As filed with the Securities and Exchange
Commission on February 14, 2018
Registration No. 333-_________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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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Delaware
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3674
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86-0708398
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification No.)
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2603 Challenger Tech Court, 100
Orlando, Florida 32826
Telephone: (407) 382-4003
(Address, including zip code, and telephone
number, including area code, of Registrant’s principal executive offices)
J. JAMES GAYNOR, PRESIDENT & CHIEF EXECUTIVE
OFFICER
LightPath Technologies, Inc.
2603 Challenger Tech Court, Suite 100
Orlando, Florida 32826
Telephone: (407) 382-4003
(Name, address, including zip code,
and telephone number, including area code, of agent for service)
Copies to:
Jeffrey E. Decker, Esq.
Alissa K. Lugo, Esq.
Baker & Hostetler LLP
200 South Orange Avenue, Suite 2300
Orlando, Florida 32801
Telephone: (407) 649-4000
Approximate date of commencement of
proposed sale to the public:
From time to time 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. ☒
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ☐
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 this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box: ☐
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box: ☐
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth
company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting
company,” and “emerging growth company” in Rule 12b-2 of the Securities Exchange Act.
Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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☐ (Do not check if a smaller reporting company)
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Smaller reporting company
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☒
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Emerging Growth company
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act: ☐
CALCULATION OF REGISTRATION FEE
Title
of Each Class of
Securities to be Registered
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Amount
to be
Registered
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Proposed
Maximum
Offering Price
per Share
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Proposed
Maximum
Aggregate
Offering Price (1)
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Amount of
Registration Fee
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Class A Common Stock, par value $0.01 per share (2)
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967,208
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$2.16495 (3)
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$2,093,956.96
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$260.70
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Preferred Stock Purchase Rights (2)(4)
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Total Offering
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967,208
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$2,093,956.96
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$260.70
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(1)
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The proposed maximum aggregate price of the securities has been estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(a) under the Securities Act of 1933, as amended (the “Securities Act”), and includes shares of Class A Common Stock, par value $0.01 per share (“Class A Common Stock”), that were issued pursuant to that Note Satisfaction and Securities Purchase Agreement (the “Purchase Agreement”), dated January 16, 2018, by and between the Registrant and the selling stockholders named herein, in connection with the satisfaction of a note.
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(2)
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Pursuant to Rule 416(a) of the Securities Act, there are also being registered such indeterminable additional securities as may be issued to prevent dilution as a result of stock splits, stock dividends, or similar transactions.
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(3)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) of the Securities Act based on the price of $2.16495 per share, which was the average of the high and low sales price of the Class A Common Stock on February 9, 2018, as reported on the NASDAQ Capital Market.
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(4)
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Our
Class A Common Stock currently includes certain preferred stock purchase rights issued pursuant to that certain Rights
Agreement, dated May 1, 1998 (filed as an exhibit to our Registration Statement on Form 8-K filed with the Securities and
Exchange Commission on April 28, 1998), as amended on February 25, 2008 (filed as an exhibit to Amendment No. 1 to Form 8-A
filed with the Securities and Exchange Commission on February 25, 2008) and as amended on January 30, 2018 (filed as an
exhibit to Form 8-K filed with the Securities and Exchange Commission on February 1, 2018) (the “Rights
Agreement”), between the Registrant and Continental Stock Transfer & Trust Company. Until the
occurrence of certain events specified in the Rights Agreement, none of which have occurred, the preferred stock purchase
rights are not exercisable, are evidenced by the certificate for our Class A Common Stock and will be transferred along
with and only with and are not severable from, our Class A Common Stock. The value attributable to the
preferred stock purchase rights, if any, is reflected in the market price of our Class A Common Stock. No
separate consideration will be payable for the preferred stock purchase rights.
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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,
as amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(
a
), may determine.
The information in
this prospectus is not complete and may be changed. The selling stockholders may not sell the securities described herein until
the registration statement filed with the Securities and Exchange Commission is declared effective. This prospectus is not an offer
to sell such securities, and it is not soliciting an offer to buy such securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
February
9, 2018
PROSPECTUS
967,208 Shares
Class A Common Stock
This
prospectus covers the offer and sale by the selling stockholders identified on page 19 of this prospectus (collectively, the “selling
stockholders”) of 967,208 shares of Class A Common Stock, par value $0.01 per share (the “Common Stock” or “Class
A Common Stock”), of LightPath Technologies, Inc. (the “Company”). We will not receive any proceeds from the
sale of the shares of Class A Common Stock by the selling stockholders.
Our
registration of the shares of Class A Common Stock covered by this prospectus does not mean that the selling stockholders will
offer or sell any of the shares. The selling stockholders may offer and sell the shares of Class A Common Stock from time to time
in a number of different ways and at varying prices. The selling stockholders may offer and sell the shares of Class A Common
Stock described in this prospectus to or through one or more underwriters, dealers, and agents, or directly to purchasers, or
through a combination of these methods. See the sections of this prospectus entitled “Prospectus Summary” and “Plan
of Distribution” for more information. We have agreed to pay all costs, expenses, and fees in connection with the registration
of the shares of Class A Common Stock. The selling stockholders will bear all commissions and discounts, if any, attributable
to their respective sales of the shares of Class A Common Stock.
You
should carefully read this prospectus before you invest in any of our securities.
Our
Class A Common Stock is listed on the NASDAQ Capital Market (“NCM”) under the symbol “LPTH.” On February
9, 2018, the last reported sale price of our Class A Common Stock on NCM was $2.18 per share.
INVESTING
IN OUR CLASS A COMMON STOCK INVOLVES RISKS. SEE “RISK FACTORS” ON PAGE 4 OF THIS PROSPECTUS AND ANY SIMILAR SECTION
CONTAINED IN ANY APPLICABLE PROSPECTUS SUPPLEMENT OR DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS CONCERNING
FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR SECURITIES.
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 ____________, 2018.
TABLE
OF CONTENTS
You
should rely only on the information contained in or incorporated by reference into this prospectus. We have not, and the selling
stockholders have not, authorized any dealer, salesman, or other person to provide you with additional or different information.
If anyone provides you with different or inconsistent information, you should not rely on it.
This
prospectus is not an offer to sell, or a solicitation of an offer to buy, any securities other than the securities to which this
prospectus relates and is not an offer to sell, or a solicitation of an offer to buy, securities in any jurisdiction to any person
to whom it is unlawful to make an offer or solicitation in that jurisdiction.
You
should not assume that the information contained in this prospectus is accurate as of any date other than the date on the front
cover of this prospectus, or that the information contained in any document incorporated by reference is accurate as of any date
other than the date of such document, regardless of the time of delivery of this prospectus or any sale of a security.
This
prospectus incorporates by reference market data and industry statistics and forecasts that are based on independent industry
publications and other publicly available information. Although we believe these sources are reliable, we do not guarantee the
accuracy or completeness of this information and we have not independently verified this information. Although we are not aware
of any misstatements regarding the market and industry data presented in this prospectus and the documents incorporated herein
by reference, these estimates involve risks and uncertainties and are subject to change based on various factors, including those
discussed under the heading “Risk Factors” contained in this prospectus and under similar headings in other documents
that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.
PROSPECTUS
SUMMARY
The
following is a summary of what we believe to be the most important aspects of our business and the offering of our securities
under this prospectus. We urge you to read this entire prospectus. Investing in our securities involves risks. Therefore, carefully
consider the risk factors set forth under the section titled “Risk Factors” in this prospectus and in our most recent
annual and quarterly filings with the Securities and Exchange Commission (the “SEC”), if any, as well as other information
in this prospectus, before purchasing our securities. Each of the risk factors could adversely affect our business, operating
results, and financial condition, as well as adversely affect the value of an investment in our securities.
Unless
otherwise indicated or unless the context otherwise requires, all references in this prospectus to “LightPath,” “we,”
“us,” “our,” or similar references mean LightPath Technologies, Inc. and our subsidiaries.
Company
Overview
We
manufacture optical components and higher level assemblies including precision molded glass aspheric optics, molded and diamond-turned
infrared aspheric lenses, GRADIUM glass lenses, and other optical materials used to produce products that manipulate light. We
design, develop, manufacture, and distribute optical components and assemblies utilizing advanced optical manufacturing processes.
Our products are incorporated into a variety of applications by our customers in many industries, including defense products,
medical devices, laser aided industrial tools, automotive safety applications, barcode scanners, optical data storage, hybrid
fiber coax datacom, telecommunications, machine vision and sensors, among others. All the products we produce enable lasers and
imaging devices to function more effectively. For example:
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Molded
glass aspheres and assemblies
are used in various high performance optical applications primarily based on laser technology;
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Infrared
molded lenses, diamond turned, conventional ground and polished, and CNC ground lenses and assemblies
using short (SWIR),
mid (MWIR), and long (LWIR) wave materials imaging are used in applications for firefighting, predictive maintenance, homeland
security, surveillance, automotive, cell phone infrared cameras, pharmaceutical R&D, and defense; and
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GRADIUM
extends the performance of a spherically polished glass lens technology improving optical performance so that it approximates
aspheric lens performance.
In
November 2005, we formed LightPath Optical Instrumentation (Shanghai) Co., Ltd (“LPOI”), a wholly-owned subsidiary,
located in Jiading, People’s Republic of China. The LPOI facility is primarily used for sales and support functions.
In
December 2013, we formed LightPath Optical Instrumentation (Zhenjiang) Co., Ltd. (“LPOIZ”), a wholly-owned subsidiary
located in the New City district, of the Jiangsu province, of the People’s Republic of China. LPOIZ’s 39,000 square
foot manufacturing facility serves as our primary manufacturing facility in China and provides a lower cost structure for production
of larger volumes of optical components and assemblies.
In
December 2016, we acquired ISP Optics Corporation, a New York corporation (“ISP”), and its wholly-owned subsidiary,
ISP Optics Latvia, SIA, a limited liability company founded in 1998 under the Laws of the Republic of Latvia (“ISP Latvia”).
ISP is a vertically integrated manufacturer offering a full range of infrared products from custom infrared optical elements to
catalog and high performance lens assemblies. ISP’s Irvington, New York facility functions as its global headquarters for
operations, while also providing manufacturing capabilities, optical coatings, and optical and mechanical design, assembly, and
testing. ISP Latvia’s manufacturing facility is located in Riga, Latvia. It is a manufacturer of high precision optics and
offers a full range of infrared products including catalog and custom infrared optics.
Product
Groups and Markets
We
organized our business based on five product groups: low volume precision molded optics (“LVPMO”), high volume precision
molded optics (“HVPMO”), specialty products, infrared products, and non-recurring engineering (“NRE”).
Our LVPMO product group consists of precision molded optics with a sales price greater than $10 per lens and is usually sold in
smaller lot quantities. Our HVPMO product group consists of precision molded optics with a sales price of less than $10 per lens
and is usually sold in larger lot quantities. Our infrared product group is comprised of both molded and turned lens and assemblies
and includes all ISP products. Our specialty product group is comprised of value added products such as optical subsystems, assemblies,
GRADIUM lenses, and isolators. Our NRE product group consists of those products we develop pursuant to product development agreements
we enter into with customers. Typically, customers approach us and request that we develop new products or applications for our
existing products to fit their particular needs or specifications. The timing and extent of any such product development is outside
of our control.
We
currently serve the following major markets: industrial, laser, defense, medical, telecommunications, and instrumentation. Within
our product groups, we have various applications that serve these major markets. For example, our HVPMO lenses are typically used
in industrial tools, especially in China. Our HVPMO and LVPMO lenses are also used in applications for the telecommunications
market, such as cloud computing, video distribution via digital technology, wireless broadband, and machine to machine connection,
and the laser market, such as laser tools, scientific and bench top lasers, and bar code scanners. Our infrared products can also
be used in various applications within our major markets. Currently, sales of our infrared products are primarily for customers
in the industrial market that use thermal imaging cameras. Our infrared products can also be used for gas sensing devices, spectrometers,
night vision systems, automotive driver systems, thermal weapon gun sights, and infrared counter measure systems, among others.
Within
the larger overall markets, which are estimated to be in the multi-billions of dollars, we believe there is a market of approximately
$1.7 billion for our current products and capabilities. We continue to believe our products will provide significant growth opportunities
over the next several years and, therefore, we will continue to target specific applications in each of these major markets. In
addition to these major markets, a large percentage of our revenues are derived from sales to unaffiliated companies that purchase
our products to fulfill their customer’s orders, as well as unaffiliated companies that offer our products for sale in their
catalogs. Our strategy is to leverage our technology, know-how, established low cost manufacturing capability, and partnerships
to grow our business.
Corporate
Information
We
were incorporated under Delaware law in 1992 as the successor to LightPath Technologies Limited Partnership, a New Mexico limited
partnership formed in 1989, and its predecessor, Integrated Solar Technologies Corporation, a New Mexico corporation formed in
1985. Our principal offices are located at 2603 Challenger Tech Court, Suite 100, Orlando, Florida 32826. Our telephone number
is (407) 382-4003. Our website address is www.lightpath.com, the content of which shall not be deemed incorporated by reference
into this prospectus.
The
Offering
Securities
Offered by the Selling Stockholders
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Up
to 967,208 shares of Class A Common Stock
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Class
A Common Stock Outstanding
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25,727,981
shares (1)
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Terms
of the Offering
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The
selling stockholders may, from time to time, offer and resell, transfer, or otherwise dispose of any or all of the shares
of our Class A Common Stock covered by this prospectus through underwriters or dealers, directly to purchasers, or though
broker-dealers or agents. See “Plan of Distribution.”
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Use
of Proceeds
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We
will not receive any of the proceeds from the sale of the shares of Class A Common Stock being offered under this prospectus. See
“Use of Proceeds.”
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NASDAQ
Capital Market Symbol
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Our
Class A Common Stock is listed under the symbol “LPTH.”
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Risk
Factors
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You
should read the “Risk Factors” section of this prospectus for a discussion of factors to consider carefully before
deciding to invest in shares of our Class A Common Stock.
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(1)
Based on the number of issued and outstanding shares of Class A Common Stock on February 9, 2018. Excludes (i) 1,030,035 shares
of our Class A Common Stock issuable upon exercise of outstanding stock options having a weighted-average exercise price of approximately
$1.73 per share; (ii) 1,649,353 shares of our Class A Common Stock underlying outstanding restricted stock units of which 1,287,370
have vested; (iii) 1,664,870 shares of our Class A Common Stock reserved for issuance under our Amended and Restated Omnibus Incentive
Plan (the “Plan”); and (iv) 358,008 shares of our Class A Common Stock reserved for issuance under our Employee Stock
Purchase Plan (the “2014 ESPP”).
RISK
FACTORS
Investing
in our securities offered pursuant to this prospectus involves a high degree of risk. Before making an investment decision, you
should carefully review and consider the risk factors in this prospectus or incorporated by reference into this prospectus to
our most recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K we
file after the date of this prospectus, and all other information contained or incorporated by reference into this prospectus,
as updated by our subsequent filings under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), before
acquiring any of such securities in light of your particular investment objectives and financial circumstances. The risks so described
are not the only risks we face. Additional risks not presently known to us or that we currently deem immaterial may also impair
our business operations. Our business, financial condition, results of operations, or prospects could be materially adversely
affected by any of these risks. The occurrence of any of these risks might result in the trading price of our securities to decline
or cause you to lose all or part of your investment in the offered securities. Please read “Cautionary Statement Regarding
Forward-Looking Statements.”
Risks
Related To Our Business and Financial Results
We
have a history of losses.
We achieved net income of approximately $641,000 for the six months ended December 31, 2017,
$7.7 million for fiscal 2017, and $1.4 million for fiscal 2016; however, we incurred net losses of $715,000 and $313,000 for fiscal
2015 and 2014, respectively, and have a history of losses preceding such periods. As of December 31, 2017, we had an accumulated
deficit of approximately $195.7 million. We may incur losses in the future if we do not achieve sufficient revenue to maintain
profitability. We expect revenue to grow by seeking to improve gross margins and generating additional sales, but we cannot guarantee
such improvement or growth.
Factors
that could adversely affect our future profitability, include, but are not limited to, a decline in revenue either due to lower
sales unit volumes or decreasing selling prices or both, our ability to order supplies from vendors, which in turn affects our
ability to manufacture our products, and slow payments from our customers on accounts receivable.
Any
failure to maintain profitability would have a materially adverse effect on our ability to implement our business plan, our results
and operations, and our financial condition, and could cause the value of our Class A Common Stock to decline, resulting in a
significant or complete loss of your investment.
We
may need additional capital to sustain our operations in the future, and may need to seek further financing, which we may not
be able to obtain on acceptable terms or at all, which could affect our ability to implement our business strategies.
We have limited capital resources. To date, our operations have been largely funded from the proceeds of equity financings with
some level of debt financing. We anticipate requiring additional capital in the future to support our operations and further expand
our business and product lines. We may not be able to obtain additional financing when we need it on terms acceptable to us, or
at all.
Our
future capital needs will depend on numerous factors including: (i) profitability; (ii) the release of competitive products by
our competition; (iii) the level of our investment in research and development; and (iv) the amount of our capital expenditures,
including equipment and acquisitions. We cannot assure you that we will be able to obtain capital in the future to meet our needs.
If we are unable to raise capital when needed, our business, financial condition, and results of operations would be materially
adversely affected, and we could be forced to reduce or discontinue our operations.
We
are dependent on a few key customers, and the loss of any key customer could cause a significant decline in our revenues.
In fiscal 2017, we had sales to three customers that comprised an aggregate of approximately 26% of our annual revenue with one
customer at 10% of our sales, another customer at 9% of our sales, and the third customer at 7% of our sales. In fiscal 2016,
we had sales to three customers that comprised approximately 25% of our annual revenue, with one customer at 10% of our sales,
another customer at 8% of our sales, and the third customer at 7% of our sales. Part of our continuing strategy has been to gain
key customer relationships of more significance and impact to generate higher revenues at lower costs. This strategy has met with
some success, and, therefore, we believe our operating results will continue to be notably dependent on sales to a relatively
small number of significant customers. However, we continue to diversify our business in order to minimize our sales concentration
risk. The loss of any of these customers, or a significant reduction in sales to any such customer, would adversely affect our
revenues.
We
may be affected by political and other risks as a result of our sales to international customers and/or our sourcing of materials
from international suppliers.
In fiscal 2017, 61% of our net revenue was derived from sales outside of the United States,
with 88% of our foreign sales derived from customers in Europe and Asia. In fiscal 2016, approximately 59% of our net revenues
were from sales to international customers, with 91% of foreign sales derived from customers in Europe and Asia. Our international
sales will be limited, and may even decline, if we cannot establish relationships with new international distributors, maintain
relationships with our existing international distributions, maintain and expand our foreign operations, expand international
sales, and develop relationships with international service providers. Additionally, our international sales may be adversely
affected if international economies weaken. We are subject to the following risks, among others:
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greater
difficulty in accounts receivable collection and longer collection periods;
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potentially
different pricing environments and longer sales cycles;
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the
impact of recessions in economies outside the United States;
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unexpected
changes in foreign regulatory requirements;
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the
burdens of complying with a wide variety of foreign laws and different legal standards;
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certification
requirements;
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reduced
protection for intellectual property rights in some countries;
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difficulties
in managing the staffing of international operations, including labor unrest and current
and changing regulatory environments;
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potentially
adverse tax consequences, including the complexities of foreign value-added tax systems,
restrictions on the repatriation of earnings, and changes in tax rates;
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price
controls and exchange controls;
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government
embargoes or foreign trade restrictions;
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imposition
of duties and tariffs and other trade barriers;
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import
and export controls;
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transportation
delays and interruptions;
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terrorist
attacks and security concerns in general; and
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political,
social, economic instability and disruptions.
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As
a U.S. corporation with international operations, we are subject to the U.S. Foreign Corrupt Practices Act and other similar foreign
anti-corruption laws, as well as other laws governing our operations. If we fail to comply with these laws, we could be subject
to civil or criminal penalties, other remedial measures, and legal expenses, which could adversely affect our business, financial
condition, and results of operations.
Our operations are subject to anti-corruption laws, including the U.S. Foreign Corrupt
Practices Act (“FCPA”), and other foreign anti-corruption laws that apply in countries where we do business. The FCPA
and these other laws generally prohibit us and our employees and intermediaries from offering, promising, authorizing, or making
payments to government officials or other persons to obtain or retain business or gain some other business advantage. In addition,
we cannot predict the nature, scope, or effect of future regulatory requirements to which our international operations might be
subject or the manner in which existing laws might be administered or interpreted. Operations outside of the U.S. may be affected
by changes in trade production laws, policies, and measures, and other regulatory requirements affecting trade and investment.
We
are also subject to other laws and regulations governing our international operations, including regulations administered by the
U.S. Department of Commerce’s Bureau of Industry and Security, the U.S. Department of Treasury’s Office of Foreign
Asset Control, and various non-U.S. government entities, including applicable export control regulations, economic sanctions on
countries and persons, customs, requirements, currency exchange regulations, and transfer pricing regulations (collectively, the
“Trade Control Laws”).
Despite
our compliance programs, there can be no assurance that we will be completely effective in ensuring our compliance with all applicable
anti-corruption laws, including the FCPA or other legal requirements, or Trade Control Laws. If we are not in compliance with
the FCPA and other foreign anti-corruption laws or Trade Control Laws, we may be subject to criminal and civil penalties, disgorgement,
and other sanctions and remedial measures, and legal expenses, which could have an adverse impact on our business, financial condition,
results of operations and liquidity. Likewise, any investigation of any potential violations of the FCPA, other anti-corruption
laws, or Trade Control Laws by the U.S. or foreign authorities could also have an adverse impact on our reputation, business,
financial condition, and results of operations.
Our
future growth is partially dependent on our market penetration efforts.
Our future growth is partially dependent on our
market penetration efforts, which include diversifying our sales to high-volume, low-cost optical applications and other new market
and product opportunities in multiple industries. While we believe our existing products are commercially viable, we anticipate
the need to educate the optical components markets in order to generate market demand and market feedback may require us to further
refine these products. Expansion of our product lines and sales into new markets will require significant investment in equipment,
facilities, and materials. 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.
We
rely, in large part, on key business and sales relationships for the successful commercialization of our products, which if not
developed or maintained, will have an adverse impact on achieving market awareness and acceptance and will result in a loss of
business opportunities.
To achieve wide market awareness and acceptance of our products and technologies, as part of our
business strategy, we will attempt to enter into a variety of business relationships with other companies that will incorporate
our technologies into their products and/or market products based on our technologies. The successful commercialization of our
products and technologies will depend in part on our ability to meet obligations under contracts with respect to the products
and related development requirements. The failure of these business relationships will limit the commercialization of our products
and technologies, which will have an adverse impact on our business development and our ability to generate revenues.
If
we do not expand our sales and marketing organization, our revenues may not increase.
The sale of our products requires
prolonged sales and marketing efforts targeted at several key departments within our prospective customers’ organizations
and often time involves our executives, personnel, and specialized systems and applications engineers working together. Currently,
our direct sales and marketing organization is somewhat limited. We believe we will need to increase our sales force in order
to increase market awareness and sales of our products. There is significant competition for qualified personnel, and we might
not be able to hire the kind and number of sales and marketing personnel and applications engineers we need. If we are unable
to expand our sales operations, particularly in China, we may not be able to increase market awareness or sales of our products,
which would adversely affect our revenues, results of operations, and financial condition.
If
we are unable to develop and successfully introduce new and enhanced products that meet the needs of our customers, our business
may not be successful.
Our future success depends, in part, on our ability to anticipate our customers’ needs and
develop products that address those needs. Introduction of new products and product enhancements will require that we effectively
transfer production processes from research and development to manufacturing, and coordinate our efforts with the efforts of our
suppliers to rapidly achieve efficient volume production. If we fail to effectively transfer production processes, develop product
enhancements, or introduce new products that meet the needs of our customers as scheduled, our net revenues may decline, which
would adversely affect our results of operations and financial condition.
If
we are unable to effectively compete, our business and operating results could be negatively affected.
We face substantial
competition in the optical markets in which we operate. Many of our competitors are large public and private companies that have
longer operating histories and significantly greater financial, technical, marketing, and other resources than we have. As a result,
these competitors are able to devote greater resources than we can to the development, promotion, sale, and support of their products.
In addition, the market capitalization and cash reserves of several of our competitors are much larger than ours, and, as a result,
these competitors are much better positioned than we are to exploit markets, develop new technologies, and acquire other companies
in order to gain new technologies or products. We also 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 telecommunications
product manufacturers. In both the optical lens and communications markets, we are competing against, among others, established
international companies, especially in Asia. Many of these companies also are primary customers for optical and communication
components, and, therefore, have significant control over certain markets for our products. 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 or that competition in our industry will not lead to reduced prices for our products. If we are unable
to successfully compete with existing companies and new entrants to the markets we compete in, our business, results of operations,
and financial condition could be adversely affected.
We
anticipate further reductions in the average selling prices of some of our products over time, and, therefore, must increase our
sales volumes, reduce our costs, and/or introduce higher margin products to reach and maintain financial stability.
We
have experienced decreases in the average selling prices of some of our products over the last ten years, including most of our
passive component products. We anticipate that as products in the optical component and module market become more commodity-like,
the average selling prices of our products will decrease in response to competitive pricing pressures, new product introductions
by us or our competitors, or other factors. We attempt to offset anticipated decreases in our average selling prices by increasing
our sales volumes and/or changing our product mix. If we are unable to offset anticipated future decreases in our average selling
prices by increasing our sales volumes or changing our product mix, our net revenues and gross margins will decline, increasing
the projected cash needed to fund operations. To address these pricing pressures, we must develop and introduce new products and
product enhancements that will generate higher margins or change our product mix in order to generate higher margins. If we cannot
maintain or improve our gross margins, our financial position, and results of operations may be harmed.
Because
of our limited product offerings, our ability to generate additional revenues may be limited without additional growth
.
We organized our business based on five product groups: LVPMOs, HVPMOs, infrared products, specialty products, and NREs. In fiscal
2016, sales of our LVPMOs generated approximately 42% of our net revenues, sales of our HVPMOs generated approximately 23% of
our net revenues, sales of our infrared products generated approximately 10% of our net revenues, sales of our specialty products
generated approximately 22% of our net revenues, and sales of our NRE products generated approximately 3% of our net revenues.
Accordingly, in fiscal 2016, approximately 87% of our net revenues were derived from sales of our LVPMOs, HVPMOs, and specialty
products. In fiscal 2017, sales of our LVPMOs generated approximately 30% of our net revenues, sales of our HVPMOs generated approximately
27% of our net revenues, sales of our infrared products generated approximately 33% of our net revenues, sales of our specialty
products generated approximately 9% of our net revenues, and sales of our NRE products generated approximately 1% of our net revenues.
Accordingly, in fiscal 2017, approximately 66% of our net revenues were derived from our LVPMO, HVPMO, and specialty products,
and 33% was derived from our infrared products. In the future, we expect a larger percentage of our revenues to be generated from
sales of our infrared products, particularly sales of ISP’s infrared products. Demand for products in the optical market
has declined materially in recent years. Continued and expanding market acceptance of these products is critical to our future
success. There can be no assurance that our current or new products will achieve market acceptance at the rate at which we expect,
or at all, which could adversely affect our results of operations and financial condition.
Litigation
may adversely affect our business, financial condition, and results of operations.
From time to time in the normal course
of business operations, we may become subject to litigation that may result in liability material to our financial statements
as a whole or may negatively affect our operating results if changes to our business operations are required. The cost to defend
such litigation may be significant and is subject to inherent uncertainties. Insurance may not be available at all or in sufficient
amounts to cover any liabilities with respect to these or other matters. There also may be adverse publicity with litigation that
could negatively affect customer perception of our business, regardless of whether the allegations are valid or whether we are
ultimately found liable. An adverse result in any such matter could adversely impact our operating results or financial condition.
Additionally, any litigation to which we are subject could also require significant involvement of our senior management and may
divert management’s attention from our business and operations.
We
are exposed to fluctuations in currency exchange rates that could negatively impact our financial results and cash flows.
We execute all foreign sales from our Orlando and Irvington facilities and inter-company transactions in United States dollars
in order to mitigate the impact of foreign currency fluctuations. However, in the future, a portion of our international revenues
and expenses may be denominated in foreign currencies. Accordingly, we could experience the risks of fluctuating currencies and
corresponding exchange rates. In fiscal years 2017 and 2016, we recognized a gain of approximately $78,000 and a loss of $370,000
on foreign currency transactions, respectively. Any such fluctuations that result in a less favorable exchange rate could adversely
affect our revenues, which could negatively impact our results of operations and financial condition.
We
also source certain raw materials from outside the United States. Some of those materials, priced in non-dollar currencies, have
lowered in price due to the recent increase of the United States dollar against non-dollar-pegged currencies, especially the Euro
and Renminbi. This increases our margins and helps with our ability to reach positive cash flow and profitability. If the strength
of the United States dollar decreases, the cost of foreign sourced materials could increase, which would adversely affect our
financial condition and results of operations.
A
significant portion of our cash is generated and held outside of the United States. The risks of maintaining significant cash
abroad could adversely affect our cash flows and financial results.
During fiscal 2017, approximately 58% of our cash
was generated and held abroad. We generally consider unremitted earnings of our subsidiaries operating outside of the United States
to be indefinitely reinvested and it is not our current intent to change this position. Cash held outside of the United States
is primarily used for the ongoing operations of the business in the locations in which the cash is held. Certain countries, such
as China, have monetary laws that limit our ability to utilize cash resources in China for operations in other countries. Before
any funds can be repatriated the retained earnings in China must equal at least 150% of the registered capital. As of December
31, 2017, we had retained earnings in China of $1.4 million and we need to have retained earnings of $11.3 million before repatriation
will be allowed. This limitation may affect our ability to fully utilize our cash resources for needs in the United States or
other countries and may adversely affect our liquidity. Further, since repatriation of such cash is subject to limitations and
may be subject to significant taxation, we cannot be certain that we will be able to repatriate such cash on favorable terms or
in a timely manner. If we incur operating losses and/or require cash that is held in international accounts for use in our operations
based in the United States, a failure to repatriate such cash in a timely and cost-effective manner could adversely affect our
business and financial results.
Further,
our worldwide operations subject us to the jurisdiction of a number of taxing authorities. The income earned in these various
jurisdictions is taxed on differing basis, including net income actually earned, net income deemed earned, and revenue-based tax
withholding. The final determination of our income tax liabilities involves the interpretation of local tax laws, tax treaties,
and related authorities in each jurisdiction, as well as the use of estimates and assumptions regarding the scope of future operations
and results achieved and the timing and nature of income earned and expenditures incurred. Changes in or interpretations of tax
law and currency/repatriation control could impact the determination of our income tax liabilities for a tax year. Legislative
initiatives in the United States to reform the United States’ tax laws could also have a material impact on our future tax
rate and our repatriation plans.
Uncertainties
in the interpretation and application of the 2017 Tax Cuts and Jobs Act could materially affect our tax obligations and effective
tax rate.
The 2017 Tax Cuts and Jobs Act (the “Tax Act”) was enacted on December 22, 2017, and significantly
affected United States tax law by changing how the United States imposes income tax on multinational corporations. The U.S. Department
of Treasury has broad authority to issue regulations and interpretative guidance that may significantly impact how we will apply
the law and impact our results of operations in the period issued.
The
Tax Act requires complex computations not previously provided in United States tax law. As such, the application of accounting
guidance for such items is currently uncertain. Further, compliance with the Tax Act and the accounting for such provisions require
accumulation of information not previously required or regularly produced. As additional regulatory guidance is issued by the
applicable taxing authorities, as accounting treatment is clarified, as we perform additional analysis on the application of the
law, and as we refine estimates in calculating the effect, our final analysis, which will be recorded in the period completed,
may be different from our current provisional amounts, which could materially affect our tax obligations and effective tax rate.
Our
future success depends on our key executive officers and our ability to attract, retain, and motivate qualified personnel.
Our future success largely depends upon the continued services of our key executive officers, management team, and other engineering,
sales, marketing, manufacturing, and support personnel. If one or more of our key employees are unable or unwilling to continue
in their present positions, we may not be able to replace them readily, if at all. Additionally, we may incur additional expenses
to recruit and retain new key employees. If any of our key employees joins a competitor or forms a competing company, we may lose
some or all of our customers. Because of these factors, the loss of the services of any of these key employees could adversely
affect our business, financial condition, and results of operations.
Our
continuing ability to attract and retain highly qualified personnel will also be critical to our success because we will need
to hire and retain additional personnel to support our business strategy. We expect to continue to hire selectively in the manufacturing,
engineering, sales and marketing, and administrative functions to the extent consistent with our business levels and to further
our business strategy. We face significant competition for skilled personnel in our industry. This competition may make it more
difficult and expensive to attract, hire, and retain qualified managers and employees. Because of these factors, we may not be
able to effectively manage or grow our business, which could adversely affect our financial condition or business.
We
depend on single or limited source suppliers for some of the key materials or process steps in our products, making us susceptible
to supply shortages, poor performance, or price fluctuations.
We currently purchase several key materials, or have outside
vendors perform process steps, such as lens coatings, used in or during the manufacture of our products from single or limited
source suppliers. We may fail to obtain required materials or services in a timely manner in the future, or could experience delays
as a result of evaluating and testing the products or services of these potential alternative suppliers. The decline in demand
in the telecommunications equipment industry may have adversely impacted the financial condition of certain of our suppliers,
some of whom have limited financial resources. We have in the past, and may in the future, be required to provide advance payments
in order to secure key materials from financially limited suppliers. Financial or other difficulties faced by these suppliers
could limit the availability of key components or materials. For example, increasing labor costs in China has increased the risk
of bankruptcy for suppliers with operations in China, and has led to higher manufacturing costs for us and the need to identify
alternate suppliers. Additionally, financial difficulties could impair our ability to recover advances made to these suppliers.
Any interruption or delay in the supply of any of these materials or services, or the inability to obtain these materials or services
from alternate sources at acceptable prices and within a reasonable amount of time, would impair our ability to meet scheduled
product deliveries to our customers and could cause customers to cancel orders, thereby negatively affecting our business, financial
condition, and results of operation.
We
face product liability risks, which could adversely affect our business
.
The sale of our optical products involves the
inherent risk of product liability claims by others. We do not currently maintain product liability insurance coverage. Product
liability insurance is expensive, subject to various coverage exclusions, and may not be obtainable on terms acceptable to us
if we decide to procure such insurance in the future. 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. If a claim is asserted and successfully litigated by
an adverse party, our financial position and results of operations could be adversely affected.
Business
interruptions could adversely affect our business
.
We manufacture our products at manufacturing facilities located in
Orlando, Florida, Irvington, New York, Riga, Lativa, and Zhenjiang, China. Our revenues are dependent upon the continued operation
of these facilities. The Orlando facility is subject to a lease that expires in April 2022, the Irvington facility is subject
to a lease that expires in September 2020, the Riga facility is subject to a lease that expires in December 2019, and the Zhenjiang
facility is subject to two leases that expire in March 2019 and December 2021. Our operations are vulnerable to interruption by
fire, hurricane winds and rain, earthquakes, electric power loss, telecommunications failure, and other events beyond our control.
We do not have detailed disaster recovery plans for our facilities and we do not have a backup facility, other than our other
facilities, or contractual arrangements with any other manufacturers in the event of a casualty to or destruction of any facility
or if any facility ceases to be available to us for any other reason. If we are required to rebuild or relocate either of our
manufacturing facilities, a substantial investment in improvements and equipment would be necessary. We carry only a limited amount
of business interruption insurance, which may not sufficiently compensate us for losses that may occur.
Our
facilities may be subject to electrical blackouts as a consequence of a shortage of available electrical power. We currently do
not have backup generators or alternate sources of power in the event of a blackout. If blackouts interrupt our power supply,
we would be temporarily unable to continue operations at such facility.
Any
losses or damages incurred by us as a result of blackouts, rebuilding, relocation, or other business interruptions, could result
in a significant delay or reduction in manufacturing and production capabilities, impair our reputation, harm our ability to retain
existing customers and to obtain new customers, and could result in reduced sales, lost revenue, and/or loss of market share,
any of which could substantially harm our business and our results of operations.
Our
failure to accurately forecast material requirements could cause us to incur additional costs, have excess inventories, or have
insufficient materials to manufacture our products.
Our material requirements forecasts are based on actual or anticipated
product orders. It is very important that we accurately predict both the demand for our products and the lead times required to
obtain the necessary materials. Lead times for materials that we order vary significantly and depend on factors such as specific
supplier requirements, the size of the order, contract terms, and the market demand for the materials at any given time. If we
overestimate our material requirements, we may have excess inventory, which would increase our costs. If we underestimate our
material requirements, we may have inadequate inventory, which could interrupt our manufacturing and delay delivery of our products
to our customers. Any of these occurrences would negatively impact our results of operations. Additionally, in order to avoid
excess material inventories we may incur cancellation charges associated with modifying existing purchase orders with our vendors,
which, depending on the magnitude of such cancellation charges, may adversely affect our results of operations.
If
we do not achieve acceptable manufacturing yields our operating results could suffer.
The manufacture of our products
involves complex and precise processes. Our manufacturing costs for several products are relatively fixed, and, thus, manufacturing
yields are critical to the success of our business and our results of operations. Changes in our manufacturing processes or those
of our suppliers could significantly reduce our manufacturing yields. In addition, we may experience manufacturing delays and
reduced manufacturing yields upon introducing new products to our manufacturing lines. The occurrence of unacceptable manufacturing
yields or product yields could adversely affect our financial condition and results of operations.
If
our customers do not qualify our manufacturing lines for volume shipments, our operating results could suffer
.
Our manufacturing
lines have passed our qualification standards, as well as our technical standards. However, our customers may also require that
our manufacturing lines pass their specific qualification standards, and that we be registered under international quality standards,
such as ISO 9001:2008, ISO 9001:2015, and ISO/TS 16949: 2009 certifications. This customer qualification process determines whether
our manufacturing lines meet the customers’ quality, performance, and reliability standards. Generally, customers do not
purchase our products, other than limited numbers of evaluation units, prior to qualification of the manufacturing line for volume
production. We may be unable to obtain customer qualification of our manufacturing lines or we may experience delays in obtaining
customer qualification of our manufacturing lines. If there are delays in the qualification of our products or manufacturing lines,
our customers may drop the product from a long-term supply program, which would result in significant lost revenue opportunity
over the term of each such customer’s supply program, or our customers may purchase from other manufacturers. The inability
to obtain customer qualification of our manufacturing lines, or the delay in obtaining such qualification, could adversely affect
our financial condition and results of operations.
Risks
Related To Our Intellectual Property
If
we are unable to protect and enforce our intellectual property rights, we may be unable to compete effectively.
We believe
that our intellectual property rights are important to our success and our competitive position, and we rely on a combination
of patent, copyright, trademark, and trade secret laws and restrictions on disclosure to protect our intellectual property rights.
Although we have devoted substantial resources to the establishment and protection of our intellectual property rights, the actions
taken by us may be inadequate to prevent imitation or improper use of our products by others or to prevent others from claiming
violations of their intellectual property rights by us.
In
addition, we cannot assure that, in the future, our patent applications will be approved, that any patents that we may be issued
will protect our intellectual property, or that third parties will not challenge any issued patents. Other parties may independently
develop similar or competing technology or design around any patents that may be issued to us. We also rely on confidentiality
procedures and contractual provisions with our employees, consultants, and corporate partners to protect our proprietary rights,
but we cannot assure the compliance by such parties with their confidentiality obligations, which could be very time consuming
and expensive to enforce.
It
may be necessary to litigate to enforce our patents, copyrights, and other intellectual property rights, to protect our trade
secrets, to determine the validity of and scope of the proprietary rights of others, or to defend against claims of infringement
or invalidity. Such litigation can be time consuming, distracting to management, expensive, and difficult to predict. Our failure
to protect or enforce our intellectual property could have an adverse effect on our business, financial condition, prospects,
and results of operation.
We
do not have patent protection for our formulas and processes, and a loss of ownership of any of our formulas and processes would
negatively impact our business.
We believe that we own our formulas and processes. However, we have not sought, and do
not intend to seek, patent protection for all of our formulas and processes. Instead, we rely on the complexity of our formulas
and processes, trade secrecy laws, and employee confidentiality agreements. However, we cannot assure you that other companies
will not acquire our confidential information or trade secrets or will not independently develop equivalent or superior products
or technology and obtain patent or similar rights. Although we believe that our formulas and processes have been independently
developed and do not infringe the patents or rights of others, a variety of components of our processes could infringe existing
or future patents, in which event we may be required to modify our processes or obtain a license. We cannot assure you that we
will be able to do so in a timely manner or upon acceptable terms and conditions and the failure to do either of the foregoing
would negatively affect our business, results of operations, financial condition, and cash flows.
We
may become involved in intellectual property disputes and litigation, which could adversely affect our business
.
We anticipate,
based on the size and sophistication of our competitors and the history of rapid technological advances in our industry that several
competitors may have patent applications in progress in the United States or in foreign countries that, if issued, could relate
to products similar to ours. If such patents were to be issued, the patent holders or licensees may assert infringement claims
against us or claim that we have violated other intellectual property rights. These claims and any resulting lawsuits, if successful,
could subject us to significant liability for damages and invalidate our proprietary rights. The lawsuits, regardless of their
merits, could be time-consuming and expensive to resolve and would divert management time and attention. Any potential intellectual
property litigation could also force us to do one or more of the following, any of which could harm our business and adversely
affect our financial condition and results of operations:
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stop
selling, incorporating or using our products that use the disputed intellectual property;
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obtain
from third parties a license to sell or use the disputed technology, which license may
not be available on reasonable terms, or at all; or
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redesign
our products that use the disputed intellectual property.
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Risks
Related To An Investment In Our Securities
Historically,
our quarterly results have fluctuated and continued fluctuations could negatively impact our stock price.
Revenues and
results of operations are difficult to predict and may fluctuate substantially from quarter to quarter. As a result, the market
price of our Class A Common Stock may also fluctuate substantially.
We
may issue additional securities with rights superior to those of our Class A Common Stock, which could materially limit the ownership
rights of our stockholders.
We may offer additional debt or equity securities in private and/or public offerings in order
to raise working capital or to refinance our debt. Our board of directors (our “Board”) has the right to determine
the terms and rights of any debt securities and preferred stock without obtaining the approval of the stockholders. It is possible
that any debt securities or preferred stock that we sell would have terms and rights superior to those of our Class A Common Stock
and may be convertible into shares of our Class A Common Stock. Any sale of securities could adversely affect the interests or
voting rights of the holders of our Class A Common Stock, result in substantial dilution to existing stockholders, or adversely
affect the market price of our Class A Common Stock.
The
price of our Class A Common Stock has been, and may continue to be, subject to substantial volatility.
Broad market fluctuations
or fluctuations in our operations may adversely affect the price of our Class A Common Stock. The market for our Class A Common
Stock is volatile, the bid-ask spread is often large, and the trading volume and activity can be low and sporadic. The price of
our Class A Common Stock may fluctuate significantly in response to numerous factors, many of which are beyond our control, including:
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volatility
in the trading markets generally and in our particular market segment;
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limited
trading of our Class A Common Stock;
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actual
or anticipated fluctuations in our results of operations;
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the
financial projections we may provide to the public, any changes in these projections,
or our failure to meet these projections;
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announcements
regarding our business or the business of our customers or competitors;
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changes
in accounting standards, policies, guidelines, interpretations, or principles;
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actual
or anticipated developments in our business or our competitors’ businesses or the
competitive landscape generally;
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developments
or disputes concerning our intellectual property or our offerings, or third-party proprietary
rights;
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announced
or completed acquisitions of businesses or technologies by us or our competitors;
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new
laws or regulations or new interpretations of existing laws or regulations applicable
to our business;
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any
major change in our Board or management;
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sales
of shares of our Class A Common Stock by us or our stockholders;
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lawsuits
threatened or filed against us; and
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other
events or factors, including those resulting from war, incidents of terrorism, or responses
to these events.
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Statements
of, 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 may affect the market price for the securities of many companies, and which often have appeared unrelated
to the operating performance of such companies.
Although
our shares are publicly traded on the NCM, the trading market for shares of our Class A Common Stock has been inconsistent with
wide fluctuations in the trading volume. There are periods where the trading volume is extremely low and somewhat limited, which
could negatively affect our stockholders’ ability to sell their shares of our Class A Common Stock at the time and price
they desire.
We
do not currently pay dividends on our Class A Common Stock, and do not anticipate paying dividends on our Class A Common Stock
in the foreseeable future.
Our Board has never declared a dividend on our Class A Common Stock and we do not anticipate
paying dividends on our Class A Common Stock in the foreseeable future. We intend to retain our cash and future earnings, if any,
to fund our business plan. Our future dividend policy is within the discretion of our Board and will depend upon various factors,
including our business, financial condition, results of operations, and capital requirements. Therefore, we cannot offer any assurance
that our Board will determine to pay special or regular dividends in the future. Unless our Board determines to pay dividends,
stockholders will be required to look to appreciation of our Class A Common Stock to realize a gain on their investment. There
can be no assurance that this appreciation will occur.
Our
management and principal stockholders control a substantial amount of our stock and, therefore, may influence our affairs.
If our management and a few principal stockholders act in concert, they could determine the outcomes of matters submitted to stockholders
or the election of our Board. We estimate that management, including directors, and our principal stockholders (stockholders owning
more than 5% of our Class A Common Stock) beneficially owned approximately 21.5% of Class A Common Stock outstanding, on a fully-diluted
basis, as of February 9, 2018.
Our
charter documents and Delaware law may inhibit a takeover.
In certain circumstances, the fact that corporate devices
are in place that will inhibit or discourage takeover attempts could reduce the market value of our Class A Common Stock. Our
Certificate of Incorporation, as amended (the “Certificate of Incorporation”), Amended and Restated Bylaws, as amended
(the “Bylaws”), and certain other agreements contain certain provisions that may discourage other persons from attempting
to acquire control of us. These provisions include, but are not limited to, the following:
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staggered-terms
of service for our Board;
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the
authorization of our Board to issue shares of undesignated preferred stock in one or
more series without the specific approval of the stockholders;
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the
adoption of a stockholder rights plan in 1998 and a dividend distribution of a right
to purchase one share of Series D Participating Preferred Stock (the “Rights”)
for each outstanding share of Class A Common Stock. The description and terms of such
rights are set forth in the Rights Agreement dated as of May 1, 1998 between LightPath
and Continental Stock Transfer & Trust Company, as Rights Agent (the “Rights
Agreement”) (a copy of the Rights Agreement and related documents are filed as
Exhibit 1 to the Form 8-A for Registration of Certain Classes of Securities Pursuant
to Section 12(b) or (g) of the Exchange Act, filed on April 28, 1998). The Rights Agreement
was amended on February 25, 2008 to extend the termination date through February 25,
2018. The Rights Agreement was amended on January 30, 2018 to extend the termination
date through February 28, 2021;
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the
establishment of advance notice requirements for director nominations and actions to
be taken at annual meetings; and
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the
fact that special meetings of the stockholders may be called only by our Chairman, President,
or upon the request of a majority of our Board.
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All
of these provisions, as well as the provisions of Section 203 of the Delaware General Corporation Law (“DGCL”) (to
which we are subject), could impede a merger, consolidation, takeover, or other business combination involving us or discourage
a potential acquirer from making a tender offer or otherwise attempting to obtain control of us.
Our
outstanding stock options and restricted stock units may inhibit our ability to accomplish future financings and adversely affect
the price and liquidity of our Class A Common Stock.
As of February 9, 2018, there were issued and outstanding:
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25,727,981
shares of our Class A Common Stock;
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outstanding
options under the Plan to purchase an aggregate of 1,030,035 shares of our Class A Common
Stock, with a weighted average exercise price of approximately $1.73 per share; and
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restricted
stock unit awards for 1,649,353 shares of our Class A Common Stock that have been granted
but that remain unissued, of which 1,287,370 have vested.
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In
addition, 1,664,870 shares of our Class A Common Stock were reserved as of February 9, 2018, for issuance pursuant to future grants
to be made under the Plan and 358,008 shares of our Class A Common Stock were reserved as of February 9, 2018 for issuance pursuant
to the 2014 ESPP. The existence of our outstanding options restricted stock units, and the potential for sales of significant
amounts of previously unregistered shares of our Class A Common Stock in the public market, or the perception that such sales
could occur, following the exercise of these derivative securities may adversely affect the terms on which we can obtain additional
financing or the prevailing price of our Class A Common Stock.
We
may issue additional shares of our Class A Common Stock in the future, which could cause significant dilution to all stockholders.
Our authorized capital stock consists of 55,000,000 shares, divided into 50,000,000 shares of common stock, par value
$0.01 per share, and 5,000,000 shares of preferred stock, par value $0.01 per share. As of February 9, 2018, 25,727,981 shares
of our Class A Common Stock were outstanding. We may issue additional shares of Class A Common Stock in the future in connection
with a financing, acquisition, upon exercise of outstanding options, or in connection with the grant of restricted stock units.
Any issuance of additional shares of our Class A Common Stock, or equity securities convertible into our Class A Common Stock,
including, but not limited to, preferred stock, warrants, and options, will dilute the percentage ownership interest of all stockholders,
may dilute the book value per share of our Class A Common Stock, and may negatively impact the market price of our Class A Common
Stock.
Sales
of a substantial number of shares of our Class A Common Stock in the public market, or the perception that they may occur, may
depress the market price of our Class A Common Stock.
Of the total number of shares of Class A Common Stock currently
issued and outstanding, almost all of our outstanding shares are freely transferable or can be publicly resold pursuant to Rule
144 promulgated under the Securities Act of 1933, as amended (the “Securities Act”). In general, under Rule 144 as
currently in effect, a person (or persons whose shares are aggregated) who has beneficially owned restricted securities for at
least six months, including our affiliates, would be entitled to sell such securities, subject to the availability of current
public information about the company. A person who has not been our affiliate at any time during the three months preceding a
sale, and who has beneficially owned his shares for at least one year, would be entitled under Rule 144 to sell such shares without
regard to any limitations under Rule 144. Under Rule 144, sales by our affiliates are subject to volume limitations, manner of
sale provisions and notice requirements. The ability to sell shares of our Class A Common Stock to the public, whether pursuant
to an effective registration statement, Rule 144, or an exemption from the registration requirements, may adversely affect the
price of our Class A Common Stock by creating an excessive supply, the scope or extent of which effect we cannot predict. Likewise,
the ability for sale of substantial amounts of our Class A Common Stock could reduce the prevailing market price.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference in this prospectus contains forward-looking statements within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act, and the Private Securities Litigation Reform Act of
1995. Forward-looking statements are those that predict or describe future events or trends and that do not relate solely to historical
matters. You can generally identify forward-looking statements as statements containing the words “may,” “will,”
“could,” “should,” “expect,” “anticipate,” “intend,” “estimate,”
“believe,” “project,” “plan,” “assume,” or other similar expressions, or negatives
of those expressions, although not all forward-looking statements contain those identifying words. All statements contained in
this prospectus and the documents incorporated by reference in this prospectus regarding our business strategy, future operations,
projected financial position, potential strategic transactions, proposed distribution channels, projected sales growth, proposed
new products, estimated future revenues, cash flows, and profitability, projected costs, potential sources of additional capital,
future prospectus, future economic conditions, the future of our industry, and results that might be obtained by pursuing management’s
current plans and objectives are forward-looking statements. You should not place undue reliance on our forward-looking statements
because the matters they describe are subject to certain risks, uncertainties, and assumptions that are difficult to predict.
Our forward-looking statements are based on the information currently available to us and speak only as of the date on the cover
of this prospectus or the respective date of each document incorporated by reference in this prospectus. Over time, our actual
results, performance, or achievements may differ from those expressed or implied by our forward-looking statements, and such difference
might be significant and materially adverse to our security holders. Except as required by law, we undertake no obligation to
update publicly any forward-looking statements, whether as a result of new information, future events, or otherwise. We have identified
some of the important factors that could cause future events to differ from our current expectations under the caption “Risk
Factors” in this prospectus, as well as in our most recent Annual Report on Form 10-K, Quarterly Reports on Form 10-Q for
the quarters ended September 30, 2017 and December 31, 2017, and in other documents that we may file with the SEC, all of which
you should review carefully. Please consider our forward-looking statements in light of those risks as you read this prospectus.
USE
OF PROCEEDS
All
of the shares of our Class A Common Stock covered by this prospectus are being offered and sold by the selling stockholders. See
“Selling Stockholders.” We will not receive any proceeds from these sales of our Class A Common Stock. We will pay
all of the fees and expenses incurred by us in connection with this registration. We will not be responsible for fees and expenses
incurred by the selling stockholders or any underwriting discounts or agent’s commissions.
DETERMINATION
OF OFFERING PRICE
The
price of the shares of Class A Common Stock offered for sale by the selling stockholders pursuant to the terms of the offering
described in this prospectus will be at prevailing market prices, at privately negotiated prices, or pursuant to any other method
permitted by applicable law. Factors that are relevant to the determination of the offering price may include, but are not limited
to, the market price for the shares, consideration of the amount of Class A Common Stock offered for sale relative to the total
number of shares of Class A Common Stock outstanding, the trading history of our outstanding securities, our financial prospects,
and the trading price of other companies similar to us in terms of size, operating characteristics, industry and other similar
factors.
DESCRIPTION
OF CAPITAL STOCK
The
following is a summary of all material characteristics of our capital stock as set forth in our Certificate of Incorporation,
and our Bylaws. The summary does not purport to be complete and is qualified in its entirety by reference to our Certificate of
Incorporation and our Bylaws, and to the provisions of the DGCL. We encourage you to review complete copies of our Certificate
of Incorporation and our Bylaws. You can obtain copies of these documents by following the directions outlined in “Where
You Can Find More Information” elsewhere in this prospectus.
General
Our
authorized capital stock consists of 55,000,000 shares, divided into 50,000,000 shares of common stock, par value $0.01 per share,
and 5,000,000 shares of preferred stock, par value $0.01 per share. Under our Certificate of Incorporation, our Board has the
authority to issue such shares of common stock and preferred stock in one or more classes or series, with such voting powers,
designations, preferences and relative, participating, optional or other special rights, if any, and such qualifications, limitations
or restrictions thereof, if any, as shall be provided for in a resolution or resolutions adopted by our Board and filed as designations.
Class
A Common Stock
Of
the 50,000,000 shares of common stock authorized in our Certificate of Incorporation, our Board has previously designated 44,500,000
shares as Class A Common Stock. As of February 9, 2018, 25,727,981 shares of our Class A Common Stock were outstanding. The remaining
5,500,000 shares of authorized common stock were designated as Class E-1 common stock, Class E-2 common stock, or Class E-3 common
stock, all previously outstanding shares of which have been previously redeemed or converted into shares of our Class A Common
Stock.
Holders
of our Class A Common Stock are entitled to one vote per share in the election of directors and on all other matters of which
stockholders are entitled or permitted to vote. Holders of our Class A Common Stock are not entitled to cumulative voting rights
for election of directors. Subject to the terms of any outstanding series of preferred stock, the holders of Class A Common Stock
are entitled to dividends in the amounts and at times as may be declared by our Board out of funds legally available. We have
not paid any dividends and do not anticipate paying any dividends on our Class A Common Stock in the foreseeable future. It is
our present policy to retain earnings, if any, for use in the development of our business. Upon liquidation, dissolution, or winding-up,
holders of our Class A Common Stock are entitled to share ratably in all net assets available for distribution to stockholders
after payment of any liquidation preferences to holders of our preferred stock, if any. Holders of our Class A Common Stock do
not have any redemption rights or any preemptive or preferential rights enabling a holder to subscribe for, or receive shares
of, any class of our common stock or any other securities convertible into shares of any class of our common stock.
As
of February 9, 2018, we have reserved for issuance 1,649,353 shares of our Class A Common Stock underlying outstanding restricted
stock units, 1,030,035 shares of our Class A Common Stock for issuance upon the exercise of outstanding stock options, 1,664,870
shares of our Class A Common Stock for issuance under the Plan, and 358,008 shares of our Class A Common Stock for issuance under
our 2014 ESPP.
Preferred
Stock
Of
the 5,000,000 shares of preferred stock authorized in our Certificate of Incorporation, our Board has previously designated:
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250
shares of our preferred stock as Series A Preferred Stock, all previously outstanding
shares of which have been previously redeemed or converted into shares of our Class A
Common Stock and may not be reissued;
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300
shares of our preferred stock as Series B Preferred Stock, all previously outstanding
shares of which have been previously redeemed or converted into shares of our Class A
Common Stock and may not be reissued;
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500
shares of our preferred stock as Series C Preferred Stock, all previously outstanding
shares of which have been previously redeemed or converted into shares of our Class A
Common Stock and may not be reissued;
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500,000
shares of our preferred stock as Series D Participating Preferred Stock, none of which
have been issued; however, in 1998, our Board declared a dividend distribution as a right
to purchase one share of Series D Participating Preferred Stock for each outstanding
share of Class A Common Stock (see “Series D Participating Preferred Stock Purchase
Rights” below); and
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500
shares of our preferred stock as Series F Preferred Stock, all previously outstanding
shares of which have been previously redeemed or converted into shares of our Class A
Common Stock and may not be reissued.
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4,498,450
shares of our preferred stock remain available for designation by our Board. Accordingly, our Board is empowered, without stockholder
approval, to issue preferred stock with dividend, liquidation, conversion, voting or other rights that could adversely affect
the voting power or other rights of the holders of common stock. The issuance of preferred stock could have the effect of restricting
dividends on the common stock, diluting the voting power of the common stock, impairing the liquidation rights of the common stock,
or delaying or preventing a change in control of us, all without further action by our stockholders.
Series
D Participating Preferred Stock Purchase Rights
On
February 25, 1998, our Board declared a dividend distribution of a right to purchase one share of Series D Participating Preferred
Stock (the “Series D Participating Preferred Stock Purchase Rights” or, the “Rights”) for each outstanding
share of Class A Common Stock, which dividend distribution was paid on May 1, 1998. The Rights are designated to guard against
partial tender offers and other abusive and coercive tactics that might be used in an attempt to gain control of us or to deprive
our stockholders of their interest in our long-term value. These Rights seek to achieve these goals by forcing a potential acquirer
to negotiate with our Board (or go to court to try to force the Board to redeem the Rights), because only our Board can redeem
the Rights and allow the potential acquirer to acquire our shares without suffering very significant dilution. However, these
Rights also could deter or prevent transactions that stockholders deem to be in their interests, and could reduce the price that
investors or an acquirer might be willing to pay in the future for shares of our Class A Common Stock.
Each
Right entitles the registered holder to purchase one one-hundredth of a share of our Series D Participating Preferred Stock at
a price of $35.00 per share, subject to adjustment. Because of the nature of the dividend, liquidation, and voting rights of the
Series D Participating Preferred Stock, the value of one one-hundredth interest in a share of the Series D Participating Preferred
Stock purchasable upon exercise of each right should approximate the value of one share of Class A Common Stock.
The
Rights will be exercisable only if a person or group acquires twenty percent (20%) or more of our Class A Common Stock or announces
a tender offer the consummation of which would result in ownership by a person or group of twenty percent (20%) or more of our
Class A Common Stock. Our Board may redeem the Rights at a price of $0.01 per Right. The Rights will expire at the close of business
on February 28, 2021 unless the expiration date is extended or unless the Rights are earlier redeemed or exchanged by us.
Options
As
of February 9, 2018, we had 1,030,035 shares of our Class A Common Stock underlying stock options outstanding, having a weighted-average
exercise price of approximately $1.73 per share.
Anti-Takeover
Effects of Delaware Law and our Certificate of Incorporation and Bylaws
In
addition to the Series D Participating Preferred Stock Purchase Rights, certain provisions of the DGCL, our Certificate of Incorporation,
and our Bylaws could make the acquisition of the Company or the removal of incumbent officers and directors more difficult. In
certain circumstances, the fact that corporate devices are in place that will inhibit or discourage takeover attempts could reduce
the market value of our Class A Common Stock. Such provisions may discourage other persons from attempting to acquire control
of us. These provisions include the following:
Section
203 of the Delaware General Corporation Law.
We are subject to the provisions of Section 203 of the DGCL. Section 203 of the
DGCL prohibits a publicly-held Delaware corporation from engaging in a “business combination” with an “interested
stockholder” for a period of three years after the person became an interested stockholder, unless:
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the
board of directors of the corporation approved the business combination or the other
transaction in which the person became an interested stockholder prior to the date of
the business combination or other transaction;
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upon
consummation of the transaction that resulted in the person becoming an interested stockholder,
the person owned at least 85% of the voting stock of the corporation outstanding at the
time the transaction commenced, excluding for purposes of determining the number of shares
outstanding, shares owned by persons who are directors and also officers of the corporation
and shares issued under employee stock plans under which employee participants do not
have the right to determine confidentially whether shares held subject to the plan will
be tendered in a tender or exchange offer; or
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on
or subsequent to the date the person became an interested stockholder, the board of directors
of the corporation approved the business combination and the stockholders of the corporation
authorized the business combination at an annual or special meeting of stockholders by
the affirmative vote of at least 66-2/3% of the outstanding voting stock of the corporation
that is not owned by the interested stockholder.
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A
“business combination” includes mergers, asset sales, and other transactions resulting in a financial benefit to the
interested stockholder. Subject to certain exceptions, an “interested stockholder” is a person who, together with
affiliates and associates, owns, or within the prior three years did own, 15% or more of a corporation’s voting stock.
Section
203 of the DGCL could depress our stock price and delay, discourage, or prohibit transactions not approved in advance by our Board,
such as takeover attempts that might otherwise involve the payment to our stockholders of a premium over the market price of our
Class A Common Stock.
Certificate
of Incorporation and Bylaws
Our
Certificate of Incorporation and Bylaws include a number of provisions that may have the effect of deterring hostile takeovers
or delaying or preventing changes in our control or our management, including, but not limited to the following:
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Our
Certificate of Incorporation provides that our Board is to be divided into three classes,
as nearly equal in number as possible, with directors in each class serving three-year
terms. Provisions of this type may serve to delay or prevent an acquisition of us or
a change in our directors and officers.
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Our
Certificate of Incorporation and Bylaws provide that all stockholder actions must be
effected at a duly called meeting of stockholders and not by written consent.
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Our
Bylaws provide that special meetings of our stockholders may be called only by the Chairman
of the Board, President, or a majority of the Board.
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Our
Bylaws provide that stockholders seeking to present proposals before a meeting of stockholders
or to nominate candidates for election as directors at a meeting of stockholders must
provide timely notice in writing and also specify requirements as to the form and content
of a stockholder’s notice. These provisions may delay or preclude stockholders
from bringing matters before a meeting of our stockholders or from making nominations
for directors at a meeting of stockholders, which could delay or deter takeover attempts
or changes in our management.
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Our
Certificate of Incorporation does not include a provision for cumulative voting for directors.
Under cumulative voting, a minority stockholder holding a sufficient percentage of a
class of shares could be able to ensure the election of one or more directors.
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Our
Bylaws provide that unless we consent in writing to the selection of an alternative forum,
the courts in the State of Delaware are, to the fullest extent permitted by applicable
law, the sole and exclusive forum for any claims, including claims in the right of the
Company, brought by a stockholder (i) that are based upon a violation of a duty by a
current or former director or officer or stockholder in such capacity or (ii) as to which
the DGCL confers jurisdiction upon the Court of Chancery of the State of Delaware.
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These
and other provisions contained in our Certificate of Incorporation and Bylaws are expected to discourage coercive takeover practices
and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first
negotiate with our Board. However, these provisions could delay or discourage transactions involving an actual or potential change
in control of us, including transactions in which stockholders might otherwise receive a premium for their shares over then current
prices. Such provisions could also limit the ability of stockholders to remove current management or approve transactions that
stockholders may deem to be in their best interests and, therefore, could adversely affect the price of our Class A Common Stock.
Market
Information
Our
Class A Common Stock is listed on the NCM under the ticker symbol “LPTH.”
Transfer
Agent and Registrar
The
transfer agent and registrar for our Class A Common Stock is Computershare Inc. (“Computershare”), 211 Quality Circle,
Suite 210, College Station, Texas 77845. Computershare’s telephone number is (781) 575-4223, or toll free at 1-800-368-5948.
SELLING
STOCKHOLDERS
The
“selling stockholders” named in this prospectus may sell shares of our Class A Common Stock registered pursuant to
the registration statement of which this prospectus forms a part. This prospectus covers the resale of 967,208 shares of Class
A Common Stock issued to the selling stockholders named in this prospectus in connection with that certain Note Satisfaction and
Securities Purchase Agreement, dated January 16, 2018, by and between us and the selling stockholders.
The
following table sets forth certain information provided to us by the selling stockholders with respect to the beneficial ownership
of our Class A Common Stock by the selling stockholders as of February 9, 2018. The following table assumes that the selling stockholders
sell all of their shares; however, we are unable to determine the exact number of shares that will actually be sold. The percentage
of shares beneficial owned prior to the offering is based on 25,727,981 shares outstanding at February 9, 2018, determined in
accordance with Rule 13d-3 promulgated under the Exchange Act, and the information is not necessarily indicative of beneficial
ownership for any other purpose. Under such rule, beneficial ownership includes any shares as to which the individual has sole
or shared voting power or investment power and also any shares which the individual has the right to acquire within sixty days
of February 9, 2018, through the exercise of any warrants or other right.
Selling
Stockholder
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Number
of Shares of Class A Common Stock Beneficially Owned Prior to Offering
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Percentage
of Class A Common Stock Beneficially Owned Prior to Offering (1)
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Number
of Shares of Class A Common Stock Offered for Sale Hereunder
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Number
of Shares of Class A Common Stock Beneficially Owned Assuming Sale of All Shares Offered Hereunder
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Percentage
of Class A Common Stock Beneficially Owned Assuming Sale of All Shares Offered Hereunder
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Joseph
Menaker
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483,604
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1.9%
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483,604
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–
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–
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Mark
Lifshotz
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483,604
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1.9%
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483,604
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–
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–
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TOTAL
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967,208
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PLAN
OF DISTRIBUTION
We
are registering the shares of Class A Common Stock issued to the selling stockholders to permit the resale of these shares of
Class A Common Stock by the selling stockholders from time to time after the date of this prospectus. We will not receive any
of the proceeds from the sale by the selling stockholders of the shares of Class A Common Stock. We will bear all fees and expenses
incident to our obligation to register the shares of Class A Common Stock.
The
selling stockholders may sell all or a portion of the shares of Class A Common Stock held by them and offered hereby from time
to time directly or through one or more underwriters, broker-dealers, or agents. If the shares of Class A Common Stock are sold
through underwriters or broker-dealers, the selling stockholders will be responsible for underwriting discounts or commissions
or agent’s commissions. The shares of Class A Common Stock may be sold in one or more transactions at fixed prices, at prevailing
market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales
may be effected in transactions, which may involve crosses or block transactions, pursuant to one or more of the following methods:
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on
any national securities exchange or quotation service on which the securities may be
listed or quoted at the time of sale;
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in
the over-the-counter market;
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in
transactions otherwise than on these exchanges or systems or in the over-the-counter
market;
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through
the writing or settlement of options, whether such options are listed on an options exchange
or otherwise;
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ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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block
trades in which the broker-dealer will attempt to sell the shares as agent but may position
and resell a portion of the block as principal to facilitate the transaction;
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its account;
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an
exchange distribution in accordance with the rules of the applicable exchange;
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privately
negotiated transactions;
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short
sales made after the date the registration statement is declared effective by the SEC;
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broker-dealers
may agree with a selling stockholder to sell a specified number of such shares at a stipulated
price per share;
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a
combination of any such methods of sale; and
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any
other method permitted pursuant to applicable law.
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The
selling stockholders may also sell shares of Class A Common Stock under Rule 144 promulgated under the Securities Act, if available,
rather than under this prospectus. If the selling stockholders effect such transactions by selling shares of Class A Common Stock
to or through underwriters, broker-dealers, or agents, such underwriters, broker-dealers, or agents may receive commissions in
the form of discounts, concessions, or commissions from the selling stockholders or commissions from purchasers of the shares
of Class A Common Stock for whom they may act as agent or to whom they may sell as principal (which discounts, concessions, or
commissions as to particular underwriters, broker-dealers, or agents may be in excess of those customary in the types of transactions
involved). In connection with sales of the shares of Class A Common Stock or otherwise, the selling stockholders may enter into
hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of Class A Common Stock in the
course of hedging in positions they assume. The selling stockholders may also sell shares of Class A Common Stock short and deliver
shares of Class A Common Stock covered by this prospectus to close out short positions and to return borrowed shares in connection
with such short sales. The selling stockholders may also loan or pledge shares of Class A Common Stock to broker-dealers that
in turn may sell such shares.
The
selling stockholders may pledge or grant a security interest in some or all of the shares of Class A Common Stock owned by them
and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares
of Class A Common Stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3)
or other applicable provision of the Securities Act amending, if necessary, the list of selling stockholders to include the pledgee,
transferee, or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer
and donate the shares of Class A Common Stock in other circumstances in which case the transferees, donees, pledgees, or other
successors in interest will be the selling beneficial owners for purposes of this prospectus.
To
the extent required by the Securities Act and the rules and regulations thereunder, the selling stockholders and any broker-dealer
participating in the distribution of the shares of Class A Common Stock may be deemed to be “underwriters” within
the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer
may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares
of Class A Common Stock is made, a prospectus supplement, if required, will be distributed, which will set forth the aggregate
amount of shares of Class A Common Stock being offered and the terms of the offering, including the name or names of any broker-dealers
or agents, any discounts, commissions, and other terms constituting compensation from the selling stockholders and any discounts,
commissions, or concessions allowed or re-allowed or paid to broker-dealers. Each selling stockholder has informed us that it
does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the shares
of Class A Common Stock in violation of any applicable securities laws. In no event shall any broker-dealer receive fees, commissions,
and markups which, in the aggregate, would exceed eight percent (8%).
Under
the securities laws of some states, the shares of Class A Common Stock may be sold in such states only through registered or licensed
brokers or dealers. In addition, in some states the shares of Class A Common Stock may not be sold unless such shares have been
registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied
with.
There
can be no assurance that any selling stockholder will sell any or all of the shares of Class A Common Stock registered pursuant
to the registration statement, of which this prospectus forms a part.
The
selling stockholders and any other person participating in such distribution will be subject to applicable provisions of the Exchange
Act, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange
Act, which may limit the timing of purchases and sales of any of the shares of Class A Common Stock by the selling stockholders
and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged
in the distribution of the shares of Class A Common Stock to engage in market-making activities with respect to the shares of
Class A Common Stock. All of the foregoing may affect the marketability of the shares of Class A Common Stock and the ability
of any person or entity to engage in market-making activities with respect to the shares of Class A Common Stock.
We
will pay all expenses of the registration of the shares of Class A Common Stock pursuant to the registration rights agreement,
estimated to be approximately $32,261 in total, including, without limitation, SEC filing fees and expenses of compliance with
state securities or “blue sky” laws;
provided
,
however
, a selling stockholder will pay all underwriting
discounts and selling commissions, if any. We will indemnify the selling stockholders against liabilities, including some liabilities
under the Securities Act in accordance with the registration rights agreements or the selling stockholders will be entitled to
contribution. We may be indemnified by the selling stockholders against civil liabilities, including liabilities under the Securities
Act that may arise from any written information furnished to us by the selling stockholders specifically for use in this prospectus,
in accordance with the related registration rights agreements or we may be entitled to contribution.
We
agreed to keep this prospectus effective until the earlier of (i) the date on which all of the shares covered by this prospectus
have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect or (ii) February
15, 2021.
Once
sold under the registration statement, of which this prospectus forms a part, the shares of Class A Common Stock will be freely
tradable in the hands of persons other than our affiliates.
LEGAL
MATTERS
The
validity of the Class A Common Stock offered by this prospectus will be passed upon for us by Baker & Hostetler LLP, Orlando,
Florida. If counsel for any selling stockholder or underwriter passes on legal matters in connection with an offering of the Class
A Common Stock described in this prospectus, we will name that counsel in the prospectus supplement to that offering.
EXPERTS
The
consolidated financial statements of LightPath Technologies, Inc. as of June 30, 2017 and 2016 and for each of the two years in
the period ended June 30, 2017 incorporated by reference in this prospectus have been so incorporated in reliance upon the report
of BDO USA, LLP, an independent registered public accounting firm, incorporated herein by reference, given on the authority of
said firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
Available
Information
We
are subject to the reporting requirements of the Exchange Act, and we file annual, quarterly, and current reports, proxy statements,
and other information with the SEC. You may read and copy these reports, proxy statements, and other information that we file
at the SEC’s Public Reference Room at 100 F Street N.E., Room 1580, Washington D.C. 20549 at prescribed rates. Information
on the operation of the Public Reference Room may be obtained by calling the SEC at 1-800-SEC-0330. The SEC also maintains a website
that contains reports, proxy and information statements, and other information regarding issuers that file electronically with
the SEC. Our filings are also available free of charge at the SEC’s website at www.sec.gov.
We
also maintain a website at www.lightpath.com, through which you can access our SEC filings. The information set forth on, or accessible
from, our website is not part of this prospectus.
You
can obtain copies of any of the documents incorporated by reference in this prospectus from us or, as described above, through
the SEC or the SEC’s website at www.sec.gov. Documents incorporated by reference are available from us, without charge,
excluding all exhibits unless specifically incorporated by reference in the documents. You may obtain documents incorporated by
reference in this prospectus by writing to us at the following address or by calling us at LightPath Technologies, Inc., 2603
Challenger Tech Court, Suite 100, Orlando, Florida 32826, Attention: Chief Financial Officer or (407) 382-4003. We also maintain
a website at www.lightpath.com through which you can obtain copies of documents that we have filed with the SEC. The contents
of that website are not incorporated by reference into or otherwise a part of this prospectus.
Incorporation
by Reference
The
SEC’s rules allow us to “incorporate by reference” information into this prospectus, which means that we can
disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated
by reference is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically
update and supersede that information. Any statement contained in a previously filed document incorporated by reference will be
deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus
modifies or replaces that statement. You should not assume that the information in this prospectus is current as of any date other
than the date on the cover page.
We
incorporate by reference our documents listed below and any future filings made by us with the SEC under Sections 13(a), 13(c),
14, or 15(d) of the Exchange Act (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed
on such form that are related to such items unless such Form 8-K expressly provides to the contrary) in this prospectus, between
the date of this prospectus and the termination of the offering of the securities described in this prospectus.
This
prospectus incorporates by reference the documents set forth below that have previously been filed with the SEC:
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Our
Annual Report on Form 10-K for the fiscal year ended June 30, 2017, filed with the SEC
on September 14, 2017;
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Our
Quarterly Report on Form 10-Q for the quarter ended September 30, 2017, filed with the
SEC on November 9, 2017;
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|
Our
Quarterly Report on Form 10-Q for the quarter ended December 31, 2017, filed with the
SEC on February 13, 2018;
|
|
·
|
Our
Definitive Proxy Statement on Schedule 14A, filed with the SEC on September 25, 2017;
|
|
·
|
Our
Current Report on Form 8-K dated September 21, 2017, filed with the SEC on September
22, 2017;
|
|
·
|
Our
Current Report on Form 8-K dated October 26, 2017, filed with the SEC on October 31,
2017;
|
|
·
|
Our
Current Report on Form 8-K dated December 4, 2017, filed with the SEC on December 8,
2017;
|
|
·
|
Our
Current Report on Form 8-K dated December 20, 2017, filed with the SEC on December 22,
2017;
|
|
·
|
Our
Current Report on Form 8-K dated January 16, 2018, filed with the SEC on January 17,
2018;
|
|
·
|
Our
Current Report on Form 8-K dated January 30, 2018, filed with the SEC on February 1,
2018;
|
|
·
|
The
description of our Class a Common Stock contained in our Registration Statement on Form
8-A, dated January 13, 1996, including any amendment or report filed for the purposes
of updating such description;
|
|
·
|
The
description of our Series D Participating Preferred Stock contained in our Registration
Statement on Form 8-A filed with the SEC on April 28, 1998, and as amended by filing
Amendment No. 1 to Form 8-A with the SEC on February 25, 2008 and filing Amendment No.
2 to Form 8-A with the SEC on February 1, 2018; and
|
|
·
|
All
documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14, and 15(d) of
the Exchange Act, subsequent to the effective date of this registration statement, but
prior to the filing of a post-effective amendment to this registration statement indicating
that all securities offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this registration statement
and to be part hereof from the respective dates of filing of such documents.
|
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
ITEM
14.
|
Other
Expenses of Issuance and Distribution
|
The
following table sets forth various expenses relating to the registration, sale, and distribution of the shares of Class A Common
Stock being registered. All of the amounts shown are estimates except for the SEC registration fee.
SEC
registration fee
|
|
$
|
260.70
|
|
Legal
fees and expenses
|
|
|
10,000
|
|
Accounting
fees and expenses
|
|
|
20,000
|
|
Printing
and miscellaneous fees and expenses
|
|
|
2,000
|
|
Total
|
|
$
|
32,260.70
|
|
|
ITEM
15.
|
Indemnification
of Directors and Officers
|
Section
145 of the DGCL provides for the indemnification of officers and directors of corporations in terms sufficiently broad to indemnify
our officers and directors under certain circumstances from liabilities (including reimbursement of expenses incurred) arising
under the Securities Act. Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that
a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (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) in respect of certain unlawful dividend payments or stock redemptions or repurchases, or (iv) for any transaction
from which the director derived an improper personal benefit.
As
permitted by the DGCL, our Certificate of Incorporation provides that the personal liability of each member of our Board or our
stockholders for monetary damages for breach of fiduciary duty as a director is eliminated. The effect of this provision in the
Certificate of Incorporation is to eliminate our rights and the rights of our stockholders (through stockholders’ derivative
suits on our behalf) to recover monetary damages against a director for breach of fiduciary duty as a director thereof (including
breaches resulting from negligent or grossly negligent behavior) except in the situations described in clauses (i)-(iv), inclusive,
above. Specifically, Article TENTH of the Certificate of Incorporation 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 (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 GCL. This Article
shall eliminate or limit the liability of a director for any act or omission occurring prior to the time this Article became effective.
In
addition, Article 7 of our Bylaws provides, in summary, that we are 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 our officer, director, employee, or agent. Indemnification is against all liability and loss suffered and expenses reasonably
incurred to the fullest extent permitted by applicable law. Unless required by law, no such indemnification is required by us
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 or she is ultimately found to not be entitled to indemnification.
The
Bylaws further provide that the indemnification rights provided for in the Bylaws shall not be deemed exclusive of any rights
to the indemnified party under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers, and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been informed that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
We
provide indemnity insurance pursuant to which officers and directors are indemnified or insured against liability or loss under
certain circumstances, which may include liability or related loss under the Securities Act and the Exchange Act.
|
ITEM
16.
|
Exhibits
and Financial Statement Schedules
|
Exhibit
Number
|
|
Description
|
|
|
|
3.1.1
|
|
Certificate
of Incorporation, filed June 15, 1992 with the Secretary of State of Delaware, which was filed as an exhibit to our Registration
Statement on Form SB-2 (File No: 33-80119) filed with the SEC on December 7, 1995, and is incorporated herein by reference
thereto.
|
|
|
|
3.1.2
|
|
Certificate
of Amendment to Certificate of Incorporation, filed October 2, 1995 with the Secretary of State of Delaware, which was filed
as an exhibit to our Registration Statement on Form SB-2 (File No: 33-80119 filed with the SEC on December 7, 1995, and is
incorporated herein by reference thereto.
|
|
|
|
3.1.3
|
|
Certificate
of Designations of Class A common stock and Class E-1 common stock, Class E-2 common stock, and Class E-3 common stock, filed
November 9, 1995 with the Secretary of State of Delaware, which was filed as an exhibit to our Registration Statement on Form
SB-2 (File No: 33-80119) filed with the SEC on December 7, 1995, and is incorporated herein by reference thereto.
|
|
|
|
3.1.4
|
|
Certificate
of Designation of Series A Preferred Stock, filed July 9, 1997 with the Secretary of State of Delaware, which was filed as
Exhibit 3.4 to our Annual Report on Form 10-KSB40 filed with the SEC on September 11, 1997, and is incorporated herein by
reference thereto.
|
|
|
|
3.1.5
|
|
Certificate
of Designation of Series B Stock, filed October 2, 1997 with the Secretary of State of Delaware, which was filed as Exhibit
3.2 to our Quarterly Report on Form 10-QSB (File No. 000-27548) filed with the SEC on November 14, 1997, and is incorporated
herein by reference thereto.
|
|
|
|
3.1.6
|
|
Certificate
of Amendment of Certificate of Incorporation, filed November 12, 1997 with the Secretary of State of Delaware, which was filed
as Exhibit 3.1 to our Quarterly Report on Form 10-QSB (File No. 000-27548) filed with the SEC on November 14, 1997, and is
incorporated herein by reference thereto.
|
|
|
|
3.1.7
|
|
Certificate
of Designation of Series C Preferred Stock, filed February 6, 1998 with the Secretary of State of Delaware, which was filed
as Exhibit 3.2 to our Registration Statement on Form S-3 (File No. 333-47905) filed with the SEC on March 13, 1998, and is
incorporated herein by reference thereto.
|
|
|
|
3.1.8
|
|
Certificate
of Designation, Preferences and Rights of Series D Participating Preferred Stock, filed April 29, 1998 with the Secretary
of State of Delaware, which was filed as Exhibit 1 to our Registration Statement on Form 8-A (File No. 000-27548) filed with
the SEC on April 28, 1998, and is incorporated herein by reference thereto.
|
|
|
|
3.1.9
|
|
Certificate
of Designation of Series F Preferred Stock, filed November 2, 1999 with the Secretary of State of Delaware, which was filed
as Exhibit 3.2 to our Registration Statement on Form S-3 (File No: 333-94303) filed with the SEC on January 10, 2000, and
is incorporated herein by reference thereto.
|
|
|
|
3.1.10
|
|
Certificate
of Amendment of Certificate of Incorporation, filed February 28, 2003 with the Secretary of State of Delaware, which was filed
as Appendix A to our Proxy Statement (File No. 000-27548) filed with the SEC on January 24, 2003, and is incorporated herein
by reference thereto.
|
|
|
|
3.1.11
|
|
Certificate
of Amendment of Certificate of Incorporation, filed March 1, 2016 with the Secretary of State of Delaware, which was filed
as Exhibit 3.1.11 to our Quarterly Report on Form 10-Q (File No: 000-27548) filed with the SEC on November 14, 2016, and is
incorporated herein by reference thereto.
|
|
|
|
3.1.12
|
|
Certificate
of Amendment of Certificate of Incorporation, filed October 30, 2017 with the Secretary of State of Delaware, which was filed
as Exhibit 3.1 to our Current Report on Form 8-K (File No: 000-27548) filed with the SEC on October 31, 2017, and is incorporated
herein by reference thereto.
|
3.1.13
|
|
Certificate
of Amendment of Certificate of Designations of Class A Common Stock and Class E-1 Common Stock, Class E-2 Common Stock, and
Class E-3 Common Stock, filed October 30, 2017 with the Secretary of State of Delaware, which was filed as Exhibit 3.2 to
our Current Report on Form 8-K (File No: 000-27548) filed with the SEC on October 31, 2017, and is incorporated herein by
reference thereto.
|
|
|
|
3.1.14
|
|
Certified
of Amendment of Certificate of Designation, Preferences and Rights of Series D Participating Preferred Stock, filed January
30, 2018 with the Secretary of State of Delaware, which was filed as Exhibit 3.1 to our Current Report on Form 8-K (File No:
000-27548) filed with the SEC on February 1, 2018, and is incorporated herein by reference thereto.
|
|
|
|
3.2.1
|
|
Amended
and Restated Bylaws, which was filed as Exhibit 3.1 to our Current Report on Form 8-K (File No: 000-27548) filed with the
SEC on February 3, 2015, and is incorporated herein by reference thereto.
|
|
|
|
3.2.2
|
|
First
Amendment to Amended and Restated Bylaws, which was filed as Exhibit 3.1 to our Current Report on Form 8-K (File No: 000-27548)
filed with the SEC on September 21, 2017, and is incorporated herein by reference thereto.
|
|
|
|
4.1
|
|
Rights
Agreement dated May 1, 1998, between LightPath Technologies, Inc. and Continental Stock Transfer & Trust Company, which
was filed as Exhibit 1 to Registration Statement on Form 8-A filed with the SEC on April 28, 1998, and is incorporated herein
by reference thereto.
|
|
|
|
4.2
|
|
First
Amendment to Rights Agreement dated February 25, 2008, between LightPath Technologies, Inc. and Continental Stock Transfer
& Trust Company, which was filed as Exhibit 2 to Amendment No. 1 to Form 8-A filed with the SEC on February 25, 2008,
and is incorporated herein by reference thereto.
|
|
|
|
4.3
|
|
Second
Amendment to Rights Agreement dated January 30, 2018, between LightPath Technologies, Inc. and Continental Stock Transfer
& Trust Company, which was filed as Exhibit 4.1 to our Current Report on Form 8-K (File No: 000-27548) filed
with the SEC on February 1, 2018, and is incorporated herein by reference thereto.
|
|
|
|
5.1
|
|
Legal
Opinion of Baker & Hostetler LLP*
|
|
|
|
10.1
|
|
Amended
and Restated Omnibus Incentive Plan dated October 15, 2002, as amended, which was filed as Exhibit 10.1 to our Current Report
on Form 8-K (File No: 000-27548) filed with the SEC on October 31, 2017, and is incorporated herein by reference thereto.
|
|
|
|
10.2
|
|
Employee
Letter Agreement dated June 12, 2008, between LightPath Technologies, Inc., and J. James Gaynor, its Chief Executive Officer
& President, which was filed as Exhibit 99.1 to our Current Report on Form 8-K (File No: 000-27548) filed with the SEC on
June 17, 2008, and is incorporated herein by reference thereto.
|
|
|
|
10.3
|
|
LightPath
Technologies, Inc. Employee Stock Purchase Plan effective January 30, 2015, which was filed as Appendix A to our Definitive
Proxy Statement on Schedule 14A (File No: 000-27548) filed with the SEC on December 19, 2014, and is incorporated herein by
reference thereto.
|
|
|
|
10.4
|
|
Second
Amended and Restated Loan and Security Agreement dated December 21, 2016 by and between LightPath Technologies, Inc. and AvidBank
Corporate Finance, a division of AvidBank, which was filed as Exhibit 10.2 to our Current Report on Form 8-K (File No: 000-27548)
filed with the SEC on December 27, 2016, and is incorporated herein by reference thereto.
|
|
|
|
10.5
|
|
Sixth
Amendment to Lease dated as of July 2, 2014 between LightPath Technologies, Inc. and Challenger Discovery LLC, which was filed
as Exhibit 10.1 to our Current Report on Form 8-K (File No: 000-27548) filed with the SEC on July 8, 2014, and is incorporated
herein by reference thereto.
|
|
|
|
10.6
|
|
Stock
Purchase Agreement dated August 3, 2016 by and among LightPath Technologies, Inc., ISP Optics Corporation, Mark Lifshotz,
and Joseph Menaker, which was filed as Exhibit 10.8 to our Annual Report on Form 10-K (File No: 000-27548) filed with the
SEC on September 15, 2016, and is incorporated herein by reference thereto.**
|
10.7
|
|
Unsecured
Promissory Note dated December 21, 2016 in favor of Joseph Menaker and Mark Lifshotz, which was filed as Exhibit 10.1 to our
Current Report on Form 8-K (File No: 000-27548) filed with the SEC on December 27, 2016, and is incorporated herein by reference
thereto.
|
|
|
|
10.8
|
|
Affirmation
of Guarantee of Geltech, Inc., which was filed as Exhibit 10.3 to our Current Report on Form 8-K (File No: 000-27548) filed
with the SEC on December 27, 2016, and is incorporated herein by reference thereto.
|
|
|
|
10.9
|
|
Joinder
Agreement dated December 22, 2016 by and between ISP Optics Corporation and AvidBank Corporate Finance, a division of AvidBank,
which was filed as Exhibit 10.4 to our Current Report on Form 8-K (File No: 000-27548) filed with the SEC on December 27,
2016, and is incorporated herein by reference thereto.
|
|
|
|
10.10
|
|
Underwriting
Agreement dated December 16, 2016, between LightPath Technologies, Inc. and Roth Capital Partners, LLC, as representative
of the several underwriters, which was filed as Exhibit 1.1 to our Current Report on Form 8-K (File No: 000-27548) filed with
the SEC on December 20, 2016, and is incorporated herein by reference thereto.
|
|
|
|
10.11
|
|
First
Amendment to Second Amended and Restated Loan and Security Agreement dated December 20, 2017 by and between LightPath Technologies,
Inc. and AvidBank Corporate Finance, a division of AvidBank, which was filed as Exhibit 10.1 to our Current Report on Form
8-K (File No: 000-27548) filed with the SEC on December 22, 2017, and is incorporated herein by reference thereto.
|
|
|
|
10.12
|
|
Note
Satisfaction and Securities Purchase Agreement dated January 16, 2018, by and between LightPath Technologies, Inc., Joseph
Menaker, and Mark Lifshotz, which was filed as Exhibit 10.1 to our Current Report on Form 8-K (File No: 000-27548) filed with
the SEC on January 17, 2018, and is incorporated herein by reference thereto.
|
|
|
|
10.13
|
|
Registration
Rights Agreement dated January 16, 2018, by and between LightPath Technologies, Inc., Joseph Menaker, and Mark Lifshotz, which
was filed as Exhibit 10.2 to our Current Report on Form 8-K (File No: 000-27548) filed with the SEC on January
17, 2018, and is incorporated herein by reference thereto.
|
|
|
|
10.14
|
|
Second
Amendment to Second Amended and Restated Loan and Security Agreement dated December 20, 2017 by and between LightPath Technologies,
Inc. and AvidBank Corporate Finance, a division of AvidBank, which was filed as Exhibit 10.3 to our Current Report on Form
8-K (File No: 000-27548) filed with the SEC on January 17, 2018, and is incorporated herein by reference thereto.
|
|
|
|
10.15
|
|
Affirmation
of Guarantee of GelTech, Inc., which was filed as Exhibit 10.4 to our Current Report on Form 8-K (File No: 000-27548) filed
with the SEC on January 17, 2018, and is incorporated herein by reference thereto.
|
|
|
|
10.16
|
|
Amendment
No. 8 to the Amended and Restated LightPath Technologies, Inc. Omnibus Incentive Plan dated February 8, 2018, which was
filed as Exhibit 10.7 to our Quarterly Report on Form 10-Q (File No. 000-27548) filed with the SEC on February 13, 2018, and
is incorporated herein by reference thereto.
|
|
|
|
23.1
|
|
Consent
of BDO USA LLP, independent registered public accounting firm *
|
|
|
|
23.2
|
|
Consent
of Baker & Hostetler LLP (contained in Exhibit 5.1) *
|
|
|
|
24.1
|
|
Power
of Attorney (included on the signature page to this registration statement)
|
*
|
Filed
herewith.
|
**
|
The
schedules to the Stock Purchase Agreement filed as Exhibit 10.6 have been omitted pursuant to Item 601(b)(2) of Regulation
S-K. We hereby undertake to provide copies of the omitted schedules to the SEC upon request.
|
|
|
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;
(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 SEC 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; and
(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), (a)(1)(ii), and (a)(1)(iii) of this section do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the
registrant pursuant to Section 13 or 15 (d) of the Exchange Act that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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.
(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.
(4)
That,
for the purpose of determining liability under the Securities Act to any purchaser:
(a)
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(b)
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5)
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 Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to section 15(d) of the Exchange Act) 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.
(6)
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
SEC 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.
(7)
For
purposes of determining any liability under the Securities Act:
(a)
The
information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time it was declared effective.
(b)
Each
post-effective amendment that contains a form of prospectus 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, 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, thereunto duly authorized in the City of Orlando, State of Florida, on February 14, 2018.
|
LIGHTPATH
TECHNOLOGIES, INC.
|
|
|
|
|
By:
|
|
/s/
J. James Gaynor
|
|
Name:
|
|
J.
James Gaynor
|
|
Title:
|
|
President
and Chief Executive Officer
|
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints J. James Gaynor or Dorothy
M. Cipolla, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this registration
statement (including pre and post- effective amendments and registration statements filed pursuant to Rule 462 or otherwise) and
to file the same, with all exhibits thereto, and the other documents in connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and agents and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following
persons in the capacities indicated.
Signatures
|
|
Title
|
|
Date
|
|
|
|
/s/
J. James Gaynor
J.
James Gaynor
|
|
President
and Chief Executive Officer (principal executive officer)
|
|
February
8, 2018
|
|
|
|
/s/
Dorothy M. Cipolla
Dorothy
M. Cipolla
|
|
Chief
Financial Officer (principal financial and principal accounting officer)
|
|
February
8, 2018
|
|
|
|
/s/
Robert Ripp
Robert
Ripp
|
|
Chairman
of the Board and Director
|
|
February
8, 2018
|
|
|
|
/s/
Sohail Khan
Sohail
Khan
|
|
Director
|
|
February
8, 2018
|
|
|
|
/s/
Steven Brueck
Steven
Brueck
|
|
Director
|
|
February
8, 2018
|
|
|
|
/s/
M. Scott Faris
M.
Scott Faris
|
|
Director
|
|
February
8, 2018
|
Louis
Leeburg
|
|
Director
|
|
February
8, 2018
|
Craig
Dunham
|
|
Director
|
|
February
7, 2018
|
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