Lightpath Technologies Inc S-3, filed May 2, 2025
Lightpath Technologies Inc (LPTH)
As filed with the Securities and Exchange Commission on May 2, 2025
Registration No. 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) |
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| Delaware |
| 86-0708398 |
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| (I.R.S. Employer Identification Number) |
2603 Challenger Tech Court, Suite 100
Orlando, Florida 32826
(407) 382-4003
(Address, including zip code, and telephone number, including area code, of 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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Copy to:
Jeffrey E. Decker, Esq.
Suzanne Hanselman, Esq.
Baker & Hostetler LLP
200 South Orange Avenue
Orlando, Florida 32801
(407) 649-4000
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Approximate date of commencement of proposed sale to the public: From time to time 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, other than securities offered only in connection with dividend or interest reinvestment plans, 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 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 462(e) under the Securities Act, check the following box. ☐
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. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ |
| Non-accelerated filer | ☒ | Smaller reporting company | ☒ |
| Emerging growth company | ☐ |
If an emerging growth company, 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 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 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 Commission, acting pursuant to said Section 8(a), may determine.
The information in this preliminary prospectus is not complete and may be changed. The selling stockholders named in this prospectus may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and the selling stockholders named in this prospectus are not soliciting offers to buy these securities in any state or other jurisdiction where the offer or sale is not permitted.
Subject to completion, dated May 2, 2025
PROSPECTUS
21,193,380 SHARES
Class A Common Stock
This prospectus relates to the resale from time to time of up to an aggregate of 21,193,380 shares of Class A common stock, par value $0.01 per share (the “Class A Common Stock”), of LightPath Technologies, Inc., a Delaware corporation (the “Company”), which consists of (i) 15,982,159 shares of Class A Common Stock issuable upon the conversion of 24,955.903272 shares of Series G Convertible Preferred Stock, par value $0.01 per share (the “Preferred Shares,” and the shares of Class A Common Stock issuable upon conversion of the Preferred Shares, the “Conversion Shares”), (ii) 4,352,774 shares of Class A Common Stock issuable upon the exercise of warrants (the “Warrants,” and the shares of Class A Common Stock issuable upon exercise of the Warrants, the “Warrant Shares”), (iii) 687,750 shares of Class A Common Stock (the “LKF Common Shares”) and (iv) 170,697 shares of Class A Common Stock issuable upon the exercise of warrants (the “LKF Warrants,” and the shares of Class A Common Stock issuable upon exercise of the LKF Warrants, the “LKF Warrant Shares”) by the selling stockholders listed on page 15 of this prospectus, including their donees, pledgees, transferees or other successors-in-interest, issued to the selling stockholders in connection with our private placement in February 2025 and to fund our concurrent acquisition of all of the authorized, issued and outstanding membership interests in G5 Infrared, LLC (“G5 Infrared”) by the Company (the “Acquisition”). The Conversion Shares, the Warrant Shares, the LKF Common Shares and the LKF Warrant Shares are collectively referred to as the “Shares.” We are registering the Shares on behalf of the selling stockholders, to be offered and sold by them from time to time. We will not receive any proceeds from the sale of the Shares offered by this prospectus.
We have agreed to bear all of the expenses incurred in connection with the registration of the Shares. The selling stockholders will pay or assume discounts, commissions, fees of underwriters, selling brokers or dealer managers and similar expenses, if any, incurred for the sale of the Shares of our Class A Common Stock.
The selling stockholders identified in this prospectus, or their respective donees, pledgees, transferees or other successors-in-interest, may offer the Shares from time to time on terms to be determined at the time of sale through ordinary brokerage transactions or through any other means described in this prospectus under the caption “Plan of Distribution.” The Shares may be sold at fixed prices or at negotiated prices. For a list of the selling stockholders, see the section entitled “Selling Stockholders” on page 15 of this prospectus.
We may amend or supplement this prospectus from time to time by filing amendments or supplements as required. You should read the entire prospectus and any amendments or supplements carefully before you make your investment decision.
Our Class A Common Stock is listed on The Nasdaq Capital Market under the symbol “LPTH.” On May 1, 2025, the closing sale price of our Class A Common Stock on the Nasdaq Capital Market was $2.34 per share. You are urged to obtain current market quotations for our Class A Common Stock.
We are a “smaller reporting company” under applicable Securities and Exchange Commission rules and, as such, have elected to comply with certain reduced public company disclosure requirements for this prospectus and future filings.
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Investing in our Class A Common Stock involves significant risks. See “Risk Factors” beginning on page 7 of this prospectus and in the documents incorporated by reference in this prospectus for a discussion of the factors you should carefully consider before deciding to purchase our Class A Common Stock.
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Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2025.
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| Table of Contents |
This prospectus is part of a registration statement on Form S-3 that we filed with the SEC using the “shelf” registration process. Under this prospectus, the selling stockholders may, from time to time, sell up to 21,193,380 shares of our Class A Common Stock as described in this prospectus. We are not selling any shares of Class A Common Stock under this prospectus and will not receive any proceeds from the sale of the Shares of Class A Common Stock by the selling stockholders. You should not assume that the information contained in this prospectus is accurate on any date subsequent to the date set forth on the front cover of this prospectus or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus is delivered or securities are sold or otherwise disposed of on a later date. It is important for you to read and consider all information contained in this prospectus, including information incorporated by reference herein, in making your investment decision. You should also read and consider the information in the documents to which we have referred you under the captions “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference” in this prospectus.
You should rely only on the information contained in or incorporated by reference in this prospectus. Neither we nor the selling stockholders have authorized anyone to provide you with different or additional information. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities described in this prospectus or an offer to sell or the solicitation of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. Persons who come into possession of this prospectus in jurisdictions outside the United States are required to inform themselves about, and to observe, any restrictions as to the offering and the distribution of this prospectus applicable to those jurisdictions. You should assume that the information appearing in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of any sale of Class A Common Stock. Our business, financial condition, results of operations and prospects may have changed materially since such date.
Unless the context otherwise indicates, references in this prospectus to the “Company,” “LightPath,” “we,” “our” and “us” refer, collectively, to LightPath Technologies, Inc., a Delaware corporation, and its consolidated subsidiaries.
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This summary highlights selected information contained elsewhere in this prospectus and in the documents we incorporate by reference. This summary does not contain all of the information you should consider before making an investment decision. You should read this entire prospectus carefully, especially the risks of investing in our Class A Common Stock discussed under “Risk Factors” beginning on page 7 of this prospectus, along with our consolidated financial statements and notes to those consolidated financial statements and the other information incorporated by reference in this prospectus.
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 four direct wholly owned subsidiaries. In November 2005, we formed LightPath Optical Instrumentation (Shanghai) Co., Ltd (“LPOI”), a wholly owned subsidiary, located in Jiading, People’s Republic of China, which was primarily engaged in sales and support functions. In December 2013, we formed LightPath Optical Instrumentation (Zhenjiang) Co., Ltd. (“LPOIZ”), a wholly owned subsidiary 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 manufacturing facility in China and provides a lower cost structure for production of larger volumes of optical components and assemblies. Effective February 28, 2023, the legal entities of LPOI and LPOIZ were merged, with LPOIZ as the surviving company and the operations of the two companies were merged.
In December 2016, we acquired ISP Optics Corporation (“ISP”), and 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”). 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. ISP’s manufacturing operation is located at our corporate headquarters facility in Orlando, Florida (the “Orlando Facility”). 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 (the “Riga Facility”).
In July 2023, we acquired Liebert Consulting, LLC, dba Visimid Technologies (“Visimid”), an engineering and design firm, specializing in thermal imaging, night vision and internet of things (“IOT”) applications. Visimid provides design and consulting services for U.S. Department of Defense (“DoD”) contractors, commercial and industrial customers, and original equipment manufacturers (“OEMs”) for original new products. Visimid’s core competency is developing and producing custom thermal and night vision cores. Visimid’s facility is located in Plano, Texas.
In February 2025, as further described below, we acquired G5 Infrared, LLC (“G5 Infrared”), a vertically integrated manufacturer of high-performance infrared camera systems and imaging products, specializing in advanced thermal imaging technology. G5 Infrared provides long-range detection products, focusing on defense, border security, and CUAS/Counter-Drone markets. G5 Infrared operates from a manufacturing facility in Hudson, NH.
Our Product Groups
Our infrared components product group is comprised of both molded and turned infrared lenses and assemblies using a variety of infrared glass materials, as well as infrared coating services. This product group also includes both conventional and computer numerical control (“CNC”) ground and polished lenses. Advances in chalcogenide materials have enabled compression molding for mid-wave (“MWIR”) and long-wave (“LWIR”) optics in a process similar to precision molded lenses. Our molded infrared optics technology enables high performance, cost-effective infrared aspheric lenses that do not rely on traditional diamond turning or lengthy polishing methods. Utilizing precision molded aspheric optics significantly reduces the number of lenses required for typical thermal imaging systems and the cost to manufacture these lenses. Molding is an excellent alternative to traditional lens processing methods particularly where volume and repeatability is required. |
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| Our visible components product group consists of visible precision molded optics with varying applications. Aspheric lenses are known for their optimal performance. Aspheric lenses simplify and shrink optical systems by replacing several conventional lenses. However, aspheric lenses can be difficult and costly to machine. Our glass molding technology enables the production of both low and high volumes of aspheric optics, while still maintaining the highest quality at an affordable price. Molding is the most consistent and economical way to produce aspheres and we have perfected this method to offer the most precise molded aspheric lenses available.
Between these two component product groups, we have the capability to manufacture lenses from very small (with diameters of a sub-millimeter) to over 300 millimeters, and with focal lengths from approximately 0.4 millimeters to over 2,000 millimeters. In addition, both product groups offer both catalog and custom designed optics.
Our assemblies and modules product group is comprised of our optical assemblies and cameras, as well as other value-added products, including both infrared and visible components, such as mounted lenses, optical assemblies, collimator assemblies, and other custom specialty optics. Collimator assemblies are utilized in applications involving light detection and ranging (“LIDAR”) technology for advanced driver assistance systems and autonomous vehicles, such as forklifts and other automated warehouse equipment. This continues to be an emerging market with long-term growth potential for us. We also expect growth from defense and industrial applications, medical programs and commercial optical sub-assemblies. We design, build, and sell optical assemblies and cameras in markets for test and measurement, medical devices, military, industrial, and communications based on our proprietary technologies.
Our engineering services product group represents services we provide pursuant to product development agreements that we enter into with customers. Typically, customers approach us and request that we develop new products or applications utilizing our existing products to fit their particular needs or specifications. The purpose of those engineering services that we offer is not only to provide purely engineering services for a customer, but also to engineer new products which we later manufacture for the customer. The timing and extent of any such product development requests are outside of our control, and the related revenue is recognized upon satisfaction of the performance obligation, and transfer of control of the agreed-upon deliverable. As we continue a strategic shift into highly engineered solutions, we expect this product group to grow in a similar way as our assemblies and modules business. Furthermore, as the engineering effort precedes the product revenue, the revenue from this product group is often, but not always, a lead indicator to the revenue in assemblies and modules product group.
We believe these four product groups are aligned with our strategic direction and will allow us to better track the results of our focus on engineered solution and assemblies.
Our Technologies
We believe that to be the preferred partner to fulfill the photonics needs of our customers, domain expertise and differentiating technologies in photonics are key elements. Optics and photonics require multidisciplinary skills, including physics, mechanical engineering, material sciences, electrical engineering, and chemistry, among others. This is part of what makes using photonics so complicated, and at the same time part of what we see as the opportunity. Knowing what can and cannot be produced, designing the architecture and detailed design of the optical system, including electrical and mechanical interfaces, choosing and executing advanced manufacturing technologies, and delivering both the engineering prototypes that are needed, as well as producing a high volume of goods for the long-term, are all part of the domain expertise required. Additionally, to design the best solution for a customer, we not only need to know what can be produced and how to design it, we also must have unique capabilities that differentiate our solutions. Such technologies allow us to develop solutions and sub systems that outperform other solutions in size, weight, power, and cost. |
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| Along those lines, we continue to focus on developing, acquiring and licensing 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 such as the following: | ||
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| · | Infrared Imaging Technologies. Our optical solutions strategy focuses around infrared imaging. Infrared imaging is a growing market, with technology that is evolving at a fast rate, and in which we have distinct advantages, based on our core technologies. Maintaining a technical leadership in infrared imaging and continually evolving and developing our technologies is key to maintaining, and to continue building and developing, a technical leadership, which translates to better products. While the basis to our infrared technology originally centered around infrared materials and optics, it has become more than that. As we evolve from a pure optics company to an integrator and solution provider, our differentiating technologies are evolving. Those differentiating technologies are often on a system or application level, rather than at the component or material level. Some of those technologies are gained through acquisitions, such as Visimid and G5 Infrared, and some through organic growth and investment in internally funded R&D. Recent examples of such system level capabilities include our development of a novel, unique approach to shutterless imaging that we can apply to any microbolometer, development of a technology for early detection of flames and fires using a combination of optical technologies and sophisticated image processing algorithms, and, most recently, our integration of AI accelerator hardware directly into the video pipeline of our cameras. This allows customers to easily implement AI trained models directly into the video pipeline without the need for a GPU with a high power consumption, and without the need for much programming expertise. |
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| · | Optical Assemblies and Testing. As a company moving from optical components to solutions, doing more optical assemblies was a natural first step for us. During the first couple of years of implementing our new strategic direction, our team expanded our optical assemblies business and capabilities considerably. As our reputation in this segment grew, so did the level of complexity of assemblies and sub systems customers request of us. This trend was recently amplified when we began making available our new, exclusive infrared glass materials, which enable customers to design systems that far exceed the performance of existing systems using conventional materials. Often, the new systems requested by customers require us to develop new assembly and testing capabilities. Each such new capability and technique we develop for such projects become another capability and technique we can market and offer to other customers. We expect this will create self-perpetuating development opportunities as our new capabilities and techniques bring in more business that may, again, require continuing development of new techniques. |
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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, with Germanium being the most commonly used material. Over the last few years LightPath has been investing in developing and commercializing our BlackDiamond glasses (which are labeled with a “BD” prefix) as alternatives to using Germanium. BD2, our first glass, has been in production for nearly 15 years. BD6, our second glass, and our flagship material, is produced in volume and fielded in multiple products, both commercial and defense related. Additionally, in December 2021 we received an exclusive license from the U.S. government for the Chalcogenide materials that have been developed by the NRL. Following a two-year effort to transition those new materials into production, we began making available for commercial use some of those new materials, starting with the introduction of BDNL-4 in April 2024. Our BlackDiamond materials offer multiple advantages over materials, such as Germanium, which have been traditionally used up until now. Germanium is a key material used in infrared optics. It is estimated that over 67% of the global Germanium supply originates out of China, with Russia being the second largest supplier. Those two countries together control over 90% of the supply of Germanium and Gallium, two critical materials in infrared optics. At the start of the war in Ukraine, all purchases of Germanium from vendors in Russia ceased and the Company has been purchasing Germanium only from vendors in China. In July 2023, China announced export restrictions on those two materials. Those export restrictions have significantly impacted the cost and supply of those materials in the west, with the cost increasing by more than 60%, as of June 2024. Our BlackDiamond materials, which are made in the USA and produced from raw ingredients available from many countries all over the globe, offer an alternative to the use of Germanium in infrared systems. Knowing that our materials are produced domestically and have a secure supply chain has been driving sales growth in our business and in particular in the defense sector. In addition to providing an alternative to the use of Germanium, the new materials we licensed exclusively from the NRL have unique technical advantages compared to traditional materials. One of those advantages is multispectral performance, meaning the glass can be used as an optical material in two or more wavebands in the infrared. While conventionally infrared materials have been used in one band (Silicon used in mid wave band, Germanium in long wave band, etc.), our new BlackDiamond materials cover a very wide range of wavelengths, including all three infrared bands (short wave, mid wave and long wave) and some of the materials also work in the near infrared and even in part of the visible light band. This in turn enables the development of true multispectral systems, ones in which one camera will be able to image in more than one waveband simultaneously. The implications for this are very significant in the defense world, but also in the industrial world where, for example, a large range of temperatures to be measured translates to a need to image in both mid wave and long wave. This is well within the capabilities of our Mantis camera because of its multispectral glass. The second significant advantage our BlackDiamond materials have is their performance is less affected by changes in environmental temperature. Similar to the way materials contract in low temperatures or expand in warm temperatures, the optical properties also change with temperature. Specifically, the refractive index changes with temperature, which is called a thermo-optic coefficient. A material such as Germanium has a high thermo optic coefficient of 400 ppm per change of one degree Celsius. This means that when the temperature changes by 10 degrees, as an example, the lens loses focus and needs to be refocused. Our BlackDiamond materials are carefully engineered to have very low thermo-optic coefficients, so that their optical power (refractive index) almost does not change when the ambient temperature changes. Some materials such as BDNL-4 have a negative thermo optic coefficient, acting as a natural compensator when the temperature changes. Other materials such as BDNL-8 have a thermo optic coefficient that is so close to zero, the standard test equipment cannot even measure it! The combination of providing an alternative to the use of Germanium and Gallium, together with distinct technological advantages, make these materials which we own exclusively, a very desirable and key element in every future infrared system. As described above in Growth Strategy, we take these unique advantages and leverage them to become not only the supplier of choice, but also to be producer of the subsystems and complete imaging solutions, a much larger part of the system then we previously had as a component manufacturer. The importance of those materials, both from a supply chain liability perspective as well as from a technology leadership perspective has led to some significant collaborations and efforts together with various governmental groups, and in particular with the U.S. DoD. As announced on several separate occasions, LightPath has received funded development contracts from the U.S. DoD, the Defense Logistics Agency, the European Space Agency, and the U.S. Army, among others. Those fundings are all aimed at accelerating the qualification of the materials for use in their respective applications. We continue to develop those technical capabilities and materials, both using internal funding and federal funding. We expect infrared materials to continue to be an important technology in our portfolio. |
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| · | High precision molded lenses. Historically, precision molding of lenses is the key technology we have 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 (“PMOs”) is a technology in which we continuously invest to pursue advancements in 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. Our capabilities include a wide range of traditional fabrication processes. These include CNC (computer numerical control) grinding and polishing of optical elements, traditional grinding and polishing of lenses, and diamond turning of infrared materials. |
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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 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 we believe gives us a competitive advantage by allowing us to design better optical solutions. |
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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.
Acquisition and Private Placement
On February 18, 2025 (the “Closing Date”), we completed the acquisition of G5 Infrared (the “Acquisition”). The Acquisition was effected in accordance with the terms of a Membership Interest Purchase Agreement, dated as of February 13, 2025, by and among us, G5 Infrared, the members of G5 Infrared, and, solely in his capacity as sellers’ representative, Kenneth R. Greenslade (as amended, the “Acquisition Agreement”). The aggregate consideration paid at the closing of the Acquisition consisted of (i) $20.25 million in cash and 1,972,531 shares of Class A Common Stock, in each case subject to various purchase price adjustments set forth in the Acquisition Agreement, and (ii) up to $23.0 million in earn-out consideration paid annually in fiscal years 2026 and 2027 subject to achievement of certain revenue and EBITDA targets set forth in the Acquisition Agreement.
On February 13, 2025, concurrent with the signing of the Acquisition Agreement and in part to fund the Acquisition, we entered into (i) a securities purchase agreement (the “Securities Purchase Agreement”), with certain selling stockholders, pursuant to which we agreed to issue and sell (a) 24,955.903272 Preferred Shares which were convertible at the time of issuance into 11,607,397 shares of Class A Common Stock and will be convertible into up to 15,982,159 shares of Class A Common Stock, or the Conversion Shares, which represents the maximum number of shares of Class A Common Stock which the Preferred Shares outstanding as of the date of this prospectus could be converted into at the end of the term of the Preferred Shares, assuming that all dividends accrue in-kind through the maturity of the Preferred Shares, the minimum conversion price of $2.15 per share of Class A Common Stock, and the outstanding Preferred Shares are converted by the Company in full on one occasion and any fractional shares of Class A Common Stock otherwise issuable to a Selling Stockholder thereupon are rounded up to the nearest whole share, (b) 4,352,774 Warrants that are exercisable for shares of Class A Common Stock, or the Warrant Shares, and (c) senior secured promissory notes in the aggregate principal amount of $5,195,205 (the “Notes”), which are convertible into shares of Preferred Stock upon the occurrence of the event specified in the Notes (the “Preferred Conversion Shares”), which are in turn convertible into Conversion Shares (the transactions contemplated by the Securities Purchase Agreement, the “Private Placement”), and (ii) a securities purchase agreement (the “Class A Common Securities Purchase Agreement,” and together with the Securities Purchase Agreement, the “Purchase Agreements”), with certain selling stockholders, pursuant to which we agreed to issue and sell (x) 687,750 LKF Common Shares, and (y) 170,697 LKF Warrants that are exercisable for shares of Class A Common Stock, or the LKF Warrant Shares (the transactions contemplated by the Class A Common Securities Purchase Agreement, the “Common Offering”).
In connection with the Private Placement and the Common Offering, on the Closing Date, we entered into a registration rights agreement (the “Registration Rights Agreement”) with the selling stockholders, pursuant to which we agreed to file a registration statement with the SEC covering the resale of the Conversion Shares, the Warrant Shares, the LKF Common Shares and the LKF Warrant Shares, or the Shares, sold in the Private Placement and the Common Offering. We agreed to file such registration statement within 75 days following the Closing Date. The Registration Rights Agreement includes customary indemnification rights in connection with the registration statement providing for the resale of the Shares. The members of G5 Infrared who received stock consideration in the Acquisition are not party to the Registration Rights Agreement. The registration statement of which this prospectus forms a part has been filed in accordance with the Registration Rights Agreement.
The foregoing summary descriptions of the Acquisition Agreement, the Securities Purchase Agreement, the Class A Common Securities Purchase Agreement and the Registration Rights Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of such documents, which are filed as exhibits to the registration statement of which this prospectus forms a part and are incorporated by reference herein. | ||
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| THE OFFERING | |
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| Class A Common Stock Offered by Selling Stockholders | Up to 21,193,380 shares of our Class A Common Stock, which consists of (i) 15,982,159 Conversion Shares, (ii) 4,352,774 Warrants Shares, (iii) 687,750 LKF Common Shares, and (iv) 170,697 LKF Warrant Shares. |
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| Use of Proceeds | We will not receive any proceeds from the sale of Shares in this offering. We may receive proceeds upon any exercise for cash of outstanding Warrants and LKF Warrants, in which case such proceeds will be used for working capital and other general corporate purposes. |
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| Risk Factors | You should read the “Risk Factors” section of this prospectus and in the documents incorporated by reference in this prospectus for a discussion of factors to consider carefully before deciding to invest in shares of our Class A Common Stock. |
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| Nasdaq Capital Market Symbol | “LPTH.” The Preferred Shares, the Warrants and the LKF Warrants are not listed on Nasdaq, any national securities exchange or any other nationally recognized trading system. |
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Investing in our Class A Common Stock involves significant risks. Before deciding whether to invest in our Class A Common Stock, you should carefully consider the risks and uncertainties described below and under the sections entitled “Risk Factors” in our most recent Annual Report on Form 10-K, our most recent Quarterly Report on Form 10-Q and other filings we make with the SEC from time to time, which are incorporated by reference herein in their entirety, and which may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future, together with the other information in this prospectus and in the documents incorporated by reference in this prospectus. The occurrence of any such risks, or of additional risks and uncertainties not presently known to us or that we currently believe to be immaterial, could cause our business, prospects, operating results and financial condition to suffer materially. In such event, the trading price of our Class A Common Stock could decline, and you might lose all or part of your investment.
International tariffs, including tariffs applied to goods traded between the U.S. and China, could materially and adversely affect our business and results of operations.
The United States has recently enacted and proposed to enact significant new tariffs affecting certain products exported by a number of U.S. trading partners, including China. Additionally, President Trump has directed various federal agencies to further evaluate key aspects of U.S. trade policy and there has been ongoing discussion, commentary and actions regarding potential significant changes to U.S. trade policies, treaties and tariffs. In 2025, the Trump administration indicated that the United States would impose retaliatory measures with respect to jurisdictions that have or are likely to put in place tax rules that are extraterritorial or disproportionately affect U.S. companies. The likelihood of these changes being enacted or implemented is unclear. We are currently unable to predict whether such changes will occur and, if so, the ultimate impact on our business.
The institution of trade tariffs both globally and between the U.S. and China specifically carries the risk of negatively impacting China’s overall economic condition, which could have negative repercussions for us. Furthermore, imposition of tariffs could cause a decrease in the sales of our products to customers located in China or other customers selling to Chinese end users, which would directly impact our business.
As of the date of this prospectus, discussions remain ongoing in respect of certain trade restrictions and tariffs on imports, as well as retaliatory tariffs enacted in response to such actions, which could impose restrictions on our ability to do business in or with affected countries or prohibit, reduce, or discourage purchases of our products by foreign customers, leading to increased costs of products that contain our components, increased costs of manufacturing our products, and higher prices of our products in foreign markets. Changes in, and responses to, U.S. trade policy could reduce the competitiveness of our products and cause our sales and revenues to drop, which could materially and adversely impact our business and results of operations. In light of these events, there continues to exist significant uncertainty about the future relationship between the U.S. and other countries with respect to such trade policies, treaties and tariffs. These developments, or the perception that any of them could occur, may have a material adverse effect on global economic conditions and the stability of global financial markets, and may significantly reduce global trade and, in particular, trade between the impacted nations and the United States. Any of these factors could depress economic activity and restrict our access to suppliers or customers and have a material adverse effect on their business, financial condition and results of operations, which in turn would negatively impact us. We have operations, customers and suppliers in the U.S., China and other countries and regularly import and export goods and services to and from those countries. An increase in tariffs could have a material impact on our costs and on the demand for our products and services.
We utilize a number of strategies to mitigate the current and, hopefully, future impact of tariffs. However, given the uncertainty regarding the current tariffs, as well as the potential for additional trade actions by the U.S. or other countries in the future, any future impact on our operations and financial results is uncertain and these impacts could be more significant than those we have experienced in the past. Further, we can provide no assurance that the strategies we implemented to mitigate the impact of such tariffs or other trade actions will continue to be successful. To the extent that our supply chain, costs, sales, or profitability are negatively affected by the tariffs or other trade actions, our business, financial condition, and results of operations may be materially adversely affected.
The Class A Common Stock being offered pursuant this prospectus represents a substantial percentage of our outstanding Class A Common Stock, and the sales of such securities could cause the market price of our Class A Common Stock to decline significantly.
This prospectus relates to the offer and sale from time to time by the selling stockholders up to 21,193,380 shares of our Class A Common Stock. The total number of shares of Class A Common Stock being offered in this prospectus would represent approximately 33.07% of our total outstanding shares of Class A Common Stock based on our shares outstanding as of April 25, 2025, assuming full conversion of the Series G Convertible Preferred Stock and full exercise of the Warrants and the LKF Warrants for cash. The sale of substantial amounts of shares of our Class A Common Stock, including the Class A Common Stock being offered in this prospectus, or the perception that such sales could occur, could harm the prevailing market price of shares of our Class A Common Stock. These sales, or the possibility that these sales may occur, also might make it more difficult for us to sell equity securities in the future at a time and at a price that we deem appropriate.
Future sales of substantial amounts of our Class A Common Stock could result in material changes to the ownership of, and voting power in relation to, our Class A Common Stock.
North Run Capital, LP (“North Run”) and its affiliates hold 10.2% of the voting power of our capital stock based on shares outstanding as of April 25, 2025, in addition to shares of Class A Common Stock and voting power they may acquire upon exercise of Warrants and upon any future removal of any conversion limitations applicable to the Series G Convertible Preferred Stock and the Warrants. For as long as North Run and its affiliates hold a significant amount of our Series G Convertible Preferred Stock and Class A Common Stock, they will be able to exert significant control over us. North Run and its affiliates may also determine to sell substantial amounts of our securities in one or more transactions, including to one or several private parties in negotiated transactions. In that case, those buyers may subsequently be able to exert significant control over us.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated by reference in this prospectus include “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). All statements, other than statements of historical fact, contained in or incorporated by reference in this prospectus, including statements regarding our strategy, future operations, future financial position, future revenue, projected costs, prospects, plans and objectives of management, are forward-looking statements. The words “anticipate,” “believe,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “predict,” “project,” “target,” “potential,” “would,” “could,” “should,” “continue” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words.
Any forward-looking statements in this prospectus reflect our current views with respect to future events or to our future financial performance and involve known and unknown risks, uncertainties and other important 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 these forward-looking statements. We may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking statements. Actual results or events could differ materially from the plans, intentions and expectations described in the forward-looking statements we make. You are cautioned that these forward-looking statements are subject to risks, uncertainties and assumptions that are referenced in the sections entitled “Risk Factors” in the documents incorporated by reference herein.
You should read this prospectus and the information incorporated by reference herein completely and with the understanding that our actual future results may be materially different from what we expect. The forward-looking statements contained in this prospectus are made as of the date of this prospectus, and we do not assume any obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
A statement contained in a document incorporated by reference into this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus, any prospectus supplement or in any other subsequently filed document which is also incorporated in this prospectus modifies or replaces such statement. Any statements so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
This prospectus incorporates by reference statistical and other industry and market data that we obtained from industry publications and research, surveys and studies conducted by third parties. All of the market data used in this prospectus and the information incorporated by reference herein involves a number of assumptions and limitations, and you are cautioned not to give undue weight to such data. Industry publications and third-party research, surveys and studies generally indicate that their information has been obtained from sources believed to be reliable, although they do not guarantee the accuracy or completeness of such information. Our estimates of the potential market opportunities for our product candidate include several key assumptions based on our industry knowledge, industry publications, third-party research and other surveys, which may be based on a small sample size and may fail to accurately reflect market opportunities. While we believe that our internal assumptions are reasonable, no independent source has verified such assumptions.
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We are filing the registration statement of which this prospectus forms a part to permit the holders of the Shares described in the section entitled “Selling Stockholders” to resell the Shares. We are not selling any shares under this prospectus, and we will not receive any proceeds from the sale or other disposition of the Shares held by the selling stockholders and offered hereby.
A portion of the Shares covered by this prospectus are issuable upon exercise of Warrants and the LKF Warrants issued to the selling stockholders. The exercise price of the outstanding Warrants and LKF Warrants is $2.58 per share. The exercise price and number of shares of Class A Common Stock issuable upon exercise of the Warrants and LKF Warrants may be adjusted in certain circumstances, including stock splits or dividends, mergers, or reclassifications or similar events. Upon any cash exercise of outstanding Warrants and LKF Warrants, the applicable selling stockholders will pay us the exercise price. To the extent we receive proceeds from the cash exercise of outstanding warrants, we intend to use the proceeds for working capital and for other general corporate purposes. We have not yet determined the amount of net proceeds to be used specifically for any of the foregoing purposes in the event any of the Warrants or the LKF Warrants are exercised for cash. The selling stockholders will pay any discounts, commissions, fees of underwriters, selling brokers, dealer managers or similar securities industry professionals and expenses incurred by the selling stockholders for brokerage, accounting, tax or legal services or any other expenses incurred by the selling stockholders in disposing of the Shares. We will bear all other costs, fees and expenses incurred in effecting the registration of the Shares covered by this prospectus, including, without limitation, filing and printing fees, listing fees and fees and expenses of our counsel and our accountants.
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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 be complete and is qualified in its entirety by reference to our Certificate of Incorporation and our Bylaws, each of which are incorporated by reference as exhibits to the registration statement of which 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 Certificate of Incorporation and our Bylaws, and the applicable provisions of the DGCL for additional information.
General
Our authorized capital stock consists of 105,000,000 shares, divided into 100,000,000 shares of common stock, par value $0.01 per share (the “Common Stock”), and 5,000,000 shares of preferred stock, par value $0.01 per share (“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 one or more classes or series, with such voting powers, designations, preferences and relative, participating, optional or other special rights, if any, and such qualifications, limitations or restrictions thereof, if any, as shall be provided for in a resolution or resolutions adopted by our Board and filed as designations.
Class A Common Stock
Of the 100,000,000 shares of Common Stock authorized in our Certificate of Incorporation, our Board has designated 94,500,000 shares as Class A Common Stock, par value $0.01 per share, or the Class A Common Stock. As of April 25,, 2025, 42,898,936 shares of our Class A Common Stock were 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 are 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 assets legally available for distribution to stockholders in the event of the liquidation or dissolution, whether voluntary or involuntary, of LightPath. We have not paid any dividends and do not anticipate paying any dividends on our Class A Common Stock in the foreseeable future. It is our present policy to retain earnings, if any, for use in the development of our business. Our Class A Common Stockholders do not have cumulative voting rights in the election of directors and have no preemptive, subscription, or conversion rights. Our Class A Common Stock is not subject to redemption by us.
As of April 25, 2025, we have reserved for issuance 1,035,886 shares of our Class A Common Stock underlying outstanding restricted stock units, 125,456 shares of our Class A Common Stock underlying outstanding restricted stock awards, 391,817 shares of our Class A Common Stock for issuance upon the exercise of outstanding stock options, and 614,538 shares of our Class A Common Stock for issuance under the 2018 Stock and Incentive Compensation Plan,.
The transfer agent and registrar for our Class A Common Stock is Computershare Trust Company, N.A.
Preferred Stock
Of the 5,000,000 shares of preferred stock authorized, our Board has previously designated:
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| · | 250 shares of Preferred Stock as Series A 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; |
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| · | 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; |
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| · | 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; |
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| · | 500,000 shares of Preferred Stock as Series D Preferred Stock, none of which have been issued; however, in 1998, our Board declared a dividend distribution as a right to purchase one share of Series D Preferred Stock for each outstanding share of Class A Common Stock upon occurrence of certain events. The rights expired on February 28, 2021; and |
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| · | 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.
Series G Convertible Preferred Stock
On February 13, 2025, we issued an aggregate of 24,955.903272 shares of the Series G Convertible Preferred Stock, par value $0.01 per share, or the Preferred Shares, which have a stated value of $1,000 per share and are initially convertible into 11,607,397 shares of Common Stock at the election of the holders, subject to (i) a restriction preventing the holders and their affiliates from beneficially owning more than 19.99% of our outstanding shares of Common Stock (the “Beneficial Ownership Limitation”) and (ii) a restriction prohibiting the conversion of the Preferred Shares to the extent that the aggregate number of shares of Class A Common Stock issued pursuant to the Securities Purchase Agreement, including through conversion of any other Preferred Shares or exercise of any Warrants, exceeds 6,055,606 (the “Exchange Cap”). The foregoing limitations may be removed upon receipt of stockholder approval, and, as required by the Securities Purchase Agreement, we have called a Special Meeting of Stockholders to be held on June 16, 2025 for, among other things, approval of the removal of the foregoing limitations.
General
Each Preferred Share has the powers, designations, preferences and other rights as are set forth in the Certificate of Designations, Preferences and Rights of Series G Convertible Preferred Stock filed with the Delaware Secretary of State on February 14, 2025 (the “Certificate of Designations”).
The Preferred Shares rank senior to the Common Stock with respect to dividends, distributions and payments on liquidation, winding-up and dissolution.
Voting
The holders of Preferred Shares will be entitled to notice of all stockholder meetings at which holders of Common Stock are entitled to vote. Subject to the ownership limitations described above, each holder of Preferred Shares will be entitled to vote such Preferred Shares on an as-converted basis (based upon the aggregate number of conversion shares into which such holder’s Preferred Shares are then convertible, giving effect to any limitations on conversion set forth in the Certificate of Designations) with respect to all matters on which holders of Common Stock are entitled to vote, voting together with the Common Stock as a single class, and will otherwise be entitled to such voting rights as required by applicable law.
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Liquidation
In the event of any voluntary or involuntary liquidation, dissolution or winding up of our Company, the holders of the Preferred Shares will be entitled to receive in cash out of our assets, whether from capital or from earnings available for distribution to its stockholders, before any amount shall be paid to the holders of any of our capital stock of any class junior in rank to the Preferred Shares in respect of the preferences as to the distributions and payments on the liquidation, dissolution and winding up of our Company, an amount per Preferred Share equal to the greater of (i) the Stated Value plus any accrued and unpaid dividends, including any applicable make-whole payment, or (b) such amount per share as would have been payable had all Preferred Shares been converted into Class A Common Stock immediately prior to such liquidation, dissolution or winding up (collectively, the “Preferred Funds”), subject to proration among holders of Preferred Shares and pari passu securities in the event that the Preferred Funds are insufficient to pay the full amount due.
Dividends
The Preferred Shares bear dividends at a per annum rate of 6.5%, which accrues daily and compounds on quarterly basis from the issuance date on the stated value of $1,000 per share (the “Stated Value”). Dividends will not be paid or payable in cash, except, at our option, and subject to applicable law, such dividends may be payable quarterly in cash beginning on the five-year anniversary of the issuance date, with the period between the issuance date and such five-year anniversary being defined as the “Guaranteed Term.” Dividends will cease to accrue if, following the end of the Guaranteed Term, the closing price of the Class A Common Stock on our principal market equals or exceeds three hundred percent (300%) of the then-applicable conversion price, as adjusted according to the Certificate of Designations, for a period of 30 consecutive trading days. Holders will also be entitled to receive dividends on shares of Preferred Stock equal (on an as-if converted-to-Common-Stock basis regardless of whether the Preferred Stock is then convertible or otherwise subject to conversion limitations) to and in the same form as dividends actually paid on shares of our Common Stock when, as and if such dividends are paid on shares of the Common Stock. To the extent that, during the Guaranteed Term, we undergo certain fundamental events or effects a mandatory conversion of the Preferred Stock, then, immediately prior to the effective time of such event, the amount of accrued dividends shall by increased by an amount that would have otherwise accrued with respect to the Preferred Stock between the date of such event and the end of the Guaranteed Term (the “Make Whole Amount”).
Conversion
At any time or times on or after the issuance date, any holder of Preferred Shares will be entitled to convert any whole number of Preferred Shares into fully paid and nonassessable shares of Class A Common Stock at the Conversion Rate (as defined below). The number of Conversion Shares issuable upon conversion of each of the Preferred Shares will be determined according to the quotient (the “Conversion Rate”) of (i) the Stated Value per share plus an amount per share equal to any accrued and unpaid dividends and, if applicable, any Make Whole Payment (the “Liquidation Preference”), divided by (ii) $2.15, subject to adjustment as provided by the Certificate of Designations (the “Conversion Price”). In addition, on or after the three-year anniversary of the issuance date, if (x) the closing price of the Class A Common Stock on the principal market equals or exceeds three hundred percent (300%) of the then-applicable Conversion Price, for 20 trading days during any 30 consecutive trading day period, and (y) at the time the preceding clause (x) is satisfied, our EBITDA for the four consecutive calendar quarterly immediately preceding such date equals or exceeds $20.0 million, then we will have the right, upon ten trading days’ written notice, to cause the conversion of all of the outstanding Preferred Shares into Conversion Shares at the Conversion Rate. Notwithstanding anything to the contrary, in no event will any holder be entitled or required to convert Preferred Shares for a number of Conversion Shares in excess of that number of Conversion Shares that, upon giving effect to such conversion, would either (i) cause the aggregate number of shares of Class A Common Stock beneficially owned by the holder and its affiliates and any other persons or entities whose beneficial ownership of Class A Common Stock would be aggregated with the holder’s for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, including shares held by any “group” of which the holder is a member, to exceed 19.99% or, if elected by such holder, a lesser percentage of the number of shares of Class A Common Stock outstanding immediately after giving effect to the issuance of Conversion Shares issuable upon conversion of a holder’s Preferred Shares, or (ii) cause the aggregate number of shares of Class A Common Stock issued as Conversion Shares upon conversion of any Preferred Shares and issued upon the exercise of any Warrants issued pursuant to the Securities Purchase Agreement, to exceed the Exchange Cap.
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Redemption
At any time after the Guaranteed Term, each of the Company and the Lead Investor shall have the right to require the Company to redeem all of the Preferred Shares at a price per Preferred Share equal to the greater of (i) 150% of the then-applicable Liquidation Preference and (ii) the product of (A) the Conversion Rate on the applicable redemption date multiplied by (B) the VWAP (as defined in the Certificate of Designations) of the Class A Common Stock for the five trading day period immediately preceding the applicable redemption date. In the event that the amount determined pursuant to clause (B) exceeds the amount determined pursuant to Clause (A), the number of shares that we will be required to redeem will be proportionately reduced, and we will have the right to cause the conversion of any remaining shares of Preferred Stock thereafter, subject to certain limitations. Further, simultaneous with or after the occurrence of a Fundamental Transaction (as defined in the Certificate of Designations), we will be obligated to redeem all outstanding Preferred Shares at a price per Preferred Share equal to the greater of (i) the applicable Liquidation Preference, and (ii) the product of (A) the Conversion Rate at such time, multiplied by (B) either (x) in the event of a Fundamental Transaction in which all of the outstanding shares are exchanged for, or converted into the right to receive, consideration consisting solely of cash, then the consideration per share of Class A Common Stock payable in such Fundamental Transaction, or (y) otherwise, the VWAP on the date immediately preceding the closing of the Fundamental Transaction.
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.
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| · | 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. |
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| · | 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 our stockholders may be called only by the Chair of the Board, President, or a majority of our Board. |
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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. |
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These 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 could 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 corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the person became an interested stockholder, unless:
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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:
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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 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 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.
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Subject to the terms of the Purchase Agreements, the selling stockholders may from time to time offer and sell any or all of the shares of our Class A Common Stock set forth below pursuant to this prospectus and any accompanying prospectus supplement. The selling stockholders will pay any underwriting discounts and commissions and expenses incurred by the selling stockholders for brokerage, accounting, tax or legal services or any other expenses incurred by such selling stockholders in disposing of the securities. We will bear the costs, fees and expenses incurred in effecting the registration of the securities covered by this prospectus, including all registration and filing fees, listing fees and fees and expenses of our counsel and our independent registered public accounting firm.
The following table sets forth, as of April 25, 2025, the names of the selling stockholders, the aggregate number of shares of our Class A Common Stock beneficially owned by each selling stockholder, the number of shares of our Class A Common Stock that may be sold by each selling stockholder under this prospectus and the number of shares of our Class A Common Stock that each selling stockholder will beneficially own after this offering. For purposes of the table below, we have assumed that after this offering, none of the shares of Class A Common Stock covered by this prospectus will be beneficially owned by the selling stockholders. In addition, we assume that none of the selling stockholders has sold, transferred or otherwise disposed of, our securities in transactions exempt from the registration requirements of the Securities Act.
We have determined beneficial ownership in accordance with the rules of the SEC and the information is not necessarily indicative of beneficial ownership for any other purpose. Unless otherwise indicated below, to our knowledge, the entity named in the table has sole voting and sole investment power with respect to all securities that it beneficially owns. The number of shares of Class A Common Stock outstanding as of April 25, 2025 was 42,898,936.
The selling stockholders may sell or otherwise transfer all, some or none of such shares in this offering. See “Plan of Distribution.”
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| Number of Shares Beneficially Owned Before Sale of All Shares of Class A Common Stock Offered Hereby |
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| Number of Shares of Class A Common Stock to be Sold in the Offering |
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| Number of Shares Beneficially Owned After Sale of All Shares of Class A Common Stock Offered Hereby |
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| Number |
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| %(1) |
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| Number |
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| Number |
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| % |
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| North Run Strategic Opportunities Fund I, LP (2)(3) |
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| 4,868,232 |
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| 10.2 | % |
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| 4,868,232 |
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| - |
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| - |
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| AIGH Investment Partners, LP (4) |
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| 3,252,977 |
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| 7.5 | % |
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| 523,631 |
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| 2,729,346 |
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| 5.6 | % |
| WVP Emerging Manager OnShore Fund LLC (5) |
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| 1,101,923 |
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| 2.6 | % |
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| 188,792 |
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| 913,131 |
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| 1.9 | % |
| Lytton-Kambara Foundation (6) |
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| 237,474 |
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| 0.6 | % |
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| 237,474 |
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| - |
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| - |
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| Alice W. Lytton Family LLC (7) |
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| 237,474 |
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| 0.6 | % |
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| 237,474 |
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| - |
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| - |
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| (1) | The amount of shares of Class A Common Stock that each selling stockholder could acquire within 60 days of April 25, 2025, pursuant to the Securities Purchase Agreement, including by converting shares of Series G Preferred Stock or exercising the Warrants, is subject to such selling stockholder’s pro-rata portion of the conversion limitations under the Beneficial Ownership Limitation and the Exchange Cap. |
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| (2) | Shares beneficially owned consists of 4,868,232 shares of Class A Common Stock issuable upon the conversion of the Series G Convertible Preferred Stock and/or exercise of the Warrants held by North Run Strategic Opportunities Fund I, LP within 60 days of April 25, 2025. The shares beneficially owned reflects the application of the Beneficial Ownership Limitation and the Exchange Cap. To the extent such ownership limitations are removed, then the shares beneficially owned and to be sold in the offering would increase to 12,830,725. North Run Strategic Opportunities Fund I GP, LLC (“NR SOF GP”) is the general partner of NR SOF. Todd B. Hammer and Thomas B. Ellis are members of NR SOF GP. Each of NR SOF GP, Mr. Hammer and Mr. Ellis disclaim beneficial ownership of securities not directly owned by them. The principal place of business of NR SOF is located at 867 Boylston Street, 5th Floor #1361, Boston, MA 02116. |
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| (3) | Thomas B. Ellis, a member of our board of directors, is a principal and member of NR SOF GP. |
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| (4) | Mr. Orin Hirschman is the managing member of AIGH Capital Management, LLC, a Maryland limited liability company (“AIGH CM”), who is an advisor with respect to the securities held by AIGH Investment Partners, L.P. (“AIGH LP”). Mr. Hirschman has voting and investment control over the securities indirectly held by AIGH CM, directly held by AIGH IP and directly held by Mr. Hirschman and his family. The address for AIGH CM, AIGH LP and Mr. Hirschman is 6006 Berkeley Avenue, Baltimore, Maryland 21209. |
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| (5) | Mr. Orin Hirschman is the managing member of AIGH Capital Management, LLC, a Maryland limited liability company (“AIGH CM”), who is a sub-advisor with respect to the securities held by WVP Emerging Manager Onshore Fund, LLC - AIGH Series. Mr. Hirschman has voting and investment control over the securities indirectly held by AIGH CM and directly held by Mr. Hirschman and his family directly. The address for AIGH CM and Mr. Hirschman is 6006 Berkeley Avenue, Baltimore, Maryland 21209. |
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| (6) | Laurence Lytton is the president of the Lytton-Kambara Foundation. Mr. Lytton has voting and investment control over the securities held by the Lytton-Kambara Foundation. The amounts reported exclude 210,673 shares of Class A Common Stock held directly by Mr. Lytton. The address for the Lytton-Kambara Foundation and Mr. Lytton is 467 Central Park West, 17-A, New York, NY 10025. |
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| (7) | Mr. Lytton is the managing partner of Alice W. Lytton Family LLC. Mr. Lytton has voting and investment control over the securities held by Alice W. Lytton Family LLC. The amounts reported exclude 210,673 shares of Class A Common Stock held directly by Mr. Lytton. The address for Alice W. Lytton Family LLC and Mr. Lytton is 467 Central Park West, 17-A, New York, NY 10025. |
Information for any additional selling stockholder, if any, will be set forth by prospectus supplement to the extent required prior to the time of any offer or sale of such selling stockholder’s shares pursuant to this prospectus. To the extent permitted by law, a prospectus supplement may add, update, substitute or change the information contained in this prospectus, including the identity of each selling stockholder and the number of shares of Class A Common Stock registered on its behalf. A selling stockholder may sell or otherwise transfer all, some or none of such shares of Class A Common Stock in this offering. See “Plan of Distribution.”
Participation of Directors and Officers
Mr. Ellis currently serves as a member of our Board of Directors. Mr. Ellis was appointed to our Board of Directors at the request of NR SOF pursuant to the terms of the Securities Purchase Agreement. Mr. Ellis is a member of NR SOF GP, which is the general partner of NR SOF, and as such Mr. Ellis may be deemed to beneficially own shares held by NR SOF.
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Each selling stockholder of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities covered hereby on The Nasdaq Capital Market or any other stock exchange, market or trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A selling stockholder may use any one or more of the following methods when selling securities:
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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 securities 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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| · | settlement of short sales; |
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| · | in transactions through broker‑dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated price per security; |
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| · | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
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| · | a combination of any such methods of sale; or |
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| · | any other method permitted pursuant to applicable law. |
The selling stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act, if available, rather than under this prospectus.
Broker‑dealers engaged by the selling stockholders may arrange for other brokers‑dealers to participate in sales. Broker‑dealers may receive commissions or discounts from the selling stockholders (or, if any broker‑dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or markdown in compliance with FINRA Rule 2121.
In connection with the sale of the securities or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The selling stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The selling stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each selling stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities.
We are required to pay certain fees and expenses incurred by us incident to the registration of the securities. We have agreed to indemnify the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus effective until the earlier of (i) the date on which the securities 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 the Company 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 securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholders will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the common stock by the selling stockholders or any other person. We will make copies of this prospectus available to the selling stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
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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.
The consolidated financial statements of LightPath Technologies, Inc. as of June 30, 2024 and 2023, and for the years then ended, incorporated by reference in this prospectus supplement and registration statement have been audited by MSL, P.A., formerly 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.
The financial statements of G5 Infrared, LLC. as of December 31, 2024 and 2023 and for each of the years in the two-year period ended December 31, 2024 have been audited by Elliott Davis, PLLC, an independent registered public accounting firm, as stated in their report thereon, incorporated herein by reference in this Prospectus and Registration Statement by reference to the Company’s Current Report on Form 8-K/A filed on May 2, 2025 in reliance upon such report and upon the authority of such firm as experts in accounting and auditing.
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WHERE 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 reference in this prospectus supplement and does not constitute part of this prospectus supplement.
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:
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| · | Our Annual Report on Form 10-K for the year ended June 30, 2024, filed with the SEC on September 19, 2024; |
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| · | Our Quarterly Reports on Form 10-Q for the quarterly period ended September 30, 2024, filed with the SEC on November 7, 2024, and the quarterly period ended December 31, 2024, filed with the SEC on February 13, 2025; |
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| · | 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 November 15, 2024, November 22, 2024, January 14, 2025, February 13, 2025 and February 21, 2025 (as amended by that Current Report on Form 8-K/A filed on May 2, 2025); |
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| · | Our Definitive Proxy Statement on Schedule 14A filed on October 7, 2024; and |
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| · | 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, 2024, filed on September 19, 2024, including any amendment or report filed for the purpose of updating the description. |
You may request a copy of these filings, at no cost, by written request to the following address:
LightPath Technologies, Inc.
2603 Challenger Tech Court, Suite 100
Orlando, Florida 32826
Attention: Investor Relations
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21,193,380 SHARES
CLASS A COMMON STOCK
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PROSPECTUS
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, 2025
| Table of Contents |
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses to be incurred in connection with the sale and distribution of the securities being registered hereby, all of which will be borne by LightPath Technologies, Inc. (except any discounts, commissions, fees of underwriters, selling brokers, dealer managers and similar securities industry professionals and expenses incurred by the selling stockholders for brokerage, accounting, tax or legal services or any other expenses incurred by the selling stockholders in disposing of the shares). All amounts shown are estimates except the SEC registration fee.
| Item |
| Amount |
| |
| SEC registration fee |
| $ | 7,462.82 |
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| Legal fees and expenses |
| $ | 75,000.00 |
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| Accounting fees and expenses |
| $ | 15,000.00 |
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| Printing fees and expenses |
| $ | - |
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| Miscellaneous fees and expenses |
| $ | 25,000.00 |
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| Total expenses |
| $ | 122,462.82 |
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Item 15. Indemnification of Directors and Officers.
Section 145 of the DGCL provides for the indemnification of officers and directors of corporations in terms sufficiently broad to indemnify our officers and directors 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, our Certificate of Incorporation provides that the personal liability of each member of our Board or our stockholders for monetary damages for breach of fiduciary duty as a director is eliminated. The effect of this provision in the Certificate of Incorporation is to eliminate our rights and the rights of our stockholders (through stockholders’ derivative suits on 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 Certificate 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 (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 GCL. This Article shall 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 our Bylaws provides, in summary, that we 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 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 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.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers, and controlling persons 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.
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.
| II-1 |
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| Item 16. Exhibits. | ||
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| Table of Contents |
| * | Filed herewith. |
| ** | Exhibits and/or schedules have been omitted pursuant to Item 601(a)(5) and/or 601(b)(10)(iv) of Regulation S-K. The registrant hereby undertakes to furnish supplementally copies of any of the omitted exhibits and schedules upon request by the SEC; provided, however, that the registrant may request confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any exhibits or schedules so furnished. |
| II-3 |
| Table of Contents |
Item 17. 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:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended, or the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this registration statement. Notwithstanding the foregoing, any increase or decrease in the 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 Securities and Exchange Commission, or the Commission, pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent 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 this registration statement or any material change to such information in this registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) 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, as amended, or the Exchange Act, that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
(2) That, for the purposes of determining any liability under the Securities Act, each 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 the 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.
(4) That, for the purpose of determining liability under the Securities Act to any purchaser:
(i) each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) each prospectus required to be 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 made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after 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 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 effective date.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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 may be permitted to directors, officers and controlling persons of the registrant pursuant to the indemnification provisions described herein, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.
| II-4 |
| Table of Contents |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Orlando, State of Florida, on May 2, 2025.
| LIGHTPATH TECHNOLOGIES, INC. | ||||
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| By: | /s/ Shmuel Rubin |
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| Shmuel Rubin |
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| President and Chief Executive Officer |
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SIGNATURES AND POWER OF ATTORNEY
We the undersigned officers and directors of LightPath Technologies, Inc., hereby, severally constitute and appoint Shmuel Rubin and Albert Miranda, each of them singly, our true and lawful attorneys with full power to them and each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-3 filed herewith and 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 enable LightPath Technologies, Inc. to comply with the provisions of the Securities Act of 1933, and all requirements of the Securities and Exchange Commission, 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 amendments thereto or to any subsequent registration statement for the same offering which may be filed under Rule 462(b)
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
| Signature |
| Title |
| Date |
| /s/ Shmuel Rubin |
| President, Chief Executive Officer and Director |
| May 1, 2025 |
| Shmuel Rubin |
| (Principal Executive Officer) |
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| /s/ Albert Miranda |
| Chief Financial Officer |
| May 2, 2025 |
| Albert Miranda |
| (Principal Financial and Accounting Officer) |
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| /s/ M. Scott Faris |
| Director, Chair of the Board |
| May 2, 2025 |
| M. Scott Faris |
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| /s/ Kim Crider |
| Director |
| May 1, 2025 |
| Kim Crider |
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| /s/ S. Eric Creviston |
| Director |
| May 2, 2025 |
| S. Eric Creviston |
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| /s/ Thomas Ellis |
| Director |
| May 1, 2025 |
| Thomas Ellis |
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| /s/ Joseph Menaker |
| Director |
| May 1, 2025 |
| Joseph Menaker |
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| /s/ Darcie Peck |
| Director |
| May 2, 2025 |
| Darcie Peck |
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EXHIBIT 5.1
May 2, 2025
LightPath Technologies, Inc.
2603 Challenger Tech Ct., Suite 100
Orlando, Florida 32826
Ladies and Gentlemen:
We have acted as counsel to LightPath Technologies, Inc., a Delaware corporation (the “Company”), in connection with the filing of a Registration Statement on Form S-3 (the “Registration Statement”) by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the registration of the offer and sale from time to time by the selling stockholders named in the Registration Statement of an aggregate of up to 21,193,380 shares (the “Shares”) of Class A common stock, par value $0.01 per share (the “Class A Common Stock”), of the Company, which consists of (i) 15,982,159 shares of Class A Common Stock issuable upon the conversion of 24,955.903272 shares of Series G Convertible Preferred Stock, par value $0.01 per share (the “Preferred Shares,” and the shares of Class A Common Stock issuable upon conversion of the Preferred Shares, the “Conversion Shares”), (ii) 4,352,774 shares of Class A Common Stock issuable upon the exercise of warrants (the “Warrants,” and the shares of Class A Common Stock issuable upon exercise of the Warrants, the “Warrant Shares”), (iii) 687,750 shares of Class A Common Stock (the “LKF Common Shares”) and (iv) 170,697 shares of Class A Common Stock issuable upon the exercise of warrants (the “LKF Warrants,” and the shares of Class A Common Stock issuable upon exercise of the LKF Warrants, the “LKF Warrant Shares”).
In connection with this opinion, we have examined and relied upon the Registration Statement and related prospectus, the Company’s Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and Amended and Restated Bylaws, as amended, each as currently in effect, and such other documents, records, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials and the due authorization, execution and delivery of all documents by all persons other than the Company where execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
For purposes of this opinion, we have assumed that:
(a) the Registration Statement and any amendments thereto will remain effective at the time of issuance of the Conversion Shares, Warrant Shares and LKF Shares and sale of the Shares thereunder;
(b) the Company’s Board of Directors or a duly authorized committee thereof shall have authorized the issuance of the Conversion Shares, Warrant Shares and LKF Shares and sale of the Shares by all necessary corporate action;
(c) when the Conversion Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name of or on behalf of the holders thereof and have been issued by the Company in the circumstances contemplated by the Certificate of Designations, Preferences and Rights of the Series G Convertible Preferred Stock, the Conversion Shares will be duly authorized by all necessary corporate action of the Company and will be validly issued, fully paid and nonassessable;
(d) when the Warrant Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name of or on behalf of the Warrant holders and have been issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the Warrants, the Warrant Shares will be duly authorized by all necessary corporate action of the Company and will be validly issued, fully paid and nonassessable; and
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(e) when the LKF Warrant Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name of or on behalf of the LFK Warrant holders and have been issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the LKF Warrants, the LKF Warrant Shares will be duly authorized by all necessary corporate action of the Company and will be validly issued, fully paid and nonassessable.
In rendering each of the foregoing opinions, we have assumed (i) that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL and (ii) upon the issuance of any of the Conversion Shares, Warrant Shares or LKF Warrant Shares, the total number of shares of Class A Common Stock issued and outstanding will not exceed the total number of shares of Class A Common Stock that the Company is then authorized to issue under its Certificate of Incorporation.
Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof.
We hereby consent to the reference to our firm under the caption “Legal Matters” in the prospectus included in the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
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| Very truly yours, |
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| /s/ Baker & Hostetler LLP |
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITOR
LightPath Technologies, Inc.
Orlando, Florida
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of LightPath Technologies, Inc. of our report dated September 19, 2024, relating to the consolidated financial statements as of June 30, 2024 and 2023, and for each of the years in the two-year period ended June 30, 2024, which appears in the 2024 Annual Report on Form 10-K of LightPath Technologies, Inc.
We also consent to the reference to us under the caption “Experts” in the Registration Statement.
/s/ MSL, P.A.
Orlando, Florida
May 2, 2025
EXHIBIT 23.2
Consent of Independent Auditor
We consent to the incorporation by reference in this Registration Statement on Form S-3 of LightPath Technologies, Inc. of our report dated April 1, 2025, relating to the financial statements of G5 Infrared, LLC appearing in the Current Report on Form 8-K/A filed by LightPath Technologies, Inc. on May 2, 2025.
We also consent to the reference to our firm under the heading "Experts" in such Registration Statement.
/s/ Elliott Davis, PLLC
Charlotte, North Carolina
May 2, 2025