AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 16, 1997
REGISTRATION NO. 333-42173
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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KOPIN CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 04-2833935
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
695 MYLES STANDISH BOULEVARD
TAUNTON, MASSACHUSETTS 02780
(508) 824-6696
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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JOHN C.C. FAN
CHAIRMAN OF THE BOARD OF DIRECTORS, PRESIDENT AND CHIEF EXECUTIVE OFFICER
KOPIN CORPORATION
695 MYLES STANDISH BOULEVARD
TAUNTON, MASSACHUSETTS 02780
(508) 824-6696
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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WITH COPIES TO:
JUSTIN P. MORREALE, ESQ. WILLIAM J. SCHNOOR, JR.
JOHN J. CONCANNON III, ESQ. TESTA, HURWITZ & THIBEAULT, LLP
BINGHAM DANA LLP HIGH STREET TOWER
150 FEDERAL STREET 125 HIGH STREET
BOSTON, MA 02110 BOSTON, MA 02110
(617) 951-8000 (617) 248-7000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this 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. [_]
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, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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The Registrant is hereby amending this Registration Statement on Form S-3
(Registration No. 333-42173) solely to file the proposed form of Underwriting
Agreement as an exhibit hereto. Because no changes have been made to Part I,
it is hereby omitted intentionally.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Expenses of the Registrant in connection with the issuance and distribution
of the securities being registered, other than the underwriting discount and
commissions, are estimated as follows:
SEC Registration Fee........................................... $ 12,390
NASD Filing Fees............................................... 4,698
Nasdaq National Market Listing Fees............................ 17,500
Printing and Engraving Expenses................................ 100,000
Legal Fees and Expenses........................................ 185,000
Accountant's Fees and Expenses................................. 75,000
Expenses of Qualification Under State Securities Laws and NASD
Expenses, Including Attorneys' Fees........................... 15,000
Transfer Agent and Registrar's Fees............................ 2,500
Miscellaneous Costs............................................ 12,912
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Total(1)..................................................... $425,000
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(1) Telecom has agreed to pay $100,000 of the costs related to this Offering
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Amended and Restated Certificate of Incorporation and
Amended and Restated Bylaws include provisions to (i) eliminate the personal
liability of its directors for monetary damages resulting from breaches of
their fiduciary duty to the extent permitted by Section 102(b)(7) of the
General Corporation Law of Delaware (the "Delaware Law") and (ii) authorize
the Registrant to indemnify its directors and officers to the fullest extent
permitted by Section 145 of the Delaware Law, including circumstances in which
indemnification is otherwise discretionary. Pursuant to Section 145 of the
Delaware Law, a corporation generally has the power to indemnify its present
and former directors, officers, employees and agents against expenses incurred
by them in connection with any suit to which they are, or are threatened to be
made, a party by reason of their serving in such positions so long as they
acted in good faith and in a manner they reasonably believed to be in, or not
opposed to, the best interests of a corporation, and with respect to any
criminal action, they had no reasonable cause to believe their conduct was
unlawful. The Registrant believes that these provisions do not eliminate
liability for breach of the director's duty of loyalty to the Registrant or
its stockholders, for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, for any transaction from
which the director derived an improper personal benefit or for any willful or
negligent payment of any unlawful dividend or any unlawful stock purchase
agreement or redemption.
The Registrant has purchased an insurance policy covering the officers and
directors of the Registrant with respect to certain liabilities arising under
the Securities Act or otherwise.
II-1
ITEM 16. EXHIBITS
1.1 Proposed Form of Underwriting Agreement
3.1 Amended and Restated Certificate of Incorporation*
3.2 Amended and Restated By-laws*
4.1 Reference is made to exhibits 3.1 and 3.2
4.2 Specimen Certificate of Common Stock**
5.1 Opinion of Bingham Dana LLP, with respect to the legality of the shares being
registered.***
23.1 Consent of Deloitte & Touche LLP, Independent Auditors of the Company***
23.2 Consent of Bingham Dana LLP (included in exhibit 5.1)
23.3 Consent of Hamilton, Brook, Smith & Reynolds, P.C.***
24.1 Power of Attorney. Reference is made to the signature page
27 Financial Data Schedule***
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* Filed as an exhibit to Registration Statement on Form S-1, File No. 33-
57450, and incorporated herein by reference.
** Filed as an exhibit to Registration Statement on Form S-1, File No. 33-
45853, and incorporated herein by reference.
*** Filed as an exhibit to Registration Statement on Form S-3, File No. 333-
42173, and incorporated herein by reference.
ITEM 17. UNDERTAKINGS
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 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.
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, the Registrant has been
informed that in the opinion of the Securities and Exchange 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
Registrant in the successful defense of any action, suit, or proceeding) is
asserted by such director, officer, or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
The undersigned Registrant undertakes that: (1) for purposes of determining
any liability under the Securities Act of 1933, the information omitted from
the form of prospectus as filed as part of the Registration Statement in
reliance upon Rule 430A and contained in the form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of the Registration Statement as of the time it
was declared effective, and (2) for the purpose of determining any liability
under the Securities Act of 1933, each post-effective amendment that contains
a form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be in the initial BONA FIDE
offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Taunton, Commonwealth of Massachusetts, on this
15th day of December, 1997.
KOPIN CORPORATION
By: /s/ Paul J. Mitchell
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Paul J. Mitchell
Chief Financial Officer and
Treasurer
(Principal Financial and
Accounting Officer)
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.
SIGNATURE TITLE DATE
* Chairman of the December 15,
- ------------------------------------- Board of Director, 1997
JOHN C.C. FAN President and Chief
Executive Officer
(Principal
Executive Officer)
/s/ Paul J. Mitchell Chief Financial December 15,
- ------------------------------------- Officer and 1997
PAUL J. MITECHELL Treasurer
(Principal
Financial and
Accounting Officer)
* Director and December 15,
- ------------------------------------- Secretary 1997
DAVID E. BROOK
* Director December 15,
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ANDREW H. CHAPMAN
* Director December 15,
- ------------------------------------- 1997
MORTON COLLINS
* Director December 15,
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CHI CHIA HSIEH
* Director December 15,
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VOLLOBH VIMOLVANICH
* Director December 15,
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MICHAEL A. WALL
*By: /s/ Paul J. Mitchell December 15,
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PAUL J. MITCHELL
ATTORNEY-IN-FACT
EXHIBITS
1.1 Proposed Form of Underwriting Agreement
3.1 Amended and Restated Certificate of Incorporation*
3.2 Amended and Restated By-laws*
4.1 Reference is made to exhibits 3.1 and 3.2
4.2 Specimen Certificate of Common Stock**
5.1 Opinion of Bingham Dana LLP, with respect to the legality of the shares being
registered.***
23.1 Consent of Deloitte & Touche LLP***
23.2 Consent of Bingham Dana LLP (included in exhibit 5.1)
23.3 Consent of Hamilton, Brook, Smith & Reynolds, P.C.***
24.1 Power of Attorney. Reference is made to the signature page
27 Financial Data Schedule***
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* Filed as an exhibit to Registration Statement on Form S-1, File No. 33-
57450, and incorporated herein by reference.
** Filed as an exhibit to Registration Statement on Form S-1, File No. 33-
45853, and incorporated herein by reference.
*** Filed as an exhibit to Registration Statement on Form S-3, File No. 333-
42173, and incorporated herein by reference.