights, any of the provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the Distribution Date. After the
Distribution Date, the provisions of the Rights Agreement may be amended by the
Board in order to cure any ambiguity, to make changes which do not adversely
affect the interests of holders of Rights or to shorten or lengthen any time
period under the Rights Agreement; provided, however, that no amendment to
adjust the time period governing redemption shall be made at such time as the
Rights are not redeemable. Under certain circumstances, the Board of Directors
may amend the Rights Agreement to increase the Purchase Price or extend the
Final Expiration Date.
A copy of the Rights Agreement is being filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A. A
copy of the Rights Agreement is available free of charge from the Company,
contact investor relations. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by reference to the
Rights Agreement, which is incorporated herein by reference.
5
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Method of
Exhibit No. Exhibit Filing
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<S> <C> <C>
4 Rights Agreement, dated as of May 1, 1998 between
LightPath Technologies, Inc. and Continental Stock Transfer 1
And Trust Company, including the Certificate of Designation,
the form of Rights Certificate and the Summary of Rights
attached thereto as Exhibits A, B and C, respectively.
20.1 Stockholder letter 2
20.2 Summary of Rights to Purchase Preferred Stock 2
</TABLE>
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1. Incorporated by reference to the Company's Registration Statement on
Form 8-A, dated April 28, 1998.
2. Filed herewith.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Report to be signed in its behalf by the
undersigned, thereunto duly authorized.
LIGHTPATH TECHNOLOGIES, INC.
By: /s/ Donald Lawson May 4,1998
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Donald Lawson
President and Treasurer
6
Exhibit 20.1
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Stockholder Letter
Dear Stockholder:
To ensure our ability to protect the interests of our stockholders in
the event of a hostile takeover attempt, your Board of Directors has adopted a
Stockholder Rights Plan, which provides for the granting of Rights to holders of
LightPath Technologies, Inc. common stock. The Board of Directors declared a
dividend distribution of one preferred share purchase Right for each share of
common stock held on May 1, 1998.
Like hundreds of other companies, LightPath Technologies, Inc. has
adopted a Stockholder Rights Plan to assure that any acquisition or change in
control of the Company would take place under circumstances in which your Board
of Directors can secure the best available transaction for all stockholders. The
mere granting of the Rights should not deter any prospective buyer willing to
negotiate with your Board of Directors or make an offer for all shares at a fair
price.
FOLLOWING IS A SUMMARY OF THE STOCKHOLDER RIGHTS PLAN. THE ADOPTION OF
THE PLAN IS NOT IN RESPONSE TO ANY KNOWN EFFORT TO ACQUIRE CONTROL OF THE
COMPANY. THIS PLAN IS NOT INTENDED TO PREVENT THE ACQUISITION OF THE COMPANY ON
TERMS THAT ARE IN THE BEST INTERESTS OF ALL STOCKHOLDERS. NO RIGHTS CERTIFICATES
WILL BE ISSUED UNTIL THEY ARE EXERCISABLE. YOU ARE NOT REQUIRED TO TAKE ANY
ACTION AT THIS TIME WITH RESPECT TO THE RIGHTS AND YOU SHOULD NOT RETURN ANY
SHARE CERTIFICATES WHICH YOU MAY HOLD.
Leslie A. Danziger Donald Lawson
Chairman of the Board President
7
Exhibit 20.2
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Summary of Rights to Purchase Preferred Stock
On February 25, 1998, the Board of Directors of LightPath Technologies,
Inc. (the "Company") declared a dividend distribution of one Right for each
share of Company Common Stock to stockholders of record at the close of business
on May 1, 1998. Each Right entitles the registered holder to purchase from the
Company one one-hundredth of a share of Series D Participating Preferred Stock,
$.10 par value (the "Preferred Stock"), at a Purchase Price of $35 per one
one-hundredth of a share, subject to adjustment. The description and terms of
the Rights are set forth in the Rights Agreement (the "Rights Agreement")
between the Company and Continental Stock Transfer & Trust Company, as Rights
Agent.
Initially, the Rights will be attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the Common Stock and a
"Distribution Date" will occur upon the earlier of (i) 10 business days
following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of 20% or more of the outstanding shares of
Common Stock (the "Stock Acquisition Date"), or (ii) 10 business days (or such
later date as the Board of Directors shall determine) following the commencement
of a tender offer or exchange offer that would result in a person or group
beneficially owning 20% or more of such outstanding shares of Common Stock.
Until the Distribution Date, (i) the Rights will be evidenced by the Common
Stock certificates and will be transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued after May 1, 1998 will
contain a notation incorporating the Rights Agreement by reference, and (iii)
the surrender for transfer of any certificates for Common Stock outstanding will
also constitute the transfer of the Rights associated with the Common Stock
represented by such certificates. Pursuant to the Rights Agreement, the Company
reserves the right to require prior to the occurrence of a Triggering Event (as
defined below) that, upon any exercise of Rights, a number of Rights be
exercised so that only whole shares of Preferred Stock will be issued.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on February 25, 2008 unless earlier redeemed by
the Company as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as otherwise determined by
the Board of Directors, only shares of Common Stock outstanding prior to the
Distribution Date will be issued with Rights.
In the event that an Acquiring Person becomes the beneficial owner of
20% or more of the then outstanding shares of Common Stock (unless such
acquisition is made pursuant to a tender or exchange offer for all outstanding
shares of the Company, upon terms and conditions determined by a majority of the
Continuing Directors (as defined below) to be in the best interests of the
Company and its stockholders (a "Qualifying Offer")), each holder of a Right
will thereafter have the right to receive, upon exercise, Common Stock (or, in
certain circumstances, cash, property or other securities of the Company),
having a value equal to two times the Exercise Price of the Right. The Exercise
Price is the Purchase Price times the number of shares of Common Stock
associated with each Right (initially, one). Notwithstanding any of the
foregoing, following the occurrence of the event set forth in this paragraph,
all Rights that are, or (under certain circumstances specified in the Rights
Agreement) were, beneficially owned by any Acquiring Person will be null and
void.
For example, at an exercise price of $50 per Right, each Right not
owned by an Acquiring Person (or by certain related parties or transferees)
following the event set forth in the preceding paragraph would entitle its
holder to purchase $100 worth of Common Stock (or other consideration, as noted
above) for $50. Assuming that the Common Stock had a per share market price of
$10 at such time, the holder of each valid Right would be entitled to purchase
10 shares of Common Stock for $50.
In the event that at any time following the Stock Acquisition Date, (i)
the Company is acquired in a merger or business combination transaction in which
the Company is not the surviving corporation (other than a merger consummated
pursuant to a Qualifying Offer); (ii) the Company is the surviving corporation
in a consolidation or merger pursuant to which all or part of the outstanding
shares of Common Stock are changed or exchanged for stock or other securities of
any other person or cash or any other property; or (iii) more than 50% of the
combined assets or earning power is sold or transferred (in each case other than
certain consolidations with, mergers with and into, or sales of assets or
earning power by or to subsidiaries of the Company as specified in the Rights
Agreement), each holder of a Right (except Rights which have previously been
voided as set forth above) shall thereafter have the right to receive, upon
exercise thereof, Common Stock of the acquiring company having a value equal to
two times the Exercise Price of the Right. The events described in this
paragraph and in the second preceding paragraph are referred to as the
"Triggering Events."
8
<PAGE>
The Purchase Price payable, the number and kind of shares covered by
each Right and the number of Rights outstanding are subject to adjustment from
time to time to prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Preferred Stock, (ii) if
holders of the Preferred Stock are granted certain rights or warrants to
subscribe for Preferred Stock or securities convertible into Preferred Stock at
less than the current market price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of evidences of indebtedness,
cash (excluding regular quarterly cash dividends), assets (other than dividends
payable in Preferred Stock) or of subscription rights or warrants (other than
those referred to in (ii) immediately above).
With certain exceptions, no adjustments in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional shares of Preferred Stock are required to be issued (other
than fractions which are integral multiples of one one-hundredth of a share of
Preferred Stock) and, in lieu thereof, the Company may make an adjustment in
cash based on the market price of the Preferred Stock on the last trading date
prior to the date of exercise.
At any time until ten business days following the Stock Acquisition
Date, the Company may redeem the Rights in whole, but not in part, at a price of
$.01 per Right (payable in cash, shares of Common Stock or other consideration
deemed appropriate by the Board of Directors). Immediately upon the action of
the Board of Directors ordering redemption of the Rights, the Rights will
terminate and the only right of the holders of Rights will be to receive the
$.01 redemption price.
The term "Continuing Director" means any member of the Board of
Directors of the Company who was a member of the Board prior to the date of the
Rights Agreement, and any person who is subsequently elected to the Board if
such person is recommended or approved by a majority of the Continuing
Directors, but shall not include an Acquiring Person, or an affiliate or
associate of an Acquiring Person, or any representative of the foregoing
entities.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights will not
be taxable to stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company as set
forth above or in the event that the Rights are redeemed.
Other than those provisions relating to the principal economic terms of
the Rights, any of the provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the Distribution Date. After the
Distribution Date, the provisions of the Rights Agreement may be amended by the
Board in order to cure any ambiguity, to make changes which do not adversely
affect the interests of holders of Rights or to shorten or lengthen any time
period under the Rights Agreement; provided, however, that no amendment to
adjust the time period governing redemption shall be made at such time as the
Rights are not redeemable. Under certain circumstances, the Board of Directors
may amend the Rights Agreement to increase the Purchase Price or extend the
Final Expiration Date.
A copy of the Rights Agreement is being filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A. A
copy of the Rights Agreement is available free of charge from the Company,
contact investor relations. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by reference to the
Rights Agreement, which is incorporated herein by reference.
