-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CHeas6YaKs9XUcvfdPe9JQadYwt30oUpCM95MXD0+QhyXpEDRk+/mgqpWlxunTo6 vcbjcaGAX18VaG1LMbx+WQ== 0000912057-02-029545.txt : 20020801 0000912057-02-029545.hdr.sgml : 20020801 20020801162053 ACCESSION NUMBER: 0000912057-02-029545 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020801 EFFECTIVENESS DATE: 20020801 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PRECISION OPTICS CORPORATION INC CENTRAL INDEX KEY: 0000867840 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 042795294 STATE OF INCORPORATION: MA FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-97525 FILM NUMBER: 02717448 BUSINESS ADDRESS: STREET 1: 22 EAST BROADWAY CITY: GARDNER STATE: MA ZIP: 01440-3338 BUSINESS PHONE: 9786301800 FORMER COMPANY: FORMER CONFORMED NAME: PRECISION OPTICS CORP INC DATE OF NAME CHANGE: 19600201 S-8 1 a2085358zs-8.txt S-8 As filed with the Securities and Exchange Commission on August 1, 2002. Registration No._______________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 PRECISION OPTICS CORPORATION, INC. - ------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in Its Charter) MASSACHUSETTS - ------------------------------------------------------------------------------- (State or Other Jurisdiction of Incorporation or Organization) 04-2795294 - ------------------------------------------------------------------------------- (I.R.S. Employer Identification No.) 22 EAST BROADWAY, GARDNER, MA 01440 - ------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) 1997 INCENTIVE PLAN - ------------------------------------------------------------------------------- (Full Title of the Plan) JACK P. DREIMILLER SENIOR VICE PRESIDENT, FINANCE AND CHIEF FINANCIAL OFFICER PRECISION OPTICS CORPORATION , INC. 22 EAST BROADWAY GARDNER, MASSACHUSETTS 01440 - ------------------------------------------------------------------------------- (Name and Address of Agent For Service) (978) 630-1800 - ------------------------------------------------------------------------------- (Telephone Number, Including Area Code, of Agent for Service) Please send copies of all communications to: PATRICK O'BRIEN, ESQ. ROPES & GRAY ONE INTERNATIONAL PLACE BOSTON, MASSACHUSETTS 02110 (617) 951-7000 CALCULATION OF REGISTRATION FEE
======================== ====================== ====================== ====================== ====================== Proposed Maximum Proposed Maximum Title of Securities to Amount To Be Offering Price Per Aggregate Offering Amount of be Registered Registered (1) Share (2) Price (2) Registration Fee (3) - ------------------------ ---------------------- ---------------------- ---------------------- ---------------------- Common Stock - 675,000 shares $0.275-$12.50 $592,306 $55 $.01 Par Value ======================== ====================== ====================== ====================== ======================
(1) The Registrant previously registered 525,000 shares issuable pursuant to awards granted under its 1997 Incentive Plan on October 29, 1999 by filing a Registration Statement on Form S-8 (File No. 333-89989). This filing is solely to register 675,000 additional shares which may be issued pursuant to awards granted under the Registrant's 1997 Incentive Plan. (2) Of the 675,000 shares to be registered hereunder, (a) 11,900 shares are subject to options at an exercise price of $12.50 per share, (b) 25,000 shares are subject to options at an exercise price of $5.50 per share, (c) 10,000 shares are subject to options at an exercise price of $4.1875 per share, (d) 28,400 shares are subject to options at an exercise price of $1.19 per share, (e) 25,000 shares are subject to options at an exercise price of $0.76 per share, (f) 104,600 shares are subject to options at an exercise price of $0.70 per share, and (g) 22,500 are subject to options at an exercise price of $0.67 per share. An offering price of $0.275 per share for the remaining 447,600 shares not described above has been estimated, pursuant to Section 457(c) and (h) on the basis of the average of the high and low prices of shares as reported by the Nasdaq SmallCap Market on July 31, 2002, solely for the purpose of calculating the registration fee. (3) The Registrant previously paid $444 on October 29, 1999 in connection with the filing by the Registrant of a Registration Statement on Form S-8 (File No. 333-89989) to register 525,000 shares of the Registrant's common stock. The registration fee is for the 675,000 additional shares being registered herewith. The registration fee consists of: (a) $13.69 in respect of 11,900 shares subject to options at an exercise price of $12.50 per share, (b) $12.65 in respect of 25,000 shares subject to options at an exercise price of $5.50 per share, (c) $3.86 in respect of 10,000 shares subject to options at an exercise price of $4.1875 per share, (d) $3.11 in respect of 28,400 shares subject to options at an exercise price of $1.19 per share, (e) $1.75 in respect of 25,000 shares subject to options at an exercise price of $0.76 per share, (f) $6.74 in respect of 104,600 shares subject to options at an exercise price of $0.70 per share, (g) $1.39 in respect of 22,500 shares subject to options at an exercise price of $0.67 per share, and (h) $11.33 in respect of the remaining 447,600 shares. REGISTRATION OF ADDITIONAL SECURITIES This Registration Statement on Form S-8 is being filed by Precision Optics Corporation, Inc. (the "Company") pursuant to General Instruction E of Form S-8 under the Securities Act of 1933, as amended, to register an additional 675,000 shares of the Company's common stock, par value $.01 per share (the "Common Stock"), issuable pursuant to awards that are granted under the Company's 1997 Incentive Plan (the "Plan"). A total of 525,000 shares of Common Stock issuable pursuant to awards granted under the Plan have been previously registered pursuant to the Company's Registration Statement on Form S-8 (File No. 333-89989) filed with the Securities and Exchange Commission on October 29, 1999. The contents of that Registration Statement are hereby incorporated by reference in this Registration Statement. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE The Company hereby incorporates herein by reference the following documents of the Company: (a) The Company's Annual Report on Form 10-KSB for the fiscal year ended June 30, 2001, as filed with the Securities and Exchange Commission (the "Commission") on September 21, 2001; (b) Quarterly Report on Form 10-QSB for the quarter ended September 30, 2001, as filed with the Commission on November 14, 2001; (c) Quarterly Report on Form 10-QSB for the quarter ended December 31, 2001, as filed with the Commission on February 8, 2002; (d) Quarterly Report on Form 10-QSB for the quarter ended March 31, 2002, as filed with the Commission on May 7, 2002; (e) Current Report on Form 8-K, as filed with the Commission on July 16, 2002; (f) Current Report on Form 8-K, as filed with the Commission on July 2, 2002; (g) Current Report on Form 8-K, as filed with the Commission on April 30, 2002; (h) Current Report on Form 8-K, as filed with the Commission on April 4, 2002; (i) Current Report on Form 8-K, as filed with the Commission on January 30, 2002; (j) Current Report on Form 8-K, as filed with the Commission on October 16, 2001; (k) Definitive Proxy Statement on Schedule 14A, as filed with the Commission on October 15, 2001; and (l) The description of the Company's Common Stock included in the Registrant's Registration Statement on Form S-1 (No. 33-43929). 1 All documents subsequently filed by the Company pursuant to Section 13(a), Section 13(c), Section 14 and Section 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated herein by reference and a part hereof from the date of filing of such documents. INFORMATION REGARDING FINANCIAL STATEMENTS INCROPORATED BY REFERENCE INTO THIS REGISTRATION STATEMENT Section 11(a) of the Securities Act of 1933 (the "Securities Act") provides that if any part of a registration statement at the time it becomes effective contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, any person acquiring a security pursuant to such registration statement (unless it is proved that at the time of such acquisition such person knew of such untruth or omission) may sue, among others, every accountant who has consented to be named as having prepared or certified any part of the registration statement, or as having prepared or certified any report or valuation which is used in connection with the registration statement, with respect to the statement in such registration statement, report or valuation which purports to have been prepared or certified by the accountant. The Company's financial statements included in the Company's annual report on Form 10-KSB for the year ended June 30, 2001, which are incorporated by reference in this Registration Statement, were audited by Arthur Andersen LLP ("Andersen"). On July 1, 2002, the Company dismissed Andersen as its independent accountants. This action was approved by the Company's Board of Directors and Audit Committee. The Company has been unable to obtain, after reasonable efforts, Andersen's written consent to incorporate by reference Andersen's reports on the financial statements. Under these circumstances, Rule 437a under the Securities Act permits this Registration Statement to be filed without a written consent from Andersen. Because of the absence of such written consent from Andersen, a person acquiring shares pursuant to this Registration Statement will not be able to assert claims against Andersen under Section 11(a) of the Securities Act of 1933 for any untrue statement of a material fact contained in the financial statements audited by Andersen or any omissions to state a material fact required to be stated herein. ITEM 8. EXHIBITS. -------- EXHIBIT NUMBER TITLE OF EXHIBIT 4.2 Articles of Organization of the Registrant 5.1 Opinion of Ropes & Gray 23.1 Consent of Arthur Andersen LLP (omitted pursuant to Rule 437a under the Securities Act) 23.2 Consent of Ropes & Gray (contained in the opinion filed as Exhibit 5 to this Registration Statement) 24 Power of Attorney (included on Signature Page) [Remainder of this page intentionally left blank.] 2 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 Town of Gardner, Massachusetts on this 1st day of August, 2002. PRECISION OPTICS CORPORATION, INC. By: /s/ RICHARD E. FORKEY ------------------------------------- Richard E. Forkey Chairman, Chief Executive Officer and President POWER OF ATTORNEY We, the undersigned officers and directors of Precision Optics Corporation, Inc., hereby severally constitute and appoint Richard E. Forkey and Jack P. Dreimiller and each of them singly, as true and lawful attorneys, with full power to them and each of them singly, to sign for us in our names in the capacities indicated below, any and all amendments (including any post-effective amendments) to this Registration Statement and to file the same, with exhibits thereto and other documents in connection therewith, and generally to do all things in our names and on our behalf in such capacities to enable Precision Optics Corporation, Inc. to comply with the provisions of the Securities Act of 1993, as amended, and all applicable requirements of the Securities and Exchange Commission, and hereby ratify and confirm our signatures as may be signed by said attorneys, or either of them, to any and all such amendments. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE CAPACITY DATE - --------- -------- ---- /s/ RICHARD E. FORKEY Chairman of the August 1, 2002 - -------------------------------------------- Board of Directors, Richard E. Forkey Chief Executive Officer and President (principal executive officer) /s/ JACK P. DREIMILLER Senior Vice President, August 1, 2002 - -------------------------------------------- Finance, Chief Financial Jack P. Dreimiller Officer and Clerk (principal financial and accounting officer) /s/ EDWARD A. BENJAMIN Director August 1, 2002 - -------------------------------------------- Edward A. Benjamin 3 /s/ H. ANGUS MACLEOD Director August 1, 2002 - -------------------------------------------- H. Angus Macleod /s/ AUSTIN W. MARXE Director August 1, 2002 - -------------------------------------------- Austin W. Marxe /s/ JOEL R. PITLOR Director August 1, 2002 - -------------------------------------------- Joel R. Pitlor /s/ ROBERT R. SHANNON Director August 1, 2002 - -------------------------------------------- Robert R. Shannon
4 EXHIBIT INDEX EXHIBIT NUMBER TITLE OF EXHIBIT 4.2 Articles of Organization of the Registrant 5.1 Opinion of Ropes & Gray 23.1 Consent of Arthur Andersen LLP (omitted pursuant to Rule 437a under the Securities Act) 23.2 Consent of Ropes & Gray (contained in the opinion filed as Exhibit 5 to this Registration Statement) 24 Power of Attorney (included on Signature Page) EX-4.2 3 a2085358zex-4_2.txt EXHIBIT 4.2 EXHIBIT 4.2 FEDERAL IDENTIFICATION NO. 04-2795294 THE COMMONWEALTH OF MASSACHUSETTS WILLIAM FRANCIS GALVIN SECRETARY OF THE COMMONWEALTH ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108-1512 CERTIFICATE OF CORRECTION (GENERAL LAWS, CHAPTER 156B, SECTION 6A) 1. Exact name of corporation: PRECISION OPTICS CORPORATION, INC. 2. Document to be corrected: ARTICLES OF AMENDMENT 3. The above mentioned document was filed with the Secretary of the Commonwealth on November 22, 1999. 4. Please state the inaccuracy or defect in said document: Said Articles of Amendment were filed on behalf of the corporation changing the number of authorized shares of common stock from 10,000,000 shares, no par value to 20,000,000 shares, no par value. The 20,000,000 shares of common stock should have a par value of $0.01. 5. Please state corrected version of the document: The corporation is authorized to issue 20,000,000 shares of common stock, with par value of $0.01. NOTE: THIS CORRECTION SHOULD BE SIGNED BY THE PERSON(S) REQUIRED BY LAW TO SIGN THE ORIGINAL DOCUMENT. SIGNED UNDER THE PENALTIES OF PERJURY, this 14th day of January, 2000. /s/ Richard Forkey, *President, - ------------------- /s/ Jack P. Dreimiller, *Clerk. - ----------------------- *DELETE THE INAPPLICABLE WORDS NOTE: IF THE INACCURACY OR DEFECTS TO BE CORRECTED IS NOT APPARENT ON THE FACE OF THE DOCUMENT, MINUTES OF THE MEETING SUBSTANTIATING THE ERROR MUST BE FILED WITH THE CERTIFICATE. ADDITIONAL INFORMATION MAY BE PROVIDED ON SEPARATE 8 1/2 X 11 SHEETS OF WHITE PAPER WITH A LEFT MARGIN OF AT LEAST 1 INCH. FEDERAL IDENTIFICATION NO. 04-2795294 THE COMMONWEALTH OF MASSACHUSETTS WILLIAM FRANCIS GALVIN Secretary of the Commonwealth One Ashburton Place, Boston, Massachusetts 02108-1512 ARTICLES OF AMENDMENT (GENERAL LAWS, CHAPTER 156B, SECTION 72) We, RICHARD E. FORKEY, PRESIDENT ---------------------------------------------------------------------------- and JACK P. DREIMILLER ---------------------------------------------------------------------------- of PRECISION OPTICS CORPORATION, INC. ----------------------------------------------------------------------------- located at 22 EAST BROADWAY, GARDNER, MASSACHUSETTS 01440 --------------------------------------------------------------------- certify that these Articles of Amendment affecting articles numbered: III ---------- of the Articles of Organization were duly adopted at a meeting held on NOVEMBER 9, 1999, by vote of: 7,205,181 shares of COMMON of 7,687,595 shares outstanding, being at least two-thirds of each type, class or series outstanding and entitled to vote thereon and of each type, class or series of stock whose rights are adversely affected thereby. To CHANGE the number of shares and the par value (if any) of any type, class or series of stock which the corporation is authorized to issue, fill in the following: The total PRESENTLY authorized is:
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE Common: 10,000,000 Common: Preferred: Preferred:
CHANGE the total authorized to:
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE Common: 20,000,000 Common: Preferred: Preferred:
The foregoing amendment(s) will become effective when these Articles of Amendment are filed in accordance with General Laws, Chapter 156B, Section 6 unless these articles specify, in accordance with the vote adopting the amendment, a LATER effective date not more than THIRTY DAYS after such filing, in which event the amendment will become effective on such later date. Later effective date: ------------------------ SIGNED UNDER THE PENALTIES OF PERJURY, this 16TH day of NOVEMBER, 1999 -------------- /s/ RICHARD E. FORKEY , President - --------------------------------------------------------------------- /s/ JACK P. DREIMILLER , Clerk - --------------------------------------------------------------------- FORM CD-72-30M-4/86-808881 THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE MICHAEL JOSEPH CONNOLLY, Secretary ONE ASHBURTON PLACE, BOSTON, MASS. 02108 FEDERAL IDENTIFICATION NO. 04-2795294 ARTICLES OF AMENDMENT General Laws, Chapter 156B, Section 72 This certificate must be submitted to the Secretary of the Commonwealth within sixty days after the date of the vote of stockholders adopting the amendment. The fee for filing this certificate is prescribed by General Laws, Chapter 156B, Section 114. Make check payable to the Commonwealth of Massachusetts. I, Richard Forkey, President and Clerk of PRECISION OPTICS CORPORATION, INC. - -------------------------------------------------------------------------------- located at 22 EAST BROADWAY, GARDNER, MA ---------------------------------------------------------------------- do hereby certify that the following amendment to the articles of organization of the corporation was duly adopted by unanimous written consent of the stockholders dated June 21, 1990. TO CHANGE the number of shares and the par value, if any, of each class of stock within the corporation fill in the following: The total presently authorized is:
NO PAR VALUE WITH PAR VALUE PAR KIND OF STOCK NUMBER OF SHARES NUMBER OF SHARES VALUE COMMON 200,000 $.01 PREFERRED
CHANGE the total to:
NO PAR VALUE WITH PAR VALUE PAR KIND OF STOCK NUMBER OF SHARES NUMBER OF SHARES VALUE COMMON 10,000,000 $.01 PREFERRED
VOTED: That the Articles of Organization of the Corporation be and hereby are amended as follows: (a) under Article 2, to add to the Corporation's purposes the following business activities: "To carry on any manufacturing, mercantile, selling, management, service, or other business, operation, or activity which may be lawfully carried on by a corporation organized under the Business Corporation Law of The Commonwealth of Massachusetts, whether or not related to those referred to in the foregoing paragraph"; (b) under Article 3, to change the 200,000 shares of Common Stock, par value $0.01 per share, currently authorized, of which 100,000 shares are outstanding, into 4,300,000 shares of Common Stock, par value $0.01 per share, of which 2,150,000 shall be outstanding, and to increase the number of shares of Common Stock, par value $0.01 per share, that the Corporation is authorized to issue to 10,000,000 shares; (c) under Article 5, to delete in their entirety the restrictions imposed upon the transfer of shares of stock of any class of stock under Article 5 of the Articles of Organization; and (d) under Article 6, to add to the Corporation's other lawful provisions the provisions enumerated in Exhibit B to this Consent; (Exhibit B Attached) The foregoing amendment will become effective when these articles of amendment are filed in accordance with Chapter 156B, Section 6 of The General Laws unless these articles specify, in accordance with the vote adopting the amendment, a later effective date not more than thirty days after such filing, in which event the amendment will become effective on such later date. IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our names this 25th day of June, in the year 1990. /s/ RICHARD E. FORKEY , President - --------------------------------------------------------------------- /s/ EDWARD BENJAMIN , Clerk - --------------------------------------------------------------------- EXHIBIT B 6.1. The corporation may carry on any business, operation, or activity referred to in Article 2 to the same extent as might an individual, whether as principal, agent, contractor or otherwise, and either alone or in conjunction with or in a joint venture or other arrangement with any corporation, association, trust, firm, or individual. 6.2. The corporation may carry on any business, operation or activity through a wholly or partly owned subsidiary. 6.3. The corporation may be a partner in any business enterprise which it would have power to conduct by itself. 6.4. The directors may make, amend, or repeal the by-laws in whole or in part, except with respect to any provision thereof which by law or the by-laws requires action by the stockholders. 6.5. Meetings of the stockholders may be held anywhere in the United States. 6.6. Except as otherwise provided by law, no stockholder shall have any right to examine any property or any books, accounts, or other writings of the corporation if there is reasonable ground for belief that such examination will for any reason be adverse to the interests of the corporation, and a vote of the directors refusing permission to make such examination and setting forth that in the opinion of the directors such examination would be adverse to the interests of the corporation shall be prima facie evidence that such examination would be adverse to the interests of the corporation. Every such examination shall be subject to such reasonable regulations as the directors may establish in regard thereto. 6.7. The directors may specify the manner in which the accounts of the corporation shall be kept and may determine what constitutes net earnings, profits, and surplus, what amounts, if any, shall be reserved for any corporate purpose, and what amounts, if any, shall be declared as dividends. Unless the board of directors otherwise specifies, the excess of the consideration for any share of its capital stock with par value issued by it over such par value shall be surplus. The board of directors may allocate to capital stock less than all of the consideration for any share of its capital stock without par value issued by it, in which case the balance of such consideration shall be surplus. All surplus shall be available for any corporate purpose, including the payment of dividends. 6.8. The purchase or other acquisition or retention by the corporation of shares of its own capital stock shall not be deemed a reduction of its capital stock. Upon any reduction of capital or capital stock, no stockholder shall have any right to demand any distribution from the corporation, except as and to the extent that the stockholders shall have provided at the time of authorizing such reduction. 6.9. The directors shall have the power to fix from time to time their compensation. No person shall be disqualified from holding any office by reason of any interest. In the absence of fraud, any director, officer, or stockholder of this corporation individually, or any individual having any interest in any concerning which is a stockholder of this corporation, or any concern in which any of such directors, officers, stockholders, or individuals has any interest, may be a party to, or may be pecuniarily or otherwise interested in, any contract, transaction, or other act of the corporation, and (1) such contract, transaction, or act shall not be in any way invalidated or otherwise affected by that fact; (2) no such director, officer, stockholder, or individual shall be liable to account to the corporation for any profit or benefit realized through any such contract, transaction, or act; and (3) any such director of the corporation may be counted in determining the existence the existence of a quorum at any meeting of the directors or of any committee thereof which shall authorize any such contract, transaction, or act, and may vote to authorize the same; provided, however, that any contract, transaction, or act in which any director or officer of the corporation is so interested individually or as a director, officer, trustee, or member of any concern which is not a subsidiary or affiliate of the corporation, or in which any directors or officers are so interested as holders, collectively, of a majority of shares of capital stock or other beneficial interest at the time outstanding in any concern which is not a subsidiary or affiliate of the corporation, shall be duly authorized or ratified by a majority of the directors who are not so interested, to whom the nature of such interest has been disclosed and who have made any findings required by law; the term "interest" including personal interest and interest as a director, officer, stockholder, shareholder, trustee, member, or beneficiary of any concern; the term "concern" meaning any corporation, association, trust, partnership, firm, person, or other entity other than the corporation; and the phrase "subsidiary or affiliate" meaning a concern in which a majority of the directors, trustees, partners, or controlling persons is elected or appointed by the directors of the corporation, or is constituted of the directors or officers of the corporation. To the extent permitted by law, the authorizing or ratifying vote of the holders of shares representing a majority of the votes of the capital stock of the corporation outstanding and entitled to vote for the election of directors at any annual meeting or a special meeting duly called for the purpose (whether such vote is passed before or after judgment rendered in a suit with respect to such contract, transaction, or act) shall validate any contract, transaction, or act of the corporation, or of the board of directors or any committee thereof, with regard to all stockholders of the corporation, whether or not of record at the time of such vote, and with regard to all creditors and other claimants under the corporation; provided, however, that A. with respect to the authorization or ratification of contracts, transactions, or acts in which any of the directors, officers, or stockholders of the corporation have an interest, the nature of such contracts, transactions, or acts and the interest of any director, officer, or stockholder therein shall be summarized in the notice of any such annual or special meeting, or in a statement or letter accompanying such notice, and shall be fully disclosed at any such meeting; B. the stockholders so voting shall have made any findings required by law; C. the stockholders so interested may vote at any such meeting except to the extent otherwise provided by law; and D. any failure of the stockholders to authorize or ratify such contract, transaction, or act shall not be deemed in any way to invalidate the same or to deprive the corporation, its directors, officers or employees of its or their right to proceed with or enforce such contract, transaction, or act. If the corporation has more than one class or series of capital stock outstanding, the vote required by this paragraph shall be governed by the provisions of the Articles of Organization applicable to such classes or series. No contract, transaction, or act shall be avoided by reason of any provision of this paragraph 6.9 which would be valid but for such provision or provisions. 6.10. A director of the corporation shall not be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that exculpation from liability is not permitted under the Massachusetts Business Corporation Law as in effect at the time such liability is determined. No amendment or repeal of this paragraph 6.10 shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. 6.11. The corporation shall have all powers granted to corporations by the laws of The Commonwealth of Massachusetts, provided that no such power shall include any activity inconsistent with the Business Corporation Law or the general laws of said Commonwealth THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE MICHAEL JOSEPH CONNOLLY, Secretary ONE ASHBURTON PLACE, BOSTON, MASS. 02108 FEDERAL IDENTIFICATION NO. 04-2795294 ARTICLES OF AMENDMENT General Laws, Chapter 156B, Section 72 This certificate must be submitted to the Secretary of the Commonwealth within sixty days after the date of the vote of stockholders adopting the amendment. The fee for filing this certificate is prescribed by General Laws, Chapter 156B, Section 114. Make check payable to the Commonwealth of Massachusetts. We, Richard E. Forkey, President and Richard E. Forkey, Clerk of PRECISION OPTICS CORPORATION, INC. - -------------------------------------------------------------------------------- located at 22 EAST BROADWAY, GARDNER, MA 01440 --------------------------------------------------------------------- do hereby certify that the following amendment to the articles of organization of the corporation was duly adopted by unanimous written consent on May 25, 1989, by vote of 100 shares of COMMON STOCK out of 100 shares outstanding, being at least a majority of each class outstanding and entitled to vote therein. TO CHANGE the number of shares and the par value, if any, of each class of stock within the corporation fill in the following: The total presently authorized is:
NO PAR VALUE WITH PAR VALUE PAR KIND OF STOCK NUMBER OF SHARES NUMBER OF SHARES VALUE COMMON 100 PREFERRED
CHANGE the total to:
NO PAR VALUE WITH PAR VALUE PAR KIND OF STOCK NUMBER OF SHARES NUMBER OF SHARES VALUE COMMON 200,000 $0.01 PREFERRED
VOTED: That the Articles of Organization of the Corporation be and hereby are amended to change the 100 shares of Common Stock, no par value per share, currently authorized, of which 100 shares are outstanding, into 100,000 shares of Common Stock, $0.01 per share, of which 100,000 shares shall be outstanding, and to increase the number of shares of Common Stock, par value $0.01 per share, that the Corporation is authorized to issue to 200,000 shares. The foregoing amendment will become effective when these articles of amendment are filed in accordance with Chapter 156B, Section 6 of The General Laws unless these articles specify, in accordance with the vote adopting the amendment, a later effective date not more than thirty days after such filing, in which event the amendment will become effective on such later date. IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, WE HAVE HERETO SIGNED OUR NAMES THIS 26th day of May, in the year 1989. /s/ RICHARD E. FORKEY , President - --------------------------------------------------------------------- /s/ RICHARD E. FORKEY , Clerk - --------------------------------------------------------------------- THE COMMONWEALTH OF MASSACHUSETTS MICHAEL JOSEPH CONNOLLY SECRETARY OF THE COMMONWEALTH STATE HOUSE BOSTON, MASS. 02133 ARTICLES OF ORGANIZATION (UNDER G.L. CH. 156B) INCORPORATORS NAME POST OFFICE ADDRESS INCLUDE GIVEN NAME IN FULL IN CASE OF NATURAL PERSONS, IN CASE OF A CORPORATION, GIVE STATE OF INCORPORATION. Richard Forkey 125 East Road, Westminster, MA 01473 The above-named incorporator(s) do hereby associate (themselves) with the intention of forming a corporation under the provisions of General Laws, Chapter 156B and hereby state(s): 1. The name by which the corporation shall be known is: PRECISION OPTICS CORPORATION, INC. 2. The purposes for which the corporation is formed are as follows: Precision Optics Corporation, Inc. has been formed to provide a variety of services and products to the United States Government, various specialized industrial customers as well as individual consumers. These goods and services include, but are not limited to, the provision of engineering, technical, marketing and management consultation in optical intensive and multi-disciplined fields of technology; the design, development and production of optical systems and specialized components of both conventional and unconventional optical materials; the development, production and marketing of optical, laser-related and other technology oriented instrumentation for measurement, process control and robotic application in both industrial and consumer markets. 3. The total number of shares and the par value, if any, of each class of stock which the corporation is authorized is as follows:
NO PAR VALUE WITH PAR VALUE CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR AMOUNT VALUE PREFERRED $ COMMON 100
*4. If more than one class is authorized, a description of each of the different classes of stock with, if any, the preferences, voting powers, qualifications, special rights or privileges as to each class thereof and any series now established: *5. The restrictions, if any, imposed by the Articles of Organization upon the transfer of shares of stock of any class are as follows: In the event that any of the stockholders or legal representatives desire to sell their stock, they shall offer the stock to the corporation for sale at least thirty days prior to the actual sale to another party. In the event that the corporation does not buy the stock within that period of time, the stockholder will be free to sell the stock to any person. *6. Other lawful provisions, if any, for the conduct and regulation of the business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining, or regulating the powers of the corporation, or of its directors, or stockholders or of any class of stockholders. *If there are no provisions, state None. 7. By-laws of the corporation have been duly adopted and the initial directors, president, treasurer and clerk whose names are set out below have been duly elected. 8. The effective date of organization of the corporation shall be the date of filing with the Secretary of the Commonwealth or if later date is desired, specify date, (not more than 30 days after date of filing). 9. The following information shall not for any purpose be treated as a permanent part of the Articles of Organization of the corporation. a. THE POST OFFICE ADDRESS of the INITIAL PRINCIPAL OFFICE of the corporation in Massachusetts: 125 East Road, Westminster, MA 01473 b. The name, residence and post office address of each of the initial directors and following officers of the corporation are as follows:
NAME RESIDENCE POST OFFICE ADDRESS PRESIDENT: RICHARD FORKEY 125 EAST ROAD, WESTMINSTER, MA 01473 - -------------------------------------------------------------------------------- TREASURER: RICHARD FORKEY 125 EAST ROAD, WESTMINSTER, MA 01473 - -------------------------------------------------------------------------------- CLERK: EDWARD J. MOLONEY 174 CENTRAL ST., LOWELL, MA 01852 - --------------------------------------------------------------------------------
Directors: Richard Forkey 125 East Rd., Westminster, MA 01473 c. The date initially adopted on which the corporation's fiscal year ends is: June 30 d. The date initially fixed in the by-laws for the annual meeting of stockholders of the corporation is: 15th of July e. The name and business address of the resident agent, if any of the corporation is: IN WITNESS WHEREOF and under the penalties of perjury the above named INCORPORATOR(S) sign(s) these Articles of Organization the 27 day of December 1982. /s/ Richard Forkey ------------------------------------------ Richard Forkey The signature of each incorporator which is not a natural person must be by an individual who shall show the capacity in which he acts and by signing shall represent under the penalties of perjury that he is duly authorized on his behalf to sign the Articles of Organization. EX-5.1 4 a2085358zex-5_1.txt EXHIBIT 5.1 EXHIBIT 5.1 ROPES & GRAY ONE INTERNATIONAL PLACE BOSTON, MASSACHUSETTS 02110-2624 (617) 951-7000 FAX: (617) 951-7050 August 1, 2002 Precision Optics Corporation, Inc. 22 East Broadway Street Gardner, Massachusetts 01440 Ladies and Gentlemen: This opinion is furnished to you in connection with a Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended, for the registration of 675,000 shares of Common Stock, $0.01 par value per share (the "Shares"), of Precision Optics Corporation, Inc., a Massachusetts corporation (the "Company"), issuable pursuant to awards granted under the Company's 1997 Incentive Plan (the "Plan"). We have acted as counsel to the Company in connection with the preparation of the Registration Statement and the Plan and the issuance of awards under the Plan. For purposes of this opinion we have examined and relied upon such documents, records, certificates and other instruments as we have deemed necessary and appropriate. Based upon the foregoing, we are of the opinion that the Shares have been duly authorized and, when the Shares have been issued and sold, and the consideration therefor has been received by the Company, in accordance with the terms of the Plan, such Shares will be validly issued, fully paid and nonassessable. We hereby consent to your filing this opinion as an exhibit to the Registration Statement. It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect. Very truly yours, /s/ Ropes & Gray Ropes & Gray -----END PRIVACY-ENHANCED MESSAGE-----