As filed with the Securities and Exchange Commission on December 21, 1999
Registration No.333-____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
LIGHTPATH TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 3674 86-0708398
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
6820 Academy Parkway East, N.E., Albuquerque, New Mexico 87109
(505) 342-1100
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Donald Lawson
Chief Executive Officer
Lightpath Technologies, Inc.
6820 Academy Parkway East, N.E.
Albuquerque, New Mexico 87109
(505) 342-1100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Nina Lopez Gordian, Esq.
Squire, Sanders & Dempsey L.L.P.
350 Park Avenue
New York, New York 10022
Telephone: (212) 872-9800
Facsimile: (212) 872-9815
APPROXIMATE DATE OF PROPOSED SALE TO PUBLIC: As soon as practicable after
the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462 (b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [X] 333-47905
If this Form is a post-effective amendment filed pursuant to Rule 462 (c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ] __________
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Amount of
Title of Securities Amount to be Aggregate Price Offering Registration
to be Registered Registered Per Unit * Price Fee
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Class A Common Stock,
$.01 par value
per share 240,000(1) $8.56 $2,054,400 $542.36
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* Estimated solely for the purpose of calculating the registration fee
required by Section 6(b) of the Securities Act of 1933, as amended, pursuant
to Rules 457 (c) under the Securities Act, on the basis of the average of
the bid and asked prices for shares of Common Stock as reported by the
Nasdaq SmallCap Market on December 3, 1999.
(1) Represents estimated maximum number of shares issuable upon conversion of
outstanding Class G and H Warrants.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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<PAGE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This registration statement is being filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended. The contents of the Registration
Statement on Form S-3 (Reg. No. 333-47905) filed by LightPath Technologies, Inc.
(the "Company") with the Securities Exchange Commission, including the exhibits
thereto and all documents incorporated therein by reference, are incorporated
herein by reference.
EXPERTS
Our financial statements as of June 30, 1999 and 1998, and for the years
then ended, have been incorporated by reference in this Prospectus in reliance
upon the report of KPMG LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
The report of KPMG LLP covering the June 30, 1999, financial statements
contains an explanatory paragraph that states that the Company's recurring
losses from operations and resulting continued dependence on external sources of
capital raise substantial doubt about the Company's ability to continue as a
going concern. The financial statements do not include any adjustments that
might result from the outcome of that uncertainty.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS
All exhibits filed with or incorporated by reference in Registration
Statement No. 333-47905 are incorporated by reference into, and shall be deemed
part of, this registration statement, except the following exhibits which are
filed herewith:
Exhibit No. Description
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4.1 Agreement to Amend Warrants, dated as of November 2, 1999, among
LightPath Technologies, Inc. and the holders named therein (1)
4.2 First Amendment to Class G Warrants, dated as of November 2, 1999
(1)
5 Opinion of Squire, Sanders & Dempsey L.L.P.
23.1 Consent of KPMG LLP
23.2 Consent of Squire, Sanders & Dempsey L.L.P. (included in
Exhibit 5)
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(1) This exhibit modifies the Form of Class G Warrant previously filed as
Exhibit 4.7 to the Registrant's registration statement on Form S-3 (File
No. 333-47905) and incorporated herein by reference.
<PAGE>
SIGNATURES
In accordance with the requirement 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-3 and duly authorized this Registration
Statement to be signed on its behalf by the undersigned, in the City of
Albuquerque and State of New Mexico on December 20, 1999.
LIGHTPATH TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Donald E. Lawson
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Donald E. Lawson
Chief Executive Officer
In accordance with the requirement of the Securities Act of 1933, this
Registration Statement was signed below by the following persons in the
capacities and on the dates stated.
Signature Title Date
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/s/ Donald E. Lawson CEO, President and Treasurer December 20, 1999
- -------------------------- (Principal Executive, Financial
Donald E. Lawson and Accounting Officer)
/s/ Robert Ripp Chairman of the Board December 20, 1999
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Robert Ripp
/s/ Leslie A. Danziger Director December 20, 1999
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Leslie A. Danziger
/s/ James A. Adler, Jr. Director December 20, 1999
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James A. Adler, Jr.
/s/ Louis Leeburg Director December 20, 1999
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Louis Leeburg
/s/ Katherine Dietze Director December 20, 1999
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Katherine Dietze
/s/ James A. Wimbush Director December 20, 1999
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James A. Wimbush
[SQUIRE, SANDERS & DEMPSEY L.L.P. LETTERHEAD]
December 10, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: LIGHTPATH TECHNOLOGIES, INC. - FORM S-3 REGISTRATION STATEMENT
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-3 (the "Registration Statement") filed under the Securities Act of 1933,
as amended, pursuant to Rule 462(b) promulgated thereunder relating to the
registration of 240,000 shares (the "Shares"), of its Class A Common Stock, $.01
par value (the "Common Stock"), underlying the Company's outstanding Class G and
H Warrants (collectively, the "Warrants").
In this capacity, we have examined resolutions adopted by the Company's
Board of Directors authorizing the issuance and sale of the Shares, the
Certificate of Incorporation, as amended, and Bylaws, as amended, of the
Company. We have further examined such documents, corporate records and other
instruments as we have deemed necessary or appropriate for purposes of this
opinion, including certificates of public officials and officers of the Company.
For purposes of our opinion, we have assumed the availability of a number of
authorized and unissued shares of the Company's Common Stock required to be
issued upon the exercise of the Class G and H Warrants. We have further assumed
that as of the date of each exercise, the Company continues to exist and is in
good standing under the laws of its state of incorporation. Our opinion is based
solely upon the General Corporation Law of the State of Delaware.
Based upon the foregoing, we are of the opinion that, upon receipt by the
Company of the consideration provided for upon exercise of the Class G and H
Warrants and compliance with the respective terms of such warrants, the Shares,
when issued and sold will be validly issued, fully paid and nonassessable.
We acknowledge that we are referred to under the heading "Legal Matters"
and "Interests of Named Experts and Counsel" in the prospectus incorporated by
reference into the Registration Statement and we hereby consent to the use of
our name in such Registration Statement. We further consent to the filing of
this opinion as an exhibit to the Registration Statement and with any state
regulatory agencies in such states as may require such filing in connection with
the registration of the Shares for offer and sale in such states.
Respectfully submitted,
/s/ Squire, Sanders & Dempsey L.L.P.
EXHIBIT 23.1
CONSENT OF KPMG LLP, INDEPENDENT AUDITORS
The Board of Directors
LightPath Technologies, Inc.
We consent to the use of our report incorporated herein by reference, and to the
reference to our firm under the heading "EXPERTS" in the prospectus.
Our report dated August 10, 1999, except for Note 5 which is as of December 14,
1999, 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.
/s/ KPMG LLP
Albuquerque, New Mexico
December 20, 1999
