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As filed with the Securities and Exchange Commission on October 29,November 4, 1998
Registration No. 33-333-66297
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PRECISION OPTICS CORPORATION, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 04-2795294
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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22 East Broadway
Gardner, Massachusetts 01440
(978) 630-1800
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
JACK P. DREIMILLER COPY TO:
SENIOR VICE PRESIDENT, FINANCECopy to:
Senior Vice President, Finance EDWARD A. BENJAMIN, ESQUIRE
AND CHIEF FINANCIAL OFFICERand Chief Financial Officer ROPES & GRAY
PRECISION OPTICS CORPORATION One International Place
22 East Broadway Boston, MA 02110-2624
Gardner, Massachusetts 01440 (617) 951-7434
(978) 630-1800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Approximate date of commencement of proposed sale to the public: From time to
time after the effectiveness of the Registration Statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ________
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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Title of Shares Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share (1) Price (1)
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Common Stock - $.01 Par Value 1,086,900 $1.375 $1,494,488 $416
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(1) Estimated, pursuant to Rule 457(c), solely for purposes of calculating
the registration fee based on the average of the high and low sales
prices of the Registrant's Common Stock on October 27, 1998 as reported
on the Nasdaq SmallCap Market, which date is within five business days
of the date of this Registration Statement.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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Information contained hereinThe information in this prospectus is subject to completion or amendment. Anot complete and may be changed. The
selling stockholders may not sell the Common Stock covered by this prospectus
until the registration statement relating to these securities has been filed with the Securities and Exchange
Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomesCommission is effective. This prospectus shallis not constitute an offer to sell or the
solicitation ofstock and it is
not soliciting an offer to buy nor shall there be any sale of these securitiesstock in any State in which suchstate where an offer solicitation orand sale would be unlawful prioris not
permitted.
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PROSPECTUS Subject to registration or qualification under the securities laws of any such State.
PROSPECTUS SUBJECT TO COMPLETION
OCTOBER 29,Completion
November 4, 1998
PRECISION OPTICS CORPORATION, INC.
22 East Broadway
Gardner, Massachusetts 01440
(978) 630-1800
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We design, develop, manufacture and sell specialized optical systems
and components and optical thin film coatings. Our products and services include
medical products for use by hospitals and physicians, advanced optical products
and thin films and advanced optical system design and development services.
Our principal executive offices are located at 22 East Broadway,
Gardner, Massachusetts 01440 and our phone number is (978) 630-1800.
The persons listed as "selling stockholders" on page 7 of this
prospectus are using the prospectus to offer for sale a total of 1,086,900
Sharesshares of our Common Stock
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AllStock. We will not receive any of the sharesproceeds of Precision Optics Corporation, Inc., a
Massachusetts corporation (the "Company"), common stock, par value $.01 per
share (the "Common Stock"), offered hereby (the "Shares") are being sold by the
holders of the Common Stock named herein under "Selling Stockholders" (the
"Selling Stockholders"). Thethis
offering.
Our Common Stock is traded on the NASDAQ SmallCap Market under the
symbol "POCI." On October 27,November 2, 1998, the last reported sale price of theour Common
Stock was $1.25 per share.
THE COMMON STOCK OFFERED HEREBY INVOLVES A DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 3.
The Company will not receiveAn investment in our Common Stock involves a high degree of risk. You
should consider carefully the risk factors beginning on page 2 of this
prospectus.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the proceeds from the sale of the
Common Stock. Any or all of such Common Stock covered by this
Prospectus may be
sold, from timeprospectus or determined if this prospectus is truthful or complete. Any
representation to time, by means of ordinary brokerage transactions or
otherwise. See "Plan of Distribution."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.the contrary is a criminal offense.
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The date of this prospectus is __________, 1998
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TABLE OF CONTENTS
Page
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Risk Factors................................................................2
Where You Can Find Additional Information...................................6
Incorporation of Certain Documents By Reference.............................6
Use of Proceeds. . . . . . .................................................6
Selling Stockholders named herein have not advisedStockholders........................................................7
Plan of Distribution........................................................8
Legal Matters...............................................................9
Experts.....................................................................9
RISK FACTORS
You should consider carefully the Company of
any specific plans for the distributioninformation contained in this section
of the Shares covered byprospectus in deciding whether to purchase shares of our Common Stock.
In this Prospectus. It is anticipated, however, that the Selling Stockholders, or any
pledgees, donees, transferees or other successors in interest, directly, through
agents to be designated from time to time or through dealers or underwriters
also to be designated, may sell the Common Stockprospectus, and from time to time in onepublic statements made by
our management, we have made and will continue to make forward-looking
statements about our business, including predictions about our future financial
performance. Our actual results may differ significantly from the results
predicted in this prospectus and in future public statements. Factors that might
cause such a difference include, but are not limited to, the factors discussed
below:
Our Stock Faces Significant Price and Volume Volatility
Our Common Stock has had a public market since November 1990. The price
of our Common Stock has from time to time experienced significant price and
volume fluctuations. The reasons for these fluctuations are sometimes unrelated
to our own operating performance. For instance, a competitor's product failure
or more transactionsannouncement of a new technology or product may have a significant impact on
the Nasdaq SmallCap Marketmarket price of our Common Stock. In addition, our Common Stock periodically
is the subject of limited trading activity and, as a result, at times may be
relatively illiquid.
The Success of Our WDM Initiative is Not Guaranteed
We plan to devote the majority of our research and development
resources to the development and marketing of new products, particularly in the
area of Wavelength Division Multiplexer (WDM) optical thin films. If
successfully developed, our WDM optical thin films will permit
telecommunications companies to increase significantly the transmission capacity
of fiber optic cable lines.
The Company is in the process of developing WDM thin film prototypes
capable of reliably meeting a strict set of operating specifications which
potential customers have supplied to us. We cannot guarantee that these efforts
will be successful or otherwise,that we will succeed in developing and marketing WDM thin
films or any other new products. Also, certain domestic and foreign companies
have begun marketing products which employ alternative WDM technologies. We
cannot predict whether our WDM products, if and when successfully developed,
will be perceived in the marketplace as more cost-effective, efficient and
reliable than these competing products.
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Based upon our expectations about market acceptance of our WDM
products, we expect to continue to increase our research and development
expenditures in the WDM area. Our operating results may be severely impaired if
these development efforts are unsuccessful or if sales of our new products are
below expectations.
We Rely Upon the Talents of a Few Key Persons
Our performance depends to a large extent on a small number of key
scientific, technical, managerial, and marketing personnel. In particular, we
believe our success is highly dependent upon the services and reputation of both
our Chief Executive Officer, Mr. Richard E. Forkey and our Vice President,
Operations, Mr. Kumar M. Khajurivala. Loss of either Mr. Forkey's or Mr.
Khajurivala's services and scientific contributions could severely damage our
business.
We Must Continue to be Able to Attract Highly Skilled Employees
Our ability to attract employees with a high degree of scientific and
technical talent is crucial to the success of our business. There is intense
competition for the services of such persons, and we cannot guarantee that we
will be able to attract and retain individuals possessing the necessary
qualifications.
We Are Currently Incurring Net Operating Losses
We have incurred net operating losses in each of the last six quarterly
periods ending June 30, 1998. These net operating losses totaled approximately
$2,725,000 during this eighteen-month period, and we have an accumulated deficit
of approximately $2,132,000 at pricesJune 30, 1998.
We attribute these recent losses largely to our transition away from
night vision products and services sold primarily under contracts or
subcontracts with the United States Government, and our concentration of
research and product development resources on new products, principally WDM
optical thin films. Our WDM products are still in development and have not yet
resulted in appreciable revenues. Given the uncertainties surrounding the
development and marketing of our WDM products, it remains to be seen whether we
will achieve profitability as a result of our initiatives in the WDM area.
Our Quarterly Financial Results May Fluctuate
Our quarterly operating results may vary significantly depending upon
factors such as:
- the timing of completion of significant orders
- the timing and amount of our research and development
expenditures
- the costs of initial product production in connection with new
products
- the timing of new product introductions -- both by us and by
our competitors
- the timing and level of market acceptance of new products or
enhanced versions of our existing products
We cannot be certain whether we will be able to grow or sustain revenues or
achieve or maintain profitability on a quarterly or annual basis or that levels
of revenue and/or profitability may not vary from one such period to another.
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We Operate in a Highly Competitive Environment
The industries in which we compete are highly competitive. Many of our
existing and potential competitors have greater financial resources and
manufacturing capabilities, more established and larger marketing and sales
organizations and larger technical staffs than we have. Other companies, some
with greater experience in the telecommunications, optics, semiconductor or
medical products industries, are seeking to produce products and services that
compete with our products and services.
We Depend to a Large Extent on a Small Group of Customers
Revenues from our three largest customers were approximately 22%, 14%
and 10%, respectively, of total revenues for the fiscal year ended June 30,
1998, and revenues from our two largest customers were approximately 38% and
23%, respectively, of total revenues for the fiscal year ended June 30, 1997. No
other customers accounted for more than 10% of our revenues during those
periods.
We Are Subject to a High Degree of Regulatory Oversight
The FDA has determined that we may market our currently existing
medical products that are currently being sold in the United States. However,
prior FDA approval may be required before we can market additional medical
products that we may develop in the future. We may also seek to sell current or
future medical products in a manner that requires us to obtain FDA permission to
market such products. We may also require the regulatory approval or license of
other federal, state or local agencies or comparable agencies in other
countries.
We cannot be certain that we will continue to receive the FDA's
permission to market our current products or obtain the necessary regulatory
permission, approvals or licenses for the marketing of any of our future
products. Also, we cannot predict the impact on our business of FDA regulations
or determinations arising from future legislation or administrative action.
We Face Risks Inherent in Product Development and Production Under Fixed Price
Contracts
A significant portion of our business has been and may continue to be
devoted to research, development and production of optical systems for customers
under fixed price contracts. We cannot predict with certainty the expenses
involved in meeting our obligations under such contracts, and therefore cannot
be sure at the time we enter into any single fixed price contract that such
contract will be profitable for us.
Our Intellectual Property is Subject to Infringement by Third Parties
We hold a number of patents that are important to our business.
Although we are not currently aware of any past or present infringements of our
patents, we plan to protect these patents from infringement and obtain
additional patents whenever feasible. To this end, we have obtained
confidentiality agreements from our employees and consultants and others who
have access to the design of our products and other proprietary information.
Protecting and obtaining patents, however, is both time consuming and expensive.
We therefore may not have the resources necessary to assert all potential patent
infringement claims or pursue all patents that might be available to us.
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We May Be Subject to Claims of Patent Infringement
The technologies used or to be used in our advanced optical systems may
infringe upon patents or proprietary technology held or owned by other persons.
Should these persons claim a proprietary right to all or part of any technology
that we use in our products, such a claim, regardless of its merit, could
involve us in costly litigation. If successful, such a claim could also result
in us being unable to freely to use the technology that was the subject of the
claim, or sell products embodying such technology.
We Depend on the Availability of Certain Key Supplies and Services
Certain key supplies used in our products, including precision grade
optical glass, are available from only a few sources, each of which is located
outside the United States. Also, outside vendors grind and polish certain of our
lenses and other optical components, such as prisms and windows. Based upon our
ordering experience to date, we believe the materials and services required for
the production of our products are currently available in sufficient quantities.
Our requirements are small relative to the total supply, and we are not
currently encountering problems with availability. However, this does not mean
that we will continue to have timely access to adequate supplies of essential
materials and services in the future or that supplies of these materials and
services will be available on satisfactory terms when the need arises. Our
business could be severely damaged if we become unable to procure essential
materials and services in adequate quantities and at terms then prevailing or at prices relatedacceptable prices.
From time to the then current market price, or
in negotiated transactions. To the extent required, the specific Common Stock to
be sold, the namestime, certain of the Selling Stockholders, the respective purchase prices
and public offering prices, the names of any such agent, dealer or underwriter
and any applicable commissions or discounts with respect to a particular offer
will be set forth in an accompanying prospectus supplement or, if appropriate, a
post-effective amendment to the Registration Statement of which this Prospectus
is a part. See "Plan of Distribution." By agreement, the Company will pay all
the expenses of the registration of the Common Stock by the Selling Stockholders
other than underwriting discounts and commissions and transfer taxes, if any.
The Selling Stockholders and any broker-dealers, agents or underwriters
that participate with the Selling Stockholders in the distribution of the Common
Stockour products may be deemed to be "underwriters" within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"),produced for us by
subcontractors, and any commissions received by
them and any profit on the resale of the Common Stock purchased by them may be
deemed underwriting commissions or discounts under the Securities Act.
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The date of this Prospectus is __________, 1998
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AVAILABLE INFORMATION
The Companyour business is subject to the informationalrisk that these
subcontractors fail to make timely delivery. Our products and services are also
from time to time used as components of the products and services of other
manufacturers. We are therefore subject to the risk that manufacturers that
integrate our products or services into their own products or services are
unable to acquire essential supplies and services from third parties in a timely
fashion.
We May Require Additional Facilities
We believe our current facilities are adequate for our existing
operations. However, we may require additional space if we significantly
increase production, acquire substantial new equipment, begin to produce
materials or supplies that we currently purchase from others or otherwise expand
our manufacturing capabilities. Any acquisition of additional facilities could
require us to make significant expenditures.
We Are Exposed To Product Liability Claims and Uninsured Risks
Like any manufacturer, we are and always have been exposed to liability
claims resulting from the use of our products. We maintain product liability
insurance to cover us in the event of liability claims, and no such claims have
been asserted or threatened against us to date. However, we cannot be certain
that our insurance will be sufficient to cover all possible future product
liabilities.
We Are Subject to Environmental Regulation
Our operations are subject to a variety of federal, state and local
laws and regulations relating to the protection of the environment. From time to
time, we use hazardous materials in our operations. Although we believe that we
are in compliance with all applicable environmental laws and regulations, our
business could be severely damaged by any failure to maintain such compliance.
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
We are subject to the reporting requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"),1934. This Act requires us to file annual and in
accordance therewith, files periodicquarterly reports on our
financial and business results, proxy materials and other information with the
SecuritiesSEC. Our annual and Exchange Commission (the "Commission").
Reports,quarterly reports, proxy statements and other information
can be inspected and copied at the public reference facilities maintained by the CommissionSEC's Public Reference Room at Room 1024,
Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at its
regional offices located at Suite 1400, Citicorp Center, 500 West Madison
Street, Chicago, Illinois 60661, and at Seven World Trade Center, New York, New
York 10048, and copies of such material can be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates.20549. The public may obtain information on the
operation of the Public Reference Room by calling the Commission at
1-800-SEC-0330. In addition, the Commission maintains a web site (at
http://www.sec.gov) that contains reports, proxy and information statements, and
other information regarding registrants, including the Company,issuers (including Precision Optics Corporation)
that file electronically with the Commission.
The Company hasSEC.
We have filed with the CommissionSEC a registration statement (the
"Registration Statement", which term shall include all amendments, exhibits and
schedules thereto) on Form S-3
undercovering the Securities Actshares of Common Stock offered with respect to the
securities offered hereby.this prospectus. This
Prospectusprospectus does not contain all information set
forthcontained in the Registration Statement,registration
statement, certain parts of which are omitted in accordance with the SEC's rules
and regulations of the Commission, and to which
reference is hereby made.. Statements made in this Prospectusprospectus as to the contents of any
other document referred(including exhibits to hereinthe registration statement) are not
necessarily complete. With respect to
each suchYou should review the document filed as an exhibititself for a thorough
understanding of its contents. The registration statement (including exhibits to
the Registration Statement, reference
is made to the exhibit for a more complete description of the matter involved,
and each such statement shall be deemed qualified in its entirety by such
reference. The Registration Statementregistration statement) may be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at its regional offices located at
Suite 1400, Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661,
and at Seven World Trade Center, New York, New York 10048. Copies of such
material can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. The public
may obtain information on the operation of theSEC's Public
Reference Room by calling. Also, the Commission at 1-800-SEC-0330. The Registration Statementregistration statement was filed electronically with
the CommissionSEC and is available on the Commission'sSEC's web site (at http://www.sec.gov).
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
TheWe have filed the following documents filed by the Company with the Commission areSEC. Each of these
documents is incorporated by reference in , and is an important part of, this
Prospectus and made a part hereof:prospectus:
(i) Annual ReportOur annual report on Form 10-KSB for the fiscal year
ended June 30, 1998, including portions of the
Company'sour Proxy
Statement dated October 14, 1998, relating to the Company'sour
1998 Annual Meeting of Stockholders, incorporated therein.Stockholders.
(ii) The Descriptiondescription of the Company'sour Common Stock contained in itsour
registration statement on Form S-1, File No.
33-43929, including any amendment or report
filed for the purpose of updating such description.33-43929.
All documents subsequently filed bywhich we file with the Company pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange ActSEC (i) after the date of filing
of the Registration Statementregistration statement and prior to the effectiveness of the Registration
Statementregistration
statement and (ii) after the date of this Prospectusprospectus and prior to the
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termination of thethis offering shall be deemed incorporated herein by reference
from the date of filing of such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
or in any other subsequently filed document that also is incorporated by
reference herein, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, excepttreated as so modified or superseded,
to constitute a part of this Prospectus.
The Companyprospectus.
We will provide, upon written or oral request, without charge, to each
person, including any beneficial owner, to whom a copy of this Prospectusprospectus has
been delivered, a copy of any or all of the documents which have been or may be
incorporated in this Prospectusprospectus by reference, other than certain exhibits to
such documents. Requests for such copies should be directed to: Jack P.
Dreimiller, Precision Optics Corporation, Inc., 22 East Broadway, Gardner,
Massachusetts 01440, (978) 630-1800.
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION IN THIS PROSPECTUS, THE FOLLOWING
RISK FACTORS SHOULD BE CONSIDERED CAREFULLY IN EVALUATING THE COMPANY AND ITS
BUSINESS. THIS PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS
AND UNCERTAINTIES. THE COMPANY'S ACTUAL RESULTS MAY DIFFER SIGNIFICANTLY FROM
THE RESULTS DISCUSSED IN THE FORWARD-LOOKING STATEMENTS IN THIS PROSPECTUS AND
IN FORWARD-LOOKING STATEMENTS MADE FROM TIME TO TIME BY THE COMPANY ON THE BASIS
OF MANAGEMENT'S THEN-CURRENT EXPECTATIONS. FACTORS THAT MIGHT CAUSE SUCH A
DIFFERENCE INCLUDE, BUT ARE NOT LIMITED TO, THOSE DISCUSSED OR REFERRED TO
BELOW.
Prospective purchasers of the Shares offered hereby should consider
carefully the risks associated with investing in the Shares, including the
principal risk factors set forth below:
MARKET VOLATILITY
The Common Stock of the Company has had a public market since November
1990. The stock market has from time to time experienced significant price and
volume fluctuations, particularly in the high technology and medical products
sectors, which may be unrelated to particular companies' operating performance.
Factors such as the Company's or its competitors' product failures or
announcements of technological innovations or new products may have a
significant impact on the market price of the Company's Common Stock. In
addition, to date, the Company's Common Stock has had limited float and trading
activity.
WDM AND OTHER NEW PRODUCTS
The Company plans to devote the majority of its research and
development resources to the development and marketing of new products,
particularly in the area of Wavelength Division Multiplexer (WDM) optical thin
films. The Company is in the process of developing WDM thin film prototypes
capable of reliably meeting a strict set of operating specifications supplied to
the Company by potential customers. No assurance can be given that these efforts
will be successful or that the Company will succeed in developing and marketing
WDM thin films or other new products. Moreover, certain domestic and foreign
companies have commenced marketing products embodying alternative WDM
technologies which will compete with the Company's WDM products. There can be no
assurance that the Company's WDM products, if and when successfully developed,
will be perceived in the marketplace as more cost-effective, efficient and
reliable than these alternative
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products. Based upon the Company's expectations as to market acceptance of its
WDM products, the Company expects to continue to increase its research and
development expenditures as the Company continues its product development and
marketing efforts and expands its operations in the WDM area. Future operating
results may be materially adversely affected if development efforts with respect
to its new products are unsuccessful or if sales of these products are below
expectations.
RELIANCE UPON KEY PERSONNEL AND SCIENTIFIC TALENT
The Company depends to large extent on a small number of key
scientific, technical, managerial, and marketing personnel, loss of any of whose
services could have a material adverse effect on the Company's operations. The
Company's business depends to a large extent on the Company's ability to employ
persons with a high degree of scientific and technical talent. Competition for
the services of such persons is intense and there can be no assurance that the
Company will be able to attract or to retain individuals possessing the
qualifications the Company requires. The Company believes its success is highly
dependent upon the services and reputation of both its Chief Executive Officer,
Mr. Richard E. Forkey and its Vice President, Operations, Mr. Kumar M.
Khajurivala. Loss of either Mr. Forkey's or Mr. Khajurivala's services and
scientific contributions would materially adversely affect the company's
business.
RECENT HISTORY OF LOSSES
The Company has incurred net operating losses in each of the last six
quarterly periods ending June 30, 1998. These net operating losses totaled
approximately $2,725,000 during this eighteen-month period, and the Company has
an accumulated deficit of approximately $2,132,000 at June 30, 1998. The Company
attributes these losses largely to its transition away from night vision
products and services sold primarily under contracts or subcontracts with the
United States Government, and its concentration of research and product
development resources on new products, principally in the area of optical thin
films technology for the telecommunications and semi conductor industries. New
products embodying this technology are still in development and have not yet
generated appreciable revenues for the Company. There can be no assurance that
development of such products will be successfully completed and, if so, that
significant revenues will result from the Company's initiatives in the optical
thin films area. Consequently, there can be no assurance that the Company will
achieve profitability as a result of such initiatives.
FLUCTUATION IN QUARTERLY RESULTS
The Company's quarterly operating results may vary significantly
depending upon factors such as the timing of the completion of significant
orders, the timing of research and development expenditures and costs of initial
product production in connection with new products, the timing of new product
introductions by the Company and its competitors and market acceptance of new
products or enhanced versions of the Company's existing products. In addition,
the Company's operating results may fluctuate as a result of increased
competition or delays in the introduction or acceptance of new products in the
market. There can be no assurance that the Company will be able to grow or
sustain revenues or achieve or maintain profitability on a quarterly or annual
basis or that levels of revenue and/or profitability may not vary over any such
period.
COMPETITION
The industries in which the Company competes are highly competitive.
Many of the Company's existing competitors, as well as a number of potential
competitors, are larger and have significantly greater financial resources and
manufacturing capabilities, more established and larger marketing and sales
organizations and larger technical staffs than the Company. Other companies,
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some with greater experience in the telecommunications, optics, semiconductor or
medical products industries and greater financial resources than the Company,
are seeking to produce products and services that compete with those of the
Company. To the extent that other domestic or foreign companies offer more
sophisticated, cost-effective, efficient or reliable products and services than
the Company, the Company's business could be materially adversely affected.
SIGNIFICANT CUSTOMERS AND CONCENTRATION OF CREDIT RISK
Revenues from the Company's three largest customers were approximately
22%, 14% and 10%, respectively, of total revenues for the fiscal year ended June
30, 1998, and revenues from the Company's two largest customers were
approximately 38% and 23%, respectively, of total revenues for the fiscal year
ended June 30, 1997. No other customers accounted for more than 10% of the
Company's revenues during those periods.
FOOD AND DRUG ADMINISTRATION ACTIONS
The United States Food and Drug Administration (the "FDA") has
determined that the Company may market its currently existing medical products
that are currently being sold in the United States. Prior FDA approval may be
required before the Company can market additional medical products that the
Company may develop. The Company may also seek to sell some of its current or
future medical products in a manner that requires the Company to obtain FDA
permission to market such products, as well as the regulatory approval or
license of other federal, state, or local agencies or analogous agencies in
other countries. There can be no assurance that the Company will be able to
maintain the FDA's permission to market its current products or obtain the
necessary regulatory permission, approvals or licenses for the marketing of any
of its other products. Furthermore, potential adverse FDA regulation affecting
the Company which might arise from future legislation or administrative action
cannot be predicted. In addition, FDA regulations may be established that could
prevent or delay regulatory clearances or approval of the Company's products.
The inability of the Company to secure any necessary licenses or regulatory
approvals or permission from the FDA could have a material adverse effect on its
business.
RISKS INHERENT IN PRODUCT DEVELOPMENT AND PRODUCTION UNDER FIXED PRICE CONTRACTS
A significant portion of the Company's business has been and may
continue to be devoted to research, development and production of optical
systems for customers under fixed price contracts. The expenses incurred in
meeting the Company's obligations under such contracts cannot be predicted with
certainty, and there can be no assurance that such contracts will be profitable
to the Company.
PROTECTION OF PROPRIETARY AND OTHER INFORMATION
The Company holds rights to patents on certain products and technology.
There can be no assurance that the Company will obtain additional patents with
respect to current or future applications of its technology. The extent of
patent protection provided by patents obtained by the Company cannot be
predicted. There can be no assurance that the claims set forth in these patents
will not be challenged. Patents may not afford the Company protection from
competitors' independent duplication. Accordingly, prospective investors should
not rely upon any patent to afford the Company any significant competitive
advantage in marketing its products. The Company presently knows of no
infringements of its patents. Although the Company plans to protect any patent
it may have from infringement and to obtain patents whenever possible, it may
not be able to assert any infringement claims or obtain additional patents
because seeking such protection and obtaining such patents is both time
consuming and expensive. Furthermore, although the Company has obtained
confidentiality agreements from its employees and seeks such agreements from
consultants and others who have access
5
7
to the design of its products and proprietary information, no assurance can be
given that the Company will be successful in protecting its proprietary rights
with respect to such products and information.
INFRINGEMENTS ON OTHERS' PATENTS
A significant portion of the company's business is devoted to the
development, manufacture, and sale of advanced optical systems. The technologies
used or to be used in these systems may infringe upon patents or proprietary
technology held or owned by other persons. Should others claim a proprietary
right to all or part of any technology used by the Company, such a claim,
regardless of its merit, could involve the Company in costly litigation which
could have a material adverse effect on the Company's operations. Moreover, such
a claim could result in the Company's inability to use or sell such technology,
which inability could have a material adverse effect on the Company's business.
AVAILABILITY OF CERTAIN SUPPLIES AND SERVICES
Certain key supplies, including precision grade optical glass, are
available from only a few sources, each of which is outside the United States.
Furthermore, outside vendors grind and polish certain of the Company's lenses
and other optical components, such as prisms and windows. Based upon its
ordering experience to date, the Company believes the materials and services
required for the production of its products are currently available in
sufficient quantities. The Company's requirements are small relative to the
total supply, and the Company is not encountering problems with availability.
There can be no assurance, however, that the Company will continue to have
timely access to adequate supplies of these materials and services in the
future, that supplies of these materials and services will be available on
satisfactory terms when the need arises or that key supplies will be available
for new products the Company may develop. The inability to procure such
materials and services in adequate quantities would have a material adverse
effect on the Company's business. From time to time, certain of the Company's
products may be produced for the Company by subcontractors. The failure of such
subcontractors to make timely delivery could have a material adverse effect on
the Company's business. Furthermore, in the event that manufacturers that
integrate the Company's products or services into their own products or services
are unable to acquire supplies and services from third parties in a timely
fashion, the Company's business could be materially adversely affected.
ADEQUACY OF CURRENT FACILITIES
The Company believes its current facilities are adequate for its
current operations. The Company's operations may require additional space,
however, in the event of a significant increase in production or the acquisition
of substantial new equipment or if the Company itself begins to produce
materials or supplies its presently purchases from others or otherwise expands
its manufacturing capabilities. Such expansion could require significant
expenditures by the Company.
PRODUCT LIABILITY CLAIMS AND UNINSURED RISKS
To the extent that the Company has been and will be successful in
developing, marketing, and selling new products, it is and will be exposed to
liability resulting form such products' use. Although the Company has obtained
product liability insurance against such claims, and no such claims have been
asserted or threatened to date, there can be no assurance that the Company's
insurance will be sufficient to cover all possible future liabilities.
ENVIRONMENTAL REGULATION
The Company's operations are subject to a variety of federal, state and
local laws and regulations relating to the discharge of materials into the
environment or otherwise relating to the
6
8
protection of the environment. From time to time the Company uses a small amount
of hazardous materials in its operations. Although the Company believes that it
is in compliance with applicable environmental laws and regulations, any failure
to comply with such laws and regulations could have a material adverse effect on
its operations.
THE COMPANY
The Company was organized and commenced operations as a Massachusetts
corporation in 1982. The Company completed a private placement of 1,000,000
shares of Common Stock in August 1990, an initial public offering of 1,200,000
shares of Common Stock in November 1990, and a public offering of 1,176,250
shares of Common Stock in February 1992. In conjunction with these offerings,
the Company issued warrants for a total of 320,000 shares of Common Stock to the
selling agent and underwriters for the offerings. Before these offerings, the
Company was privately held. The Company completed a private placement of 500,000
shares of Common Stock in June 1998. In conjunction with the June 1998 offering,
the purchasers in such offering were issued warrants for an additional 500,000
shares of Common Stock.
The Company designs, develops, manufacturers and sells specialized
optical systems and components and optical thin film coatings. The Company's
products and services include medical products for use by hospitals and
physicians, advanced optical products and thin films and advanced optical system
design and development services.
The Company's principal executive offices are located at 22 East
Broadway, Gardner, Massachusetts 01440 and its telephone number is (978)
630-1800.
USE OF PROCEEDS
The CompanyWe will not receive any of the proceeds of the Common Stock offered hereby by
the Selling Stockholders.this prospectus.
6
8
SELLING STOCKHOLDERS
The following table sets forth certain information regarding the
ownership of the Company'sour Common Stock by the Selling Stockholdersselling stockholders as of September 30,
1998, including the number of Sharesshares of Common Stock offered hereby. The Shares are being
registered to permit public secondary trading of the Shares, and the Selling
Stockholders may offer all or a portion of the Shares for resale from time to
time. See "Plan of Distribution."with this
prospectus.
Shares of Common
Number of Shares Number of Shares Stock Beneficially
of Common Stock Number of SharesCommon Stock Owned After Offering
Beneficially Owned of Common StockOffered with ----------------------
Selling Stockholder Prior to Offering(1) Offered Herebythis Prospectus Number Percent
------------------- -------------------- --------------------------------- ------- ------ -------
Special Situations Private Equity Fund, L.P. 750,000(2) 750,000 -0- **
c/o Special Situations Fund III, L.P.
153 East 53rd Street
New York, NY 10022
7
9
Shares of Common
Number of Shares Stock Beneficially
of Common Stock Number of Shares Owned After Offering
Beneficially Owned of Common Stock ----------------------
Selling Stockholder Prior to Offering(1) Offered Hereby Number Percent
------------------- -------------------- ---------------- ------ -------
Special Situations Technology Fund, L.P. 250,000(3) 250,000 -0- **
c/o Special Situations of Fund III, L.P.
153 East 53rd Street
New York, NY 10022
Nathan Newman 69,095 28,500(4) 40,595 **
c/o Equity Securities Investments, Inc.
5353 Wayzata Boulevard, Suite 600
St. Louis Park, MN 55416
Peter L. Hauser 198,000 14,000(4) 184,000 2.76%
c/o Equity Securities Investments, Inc.
5353 Wayzata Boulevard, Suite 600
St. LoiusLouis Park, MN 55416
Ralph Murphy 25,400 5,000(4) 20,400 **
278 Dakota Street
Prescott, WI 54021
Leighton C. Natt 16,100 4,500(4) 11,600 **
3 Point Road
Bayport, MN 55003
Holderness Leasing, Inc. 135,650 34,900(4) 100,750 1.50%
c/o Helmar Nielson
1530 Queens Boulevard, #301
Charlotte, NC 28207
- ------------------------------
** The number of shares indicated does not exceed one percent of the
number of shares of our Common Stock outstanding.
(1) Beneficial ownership is determined in accordance with the rules of the
Commission.SEC. In computing the number of shares beneficially owned by a person
and the percentage ownership of that person, shares of Common Stock
subject to warrants held by that person that are currently exercisable
or exercisable within 60 days of the date of this Prospectusprospectus are deemed
outstanding. Such shares, however, are not deemed outstanding for the
purposes of computing the percentage ownership of
7
9
each other person. Except as indicated in the footnotes to this table
and pursuant to applicable community property laws, each Selling
Stockholderselling
stockholder named in the table above has sole voting and investment
power with respect to the shares set forth opposite such Selling
Stockholders'his or its name.
Percentage beneficial ownership is based on 6,677,595 shares of Common
Stock outstanding as of September 30, 1998.
(2) Includes 375,000 shares which may be acquired within 60 days of the
date of this Prospectusprospectus upon the exercise of outstanding warrants owned
by Special Situations Private Equity Fund, L.P. ("SSPEF"). All Sharesshares owned by
SSPEFSpecial Situations Private Equity Fund, L.P. were issued, or are
issuable upon the exercise of 8
10
warrants issued, to SSPEFit in a private
placement on June 30, 1998. The
Registration StatementAs part of the private placement
transaction, we agreed to file the registration statement which
includes this Prospectus is a part was filed
pursuant to a Registration Rights Agreement dated as of June 30, 1998
among the Company, SSPEF and Special Situations Technology Fund, L.P.
("SSTF") (the "Registration Rights Agreement").prospectus.
(3) Includes 125,000 shares which may be acquired within 60 days of the
date of this Prospectusprospectus upon the exercise of outstanding warrants owned
by SSTF.Special Situations Technology Fund, L.P. All Sharesshares owned by SSTFSpecial
Situations Technology Fund, L.P. were issued, or are issuable upon the
exercise of warrants issued, to SSTFit in athe June 30, 1998 private
placement on June 30,
1998. The Registration Statement of which this Prospectus is a part was
filed pursuant to the Registration Rights Agreement.described in footnote (2).
(4) Represents Sharesshares issued, or issuable upon, exercise of the Company'sour Initial
Public Offering Selling Agent Warrants issued on or about July 8, 1992
asand amended on December 30, 1994 (the "IPO Warrants") and the
Company'sour Private
Placement Selling Agent Warrants issued on or about July 8, 1992 asand
amended on December 30, 1994 (the "Private Placement Warrants"). Both
the IPO Warrants and the Private Placement Warrants entitle the holders thereofprovide that any
holder may require us to include shares received upon exercise of their
Warrants in certain "piggyback" registration rights.statements that we file. The Sharesshares
indicated are being included in this Registration Statementregistration statement at the
electionrequest of the Selling Stockholderselling stockholder pursuant to the exercise of
such rights.this provision.
PLAN OF DISTRIBUTION
The Selling Stockholders named hereinselling stockholders have not advised the Companyus of any specific plans for
the distribution of the Sharesshares of Common Stock covered by this Prospectus. The Shares offered by the Selling Stockholdersprospectus. These
shares may be sold from time to time by the Selling Stockholders,selling stockholders or by pledgees, donees, transferees or
othertheir
successors in interest of the Selling Stockholders.. Such sales may be made in one or more transactions on
the Nasdaq SmallCap Market or otherwise, at prices and at terms then prevailing
or at prices related to the then current market price, or in negotiated
transactions. The SharesThese sales may be sold bytake one or more of the following: (a)following forms:
- a "block" trade in which thea broker or dealer so
engaged will attempt to
sell the shares as an agent but may position and resell a
portion of the block as a principal to facilitate the
transaction;
(b)- purchases by a broker or dealer as a principal and resale by
such broker or dealer for its own account pursuant to this Prospectus;; and
(c)- ordinary brokerage transactions and transactions in which the
broker solicits purchasers.
In effecting sales, brokers or dealers engaged by the Selling Stockholdersselling stockholders may
arrange for other brokers or dealers to participate. Brokers or dealers will
receive commissions or discounts from Selling Stockholdersselling stockholders (and, if they act as
agent for the purchaser, from suchthe purchaser), which. These commissions may, in certain
situations, be negotiated and in excess of customary compensation in amounts to be
negotiated immediately prior to the sale. Such brokers or dealers, and any otherrates. Any participating
brokers or dealers and certain of the Selling Stockholdersselling stockholders may be deemed to be
"underwriters" within the meaning
8
10
of the Securities Act of 1933 in connection with such sales. In addition, any
Sharesshares covered by this Prospectusprospectus which qualify for sale pursuant to Rule 144
under the Securities Act of 1933 may be sold under Rule 144 rather than pursuant tounder
this Prospectus.
Upon the Company beingprospectus.
If we are notified by a Selling Stockholderselling stockholder that anya material arrangement
has been entered into with a broker-dealer for the sale of Sharesshares through a
block trade, special offering, exchange distribution or secondary distribution,
or a purchase by a broker-dealer as a principal, a supplemental Prospectusprospectus will
be filed pursuant to Rule 424(b) under the
Securities Act, setting forth (i)listing:
- the name of each Selling Stockholderselling stockholder and of the participating
broker-dealers(s), (ii);
- the number of Shares involved, (iii)shares involved;
- the price at which such Sharesshares were sold, (iv)sold;
- the commissions paid or discounts or concessions allowed to
such broker-dealer(s), where applicable,applicable; and
(v)- other facts material to the transaction.
9
11
The Company hasWe have agreed to pay the cost of registering the shares covered by
this prospectus and the costs of preparing this prospectus and the registration
of the
Shares and the preparation of this Prospectus and the Registration Statementstatement under which it is filed. TheThese expenses so payable by the Company are estimated to be
approximately $22,531.
The CompanyPrecision Optics Corporation and the Selling Stockholdersselling stockholders have agreed
to indemnify each other against certain liabilities, including liabilities
arising under the Securities Act.
The Company hasAct of 1933.
We have agreed in the Registration Rights Agreement to use itsour best efforts to keep the Registration Statementregistration
statement of which this Prospectusprospectus is a part continuously effective until the
earlier of (i) two years from the date on which warrants now held by SSPEFSpecial
Situations Private Equity Fund, L.P. and SSTFSpecial Situations Technology Fund,
L.P. have been exercised in full or (ii) such time as all of the Sharesshares now held
by SSPEFSpecial Situations Private Equity Fund, L.P. and SSTFSpecial Situations
Technology Fund, L.P. have been sold.
LEGAL MATTERS
The validity of the shares of Common Stock being offered herebyunder the
prospectus will be passed upon for the CompanyPrecision Optics Corporation by Ropes & Gray,
Boston, Massachusetts.
EXPERTS
The financial statements incorporated in this Prospectusprospectus by reference
to the Company'sour Annual Report on Form 10-KSB for the fiscal year ended June 30, 1998 have
been audited by Arthur Andersen LLP, independent auditors, as stated in their
report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.report.
[Remainder of this page intentionally left blank.]
109
1211
================================================================================
NO DEALER, SALES PERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS OFFERING
OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY, THE SELLING STOCKHOLDERS SET FORTH UNDER "SELLING STOCKHOLDERS"
OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF ANY OFFER TO BUY ANY OF THE SECURITIES IN ANY JURISDICTION
WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION. THE DELIVERY OF THIS PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT
INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.No dealer, sales person or other individual has been authorized to give
any information or make any representations in connection with this offering
other than those contained in this prospectus. If given or made, such
information or representations must not be relied upon as having been authorized
by Precision Optics Corporation, the selling stockholders or any underwriter.
This prospectus does not constitute an offer to sell, or a solicitation of any
offer to buy any shares of our Common Stock in any jurisdiction where, or to any
person to whom, it is unlawful to make such offer or solicitation. The delivery
of this prospectus at any time does not imply that information herein is correct
as of any time subsequent to its date.
------------
TABLE OF CONTENTS
Page
----
AvailableRisk Factors ........................................................... 2
Where You Can Find Additional Information ................................................. 2.............................. 6
Incorporation of Certain Documents byBy Reference ....................... 2
Risk Factors .......................................................... 3
The Company ........................................................... 7........................ 6
Use of Proceeds ....................................................... 7........................................................ 6
Selling Stockholders ..................................................................................................... 7
Plan of Distribution .................................................. 9................................................... 8
Legal Matters ......................................................... 10.......................................................... 9
Experts ............................................................... 10................................................................ 9
================================================================================
================================================================================
1,086,900 Shares of Common Stock
PRECISION OPTICS CORPORATION, INC.
_____________, 1998
================================================================================
1312
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEMItem 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTIONOther Expenses of Issuance and Distribution
The following is an itemization of the expenses incurred or expected to
be incurred by the CompanyPrecision Optics Corporation, Inc. (the "Company") in connection
with the offering described in this Registration Statement.registration statement. No portion of such
expenses are expected to be borne by Selling Stockholders.selling stockholders. (Items marked with an
asterisk (*) represent estimated expenses):
Registration Fee.......................................... $ 416416.00
Printing Cost*............................................ $ 1,1151,115.00
Legal Fees*............................................... $18,000$18,000.00
Accounting Fees*.......................................... $ 2,0002,000.00
Miscellaneous*............................................ $ 1,0001,000.00
TOTAL*............................................... $22,531
=======
ITEM$22,531.00
==========
Item 15. INDEMNIFICATION OF OFFICERS AND DIRECTORSIndemnification of Officers and Directors
The Company is organized under the laws of The Commonwealth of
Massachusetts. The Massachusetts Business Corporation Law provides that
indemnification of directors, officers, employees and other agents of a
corporation, and persons who serve at its request as directors, officers,
employees or other agents of another organization, or who serve at its request
in any capacity with respect to any employee benefit plan, may be provided by
the corporation to whatever extent specified in or authorized by its articles of
organization, a by-law adopted by the stockholders or a vote adopted by the
holders of a majority of the shares of stock entitled to vote on the election of
directors, except that no indemnification may be provided for any person with
respect to any matter as to which the person shall have been adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interest of the corporation. Under Massachusetts law, a
corporation can purchase and maintain insurance on behalf of any person against
liability incurred as a director, officer, employee, agent or person serving at
the request of the corporation as a director, officer, employee or other agent
of another organization or with respect to any employee benefit plan, in his
capacity as such, whether or not the corporation would have the power to itself
indemnify him against such liability.
The Company's articles of organization provide that its directors shall
not be liable to the Company or its stockholders for monetary damages for breach
of fiduciary duty as a director, except to the extent that exculpation from
liabilities is not permitted under the Massachusetts Business Corporation Law as
in effect at the time such liability is determined. The by-laws of the Company
provide generally that the Company shall, to the extent legally permissible,
indemnify its directors and officers against all liabilities and expenses
incurred by them in connection with the defense or disposition of any action,
suit or other proceeding in which he may be involved, or by which he may be
threatened, by reason of his being or having been a director or officer, except
with respect to any matter as to which he shall have been adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interest of the Company. In addition, the Company holds a
directors and officers liability policy.
II-1
14
ITEM13
Item 16. EXHIBITSExhibits
The following exhibits are filed herewith:
Exhibit
No. Title
- ------- -----
2.1 Stock Subscription Agreement dated as of June 30, 1998 by and
among the Company, Special Situations Private Equity Fund, L.P.
and Special Situations Technology Fund, L.P. (1)
4.1 Articles of Organization of the Company (2)
4.2 By-laws of the Company (3)
4.3 Specimen Common Stock Certificate (2)
4.4 Registration Rights Agreement dated as of June 30, 1998 by and
among the Company, Special Situations Private Equity Fund, L.P.
and Special Situations Technology Fund, L.P. (1)
4.5 Common Stock Purchase Warrant dated June 30, 1998 issued to
Special Situations Private Equity Fund, L.P. (1)
4.6 Common Stock Purchase Warrant dated June 30, 1998 issued to
Special Situations Technology Fund, L.P. (2)
4.7 Sample Initial Public Offering Selling Agent Warrant dated
December 30, 1994 (4)
4.8 Sample Private Placement Selling Agent Warrant dated December 30,
1994 (4)
5.1 Opinion of Ropes & Gray (4)
23.1 Consent of Arthur Andersen LLP (4)
23.2 Consent of Ropes & Gray (included in the opinion filed as
Exhibit 5.1)(4)
24.1 Power of Attorney (to be included as part of signature page filed
herewith)(4)
27.1 Financial Data Schedule (4)
(1) Incorporated herein by reference to the Company's 1998
Annual Report on Form 10-KSB.
(2) Incorporated herein by reference to the Company's
Registration Statement on Form S-18 (No. 33-36710-B).
(3) Incorporated herein by reference to the Company's 1991
Annual Report on Form 10-KSB.
(4) Previously filed with the SEC on October 29, 1998.
II-2
15
ITEM14
Item 17. UNDERTAKINGSUndertakings
(a) The Company hereby undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement;registration statement;
(i) to include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) to reflect in the Prospectusprospectus included within this
Registration Statementregistration statement any facts or events arising after the effective
date of this Registration Statementregistration 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 this Registration
Statement;registration
statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statementregistration
statement or any material change to such information in this
Registration Statement;registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the CommissionSEC
by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.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 for 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; and
(4) that, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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.
[Remainder of this page intentionally left blank]
II-3
1615
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statementAmendment
No. 1 to the Registration Statement on Form S-3 to be signed on its behalf by
the undersigned, thereunto duly authorized, in the Town of Gardner,
Massachusetts, on the 23rd4th day of October,November, 1998.
PRECISION OPTICS CORPORATION, INC.
By: /s/ Richard E. Forkey
--------------------------------------------------------------------------
Richard E. Forkey
Chairman, Chief Executive Officer
and President
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Precision Optics
Corporation, Inc., hereby severally constitute and appoint Richard E. Forkey and
Jack P. Dreimiller and each of them singly, as true and lawful attorneys, with
full power to them and each of them singly, to sign for us in our names in the
capacities indicated below, all additional amendments to this registration
statement, and generally to do all things in our names and on our behalf in such
capacities to enable Precision Optics Corporation, Inc. to comply with the
provisions of the Securities Act of 1993, as amended, and all applicable
requirements of the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
registration statementAmendment No. 1 to Registration Statement on Form S-3 has been signed by the
following persons in the capacities and on the dates indicated.
Signature Capacity Date
- --------- -------- ----
/s/ Richard E. Forkey Chairman of the October 23,November 4, 1998
- ------------------------ Board of Directors,
Richard E. Forkey Chief Executive Officer
and President
(principal executive officer)
/s/ Jack P. Dreimiller Senior Vice President, October 23,November 4, 1998
- ------------------------ Finance, Chief Financial
Jack P. Dreimiller Officer and Clerk (principal
financial and accounting
officer)
/s/ Edward A. Benjamin* Director October 23,November 4, 1998
- ------------------------
Edward A. Benjamin
17
/s/ H. Angus Macleod* Director October 23,November 4, 1998
- ------------------------
H. Angus Macleod
/s/ Austin W. Marxe* Director October 23,November 4, 1998
- ------------------------
Austin W. Marxe
/s/* Director November 4, 1998
- ------------------------
16
Joel R. Pitlor
* Director October 23, 1998
- ------------------------
Joel R. Pitlor
/s/ Robert R. Shannon Director October 23,November 4, 1998
- ------------------------
Robert R. Shannon
* By: /s/ Jack P. Dreimiller
-----------------------
Jack P. Dreimiller
Attorney-in-Fact