-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CdcetMK3rohkIOvHg10htZNVdE7izI+UNC8geOxRMD4gkg+4XcnowtGfRMBt/5c5 1n7ORInGzrfNWqTtiFH/wg== 0000912057-99-002839.txt : 19991101 0000912057-99-002839.hdr.sgml : 19991101 ACCESSION NUMBER: 0000912057-99-002839 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19991029 EFFECTIVENESS DATE: 19991029 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PRECISION OPTICS CORPORATION INC CENTRAL INDEX KEY: 0000867840 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 042795294 STATE OF INCORPORATION: MA FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-89989 FILM NUMBER: 99737722 BUSINESS ADDRESS: STREET 1: 22 EAST BROADWAY CITY: GARDNER STATE: MA ZIP: 01440-3338 BUSINESS PHONE: 9786301800 FORMER COMPANY: FORMER CONFORMED NAME: PRECISION OPTICS CORP INC DATE OF NAME CHANGE: 19600201 S-8 1 FORM S-8 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 PRECISION OPTICS CORPORATION, INC. - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in Its Charter) MASSACHUSETTS - -------------------------------------------------------------------------------- (State or Other Jurisdiction of Incorporation or Organization) 04-2795294 - -------------------------------------------------------------------------------- (I.R.S. Employer Identification No.) 22 EAST BROADWAY, GARDNER, MA 01440 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) 1997 INCENTIVE PLAN - -------------------------------------------------------------------------------- (Full Title of the Plan) JACK P. DREIMILLER SENIOR VICE PRESIDENT, FINANCE AND CHIEF FINANCIAL OFFICER PRECISION OPTICS CORPORATION , INC. 22 EAST BROADWAY GARDNER, MASSACHUSETTS 01440 - -------------------------------------------------------------------------------- (Name and Address of Agent For Service) (978) 630-1800 - -------------------------------------------------------------------------------- Telephone Number, Including Area Code, of Agent for Service. Please send copies of all communications to: PATRICK O'BRIEN, ESQ. ROPES & GRAY ONE INTERNATIONAL PLACE BOSTON, MASSACHUSETTS 02110 (617) 951-7000 CALCULATION OF REGISTRATION FEE
Title of Securities to Amount To Be Proposed Maximum Proposed Maximum Amount of be Registered Registered Offering Price Per Aggregate Offering Registration Fee (2) Share (1) Price (1) Common Stock - 525,000 shares $1.312-$3.844 $1,593,825 $444 $.01 Par Value
(1) Of the 525,000 shares to be registered hereunder, 350,000 shares are subject to options at an exercise price of $3.844 per share, and 25,000 shares are subject to options at an exercise price of $1.312. An offering price of $1.4375 per share for the remaining 150,000 shares not described above has been estimated, pursuant to Section 457(c) and (h) on the basis of the average of the high and low prices of shares as reported by the Nasdaq SmallCap Market on October 27, 1999, solely for the purpose of calculating the registration fee. (2) Registration fee consists of (a) $374.02 payable in respect of 350,000 shares subject to options at an exercise price of $3.844 per share on the date hereof, (b) $9.12 payable in respect of 25,000 shares subject to options at an exercise price of $1.312 and (c) $59.94 payable in respect of 150,000 shares not described above. PART I ITEM 1. PLAN INFORMATION Not required to be filed with this registration statement. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION Not required to be filed with this registration statement. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The Registrant hereby incorporates the following documents herein by reference: (a) The Registrant's Annual Report on Form 10-KSB for the fiscal year ended June 30, 1999. (b) All other reports filed by the Registrant with the Securities and Exchange Commission pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since June 30, 1999, which are listed below: (i) The Registrant's Current Report on Form 8-K filed on August 16, 1999 (c) The description of the Registrant's Common Stock , $.01 par value per share, contained in the Registrant's Registration Statement on Form S-1 (No. 33-43929). All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part thereof from the date of filing of such documents. -2- ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Registrant is organized under the laws of The Commonwealth of Massachusetts. The Massachusetts Business Corporation Law provides that indemnification of directors, officers, employees and other agents of a corporation, and persons who serve at its request as directors, officers, employees or other agents of another organization, or who serve at its request in any capacity with respect to any employee benefit plan, may be provided by the corporation to whatever extent specified in or authorized by its articles of organization, a by-law adopted by the stockholders or a vote adopted by the holders of a majority of the shares of stock entitled to vote on the election of directors, except that no indemnification may be provided for any person with respect to any matter as to which the person shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interest of the corporation. Under Massachusetts law, a corporation can purchase and maintain insurance on behalf of any person against liability incurred as a director, officer, employee, agent or person serving at the request of the corporation as a director, officer, employee or other agent of another organization or with respect to any employee benefit plan, in his capacity as such, whether or not the corporation would have the power to itself indemnify him against such liability. The Registrant's articles of organization provide that its directors shall not be liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that exculpation from liabilities is not permitted under the Massachusetts Business Corporation Law as in effect at the time such liability is determined. The by-laws of the Registrant provide generally that the Registrant shall, to the extent legally permissible, indemnify its directors and officers against all liabilities and expenses incurred by them in connection with the defense or disposition of any action, suit or other proceeding in which he may be involved, or by which he may be threatened, by reason of his being or having been a director or officer, except with respect to any matter as to which he shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interest of the Registrant. In addition, the Registrant holds a directors and officers liability policy. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. 4.1 1997 Incentive Plan (1) 4.2 Articles of Organization of the Registrant (2) 4.3 By-laws of the Registrant (3) -3- 4.4 Specimen Common Stock Certificate (2) 5.1 Opinion of Ropes & Gray 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Ropes & Gray (contained in the opinion filed as Exhibit 5 to this Registration Statement) 24.1 Power of Attorney (1) Incorporated herein by reference to the Registrant's 1997 Proxy Statement on Schedule 14A. (2) Incorporated herein by reference to the Registrant's Registration Statement on Form S-18 (No. 33-36710-B). (3) Incorporated herein by reference to the Registrant's 1991 Annual Report on Form 10-KSB. ITEM 9. UNDERTAKINGS. (a) The Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to; (i) Include any prospectus required by section 10(a)(3) of the Securities Act; (ii) 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; PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement for the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial BONA FIDE offering thereof; and (3) to file a post-effective amendment to this Registration Statement to remove from registration any of the securities being registered which remain unsold at the termination of the offering. -4- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Gardner, Massachusetts on this 29th day of October, 1999. PRECISION OPTICS CORPORATION, INC. By: /s/ Richard E. Forkey ------------------------------------- Richard E. Forkey Chairman, Chief Executive Officer and President POWER OF ATTORNEY AND SIGNATURES We, the undersigned officers and directors of Precision Optics Corporation, Inc., hereby severally constitute and appoint Richard E. Forkey and Jack P. Dreimiller and each of them singly, as true and lawful attorneys, with full power to them and each of them singly, to sign for us in our names in the capacities indicated below, all additional amendments to this registration statement, and generally to do all things in our names and on our behalf in such capacities to enable Precision Optics Corporation, Inc. to comply with the provisions of the Securities Act of 1993, as amended, and all applicable requirements of the Securities and Exchange Commission. Pursuant to the requirements of the Securities Act of 1933, this registration statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE CAPACITY DATE /s/ Richard E. Forkey Chairman of the October 29, 1999 - ----------------------------------- Board of Directors, Richard E. Forkey Chief Executive Officer and President (principal executive officer) /s/ Jack P. Dreimiller Senior Vice President, October 29, 1999 - ----------------------------------- Finance, Chief Financial Jack P. Dreimiller Officer and Clerk (principal financial and accounting officer) /s/ Edward A. Benjamin Director October 29, 1999 - ----------------------------------- Edward A. Benjamin /s/ H. Angus Macleod Director October 29, 1999 - ----------------------------------- H. Angus Macleod
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/s/ Austin W. Marxe Director October 29, 1999 - ---------------------------------- Austin W. Marxe /s/ Joel R. Pitlor Director October 29, 1999 - ----------------------------------- Joel R. Pitlor /s/ Robert R. Shannon Director October 29, 1999 - --------------------------------- Robert R. Shannon
-6- EXHIBIT INDEX
EXHIBIT NUMBER TITLE OF EXHIBIT 4.1 1997 Incentive Plan (1) 4.2 Articles of Organization of the Registrant (2) 4.3 By-laws of the Registrant (3) 4.4 Specimen Common Stock Certificate (2) 5.1 Opinion of Ropes & Gray 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Ropes & Gray (contained in the opinion filed as Exhibit 5 to this Registration Statement) 24.1 Power of Attorney (included in Part II of this Registration Statement under the caption "Signatures")
(1) Incorporated herein by reference to the exhibit to the Registrant's 1997 Proxy Statement on Schedule 14A. (2) Incorporated herein by reference to the Registrant's Registration Statement on Form S-18 (No. 33-36710-B). (3) Incorporated herein by reference to the Registrant's 1991 Annual Report on Form 10-KSB. -7- EX-5 2 EX 5 EXHIBIT 5.1 ROPES & GRAY ONE INTERNATIONAL PLACE BOSTON, MASSACHUSETTS 02110-2624 (617) 951-7000 FAX: (617) 951-7050 October 29, 1999 Precision Optics Corporation, Inc. 22 East Broadway Street Gardner, Massachusetts 01440 Ladies and Gentlemen: This opinion is furnished to you in connection with a registration statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended, for the registration of 525,000 shares of Common Stock, $0.01 par value per share (the "Shares"), of Precision Optics Corporation, Inc., a Massachusetts corporation (the "Company"), issuable pursuant to awards granted under the Company's 1997 Incentive Plan (the "Plan"). We have acted as counsel to the Company in connection with the preparation of the Registration Statement and the Plan and the issuance of awards under the Plan. For purposes of this opinion we have examined and relied upon such documents, records, certificates and other instruments as we have deemed necessary and appropriate. Based upon the foregoing, we are of the opinion that the Shares have been duly authorized and, when the Shares have been issued and sold, and the consideration therefor has been received by the Company, in accordance with the terms of the Plan, such Shares will be validly issued, fully paid and nonassessable. We hereby consent to your filing this opinion as an exhibit to the Registration Statement. It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect. Very truly yours, /s/ Ropes & Gray Ropes & Gray EX-23.1 3 EX 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the use of our report incorporated by reference in this registration statement of our report dated July 27, 1999 included in Precision Optics Corporation, Inc.'s Form 10-KSB for the year ended June 30, 1999 and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Boston, Massachusetts October 29, 1999 -----END PRIVACY-ENHANCED MESSAGE-----