As filed with the Securities and Exchange Commission on February 4, 2015

 

Registration No. 333-_____________

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

____________________________

 

Form S-8

 

Registration Statement under The Securities Act of 1933

____________________________

 

LIGHTPATH TECHNOLOGIES, INC.

(Exact name of registrant as specified in its charter)

 

Delaware

(State or other jurisdiction

of incorporation)

  

86-0708398

(IRS Employer

Identification No.)

     

2603 Challenger Tech Court, Suite 100, Orlando, Florida 32826

(Address of Principal Executive Offices including Zip Code)

 

LIGHTPATH TECHNOLOGIES, INC.

EMPLOYEE STOCK PURCHASE PLAN

(Full title of the plan)

 

J. JAMES GAYNOR, Chief Executive Officer

LightPath Technologies, Inc.

2603 Challenger Tech Court, Suite 100, Orlando, Florida 32826

(Name and address of agent for service)

(407) 382-4003

(Telephone Number, including area code, of agent for service)

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer ☐ Accelerated filer ☐
Non-accelerated filer   ☐ (Do not check if a smaller reporting company) Smaller reporting company ☒

 

 

 

 
 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Securities
to be Registered

 

 

Amount to be
Registered (1)

Proposed Maximum
Offering Price
Per Share (2)

Proposed Maximum
Aggregate
Offering Price

 

Amount of
Registration Fee (3)

Class A Common Stock, $0.01 par value 400,000 $1.22 $488,000 $56.71
Preferred Stock Purchase Rights (4) - - - -
Total 400,000 - - $56.71

(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), the amount of securities registered under this Registration Statement shall include an indeterminate number of additional shares of Class A common stock, $0.01 par value that may become issuable as a result of stock splits, stock dividends or similar transactions pursuant to the anti-dilution provisions of the LightPath Technologies, Inc. Employee Stock Purchase Plan.

 

(2)

Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act. The maximum offering price per share is based on the average of the high and low prices of the Class A common stock, $0.01 par value as reported on The NASDAQ Capital Market on February 2, 2015.

 

(3)

Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) of the Securities Act.

 

(4)

The common stock currently includes certain preferred stock purchase rights (collectively, the “Rights”) issued pursuant to that certain Rights Agreement, dated May 1, 1998 (filed as an exhibit to our Registration Statement on Form 8-A filed with the Securities and Exchange Commission on April 28, 1998), as amended on February 25, 2008 (filed as an exhibit to Amendment No. 1 to Form 8-A filed with the Securities and Exchange Commission on February 25, 2008)(the “Rights Agreement”), between the Registrant and Continental Stock Transfer & Trust Company.  Until the occurrence of certain events specified in the Rights Agreement, none of which have occurred, the Rights are not exercisable, are evidenced by the certificate for the Class A common stock and will be transferred along with and only with, and are not severable from, the Class A common stock.  The value attributable to the Rights, if any, is reflected in the market price of the Class A common stock.  No separate consideration will be payable for the Rights.

 

 

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EXPLANATORY NOTE

This Registration Statement on Form S-8 is filed by LightPath Technologies, Inc. (the “Company”), relating to 400,000 shares of Class A common stock, $0.01 par value per share (the “Common Stock”) to be offered and sold under the LightPath Technologies, Inc. Employee Stock Purchase Plan (the “Plan”), which was adopted by our Board of Directors on October 30, 2014 and approved by our stockholders at the Company’s Annual Meeting of Stockholders on January 29, 2015.

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The documents containing the information specified in Part I, Items 1 and 2, will be delivered to the participants of the Plan in accordance with this Registration Statement on Form S-8 and Rule 428 of the Securities Act. Consistent with the instructions of Part I of Form S-8, such documents will not be filed with the Securities and Exchange Commission (the “SEC”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus as required by Section 10(a) of the Securities Act.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

INCORPORATION OF DOCUMENTS BY REFERENCE.

 

This Registration Statement on Form S-8 is being filed solely to register, pursuant to the Securities Act, 400,000 shares of Common Stock issuable pursuant to the Plan.

 

We are subject to the informational and reporting requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in accordance therewith file reports, proxy statements and other information with the SEC. We incorporate by reference into this Registration Statement the documents listed below:

 

(a)

our Annual Report on Form 10-K for the year ended June 30, 2014;

 

(b)

our Quarterly Report on Form 10-Q for the quarter ended September 30, 2014;

 

(c)

our Current Reports on Form 8-K filed on July 8, 2014, September 3, 2014, November 6, 2014, December 24, 2014, January 21, 2015, January 30, 2015 and February 3, 2015;

 

(d)

the description of our Common Stock contained in our Registration Statement on Form 8-A, dated January 13, 1996;

 

(e)

the description of our Series D Participating Preferred Stock contained in our Registration Statement on Form 8-A filed with the SEC on April 28, 1998, and as amended by filing Amendment No 1 to form 8-A filed with the SEC on February 25, 2008; and

 

(f)

all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the respective dates of filing of such documents.

 

Notwithstanding the foregoing, unless specifically stated to the contrary, none of the information disclosed by the Company under Items 2.02 or 7.01 of any current report on Form 8-K that the Company may from time to time furnish to the SEC will be incorporated by reference into, or otherwise included in, this Registration Statement. 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 Registration Statement to the extent 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 Registration Statement. 

 

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Item 4.

DESCRIPTION OF SECURITIES.

 

Not applicable.

 

Item 5.

INTERESTS OF NAMED EXPERTS AND COUNSEL.

 

Not applicable.

 

Item 6.

INDEMNIFICATION OF DIRECTORS AND OFFICERS.

 

Section 145 of the Delaware General Corporation Law (“DGCL”) makes provision for the indemnification of officers and directors of corporations in terms sufficiently broad to indemnify the 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 Certificate of Incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) in respect of certain unlawful dividend payments or stock redemptions or repurchases, or (iv) for any transaction from which the director derived an improper personal benefit.

 

As permitted by the DGCL, the Company’s Certificate of Incorporation, as amended (the “Charter”) provides that the personal liability of each member of the Company’s Board of Directors to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director is eliminated. The effect of this provision in the Charter is to eliminate the rights of the Company and its stockholders (through stockholders’ derivative suits on behalf of the Company) 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 Charter 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'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. 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 7 of the Company’s Bylaws provides, in summary, that the Company is required to indemnify to the fullest extent permitted by applicable law, any person made or threatened to be made a party or involved in a lawsuit, action or proceeding by reason that such person is or was an officer, director, employee or agent of the Company. Indemnification is against all liability and loss suffered and expenses reasonably incurred. Unless required by law, no such indemnification is required by the Registrant of any person initiating such suit, action or proceeding without board authorization or unless the proceeding relates to the enforcement of the Registrant’s indemnification obligations. Expenses are payable in advance if the indemnified party agrees to repay the amount if he is ultimately found to not be entitled to indemnification.

 

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. 

 

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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.

 

The Company provides indemnity insurance pursuant to which officers and directors are indemnified or insured against liability or loss under certain circumstances, which may include liability or related loss under the Securities Act and the Exchange Act.

 

Item 7.

EXEMPTION FROM REGISTRATION CLAIMED.

 

Not applicable.

 

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Item 8.

EXHIBITS

Unless otherwise indicated below as being incorporated by reference to another filing of the Company with the SEC, each of the following exhibits is filed herewith:

 

Exhibit Number Description of Document
   
*4.1 Certificate of Incorporation of Registrant, filed June 15, 1992 with the Secretary of State of Delaware (filed as an exhibit to our Registration Statement on Form SB-2 (File No.: 33-80119) filed with the Securities and Exchange Commission on December 7, 1995 and incorporated herein by reference).
   
*4.2 Certificate of Amendment to Certificate of Incorporation of Registrant, filed October 2, 1995 with the Secretary of State of Delaware (filed as an exhibit to our Registration Statement on Form SB-2 (File No.: 33-80119) filed with the Securities and Exchange Commission on December 7, 1995 and incorporated herein by reference).
   
*4.3 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 Registrant, filed November 9, 1995 with the Secretary of State of Delaware (filed as an exhibit to our Registration Statement on Form SB-2 (File No.: 33-80119) filed with the Securities and Exchange Commission on December 7, 1995 and incorporated herein by reference).
   
*4.4 Certificate of Amendment of Certificate of Incorporation of Registrant, filed November 12, 1997 with the Secretary of State of Delaware (filed as an exhibit to our quarterly report on Form 10-Q filed with the Securities and Exchange Commission on November 14, 1997 and incorporated herein by reference).
   
*4.5 Certificate of Amendment of Certificate of Incorporation of Registrant, filed February 28, 2003 with the Secretary of State of Delaware (filed as an exhibit to our Proxy Statement filed with the Securities and Exchange Commission on January 24, 2003 and incorporated herein by reference).
   
*4.6 Amended and Restated Bylaws of Registrant dated January 29, 2015 (filed as an exhibit to our Current Report on Form 8-K filed with the Securities and Exchange Commission on February 3, 2015 and incorporated herein by reference).
   
*4.7 Rights Agreement dated May 1, 1998, between Registrant and Continental Stock Transfer & Trust Company (filed as an exhibit to our Registration Statement on Form 8-A filed with the Securities and Exchange Commission on April 28, 1998 and incorporated herein by reference).
   
*4.8 First Amendment to Rights Agreement dated as of February 25, 2008, between Registrant and Continental Stock Transfer & Trust Company (filed as amendment number 1 to Form 8-A filed with the Securities and Exchange Commission on February 25, 2008 and incorporated herein by reference).

 

 

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*4.9 LightPath Technologies, Inc. employee Stock Purchase Plan, effective as of January 30, 2015 (filed as Appendix A to our Proxy Statement filed with the Securities and Exchange Commission on December 19, 2014 and incorporated herein by reference).
   
  5.1 Legal Opinion of Baker & Hostetler LLP, counsel to the Company (filed herewith).
   
  23.1 Consent of Cross, Fernandez & Riley LLP, Independent Registered Public Accounting Firm (filed herewith).
   
  23.2 Consent of Baker & Hostetler LLP, counsel to the Registrant (contained in Exhibit 5.1).
   
  24.1 Power of Attorney (contained on signature page hereto).

 

* Previously filed.

 

Item 9. UNDERTAKINGS.

 

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:

 

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(i)

To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;

 

(ii)

To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement.  Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in 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) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8 (§239.16b of this chapter), and 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 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in this registration statement; and

 

(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 fide offering thereof.

 

(3)

To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(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 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 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 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.

 

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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-8 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 the 4th day of February, 2015.

  LIGHTPATH TECHNOLOGIES, INC.
     
     
  By: /s/ J. James Gaynor
    J. James Gaynor
    President & Chief Executive Officer

 

 

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POWER OF ATTORNEY

 

Each person whose signature appears below on this Registration Statement hereby constitutes and appoints J. James Gaynor as his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments and amendments thereto) to this registration statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with 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, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.

 

SIGNATURES

 

Signatures   Title Date
       
 /s/ J. James Gaynor   President & Chief Executive Officer January 29, 2015
J. James Gaynor   (Principal Executive Officer)  
       
 /s/ Dorothy M. Cipolla   Chief Financial Officer (Principal January 29, 2015
Dorothy M. Cipolla   Financial Officer and Principal  
    Accounting Officer)  
       
 /s/ Robert Ripp   Chairman of the Board and January 29, 2015
Robert Ripp   Director  
       
 /s/ Sohail Khan   Director January 29, 2015
Sohail Khan      
       
 /s/ Dr. Steven R.J. Brueck   Director January 29, 2015
Dr. Steven R.J. Brueck      
       
 /s/ Louis Leeburg   Director January 29, 2015
Louis Leeburg      
       
/s/ M. Scott Faris   Director January 29, 2015
M. Scott Faris      

 

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INDEX TO EXHIBITS

 

Exhibit Number Description of Document
   
*4.1 Certificate of Incorporation of Registrant, filed June 15, 1992 with the Secretary of State of Delaware (filed as an exhibit to our Registration Statement on Form SB-2 (File No.: 33-80119) filed with the Securities and Exchange Commission on December 7, 1995 and incorporated herein by reference).
   
*4.2 Certificate of Amendment to Certificate of Incorporation of Registrant, filed October 2, 1995 with the Secretary of State of Delaware (filed as an exhibit to our Registration Statement on Form SB-2 (File No.: 33-80119) filed with the Securities and Exchange Commission on December 7, 1995 and incorporated herein by reference).
   
*4.3 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 Registrant, filed November 9, 1995 with the Secretary of State of Delaware (filed as an exhibit to our Registration Statement on Form SB-2 (File No.: 33-80119) filed with the Securities and Exchange Commission on December 7, 1995 and incorporated herein by reference).
   
*4.4 Certificate of Amendment of Certificate of Incorporation of Registrant, filed November 12, 1997 with the Secretary of State of Delaware (filed as an exhibit to our quarterly report on Form 10-Q filed with the Securities and Exchange Commission on November 14, 1997 and incorporated herein by reference).
   
*4.5 Certificate of Amendment of Certificate of Incorporation of Registrant, filed February 28, 2003 with the Secretary of State of Delaware (filed as an exhibit to our Proxy Statement filed with the Securities and Exchange Commission on January 24, 2003 and incorporated herein by reference).
   
*4.6 Amended and Restated Bylaws of Registrant dated January 29, 2015 (filed as an exhibit to our Current Report on Form 8-K filed with the Securities and Exchange Commission on February 3, 2015 and incorporated herein by reference).
   
*4.7 Rights Agreement dated May 1, 1998, between Registrant and Continental Stock Transfer & Trust Company (filed as an exhibit to our Registration Statement on Form 8-A filed with the Securities and Exchange Commission on April 28, 1998 and incorporated herein by reference).
   
*4.8 First Amendment to Rights Agreement dated as of February 25, 2008, between Registrant and Continental Stock Transfer & Trust Company (filed as amendment number 1 to Form 8-A filed with the Securities and Exchange Commission on February 25, 2008 and incorporated herein by reference).

 

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*4.9 LightPath Technologies, Inc. employee Stock Purchase Plan, effective as of January 30, 2015 (filed as Appendix A to our Proxy Statement filed with the Securities and Exchange Commission on December 19, 2014 and incorporated herein by reference).
   
5.1 Legal Opinion of Baker & Hostetler LLP, counsel to the Company (filed herewith).
   
23.1 Consent of Cross, Fernandez & Riley LLP, Independent Registered Public Accounting Firm (filed herewith).
   
23.2 Consent of Baker & Hostetler LLP, counsel to the Registrant (contained in Exhibit 5.1).
   
24.1 Power of Attorney (contained on signature page hereto).
   

 

* Previously filed.

 

 

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