As filed with the Securities and Exchange Commission on October 16, 2000
Registration No. 333-_______
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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)
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<S> <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
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:
Joseph Crabb, Esq.
Squire, Sanders & Dempsey L.L.P
40 North Central Avenue
Phoenix, AZ 85004
Telephone: (602) 528-4000
Facsimile: (602) 253-8129
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, 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
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Proposed Maximum
Title of Securities Amount to be Aggregate Price Proposed
to be Registered Registered per Unit* Offering Price Registration Fee
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Class A common stock,
$0.01 par value 829,490 $35.1875 $29,187,679 $7,705.55
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* 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 (c)
under the Securities Act, the average of the high and low prices for the
Common Stock as reported on the Nasdaq National Market on October 12, 2000.
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 PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. THE SELLING SHAREHOLDER MAY NOT SELL THESE SECURITIES PURSUANT TO THIS
REGISTRATION STATEMENT UNTIL THIS 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 OCTOBER 16, 2000
PROSPECTUS
829,490 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 829,490 shares of Class A Common Stock being sold are being offered
and sold by certain of our shareholders on a delayed or continuous basis,
pursuant to the exercise of registration rights. We have agreed to bear all the
expenses of registration of the shares in this Prospectus.
Our Class A Common Stock is traded in the over-the counter market through the
Nasdaq National Market system under the symbol LPTH. On October 9, 2000, the
closing price of the Class A Common Stock on the Nasdaq National Market system
was $40 per share.
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 7.
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 October 16, 2000.
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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 for the fiscal year ended June 30, 2000;
+ our proxy statement relating to the 2000 Annual Meeting;
+ our current report on Form 8-K filed October 3, 2000;
+ our current report on Form 8-K/A-1 filed October 11, 2000; and
+ the description of our Class A Common Stock included in our registration
statement on Form 8-A filed on January 13, 1996.
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
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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 PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. THE SELLING SHAREHOLDER MAY NOT SELL THESE SECURITIES PURSUANT TO THIS
REGISTRATION STATEMENT UNTIL THIS REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS DECLARED EFFECTIVE. THIS PRELIMINARY
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 is the manufacturer of families of high-performance fiber-optic
collimator and isolator products, GRADIUM(R) glass lenses and utilizes other
optical materials to produce products that manipulate light. We also perform
research and development for optical solutions in the fiber telecommunications
and traditional optics markets. On April 14, 2000, we acquired Horizon
Photonics, Inc. ("Horizon"), a California corporation originally founded in July
1997. Horizon is an emerging leader in the automated production of passive
optical components for the telecommunications and data communications markets.
Horizon manufactures isolator products at their Walnut, California facility.
We manufacture and sell three types of products: (i) GRADIUM glass
products, (ii) collimators (SMF Assembly), and (iii) isolators. 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. Collimators are assemblies that are used to straighten and make
parallel diverging light as it exits a fiber. An isolator is used to prevent the
backward propagation of optical signals that can degrade transmitter and
amplifier performance. Collimators and isolators and other optical components
are used throughout fiber optic systems including wavelength division
multiplexing ("WDM") equipment. WDM systems are used by the telecommunications
industry to increase bandwidth by combining multiple light streams from
individual transmissions onto a single optical fiber. We are also planning to
develop other products related to the optoelectronics and telecommunications
industry through licenses and other relationships with other manufacturers.
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 and 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.
While we believe that other researchers have sought to automate production of
passive optical components and to produce optical quality lens material with the
properties of GRADIUM glass, we are not aware of any other person or firm that
has developed a repeatable manufacturing process comparable to our abilities or
with the ability to produce such material on a prescribable basis.
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TO WHAT INDUSTRIES ARE LIGHTPATH'S PRODUCTS BEING MARKETED? During 1998, we
organized 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. The
telecom/datacom networks are facing explosive growth. The dramatic rise of the
Internet, office automation, videoconferencing, local and wide area networking,
and remote access telecommunications has fueled the demand for more and more
network capacity in both long-haul telecommunications and cable television
networks. Prior to 1998, we targeted various optoelectronic industry market
niches as potential purchasers of our GRADIUM glass products. During 1998, we
began the development of products for the emerging optoelectronics markets,
specifically in the areas of fiber telecommunications. With our resolution of
packaging and alignment issues we demonstrated our first passive optoelectronic
product, the SMF Assembly, in February 1998. This product is manufactured with
automated production techniques we have developed which utilize laser fusion and
fiber attachment. During 1999 and 2000, we have expanded this product line,
demonstrating to the telecommunication optical components industry that we can
provide low cost products and provide solutions to meet their telecom-related
collimator needs.
The demand for increased bandwidth in fiber-optic networks has led to the
widespread use of a once-theoretical method for transmitting multiple signals at
slightly different wavelengths through a single fiber to achieve efficient use
of fiber capacity. This technique, known as wavelength division multiplexing, or
WDM, requires separate source lasers transmitting slightly different wavelengths
for each signal or "channel" and more complex modulators and optical amplifiers
to control and amplify the signal in the network. WDM systems, originally
developed for eight separate channels in 1996, are currently being designed to
carry as many as 128 separate channels with 0.4 of a nanometer in
differentiation between wavelengths. In theory, a single pair of optical fibers
can carry more than 10 terabits of information per second, which is roughly
equivalent to 156 million voice channels or 500,000 simultaneous two-way HDTV
channels. Through our wholly owned subsidiary Horizon and our affiliate,
LightChip, we have positioned ourselves with products that are used within WDM
systems.
With our April 14, 2000 acquisition of Horizon, we acquired an emerging
leader in the automated production of passive optical components for the
telecommunications and data communications markets. Horizon believes its primary
strength is the design of optical subassemblies for automation. Horizon's team
has a comprehensive background in the field of fiber optics, taking research
efforts "off the bench" and into manufacturing. Drawing upon years of experience
in automation, optoelectronic package design and testing, and a multitude of
technical disciplines, Horizon has demonstrated novel solutions for today's WDM
design and processing challenges. By targeting product families and creating
common platforms for each, Horizon can rapidly tailor variations within a
family, as the customer demands, and without major process or tooling changes.
This philosophy is evident in their proprietary micro-fixture design and
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automated manufacturing process. This platform allows robots to mount
micro-optics in small transferable fixtures that can be processed at various
levels and converted into a variety of finished products. Horizon believes it
has a competitive advantage for a certain segment of OEM business, especially as
it relates to isolator products, since its proprietary platform allows Horizon
to produce unique designs at competitive prices in a flexible, automated
process. For the year ended June 30, 2000, the telecom products line represented
approximately 66% of our product sales.
We believe that GRADIUM glass and our other optical materials can
potentially be marketed for use in many optics and optoelectronics products. 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 sold their precision optics division to Linos AG, a pioneer in the
filed of photonics, in June 2000. We believe our agreement and relationships
will continue to grow under the Linos AG/Rodenstock alliance. We also have
established relationships with eight additional foreign distributors. For the
year ended June 30, 2000, the traditional optics product line represented
approximately 34% our of product sales.
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. 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 due to the
number of potential customer inquiries into the ability of GRADIUM glass to
solve optoelectronic problems, specifically in the areas of fiber
telecommunications. In 1998, the resolution of packaging and alignment issues
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along with advances made by LightChip with WDM equipment, led us to develop a
strategy to enter the telecom components market. This strategy is built around
automated production of the telcom components using laser fusion and fiber
attachment techniques we have developed. During 1998, we organized internally
and realigned our marketing efforts with the purpose of expanding our focus to
include the optoelectronics and fiber telecommunications markets in addition to
the traditional optics market. Our SMF Assembly offers high quality performance
in the areas of back reflection and insertion loss. It is also more compact and
we believe it can be manufactured at a significantly lower cost than the
competitive products currently available in commercial quantities. The SMF
Assembly is a key element in all fiber optic systems, including WDM equipment.
The SMF Assembly straightens and makes parallel, diverging light as it exits a
fiber. Our newly designed SMF Assembly is approximately 50-60% smaller than the
existing industry collimator, provides superior performance in back reflection
and insertion loss, and can withstand 10 watts of optical power. This entry
level product currently used by the telecommunications industry, prevents light
from diverging and shepherds it into the next piece of equipment or fiber.
The current focus of our development efforts has been to develop new
products based on our optical and automation platforms in the areas of
fiberoptic opto-mechanical switches, isolators, multiplexers, interconnects and
cross-connects for use in the telecommunications field as well as new GRADIUM
glass materials to be used in various telecom applications. In addition, we
utilize other optical materials and specialized optical packaging concepts to
manipulate light and perform research and development for optical solutions in
the fiber telecommunications and traditional optics markets.
As of June 30, 2000, LightPath has been issued twenty-two 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. We have most recently developed a process
utilizing high powered lasers for fusion, splicing and polishing of optical
material to include optical fiber. We were issued a patent for this process in
fiscal year 2000. Our original process patent is for producing an optical
quality material, GRADIUM glass, with an "axial" gradient refractive index
(i.e., the index gradient runs parallel to the optical lens axis, rather than
perpendicular or "radial"). The GRADIUM glass designated curve is achieved by
the controlled combination of multiple glass molecule densities. We have
developed a set of proprietary software design tools so that the light upon
leaving the glass can be precisely modeled. GRADIUM glass lenses can be produced
across a large diameter range (currently 1mm-100mm). Growth in our manufacturing
capabilities has led to improved yield and automation, advancing our goal of
producing competitively priced optoelectronic and GRADIUM glass products.
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.
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THE OFFERING
Securities Offered by the
Selling Shareholders ............... A maximum of 829,490 shares of
Class A Common Stock are covered by
this prospectus. These shares are
being offered consists of the
following:
822,737 shares of Class A Common
Stock issued to former shareholders
of Geltech, Inc. ("Geltech") in
connection with LightPath's
acquisition of Geltech; and
6,753 shares of Class A Common
Stock issuable upon exercise of a
warrant issued to a former
warrantholder of Geltech.
Common Stock Outstanding as of June 30, 2000
Class A Common Stock 18,136,254 shares(1)(3)
Class E-1, E-2 and E-3 Common Stock 4,022,100 shares(2)
Use of Proceeds ..................... We will not receive any of the
proceeds of sales of common stock
by the selling shareholders but we
will receive up to $171,000 from
the exercise, if any, of warrants
by the selling shareholders.
Risk Factors ........................ The shares of common stock offered
hereby involve a high degree of
risk. See "Risk Factors" on page 7.
Nasdaq National Market Symbol ....... Class A Common Stock - "LPTH"
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(1) Does not include shares underlying options outstanding at June 30, 2000 to
purchase 3,199,526 shares of Class A Common Stock which are exercisable at
option exercise prices ranging from $.63 to $51.56 per share and
approximately 167,000 shares of Class A Common Stock reserved at June 30,
2000 for issuance upon future grants of options under LightPath's stock
option plans.
(2) Each share of outstanding Class E-1, Class E-2 and Class E-3 Common Stock,
collectively referred to as the Class E shares may be redeemed by LightPath
on and after September 30, 2000 for a nominal amount as certain earnings
levels were not achieved prior to June 30, 2000.
(3) Does not include an aggregate of 1,549,846 shares of Class A Common Stock
consisting of (i) 348,127 shares of Class A Common Stock issuable upon
exercise of private placement and other warrants; (ii) 370,260 shares of
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Class A Common Stock issuable upon conversion of the 153 remaining shares
of Series F Preferred Stock and (iii) 822,737 shares of Class A Common
Stock issued to the former shareholders of GELTECH, 1,969 shares of Class A
Common Stock underlying options issued to employees of GELTECH as of the
closing of the acquisition of GELTECH and 6,753 shares of Class A Common
Stock issuable upon exercise of a warrant to a former GELTECH
warrantholder.
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 operations, 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 7 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 and sales from our
acquisition of Horizon in April 2000, 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 new products, 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 increase, our
operations will ever be profitable.
WE MAY NEED ADDITIONAL FUTURE FINANCING IN ORDER TO FUND OUR OPERATIONS AND
PLANS FOR GROWTH.
There can be no assurance that the Company will generate sufficient
revenues to fund its future operations and 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. We may need to obtain
additional financing in the future. 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 could be forced to
cease or substantially reduce operations. Any additional equity financing may be
dilutive to shareholders, 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.
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WE MAY HAVE ADVERSE IMPACT FROM ACQUISTIONS.
Our strategy includes the potential acquisition of complimentary
businesses, and integration of additional products, technologies and personnel.
We have limited experience in acquiring outside businesses. Acquisition of
businesses requires substantial time and attention of management personnel and
may require additional equity or debt financing. There can be no assurance that
we will be successful in identifying, consummating or integrating strategic
acquisitions.
Integration of newly established or acquired business can be disruptive.
There can be no assurance that we will be able to integrate such companies into
our business successfully. Financial consequences of our acquisitions may
include potentially dilutive issuances of equity securities; large one-time
expenses; higher fixed expenses which require a higher level of revenues to
maintain operating profits; the incurrence of debt and contingent liabilities;
and amortization expenses related to goodwill and other intangible assets.
OUR PRODUCTS ARE AT AN EARLY STAGE OF DEVELOPMENT AND MAY NOT ACHIEVE MARKET
ACCEPTANCE.
Our current line of GRADIUM products have not generated sufficient revenues
to sustain operations and our telecommunications products are still in the
introductory phase. Horizon's isolator sales entered the commercial production
phase in April 2000. 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. Through June 1996, our primary activities were basic research and
development of glass material properties.
OUR PRODUCTS HAVE NOT BEEN DEMONSTRATED TO BE COMMERCIALLY SUCCESSFUL.
Collimator products have not yet achieved broad commercial acceptance.
Isolator sales entered the commercial production phase in April 2000. 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. 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
for all our product lines and have limited financial resources. We may be unable
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to accomplish any one or more of the foregoing to the extent necessary to
develop market acceptance of our products.
The traditional optics have been accepted commercially; however, their
benefits are not widely known. In order to persuade potential customers to
purchase GRADIUM products, we will need to overcome industry resistance to, and
suspicion of, gradient lens 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. 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 Senior Vice Presidents Mark Fitch and Donna
Bogue. 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 approximately 125 employees on June 30, 2000. 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. The telecommunications marketplace is
renowned for its product quality and reliability demands. Every item must pass
rigorous testing before being designed into devices and systems. We must
establish a reputation as a quality supplier. The products must perform as
claimed so that the customer will not need to test after the initial
qualification, and we must be open to continuous improvement of our products and
processes. If we can pass these tests we believe we can become a primary or
second source supplier to the industry. However, this industry is subject to,
among other risks, intense competition and rapidly changing technology, and
there can be no assurances as to our ability to anticipate and respond to the
demands and competitive aspects of this industry
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 as well as telecom product manufacturers.
In the both the optical lens and telecommunications components markets, we are
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competing against, among others, established international industry giants. Many
of these companies also are primary customers for optical and telecommunication
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 technologies and products.
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 telecommunication components and
optical glass about the advantages of our products to market products to the
participants within those industries. We currently have very limited marketing
capabilities and experience. In fiscal 2000 we hired additional sales and
marketing personnel to 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 OUR 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 products 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
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<PAGE>
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
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
additions which were completed in October 1999 and June 2000, along with the
manufacturing stations which were completed in August 2000, are sufficient for
our planned operations in fiscal 2001. However, we do not have substantial
experience manufacturing products in quantities sufficient to meet potential
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.
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<PAGE>
OUR STOCK PRICE IS VOLATILE.
Broad market fluctuations or fluctuations in our operations may adversely
affect the market price of our Class A Common Stock. The market for our Class A
Common Stock is volatile. The trading price of our Class A Common Stock has been
and will continue to be subject to:
+ volatility in the trading markets generally and in our particular
market segment;
+ 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;
+ 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
Class A Common Stock. In addition, the stock market as a whole, as well as our
particular market segment, have from time to time experienced extreme price and
volume fluctuations which have particularly affected the market price for the
securities of many companies and which often have been unrelated to the
operating performance of these companies.
OWNERSHIP BY THE EXISTING MANAGEMENT.
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. We estimate that the principal shareholders beneficially owned
approximately 14.4% of the Class A Common Stock outstanding as of August 7,
2000.
SOME PROVISIONS IN OUR CHARTER DOCUMENTS AND BYLAWS MAY HAVE ANTI-TAKEOVER
EFFECTS.
Our Certificate 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 Class A Common Stock. We do
not anticipate paying dividends on the Class A Common Stock in the foreseeable
future. It is anticipated that earnings, if any, will be reinvested in the
expansion of our business.
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<PAGE>
OUR CONVERTIBLE PREFERRED STOCK, WARRANTS AND OPTIONS MAY AFFECT OUR FUTURE
FINANCING.
The existence of our outstanding Convertible Preferred Stock, options or
warrants may adversely affect the terms on which we can obtain additional
financing. As of June 30, 2000, there were outstanding:
+ warrants issued in private placement and other transactions pursuant
to which 348,127 shares of Class A Common Stock are issuable;
+ 153 shares of Series F Convertible Preferred Stock, $.01 par value per
share, pursuant to which 370,260 shares of Class A Common Stock are
reserved for issuance to the selling shareholders upon conversion of
the Series F Convertible Preferred Stock;
+ outstanding options to purchase an aggregate of 3,199,526 shares of
Class A Common Stock;
In addition, approximately 167,000 shares of Class A Common Stock were
reserved as of June 30, 2000 for issuance pursuant to future grants to be made
under the Omnibus Incentive Plan and Directors Stock Incentive Plan. Options to
acquire approximately 1,969 shares of Class A Common Stock were exchanged for
prior options to acquire shares of Geltech held by employees of Geltech as of
the September 20, 2000 closing and 6,753 shares of Class A Common Stock are
issuable upon exercise of a warrant to a former Geltech warrantholder.
For the life of such options, warrants and Convertible 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 an effective registration statement, Rule 144 or an exemption from the
registration requirements may have a material adverse effect on the market value
and trading price of the Class A 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 shareholders 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
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provisions in the Certificate of Incorporation could prevent the recovery of
monetary damages by LightPath or its shareholders.
WE MUST MAINTAIN COMPLIANCE WITH CERTAIN CRITERIA IN ORDER TO MAINTAIN LISTING
OF OUR SHARES ON THE NASDAQ MARKET.
The Company's shares of Class A Common Stock are currently traded on the Nasdaq
National Market. Failure to meet the applicable quantitative and/or qualitative
maintenance requirements of Nasdaq could result in our securities being delisted
from the Nasdaq National Market. If delisted from the Nasdaq National Market,
our securities may be eligible for trading on the Nasdaq SmallCap Market, the
OTC Bulletin Board or on other over-the-counter markets, although there can be
no assurance that our securities will be eligible for trading on any alternative
exchanges or markets. 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 LightPath has the right to redeem such preferred stock 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 we will have adequate cash to effect such cash
redemptions in the future.
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 shareholders who are
officers, directors, employees or consultants of the Company converted into
shares of Class A Common Stock, we will record compensation expense for
financial reporting purposes during the period conversion appears probable.
These conversion rights expired on September 30, 2000 based on the operating
results of the Company for the year ended June 30, 2000. Our management believes
the conversion rights have not been met and that, as a result, the Class E
Common Stock will be subject to redemption for a nominal amount. However, we are
involved in litigation regarding the Class E Common Stock, the outcome of which
cannot be determined at this time. Any adverse determination in such litigation,
including any determination resulting in a conversion of the Class E Common
Stock, could have a material adverse effect on the market price of the Class A
Common Stock.
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<PAGE>
LIGHTPATH IS INVOLVED IN LITIGATION REGARDING ITS CLASS E COMMON STOCK, AND AN
ADVERSE DETERMINATION COULD HAVE A MATERIAL ADVERSE IMPACT ON LIGHPATH.
LightPath is currently involved in litigation in Delaware and Texas
regarding its Class E Common Stock. The Delaware litigation seeks a declaratory
judgment with respect to (among other things) LightPath's right to redeem its
Class E Common Stock on September 30, 2000 for $.0001 per share. The Texas
litigation was filed by small group of holders of Class E Common Stock and, in
essence, makes various allegations regarding the circumstances surrounding the
issuance of the Class E Common Stock and seeks damages based upon those
allegations. Although LightPath management believes the allegations underlying
the Texas litigation are without merit, LightPath is unable to predict the
results of such litigation. An adverse determination in the Texas litigation,
the Delaware litigation or both could have a material adverse impact on
LightPath.
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>
SELLING SHAREHOLDERS
On August 9, 2000, pursuant to a Merger Agreement, we agreed to issue
822,737 shares of Class A Common Stock in connection with our acquisition of
Geltech, Inc. ("Geltech"). The number of shares of Class A Common Stock issued
to the former Geltech shareholders was subject to closing adjustment based on
the trading price of our Class A Common Stock during the period between the
signing of the First Amended Merger Agreement and the acquisition closing date.
On September 20, 2000, the closing occurred with no changes to the number of
shares of Class A Common Stock issued. This Prospectus covers the 822,737 shares
of Class A Common Stock that were issued under the terms of the Merger Agreement
and 6,753 shares of Class A Common Stock issuable upon exercise of a warrant
which was issued to a former Geltech warrantholder..
The warrant entitles the holder to purchase 6,753 shares of Class A Common
Stock at $25.27 per share at any time through June 25, 2004.
The following table provides information as of September 20, 2000, with
respect to the Class A Common Stock beneficially owned by each selling
shareholder after giving effect to the issuance of shares for the Geltech
acquisition. For purposes of the information set forth in this table, the number
of shares beneficially owned includes shares issuable upon the exercise of stock
options that are vested on September 20, 2000 or within sixty days thereafter.
TOTAL SHARES CLASS A COMMON STOCK
OUTSTANDING AS OF SEPTEMBER 20, 2000: 19,126,429
<TABLE>
<CAPTION>
Beneficially Owned
After the Offering
-------------------------
Number of Shares Percent of
Beneficially Owned Number of Class A
Prior to the Shares being Number Common
Offering (1) Offered of Shares Stock (7)
------------ ------- --------- ---------
<S> <C> <C> <C> <C>
Gryphon Ventures I, Limited
Partnership 92,797 92,797 0 *
Gryphon Ventures II, Limited
Partnership 170,409 170,409 0 *
Gryphon Management Company 1,126 1,126 0 *
Rebuiding Service, Inc. 13,912 13,912 0 *
Sierra Precision Optics, Inc. 6,564 6,564 0 *
University of FL Research
Foundation Inc. 2,883 2,883 0 *
Venture First II L.P. 131,879 131,879 0 *
Washington Resources Group, Inc. 3,691 3,691 0 *
AMT Capital 6,753(2) 6,753(2) 0 *
Aikman, William 43,820 43,820 0 *
Barber, Dr. James L. 1,347 1,347 0 *
Biagi, John & Karen 2,431 2,431 0 *
Chapman Jr., William F. 97 97 0 *
Davis, Joseph 1,651 1,651 0 *
Fitch, Mark 41,009(3) 8,509(3) 32,500 *
Hench, Larry 26,721 26,721 0 *
Wilson-Hench, June 3,390 3,390 0 *
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Beneficially Owned
After the Offering
-------------------------
Number of Shares Percent of
Beneficially Owned Number of Class A
Prior to the Shares being Number Common
Offering (1) Offered of Shares Stock (7)
------------ ------- --------- ---------
<S> <C> <C> <C> <C>
Hermann, James G. 2,926 2,926 0 *
Pierson, Penelope, P. 2,829 2,829 0 *
Hunt, Peter, B. 4,133 4,133 0 *
LeSage, Dennis 477 477 0 *
Lurier, Edward 1,126 1,126 0 *
Mason, Ramond K. 4,195 4,195 0 *
V.K. Mason Trust 155,501 155,501 0 *
Mason Moody, Mary 3,548 3,548 0 *
McMurchy, Donald A. 6,400 6,400 0 *
Moreno, Lorraine T. 122 122 0 *
Moyer, Ernest H. 3,302 3,302 0 *
Moyer, Paula 1,651 1,651 0 *
Oganesoff, Eric 103 103 0 *
Ruffin, Ann M. 7,065 7,065 0 *
Ruffin, William C. 15,330(4) 15,087 243(4) *
(Ruffin) Wachovia IRA 2,431 2,431 0 *
Sampson, John & Ann 1,216 1,216 0 *
Schultz, Peter & Mary Ann 12,253 12,253 0 *
Shimp, Jr., Harry B. 12,800 12,800 0 *
Wolf, IRA, Wayne A. 486 486 0 *
Wright, H.P. 4,862 4,862 0 *
Howell, Layne R. 914 914 0 *
Moreshead, William 2,180(5) 1,256 924(5) *
Nogues, Jean-Luc 34,142 34,142 0 *
Zhu, Bing-Fu 1,603(6) 1,117 486(6) *
Bernacki, Bruce 578 578 0 *
Brailsford, Anji 58 58 0 *
Childress, Todd 21,886 21,886 0 *
Darr, Larry 243 243 0 *
Myers, Robert 202 202 0 *
Patton, Edward 2,167 2,167 0 *
Peters, Jason 97 97 0 *
Schrader, Al 5,470 5,470 0 *
Thomas, Julie 867 867 0 *
-------- ---
Total 829,490 *
</TABLE>
----------
* Represents beneficial ownership of less than 1%
1) Except as otherwise noted, and subject to community property laws, where
applicable, each person named in the table has sole voting power and
investment power with respect to all shares shown as beneficially owned.
2) Includes 6,753 shares issuable upon the exercise of a Warrant.
3) Mr. Fitch is an employee of LightPath and a former employee of Geltech.
Does not include 102,500 shares issuable upon the exercise of options to
purchase Class A Common Stock that are not vested.
4) Includes 243 shares issuable upon the exercise of options to purchase Class
A Common Stock which vested on September 20, 2000.
5) Includes 924 shares issuable upon the exercise of options to purchase Class
A Common Stock which vested on September 20, 2000.
6) Includes 486 shares issuable upon the exercise of options to purchase Class
A Common Stock which vested on September 20, 2000.
7) The percentage interest of each selling shareholder is based on the
beneficial ownership of that selling shareholder divided by the sum of the
current outstanding shares of Class A Common Stock plus the additional
shares, if any, which would be issued to that selling shareholder (but not
any other selling shareholder) after the Merger or exercising Warrants or
other right in the future.
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<PAGE>
USE OF PROCEEDS
Each of the selling shareholders will receive the net proceeds from the
sale of its shares of common stock. LightPath will not receive any proceeds from
these sales. We will however receive proceeds from the exercise of the warrant.
If the warrant is exercised in full for cash, we will receive gross proceeds of
approximately $171,000.
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;
(d) ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
(e) any combination of the foregoing, or by any other legally available
means. 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
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
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<PAGE>
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.
LightPath will bear 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.
LightPath has 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.
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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
The financial statements of LightPath Technologies, Inc. as of June 30,
2000 and 1999, and for the years then ended, have been incorporated by reference
herein and in the registration statement, 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 financial statements of GELTECH, Inc. as of December 31, 1999 and for
the year then ended, appearing in LightPath Technologies, Inc.'s Current Report
on Form 8-K/A-1, dated October 11, 2000, have been audited by Ernst & Young LLP,
independent certified public accountants, as set forth in their report therein
and incorporated herein by reference. Such financial statements referred to
above are incorporated herein by reference in reliance upon such report given
upon the authority of such firm as experts in accounting and auditing.
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 holds
options under the Directors Stock Option Plan to purchase 40,176 shares of Class
A Common Stock at exercise prices ranging from $2.84 to $9.81. As of September
30, 2000, these shares represented less than 1% of the total outstanding shares
of Class A Common Stock.
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<PAGE>
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 shareholders 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 shareholders, (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.
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.
21
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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 OFFERED HEREBY BY ANYONE 829,490 SHARES
IN ANY JURISDICTION IN WHICH SUCH OFFER CLASS A COMMON STOCK
OR SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO
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 PROSPECTUS
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 5
Risk Factors 7
Selling Shareholders 16
Use of Proceeds 18
Determination of Offering Price 18
Plan of Distribution 18
Description of Securities 20
Legal Matters 20
Experts 20
Interest of Named Experts
and Counsel 20 October 16, 2000
Indemnification 21
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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
LightPath:
Amount
------
SEC Registration Fee.............................. $ 7,705.55
Legal fees and expenses........................... $ 15,000.00(1)
Accounting fees and expenses...................... $ 15,000.00(1)
Printing expenses................................. $ 1,000.00(1)
-----------
Total......................................... $ 38,705.55
===========
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(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 shareholders 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 shareholders, (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.
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ITEM 16. EXHIBITS.
Exhibit Page Number or
Number Description Method of Filing
------ ----------- ----------------
5 Opinion and Consent of Squire, Sanders & Dempsey LLP *
2.1 Merger Agreement, dated August 9, 2000 by and among
the Registrant, Geltech Inc. and LPI Two Merger Corp. 1
2.2 First Amendment to Merger Agreement, dated September 20,
2000 by and among the Registrant, Geltech Inc. and LPI
Two Merger Corp. 1
23.1 Consent of KPMG LLP *
23.2 Consent of Ernst & Young LLP *
23.3 Consent of Squire, Sanders & Dempsey LLP Included in
Exhibit 5
24 Powers of Attorney See signature page
------------
* Filed herewith.
1) Filed on Form 8-K dated October 3, 2000.
ITEM 17. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
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(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
D. 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 foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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 of the Registrant
in the successful defense of any action, suit, or proceeding) is asserted by
such director, officer, or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question 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.
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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 October 12,
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 October 12, 2000
--------------------------
Robert Ripp
/s/ Donald E. Lawson CEO, President and Treasurer
-------------------------- (Principal Executive, Financial
Donald E. Lawson and Accounting Officer) October 12, 2000
/s/ Donna R. Bogue CFO and Treasurer (Principal
-------------------------- Financial and Accounting Officer) October 12, 2000
Donna R. Bogue
/s/ James L. Adler, Jr. Director October 12, 2000
--------------------------
James L. Adler, Jr.
/s/ Louis Leeburg Director October 12, 2000
--------------------------
Louis Leeburg
/s/ Leslie A. Danziger Director October 12, 2000
--------------------------
Leslie A. Danziger
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