As filed with the Securities and Exchange Commission on June 20, 2012
February 15, 2022Registration No. 333-________
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)
333-UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 |
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FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 |
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LightPath Technologies, Inc. |
(Exact name of registrant as specified in its charter) |
Delaware |
| 86-0708398 |
(State or other jurisdiction of incorporation) incorporation or organization) | | (Primary Standard Industrial Classification Code Number)
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2603 Challenger Tech Court, Suite 100
Orlando, Florida 32826
Telephone: (407) 382-4003
2603 Challenger Tech Court, Suite 100 |
Orlando, Florida 32826 |
(407) 382-4003 |
(Address, including zip code, and telephone number, including area code, or registrant’s principal executive offices) |
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Albert Miranda |
Chief Financial Officer LightPath Technologies, Inc. 2603 Challenger Tech Court, Suite 100 Orlando, Florida 32826 |
(407) 382-4003 |
(Name, address, including zip code and telephone number, including area code, of agent for service) |
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Copies to: |
Jeffrey E. Decker, Esq. Alissa K. Lugo, Esq. Baker & Hostetler LLP 200 South Orange Avenue Orlando, Florida 32801 (407) 649-4000 |
Approximate date 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,commencement of agent for service)
COPIES TO:
JEFFREY E. DECKER, ESQUIRE
Baker & Hostetler LLP
200 South Orange Avenue, Suite 2300
Orlando, Florida 32801
Telephone: (407) 649-4017
Approximate Date of Commencement of Proposed Saleproposed sale to the Public: As soon as practicablepublic: From time to time after the registration statementthis Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: o
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
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: o ______________________
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: o ______________________
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 426(e)462(e) under the Securities Act, check the following box. o
☐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. o
☐Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”filer,” “smaller reporting company,” and “smaller reporting“emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer o Accelerated filer o
Non-accelerated filer oLarge accelerated filer | ☐ | Accelerated filer | ☐ |
Non-accelerated filer | ☒ | Smaller reporting company | ☒ |
Emerging growth company | ☐ | | |
If an emerging growth company, x
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 7(a)(2)(B) of Securities Act. ☐CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities To be Registered | | Amount to be Registered(1) | | | Proposed Maximum Offering Price Per Share | | | Proposed Maximum Aggregate Offering Price | | | Amount of Registration Fee | |
| Class A Common Stock, $0.01 par value, per share | | | 1,943,852 | | | $ | 1.04 | (2) | | $ | 2,021,606.08 | | | $ | 231.68 | |
| Class A Common Stock, $0.01 par value, issued or issuable upon exercise of warrants | | | 1,457,892 | | | $ | 1.32 | (3) | | $ | 1,924,417.44 | | | $ | 220.54 | |
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| TOTAL | | | 3,401,744 | | | | | | | | | | | $ | 452.22 | (4) |
Title of Each Class of Securities to be Registered (1) | | Proposed Maximum Aggregate Offering Price(2)(3) | | | Amount of Registration Fee(4) | |
Class A Common Stock, par value $0.01 per share | | | | | | |
Warrants | | | | | | |
Units | | | | | | |
Total | | $ | 75,800,000 | | | $ | 7,026.66 | |
(1) This Registration Statement covers the resale by our selling stockholders | There is being registered hereunder an indeterminate number of (1) 1,943,852 shares of our(a) Class A common stock, par value $0.01 per share (“Common Stock”), issued(b) warrants to purchase Class A common stock, and (c) units, consisting of some or all of these securities in any combination, as may be sold from time to time by the Registrant. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. There are also being registered hereunder an indeterminate number of shares, at aindeterminate prices, of Class A common stock as shall be issuable upon the exercise of any securities that provide for such issuance. In no event will the aggregate offering price of $1.02 per share and (2) 1,457,892 sharesall types of Common Stock issuable upon exercise ofsecurities issued by the selling stockholders’ warrants (“Warrants”) at an exercise price of $1.32 per share of Common Stock, that were issuedRegistrant pursuant to a Securities Purchase Agreement (the “Purchase Agreement”) in connection with a private placement closed on June 11, 2012. Pursuantthis registration statement exceed $75,800,000. In addition, pursuant to Rule 416(a)416 under the Securities Act of 1933, as amended (the “Securities Act”), the sharessecurities being registered hereunder include such indeterminate number of additional shares of Common Stock assecurities that may be issuable as a result ofoffered or issued in connection with any stock splits, stock dividends, or similar transactionstransactions. |
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(2) | The proposed maximum offering price per share and proposed maximum aggregate offering price for each type of security will be determined from time to time by the Registrant in connection with, respectand at the time of, the issuance of by the Registrant of the securities registered hereunder. |
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(3) | The proposed maximum aggregate offering price has been estimated for the sole purpose of computing the registration fee in accordance with Rule 457(o) under the Securities Act. |
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(4) | Calculated in accordance with Rule 457(o) under the Securities Act. |
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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 shares being registered hereunder.(2) Estimated pursuant to Rule 457(c) underRegistrant 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 amended, solely for the purpose of calculating the registration fee based upon the average of the high and low prices of Common Stock as reported on The Nasdaq Capital Market on June 18, 2012.
Commission acting pursuant to said Section 8(a), may determine. |
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(3) Estimated pursuant to Rule 457(g) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee based on the exercise price of the Warrants.
(4) A filing fee in the total amount of $1,474.66 was previously paid by the registrant in connection with the filing of a Registration Statement on Form S-1 (File No. 333-177079) on September 29, 2011, as amended on November 7, 2011, November 23, 2011, November 29, 2011, and December 15, 2011 and subsequently withdrawn on January 27, 2012. None of the securities offered pursuant to such registration statement were sold.
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EXPLANATORY NOTE
This Registration Statement contains:
The registrant hereby amends this registration statement on such datea base prospectus, which covers the offer, issuance, and sale by us of up to $75.8 million in the aggregate of the securities identified above from time to time in one or dates asmore offerings from time to time in one or more offerings; and
a sales agreement prospectus, which covers the offer, issuance, and sale by us in an “at the market offering” of up to a maximum aggregate offering price of $25.2 million of shares of our Class A common stock that may be necessaryissued and sold from time to delay its effective date untiltime under a sales agreement dated February 15, 2022, by and between us and A.G.P./Alliance Global Partners, as sales agent.
The base prospectus immediately follows this explanatory note. The specific terms of any offering of securities pursuant to the registrant shall filebase prospectus will be specified in a further amendment which specifically statesprospectus supplement to the base prospectus.
The sales agreement prospectus immediately follows the base prospectus. The $25.2 million of shares of Class A common stock that this registration statement shall thereafter become effectivemay be offered, issued, and sold under the sales agreement prospectus is included in accordance with section 8(a)the $75.8 million of securities that may be offered, issued, and sold by us under the base prospectus. Upon termination of the Securities Actsales agreement, any portion of 1933 or until the registration statement shall become effective on such date as$25.2 million included in the Commission, actingsales agreement prospectus that has not been sold pursuant to said section 8(a),the sales agreement will be available for sale in other offerings pursuant to the base prospectus and a corresponding prospectus supplement, and if no shares are sold under the sales agreement, the full $25.2 million of securities may determine.
be sold in other offerings pursuant to the base prospectus and a corresponding prospectus supplement subject to any applicable limitations set forth herein and therein.The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. |
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PROSPECTUS | SUBJECT TO COMPLETION | DATED FEBRUARY 15, 2022 |
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$75,800,000 |
Class A Common Stock Warrants Units |
From time to time, we may offer up to $75,800,000 aggregate dollar amount of shares of Class A common stock, par value $0.01 per share (“Class A common stock”), warrants to purchase our Class A common stock, and/or units consisting of some or all of these securities, in any combination, together or separately, in one or more offerings, in amounts, at prices, and on the terms that we will determine at the time of the offering and which will be set forth in a prospectus supplement and any related free writing prospectus. The prospectus supplement and any related free writing prospectus may also add, update, or change information contained in this prospectus. The total amount of these securities will have an initial aggregate offering price of up to $75,800,000.
Our Class A common stock is traded on The Nasdaq Capital Market under the symbol “LPTH.” The last reported sale price of our Class A common stock on February 9, 2022 was $2.83 per share. None of the other securities we may offer are currently traded on any securities exchange.
We will provide the specific terms of the offering in supplements to this prospectus. You should read this prospectus and any supplement carefully before you invest. This prospectus may not be used to offer and sell our securities unless accompanied by a prospectus supplement.
If any underwriters are involved in the sale of the securities with respect to which this prospectus is being delivered, the names of such underwriters and any applicable discounts or commissions and over allotment options will be set forth in the applicable prospectus supplement. This prospectus also describes the general manner in which the securities may be offered and sold. If necessary, the specific manner in which the securities may be offered and sold will be described in a supplement to this prospectus.
Investing in our securities involves significant risks that are described in the “Risk Factors” section beginning on page 6 of this prospectus and in the documents that are incorporated by reference herein before you invest in our securities.
Neither the Securities and Exchange Commission is effective. Thisnor any state securities commission has approved or disapproved of these securities or determined if this prospectus is not an offertruthful or complete. Any representation to sell these securities and we are not soliciting offers to buy these securities in any jurisdiction where the offercontrary is not permitted.
PROSPECTUS
Subject to completion, dated June 19, 2012
a criminal offense.The date of this prospectus is ______________, 2022.
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LightPath Technologies, Inc.
2603 Challenger Tech Court, Suite 100, Orlando, Florida 32826
(407) 382-4003
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TABLE OF CONTENTS
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3,401,744 Shares of Class A
Common Stock
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that relateswe filed with the Securities and Exchange Commission, or the Commission or the SEC, utilizing a “shelf” registration process. Under this shelf registration process, we may offer and sell any of the securities, or any combination of the securities, described in this prospectus, in one or more offerings, up to a publictotal offering price of up$75.8 million. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of the offering. This prospectus, together with applicable prospectus supplements, any information incorporated by reference, and any related free writing prospectuses we file with the Commission, includes all material information relating to
3,401,744sharesthese offerings and the securities. We may also add, update, or change in the prospectus supplement any of our Class A Common Stock, $0.01 par value (the “common stock”),the information contained in this prospectus or in the documents that were previously issuedwe have incorporated by reference into this prospectus, including without limitation, a discussion of any risk factors or other special considerations that apply to our stockholdersthese offerings or are issuable upon the exercisesecurities or the specific plan of warrants helddistribution. If there is any inconsistency between the information in this prospectus and a prospectus supplement or information incorporated by certain of our stockholders (collectively, the “selling stockholders”). Our common stock is tradedreference having a later date, you should rely on the Nasdaq Capital Market (“Nasdaq”),information in that prospectus supplement or incorporated information having a later date. We urge you to read carefully this prospectus, any applicable prospectus supplement, and any related free writing prospectus that we have authorized for use in connection with this offering, together with the information incorporated herein by reference as described under the symbol LPTH. On June 18, 2012,heading “Incorporation of Certain Information By Reference” and the closing priceadditional information described under the heading “Where You Can Find More Information,” before buying any of the securities being offered.You should rely only on the information we have provided or incorporated by reference in this prospectus, any applicable prospectus supplement, and any related free writing prospectus. We have not authorized anyone to provide you with different information. No dealer, salesperson, or other person is authorized to give any information or to represent anything not contained in this prospectus, any applicable prospectus supplement, or any related free writing prospectus.
Neither the delivery of this prospectus nor any sale made under it implies that there has been no change in our common stockaffairs or that the information in this prospectus is correct as reported on Nasdaq was $1.0301.
Shares: | The selling stockholders may offer and sell these shares of common stock from time to time through public or private transactions, on or off Nasdaq, at prevailing market prices, or at privately negotiated prices or pursuant to any other method permitted by law. There is no underwriter with respect to this offering and each selling stockholder will determineof any date after the time of sale of shares made pursuant to this prospectus. |
Proceeds: | We will not receive any of the proceeds from the sale of these shares. We will receive proceeds from the exercise of the warrants if such warrants are exercised. |
Costs: | We will pay the costs relating to the registration of the shares of common stock offered by this prospectus. The selling stockholders will be responsible for any brokerage commissions, discounts or other expenses relating to the sale of the shares. |
You should carefully consider the risk factors beginning on page 2 of this prospectus before purchasing any of the shares offered by this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
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The date of this Prospectusprospectus. You should assume that the information in this prospectus, any applicable prospectus supplement, or any related free writing prospectus is _______, 2012.
TABLE OF CONTENTS
accurate only as of the date on the front cover page of the document and that any information we have incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement, or any related free writing prospectus, or any sale of the securities.The registration statement containing this prospectus, including exhibits to the registration statement, provides additional information about us and the securities offered under this prospectus and any prospectus supplement. We have filed and plan to continue to file other documents with the Commission that contain information about us and our business. Also, we will file legal documents that relate to the securities offered by this prospectus as exhibits to the reports that we file with the Commission. The registration statement and other reports can be read at the Commission website mentioned under the heading “Where You Can Find More Information.”
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed, or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under “Where You Can Find More Information.”
You should rely only upon the information contained or incorporated by reference in this prospectus and in any accompanying prospectus supplement. We have not, and the selling stockholders have not, authorized any other personOUR COMPANY This summary highlights information contained in the documents incorporated herein by reference. Before making an investment decision, you should read the entire prospectus, and our other filings with the SEC, including those filings incorporated herein by reference, carefully, including the sections entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements.”As used in this prospectus, unless otherwise indicated, “we,” “our,” “us,” “Company” or similar terms refer collectively to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. The shares of common stock are not being offered in any jurisdiction where the offer is not permitted.
You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of this prospectus.
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Company Overview
LightPath Technologies, Inc.
(“LightPath” or “Company” or “we”) manufactures optical components and
higher-level assemblies including precision molded glass aspheric optics, precision molded infrared molded optics, isolators, proprietary fiber-optic collimators, GRADIUM glass lenses and other optical materials used to produce products that manipulate light. its subsidiaries on a consolidated basis.Overview
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, telecom, machine vision and sensors, among others. All the products that we produce enable lasers and imaging devices to function more effectively. For example:
● | Molded glass aspheres are used in various high performance optical applications primarily based on laser technology;
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● | Isolators prevent the back-reflection of optical signals that can degrade optical transmitter and amplifier performance whenever light must enter or exit a fiberoptic cable (“fiber”);
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● | Collimators are assemblies that are used to straighten and make parallel diverging light as it exits a fiber, and are used in laser delivery applications like fiber lasers; 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.
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LightPath waswere incorporated under Delaware law in June 1992 as the successor to LightPath Technologies LP,Limited Partnership, a New Mexico limited partnership formed in 1989, and its predecessor, Integrated Solar Technologies Corporation, a New Mexico corporation organizedformed in 1985. Our initial business objectives focused on solar energy technology, however, over time,Today, we expanded our business to other optics applications primarily driven by laser based technology.
From 1998 through 2002, we relied heavily onare a global company with major facilities in the telecommunications capital equipment market, which went through a rapid increaseUnited States, the People’s Republic of China and a subsequent rapid decrease during this period. During fiscal 2003 following the contractionRepublic of this market, we consolidated our corporate headquarters and all production, including production for GRADIUM glass lenses and collimators previously performed in New Mexico and production of isolators previously performed in California, in Orlando, Florida to reduce costs and adapt to the market changes.
In November 2005, we formedLatvia.We have three direct wholly-owned subsidiaries. LightPath Optical Instrumentation (Shanghai) Co., Ltd (“LPOI”), a wholly-owned manufacturing subsidiary, is located in Jiading, People’s Republic of China. The manufacturing operations are housed in a 16,000 square footIts facility is primarily used for sales and support functions. LightPath Optical Instrumentation (Zhenjiang) Co., Ltd. (“LPOIZ”) is located in the Jiading Industrial Zone near Shanghai. This plant has increased overallNew City district, of the Jiangsu province, of the People’s Republic of China. LPOIZ’s manufacturing facility (the “Zhenjiang Facility”) serves as our primary manufacturing facility in China and provides a lower cost structure for production capacity and enabled us to compete forof larger production volumes of optical components and assemblies. ISP Optics Corporation, a New York corporation (“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. 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”) is a manufacturer of high precision optics and offers a full range of infrared products, including catalog and custom infrared optics. ISP Latvia’s manufacturing facility is located in Riga, Latvia.
Our Product Groups
Our business is organized into three product groups: precision molded optics (“PMOs”), infrared products, and specialty products. These product groups are supported by our major product capabilities: molded optics, thermal imaging optics, and custom designed optics.
Our PMO product group consists of visible precision molded optics with varying applications. Our infrared product group is comprised of infrared optics, both molded and diamond-turned, and thermal imaging assemblies. This product group also includes both conventional and CNC ground and polished lenses. Between these two product groups, we have the capability to manufacture lenses from very small (with diameters of sub-millimeter) to over 300 millimeters, and with focal lengths from approximately 0.4 millimeters to over 2000 millimeters. In addition, both product groups offer both catalog and custom designed optics. Our specialty product group is comprised of value-added products, such as optical subsystems, assemblies, and strengthened our partnerships within the Asia/Pacific region.
In 2006, the Company began a programcollimators, and non-recurring engineering (“NRE”) products, consisting of those products we develop pursuant to reduce its operating costs, including restructuring its manufacturing operations. By 2008, the major elements of this program were implemented resulting in a significant reduction of costs. The elements of the program were: 1) moving the majority of our manufacturing to LPOI’s Shanghai facility, 2) converting our tooling to a less expensive ceramic systemproduct development agreements that we enter into with customers. Typically, customers approach us and 3) introducing lower cost glass materials. In exploiting ourrequest that we develop new cost structure, we have focused on leveraging LPOI’s facility in Shanghai to address high volume, low cost applications. Theseproducts or applications include laser tools, laser gun sights and certain imaging applications. We have established relationships
with some of the larger OEM customers in these areas and expanded our sales channels by adding distribution coverage in North America and Asia, and a master distributor in Europe. Finally, we are designing lenses specifically 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.Our Technologies
We and our customers support a wide range of industries, including automotive, telecommunications, defense, medical, bio-technology, industrial, consumer goods and more. A commonality among these industries is the use of photonics as an enabling technology in their products.
We continue to focus on developing new, target markets. innovative capabilities and technologies in all of our engineering and manufacturing groups, including systems design and testing, optical fabrication of components, material production, optical coatings, and electro mechanical design and production. Among the manufacturing technologies we own are:
| · | High precision molded lenses. Historically, precision molding of lenses is the key technology we built upon. Precision molding of optics is a unique technology that is well suited for both high volume production of optical components, as well as production of optics with unique shapes, which otherwise would require a very lengthy and complex process, to individually polish each lens to shape. Precision molded optics, or PMOs, is a technology we continuously invest in, pushing the envelope further on what materials can be molded and the shapes and sizes of the optics we can mold. Although there are several other competitors that can mold optical elements, we have an established leadership position in this area, as the original developer of the technology, and we believe we are the preferred vendor for the most complex, high-end projects of many of our customers. Some recent advancements we have made in precision molded optics include molding of non-symmetric shapes such as freeform optical components, and qualifying new materials for availability as moldable materials. |
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| · | Traditional polishing, and diamond turned optics. Through the acquisition of ISP in fiscal 2017, we added to our capabilities a wide range of traditional fabrication processes. These include CNC grinding and polishing of optical elements, traditional grind and polishing of lenses, and diamond turning of infrared materials |
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| · | Materials. Materials play an important role in providing design flexibility and allow tradeoffs between optical performance, weight, and performance in varying conditions. Traditionally, infrared applications have only a small number of materials, all of which are crystal based. However, the introduction of synthetic Chalcogenide glass in recent years, which allows for synthesizing of different materials, has created a larger library of materials to design with. We produce four materials: BD6, our flagship Chalcogenide glass; (ii) BD2 which we have been producing for over 15 years; (iii) NaCl and (iv) KBr crystals. We believe that having a larger selection of optical materials will provide us more tools to design better solutions than exists with current materials, and we plan to continue to invest in our materials development. In addition, through a grant from Space Florida foundation and Israel’s ministry of science, we plan to qualify our Chalcogenide glass for space applications and in particular thermal imaging from space, which is a fast-growing application |
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| · | Optical coatings. Thin film coatings are designed to reduce losses and protect the optical material, which are a key part of any optical system. Through our recent investments, we have the ability to coat lenses in all of our facilities, providing efficient, high quality antireflective coatings, as well as reflective and protective coatings. Our coating facilities employ both physical vapor deposition techniques as well as chemical vapor deposition techniques. In addition to our library of dozens of standard coatings, our coating engineers often design coatings specific for an application, optimizing the performance of the system for a specific customer use. One of our most known advanced coatings is DLC, or Diamond Like Carbon, which provides materials such as chalcogenide glass significant environmental protection. This coating is currently available only at a small number of vendors, and is an example of a capability that provides us the ability to design better optical solutions. |
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| · | Assembly and testing. In recent years we have invested significantly in capabilities for sub-system level assemblies and testing in two of our facilities. Even more recently, we have added capabilities of active alignment, and extended testing including environmental testing, to support our growing business of optical assemblies and engineered solutions. We expect to continue to invest in this area as activity grows, and in particular in volume manufacturing and testing of assemblies. |
Corporate Information
Our new designs and new marketing approach have brought additional requests for product information from new customers. We believe we are well positioned to take advantage of new opportunities in these areas.
Our principalexecutive offices are located at 2603 Challenger Tech Court, Suite 100, Orlando, Florida 32826. Our32826 and our telephone number is (407) 382-4003.
Overview382.4003. Our website address is www.lightpath.com.The information on our website is not part of Offering
this prospectus.CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements and information in this prospectus and the documents incorporated by reference herein and therein may constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Private Securities Litigation Reform Act of 1995. These forward-looking statements include, without limitation, statements concerning plans, objectives, goals, projections, strategies, future events, or performance, statements related to the expected effects on our business from the coronavirus (“COVID-19”) pandemic, and underlying assumptions and other statements, which are not statements of historical facts. In some cases, you can identify forward-looking statements by terminology such as “may,” “will,” “should,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “potential,” or “continue,” or other comparable terminology.
These forward-looking statements are based on our current expectations and beliefs concerning future developments and their potential effect on us. While management believes that these forward-looking statements are reasonable as and when made, there can be no assurance that future developments affecting us will be those that we anticipate. Forward-looking statements involve known and unknown risks, uncertainties, and other factors that may cause our actual results, performance, or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. Given these uncertainties, you should not place undue reliance on these forward-looking statements. Forward-looking statements represent management’s beliefs and assumptions only as of the date of this prospectus. You should read this prospectus completely and with the understanding that our actual future results may be materially different from what we expect. Except as required by law, we assume no obligation to update these forward-looking statements, or to update the reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new information becomes available in the future.
All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements in this section and elsewhere in this prospectus and in the documents incorporated by reference. Other than as required under the securities laws, we do not assume a duty to update these forward-looking statements, whether as a result of new information, subsequent events or circumstances, changes in expectations or otherwise.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus relatesforms a part of a registration statement on Form S-3 that we filed with the SEC. This prospectus does not contain all of the information found in the registration statement. For further information regarding us and our securities, please review the full registration statement, including its exhibits and schedules, filed under the Securities Act, as well as our proxy statement, annual, quarterly, and other reports and other information we file with the SEC. The SEC maintains a website on the Internet at www.sec.gov that contains reports, proxy and information statements, and other information about us that we file electronically with the SEC. We maintain a website on the Internet at www.lightpath.com. Our registration statement, of which this prospectus constitutes a part, can be downloaded from the SEC’s website or from our website at www.lightpath.com. Information on the SEC website, our website or any other website is not incorporated by reference in this prospectus and does not constitute part of this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” information that we file with the SEC, which means that we can disclose important information to you by referring you to those other documents. The information incorporated by reference is an important part of this prospectus. Any statement contained in a public offeringdocument that is incorporated by reference in this prospectus is automatically updated and superseded if information contained in this prospectus, or information that we later file with the SEC, modifies or replaces that information. Any statement made in this prospectus or any prospectus supplement concerning the contents of up to 3,401,744 sharesany contract, agreement, or other document is only a summary of our common stock that were previously issuedthe actual contract, agreement, or other document. If we have filed or incorporated by reference any contract, agreement, or other document as an exhibit to the selling stockholders or are issuable uponregistration statement, you should read the exercise of warrants held by the selling stockholders.
In connection with a Securities Purchase Agreement dated as of June 11, 2012 we issued 1,943,852 shares of our common stock at $1.02 per share and warrants to purchase an additional 1,457,892 shares of our common stock at an exercise price equal to $1.32 per share (the “Warrants”). The Warrants are exercisableexhibit for a period of five years beginning on December 11, 2012. The exercise pricemore complete understanding of the Warrants will be adjusted if we issuedocument or sell for consideration per share less thanmatter involved. Each statement regarding a price equalcontract, agreement, or other document is qualified in its entirety by reference to the exercise priceactual document.We incorporate by reference the following documents we filed, excluding any information contained therein or attached as exhibits thereto, which has been furnished to, but not filed with, the SEC:
| (a) | our Annual Report on Form 10-K for the fiscal year ended June 30, 2021, filed with the SEC on September 13, 2021; |
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| (b) | Our Quarterly Report on Form 10-Q for the quarter ended September 30, 2021, filed with the SEC on November 10, 2021 and our Quarterly Report on Form 10-Q for the quarter ended December 31, 2021, filed with the SEC on February 10, 2022; |
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| (c) | our Current Reports on Form 8-K (other than information furnished rather than filed pursuant to Item 2.02 or Item 7.01 of any such Current Report on Form 8-K and any corresponding information furnished under Item 9.01 or included as an exhibit), filed with the SEC on September 27, 2021, November 15, 2021, and December 23, 2021; |
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| (d) | Our Definitive Proxy Statement on Schedule 14A filed on September 27, 2021; and |
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| (e) | the description of our Class A common stock contained in Exhibit 4.1 to our Annual Report on Form 10-K for the fiscal year ended June 30, 2021 filed on September 13, 2021, including any amendment or report filed for the purpose of updating the description. |
Any documents we file pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Warrants in effect immediately priorExchange Act (excluding any information furnished pursuant to such issuanceItem 2.02 or sale (excluding the issuanceItem 7.01 on any current report on Form 8-K and any corresponding information furnished under Item 9.01 or sale of certain excluded securities) at any time on orincluded as an exhibit) after the date of the Securities Purchase Agreement, provided, however, no adjustmentregistration statement of which this prospectus forms a part and until the termination of the offering under this prospectus shall be deemed to be incorporated in this prospectus by reference and to be a part hereof from the date of filing of such documents. Any statement contained herein, or in a document incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this prospectus to the exercise priceextent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
Any person to whom a copy of this prospectus is delivered may obtain without charge, upon written or oral request, a copy of the Warrantsdocuments incorporated by reference in this prospectus (other than exhibits, unless they are specifically incorporated by reference in any such documents). Requests for copies of documents should be directed to Investor Relations Department, LightPath Technologies, Inc., 2603 Challenger Tech Court, Suite 100, Orlando, Florida 32826, telephone number (407) 382.4003, or email at inv_rel@lighpath.com.
RISK FACTORS
Investing in our securities involves substantial risk. The prospectus supplement applicable to each offering of securities will result in the exercise pricecontain a discussion of the Warrants being less than $1.15 per share, which was the consolidated closing bid price ofrisks applicable to an investment in our common stock on the Nasdaq Capital Marketsecurities. Prior to making a decision about investing in the normal trading session immediately preceding the time at which we executed the Securities Purchase Agreement and other transaction documents. We received aggregate gross cash proceeds from the issuance of the common stock (exclusive of proceeds from any future exercise of the Warrants) in the amount of $1,982,726.92. If the selling stockholders exercise in full their respective Warrants, we will receive additional proceeds in the amount of $1,924,417.44.
We paid a commission to the exclusive placement agent for the offering, Meyers Associates, LP (“Meyers”), in an amount equal to $198,273 plus costs and expenses. We also issued to Meyers and its designees warrants to purchase an aggregate of 194,385 shares of our common stock at an exercise price equal to $1.32 per share, for a five-year term beginning December 11, 2012.
The selling stockholders may offer and sell these shares of common stock from time to time through public or private transactions, on or off Nasdaq, at prevailing market prices, at privately negotiated prices or pursuant to any other method permitted by applicable law. There is no underwriter with respect to this offering, and each selling stockholder will determine the time of sale of shares of common stock made pursuant to this prospectus. We will not receive any of the proceeds from the sale of these shares of common stock. We will receive proceeds from the exercise of the Warrants if such Warrants are exercised. We will pay the costs and fees of registering the shares of common stock offered by this prospectus, which we estimate to be approximately $53,218, but the selling stockholders will pay any brokerage commissions, discounts or other expenses relating to the sale of the shares.
Before purchasing the shares offered by this prospectus,securities, you should carefully consider the risks described below,specific factors discussed under the heading “Risk Factors” in addition tothe applicable prospectus supplement, together with all of the other information presented in this prospectuscontained or incorporated by reference intoin the prospectus supplement or appearing or incorporated by reference in this prospectus. IfYou should also consider the risks, uncertainties, and assumptions discussed in our most recent Annual Report on Form 10-K, in any ofsubsequent Quarterly Report on Form 10-Q, and any other filings we make with the followingSEC from time to time, which are incorporated herein by reference in this prospectus, and may be amended, supplemented, or superseded from time to time by other reports we file with the SEC in the future. The risks actually occur, they could seriously harmand uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations. Our business, financial condition, or results of operations or cash flows. This could causebe materially adversely affected by the materialization of any of these risks. The trading price of our common stocksecurities could decline due to declinethe materialization of any of these risks and you couldmay lose all or part of your investment.
Risks Related To Our Business and Financial Results
Our Continuation As A Going Concern Is Dependent On Attaining Profitable Operations Through Achieving Revenue Growth Targets. As of March 31, 2012, we had an accumulated deficit of $204.8 million. AsUSE OF PROCEEDS
We will retain broad discretion over the use of the endnet proceeds to us from the sale of fiscal 2011,our securities under this prospectus. Unless we had an accumulated deficitstate otherwise in the applicable prospectus supplement, we intend to use the net proceeds from the sale of $203.7 million. Our abilitysecurities under this prospectus for general corporate purposes, which may include working capital, investments, reducing indebtedness, and acquisitions. We will set forth in the applicable prospectus supplement our intended use for the net proceeds received from the sale of any securities.
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, as amended (the “Certificate of Incorporation”) and our Amended and Restated Bylaws, as further amended (the “Bylaws”), and as registered under Section 12 of the Exchange Act. The summary does not purport to continue as a going concernbe complete and is dependent on attaining profitable operations through achieving revenue growth targets. We expect revenue to growqualified in its entirety by seeking to improve gross margins and generating additional sales, but we cannot guarantee such improvement or growth.
If general market conditions stay depressed for an extended period of time and we are unable to generate sufficient sales, we will have a difficult time achieving sufficient revenue growth, thereby further jeopardizing our ability to continue as a going concern after May 31, 2013. Other factors which could adversely affect our cash balance in future quarters, and therefore our ability to continue as a going concern, 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 duereference to our slow payment history, collection demands from current suppliesCertificate of Incorporation and slow payments from our customers on accounts receivable.
Because Of Our Dependence On A Few Key Customers, The LossBylaws, each of Any Key Customer Could Cause A Significant Decline In Our Revenues. In fiscal 2011, saleswhich are incorporated by reference as exhibits to three customers,the registration statement of which individually comprised at least 5%this prospectus forms a part and to the provisions of the Delaware General Corporate Law (the “DGCL”). We encourage you to review complete copies of our annual revenue, were comprisedCertificate of sales to Thorlabs at 9%, Crimson Trace at 7% and Edmunds Industrial Optics at 6%. In fiscal 2010, sales to three customers individually comprised at least 5% of our annual sales, with sales to Crimson Trace at 12%, Thorlabs at 7% and Edmunds Industrial Optics at 6%. In fiscal 2009, sales to two customers, Crimson Trace and ThorLabs individually comprised at least 7% of our annual sales, with sales to Crimson Trace at 9% and ThorLabs at 7%. Since fiscal 2010, 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. The loss of any of these customers, or a significant reduction in sales to any such individual customer, would adversely affect our revenues.
Order Cancellations And Extensions Of Product Shipment Dates By Customers Can Hinder Our Ability To Achieve Profitability. Our sales are generally made pursuant to purchase orders that are subject to cancellation, modification or rescheduling without significant penalties to our customers. In recent years, we have experienced material order cancellations and significant extensions of product shipment dates by some of our customers. If our current customers stop placing orders, or unexpectedly reduce orders, we may not be able to replace these orders with orders from new customersIncorporation and our ability to achieve profitability will be adversely affected. The majority of our current customers do not have any minimum purchase obligations,Bylaws, and they may stop placing orders with us at any time, regardless of any forecast they may have previously provided.
Our New Market Penetration Efforts Are Progressing But May Not Prove Successful. Our efforts to diversify our sales to high-volume, low-cost optical applications and other new market and product opportunities in multiple industries are progressing, however, our current line of products has not generated sufficient revenues to sustain our operations. 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.
Some Of Our Products Have Not Been Demonstrated To Be Commercially Successful. Although our optical lens products have been accepted commercially, the benefitsapplicable provisions of the GRADIUM glass line are not widely knownDGCL for additional information.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 (the “common stock”), and must be introduced, as we can afford,5,000,000 shares of preferred stock. Under our Certificate of Incorporation, our board of directors (our “Board”) has the authority to issue such shares of common stock and preferred stock in markets that we believe would benefit from the performance characteristics of GRADIUM. Many prospective customers will need to make substantial expenditures in order to redesign products to incorporate our GRADIUM lenses. There can be no assurances that potential customers will view the benefits of our products as sufficient to warrant such design expenditures.
Our collimator products have not yet achieved broad commercial acceptance; our isolator production capability and sales are reliant on the volatile telecommunications market; and some of our molded aspheres applications are new. There can be no assurance that any of these will be commercially viable products or produce significant revenues. Further, there is no assurance that any products currently existing or to be developed in the future will attain sufficient market acceptance to generate significant additional revenues that are necessary for our success. We must also satisfy industry-standard Telcordia testing on telecommunication products to meet customer requirements, as well as satisfy prospective customers that we will be able to meet their demand for quantities of products, since we may be the sole supplier and licensor. We do not have lengthy experience as a manufacturer for all our product lines and have limited financial resources. We may be unable to accomplish any one or more of the foregoing to the extent necessary to develop commercially successful market acceptance of our products.
Our Past Operating History May Hinder Our Ability To Accurately Forecast Revenues And Expenses. Although over 20 years old, LightPath only has generated significant revenues (higher than $5 million per year) since fiscal 2000. Because of this highly variable operating experience, we have in the past been unableclasses or series, with such voting powers, designations, preferences and may in the future be unable to accurately forecast our revenues from sales of our products. Many of our expenses are fixed in the short term,relative, participating, optional or other special rights, if any, and we may not be able to quickly reduce spendingsuch qualifications, limitations, or restrictions thereof, if our revenue is lower than we project. New product introductions will also result in increased operating expenses in advance of generating revenues, if any. Therefore, net lossesany, as provided for in a given quarter could be greater than expected. Failure to accurately forecastresolution or resolutions adopted by our revenuesBoard and future operating expenses could cause quarterly fluctuationsfiled as designations.Class A Common Stock
Of the 50,000,000 shares of common stock authorized in our operating results, including cash flows, and may result in further volatilityCertificate of or a decline inIncorporation, our stock price.
If We Are Unable To Develop And Successfully Introduce New And Enhanced Products That Meet The Needs Of Our Customers, Our Business May Fail. 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 customersBoard has designated 44,500,000 shares as scheduled, our net revenues may decline.
Our Sales, Gross Margins, And Market Share May Be Reduced Because of Increased Competition. Competition in optical markets in which we compete is intense. 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 acquire other companies
in order to gain new technologies or products that may displace our product lines. Such acquisitions could give our competitors further advantages. For example, if our competitors acquire any of our significant customers, these customers may reduce the amount of products they purchase from us. Alternatively, some of our competitors may spin-out new companies in the optical component and module market. These companies may compete more aggressively than their former parent companies due to their greater dependence on our markets. In addition, many of our potential competitors have significantly more established sales and customer support organizations, much greater name recognition, more extensive customer bases, more developed distribution channels and broader product offerings than we have. These companies can leverage their customer bases and broader product offerings and adopt aggressive pricing policies to gain market share. Additional competitors may enter the market, and we are likely to compete with new companies in the future. We expect to encounter potential customers that, due to existing relationships with our competitors, are committed to the products offered by these competitors. As a result of the foregoing factors, we expect that competitive pressures may result in price reductions, reduced margins and loss of market share. To maintain or improve our gross margins, we must continue to reduce the manufacturing cost of our products.
We compete with manufacturers of conventional spherical lens products and aspherical lens products, producers of optical quality glass and other developers of gradient lens technology as well as telecom product manufacturers. In 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. We are also aware of other companies that are attempting to develop radial gradient lens technology. There may also be others of which we are not aware that are attempting to develop axial gradient lens technology similar to our technology. There can be no assurance that existing or new competitors will not develop technologies that are superior to or more commercially acceptable than our existing and planned technologies and products.
We Anticipate Further Reductions in the Average Selling Prices Of Our Products 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 eight 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. If we are unable to offset this anticipated decrease in our average selling prices by increasing our sales volumes or product mix, our net revenues and gross margins will decline, increasing the projected cash needed to fund operations. To address these competitive pressures, we must develop and introduce new products and product enhancements with higher margins. If we cannot maintain or improve our gross margins, our financial position may be harmed and our stock price may decline.
Because Of Our Limited Product Offerings, Our Ability To Generate Additional Revenues May Be Adversely Affected. We derive a substantial portion of our net revenues from a limited number of products, and we expect this to continue to account for a substantial portion of our total net revenues. Demand for these and other optical market products 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 once the communications industry and general economic conditions improve, 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.
If We Do Not Expand Our Sales And Marketing Organization, Our Revenues May Not Increase. The sale of our products requires long and involved sales and marketing efforts targeted at several key departments within our prospective customers’ organizations. Sales of our products require the prolonged efforts of sales, and sometimes executive, personnel, as well as specialized systems and applications engineers working together. Currently, our 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 prevent us from increasing our revenues
If We Are Unable To Make Sales InClass A Fragmented Market Our Revenues May Not Increase. The markets for optical lenses and laser components are highly fragmented. Consequently, we will need to identify and successfully target particular market segments in which we believe we will have the most success. These efforts will require a substantial, but unknown, amount of effort and resources. The fragmented nature of the optical products market may impede our ability to achieve commercial acceptance for our products. In addition, our success will depend in great part on our ability to develop and implement a successful marketing and sales program. There can be no assurance that any marketing and sales efforts undertaken by us will be successful or will result in any significant product sales.
Our Products Have Long And Variable Sales Cycles Which Reduce Our Ability To Accurately Forecast Revenues. The timing of our revenue is difficult to predict because of the length and variability of the sales and implementation cycles for our products. We do not recognize revenue until a product has been shipped to a customer, all significant vendor obligations have been performed and collection is considered probable. Customers may view the purchase of our products as a significant and strategic decision. As a result, customers typically expend significant effort in evaluating, testing and qualifying our products and our manufacturing process. This is particularly the case with our defense application market. This customer evaluation and qualification process frequently results in a lengthy initial sales cycle (often up to one year). While our customers are evaluating our products and before they place an order with us, we may incur substantial sales, marketing and product development expenses to customize our products to the customer’s needs. We may also expend significant management efforts, increase manufacturing capacity and order long lead-time components or materials prior to receiving an order. Even after this evaluation process, a potential customer may not purchase our products. Because of the evolving nature of the optical markets, we cannot predict the length of these sales and development cycles. These long sales cycles may cause our revenues and operating results to vary significantly and unexpectedly from quarter to quarter, which could continue to cause volatility in our stock price.
Litigation May Adversely Impact Operating Results. We may from time to time become involved in lawsuits and legal proceedings. Litigation is expensive and is subject to inherent uncertainties, and 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
Sales, Political, Currency And Other Risks Associated With Our International Sales And Supply Could Negatively Impact Our Business. In fiscal 2011, approximately 39% of our net revenues were from sales to international customers. In fiscal 2010, approximately 31% of our net revenues were from sales to international customers. Our international sales will be limited if we cannot establish and/or maintain relationships with international distributors, establish 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 risks including the following:
● | greater difficulty in accounts receivable collection and longer collection periods; |
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● | the impact of recessions in economies outside the United States; |
● | unexpected changes in regulatory requirements; |
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● | unexpected changes in foreign demand in response to exchange rate fluctuations; |
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● | certification requirements; |
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● | reduced protection for intellectual property rights in some countries; |
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● | potentially adverse tax consequences; and |
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● | political and economic instability. |
In November 2005, we formed LightPath Optical Instrumentation (Shanghai) Co., Ltd., a wholly-owned manufacturing subsidiary, located in Jiading, People’s Republic of China, in order to expand our international production capacity and sales. This manufacturing facility increased overall production capacity and has enabled us to compete for larger production volumes of optical components and assemblies, and strengthen partnerships within the Asia/Pacific region. It has also provided a launching point to drive our sales expansion in the Asia/Pacific region.
While we expect our international revenues to be denominated predominantly in U.S. dollars, 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.
We also source certain raw materials from outside the United States. Some of those materials, priced in non-dollar currencies, have risen in price due to the recent decline of the U.S. dollar against non-dollar-pegged currencies, especially the Euro. This lowers our margins and reduces our ability to reach positive cash flow and profitability.
Our Business Has Been Subject To Fluctuations In Quarterly Results And Continued Fluctuations Could Negatively Impact Our Stock Price. The market price of our common stock could be subject to wide fluctuations in response to quarterly variations in operating results. Revenues and results of operations are difficult to predict and may fluctuate substantially from quarter to quarter. For example, any cancellation or delay in shipment of orders from a key customer could result in significant fluctuations in quarterly results.
We May Issue Additional Securities With Rights Superior To Those Of Our Common Stock, Which Could Materially Limit The Ownership Rights Of 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 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 the common stock and may be convertible into common stock. Any saleAs of securities could adversely affect the interests or voting rights of the holders of our common stock, result in substantial dilution to existing stockholders, or adversely affect the market price of our common stock.
Our Stock Price Has Been, And May Continue To Be, Subject To Large Price Swings, Which We Are Not Able To Control. Broad market fluctuations or fluctuations in our operations may adversely affect the market price of our common stock. The market for our common stock is volatile, the bid-ask spread is often large and the trading volume and activity can be low and sporadic. The trading price of our common stock has been and will continue to be subject to the following:
● | volatility in the trading markets generally and in our particular market segment; |
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● | limited trading of our common stock; |
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● | significant fluctuations in response to quarterly variations in operating results; |
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● | announcements regarding our business or the business of our customers or competitors; |
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● | changes in prices of our competitors’ products and services; |
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● | changes in product mix; |
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● | changes in revenue and revenue growth rates; and |
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● | other events or factors. |
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 common stock. In addition, the stock market as a whole, as well as our particular market segment, have from time to time experienced extreme price and volume fluctuations which have particularly affected the market price for the securities of many companies and which often have appeared unrelated to the operating performance of these companies. Although our shares are publicly traded on Nasdaq, the trading market forFebruary 9, 2022, 27,034,266 shares of our Class A common stock can be limited. During fiscal 2011, Nasdaq-reported trading volume forwere 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 averaged 48,426 shares per trading day. We cannot forecast or control any material increaseare entitled to one vote for each share held of record on all matters submitted to a vote of stockholders, including the election of directors, and are entitled to receive dividends when and as declared by our Board out of funds legally available therefore for distribution to stockholders and to share ratably in the trading volumeassets legally available for our common stock. A lack of an active trading market for our common stock could negatively impact stockholders’ abilitydistribution to sell their shares of our common stock atstockholders in the time and price they desire.
The Fact That We Do Not Expect To Pay Dividends May Lead To A Decreased Price For Our Stock. Our board of directors has never declared a dividend on our common stock. We are currently prohibited from declaring dividends without the prior written consentevent of the holdersliquidation or dissolution, whether voluntary or involuntary, of at least 80% in principal amount of the then-outstanding convertible debentures issued on August 1, 2008.LightPath. We have not paid any dividends and do not anticipate paying any dividends on our Class A common stock in the foreseeable future. Due to U.S. tax law changes in 2003, dividends may be more valuable on an after-tax basis as a component of investment return, potentially diminishing the appeal of holding our common stock. It is anticipated that our present policy to retain earnings, if any, will be reinvestedfor use in sales growth activities forthe development of our business.
Our Management And Principal Stockholders ControlClass A Substantial Amount Of Our Stock And May, Therefore, Influence Our Affairs. If our management and a few principalcommon stockholders actdo not have cumulative voting rights in concert, disposition of matters submitted to stockholders or the election of our entire board of directors will be controlled by them. We estimate that management, including directors and our principal stockholders (stockholders owning more than 5%have no preemptive, subscription, or conversion rights. Our Class A common stock is not subject to redemption by us.As of February 9, 2022, we have reserved for issuance 2,097,471 shares of our Class A common stock) beneficially owned approximately 10% of all options,stock underlying outstanding restricted stock units, and warrants, convertible debentures and417,401 shares of our Class A common stock for issuance upon the exercise of outstanding as of June 19, 2012.
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 valuestock options, 532,385 shares of our Class A common stock. Our Certificatestock for issuance under the 2018 Stock and Incentive Compensation Plan, and 277,443 shares of Incorporation, Bylawsour Class A common stock for issuance under our 2014 Employee Stock Purchase Plan.The transfer agent and certain other agreements contain certain provisions that may discourage other persons from attempting to acquire controlregistrar for our Class A common stock is Computershare Trust Company, N.A.
Preferred Stock
Of the 5,000,000 shares of us. These provisions include, but are not limited to, the following:
preferred stock authorized, our Board has previously designated:● | staggered-terms· | 250 shares of service forPreferred Stock as Series A Preferred Stock, all previously outstanding shares of which have been previously redeemed or converted into shares of our board of directors;Class A common stock and may not be reissued; |
| · | 300 shares of 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; |
| · | 500 shares of 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; |
| the authorization of the board of directors to issue· | 500,000 shares of undesignated preferred stock in one or more series without the specific approvalPreferred Stock as Series D Preferred Stock, none of the stockholders; |
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● | the adoption of a stockholder rights planwhich have been issued; however, in 1998, andour Board declared a dividend distribution ofas a right to purchase one share of Series D Participating Preferred Stock for each outstanding share of Class A common stock.stock upon occurrence of certain events. The description and terms of such rights are set forth in a Rights Agreement dated as of May 1, 1998 between LightPath and Continental Stock Transfer & Trust Company, as Rights Agent (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 Right Agreement was amendedexpired on February 28, 2008 to extend the termination date through February 28, 2018; |
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● | the establishment of advance notice requirements for director nominations and actions to be taken at annual meetings;2021; and |
| · | 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. |
Of the 5,000,000 shares of preferred stock, 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 Class A common stock, diluting the voting power of the Class A common stock, impairing the liquidation rights of the Class A common stock, or delaying or preventing a change in control of us, all without further action by our stockholders.
Certain Provisions of our Certificate of Incorporation, our Bylaws, and the DGCL
Certain provisions in our Certificate of Incorporation and Bylaws, as well as certain provisions of the DGCL, may be deemed to have an anti-takeover effect and may delay, deter, or prevent a tender offer or takeover attempt that a stockholder might consider to be in its best interests, including attempts that might result in a premium being paid over the market price of the shares held by stockholders. These provisions contained in our Certificate of Incorporation and Bylaws include the items described below.
| · | Classified Board. 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. |
● | the fact | |
| · | No Written Consents. 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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| · | Special Meetings of Stockholders. Our Bylaws provide that special meetings of theour stockholders may be called only by ourthe Chairman of the Board, President, or upon the request of a majority of our boardBoard. |
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| · | Stockholder Advance Notice Procedures. 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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| · | No Cumulative Voting. 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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| · | Exclusive Forum. 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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| · | Undesignated Preferred Stock. Because our Board has the power to establish the preferences and rights of the shares of any additional series of Preferred Stock, it may afford holders of any Preferred Stock preferences, powers, and rights, including voting and dividend rights, senior to the rights of holders of our Class A Common Stock, which could adversely affect the holders of our Class A Common Stock and could discourage a takeover of us even if a change of control of LightPath would be beneficial to the interests of our stockholders. |
AllThese 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 as well ascould 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.
In addition, we are subject to the provisions of Section 203 of the DGCL. Section 203 of the DGCL prohibits a publicly-held Delaware General Corporation Law (tocorporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the person became an interested stockholder, unless:
| · | The board of directors of the corporation approved the business combination or 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 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. |
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.
Limitation of Liability and Indemnification of Officers and Directors
Our Certificate of Incorporation limits the personal liability of directors for breach of fiduciary duty to the maximum extent permitted by the DGCL. Our Certificate of Incorporation provides that no director will have personal liability to us or to our stockholders for monetary damages for breach of fiduciary duty or other duty as a director, except for:
| · | any breach of the director’s duty of loyalty to us or our stockholders; |
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| · | acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
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| · | any transaction from which the director derived an improper personal benefit; or |
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| · | under Section 174 of the DGCL. |
Any amendment to or repeal of these provisions will not eliminate or reduce the effect of these provisions in respect of any act or failure to act, or any cause of action, suit or claim that would accrue or arise prior to any amendment or repeal or adoption of an inconsistent provision. If the DGCL is amended to provide for further limitations on the personal liability of directors of corporations, then the personal liability of our directors will be further limited to the greatest extent permitted by the Delaware Law.
In addition, our Bylaws provides that we are subject), could impederequired to indemnify to the fullest extent permitted by applicable law, any person made or threatened to be made a merger, consolidation, takeoverparty 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, to the extent required by law, 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.
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.
DESCRIPTION OF WARRANTS
General
We may issue warrants for the purchase of our Class A common stock. Warrants may be issued independently or together with our Class A common stock and may be attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the warrants. The warrant agent will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. This summary of certain provisions of the warrants is not complete. For the terms of a particular series of warrants, you should refer to the prospectus supplement for that series of warrants and the warrant agreement for that particular series.
Equity Warrants
The prospectus supplement relating to a particular series of warrants to purchase our Class A common stock will describe the terms of the warrants, including the following:
| · | the title of the warrants; |
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| · | the offering price for the warrants, if any; |
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| · | the aggregate number of warrants; |
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| · | the designation and terms of the Class A common stock that may be purchased upon exercise of the warrants; |
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| · | if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each security; |
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| · | if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable; |
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| · | the number of shares of Class A common stock that may be purchased upon exercise of a warrant and the exercise price for the warrants; |
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| · | the dates on which the right to exercise the warrants shall commence and expire; |
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| · | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
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| · | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
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| · | if applicable, a discussion of material United States federal income tax considerations; |
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| · | the antidilution provisions of the warrants, if any; |
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| · | the redemption or call provisions, if any, applicable to the warrants; |
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| · | any provisions with respect to a holder’s right to require us to repurchase the warrants upon a change in control or similar event; and |
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| · | any additional terms of the warrants, including procedures and limitations relating to the exchange, exercise, and settlement of the warrants. |
Holders of equity warrants will not be entitled:
| · | to vote, consent, or receive dividends; |
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| · | receive notice as stockholders with respect to any meeting of stockholders for the election of our directors or any other matter; or |
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| · | exercise any rights as stockholders. |
DESCRIPTION OF UNITS
We may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series. We may evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address of the unit agent in the applicable prospectus supplement relating to a particular series of units.
The following description, together with the additional information included in any applicable prospectus supplement, summarizes the general features of the units that we may offer under this prospectus. You should read any prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to the series of units being offered, as well as the complete unit agreements that contain the terms of the units. Specific unit agreements will contain additional important terms and provisions and we will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from another report that we file with the SEC, the form of each unit agreement relating to units offered under this prospectus.
If we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including, without limitation, the following, as applicable:
| · | the title of the series of units; |
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| · | identification and description of the separate constituent securities comprising the units; |
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| · | the price or prices at which the units will be issued; |
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| · | the date, if any, on and after which the constituent securities comprising the units will be separately transferable; |
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| · | a discussion of certain United States federal income tax considerations applicable to the units; and |
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| · | any other terms of the units and their constituent securities. |
PLAN OF DISTRIBUTION
We may sell the securities covered by this prospectus from time to time through underwriters, dealers, or agents, in “at the market offerings” within the meaning of Rule 415(a)(4) of the Securities Act, or directly to purchasers, in one or more transactions at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to such prevailing market prices, or at negotiated prices. We may use these methods in any combination.
We may directly solicit offers to purchase the securities being offered by this prospectus. We may also designate agents to solicit offers to purchase the securities from time to time. We will name in a prospectus supplement any agent involved in the offer or sale of our securities. Unless otherwise indicated in a prospectus supplement, an agent will be acting on a best-efforts basis, and a dealer will purchase securities as a principal for resale at varying prices to be determined by the dealer.
If we utilize an underwriter in the sale of the securities being offered by this prospectus, we will execute an underwriting agreement with the underwriter at the time of sale and we will provide the name of any underwriter in the prospectus supplement that the underwriter will use to make resales of the securities to the public. In connection with the sale of the securities, we, or the purchasers of securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions, or commissions from the underwriters or commissions from the purchasers for whom they may act as agent.
We will provide in the applicable prospectus supplement any compensation we pay to underwriters, dealers, or agents in connection with the offering of the securities, and any discounts, concessions, or commissions allowed by underwriters to participating dealers. Underwriters, dealers, and agents participating in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements to indemnify underwriters, dealers, and agents against civil liabilities, including liabilities under the Securities Act, and to reimburse them for certain expenses. We may grant underwriters who participate in the distribution of our securities under this prospectus an option to purchase additional securities to cover any over-allotments in connection with the distribution.
The securities we offer under this prospectus may or may not be listed through The Nasdaq Capital Market or any other securities exchange. To facilitate the offering of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain, or otherwise affect the price of the securities. This may include short sales of the securities, which involves the sale by persons participating in the offering of more securities than we sold to them. In these circumstances, these persons would cover such short positions by making purchases in the open market or by exercising their option to purchase additional securities. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
We may engage in "at the market offerings" into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In addition, we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and they may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in these sale transactions will be an underwriter and will be identified in the applicable prospectus supplement. In addition, we may otherwise loan or pledge securities to a financial institution or other business combination involvingthird party that in turn may sell the securities short using this prospectus. The financial institution or other third party may transfer its economic short position to investors in our securities or in connection with a concurrent offering of other securities.
We will file a prospectus supplement to describe the terms of any offering of our securities covered by this prospectus. The prospectus supplement will disclose:
| · | the terms of the offer; |
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| · | the names of any underwriters, including any managing underwriters, as well as any dealers or agents; |
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| · | the purchase price of the securities from us; |
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| · | the net proceeds to us from the sale of the securities; |
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| · | any delayed delivery arrangements; |
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| · | any over-allotment or other options under which underwriters, if any, may purchase additional securities from us; |
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| · | any underwriting discounts, commissions, or other items constituting underwriters’ compensation, and any commissions paid to agents; |
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| · | the specific terms of any lock-up provisions in respect of any given offering; |
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| · | any public offering price; and |
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| · | other facts material to the transaction. |
We will bear all or substantially all of the costs, expenses, and fees in connection with the registration of our securities under this prospectus. The underwriters, dealers, and agents may engage in transactions with us, or discourageperform services for us, in the ordinary course of business.
LEGAL MATTERS
Certain legal matters in connection with the issuance and sale of our securities offered hereby will be passed on for us by Baker & Hostetler LLP, Orlando, Florida. Any underwriters will be advised about other issues relating to any offering by their own legal counsel.
EXPERTS
The consolidated financial statements of LightPath Technologies, Inc. at June 30, 2021 and 2020, and for the years then ended, incorporated by reference in this prospectus and registration statement, have been audited by MSL, P.A., an independent registered public accounting firm, as set forth in their report thereon appearing in LightPath Technologies, Inc.’s Annual Report on Form 10-K for the fiscal year ended June 30, 2021, and are included in reliance upon such report given on the authority of that firm as experts in accounting and auditing.
The information in this prospectus supplement is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus supplement is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. |
PROSPECTUS SUPPLEMENT | SUBJECT TO COMPLETION, DATED FEBRUARY 15, 2022 |
(TO PROSPECTUS DATED FEBRUARY 15, 2022) | |
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$25,200,000 |
Class A Common Stock |
This prospectus supplement relates to the offer and sale, from time to time, of up to a potential acquirermaximum of $25,200,000 in aggregate sales price of shares of our Class A Common Stock, par value $0.01 per share (our “Class A common stock”), to or through A.G.P./Alliance Global Partners, or A.G.P., acting as sales agent or principal, in accordance with the terms of a sales agreement we have entered into with A.G.P.
Sales of our Class A common stock, if any, under this prospectus supplement will be made by any methods deemed to be “at the market offerings” as defined in Rule 415(a)(4) under the Securities Act of 1933, as amended (the “Securities Act”). Subject to the terms of the sales agreement, A.G.P. is not required to sell any specific amount of securities, but will act as our sales agent or principal using commercially reasonable efforts consistent with its normal trading and sales practices, on mutually agreed terms between A.G.P. and us. There is no arrangement for funds to be received in any escrow, trust, or similar arrangement.
A.G.P. will be entitled to compensation under the terms of the sales agreement at a fixed commission rate of 3.0% of the gross proceeds from makingthe sale of our Class A common stock on our behalf as sales agent or principal pursuant to the sales agreement. In connection with the sale of the Class A common stock on our behalf, A.G.P. will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of A.G.P. will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to A.G.P. against certain civil liabilities, including liabilities under the Securities Act. See “Plan of Distribution.”
Our Class A common stock is listed on the Nasdaq Capital Market (“Nasdaq”) under the symbol “LPTH.” The last reported sale price of our Class A common stock on Nasdaq on February 9, 2022 was $2.83 per share.
Investing in our Class A common stock involves a tenderhigh degree of risk. See “Risk Factors” beginning on page S-6 of this prospectus and in our reports filed with the Securities and Exchange Commission (the “SEC”), which are incorporated by reference herein for a discussion of information that should be considered in connection with an investment in our Class A common stock.
Neither the SEC nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
A.G.P.
The date of this prospectus supplement is ________, 2022.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS SUPPLEMENT
You should assume that the information contained in this prospectus supplement is accurate only as of the date on the front cover page of the applicable document and that any information we have incorporated by reference into this prospectus supplement is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus supplement, or any sale of shares of our Class A common stock.
In addition, we incorporate important information into this prospectus supplement by reference. You may obtain the information incorporated by reference into this prospectus supplement without charge by following the instructions under “Where You Can Find More Information” in this prospectus supplement. We urge you to carefully read this prospectus supplement and the information incorporated by reference and in any free writing prospectus or prospectus supplement that we have authorized for use in connection with this offering before buying any of the securities being offered under this prospectus supplement.
To the extent that any statement that we make in this prospectus supplement or any documents incorporated by reference herein or therein, the statements made in this prospectus supplement will be deemed to modify or supersede those made in such documents incorporated by reference herein or therein.
You should rely only on the information contained, or incorporated herein by reference, in this prospectus supplement and contained, or incorporated herein by reference, in the accompanying prospectus supplement. Neither we nor the sales agent have authorized anyone to provide you with different information. No dealer, salesperson, or other person is authorized to give any information or to represent anything not contained in this prospectus supplement. You should not rely on any unauthorized information or representation.
This prospectus supplement is an offer to sell only the securities offered hereby, and only under circumstances and in jurisdictions where it is lawful to do so. The distribution of this prospectus supplement and the offering of the shares in certain jurisdictions or to certain persons within such jurisdictions may be restricted by law. Persons outside the United States who come into possession of this prospectus supplement must inform themselves about and observe any restrictions relating to the offering of the shares and the distribution of this prospectus supplement outside the United States. This prospectus supplement does not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus supplement by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
This prospectus supplement and the accompanying base prospectus are part of a registration statement on Form S-3 (File No. 333- ) that we filed with the SEC, using a “shelf” registration process. Under this “shelf” process, we may sell from time to time in one or more offerings up to $75.8million in aggregate offering price of our securities. The shares of our Class A common stock that may be offered, issued, and sold under this prospectus supplement are included in the $75.8 million of our securities that may be offered, issued, and sold by us pursuant to our shelf registration statement.
Unless expressly stated otherwise, attemptingall references in this prospectus supplement to obtain control“we,” “us,” “our” or similar references mean LightPath Technologies, Inc. and its subsidiaries on a consolidated basis.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements and information in this prospectus supplement and the documents incorporated by reference herein and therein may constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Private Securities Litigation Reform Act of 1995. These forward-looking statements include, without limitation, statements concerning plans, objectives, goals, projections, strategies, future events, or performance, statements related to the expected effects on our business from the coronavirus (“COVID-19”) pandemic, and underlying assumptions and other statements, which are not statements of historical facts. In some cases, you can identify forward-looking statements by terminology such as “may,” “will,” “should,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “potential,” or “continue,” or other comparable terminology.
These forward-looking statements are based on our current expectations and beliefs concerning future developments and their potential effect on us.
Outstanding Warrants, While management believes that these forward-looking statements are reasonable as and when made, there can be no assurance that future developments affecting us will be those that we anticipate. Forward-looking statements involve known and unknown risks, uncertainties, and other factors that may cause our actual results, performance, or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. Given these uncertainties, you should not place undue reliance on these forward-looking statements. Forward-looking statements represent management’s beliefs and assumptions only as of the date of this prospectus supplement. You should read this prospectus supplement completely and with the understanding that our actual future results may be materially different from what we expect. Except as required by law, we assume no obligation to update these forward-looking statements, or to update the reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new information becomes available in the future.All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements in this section and elsewhere in this prospectus supplement and in the documents incorporated by reference. Other than as required under the securities laws, we do not assume a duty to update these forward-looking statements, whether as a result of new information, subsequent events or circumstances, changes in expectations or otherwise.
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| PROSPECTUS SUPPLEMENT SUMMARY This summary highlights certain information about us, this offering and information appearing elsewhere in this prospectus supplement, the accompanying prospectus and in the documents we incorporate by reference. This summary is not complete and does not contain all of the information that you should consider before investing in our securities. To fully understand this offering and its consequences to you, you should read this entire prospectus supplement carefully, including the information referred to under the heading “Risk Factors” in this prospectus supplement beginning on page S-6, and the financial statements and other information incorporated by reference in this prospectus supplement, when making an investment decision. In this prospectus supplement, the terms “we,” “us,” and the “Company” refer LightPath Technologies, Inc. and its subsidiaries. Overview 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. Today, we are a global company with major facilities in the United States, the People’s Republic of China and the Republic of Latvia. We have three direct wholly-owned subsidiaries. LightPath Optical Instrumentation (Shanghai) Co., Ltd (“LPOI”) is located in Jiading, People’s Republic of China. Its facility is primarily used for sales and support functions. LightPath Optical Instrumentation (Zhenjiang) Co., Ltd. (“LPOIZ”) is located in the New City district, of the Jiangsu province, of the People’s Republic of China. LPOIZ’s manufacturing facility (the “Zhenjiang 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. ISP Optics Corporation, a New York corporation (“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. 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”) is a manufacturer of high precision optics and offers a full range of infrared products, including catalog and custom infrared optics. ISP Latvia’s manufacturing facility is located in Riga, Latvia. Our Product Groups Our business is organized into three product groups: precision molded optics (“PMOs”), infrared products, and specialty products. These product groups are supported by our major product capabilities: molded optics, thermal imaging optics, and custom designed optics. Our PMO product group consists of visible precision molded optics with varying applications. Our infrared product group is comprised of infrared optics, both molded and diamond-turned, and thermal imaging assemblies. This product group also includes both conventional and CNC ground and polished lenses. Between these two product groups, we have the capability to manufacture lenses from very small (with diameters of sub-millimeter) to over 300 millimeters, and with focal lengths from approximately 0.4 millimeters to over 2000 millimeters. In addition, both product groups offer both catalog and custom designed optics. Our specialty product group is comprised of value-added products, such as optical subsystems, assemblies, and collimators, and non-recurring engineering (“NRE”) products, consisting of those products we develop pursuant to product development agreements that 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. Our Technologies We and our customers support a wide range of industries, including automotive, telecommunications, defense, medical, bio-technology, industrial, consumer goods and more. A commonality among these industries is the use of photonics as an enabling technology in their products. | |
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| We continue to focus on developing new, innovative capabilities and technologies in all of our engineering and manufacturing groups, including systems design and testing, optical fabrication of components, material production, optical coatings, and electro mechanical design and production. Among the manufacturing technologies we own are: | |
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| | · | High precision molded lenses. Historically, precision molding of lenses is the key technology we built upon. Precision molding of optics is a unique technology that is well suited for both high volume production of optical components, as well as production of optics with unique shapes, which otherwise would require a very lengthy and complex process, to individually polish each lens to shape. Precision molded optics, or PMOs, is a technology we continuously invest in, pushing the envelope further on what materials can be molded and the shapes and sizes of the optics we can mold. Although there are several other competitors that can mold optical elements, we have an established leadership position in this area, as the original developer of the technology, and we believe we are the preferred vendor for the most complex, high-end projects of many of our customers. Some recent advancements we have made in precision molded optics include molding of non-symmetric shapes such as freeform optical components, and qualifying new materials for availability as moldable materials. | |
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| | · | Traditional polishing, and diamond turned optics. Through the acquisition of ISP in fiscal 2017, we added to our capabilities a wide range of traditional fabrication processes. These include CNC grinding and polishing of optical elements, traditional grind and polishing of lenses, and diamond turning of infrared materials | |
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| | · | Materials. Materials play an important role in providing design flexibility and allow tradeoffs between optical performance, weight, and performance in varying conditions. Traditionally, infrared applications have only a small number of materials, all of which are crystal based. However, the introduction of synthetic Chalcogenide glass in recent years, which allows for synthesizing of different materials, has created a larger library of materials to design with. We produce four materials: BD6, our flagship Chalcogenide glass; (ii) BD2 which we have been producing for over 15 years; (iii) NaCl and (iv) KBr crystals. We believe that having a larger selection of optical materials will provide us more tools to design better solutions than exists with current materials, and we plan to continue to invest in our materials development. In addition, through a grant from Space Florida foundation and Israel’s ministry of science, we plan to qualify our Chalcogenide glass for space applications and in particular thermal imaging from space, which is a fast-growing application | |
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| | · | Optical coatings. Thin film coatings are designed to reduce losses and protect the optical material, which are a key part of any optical system. Through our recent investments, we have the ability to coat lenses in all of our facilities, providing efficient, high quality antireflective coatings, as well as reflective and protective coatings. Our coating facilities employ both physical vapor deposition techniques as well as chemical vapor deposition techniques. In addition to our library of dozens of standard coatings, our coating engineers often design coatings specific for an application, optimizing the performance of the system for a specific customer use. One of our most known advanced coatings is DLC, or Diamond Like Carbon, which provides materials such as chalcogenide glass significant environmental protection. This coating is currently available only at a small number of vendors, and is an example of a capability that provides us the ability to design better optical solutions. | |
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| | · | Assembly and testing. In recent years we have invested significantly in capabilities for sub-system level assemblies and testing in two of our facilities. Even more recently, we have added capabilities of active alignment, and extended testing including environmental testing, to support our growing business of optical assemblies and engineered solutions. We expect to continue to invest in this area as activity grows, and in particular in volume manufacturing and testing of assemblies. | |
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| Corporate Information Our executive offices are located at 2603 Challenger Tech Court, Suite 100, Orlando, Florida 32826 and our telephone number is (407) 382.4003. Our website address is www.lightpath.com.The information on our website is not part of this prospectus supplement. | |
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| THE OFFERING | |
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| Class A common Stock Offered: | Shares of our Class A common stock having an aggregate offering price of up to $25.2 million. | |
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| Plan of Distribution: | “At the market offering” that may be made from time to time through or to, A.G.P., as sales agent or principal. See “Plan of Distribution” on page S-10. | |
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| Use of Proceeds: | We intend to use the net proceeds, if any, from this offering, for working capital, investments, acquisitions, and general corporate purposes. See “Use of Proceeds” on page S-8. | |
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| Risk Factors: | Investing in our Class A common stock involves significant risks. See “Risk Factors” beginning on page S-6 of this prospectus supplement and other information included or incorporated by reference into this prospectus supplement for a discussion of factors you should carefully consider before investing in our Class A common stock. | |
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| Trading Symbol: | LPTH | |
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RISKFACTORS
Investing in our Class A common stock involves substantial risk. You should carefully consider the risk factors disclosed below as well as those contained in our Annual Report on Form 10-K for the fiscal year ended June 30, 2021, which is incorporated by reference herein, as updated by our subsequent filings under the Exchange Act, and the other information contained in the accompanying base prospectus and this prospectus supplement before acquiring any of our Class A common stock. These risks could have a material adverse effect on our business, results of operation or financial condition and cause the value of our Class A common stock to decline. You could lose all or part of your investment.
This prospectus supplement and the accompanying base prospectus also contains or incorporates by reference forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in the forward-looking statements as a result of certain factors, including the risks faced by us described or incorporated by reference in this prospectus and any applicable prospectus supplement. See “Cautionary Note Regarding Forward-Looking Statements.”
Risks Related to our Class A Common Stock Options And Restricted Stock Agreements May Inhibit and the Offering
We have broad discretion in the use of the net proceeds from this offering and may not use them effectively.
Our Ability To Accomplish Future Financings And Adversely Affectmanagement will have broad discretion in the application of the net proceeds from this offering, including for any of the purposes described in the section entitled “Use of Proceeds,” and you will not have the opportunity as part of your investment decision to assess whether the net proceeds are being used appropriately. Because of the number and variability of factors that will determine our use of the net proceeds from this offering, their ultimate use may vary substantially from their currently intended use. Our Stock Price.
management might not apply our net proceeds in ways that ultimately increase the value of your investment. We intend to use the net proceeds of this offering for working capital, investments, acquisitions, and general corporate purposes. See the section entitled “Use of Proceeds” on page S-8 of this prospectus supplement. Our management will have broad discretion over the use of proceeds from this offering and may not use the proceeds effectively.Historically, the price of our Class A common stock has been volatile and could continue to fluctuate substantially.
Historically, the market price of our Class A common stock has been volatile and could fluctuate based on a variety of factors, including:
| · | fluctuations in commodity prices; |
| · | variations in results of operations; |
| · | announcements by us and our competitors; |
| · | legislative or regulatory changes; |
| · | general trends in the industry; |
| · | general market conditions; |
| · | litigation; and |
| · | other events applicable to our industries. |
Sales of our Class A common stock in this offering, or the perception that such sales may occur, could cause the market price of our Class A common stock to fall.
Pursuant to this prospectus supplement and the accompanying base prospectus, we may issue and sell shares of our Class A common stock for aggregate gross proceeds of up to $25.2 million from time to time in connection with this offering. The existenceissuance and sale from time to time of those new shares of Class A common stock, or our ability to issue these new shares of Class A common stock in this offering, could have the effect of depressing the market price of our Class A common stock.
A large number of shares may be sold in the market following this offering, which may depress the market price of our Class A common stock.
All of our shares of Class A common stock sold in the offering will be freely tradable without restriction or further registration under the Securities Act. As a result, a substantial number of shares of Class A common stock may be sold in the public market following this offering, which may cause the market price of our Class A common stock to decline. If there are more shares of Class A common stock offered for sale than buyers are willing to purchase, then the market price of our Class A common stock may decline to a market price at which buyers are willing to purchase the offered shares of Class A common stock and sellers remain willing to sell the shares of Class A common stock.
Investors will experience immediate and substantial dilution in the book value per share of the Class A common stock you purchase.
The shares sold in this offering, if any, will be sold from time to time at various prices. However, we expect that the offering price of our Class A common stock will be substantially higher than the net tangible book value per share of our outstanding warrants,Class A common stock at the time of the sale, investors will pay a price per share that substantially exceeds the pro forma as adjusted net tangible book value per share after this offering and will suffer substantial dilution in the net tangible book value of the Class A common stock purchased in this offering. See “Dilution.”
The price per share of our Class A common stock being offered may be higher than the net tangible book value per share of our outstanding Class A common stock prior to this offering. Assuming that an aggregate of 9,118,774 shares of our Class A common stock are sold at a price of $2.83 per share, the last reported sale price of our Class A common stock on the Nasdaq Capital Market on February 9, 2022, for aggregate gross proceeds of approximately $25.2 million, and after deducting commissions and estimated offering expenses payable by us, new investors in this offering will incur immediate dilution of $1.83 per share. For a more detailed discussion of the foregoing, see the section entitled “Dilution” below. To the extent outstanding stock options are exercised, there will be further dilution to new investors. In addition, to the extent we need to raise additional capital in the future and restrictedwe issue additional shares of Class A common stock or securities convertible or exchangeable for our Class A common stock, our then existing stockholders may experience dilution and the potential fornew securities may have rights senior to those of the Class A common stock offered in this offering.
Future sales of significantour securities could adversely affect the market price of our Class A common stock.
Future sales of substantial amounts of previously unregistered shares of our Class A common stock, in the public market following this offering, whether by us or our existing stockholders, or the perception that such sales could occur, may adversely affect the terms on which we can obtain additional financing or the prevailing market price of our Class A common stock, which could decline significantly. Sales by our existing stockholders might also make it more difficult for us to raise equity capital by selling new shares of our Class A common stock at a time and price that we deem appropriate. We may also raise capital by issuing preferred stock that has dividend, voting, liquidation, or other rights and preferences that are senior to our Class A common stock, or other securities. The securities may also be convertible into shares of our Class A common stock, which may dilute the value of our Class A common stock. AsOur Board has the authority to issue preferred stock without seeking stockholder approval. See “Description of June 19, 2012, there wereCapital Stock” in the accompanying base prospectus.
The actual number of shares we will issue under the sales agreement, at any one time or in total, is uncertain.
Subject to certain limitations in the sales agreement and compliance with applicable law, we have the discretion to deliver a placement notice to A.G.P. at any time and from time to time during the term of the sales agreement. The actual number of shares Class A common stock that are sold to or through A.G.P. on our behalf pursuant to any placement notice we deliver to A.G.P. will depend on the market price of the Class A common stock during the periods in which sales are made and any restrictions or limitations applicable to such sales, such as a minimum price below which sales may not be made, that we may include in such placement notice or that otherwise apply under the sales agreement. Because the price per share of each share of Class A common stock sold will fluctuate based on the market price of our Class A common stock during the sales period, it is not possible at this stage to predict the number of shares that will ultimately be issued and outstanding:
sold.The Class A common stock offered hereby will be sold in “at the market offerings”, and investors who buy shares at different times will likely pay different prices.
Investors who purchase shares in this offering at different times will likely pay different prices, and so may experience different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold, and there is no minimum or maximum sales price. Investors may experience a decline in the value of their shares as a result of share sales made at prices lower than the prices they paid.
We do not intend to pay dividends in the foreseeable future, and any return on investment may be limited to potential future appreciation on the value of our Class A common stock.
We currently intend to retain any future earnings to support the growth and development of our business and do not anticipate paying declaring or paying cash dividends in the foreseeable future. Our payment of any future dividends will be at the discretion of our Board of Directors (our “Board”) after taking into account various factors, including without limitation, our future earnings, capital requirements, financial conditions, future prospects, contractual restrictions and covenants and other factors that our Board may deem relevant. To the extent we do not pay dividends, our Class A common stock may be less valuable because a return on investment will only occur if and to the extent our stock price appreciates, which may never occur. In addition, investors must rely on sales of their Class A common stock after price appreciation as the only way to realize their investment, and if the price of our Class A common stock does not appreciate, then there will be no return on investment. Investors seeking cash dividends should not purchase our Class A common stock.
● | 11,711,952 shares of our common stock; |
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● | warrants issued in private placement and other transactions pursuant to which 100,000 shares of our common stock are issuable, at an exercise price of $3.20 per share;S-7 |
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| Table of Contents |
USE OF PROCEEDS
The amount of proceeds from this offering will depend upon the number of shares of our Class A common stock sold to or through A.G.P. under the sales agreement and the prices at which they are sold. There can be no assurance that we will be able to sell any shares of Class A common stock under the sales agreement with A.G.P. or to what extent we will be able to utilize the sales agreement.
We intend to use the net proceeds from this offering, if any, for working capital, investments, acquisitions and general corporate purposes. The precise amount and timing of the application of these net proceeds will depend on our funding requirements and the availability and costs of other funds. As of the date of this prospectus supplement, we have not determined the amount of net proceeds to be used specifically for any particular purpose or the timing of any expenditures. Accordingly, management will retain broad discretion and flexibility in applying the net proceeds from the sale of the shares of Class A common stock if any.
DIVIDEND POLICY
We have never declared or paid cash dividends on our capital stock. We intend to retain all available funds and any future earnings, if any, to fund the development and expansion of our business and we do not anticipate paying any cash dividends in the foreseeable future. Any future determination related to dividend policy will be made at the discretion of our Board and will depend on our results of operations, capital requirements, financial condition, prospectus, contractual arrangements, any limitations on payment of dividends present in any future debt agreements, and other factors that our Board may deem relevant.
DILUTION
Our net tangible book value as of December 31, 2021 was approximately $11.6 million, or $0.43 per share of our Class A common stock. Net tangible book value per share of Class A common stock is determined by dividing our tangible net worth, which is tangible assets less liabilities, by the total number of shares of our Class A common stock outstanding. Purchasers of our Class A common stock in this offering will be diluted to the extent of the difference between the public offering price per share and the as adjusted net tangible book value per share after giving effect to this offering.
After giving effect to the sale of our Class A common stock in the aggregate amount of $25.2 million at an assumed offering price of $2.83 per share, the last reported sale price of our Class A common stock on the Nasdaq Capital Market on February 9, 2022, and after deducting commissions and estimated offering expenses payable by us, our as adjusted net tangible book value as of December 31, 2021 would have been approximately $35.8 million, or $1.00 per share. This represents an immediate increase in net tangible book value of $0.57 per share to our existing stockholders and an immediate dilution in net tangible book value of $1.83 per share to new investors in this offering.
The following table illustrates this calculation on a per share basis. The as adjusted information is illustrative only and will adjust based on the actual price to the public, the actual number of shares sold and other terms of the offering determined at the time shares of our Class A common stock are sold pursuant to this prospectus supplement. The shares sold in this offering, if any, will be sold from time to time at various prices.
Assumed public offering price per share | | $ | 2.83 | |
Net tangible book value per share as of December 31, 2021 | | $ | 0.43 | |
Increase in net tangible book value per share attributable to the offering | | $ | 0.57 | |
As adjusted net tangible book value per share after giving effect to the offering | | $ | 1.00 | |
Dilution per share to new investors participating in the offering | | $ | 1.83 | |
The number of shares of our Class A common stock to be outstanding immediately after this offering is based on 27,021,875 shares of our Class A common stock outstanding as of December 31, 2021 and excludes:
| warrants issued to the selling stockholders pursuant to which 310,000· | 417,401 shares of ourClass A common stock are issuable upon exercise of stock options outstanding as of December 31, 2021, at a weighted average exercise price of approximately $4.84$2.02 per share;share; |
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| · | 2,047,471 shares of our Class A common stock underlying outstanding restricted stock units; |
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| · | 532,385 shares of common stock reserved for future issuance under our 2018 Stock and Incentive Compensation Plan, as of December 31, 2021; and |
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| · | 289,834 shares of our Class A common stock for issuance under our 2014 Employee Stock Purchase Plan. |
The foregoing table does not give effect to the exercise of any outstanding options. We may raise additional capital in the future through the sale of equity or convertible debt securities. To the extent options are exercised, or we issue shares of Class A common stock in connection with raising additional capital, there may be further dilution to new investors.
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● | warrants issued to the selling stockholders pursuant to which 1,270,714 shares of our common stock are issuable at a weighted average exercise price of approximately $1.52 per share;S-9 |
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● | warrants issued to the selling stockholders pursuant to which 582,229 sharesTable of our common stock are issuable at an exercise price of $1.73 per share; |
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● | warrants issued to the selling stockholders pursuant to which 101,549 shares of our common stock are issuable at a weighted average exercise price of approximately $2.48 per share;Contents |
● | warrants issued to the selling stockholders pursuant to which 1,652,277 shares of our common stock are issuable at a weighted average price of approximately $1.32 per share; |
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● | convertible debentures which can convert into 706,169 shares of our common stock; |
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● | outstanding options under our Amended and Restated Omnibus Incentive Plan to purchase an aggregate of 583,109 shares of our common stock, with an average exercise price of approximately $2.85 per share; and |
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● | restricted stock awards for 434,700 shares of our common stock that have been granted but that remain unissued, of which 359,700 have vested. |
In addition, 92,423PLAN OF DISTRIBUTION
We have entered into the sales agreement with A.G.P. under which we may issue and sell shares of our Class A common stock were reservedfrom time to time to or through A.G.P., acting as our sales agent or principal. The sales of June 19, 2012, for issuance pursuantour Class A common stock, if any, under this prospectus supplement will be made at market prices by any method deemed to future grantsbe an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act.
Each time that we wish to issue and sell shares of our Class A common stock under the sales agreement, we will provide A.G.P. with a placement notice describing the amount of shares to be sold, the time period during which sales are requested to be made, any limitation on the amount of shares of Class A common stock that may be sold in any single day, any minimum price below which sales may not be made or any minimum price requested for sales in a given time period and any other instructions relevant to such requested sales. Upon receipt of a placement notice, A.G.P., acting as our sales agent or principal, will use commercially reasonable efforts, consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of the Nasdaq Capital Market, to sell shares of our Class A common stock under the terms and subject to the conditions of the placement notice and the sales agreement. We or A.G.P. may suspend the offering of Class A common stock pursuant to a placement notice upon notice and subject to other conditions.
Settlement for sales of Class A common stock, unless the parties agree otherwise, will occur on the second trading day following the date on which any sales are made in return for payment of the net proceeds to us. There are no arrangements to place any of the proceeds of this offering in an escrow, trust, or similar account. Sales of our AmendedClass A common stock as contemplated in this prospectus supplement will be settled through the facilities of The Depository Trust Company or by such other means as we and Restated Omnibus Incentive Plan.
For the life of such options and warrants, the holdersA.G.P. may agree upon.We will have the opportunity to profit from a risepay A.G.P. commissions for its services in acting as our sales agent in the pricesale of our Class A common stock pursuant to the sales agreement. A.G.P. will be entitled to compensation at a fixed commission rate of 3.0% of the underlying common stock, with a resulting dilution ingross proceeds from the interest of other holders of common stock upon exercise or conversion. Further, the option and warrant holders can be expected to exercise their options and warrants at a time when we would, in all likelihood, be able to obtain additional capital by an offeringsale of our unissuedClass A common stock on terms more favorable than those originally providedour behalf pursuant to the sales agreement. We have also agreed to reimburse A.G.P. for certain specified expenses incurred by such options or warrants. OfA.G.P., including the fees and disbursements of its legal counsel incurred by A.G.P. in connection with entering into the sales agreement in an amount not to exceed $40,000, plus up to $10,000 per future year for other expenses after the date of this prospectus supplement in connection with its further periodic due diligence investigation of our company in connection with this offering. We estimate that the total expenses of the offering payable by us, excluding discounts, commissions, and reimbursements payable to A.G.P. under the sales agreement, will not exceed approximately $40,000. The remaining sales proceeds, after deducting any expenses payable by us and any transaction fees imposed by any governmental, regulatory, or self-regulatory organization in connection with the sales, will equal our net proceeds for the sale of such Class A common stock.
Because there are no minimum sale requirements as a condition to this offering, the actual total public offering price, commissions, and net proceeds to us, if any, are not determinable at this time. The actual dollar amount and number of shares of Class A common stock currently issuedwe sell through this prospectus supplement will be dependent, among other things, on market conditions and outstanding, there are likely a smallour capital raising requirements.
We will report at least quarterly the number of unregistered shares outstanding, other than those heldof Class A common stock sold through A.G.P. under the sales agreement, the net proceeds to us and the compensation paid by us to A.G.P. in connection with the selling stockholders,sales of Common Stock under the sales agreement.
In connection with the sale of the Class A common stock on our behalf, A.G.P. will be deemed to be an “underwriter” within the meaning of the Securities Act, and somethe compensation of those shares mayA.G.P. will be freely tradeddeemed to be underwriting commissions or may be traded underdiscounts. We have agreed to provide indemnification and contribution to A.G.P. against certain volume and other restrictions set forth in Rule 144 promulgatedcivil liabilities, including liabilities under the Securities Act.
A.G.P. will not engage in any market making activities involving our Class A common stock while the offering is ongoing under this prospectus supplement if such activity would be prohibited under Regulation M or other anti-manipulation rules under the Securities Act. As our sales agent, A.G.P. will not engage in any transactions that stabilize our Class A common stock.
The eligibilityoffering pursuant to the sales agreement will terminate upon the earlier of (i) the sale of all shares of Class A common stock subject to the agreement and (ii) termination of the foregoing shares to be sold tosales agreement as permitted therein. We may terminate the public, whether pursuant to an effective registration statement, Rule 144 or an exemption from the registration requirements may have a material adverse effect on the market value and trading price of our common stock, the scope or extent of which effect we cannot predict.
We Have Agreed To Certain Limitations Upon Potential Liability Of Our Directors, Which Could Prevent Recovery Of Monetary Damages. Our Certificate of Incorporation provides that directors will not be personally liable for monetary damages to the Company or our stockholders for a breach of fiduciary duty as a director, subject to limited exceptions. Although such limitation of liability does not affect the availability of equitable remedies such as injunctive relief or rescission, the presence of these provisionssales agreement in our Certificate of Incorporation could preventsole discretion at any time by giving 10 days’ prior notice to A.G.P. A.G.P. may terminate the recovery of monetary damages by the Company or its stockholders.
We May Have Difficulty Obtaining Director And Officer Liability Insurance In Acceptable Amounts For Acceptable Rates. We carry insurance protecting our officers and directors and us against claims relating to the conduct of our business (“D&O insurance”). D&O insurance covers the costs incurred by companies and their management to defend against and resolve claims relating to management conduct and results of operations, such as securities class action claims. These claims are extremely expensive to defend against and resolve. Therefore we purchase and maintain D&O insurance to cover some of these costs. We pay significant premiums to acquire and maintain D&O insurance, which is provided by third-party insurers, and we agree to underwrite a portion of such exposuressales agreement under the terms of these insurance coverages. In recent years the premiums we have paid for D&O insurance have increased slightly. We cannot assure you that,circumstances specified in the future, we will be able to obtain what we adjudge to be sufficient director and officer liability insurance coverage at acceptable rates and with
acceptable deductibles and other limitations. The current coverage expires February 11, 2013. We may be unable to pay for or we may choose not to seek as much coverage as we adjudge to be sufficient. Failure or inability to obtain such insurance, or the election to accept less than we adjudge sufficient or none at all, could materially harm our financial condition in the event that we are required to defend against and resolve any future securities class actions or other claims made against us or our management arising from the conduct of our operations. Further, obtaining such insurance in an inadequate amount or obtaining none at all may impair our future ability to retain and recruit qualified officers and directors.
Business Interruptions Could Adversely Affect Our Business. We manufacture our products at manufacturing facilities located in Orlando, Florida and Shanghai, China. Our revenues are dependent upon the continued operation of these facilities. The Orlando facility is subject to a lease that expires in June 2015, and the Shanghai facility is subject to a lease that expires in April 2014. 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 a detailed disaster recovery plan for either facility. We do not have a backup facility, other than our Orlando facility in the case of a failure of our Shanghai facility or our Shanghai facility in the case of a failure of our Orlando facility. We do not have 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, including the aforementioned, 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 Business Depends, In Part, Upon The Efforts Of Third Parties, Which We Can Not Control. Part of our strategy for the research, development and commercialization of certain products entails entering into various arrangements with corporate partners, OEMs, licensees and others in order to generate product sales, license fees, royalties and other funds adequate for product development or to enhance commercial prospects. We may also rely on our collaborative partners to conduct research efforts, product testing and to manufacture and market certain of our products. Although we believe that parties to any such arrangements would have an economic motivation to succeed in performing their contractual responsibilities, the amount and timing of resources to be devoted to these activities may not be within our control. There can also be no assurance that we will be successful in establishing any such collaborative arrangements or that, if established, the parties to such arrangements will assist us in commercializing products. We have a non-exclusive agreement with a catalog company to distribute certain of our products. We have agreements with fifteen foreign distributors to create markets for our other in their respective countries. There can be no assurance, however, that these parties, or any future partners, will perform their obligations as expected or that any revenue will be derived from such arrangements.
The Loss Of, Or Our Inability To Hire, Key Personnel Would Reduce Our Ability To Manage Our Business Effectively. Our future success depends upon the continued services of our executive and non-executive officers and other key engineering, sales, marketing, manufacturing and support personnel. Our inability to retain or attract key employees could have a material adverse effect on our business and results of operations. Our operations depend, to a great extent, upon the efforts of our management. We
also depend upon our ability to attract additional members to our operations teams to support our strategy. The loss of any of these key employees would adversely affect our business. As of June 19, 2012, we had 164 full-time equivalent employees, with 51 located in Florida and 113 located in China. 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. Our ability to continue to attract and retain highly skilled personnel will be a critical factor in determining whether we will be successful. Competition for highly skilled personnel is intense. We may not be successful in attracting, assimilating or retaining qualified personnel to fulfill our current or future needs, which could adversely impact our ability to develop and sell our products.
Risks Related To The Optical Networking Industry
Sales Of Some Of Our Products Depend Upon Use Of Optical Networks To Satisfy Increased Bandwidth Requirements. The future success of this market depends on the continuing increase in the amount of data transmitted over communications networks, or bandwidth, and the growth of optical networks to meet the increased demand for bandwidth. If the internet does not continue to expand as a widespread communications medium and commercial marketplace, the need for significantly increased bandwidth across networks and the market for optical networking products may not continue to develop. Future demand for our products is uncertain and will depend to some degree on the continued growth and upgrading of optical networks. If the growth and upgrading of optical networks does not continue, sales of some of our products may decline, which would adversely affect our revenues.
The Optical Networking Market Is Unpredictable And Characterized By Rapid Technological Changes And Evolving Standards. The optical networking market is characterized by rapid technological change, frequent new product introductions, changes in customer requirements and evolving industry standards. It is difficult to predict this market’s potential size or future growth rate, but it has already experienced declines. Potential end-user customers who have invested substantial resources in their existing copper lines or other systems may be reluctant or slow to adopt a new approach, like optical networks. Our success in generating revenues in this emerging market will depend on, among other things as follows:
● | maintaining and enhancing our relationships with our customers; |
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● | the education of potential end-user customers and network service providers about the benefits of optical networks; |
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● | the ability of our customer base to grow their businesses that depend on optical networks; and |
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● | our ability to accurately predict and develop our products to meet industry standards. |
If we are unable to do any of the foregoing, or if we fail to address changing market conditions, the sales of our products may decline, which would adversely impact our revenues.
Risks Related To Manufacturing Our Products
If We Do Not Accurately Project Demand For Our Products, We Will Have Excess Manufacturing Capacity Or Insufficient Manufacturing Capacity Which Can Adversely Affect Our Financial Results. We currently manufacture our products in our facility located in Orlando, Florida, and in our manufacturing facility located in the Jiading Industrial Zone near Shanghai in the People’s Republic of China. Our facility in Shanghai is ownedits sole discretion at any time by LightPath Optical Instrumentation (Shanghai) Co., Ltd, our wholly-owned subsidiary. Based on uncertainty in global economic conditionsgiving 10 days’ prior notice to us.A.G.P. and particularly in our telecommunication market based products, we believe lower demand for various products will continue through the remainder of fiscal 2012.
Our Failure To Accurately Forecast Material Requirements Could Cause Us To Incur Additional Costs, Have Excess Inventories Or Have Insufficient Materials To Build Our Products. We primarily use forecasts based on actual or anticipated product orders to determine our materials requirements. 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 current market demand for the materials at a 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.
If We Do Not Achieve Acceptable Manufacturing Yields Or Sufficient Product Reliability, Our Ability To Ship Products To Our Customers Could Be Delayed. 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 our results of operations. Changes in our manufacturing processes or those of our suppliers, or the use of defective materials, could significantly reduce our manufacturing yields and product reliability. In addition, we may experience manufacturing delays and reduced manufacturing yields upon introducing new products to our manufacturing lines. We may experience lower than targeted product yields in the future which could adversely affect our operating results.
If Our Customers Do Not Qualify Our Manufacturing Lines For Volume Shipments, Our Operating Results Could Suffer. Generally, customers do not purchase our products, other than limited numbers of evaluation units, prior to qualification of the manufacturing line for volume production. Our existing manufacturing lines, as well as each new manufacturing line, must pass through varying levels of qualification with our customers. Customers may require that we be registered under international quality standards, such as ISO 9001:2008. This customer qualification process determines whether our manufacturing lines meet the customers’ quality, performance and reliability standards. If there are delays in qualification of our products, our customers may drop the product from a long-term supply program, which would result in significant lost revenue opportunity over the term of that program.
We Depend On Single Or Limited Source Suppliers For Some Of The Key Materials Or Process Steps In Our Products, Which Makes 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 further delays from 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, andits affiliates may in the future be required to provide, advance payments in order to secure key materials from financially limited suppliers. Financial orinvestment banking, commercial banking, and other difficulties faced by these suppliers could limit the availability of key components or materials. Additionally, financial difficulties could impair our ability to recover advances made to these suppliers. Any interruption or delayservices for us in the supplyordinary course of any of these materials orbusiness, for which services orthat may in the inability to obtain these materials or services from alternate sources at acceptable pricesfuture receive customary fees.This prospectus supplement 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.
Our Products May Contain Unknown Defects Which Would Adversely Affect Our Business. Some of our products are designed to be deployedthe accompanying base prospectus in large and complex optical networks. Because of the nature of these products, they can only be fully tested for reliability when deployed in networks for long periods of time. Our fiber optic products may contain undetected defects when first introduced or as new versions are released, and our customers may discover defects in our products only after they have been fully deployed and operated under peak stress conditions. In addition, our products often are combined with products from other vendors. As a result, should problems occur, itelectronic format may be difficult to identifymade available on a website maintained by A.G.P., and A.G.P. may distribute this prospectus supplement and the source of the problem. If we are unable to fix defects or other problems, we could experience, among other things the following:
accompanying base prospectus electronically.LEGAL MATTERS
Certain legal matters in connection with the issuance and sale of our securities offered hereby will be passed on for us by Baker & Hostetler LLP, Orlando, Florida. Certain legal matters in connection with this offering will be passed on for the sales agent by Duane Morris LLP, New York, New York.
EXPERTS
The consolidated financial statements of LightPath Technologies, Inc. at June 30, 2021 and 2020, and for the years then ended, incorporated by reference in this prospectus supplement and registration statement have been audited by MSL, P.A., an independent registered public accounting firm, as set forth in their report thereon appearing in LightPath Technologies, Inc.’s Annual Report on Form 10-K, and are included in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
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● | failure to attract new customers or achieve market acceptance;S-11 |
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●Table of Contents |
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” information that we file with the SEC, which means that we can disclose important information to you by referring you to those other documents. The information incorporated by reference is an important part of this prospectus supplement and the accompanying base prospectus. Any statement contained in a document that is incorporated by reference in this prospectus supplement is automatically updated and superseded if information contained in this prospectus supplement, or information that we later file with the SEC, modifies or replaces that information. Any statement made in this prospectus supplement concerning the contents of any contract, agreement, or other document is only a summary of the actual contract, agreement, or other document. If we have filed or incorporated by reference any contract, agreement, or other document as an exhibit to the registration statement, you should read the exhibit for a more complete understanding of the document or matter involved. Each statement regarding a contract, agreement, or other document is qualified in its entirety by reference to the actual document.
We incorporate by reference the following documents we filed, excluding any information contained therein or attached as exhibits thereto, which has been furnished to, but not filed with, the SEC:
| diversion of development and engineering resources; and(a) | our Annual Report on Form 10-K for the fiscal year ended June 30, 2021, filed with the SEC on September 13, 2021; |
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● | legal actions by (b) | our customersQuarterly Report on Form 10-Q for the quarter ended September 30, 2021, filed with the SEC on November 10, 2021, and our Quarterly Report on Form 10-Q for the quarter ended December 31, 2021, filed with the SEC on February 10, 2022; |
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| (c) | our Current Reports on Form 8-K (other than information furnished rather than filed pursuant to Item 2.02 or third parties.Item 7.01 of any such Current Report on Form 8-K and any corresponding information furnished under Item 9.01 or included as an exhibit), filed with the SEC on September 27, 2021, November 15, 2021, and December 23, 2021; |
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| (d) | Our Definitive Proxy Statement on Schedule 14A filed on September 27, 2021; and |
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| (e) | the description of our Class A common stock contained in Exhibit 4.1 to our Annual Report on Form 10-K for the fiscal year ended June 30, 2021, filed on September 13, 2021, including any amendment or report filed for the purpose of updating the description. |
The occurrence of any oneAny documents we file pursuant to Sections 13(a), 13(c), 14, or more15(d) of the foregoing factors could cause our net revenuesExchange Act (excluding any information furnished pursuant to declineItem 2.02 or otherwise haveItem 7.01 on any current report on Form 8-K and any corresponding information furnished under Item 9.01 or included as an adverse effect on our business.
We Face Product Liability Risks Which Could Adversely Affect Our Business. The saleexhibit) after the date of our optical products involves the inherent riskregistration statement of product liability claimswhich this prospectus supplement and the accompanying base prospectus form a part and until the termination of the offering under this prospectus supplement shall be deemed to be incorporated in this prospectus supplement by others. We do not currently maintain product liability insurance coverage. Product liability insurancereference and to be a part hereof from the date of filing of such documents. Any statement contained herein, or in a document incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this prospectus supplement to the extent that a statement contained herein or in any subsequently filed document which also is expensive, subjector is deemed to various coverage exclusions and maybe incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be obtainable on terms acceptabledeemed, except as so modified or superseded, to us if we decideconstitute a part of this prospectus supplement.Any person to procure such insurance in the future. Moreover, the amount and scopewhom a copy of any coveragethis prospectus supplement is delivered may be inadequate to protect us in the event thatobtain without charge, upon written or oral request, a product liability claim is successfully asserted. Should any such claim be asserted and successfully litigated by an adverse party, there could be a material adverse effect to our financial position and resultscopy 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 patents and other 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 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:
● | 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. |
Necessary Licenses Of Third-Party Technology May Not Be Available To Us Or May Be Very Expensive. From time to time we may be required to license technology from third parties to develop new products or product enhancements. We can provide no assurance that third-party licenses will be available to us on commercially reasonable terms, or at all. The inability to obtain any third-party license required to develop new products and product enhancements could require us to obtain substitute technology of lower quality or performance standards or at greater cost, either of which could seriously harm our ability to manufacture and sell our products.
This prospectus and the documents incorporated by reference in this prospectus contains forward-looking statements. All statements in this prospectus, othersupplement (other than statements of historical facts, which address activities, events or developments that we expect or anticipate will or may occur in the future, including such things as future capital expenditures, growth, product development, sales, business strategy and other similar mattersexhibits, unless they are forward-looking statements. These forward-looking statements are based largely on our current expectations and assumptions and are subject to a number of risks and uncertainties, many of which are beyond our control. Actual results could differ materially from the forward-looking statements set forth herein as a result of a number of factors, including, but not limited to, our products’ current state of development, the need for additional financing, competition in various aspects of its business and other risks described in this report and in our other reports on file with the Securities and Exchange Commission. In light of these risks and uncertainties, all of the forward-looking statements made herein are qualified by these cautionary statements and there can be no assurance that the actual results or developments anticipated by us will be realized. We undertake no obligation to update or revise any of the forward-looking statements contained in this prospectus.
The selling stockholders will receive all of the proceeds from the sale of their common stock offered by this prospectus. We will not receive any of the proceeds from the sale of the shares of common stock by the selling stockholders. We will, however, receive proceeds in the amount of the exercise price of the warrants to the extent exercised by certain selling stockholders. If the selling stockholders exercise in full their respective warrants covering an aggregate of 1,457,892 shares of common stock, we estimate that our net proceeds will be approximately $1,924,417:
| Selling Stockholder | | Shares Underlying Warrants | | | Exercise Price | | | Net Proceeds | |
| Brett A. Moyer | | | 27,941 | | | $ | 1.32 | | | $ | 36,882.12 | |
| Ami Silberman | | | 36,765 | | | $ | 1.32 | | | $ | 48,529.80 | |
| David and Ronni Diamant | | | 18,383 | | | $ | 1.32 | | | $ | 24,265.56 | |
| The Bart Marcy Trust | | | 36,765 | | | $ | 1.32 | | | $ | 48,529.80 | |
| Dyett-Richardson Family Trust | | | 36,765 | | | $ | 1.32 | | | $ | 48,529.80 | |
| Lester B. Boelter | | | 183,824 | | | $ | 1.32 | | | $ | 242,647.68 | |
| Richard Straeter | | | 11,030 | | | $ | 1.32 | | | $ | 14,559.60 | |
| Raymond Smullyan | | | 73,529 | | | $ | 1.32 | | | $ | 97,058.28 | |
| Mark Grinbaum | | | 73,529 | | | $ | 1.32 | | | $ | 97,058.28 | |
| William S. Lapp | | | 16,177 | | | $ | 1.32 | | | $ | 21,353.64 | |
| Eric Handorf | | | 18,383 | | | $ | 1.32 | | | $ | 24,265.56 | |
| Shadow Capital LLC | | | 36,765 | | | $ | 1.32 | | | $ | 48,529.80 | |
| Richard J. and Emily M. Lemming | | | 7,353 | | | $ | 1.32 | | | $ | 9,705.96 | |
| Octagon Capital Partners | | | 225,000 | | | $ | 1.32 | | | $ | 297,000.00 | |
| Schottenstein Capital Partners, LP | | | 75,000 | | | $ | 1.32 | | | $ | 99,000.00 | |
| Next View Capital LP | | | 183,825 | | | $ | 1.32 | | | $ | 242,649.00 | |
| Nicholas Carosi III | | | 29,210 | | | $ | 1.32 | | | $ | 38,557.20 | |
| Cranshire Capital Master Fund, Ltd. | | | 341,912 | | | $ | 1.32 | | | $ | 451,323.84 | |
| Pyramid Trading L.P. | | | 25,736 | | | $ | 1.32 | | | $ | 33,971.52 | |
| TOTALS: | | | 1,457,892 | | | | | | | $ | 1,924,417.44 | |
We intend to use any proceeds from warrant exercises for working capital and other general corporate purposes.
The price of the shares of 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 which 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 common stock offered for sale relative to the total number of shares of 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.
The shares of common stock being offered by the selling stockholders are those issued to the selling stockholders and those issuable to the selling stockholders upon exercise of the warrants. For additional information regarding the issuance of the common stock and the warrants, see “Overview of Offering” above. We are registering the shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time.
The table below lists the selling stockholders and other information regarding the beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder) of the shares of common stock held by each of the selling stockholders. The second column lists the number of shares of common stock beneficially owned by the selling stockholders, based on their respective ownership of shares of common stock and warrants, as of June 19, 2012, assuming exercise of the warrants held by each such selling stockholder on that date but taking account of any limitations on exercise set forth therein.
The third column lists the shares of common stock being offered by this prospectus by the selling stockholders and does not take into account any limitations on exercise of the warrants set forth therein.
In accordance with the terms of a registration rights agreement with the holders of the common stock and the warrants, this prospectus generally covers the resale of the sum of (i) the shares of common stock issued to the selling stockholders and (ii) the maximum number of shares of common stock issuable upon exercise of the warrants determined as if the outstanding warrants were exercised in full (without regard to any limitations on exercise contained therein) as of the trading day immediately preceding the date this registration statement was initially filed with the SEC. The fourth column assumes the sale of all of the shares offered by the selling stockholders pursuant to this prospectus. The fifth column lists the percentage of shares owned after the offering, based on 11,711,952 shares of our common stock outstanding on June 19, 2012.
Under the terms of the warrants, a selling stockholder may not exercise the warrants to the extent (but only to the extent) such selling stockholder or any of its affiliates would beneficially own a number of shares of our common stock which would exceed 4.9%. The number of shares in the second column reflects these limitations. The selling stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
Except for the ownership of the common stock and the warrants issued pursuant to the Securities Purchase Agreement and as noted in the selling stockholder table below, the selling stockholders have not had any material relationship with us within the past three years.
Name of Selling Stockholder | | Number of Shares of Common Stock Owned Prior to Offering | | | Maximum Number of Shares of Common Stock to be Sold Pursuant to this Prospectus | | | Number of Shares of Common Stock Owned After Offering | | | Percentage of Common Stock Beneficially Owned Assuming Sale of all Sales Offered Hereunder |
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| Cranshire Capital Master Fund, Ltd. | | | 588,291 | (1) | | | 797,794 | | | | 133,951 | | | 1.14 | % |
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| Pyramid Trading L.P. | | | 588,291 | (2) | | | 60,050 | | | | 133,951 | | | 1.14 | % |
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Brett A. Moyer (3) | | | 113,931 | (4) | | | 65,196 | | | | 76,676 | | | * | |
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Ami Silberman (5) | | | 244,020 | (6) | | | 85,785 | | | | 195,000 | | | 1.66 | % |
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| David and Ronni Diamant | | | 34,830 | (7) | | | 42,893 | | | | 10,320 | | | * | |
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| The Bart Marcy Trust | | | 244,713 | (8) | | | 85,785 | | | | 195,693 | | | 1.67 | % |
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Dyett-Richardson Family Trust (9) | | | 210,459 | (10) | | | 85,785 | | | | 161,439 | | | 1.38 | % |
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| Lester B. Boelter | | | 245,098 | (11) | | | 428,922 | | | | 0 | | | * | |
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| Richard Straeter | | | 37,121 | (12) | | | 25,736 | | | | 22,415 | | | * | |
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| Raymond Smullyan | | | 318,039 | (13) | | | 171,568 | | | | 220,000 | | | 1.88 | % |
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Mark Grinbaum (14) | | | 393,169 | (15) | | | 171,568 | | | | 295,130 | | | 2.52 | % |
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William S. Lapp (16) | | | 143,951 | (17) | | | 37,746 | | | | 122,382 | | | 1.04 | % |
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Eric Handorf (18) | | | 125,783 | (19) | | | 42,893 | | | | 101,273 | | | * | |
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| Shadow Capital LLC | | | 614,842 | (20) | | | 85,785 | | | | 565,822 | | | 4.83 | % |
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Richard J. and Emily M. Lemming (21) | | | 30,162 | (22) | | | 17,157 | | | | 20,358 | | | * | |
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Octagon Capital Partners (23) | | | 300,000 | (24) | | | 525,000 | | | | 0 | | | * | |
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| Schottenstein Capital Partners, LP | | | 100,000 | (25) | | | 175,000 | | | | 0 | | | * | |
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| Next View Capital LP | | | 245,100 | (26) | | | 428,925 | | | | 0 | | | * | |
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Nicholas Carosi III (27) | | | 100,379 | (28) | | | 68,156 | | | | 61,433 | | | * | |
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| TOTALS | | | 4,678,179 | | | | 3,401,744 | | | | 2,315,843 | | | | |
* Less than 1%
(1) Cranshire Capital Advisors, LLC (“CCA”) is the investment manager of Cranshire Capital Master Fund, Ltd. (“Cranshire Master Fund”) and has voting control and investment discretion over securities held by Cranshire Master Fund. Mitchell P. Kopin (“Mr. Kopin”), the president, the sole member and the sole member of the Board of Managers of CCA, has voting control over CCA. As a result, each of Mr. Kopin and CCA may be deemed to have beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended) of the securities held by Cranshire Master Fund.
CCA is also the investment manager of (i) Cranshire Capital, L.P. (“Cranshire Capital”) and (ii) a managed account for Pyramid Trading, LP (“Pyramid”), and CCA has voting control and investment discretion over securities held by Cranshire Capital and the managed account for Pyramid. Mr. Kopin, the president, the sole Member and the sole member of the Board of Managers of CCA, has voting control over CCA. As a result, each of Mr. Kopin and CCA may be deemed to have beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended) of 588,291 shares of common stock of the issuer, consisting of (i) 476,190 shares of common stock held by Cranshire Master Fund, (ii) 34,314 shares of common stock held by Pyramid, (iii) 64,942 shares of common stock issuable upon exercise of warrants held by Cranshire Capital, and (iv) 12,845 shares of common stock issuable upon conversion of a Convertible Debenture held by Cranshire Capital (the “Cranshire Debenture”).
The foregoing excludes: (I) 341,912 shares of common stock issuable upon exercise of a warrant held by Cranshire Master Fund (the “Master Fund Warrant”) because the Master Fund Warrant is not exercisable until the six (6) month anniversary of the date of issuance (and the Master Fund Warrant also contains a blocker provision under which the holder thereof does not have the right to exercise the Master Fund Warrant to the extent (but only to the extent) that such exercise would result in beneficial ownership by the holder thereof or any of its affiliates, of more than 4.9% of the common stock), (II) 25,736 shares of common stock issuable upon exercise of a warrant held by Pyramid (the “Pyramid Warrant”) because the Pyramid Warrant is not exercisable until the six (6) month anniversary of the date of issuance (and the Pyramid Warrant also contains a blocker provision under which the holder thereof does not have the right to exercise the Pyramid Warrant to the extent (but only to the extent) that such exercise would result in beneficial ownership by the holder thereof or any of its affiliates, of more than 4.9% of the common stock), and (III) 35,856 shares of common stock issuable upon conversion of the Cranshire Debenture because the Cranshire Debenture contains a blocker provision under which the holder thereof does not have the right to exercise the Cranshire Debenture to the extent that such exercise would result in beneficial ownership by the holder thereof (together with the holder’s affiliates, and any other person or entity acting as a group together with the holder or any of the Holder’s affiliates), of more than 4.99% of the Common Stock. Without such blocker provisions (and assuming the Master Fund Warrant and the Pyramid Warrant are currently exercisable), Mr. Kopin and CCA may be deemed to have beneficial ownership of 991,795 shares of common stock.
(2) CCA is the investment manager of a managed account for Pyramid and has voting control and investment discretion over securities held in by Pyramid in such managed account. Mr. Kopin, the president, the sole Member and the sole member of the Board of Managers of CCA, has voting control over CCA. As a result, each of Mr. Kopin and CCA may be deemed to have beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended) of the securities held by Pyramid in such managed account.
CCA is also the investment manager of Cranshire Master Fund, and Cranshire Capital. Mr. Kopin, the president, the sole Member and the sole member of the Board of Managers of CCA, has voting control over CCA. As a result, each of Mr. Kopin and CCA may be deemed to have beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended) of the securities held by Cranshire Master Fund and Cranshire Capital that are described in footnote (1).
Pyramid is an affiliate of a broker-dealer. Pyramid acquired the shares being registered hereunder in the ordinary course of business, and at the time of the acquisition of the shares and warrants described herein, Pyramid did not have any arrangements or understandings with any person to distribute such securities.
(3) Brett A. Moyer (“Moyer”) was an investor in a previous private placement whereby the Company sold an aggregate of 1,298,827 shares of common stock at $1.26 per share and warrants to purchase 649,423 shares of common stock at an exercise price of $1.73 pursuant to that certain Securities Purchase Agreement dated as of August 19, 2009 between the Company and certain investors named therein (the “2009 Offering”).
(4) Excludes 27,941 shares of common stock issuable upon exercise of a warrant held by Moyer because such warrant is not exercisable until the six (6) month anniversary of the date of issuance. Assuming the warrant is currently exercisable, Mr. Moyer may be deemed to have beneficial ownership of 141,872 shares of common stock.
(5) Ami Silberman (“Silberman”) was an investor in the 2009 Offering.
(6) Excludes 36,765 shares of common stock issuable upon exercise of a warrant held by Silberman because such warrant is not exercisable until the six (6) month anniversary of the date of issuance. Assuming the warrant is currently exercisable, Silberman may be deemed to have beneficial ownership of 280,785 shares of common stock.
(7) Excludes 18,383 shares of common stock issuable upon exercise of a warrant held by David and Ronni Diamant (“Diamant”) because such warrant is not exercisable until the six (6) month anniversary of the date of issuance. Assuming the warrant is currently exercisable, Diamant may be deemed to have beneficial ownership of 53,213 shares of common stock.
(8) Barton C. Marcy, trustee of The Bart Marcy Trust, beneficially owns (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended) 33,000 shares of common stock held in his individual retirement account. As a result, each Mr. Marcy and The Bart Marcy Trust may be deemed to have beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended) of 244,713 shares of common stock consisting of (i) 33,000 shares of common stock held by Mr. Marcy in his individual retirement account, (ii) 189,163 shares of common stock held by The Bart Marcy Trust, and (iii) 22,550 shares of common stock issuable upon exercise of warrants held by The Bart Marcy Trust. The foregoing excludes 36,765 shares of common stock issuable upon exercise of a warrant held by The Bart Marcy Trust because such warrant is not exercisable until the six (6) month anniversary of the date of issuance. Assuming the warrant is currently exercisable, The Bart Marcy Trust may be deemed to have beneficial ownership of 281,478 shares of common stock.
(9) Michael V. Dyett (“Dyett”), co-trustee of the Dyett- Richardson Family Trust, was an investor in the 2009 Offering.
(10) Dyett, co-trustee of the Dyett-Richardson Family Trust, beneficially owns (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended) 1,137 shares of common stock that are issuable upon exercise of warrants held by Dyett and 9,200 shares of common stock held in his individual retirement account. Hildegard A. Richardson (“Richardson”), co-trustee of the Dyett-Richardson Family Trust, beneficially owns (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended) 2,290 shares of common stock held by her individual retirement account. As a result, each Dyett, Richardson, and the Dyett-Richardson Family Trust may be deemed to have beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended) of 210,459 shares of common stock consisting of (i) 1,137 shares of common stock that are issuable upon exercise of warrants held by Dyett, (ii) 9,200 shares of common stock held in Dyett’s individual retirement account, (iii) 2,290 shares of common stock held by Richardson’s individual retirement account, and (iv) 197,832 shares of common stock held by the Dyett-Richardson Family Trust. The foregoing excludes 36,765 shares of common stock issuable upon exercise of a warrant held by the Dyett-Richardson Family Trust because such warrant is not exercisable until the six (6) month anniversary of the date of issuance. Assuming the warrant is currently exercisable, the Dyett-Richardson Family Trust may be deemed to have beneficial ownership of 247,224 shares of common stock.
(11) Excludes 183,824 shares of common stock issuable upon exercise of a warrant held by Lester B. Boelter (“Boelter”) because such warrant is not exercisable until the six (6) month anniversary of the date of issuance. Assuming the warrant is currently exercisable, Boelter may be deemed to have beneficial ownership of 428,922 shares of common stock.
(12) Excludes 11,030 shares of common stock issuable upon exercise of a warrant held by Richard Straeter (“Straeter”) because such warrant is not exercisable until the six (6) month anniversary of the date of issuance. Assuming the warrant is currently exercisable, Straeter may be deemed to have beneficial ownership of 48,151 shares of common stock.
(13) Excludes 73,529 shares of common stock issuable upon exercise of a warrant held by Raymond Smullyan (“Smullyan”) because such warrant is not exercisable until the six (6) month anniversary of the date of issuance. Assuming the warrant is currently exercisable, Smullyan may be deemed to have beneficial ownership of 391,568 shares of common stock.
(14) Mark Grinbaum (“Grinbaum”) was an investor in a previous private placement whereby the Company sold an aggregate of 507,730 shares of common stock at $2.20 per share and warrants to purchase 50,776 shares of common stock at an exercise price of $2.48 per share pursuant to that certain Securities Purchase Agreement dated as of April 8, 2010 between the Company and certain investors named therein (the “2010 Offering”). Grinbaum was also an investor in the 2009 Offering.
(15) Excludes 73,529 shares of common stock issuable upon exercise of a warrant held by Grinbaum because such warrant is not exercisable until the six (6) month anniversary of the date of issuance. Assuming the warrant is currently exercisable, Grinbaum may be deemed to have beneficial ownership of 466,698 shares of common stock.
(16) William S. Lapp (“Lapp”) was an investor in the 2009 Offering and the 2010 Offering.
(17) Excludes 16,177 shares of common stock issuable upon exercise of a warrant held by Lapp because such warrant is not exercisable until the six (6) month anniversary of the date of issuance. Assuming the warrant is currently exercisable, Lapp may be deemed to have beneficial ownership of 160,128 shares of common stock.
(18) Eric G. Handorf (“Handorf”) was an investor in the 2009 Offering.
(19) Excludes 18,383 shares of common stock issuable upon exercise of a warrant held by Handorf because such warrant is not exercisable until the six (6) month anniversary of the date of issuance. Assuming the warrant is currently exercisable, Handorf may be deemed to have beneficial ownership of 144,166 shares of common stock.
(20) Excludes 36,765 shares of common stock issuable upon exercise of a warrant held by Shadow Capital, LLC (“Shadow Capital”) because such warrant is not exercisable until the six (6) month anniversary of the date of issuance (and the warrant also contains a blocker provision under which the holder thereof does not have the right to exercise the warrant to the extent (but only to the extent) that such exercise would result in beneficial ownership by the holder thereof or any of its affiliates, of more than 4.9% of the common stock). Without such blocker provisions (and assuming the warrant is currently exercisable), Shadow Capital may be deemed to have beneficial ownership of 651,607 shares of common stock.
(21) Richard J. Lemming & Emily M. Lemming (“Lemming”) were investors in the 2009 Offering.
(22) Excludes 7,353 shares of common stock issuable upon exercise of a warrant held by Lemming because such warrant is not exercisable until the six (6) month anniversary of the date of issuance. Assuming the warrant is currently exercisable, Lemming may be deemed to have beneficial ownership of 37,515 shares of common stock.
(23) Octagon Capital Partners (“Octagon”) was an investor in the 2009 Offering.
(24) Excludes 225,000 shares of common stock issuable upon exercise of a warrant held by Octagon because such warrant is not exercisable until the six (6) month anniversary of the date of issuance. Assuming the warrant is currently exercisable, Octagon may be deemed to have beneficial ownership of 525,000 shares of common stock.
(25) Excludes 75,000 shares of common stock issuable upon exercise of a warrant held by Schottenstein Capital Partners, LP (“Schottenstein”) because such warrant is not exercisable until the six (6) months anniversary of the date of issuance. Assuming the warrant is currently exercisable, Schottenstein may be deemed to have beneficial ownership of 175,000 shares of common stock.
(26) Excludes 183,825 shares of common stock issuable upon exercise of a warrant held by Next View Capital LP (“Next View”) because such warrant is not exercisable until the six (6) month anniversary of the date of issuance. Assuming the warrant is currently exercisable, Next View may be deemed to have beneficial ownership of 428,925 shares of common stock.
(27) Nicholas Carosi III (“Carosi”) was an investor in the 2009 Offering.
(28) Such 100,379 shares of common stock includes 15,000 shares of common stock held jointly by Carosi and Virginia Carosi. The foregoing excludes 29,210 shares of common stock issuable upon exercise of a warrant held by Carosi because such warrant is not exercisable until the six (6) month anniversary of the date of issuance. Assuming the warrant is currently exercisable, Carosi may be deemed to have beneficial ownership of 129,589 shares of common stock.
We are registering the shares of common stock issued to the selling stockholders and the shares of common stock issuable upon exercise of the warrants to permit the resale of these shares of 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 common stock. We will bear all fees and expenses incident to our obligation to register the shares of common stock.
The selling stockholders may sell all or a portion of the shares of 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 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 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:
| ● | 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 security holder 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. |
The selling stockholders may also sell shares of common stock under Rule 144 promulgated under the Securities Act of 1933, as amended, if available, rather than under this prospectus. If the selling stockholders effect such transactions by selling shares of 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 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 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 common stock in the course of hedging in positions they assume. The selling stockholders may also sell shares of common stock short and deliver shares of 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 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 warrants or shares of 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 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 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 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 common stock is made, a prospectus supplement, if required, will be distributed, which will set forth the aggregate amount of shares of 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 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 common stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of 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 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 Securities Exchange Act of 1934, as amended, 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 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 common stock to engage in market-making activities with respect to the shares of common stock. All of the foregoing may affect the marketability of the shares of common stock and the ability of any person or entity to engage in market-making activities with respect to the shares of common stock.
We will pay all expenses of the registration of the shares of common stock pursuant to the registration rights agreement, estimated to be $53,218 in total, including, without limitation, Securities and Exchange Commission 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 stockholder 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 the shares may be resold by the selling stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for us to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the shares have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect.
Once sold under the registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in the hands of persons other than our affiliates.
The validity of the issuance of the securities offered by this prospectus has been passed upon for us by Baker & Hostetler LLP, Orlando, Florida.
The financial statements as of June 30, 2011 and 2010 and for each of the two years in the period ended June 30, 2011, incorporated by reference in this prospectus and in the registration statement, have been so included in reliance on the report of Cross, Fernandez & Riley, LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
● | Government Filings. We file annual, quarterly and special reports and other information with the SEC. You may read and copy any document that we file at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-732-0330 for further information on the Public Reference Room. Our SEC filings are also available to you free of charge at the SEC’s web site at http://www.sec.gov.
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● | Stock Market. Our shares of common stock are traded on Nasdaq under the symbol LPTH.
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● | Information Incorporated by Reference. The SEC allows us to “incorporate by reference” the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and information that we file later with the SEC will automatically update and supersede previously filed information, including information contained in this document.
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| We incorporate by reference the documents listed below and any future filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until this offering has been completed: |
| ● | Our Annual Report on Form 10-K for the year ended June 30, 2011 (filed on September 8, 2011), which contains audited financial statements for the most recent fiscal year for which such statements have been filed. |
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| ● | Our Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2011 (filed on November 3, 2011). |
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| ● | Our Quarterly Report on Form 10-Q for the quarterly period ended December 31, 2011 (filed on February 9, 2012). |
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| ● | Our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2012 (filed on May 10, 2012) |
| ● | The description of our common stock, which is contained in our registration statement filed on Form 8-A, dated January 13, 1996. |
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| ● | Our Current Report on Form 8-K filed on August 16, 2011. |
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| ● | Our Current Report on Form 8-K filed on September 8, 2011. |
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| ● | Our Current Report on Form 8-K filed on October 25, 2011. |
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| ● | Our Current Report on Form 8-K filed on November 3, 2011. |
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| ● | Our Current Report on Form 8-K filed on December 27, 2011. |
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| ● | Our Current Reports on Form 8-K filed on February 2, 2012 (3). |
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| ● | Our Current Report on Form 8-K filed on February 9, 2012. |
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| ● | Our Current Report on Form 8-K filed on March 15, 2012. |
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| ● | Our Current Report on Form 8-K filed on March 26, 2012. |
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| ● | Our Current Report on Form 8-K filed on April 3, 2012. |
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| ● | Our Current Report on Form 8-K filed on April 24, 2012. |
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| ● | Our Current Report on Form 8-K filed on April 27, 2012. |
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| ● | Our Current Report on Form 8-K filed on May 10, 2012. |
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| ● | Our Current Report on Form 8-K filed on June 11, 2012. |
You may request free copies of these filings by writing, telephoning or contacting us at the following:
Investor Relations Department
LightPath Technologies, Inc.
2603 Challenger Tech Court, Suite 100
Orlando, Florida 32826
(407) 382-4003
email: invrel@lightpath.com
We will provide without charge to anyone who receives a prospectus, upon written or oral request, a copy of any and all of the information that has been incorporated by reference in this prospectus (not including exhibits to the information that is incorporated by reference unless the exhibits are themselves specifically incorporated by reference in
that information)any such documents).
Such a requestRequests for copies of documents should be directed to
Investor Relations Department, LightPath Technologies, Inc., 2603 Challenger Tech Court, Suite 100, Orlando, Florida 32826,
Attention: Investor Relations,telephone number (407) 382.4003, or
ifemail at inv_rel@lightpath.comWHERE YOU CAN FIND MORE INFORMATION
This prospectus supplement and the accompanying base prospectus form a part of a registration statement on Form S-3 that we filed with the SEC. This prospectus supplement does not contain all of the information found in the registration statement. For further information regarding us and our securities, you may desire to review the full registration statement, including its exhibits and schedules, filed under the Securities Act, as well as our proxy statement, annual, quarterly, and other reports and other information we file with the SEC. The SEC maintains a website on the Internet at www.sec.gov that contains reports, proxy and information statements, and other information about us that we file electronically with the SEC. We maintain a website on the Internet at www.lightpath.com. Our registration statement, of which this prospectus supplement and the accompanying base prospectus constitute a part, can be downloaded from the SEC’s website or from our website at www.lightpath.com. Information on the SEC website, our website or any other website is not incorporated by telephone, (407) 382-4003.
reference in this prospectus supplement and does not constitute part of this prospectus supplement.  |
$25,200,000 Class A Common Stock |
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PROSPECTUS SUPPLEMENT |
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A.G.P. |
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_____________, 2022 |
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. | Other Expenses of Issuance and Distribution. |
ITEM 14.OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses, relating toall of which will be borne by us, in connection with the registration, sale and distribution of the shares, including salessecurities being registered, other than the underwriting discounts, commissions, are payable by the Registrant.and expenses. All of the amounts shown are estimatedestimates except for the SEC registration fee and Nasdaq registration fees.
| SEC Registration Fee | | $ | 452.22 | |
| Nasdaq Listing of Additional Shares Fee | | | 39,265.79 | |
| Legal Fees and Expenses (including Blue Sky) | | | 10,000.00 | |
| Accounting Fees and Expenses | | | 2,500.00 | |
| Printing and Miscellaneous Fees and Expenses | | | 1,000.00 | |
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| Total | | $ | 53,218.01 | |
Item 15. | Indemnification of Directors and Officers. |
the FINRA fee. | | Amount | |
SEC registration fee | | $ | 7,026.66 | |
FINRA fee | | $ | 11,870.00 | |
Nasdaq listing fee | | $ | * | |
Accounting fees and expenses | | $ | * | |
Legal fees and expenses | | $ | * | |
Printing expenses | | $ | * | |
Transfer agent fees | | $ | * | |
Trustee fees and expenses | | $ | * | |
Warrant agent fees and expenses | | $ | * | |
Miscellaneous | | $ | * | |
Total | | $ | * | |
__________
* These fees and expenses depend on the number of securities offered and number of issuances, and accordingly cannot be estimated at this time.
ITEM 15.INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (“DGCL”) makes provisionDGCL provides for the indemnification of officers and directors of corporations in terms sufficiently broad to indemnify theour officers and directors of the Registrant 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 Certificatecertificate of Incorporationincorporation 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, the Registrant’sour Certificate of Incorporation as amended (the “Charter”) provides that the personal liability of each member of the Registrant’sour Board of Directors to the Registrant or itsour stockholders for monetary damages for breach of fiduciary duty as a director is eliminated. The effect of this provision in the CharterCertificate of Incorporation is to eliminate our rights and the rights of the Registrant and itsour stockholders (through stockholders’ derivative suits on behalf of the Registrant)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 CharterCertificate 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; provided, however, that the foregoing clause shall not apply to any liability of a director (i) for any breach of the director'sdirector’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for any transaction from which the director derived an improper personal benefit, or (iv) under Section 174 of the DGCL.GCL. This Article shall not eliminate or limit the liability of a director for any act or omission occurring prior to the time this Article became effective.
In addition, Article VII7 of the Registrant’sour Bylaws provides, in summary, that the Registrant iswe 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 anour officer, director, employee, or agent of the Registrant.agent. Indemnification is against all liability and loss suffered and expenses reasonably
incurred. incurred to the fullest extent permitted by applicable law. Unless required by law, no such indemnification is required by the Registrantus of any person initiating such suit, action, or proceeding without boardBoard 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 other 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 of the registrant pursuant to the foregoing provisions, or otherwise, we have been informed that in the opinion of the Securities and Exchange CommissionSEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
The registrant providesWe 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.
The Exhibits to this registration statement are listed in the Index to Exhibits on page 31.
Item 17.Exhibit No. | Undertakings. | Description |
1.01* | | Form of Underwriting Agreement. |
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1.02** | | Sales Agreement, dated February 15, 2022 by and between LightPath Technologies, Inc. and A.G.P. / Alliance Global Partners. |
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3.1.1 | | Certificate of Incorporation of LightPath Technologies, Inc., filed June 15, 1992 with the Secretary of State of Delaware, which was filed as Exhibit 3.1.1 to our Annual Report on Form 10-K (File No. 000-25748) filed with the Securities and Exchange Commission on September 10, 2020, and is incorporated herein by reference thereto. |
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3.1.2 | | Certificate of Amendment to Certificate of Incorporation of LightPath Technologies, Inc., filed October 2, 1995 with the Secretary of State of Delaware, which was filed as exhibit 3.1.2 to our Annual Report on Form 10-K (File No. 000-25748) filed with the Securities and Exchange Commission on September 10, 2020, and is incorporated herein by reference thereto. |
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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 of LightPath Technologies, Inc., filed November 9, 1995 with the Secretary of State of Delaware, which was filed as Exhibit 3.1.3 to our Annual Report on Form 10-K (File No. 000-25748) filed with the Securities and Exchange Commission on September 10, 2020, and is incorporated herein by reference thereto. |
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3.1.4 | | Certificate of Designation of Series A Preferred Stock of LightPath Technologies, Inc., 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 Securities and Exchange Commission on September 11, 1997, and is incorporated herein by reference thereto. |
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3.1.5 | | Certificate of Designation of Series B Stock of LightPath Technologies, Inc., 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 Securities and Exchange Commission on November 14, 1997, and is incorporated herein by reference thereto. |
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3.1.6 | | Certificate of Amendment of Certificate of Incorporation of LightPath Technologies, Inc., 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 Securities and Exchange Commission on November 14, 1997, and is incorporated herein by reference thereto. |
3.1.7 | | Certificate of Designation of Series C Preferred Stock of LightPath Technologies, Inc., 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 Securities and Exchange Commission on March 13, 1998, and is incorporated herein by reference thereto. |
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3.1.8 | | Certificate of Designation, Preferences and Rights of Series D Participating Preferred Stock of LightPath Technologies, Inc. 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 Securities and Exchange Commission on April 28, 1998, and is incorporated herein by reference thereto. |
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3.1.9 | | Certificate of Designation of Series F Preferred Stock of LightPath Technologies, Inc., 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 Securities and Exchange Commission on January 10, 2000, and is incorporated herein by reference thereto. |
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3.1.10 | | Certificate of Amendment of Certificate of Incorporation of LightPath Technologies, Inc., 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 Securities and Exchange Commission on January 24, 2003, and is incorporated herein by reference thereto. |
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3.1.11 | | Certificate of Amendment of Certificate of Incorporation of LightPath Technologies, Inc., 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 Securities and Exchange Commission on November 14, 2016, and is incorporated herein by reference thereto. |
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3.1.12 | | Certificate of Amendment of Certificate of Incorporation of LightPath Technologies, Inc., 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 Securities and Exchange Commission on October 31, 2017, and is incorporated herein by reference thereto. |
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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 of LightPath Technologies, Inc., 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 Securities and Exchange Commission on October 31, 2017, and is incorporated herein by reference thereto. |
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3.1.14 | | Certificate of Amendment of Certificate of Designation, Preferences and Rights of Series D Participating Preferred Stock of LightPath Technologies, Inc., 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 Securities and Exchange Commission on February 1, 2018, and is incorporated herein by references thereto. |
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3.2 | | Second Amended and Restated Bylaws of LightPath Technologies, Inc., which was filed as Exhibit 3.1 to our Current Report on Form 8-K (File No: 000-27548) filed with the Securities and Exchange Commission on February 2, 2021, and is incorporated herein by reference thereto. |
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4.1* | | Form of Warrant. |
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4.2* | | Form of Warrant Agreement. |
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4.3* | | Form of Unit Agreement. |
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5.1** | | Opinion of Baker & Hostetler LLP. |
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23.1** | | Consent of MSL, P.A., independent registered public accounting firm. |
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23.2** | | Consent of Baker & Hostetler LLP (included in Exhibit 5.1). |
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24.1** | | Power of Attorney (included in the signature page of this Registration Statement). |
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107** | | Filing Fee Table |
* | To be filed by amendment or as an exhibit to a Current Report on Form 8-K, if, applicable. |
** | Filed herewith |
ITEM 17.UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) | (i) | To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 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 Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. |
provided, however, that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in the volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that: paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) of this sectionabove do not apply if the registration statement is on Form S-3 (§239.13 of this chapter) or Form F-3 (§239.33 of this chapter) and 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 Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in thisthe registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) (§230.424(b) of this chapter) that is a part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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 fideoffering 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 of 1933 to any purchaser:
(i) If(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration is subjectstatement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to Rule 430C (§230.430C of this chapter), each prospectusbe 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 other than registration statements relatingmade pursuant to an offering, other than registration statements relying on Rule 430B415(a)(1)(i), (vii) or other than prospectuses filed in reliance on Rule 430A (§230.430A(x) for the purpose of this chapter),providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date itsuch form of prospectus is first used after effectiveness. 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 first use,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 dateeffective date; or
(5) That, for the purpose of first use.
determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and exchangeExchange Commission such indemnification is against public policy as expressed in the 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 Registrantregistrant in the successful defense of any such 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 Act and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrantRegistrant 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 this 20th day of June, 2012.
February 15, 2022. | LIGHTPATH TECHNOLOGIES, INC. | |
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| By: | /s/ J. James GaynorShmuel Rubin | |
| | J. James GaynorShmuel Rubin | |
| | President & Chief Executive Officer | |
KNOW ALL MEN BY THESE PRESENTS, that AND SIGNATURESWe the undersigned officers and directors of LightPath Technologies, Inc., hereby, severally constitute and appoint Shmuel Rubin and Albert Miranda, each individual whose signature appears below constitutes and appoints J. James Gaynor hisof them singly, our true and lawful attorney-in-fact and agentattorneys with full power to them and each of substitution and resubstitution,them singly, to sign for himus and in his name, placeour names in the capacities indicated below, the registration statement on Form S-3 filed herewith and stead, in any and all pre-effective and post-effective amendments to said registration statement and any subsequent registration statement for the same offering which may be filed under Rule 462(b) and generally to do all such things in our names and on our behalf in our capacities as officers and directors to sign anyenable LightPath Technologies, Inc. to comply with the provisions of the Securities Act of 1933, and all amendments (including post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto, and all documents in connection therewith, withrequirements of the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all that said attorney-in-fact and agentamendments thereto or his substitute or substitutes,to any subsequent registration statement for the same offering which may lawfully do or cause to be done by virtue hereof.
filed under Rule 462(b).Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SignaturePerson | | TitleCapacity | | Date |
| | | | |
/s/ J. James GaynorShmuel Rubin | | President & Chief Executive Officer, and Director | | June 13, 2012February 15, 2022 |
J. JAMES GAYNORShmuel Rubin | | (Principal Executive Officer) | | |
| | | | |
/s/ Dorothy M. CipollaAlbert Miranda | | Chief Financial Officer | | June 13, 2012February 15, 2022 |
DOROTHY M. CIPOLLAAlbert Miranda | | (Principal Financial Officer
and Principal Accounting Officer) | | |
| | | | |
/s/ Robert RippLouis Leeburg | | Director, Chairman of the Board and | | June 14, 2012February 15, 2022 |
ROBERT RIPPLouis Leeburg | | Director | | |
| | | | |
/s/ Sohail Khan | | Director | | June 13, 2012February 15, 2022 |
SOHAIL KHANSohail Khan | | | | |
| | | | |
/s/ Dr. Steven R. J. Brueck | | Director | | June 13, 2012 |
DR. STEVEN R. J. BRUECK | | | | |
| | | | |
/s/ Louis Leeburg | | Director | | June 14, 2012 |
LOUIS LEEBURG | | | | |
| | | | |
/s/ Gary Silverman | | Director | | June 13, 2012 |
GARY SILVERMAN | | | | |
| | | | |
/s/ M. Scott Faris | | Director | | June 13, 2012February 15, 2022 |
M. SCOTT FARISScott Faris | | | | |
INDEX TO EXHIBITS
Exhibit No. | | Description of Exhibit |
| | | | |
/s/ Joseph Menaker | | Director | | February 15, 2022 |
Joseph Menaker | | | | |
| | | | |
/s/ S. Eric Creviston | | Director | | February 15, 2022 |
S. Eric Creviston | | | | |
| | | | |
/s/ Craig Dunham | | Director | | February 15, 2022 |
Craig Dunham | | | | |
| | | | |
/s/ Darcie Peck | | Director | | February 15, 2022 |
Darcie Peck | | | | |
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* 4.1 | | Rights Agreement dated as of May 1, 1998, between LightPath Technologies, Inc., and Continental Stock Transfer & Trust Company (Filed as Exhibit 1 to Registration Statement on Form 8-A filed April 28, 1998, and incorporated herein by this reference.) |
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*4.2 | | First Amendment to Rights Agreement dated as of February 25, 2008 between LightPath Technologies, Inc., and Continental Stock Transfer & Trust Company (Filed as Exhibit 2 to Amendment No. 1 to Registration Statement on Form 8-A filed February 25, 2008, and incorporated herein by this reference.) |
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*4.3 | | Form of Common Stock Purchase Warrant dated as of June 11, 2012, issued by LightPath Technologies, Inc., to certain selling stockholders (Filed as Exhibit 4.1 to Form 8-K filed June 11, 2012, and incorporated herein by this reference.) |
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*10.1 | | Securities Purchase Agreement dated as of June 11, 2012, issued by LightPath Technologies, Inc., to certain selling stockholders (Filed as Exhibit 10.1 to Form 8-K filed June 11, 2012, and incorporated herein by this reference.) |
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*10.2 | | Registration Rights Agreement dated as of June 11, 2012, issued by LightPath Technologies, Inc., to certain selling stockholders (Filed as Exhibit 10.2 to Form 8-K filed June 11, 2012, and incorporated herein by this reference.) |
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23.1 | | Consent of Baker & Hostetler LLP, regarding legality of shares being offered. (Contained in its opinion filed as Exhibit 5.1.)
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24.1 | | Powers of Attorney (Included on Signature Page.)
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