-----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, DnkMMbihkrlrYoUyN+PEz9Cw2M8GQ2UzYMnITnYlM9d+T0+zY/a9xdRDpWyRZfT4 orl/qAaJUdZ3Fxvp8HtMYg== 0000950147-99-001461.txt : 19991222 0000950147-99-001461.hdr.sgml : 19991222 ACCESSION NUMBER: 0000950147-99-001461 CONFORMED SUBMISSION TYPE: S-3MEF PUBLIC DOCUMENT COUNT: 3 333-47905 FILED AS OF DATE: 19991221 EFFECTIVENESS DATE: 19991221 FILER: COMPANY DATA: COMPANY CONFORMED NAME: LIGHTPATH TECHNOLOGIES INC CENTRAL INDEX KEY: 0000889971 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 860708398 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-3MEF SEC ACT: SEC FILE NUMBER: 333-93179 FILM NUMBER: 99778002 BUSINESS ADDRESS: STREET 1: 6820 ACADEMY PKWY E N E STREET 2: STE 103 CITY: ALBUQUERQUE STATE: NM ZIP: 87109 BUSINESS PHONE: 5053421100 S-3MEF 1 S-3 OF LIGHTPATH TECHNOLOGIES, INC. As filed with the Securities and Exchange Commission on December 21, 1999 Registration No.333-____________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ---------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 LIGHTPATH TECHNOLOGIES, INC. (Exact name of registrant as specified in its charter) DELAWARE 3674 86-0708398 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.) 6820 Academy Parkway East, N.E., Albuquerque, New Mexico 87109 (505) 342-1100 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) Donald Lawson Chief Executive Officer Lightpath Technologies, Inc. 6820 Academy Parkway East, N.E. Albuquerque, New Mexico 87109 (505) 342-1100 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copy to: Nina Lopez Gordian, Esq. Squire, Sanders & Dempsey L.L.P. 350 Park Avenue New York, New York 10022 Telephone: (212) 872-9800 Facsimile: (212) 872-9815 APPROXIMATE DATE OF PROPOSED SALE TO PUBLIC: As soon as practicable after the effective date of this Registration Statement. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462 (b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [X] 333-47905 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 the delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] __________ CALCULATION OF REGISTRATION FEE ================================================================================ Proposed Maximum Proposed Amount of Title of Securities Amount to be Aggregate Price Offering Registration to be Registered Registered Per Unit * Price Fee - -------------------------------------------------------------------------------- Class A Common Stock, $.01 par value per share 240,000(1) $8.56 $2,054,400 $542.36 - -------------------------------------------------------------------------------- * Estimated solely for the purpose of calculating the registration fee required by Section 6(b) of the Securities Act of 1933, as amended, pursuant to Rules 457 (c) under the Securities Act, on the basis of the average of the bid and asked prices for shares of Common Stock as reported by the Nasdaq SmallCap Market on December 3, 1999. (1) Represents estimated maximum number of shares issuable upon conversion of outstanding Class G and H Warrants. 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 THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. ================================================================================ INCORPORATION OF CERTAIN INFORMATION BY REFERENCE This registration statement is being filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended. The contents of the Registration Statement on Form S-3 (Reg. No. 333-47905) filed by LightPath Technologies, Inc. (the "Company") with the Securities Exchange Commission, including the exhibits thereto and all documents incorporated therein by reference, are incorporated herein by reference. EXPERTS Our financial statements as of June 30, 1999 and 1998, and for the years then ended, have been incorporated by reference in this Prospectus in reliance upon the report of KPMG LLP, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The report of KPMG LLP covering the June 30, 1999, financial statements contains an explanatory paragraph that states that the Company's recurring losses from operations and resulting continued dependence on external sources of capital raise substantial doubt about the Company's ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of that uncertainty. PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 16. EXHIBITS All exhibits filed with or incorporated by reference in Registration Statement No. 333-47905 are incorporated by reference into, and shall be deemed part of, this registration statement, except the following exhibits which are filed herewith: Exhibit No. Description ----------- ----------- 4.1 Agreement to Amend Warrants, dated as of November 2, 1999, among LightPath Technologies, Inc. and the holders named therein (1) 4.2 First Amendment to Class G Warrants, dated as of November 2, 1999 (1) 5 Opinion of Squire, Sanders & Dempsey L.L.P. 23.1 Consent of KPMG LLP 23.2 Consent of Squire, Sanders & Dempsey L.L.P. (included in Exhibit 5) - ---------- (1) This exhibit modifies the Form of Class G Warrant previously filed as Exhibit 4.7 to the Registrant's registration statement on Form S-3 (File No. 333-47905) and incorporated herein by reference. SIGNATURES In accordance with the requirement 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 duly authorized this Registration Statement to be signed on its behalf by the undersigned, in the City of Albuquerque and State of New Mexico on December 20, 1999. LIGHTPATH TECHNOLOGIES, INC., a Delaware corporation By: /s/ Donald E. Lawson ------------------------------------- Donald E. Lawson Chief Executive Officer In accordance with the requirement of the Securities Act of 1933, this Registration Statement was signed below by the following persons in the capacities and on the dates stated. Signature Title Date --------- ----- ---- /s/ Donald E. Lawson CEO, President and Treasurer December 20, 1999 - -------------------------- (Principal Executive, Financial Donald E. Lawson and Accounting Officer) /s/ Robert Ripp Chairman of the Board December 20, 1999 - -------------------------- Robert Ripp /s/ Leslie A. Danziger Director December 20, 1999 - -------------------------- Leslie A. Danziger /s/ James A. Adler, Jr. Director December 20, 1999 - -------------------------- James A. Adler, Jr. /s/ Louis Leeburg Director December 20, 1999 - -------------------------- Louis Leeburg /s/ Katherine Dietze Director December 20, 1999 - -------------------------- Katherine Dietze /s/ James A. Wimbush Director December 20, 1999 - -------------------------- James A. Wimbush EX-5 2 OPINION & CONSENT OF SQUIRE, SANDERS & DEMPSEY [SQUIRE, SANDERS & DEMPSEY L.L.P. LETTERHEAD] December 10, 1999 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 RE: LIGHTPATH TECHNOLOGIES, INC. - FORM S-3 REGISTRATION STATEMENT Ladies and Gentlemen: We have acted as counsel to LightPath Technologies, Inc., a Delaware corporation (the "Company"), in connection with its Registration Statement on Form S-3 (the "Registration Statement") filed under the Securities Act of 1933, as amended, pursuant to Rule 462(b) promulgated thereunder relating to the registration of 240,000 shares (the "Shares"), of its Class A Common Stock, $.01 par value (the "Common Stock"), underlying the Company's outstanding Class G and H Warrants (collectively, the "Warrants"). In this capacity, we have examined resolutions adopted by the Company's Board of Directors authorizing the issuance and sale of the Shares, the Certificate of Incorporation, as amended, and Bylaws, as amended, of the Company. We have further examined such documents, corporate records and other instruments as we have deemed necessary or appropriate for purposes of this opinion, including certificates of public officials and officers of the Company. For purposes of our opinion, we have assumed the availability of a number of authorized and unissued shares of the Company's Common Stock required to be issued upon the exercise of the Class G and H Warrants. We have further assumed that as of the date of each exercise, the Company continues to exist and is in good standing under the laws of its state of incorporation. Our opinion is based solely upon the General Corporation Law of the State of Delaware. Based upon the foregoing, we are of the opinion that, upon receipt by the Company of the consideration provided for upon exercise of the Class G and H Warrants and compliance with the respective terms of such warrants, the Shares, when issued and sold will be validly issued, fully paid and nonassessable. We acknowledge that we are referred to under the heading "Legal Matters" and "Interests of Named Experts and Counsel" in the prospectus incorporated by reference into the Registration Statement and we hereby consent to the use of our name in such Registration Statement. We further consent to the filing of this opinion as an exhibit to the Registration Statement and with any state regulatory agencies in such states as may require such filing in connection with the registration of the Shares for offer and sale in such states. Respectfully submitted, /s/ Squire, Sanders & Dempsey L.L.P. EX-23.1 3 CONSENT OF KPMG LLP EXHIBIT 23.1 CONSENT OF KPMG LLP, INDEPENDENT AUDITORS The Board of Directors LightPath Technologies, Inc. We consent to the use of our report incorporated herein by reference, and to the reference to our firm under the heading "EXPERTS" in the prospectus. Our report dated August 10, 1999, except for Note 5 which is as of December 14, 1999, contains an explanatory paragraph that states that the Company has suffered recurring losses from operations and is dependent on external sources of capital, which raise substantial doubt about its ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of that uncertainty. /s/ KPMG LLP Albuquerque, New Mexico December 20, 1999 -----END PRIVACY-ENHANCED MESSAGE-----