As filed with the Securities and Exchange Commission on February 24, 2000
Registration No._______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
LIGHTPATH TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Delaware 3674 86-0708398
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification No.)
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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 Copy to:
Chief Executive Officer Joseph Crabb, Esq.
LightPath Technologies, Inc. Squire, Sanders & Dempsey L.L.P
6820 Academy Parkway East, N.E. 40 North Central Avenue
Albuquerque, New Mexico 87109 Phoenix, AZ 85004
(505) 342-1100 Telephone: (602) 528-4000
(Name, address, including zip code, and telephone Facsimile: (602) 253-8129
number, including area code, of agent for service)
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
interestreinvestment 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, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ___________________
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
================================================================================
Proposed Maximum Proposed
Title of Securities Amount to be Aggregate Price Offering Registration
to be Registered Registered per Unit* Price Fee
- --------------------------------------------------------------------------------
Class A common stock,
$0.01 par value 25,000** $8.00 $200,000 $52.80
================================================================================
* For the purpose of calculating the registration fee required by Section
6(b) of the Securities Act of 1933, as amended, pursuant to Rule 457 (h)
under the Securities Act, the exercise price of the stock options is $8.00
per share.
** Represents estimated number of shares issuable upon exercise of stock
options.
In accordance with Rules 416 and 457 under the Securities Act of 1933, the
shares of common stock registered hereby shall also be deemed to cover an
indeterminate number of additional shares of common stock to be issued as a
result of the exercise of the options referred to in this footnote to prevent
dilution resulting from stock splits, stock dividends or similar transactions.
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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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING SHAREHOLDER MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS DECLARED
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS
NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR
SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED FEBRUARY 24, 2000
PROSPECTUS
25,000 SHARES
OF CLASS A COMMON STOCK
LIGHTPATH TECHNOLOGIES, INC.
6820 Academy Parkway, N.E.
Albuquerque, New Mexico 87109
Telephone: (505) 342-1100
All of the shares of common stock being offered in this prospectus will be
issued by LightPath Technologies to the shareholders who are offering them for
sale. The total shares covered by this prospectus will be issued to the selling
shareholders upon exercise of their outstanding options. The selling
shareholders can use this prospectus to sell all or part of the shares they
receive through the exercise of their options.
Our common stock is traded in the over-the counter market through the
Nasdaq SmallCap Market system.
Closing Price
Symbol on February 18, 2000
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LPTHA $37.00
This investment involves a high degree of risk. You should purchase shares
only if you can afford a complete loss. See "risk factors" beginning at page 6.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is February __, 2000.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other information with
the U.S. Securities and Exchange Commission. You may read and copy any document
that we have filed at the SEC's Public Reference Room at 450 Fifth Street, N.W.,
Washington, DC, 20549. Please call the SEC at 1-800-SEC-0330 for further
information about the operation of its public reference facilities. Our SEC
filings are also available to you free of charge at the SEC's web site at
http://www.sec.gov.
Copies of publicly available documents that we have filed with the SEC can
also be inspected and copied at the offices of the National Association of
Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
We have filed a registration statement on Form S-3 with the SEC that covers
the resale of the common stock offered by this prospectus. This prospectus is a
part of that registration statement, but the prospectus does not include all of
the information included in the registration statement. You should refer to the
registration statement for additional information about us and the common stock
being offered in this prospectus. Statements that we make in this prospectus
relating to any documents filed as an exhibit to the registration statement or
any document incorporated by reference into the registration statement may not
be complete and you should review the referenced document itself for a complete
understanding of its terms.
The SEC allows us to "incorporate by reference" to the information we file
with them, which means that we can disclose important information to you in this
prospectus by referring you to those documents. The documents that have been
incorporated by reference are an important part of the prospectus, and you
should be sure to review that information in order to understand the nature of
any investment by you in the common stock. In addition to previously filed
documents that are incorporated by reference, documents that we file with the
SEC after the date of this prospectus will automatically update the registration
statement. The documents that we have previously filed and that are incorporated
by reference into this prospectus include the following:
+ our annual report on Form 10-KSB/A-2 for the fiscal year ended June 30,
1999;
+ our proxy statement relating to the 1999 Annual Meeting except that
information shown under "Security Ownership of Principal Stockholders and
Management" has been modified by certain recent events as described in this
prospectus on page 16;
+ our quarterly report on Form 10-QSB/A for the quarter ended September 30,
1999;
+ our quarterly report on Form 10-QSB/A for the quarter ended December 31,
1999;
+ our current report on Form 8-K filed January 18, 2000;
+ our current report on Form 8-K filed December 20, 1999; and
+ the description of our Class A Common Stock included in our registration
statement on Form 8-A filed on January 13, 1996.
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All documents and reports filed by us pursuant to Sections 13 (a), 13 (c),
14 or 15 (d) of the Securities Exchange Act of 1934 after the date of this
prospectus and prior to the date that this offering is terminated will
automatically be incorporated by reference into this prospectus
We will provide you with copies of any of the documents incorporated by
reference, at no charge to you, however, we will not deliver copies of any
exhibits to those documents unless the exhibit itself is specifically
incorporated by reference. If you would like a copy of any document, please
write or call us at:
LightPath Technologies, Inc.
6820 Academy Parkway, N.E.
Albuquerque, New Mexico 87109
Attn: Investor Relations
Telephone: (505) 342-1100
You should only rely upon the information included in or incorporated by
reference into this prospectus or in any prospectus supplement that is delivered
to you. We have not authorized anyone to provide you with additional or
different information. You should not assume that the information included in or
incorporated by reference into this prospectus or any prospectus supplement is
accurate as of any date later than the date on the front of the prospectus or
prospectus supplement.
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PROSPECTUS SUMMARY
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING SHAREHOLDER MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS DECLARED
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS
NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR
SALE IS NOT PERMITTED.
LIGHTPATH TECHNOLOGIES, INC.
LightPath produces GRADIUM(R) glass, utilizes other optical materials and
specialized optical packaging concepts to produce products that manipulate
light, and performs research and development for optical solutions in the fiber
telecommunications and traditional optics markets.
WHAT IS GRADIUM GLASS? GRADIUM glass is an optical quality glass material
with varying refractive indices, capable of reducing optical aberrations
inherent in conventional lenses and performing with a single lens tasks
traditionally performed by multi-element conventional lens systems. We believe
that GRADIUM glass lenses provide advantages over conventional lenses for
certain applications. By reducing optical aberrations, we believe that GRADIUM
glass lenses can provide sharper images, higher resolution, less image
distortion, a wider usable field of view and a smaller focal spot size. By
reducing the number of lenses in an optical system, GRADIUM glass can provide
more efficient light transmission and greater brightness, lower production
costs, and a simpler, smaller product. Although other researchers have likely
sought to produce optical quality lens material with properties similar to that
of GRADIUM glass, we are not aware of any other person or firm that has
developed a repeatable manufacturing process for producing such material on a
prescribable basis. To date, LightPath has been issued eighteen US patents for
GRADIUM glass products and currently has numerous filed patent applications
pending related to our GRADIUM glass materials composition, product design and
fabrication processes for production. Additional patent applications have been
filed or are in process for laser fusion techniques and fiberoptic
optomechanical switch technologies. We are continually developing new GRADIUM
glass materials with various refractive indexes and dispersion profiles and
products for the telecommunications field; fiberoptic optomechanical switches,
multiplexers, interconnects and cross-connects.
TO WHAT INDUSTRIES ARE LIGHTPATH'S GRADIUM GLASS PRODUCTS BEING MARKETED?
We believe that GRADIUM glass and our other optical materials can potentially be
marketed for use in most optics and optoelectronics products. During 1998, we
restructured our internal organization and marketing focus with the intended
purpose of serving two distinct markets: optoelectronics and fiber
telecommunications, and traditional optics (e.g. lasers, medical equipment,
consumer optics, etc.).
Optoelectronics technologies consist of an overlap of photonics and
electronics and are key enablers of "Information Age" technologies, such as
fiber optic communications, optical data storage, laser printers, digital
imaging, and sensors for machine vision and environmental monitoring. Prior to
1998, we targeted various optoelectronic industry market niches as potential
purchasers of our GRADIUM glass products. During 1998, we began to develop
products for the emerging optoelectronics markets, specifically in the areas of
fiber telecommunications. With the resolution of fiber optic issues concerning
packaging and alignment and utilizing advances made by LightChip, an affiliate,
<PAGE>
in the area of WDM equipment, we began to produce and demonstrate a passive
optoelectronic product, the single mode fiber collimator assembly. During 1999
we expanded this product line with the goal of demonstrating to the
telecommunication optical components industry our ability to provide low cost
products and provide solutions to their telecom needs.
For traditional optics, we initially emphasized laser products because our
management believed at that time that GRADIUM lenses could have a substantial
immediate commercial impact in laser products with a relatively small initial
financial investment. Generally, optical designers can substitute GRADIUM glass
components from our standard line of products in lieu of existing conventional
laser lens elements. Lasers are presently used extensively in a broad range of
consumer and commercial products, including fiber optics, robotics, wafer chip
inspection, bar code reading, document reproduction and audio and video compact
disc machines. Because GRADIUM glass can concentrate light transmission into a
much smaller focal spot than conventional lenses, we believe, and customers'
test results confirm, that GRADIUM glass has the ability to improve the current
standard of laser performance. One of our distributors, Permanova Lasersystems
AB of Sweden, qualified GRADIUM YAG lenses into systems produced by Rofin-Sinar
GmbH, a significant original equipment manufacturer, OEM, of high-powered CO2
and YAG lasers headquartered in Germany. Our growth strategy is to increase our
emphasis on key laser market niches and establish the necessary products and
partnership alliances to sell into Europe and Asia as well as the U.S. market.
During fiscal 1999, LightPath and Rodenstock Prazisionsoptik GmbH (Rodenstock)
executed an agreement to transfer to Rodenstock the exclusive,
application-related utilization and distribution of GRADIUM lenses throughout
the whole of Europe. The agreement was for an initial five-year period.
Rodenstock's one hundred years of experience in the field of advanced optical
systems and over 6,000 employees worldwide, will be a strong asset to the
expansion of LightPath's presence in Europe. We have established relationships
with eight foreign distributors. We believe these distributors will enable us to
establish and maintain a presence in foreign and domestic markets without
further investment in this product area. In addition to laser applications, we,
through our printed and Internet on-line catalog, offer a standard line of
GRADIUM glass lenses for commercial sales to optical designers developing
particular systems for OEMs or in-house products.
HOW HAS LIGHTPATH DEVELOPED GRADIUM GLASS PRODUCTS? From our inception in
1985 until June 1996, we were classified as a development stage enterprise that
engaged in basic research and development. We believe that most of our product
sales made during this period were to persons evaluating the commercial
application of GRADIUM glass or using the products for research and development.
During fiscal year 1997, our operational focus begin to shift to commercial
product development and sales. We completed numerous prototypes for production
orders and received our first orders for catalog sales of standard lens
profiles. We also began to offer standard, computer-based profiles of GRADIUM
glass that engineers use for product design. During fiscal 1998, sales of lenses
to the traditional optics market continued with significant increases in sales
of lenses used in the YAG laser market, catalog and distributor sales, and
lenses used in the wafer inspection markets. In fiscal year 1998, we also began
to explore the development of products for emerging markets such as
optoelectronics, photonics and solar energy due to the number of potential
customers' inquiries into the ability of GRADIUM glass to solve optoelectronic
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problems, specifically in the areas of fiber telecommunications. Our resolution
of packaging and alignment issues, and advances made by LightChip, an affiliate,
with WDM equipment, led us in 1998 to develop a strategy for entering the
optoelectronic markets. Our first passive optoelectronic product, a single mode
fiber collimator assembly, or SMF assembly, was demonstrated in February 1998.
The SMF assembly is a key element in all fiber optic systems, including WDM
equipment. The SMF assembly straighten and make parallel, diverging light as it
exits a fiber. Beginning in fiscal 1999, we began offering, and have delivered
for testing to potential customers, three product levels, the collimating lens,
the SMF assembly and the large beam collimating assembly. The telecommunications
collimator marketplace is currently estimated by industry experts to generate
annual gross revenues of $125 million in 1999 with projected growth to $256
million in five years.
The current focus of our development group has been to expand application
of GRADIUM products to the areas of fiberoptic optomechanical switches,
multiplexers, interconnects and cross-connects for the telecommunications field,
further refinement of the crown glass product line to supplement its existing
flint products, and further development of acrylic axial gradient material to
extend the range of existing product applications.
WHERE YOU CAN FIND US. LightPath was incorporated in Delaware in 1992. Our
corporate headquarters are located at 6820 Academy Parkway East N.E.,
Albuquerque, New Mexico, 87109 and our telephone number is (505) 342-1100.
3
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THE OFFERING
Securities Offered by the
Selling Shareholders............ A total of 25,000 shares of Class A Common
Stock are covered by this prospectus. These
shares are being offered as follows:
25,000 shares issuable upon exercise of
outstanding options held by the selling
shareholders.
A description of the terms of the common
stock, and options are included in this
prospectus under "Selling Shareholders" at
page 15.
Common Stock Outstanding as of December 31, 1999
Class A Common Stock 7,470,290 shares(1)(3)
Class E-1 Common Stock 1,506,117 shares(2)
Class E-2 Common Stock 1,506,117 shares(2)
Class E-3 Common Stock 1,004,070 shares(2)
Use of Proceeds.................. We will not receive any of the proceeds of
sales of common stock by the selling
shareholders. We will receive up to $200,000
from the exercise, if any, of options by the
selling shareholders.
Risk Factors..................... The shares of common stock offered hereby
involve a high degree of risk. See "Risk
Factors" on page 6.
Nasdaq SmallCap Market Symbols... Class A Common Stock - "LPTHA" Units -
"LPTHU" Class A Warrants - "LPTHW" Class B
Warrants - "LPTHZ"
- ----------
(1) Does not include shares underlying options outstanding at December 31, 1999
to purchase 1,286,985 shares of Class A Common Stock, (which includes 71,102
options which the holders receive, upon exercise, 71,102 Class A shares, 106,652
shares of Class E-1, 106,652 shares of Class E-2 and 71,102 shares of Class E-3
Common Stock) which are exercisable at option exercise prices ranging from $2.84
to $51.56 per share and 913,015 shares of Class A Common Stock reserved for
issuance upon future grants of options under LightPath's stock option plans.
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<PAGE>
(2) Each share of outstanding Class E-1 Common Stock, Class E-2 Common Stock and
Class E-3 Common Stock, collectively referred to as the Class E shares, will, on
a class basis, automatically convert into Class A Common Stock if and as the
Company attains certain earnings levels with respect to each of the three
separate classes. The Class E shares will be redeemed by LightPath in September
2000 for a nominal amount if such earnings levels are not achieved by June 30,
2000.
(3) Does not include an aggregate of 10,087,450 shares of Class A Common Stock
issuable upon exercise of (i) the Unit Purchase Option (99,257 Class A common
shares) granted to the IPO underwriter and the 99,257 Class A and 99,257 Class B
Common Stock Purchase Warrants underlying the Unit Purchase Option; (ii) the
99,257 additional Class B Warrants issuable upon exercise of the Class A
Warrants referred to in (i); (iii) 1,814,043 Class A Warrants and 1,951,845
Class B Warrants forming part of the IPO Units; (iv) the 1,814,043 additional
Class B Warrants issuable upon exercise of the Class A Warrants referred to in
(iii); (v) the 839,000 Class A Warrants issued at the IPO; (vi) the 839,000
additional Class B Warrants issuable upon exercise of the Class A Warrants
referred to in (v) above, (vii) the additional 226,241 shares of Class A Common
Stock issuable upon exercise of the Class C, Class D, Class E, Class F, Class G,
and Class H Warrants, (viii) 1,925,000 shares of Class A Common Stock issuable
upon conversion of the Series F Preferred Stock and exercise of the Class K and
Class L Warrants and (ix) 281,250 shares of Class A Common Stock issuable upon
exercise of the Chairman's Warrant.
FORWARD-LOOKING STATEMENTS
Throughout this prospectus and the other documents incorporated by
reference into this prospectus we make certain "forward-looking" statements.
These are statements about future events, results of operation, business plans
and other matters. We use words such as "expect", "anticipate", "intend" or
other similar words to identify forward looking statements. These statements are
made based on our current knowledge and understanding. However, there can be no
assurances as to whether or not actual results will be consistent with these
statements. In fact, actual events or results could vary dramatically from these
statements as a result of among other factors:
+ Economic conditions, domestically and internationally
+ Technological developments
+ Industry trends
+ Risk factors described in this prospectus.
We have no obligation to update the forward-looking statements made in this
prospectus or incorporated by reference herein.
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RISK FACTORS
THE FOLLOWING SUMMARY SHOULD BE READ BY YOU TOGETHER WITH THE MORE DETAILED
INFORMATION INCLUDED AT OTHER SECTIONS OF THIS PROSPECTUS. IN ADDITION, YOU
SHOULD CAREFULLY CONSIDER THE FACTORS DESCRIBED UNDER "RISK FACTORS" BEGINNING
AT PAGE 6 OF THIS PROSPECTUS. OUR FISCAL YEAR ENDS ON JUNE 30 AND REFERENCES TO
YEARS IN THIS PROSPECTUS REFER TO OUR FISCAL YEAR ENDED AS OF JUNE 30 OF THE
REFERENCED CALENDAR YEAR.
WE HAVE EXPERIENCED LOSSES IN PRIOR YEARS.
Our operations have never been profitable. We believe that our introduction
of products for the telecommunication market in 1999 may generate sales in
excess of amounts realized to date, although there can be no assurance in this
regard. We expect to continue operating at a deficit during the current fiscal
year and until such time, if ever, as our operations generate sufficient
revenues to cover our costs. The likelihood of our financial success must be
considered in light of the delays, uncertainties, difficulties and risks
inherent in a new business, many of which are beyond our ability to control.
These risks include, but are not limited to, unanticipated problems relating to
product development, testing, manufacturing, marketing and competition, and
additional costs and expenses that may exceed our current estimates. There can
be no assurance that our revenues will increase significantly in the future or
that, even if they do, our operations will ever be profitable.
WE MAY BE UNABLE TO CONTINUE OPERATING AS A GOING CONCERN.
We have received a report from our independent auditors that includes an
explanatory paragraph regarding uncertainty as to our ability to continue as a
going concern. The factors cited by the auditors as raising substantial doubt as
to our ability to continue as a going concern are our recurring losses from
operations and resulting continued dependence on external sources of capital. We
may incur losses for the foreseeable future due to the significant costs
associated with the development, manufacturing and marketing of our products and
due to the continued research and development activities that will be necessary
to further refine our technology and products and to develop products with
additional applications.
WE ANTICIPATE THE NEED FOR ADDITIONAL FUTURE FINANCING IN ORDER TO FUND OUR
OPERATIONS AND PLANS FOR GROWTH.
We anticipate that our projected product sales and the net proceeds from
our private placement of 6% Convertible Debentures and related warrants,
completed in July 1999, will be available to fund our working capital needs for
fiscal 2000. The net proceeds from the sale in November 1999 of Series F
Preferred Stock, of approximately $3.9 million, and $250,000 from the sale of
62,500 shares of Class A Common Stock to Robert Ripp, will be used to expand
collimator production, to further develop the optical switch and provide working
capital. Third quarter fiscal 2000 proceeds of approximately $16 million, from
the redemption of the Class A Warrants, will be used for a working capital,
expansion of the Albuquerque facility in terms of both capital equipment and
leased facilities and addition of a leased facility in New Jersey. The Company's
ability to generate these future sales will depend on the extent that the SMF
assembly, collimating lenses and GRADIUM glass become commercially accepted and
at levels sufficient to sustain its operations. There can be no assurance that
the Company will generate sufficient revenues to fund its future operations and
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growth strategies. At this time the Company does not believe product sales will
reach the level required to sustain its operations and growth plans beyond the
near term; however the equity raised in fiscal 2000 is sufficient to meet the
Company's near term objectives. We do not have any commitments from others to
provide additional financing in the future and there can be no assurance that
any such additional financing will be available if needed or, if available, will
be on terms favorable to us. In the event such needed financing is not obtained,
our operations will be materially adversely affected and we will have to cease
or substantially reduce operations. Any additional equity financing may be
dilutive to stockholders, and debt financings, if available, may involve
restrictive covenants.
WE MAY HAVE DIFFICULTIES IN MANAGING GROWTH.
We will need to grow our product sales and manufacturing output
significantly in order to be successful. If we are unable to manage growth
effectively, it could have material adverse effects on our results of
operations, financial condition or liquidity. We cannot guarantee that we will
successfully expand or that any expansion will enhance our profitability. We
expect our planned growth will place a significant strain on our management and
operations. Our future growth will depend in part on the ability of our officers
and other key employees to implement and expand financial control systems and to
expand, train and manage our employee base and provide support to an expanded
customer base.
OUR PRODUCTS ARE AT AN EARLY STAGE OF DEVELOPMENT AND MAY NOT ACHIEVE MARKET
ACCEPTANCE.
Through June 1996, our primary activities were basic research and
development of glass material properties. Our current line of GRADIUM products
have not generated sufficient revenues to sustain operations and our
telecommunications products are still in the introductory phase. While we
believe our existing products are commercially viable, we anticipate the need to
educate the optical components market in order to generate market demand and
market feedback may require us to further refine these products. Development of
additional product lines will require significant further research, development,
testing and marketing prior to commercialization. There can be no assurance that
any proposed products will be successfully developed, demonstrate desirable
optical performance, be capable of being produced in commercial quantities at
reasonable costs or be successfully marketed.
OUR PRODUCTS HAVE NOT BEEN DEMONSTRATED TO BE COMMERCIALLY SUCCESSFUL.
Our telecommunication products have not yet achieved commercial acceptance.
The traditional optics have been accepted commercially, however, their benefits
are not widely known. Although we are engaged in negotiations and discussions
with potential customers, there can be no assurance that any such discussions
will lead to development of commercially viable products or significant
revenues, if any, or that any products currently existing or to be developed in
the future will attain sufficient market acceptance to generate significant
revenues. In order to persuade potential customers to purchase GRADIUM products,
we will need to overcome industry resistance to, and suspicion of, gradient lens
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technology that has resulted from previous failed attempts by various
researchers and manufacturers unrelated to us to develop a repeatable,
consistent process for producing lenses with variable refractive indices. We
must also satisfy industry-standard Bellcore Testing on telecommunication
products to meet customer requirements, as well as satisfy prospective customers
that we will be able to meet their demand for quantities of products, since we
may be the sole supplier and licensor. We do not have demonstrated experience as
a manufacturer and do not have a substantial net worth. We may be unable to
accomplish any one or more of the foregoing to the extent necessary to develop
market acceptance of our products. Prospective customers will need to make
substantial expenditures to redesign products to incorporate GRADIUM lenses.
There can be no assurances that potential customers will view the benefits of
our products as sufficient to warrant such design expenditures.
WE DEPEND UPON KEY PERSONNEL.
Our inability to retain or attract key employees could have a material
adverse effect on our business and results of operations. Our operations depend,
to a great extent, upon the efforts of our CEO and President, Donald Lawson, who
conceived our strategic plan and who is substantially responsible for planning
and guiding our direction, and upon Mark Fitch, our Senior Vice President. We
also depend upon our ability to attract additional members to our management and
operations teams to support our expansion strategy. The loss of any of these key
employees would adversely affect our business. We have obtained a key employee
life insurance policy in the amount $1,000,000 on the life of Mr. Lawson. We had
fifty employees on December 31, 1999. Additional personnel will need to be hired
if we are able to successfully expand our operations. There can be no assurance
that we will be able to identify, attract and retain employees with skills and
experience necessary and relevant to the future operations of our business.
COMPETITION MAY ADVERSELY AFFECT OUR OPERATIONS AND FINANCIAL RESULTS.
The optical lens and telecommunication components markets are intensely
competitive and numerous companies offer products and services competitive to
those offered by us. Substantially all of these competitors have greater
financial and other resources than we do. We compete with manufacturers of
conventional spherical lens products and aspherical lens products, producers of
optical quality glass and other developers of gradient lens technology and
telecom product manufacturers. In the markets for conventional and aspheric
lenses, we are competing against, among others, established international
industry giants. Many of these companies also are primary customers for optical
components, and therefore have significant control over certain markets for our
products. We are also aware of other companies that are attempting to develop
radial gradient lens technology. There may also be others of which we are not
aware that are attempting to develop axial gradient lens technology similar to
our technology. There can be no assurance that existing or new competitors will
not develop technologies that are superior to or more commercially acceptable
than our existing and planned technology and products.
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WE HAVE LIMITED MARKETING AND SALES CAPABILITIES, AND MUST MAKE SALES IN A
FRAGMENTED MARKET.
Our operating results will depend to a large extent on our ability to
educate the various industries utilizing optical glass about the advantages of
GRADIUM and other optical materials to market products to the participants
within those industries. We currently have very limited marketing capabilities
and experience and will need to hire additional sales and marketing personnel,
develop additional sales and marketing programs and establish sales distribution
channels in order to achieve and sustain commercial sales of our products.
Although we have developed a marketing plan, there can be no assurance that the
plan will be implemented or, if implemented, will succeed in creating sufficient
levels of customer demand for our products. The markets for optical lenses and
telecommunication components are highly fragmented. Consequently, we will need
to identify and successfully target particular market segments in which we
believe we will have the most success. These efforts will require a substantial,
but unknown, amount of effort and resources.
The fragmented nature of the optical products market may impede our ability
to achieve commercial acceptance for our products. In addition, our success will
depend in great part on our ability to develop and implement a successful
marketing and sales program. There can be no assurance that any marketing and
sales efforts undertaken by us will be successful or will result in any
significant product sales.
WE ARE HIGHLY DEPENDENT ON OUR PATENTS AND PROPRIETARY TECHNOLOGY.
Our success will depend, in part, on our ability to obtain protection for
products and technologies under United States and foreign patent laws, to
preserve trade secrets, and to operate without infringing the proprietary rights
of others. There can be no assurance that patent applications relating to our
products or potential products will result in patents being issued, that any
issued patents will afford adequate protection or not be challenged,
invalidated, infringed or circumvented, or that any rights granted will afford
competitive advantages to us. Furthermore, there can be no assurance that others
have not independently developed, or will not independently develop, similar
products and/or technologies, duplicate any of our product or technologies, or,
if patents are issued to, or licensed by, us, design around such patents. There
can be no assurance that patents owned or licensed and issued in one
jurisdiction will also issue in any other jurisdiction. Furthermore, there can
be no assurance that we can adequately preserve proprietary technology and
processes that we maintain as trade secrets. If we are unable to develop and
adequately protect our proprietary technology and other assets, our business,
financial condition and results of operations will be materially adversely
affected.
OUR BUSINESS DEPENDS UPON THE EFFORTS OF THIRD PARTIES.
Our strategy for the research, development and commercialization of certain
products entails entering into various arrangements with corporate partners,
OEMs, licensees and others in order to generate product sales, license fees,
royalties and other funds adequate for product development. We may also rely on
9
<PAGE>
our collaborative partners to conduct research efforts, product testing and to
manufacture and market certain of our products. Although we believe that parties
to any such arrangements would have an economic motivation to succeed in
performing their contractual responsibilities, the amount and timing of
resources to be devoted to these activities may not be within our control. There
can also be no assurance that we will be successful in establishing any such
collaborative arrangements or that, if established, the parties to such
arrangements will assist us in commercializing products. We currently have
development agreements with a mechanical switch manufacturer and an endoscope
manufacturer pursuant to which we have developed prototypes of products for use
in each of those areas. However, there can be no assurance that such agreements
will progress to a production phase or, if production commences, that we will
receive significant revenues from these relationships. We have a non-exclusive
agreement with a catalog company to distribute certain of its products. We have
formalized relationships with eight foreign distributors to create markets for
GRADIUM in their respective countries. There can be no assurance that these
parties, or any future partners, will perform their obligations as expected or
that any revenue will be derived from such arrangements.
WE HAVE ONLY LIMITED MANUFACTURING CAPABILITIES.
We believe that our present manufacturing facilities, with the clean room
addition which was completed in October 1999, are sufficient for our planned
operations in fiscal 2000. We have acquired additional manufacturing space in
January 2000 to allow for expansion of our manufacturing capabilities. However,
we do not have any experience manufacturing products in quantities sufficient to
meet commercial demand. If we are unable to manufacture products in sufficient
quantities and in a timely manner to meet customer demand, our business,
financial condition and results of operations will be materially adversely
affected.
WE FACE PRODUCT LIABILITY RISKS.
The sale of our optical products will involve the inherent risk of product
liability claims by others. We do not currently maintain product liability
insurance coverage, although we do intend to procure such insurance in the
future. Product liability insurance is expensive, subject to various coverage
exclusions and may not be obtainable on terms acceptable to us. Moreover, the
amount and scope of any coverage may be inadequate to protect us in the event
that a product liability claim is successfully asserted.
WE WILL RECOGNIZE A SUBSTANTIAL CHARGE TO INCOME UPON CONVERSION OF OUR CLASS E
COMMON STOCK.
In the event any shares of the Class E Common Stock held by stockholders
who are officers, directors, employees or consultants of the Company reach
targets to enable conversion into shares of Class A Common Stock, we will record
compensation expense for financial reporting purposes during the period in which
the targets are reached and conversion appears probable. Such charge will equal
the fair market value of such shares on the date of release, which may be
substantial. Although the amount of compensation expense recognized will not
affect the total stockholders' equity, it may have a material negative effect on
the market price of our securities, particularly the shares of Class A Common
10
<PAGE>
Stock. Additionally, since Class E shares are not treated as outstanding for
purposes of earnings per share calculations, the increase in the number of
shares of Class A Common Stock upon conversion of any series of Class E Common
Stock may have a material adverse effect on our earnings per share.
OUR OPERATIONS MAY BE ADVERSELY AFFECTED BY PROBLEMS ASSOCIATED WITH THE YEAR
2000 ISSUE.
Some computer applications were originally designed to recognize calendar years
by their last two digits. As a result, calculations performed using these
truncated fields will not work properly with dates from the year 2000 and
beyond. This problem is commonly referred to as the "Year 2000 Issue". The
Company has not incurred any problems since January 1, 2000 either internally or
with third parties concerning Year 2000. The Company will continue to monitor
third parties with whom it has a material relationship throughout the remainder
of the first calendar quarter of 2000.
OUR STOCK PRICE IS VOLATILE.
Broad market fluctuations or fluctuations in our operations may adversely
affect the market price of our common stock. The market for our common stock is
volatile. The trading price of our common stock has been and will continue to be
subject to:
+ Volatility in the trading markets generally;
+ significant fluctuations in response to quarterly variations in
operating results;
+ announcements regarding our business or the business of our
competitors;
+ changes in prices of our or our competitors' products and services;
+ changes in product mix; and
+ changes in revenue and revenue growth rates for us as a whole or for
geographic areas, and other events or factors.
Statements or changes in opinions, ratings or earnings estimates made by
brokerage firms or industry analysts relating to the markets in which we operate
or expect to operate could have an adverse effect on the market price of our
common stock. In addition, the stock market as a whole has from time to time
experienced extreme price and volume fluctuations which have particularly
affected the market price for the securities of many small cap companies and
which often have been unrelated to the operating performance of these companies.
POTENTIAL CONTROL BY THE EXISTING MANAGEMENT AND SHAREHOLDERS.
If our management and shareholders act in concert, disposition of matters
submitted to shareholders or the election of the entire Board of Directors may
be hindered. The principal stockholders beneficially owned 12% of the total
combined voting power of all of the Common Stock outstanding at August 19, 1999.
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<PAGE>
SOME PROVISIONS IN OUR CHARTER DOCUMENTS AND BYLAWS MAY HAVE ANTI-TAKEOVER
EFFECTS.
Our Articles of Incorporation and Bylaws contain some provisions that could
have the effect of discouraging a prospective acquirer from making a tender
offer, or which may otherwise delay, defer or prevent a change in control.
ABSENCE OF DIVIDENDS TO SHAREHOLDERS.
Our Board has never declared a dividend on our common stock. We do not
anticipate paying dividends on the common stock in the foreseeable future. It is
anticipated that earnings, if any, will be reinvested in the expansion of our
business.
OUR WARRANTS AND OPTIONS MAY AFFECT OUR FUTURE FINANCING.
The existence of our outstanding Preferred Stock, options or warrants may
adversely affect the terms on which we can obtain additional financing. As of
December 31, 1999, there was outstanding:
+ 2,653,043 Class A Warrants to purchase an aggregate of 2,653,043
shares of Class A Common Stock and 2,653,043 Class B Warrants;
+ 1,951,845 Class B Warrants to purchase 1,951,845 shares of Class A
Common Stock;
+ the Unit Purchase Option to purchase an aggregate of 99,257 Units,
which consist of 99,257 Class A Common Stock, 99,257 Class A Warrants
to purchase an aggregate of 99,257 shares of Class A Common Stock and
99,257 Class B Warrants, and 99,257 Class B Warrants;
+ 58,267 shares of Class A Common Stock issuable upon exercise of Class
C and Class D Warrants;
+ 125,987 shares of Class A Common Stock issuable upon exercise of Class
E and Class F Warrants;
+ 41,987 shares of Class A Common Stock issuable upon exercise of Class
G and Class H Warrants;
+ 1,925,000 shares of Class A Common Stock reserved for issuance to the
selling shareholders upon conversion of the Series F Preferred stock
and exercise of the Class K and Class L Warrants;
12
<PAGE>
+ 281,250 shares of Class A Common Stock issuable upon exercise of the
Chairman's Warrant;
+ outstanding options to purchase an aggregate of 1,286,985 shares of
Class A Common Stock (which includes 71,102 options for which the
holder receives, upon exercise, 71,102 shares of Class A, 106,652
shares of Class E-1, 106,652 shares of Class E-2 and 71,102 shares of
Class E-3 Common Stock);
+ 913,015 shares of Class A Common Stock reserved for issuance pursuant
to future grants made under the Omnibus Incentive Plan and Directors
Stock Incentive Plan.
For the life of such options, warrants and Preferred Stock, the holders
will have the opportunity to profit from a rise in the price of the underlying
common stock, with a resulting dilution in the interest of other holders of
common stock upon exercise or conversion. Further, the option and warrant
holders can be expected to exercise their options and warrants at a time when we
would, in all likelihood, be able to obtain additional capital by an offering of
our unissued common stock on terms more favorable to us than those provided by
such options or warrants.
The eligibility of the foregoing shares to be sold to the public, whether
pursuant to Rule 144 or an effective registration statement, may have a material
adverse effect on the market value and trading price of the common stock.
WE HAVE AGREED TO CERTAIN LIMITATIONS UPON POTENTIAL LIABILITY OF OUR DIRECTORS.
Our Certificate of Incorporation provides that directors will not be
personally liable for monetary damages to LightPath or its stockholders for a
breach of fiduciary duty as a director, subject to limited exceptions. Although
such limitation of liability does not affect the availability of equitable
remedies such as injunctive relief or rescission, the presence of these
provisions in the Certificate of Incorporation could prevent the recovery of
monetary damages by LightPath or its stockholders.
THE LIQUIDITY OF OUR STOCK COULD BE SEVERELY REDUCED IF IT BECOMES CLASSIFIED AS
PENNY STOCK.
If our securities were delisted from Nasdaq, they could become subject to
Rule 15g-9 under the Exchange Act, which imposes additional sales practice
requirements on broker-dealers that sell such securities to persons other than
established customers and "accredited investors".
The Commission has adopted regulations which generally define a "penny
stock" to be any non-Nasdaq equity security that has a market price (as therein
defined) of less than $5.00 per share or with an exercise price of less than
$5.00 per share, subject to certain exceptions. For any transaction involving a
penny stock, unless exempt, the rules require substantial additional disclosure
obligations. The foregoing required penny stock restrictions will not apply to
13
<PAGE>
our securities so long as they continue to be listed on Nasdaq and have certain
price and volume information provided on a current and continuing basis or meet
certain minimum net tangible assets or average revenue criteria. There can be no
assurance that our securities will qualify for exemption from these
restrictions. In any event, even if our securities were exempt from such
restrictions, they would remain subject to Section 15(b)(6) of the Exchange Act,
which gives the Commission the authority to prohibit any person that is engaged
in unlawful conduct while participating in a distribution of a penny stock from
associating with a broker-dealer or participating in a distribution of a penny
stock, if the Commission finds that such a restriction would be in the public
interest.
If our securities were subject to the existing rules on penny stocks, the
market liquidity for our securities could be severely adversely affected.
WE MUST MAINTAIN COMPLIANCE WITH CERTAIN CRITERIA IN ORDER TO MAINTAIN LISTING
OF OUR SHARES ON THE NASDAQ MARKET.
The Units, Class A Common Stock and Class A and Class B Warrants are
currently traded on the Nasdaq SmallCap Market. Failure to meet the applicable
quantitative and/or qualitative maintenance requirements of Nasdaq could result
in our securities being delisted from Nasdaq, with the result that such
securities would trade on the OTC Bulletin Board or in the "pink sheets"
maintained by the National Quotation Bureau Incorporated. As a consequence of
such delisting, an investor could find it more difficult to dispose of or to
obtain accurate quotations as to the market value of our securities. Among other
consequences, delisting from Nasdaq may cause a decline in the stock price and
difficulty in obtaining future financing.
WE MAY NOT HAVE ENOUGH FUNDS AVAILABLE TO REDEEM OUTSTANDING SHARES OF PREFERRED
STOCK.
In the event of automatic conversion of the Series F Preferred Stock, three
years after issuance, or exercise of their accompanying Class K warrants in a
manner that would cause an undue dilution of its common stock, LightPath has the
right to redeem such preferred stock and warrants for cash. In addition, a
Liquidation Event, as defined in the applicable Certificate of Designation, may
require redemption of the Series F Preferred Stock for cash. There can be no
assurance that in either of the foregoing events we will have adequate cash to
effect such cash redemptions.
RISK THAT FORWARD-LOOKING STATEMENTS MAY NOT COME TRUE.
This prospectus and the documents incorporated herein by reference, contain
forward-looking statements that involve risks and uncertainties. We use words
such as "believe", "expect," "anticipate," "plan" or similar words to identify
forward-looking statements. Forward-looking statements are made based upon our
belief as of the date that such statements are made. These forward-looking
statements are based largely on our current expectations and are subject to a
number of risks and uncertainties, many of which are beyond our control. You
should not place undue reliance on these forward-looking statements, which apply
only as of the date of this prospectus. Our actual results could differ
materially from those anticipated in these forward-looking statements for many
reasons, including the risks faced by us described above and elsewhere in this
prospectus.
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<PAGE>
SECURITY OWNERSHIP OF PRINCIPAL STOCKHOLDERS AND MANAGEMENT
The Proxy Statement for the 1999 Annual Meeting contained information
concerning the number of shares included in the Voting Trust that Leslie
Danziger, former Chairwoman of the Board of Directors was entitled to vote. As
of September 16, 1999, Ms. Danziger is no longer the Chairwoman of the Board and
as a result the Voting Trust has dissolved by its terms. Information in the
proxy statement or any other documents incorporated by reference into this
prospectus concerning the Voting Trust is no longer applicable and all shares
previously subject to the voting trust are now held directly by their beneficial
owners, each of whom independently votes and has the power to dispose of such
shares.
SELLING SHAREHOLDERS
On August 4, 1997, we issued options to purchase 25,000 shares of Class A
Common Stock to RCG Capital Markets, Inc. pursuant to a Stock Option Agreement
of the same date. Each option entitles the holder to purchase one share of Class
A Common Stock at $8.00 per share at any time through August 4, 2007. This
Prospectus covers shares of Class A Common Stock that may be acquired by the
selling shareholders upon exercise of the options.
The following table provides information as of January 31, 2000, with
respect to the Class A Common Stock beneficially owned by each selling
shareholder. For purposes of the information set forth in this table we assume
that all of the 25,000 options are exercised. RCG Capital has a material
relationship with us. Information about this relationship is disclosed under
"Certain Relationships" below. We believe that RCG Capital has sole voting and
investment power with respect to the respective shares of Class A Common Stock
set forth opposite its name. The shares of Class A Common Stock offered by this
prospectus may be offered from time to time by RCG Capital or its nominees
Total Shares Class A Common Stock
Outstanding As Of January 31, 2000 8,672,581
<TABLE>
<CAPTION>
Number of Number of
Shares Shares
Beneficially Number of Beneficially Percent of Percent of All
Owned Prior to Shares being Owned After the Class A Common Classes of
the Offering Offered Offering Stock Common Stock
------------ ------- -------- ----- ------------
<S> <C> <C> <C> <C> <C>
RCG Capital
Markets Group, Inc. 25,000 25,000 0 * *
</TABLE>
* Represents beneficial ownership of less than 1%
15
<PAGE>
USE OF PROCEEDS
The selling shareholders will receive the net proceeds from the sale of its
shares of common stock. We will not receive any proceeds from these sales. We
will however receive proceeds from the exercise of the options. Each option
entitles the holder to purchase shares of common stock at a price per share of
$8.00. This purchase price is payable in cash or by surrendering a number of
shares of our common stock having a fair market value equal to the applicable
exercise price on the exercise date. If all of the options are exercised for
cash, we will receive up to $200,000.
CERTAIN RELATIONSHIPS
All of the options were issued to RCG Capital Markets Group, Inc. as
partial compensation for their services as the Company's Financial Relations
Consultant.
DETERMINATION OF OFFERING PRICE
The selling shareholders may use this prospectus from time to time to sell
their shares of common stock at a price determined by the shareholder making
such sale. The price at which the common stock is sold may be based on market
prices prevailing at the time of sale, at prices relating to such prevailing
market prices, or at negotiated prices.
PLAN OF DISTRIBUTION
The common stock may be sold from time to time by the selling shareholders,
or by pledgees, donees, transferees or other successors in interest. Such sales
may be made on one or more exchanges or in the over-the-counter market or
otherwise, at prices and at terms then prevailing or at prices related to the
then current market price, or in negotiated transactions. The common stock may
be sold in one or more of the following types of transactions:
(a) a block trade in which a selling shareholder will engage a
broker-dealer who will then attempt to sell the common stock, or position and
resell a portion of the block as principal to facilitate the transaction;
(b) purchases by a broker-dealer as principal and resale by such
broker-dealer for its account pursuant to this prospectus;
(c) an exchange distribution in accordance with the rules of such exchange;
and
(d) ordinary brokerage transactions and transactions in which the broker
solicits purchasers. In effecting sales, broker-dealers engaged by the selling
shareholders may arrange for other broker-dealers to participate in the resales.
In connection with distributions of the common stock or otherwise, the
selling shareholders may enter into hedging transactions with broker-dealers. In
connection with such transactions, broker-dealers may engage in short sales of
the common stock in the course of hedging the positions they assume with selling
16
<PAGE>
shareholders. The selling shareholders may also sell common stock short and
redeliver the common stock to close out such short positions. The selling
shareholders may also enter into option or other transactions with
broker-dealers that require the delivery to the broker-dealer of the common
stock, which the broker-dealer may resell or otherwise transfer pursuant to this
prospectus. The selling shareholders may also loan or pledge common stock to a
broker-dealer and the broker-dealer may sell the common stock so loaned or, upon
a default, the broker-dealer may effect sales of the pledged common stock
pursuant to this prospectus.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from the selling shareholders in amounts
to be negotiated in connection with the sale. Such broker-dealers and any other
participating broker-dealers may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales and any such
commission, discount or concession may be deemed to be underwriting discounts or
commissions under the Securities Act. In addition, any securities covered by
this prospectus which qualify for sale pursuant to Rule 144 may be sold in an
unregistered transaction under Rule 144 rather than pursuant to this prospectus.
RCG Capital is bearing all of the costs and expenses of registering under
the Securities Act the sale of the common stock offered by this prospectus.
Commissions and discounts, if any, attributable to the sales of the common stock
will be borne by the selling shareholders.
We have agreed to indemnify the selling shareholders against certain
liabilities in connection with the offering of the common stock, including
liabilities arising under the Securities Act. The selling shareholders may agree
to indemnify any broker-dealer or agent that participates in transactions
involving sales of the common stock against various liabilities, including
liabilities arising under the Securities Act.
In order to comply with the securities laws of various states, if
applicable, sales of the common stock made in those states will only be made
through registered or licensed brokers or dealers. In addition, some states do
not allow the securities to be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with by us and the
selling shareholders.
Under applicable rules and regulations of the Exchange Act, any person
engaged in the distribution of the common stock may not simultaneously engage in
market-making activities with respect to our common stock for a period of up to
five business days prior to the commencement of such distribution. In addition
to those restrictions, each selling shareholder will be subject to the Exchange
Act and the rules and regulations under the Exchange Act, including, Regulation
M and Rule 10b-7, which provisions may limit the timing of the purchases and
sales of our securities by the selling shareholders.
17
<PAGE>
DESCRIPTION OF SECURITIES
We have previously registered our Class A Common Stock under the Exchange
Act by filing a Form 8-A on January 13, 1996. Please refer to that registration
statement for a description of the rights, privileges and preferences of our
common stock.
LEGAL MATTERS
Certain legal matters have been passed upon for us by Squire, Sanders &
Dempsey L.L.P., Phoenix, Arizona.
EXPERTS
Our financial statements as of June 30, 1999 and 1998, and for the years
then ended, have been incorporated by reference herein, 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.
INTERESTS OF NAMED EXPERTS AND COUNSEL
On October 13, 1997, James L. Adler, Jr. was appointed to serve as a
director of LightPath until the 2000 annual meeting of shareholders. Mr. Adler
is a partner of the law firm of Squire, Sanders & Dempsey L.L.P., which has
issued an opinion as to the validity of the shares offered by this prospectus
and also provides legal services to us on a regular basis. Mr. Adler owns
options under the Directors Stock Option Plan to purchase 50,176 shares of Class
A Common Stock at exercise prices ranging from $2.84 to $9.81. As of January 31,
2000, these shares represented less than 1% of the total outstanding shares of
Class A Common Stock.
INDEMNIFICATION
Article TENTH of the Company's Certificate of Incorporation, as amended,
provides as follows:
TENTH: No director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that the foregoing clause shall not apply
to any liability of a director (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for any transaction from which the director derived an improper
personal benefit, or (iv) under Section 174 of the DGCL. 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.
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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, 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, the Securities Act, may be permitted to directors, officers and
controlling person of LightPath pursuant to the foregoing provisions, or
otherwise, we have been informed that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable.
19
<PAGE>
NO DEALER, SALES PERSON OR OTHER
PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS AND, IF LIGHTPATH TECHNOLOGIES, INC.
GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY UNDERWRITER. THIS
PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY OF THE SECURITIES 25,000 SHARES
OFFERED HEREBY BY ANYONE IN ANY CLASS A COMMON STOCK
JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO PROSPECTUS
OR TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION IN SUCH JURISDICTION.
NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THE INFORMATION
HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THAT
THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE SUCH
DATE.
TABLE OF CONTENTS
Page
----
Where You Can Find More
Information (ii)
Prospectus Summary 1
The Offering 4
Risk Factors 6
Security Ownership of Principal
Stockholders and Management 15
Selling Shareholders 15
Use of Proceeds 16
Certain Relationships 16
Determination of Offering Price 16
Plan of Distribution 16 February __, 2000
Description of Securities 18
Legal Matters 18
Experts 18
Interest of Named Experts
and Counsel 18
Indemnification 18
<PAGE>
PART II TO FORM S-3
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
It is estimated that the following expenses will be incurred in connection
with the proposed offering hereunder. All of such expenses will be borne by RCG
Capital:
Amount
---------
SEC Registration Fee............................................ $ 52.80
Legal fees and expenses......................................... $3,000.00(1)
Accounting fees and expenses.................................... $2,000.00(1)
Printing expenses............................................... $1,000.00(1)
---------
Total........................................................... $6,052.80
=========
(1) Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article TENTH of the Company's Certificate of Incorporation, as amended,
provides as follows:
TENTH: No director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that the foregoing clause shall not apply
to any liability of a director (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for any transaction from which the director derived an improper
personal benefit, or (iv) under Section 174 of the DGCL. 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, 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.
II-1
<PAGE>
ITEM 16. EXHIBITS.
Exhibit Page Number or
Number Description Method of Filing
- ------ ----------- ----------------
5 Opinion and Consent of Squire, Sanders & Dempsey LLP *
23.1 Consent of KPMG LLP *
23.2 Consent of Squire, Sanders & Dempsey LLP Included in
Exhibit 5
24 Powers of Attorney See signature page
- ----------
* Filed herewith.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes that:
(1) It will file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
(2) For purposes of determining any liability under the Securities Act, it
will treat each post-effective amendment as 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) It will file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
additional or changed material information on the plan of distribution.
(4) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15 hereof, 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 Securities 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 thereof 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 whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-2
<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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, there unto duly
authorized, in the City of Albuquerque, State of New Mexico, on February 22,
2000.
LIGHTPATH TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Donald Lawson
--------------------------------------
Donald Lawson, Chief Executive Officer
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, constitutes
and appoints each of Robert Ripp and Donald E. Lawson, 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 pre and post-effective amendments (including all subsequent registration
statements and amendments thereto filed pursuant to Rule 462(b)) to this Form
S-3 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 attorney-in-fact and agents, full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in person, hereby ratifying and confirming all that such attorney-in-fact
and agents 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 by the following persons in the capacities and on the dates stated.
Signature Title Date
--------- ----- ----
/s/ Robert Ripp Chairman of the Board February 22, 2000
- ---------------------------
Robert Ripp
/s/ Donald E. Lawson CEO, President and Treasurer February 22, 2000
- --------------------------- (Principal Executive, Financial
Donald E. Lawson and Accounting Officer)
/s/ James A. Adler, Jr. Director February 22, 2000
- ---------------------------
James A. Adler, Jr.
/s/ Louis Leeburg Director February 22, 2000
- ---------------------------
Louis Leeburg
/s/ Leslie A. Danziger Director February 22, 2000
- ---------------------------
Leslie A. Danziger
/s/ Katherine Dietze Director February 22, 2000
- ---------------------------
Katherine Dietze
/s/ James A. Wimbush Director February 22, 2000
- ---------------------------
James A. Wimbush
OPINION & CONSENT-SQUIRE SANDERS & DEMPSEY
Squire, Sanders & Dempsey L.L.P.
40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
Phone: (602) 528-4000
Facsimile: (602) 253-8129
February 22, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: LightPath Technologies, Inc.
Registration Statement on Form S-3
(Registration No. 333-______)
Ladies and Gentlemen:
This firm is counsel for LightPath Technologies, Inc., a Delaware
corporation (the "Company"). As such, we are familiar with the Certificate of
Incorporation, as amended, and Bylaws of the Company, as well as resolutions
adopted by its Board of Directors authorizing the issuance and sale of 25,000
shares of the Company's $.01 par value Class A Common Stock (the "Common
Stock"), issuable upon exercise of 25,000 outstanding options, which are the
subject of a Registration Statement on Form S-3 (the "Registration Statement")
under the Securities Act of 1933, as amended. We have also examined all such
instruments, documents and records, and undertaken such further inquiry, as we
have deemed relevant and necessary for the basis of our opinion hereinafter
expressed. In such examination, we have assumed the genuineness and authority of
all signatures and the authenticity of all documents submitted to us as
originals and the conformity to the originals of all documents submitted to us
as copies. In giving our opinion hereinafter expressed, we have assumed further
that the Company has properly reserved the number of authorized and unissued
shares of Common Stock required to be issued upon the exercise of the
outstanding options and that as of the date of such issuance the Company
continues to exist. Our opinion is based solely on the General Corporation Law
of the State of Delaware.
Based upon the foregoing, it is our opinion that, upon receipt by the
Company of the consideration provided for upon exercise of the options, the
25,000 shares of Common Stock, when issued in compliance with the Stock Option
Agreement, will be validly issued, fully paid and nonassessable.
We acknowledge that we are referred to under the heading "Legal Matters" in
the Prospectus which is part of 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 Exhibit 5.1 to the Registration Statement and with the
state regulatory agencies in such states as may require such filing in
connection with the registration of the Common Stock for offer and sale in such
states.
Respectfully submitted,
/s/ SQUIRE, SANDERS & DEMPSEY L.L.P.
CONSENT OF KPMG LLP
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
February 22, 2000
