As filed with the Securities and Exchange Commission on August 1, 2011
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Registration Statement No.
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Delaware
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90-0609531
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3795
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(State or other jurisdiction of
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(I.R.S. Identification Number)
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(Primary Standard Industrial
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incorporation or organization)
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Classification Code Number)
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Large accelerated filer
¨
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Accelerated filer
¨
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Non-accelerated filer
¨
(Do not check if a smaller reporting company)
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Smaller reporting company
x
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Title of Each Class of Securities to be
Registered
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Amount to be
Registered
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Proposed
Maximum
Offering
Price
per unit(1)
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Proposed
Maximum
Aggregate
Offering Price(2)
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Amount of
Registration
Fee
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|||||||||||||
Common Stock, par value $0.001 per share
(3)(4)
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25,000,000 | $ | 0.01 | $ | 250,000 | $ | 29.03 |
(1)
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The offering price has been arbitrarily determined by the Company and bears no relationship to assets, earnings, or any other valuation criteria. No assurance can be given that the shares offered hereby will have a market value or that they may be sold at this, or at any price.
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(2)
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Estimated for the purpose of determining the registration fee pursuant to Rule 457(a). All shares offered hereunder shall be at a fixed price of $.01 per share.
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(3)
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The offering will conclude at the earlier of the sale for all shares or 90 days after this registration statement becomes effective with the Securities and Exchange Commission.
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(4)
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An indeterminate number of additional shares of common stock shall be issuable pursuant to Rule 416 to prevent dilution resulting from stock splits, stock dividends or similar transactions and in such an event the number of shares registered shall automatically be increased to cover the additional shares in accordance with Rule 416 under the Securities Act.
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SHARES OFFERED
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PRICE
TO
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SELLING
AGENT
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PROCEEDS
TO
THE
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||||||
BY COMPANY
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PUBLIC
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COMMISSIONS
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COMPANY
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||||||
Per Share
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$ | 0.01 |
Not applicable
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$ | 0.01 | ||||
Minimum Purchase
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None
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Not applicable
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Not applicable
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||||||
Total (25,000,000 shares)
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$ | 250,000 |
Not applicable
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$ | 250,000 |
PROSPECTUS SUMMARY
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4
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RISK FACTORS
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7
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USE OF PROCEEDS
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17
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MARKET FOR REGISTRANT’S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
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18
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MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
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19
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BUSINESS
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41
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LEGAL PROCEEDINGS
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54
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MANAGEMENT
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54
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EXECUTIVE COMPENSATION
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57
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
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61
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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
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63
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PLAN OF DISTRIBUTION
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66
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DESCRIPTION OF SECURITIES
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67
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LEGAL MATTERS
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69
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EXPERTS
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69
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WHERE YOU CAN FIND MORE INFORMATION
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70
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
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F-1
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OTHER EXPENSES
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II-1
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INDEMNIFICATION OF OFFICERS AND DIRECTORS
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II-1
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RECENT SALES OF UNREGISTERED SECURITIES
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II-1
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EXHIBITS
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II-4
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UNDERTAKINGS
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II-6
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SIGNATURES
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II-8
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Common stock offered by us:
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25,000,000
shares of common stock, par value $0.001 per share.
|
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Offering prices:
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The shares offered by this prospectus shall be $0.01 per share.
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Common stock outstanding:
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139,444,940 shares as of July 27, 2011.
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Dividend policy:
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Dividends on our common stock may be declared and paid when and as determined by our board of directors. We have not paid and do not expect to pay dividends on our common stock.
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OTCBB symbol:
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OPXS.OB
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Use of proceeds:
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We will use the proceeds from this offering to finance sales and marketing and program development needs. Offering expenses of $11,029 are being paid directly by us in connection with the offering.
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Minimum Number of Shares Offered:
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None.
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Termination of the Offering:
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This offering will terminate upon the earlier to occur of (i) 90 days after this registration statement becomes effective with the Securities and Exchange Commission, or (ii) the date on which all 25,000,000 shares registered hereunder have been sold. We may, at our discretion, extend the offering for an additional 90 days. In any event, the offering will end within six months of this Registration Statement being declared effective.
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Terms of the Offering:
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Our officers and directors will sell the common stock upon effectiveness of this registration statement on a best efforts
basis. There is no minimum offering amount, and there will be no proceeds hold in escrow. We will incur our offering expenses regardless of whether any securities are sold hereunder.
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·
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We anticipate that we will have to raise additional funding in the future to finance our future working capital needs and service debt (should we incur any in the future);
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·
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Two customers represent approximately 84% of our revenue and the loss of either could result in a material adverse effect on our business and operations;
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·
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73.52% (approximately) of our issued and outstanding common stock is controlled by one of our officers and directors;
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·
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All of the stock owned by that officer and director has been pledged to secure an obligation of an entity which is controlled by that officer and director and an inability to pay that note when due could result in a change in control in Optex Systems Holdings; and
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·
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We expect gross revenues from our periscope business to decline 25% – 30% in fiscal 2011 as compared to fiscal 2010 and this could have a material adverse effect on our operations and financial condition.
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·
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our ability to fulfill backlog;
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·
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our ability to procure additional production contracts;
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·
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our ability to control costs;
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·
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the timing of payments and reimbursements from government and other contracts, including but not limited to changes in federal government military spending and the federal government procurement process;
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·
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increased sales and marketing expenses;
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general economic conditions including the effects of future economic slowdowns, acts of war or terrorism and the current international conflicts.
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Product Line
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Supplier
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Supply Item
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Risk
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Purchase Orders
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||||
Periscopes
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TSP, Inc.
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Window used on all glass & plastic periscopes
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Proprietary coatings would take in excess of 6 months to identify and qualify an alternative source
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Current firm fixed price & quantity purchase orders are in place with the supplier to meet all contractual requirements. Supplier is on schedule.
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||||
Periscopes
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Spartec Polycast
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Acrylic raw material used in plastic periscope assemblies
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This material has quality characteristics which would take in excess of 6 months to identify and qualify an alternative source.
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Current firm fixed price & quantity purchase orders are in place with the supplier to meet all contractual requirements. Supplier is on schedule.
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||||
Other
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SWS Trimac
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Subcontracted Electron Beam Welding
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Subcontracted welder that is the only qualified supplier for General Dynamics Land Systems muzzle reference system collimator assemblies. This operation would take in excess of 6 months to identify and qualify an alternative supplier.
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Current firm fixed price & quantity purchase orders are in place with the supplier to meet all contractual requirements. Supplier is on schedule.
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Security
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Pre-Offering Per
Share
Exercise/Conversion
Price
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Number of
Shares
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Post-Offering per
Share
Exercise/Conversion
Price
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Number of
Shares
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Percentage Dilution
to Common
Stockholders as a
Result of Decrease
in
Exercise/Conversion
Price
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|||||||||||||||
Series A preferred stock
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$ | .15 | 41,080,000 | $ | .01 | 616,200,000 | 76.11 | % |
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·
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confirming or defeating the election of directors;
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·
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amending or preventing amendment of Optex Systems Holdings’ certificate of incorporation or bylaws;
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·
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effecting or preventing a reorganization, sale of assets or other corporate transaction; and
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·
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controlling the outcome of any other matter submitted to the stockholders for vote.
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limited “public float” following the reorganization, in the hands of a small number of persons whose sales or lack of sales could result in positive or negative pricing pressure on the market price for the common stock;
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economic and other external factors, including but not limited to changes in federal government military spending and the federal government procurement process; and
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Prospectus
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25,000,000 | |||
Shares from warrants issued in the reorganization
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8,131,677 | |||
Shares issued since the reorganization, all with restrictive legends
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1,780,000 |
25%
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50%
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75%
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100%
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|||||||||||||
Shares sold
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6,250,000 | 12,500,000 | 18,750,000 | 25,000,000 | ||||||||||||
Gross proceeds
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$ | 62,500 | $ | 125,000 | $ | 187,500 | $ | 250,000 | ||||||||
Offering costs:
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||||||||||||||||
SEC registration fee
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$ | 29 | $ | 29 | $ | 29 | $ | 29 | ||||||||
Printing and engraving
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1,000 | 1,000 | 1,000 | 1,000 | ||||||||||||
Edgarization expenses
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5,000 | 5,000 | 5,000 | 5,000 | ||||||||||||
Legal fees and expenses
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- | - | - | - | ||||||||||||
Accounting fees and expenses
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5,000 | 5,000 | 5,000 | 5,000 | ||||||||||||
Total offering costs
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$ | 11,029 | $ | 11,029 | $ | 11,029 | $ | 11,029 | ||||||||
Net proceeds
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$ | 51,471 | $ | 113,971 | $ | 176,471 | $ | 238,971 | ||||||||
Use of proceeds:
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||||||||||||||||
Sales and marketing
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$ | 36,029 | $ | 79,780 | $ | 123,530 | $ | 167,279 | ||||||||
Program development (1)
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15,442 | 34,191 | 52,941 | 71,692 | ||||||||||||
Total Use of Proceeds
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$ | 51,471 | $ | 113,971 | $ | 176,471 | $ | 238,971 |
Period
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High
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Low
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||||||
Commencement of Trading through Fourth Quarter 2007
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$ | 0.50 | $ | 0.50 | ||||
First Quarter 2008
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$ | 0.50 | $ | 0.50 | ||||
Second Quarter 2008
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$ | 0.50 | $ | 0.50 | ||||
Third Quarter 2008
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$ | 0.50 | $ | 0.50 | ||||
Fourth Quarter 2008
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$ | 0.50 | $ | 0.50 | ||||
First Quarter 2009
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$ | 0.50 | $ | 0.50 | ||||
Second Quarter 2009
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$ | 0.50 | $ | 0.14 | ||||
Third Quarter 2009
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$ | 0.45 | $ | 0.08 | ||||
Fourth Quarter 2009
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$ | 0.50 | $ | 0.17 | ||||
First Quarter 2010
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$ | 0.50 | $ | 0.09 | ||||
Second Quarter 2010
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$ | 0.15 | $ | 0.08 | ||||
Third Quarter 2010
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$ | 0.09 | $ | 0.04 | ||||
Fourth Quarter 2010
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$ | 0.055 | $ | 0.02 | ||||
First Quarter 2011
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$ | 0.025 | $ | 0.011 | ||||
Second Quarter 2011
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$ | 0.02 | $ | 0.014 | ||||
Third Quarter 2011
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$ | 0.02 | $ | 0.005 |
Description
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Offering
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|||
Additional Personnel
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$ | 150,000 | ||
Legal and Accounting Fees
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$ | 100,000 | ||
Investor Relations Fees
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96,000 | |||
Working Capital
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$ | 528,529 | ||
Totals:
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$ | 874,529 |
Accounting and Auditing Fees
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$ | 250,000 | ||
Legal Fees
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60,000 | |||
Consulting Fees
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60,000 | |||
Workers Comp and General Insurance
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70,000 | |||
Total
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$ | 440,000 |
Successor
Qtr 1
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Successor
Qtr 2
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Successor
Qtr 3
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Successor
Qtr 4
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Successor
-
Twelve
months
ended
October
3, 2010
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Predecessor
- Qtr1
(September
29, 2008
through
October 14,
2008)
|
Successor
- Qtr1
(October
15, 2008
through
December
27, 2008)
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Successor
Qtr2
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Successor
Qtr3
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Successor
Qtr4
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Combined
-
Twelve
months
ended
September
27, 2009
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||||||||||||||||||||||||||||||||||
Net Loss Applicable to Common Shareholders – GAAP
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$ | - | $ | (0.1 | ) | $ | (0.3 | ) | $ | (9.6 | ) | $ | (10.0 | ) | $ | (0.1 | ) | $ | 0.1 | $ | (0.3 | ) | $ | (0.3 | ) | $ | 0.4 | $ | (0.2 | ) | ||||||||||||||
Add:
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||||||||||||||||||||||||||||||||||||||||||||
Interest Expense
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- | - | - | 0.1 | 0.1 | - | 0.1 | 0.1 | - | - | 0.2 | |||||||||||||||||||||||||||||||||
Preferred Stock Dividend
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0.1 | 0.1 | 0.1 | 0.1 | 0.4 | - | - | - | - | 0.2 | 0.2 | |||||||||||||||||||||||||||||||||
Federal Income Taxes (Benefit)
|
- | (0.1 | ) | (0.2 | ) | - | (0.3 | ) | - | 0.2 | 0.1 | 0.1 | (0.7 | ) | (0.3 | ) | ||||||||||||||||||||||||||||
Asset Impairment
|
- | - | - | 8.0 | 8.0 | - | - | - | - | - | - | |||||||||||||||||||||||||||||||||
Depreciation & Amortization
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0.3 | 0.3 | 0.3 | 0.2 | 1.1 | - | 0.6 | 0.5 | 0.5 | 0.6 | 2.2 | |||||||||||||||||||||||||||||||||
EBITDA - Non GAAP
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$ | 0.4 | $ | 0.2 | $ | (0.1 | ) | $ | (1.2 | ) | $ | (0.7 | ) | $ | (0.1 | ) | $ | 1.0 | $ | 0.4 | $ | 0.3 | $ | 0.5 | $ | 2.1 |
2011
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2012
|
2013
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||||||||||||||||||||||||||||||||||||||||||||||
Program
Backlog
(millions)
|
Qtr 1
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Qtr 2
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Qtr 3
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Qtr 4
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Qtr 1
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Qtr 2
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Qtr 3
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Qtr 4
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Qtr 1
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Qtr 2
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Qtr 3
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Total
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||||||||||||||||||||||||||||||||||||
Howitzer Programs
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0.9 | 1.5 | 1.8 | 0.8 | - | - | - | - | - | - | - | 5.0 | ||||||||||||||||||||||||||||||||||||
Periscope Programs
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1.3 | 2.8 | 1.4 | 1.2 | 1.5 | 1.3 | 1.0 | 0.7 | 0.4 | 0.3 | 0.1 | 12.0 | ||||||||||||||||||||||||||||||||||||
Sighting Systems
|
- | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||
All Other
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1.1 | 0.3 | 0.2 | 0.1 | - | 0.1 | - | 0.1 | 0.1 | - | - | 2.0 | ||||||||||||||||||||||||||||||||||||
Total
|
3.3 | 4.6 | 3.4 | 2.1 | 1.5 | 1.4 | 1.0 | 0.8 | 0.5 | 0.3 | 0.1 | 19.0 |
Product Line
|
Year
ended
10/03/2010
(Successor)
|
Year
ended
9/27/2009
(Combined
(1))
|
Change
|
|||||||||
Howitzer Programs
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$ | 6.1 | $ | 2.6 | 3.5 | |||||||
Periscope Programs
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$ | 11.8 | $ | 14.9 | (3.1 | ) | ||||||
Sighting Systems
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$ | .9 | $ | 4.7 | (3.8 | ) | ||||||
All Other
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$ | 4.1 | $ | 5.4 | (1.3 | ) | ||||||
Total
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$ | 22.9 | $ | 27.6 | (4.7 | ) | ||||||
Percent decrease
|
(17.0 | )% |
(1)
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Includes Revenue of $0.9 million for Optex Systems Texas (Predecessor) period from September 29, 2008 through October 14, 2008 and $26.7 million for Optex Systems, Inc. (Successor) period October 15, 2008 through September 27, 2009.
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·
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The interest rate for all advances shall be the greater of 8.5% and the then in effect prime rate plus 3.5% and subject to a minimum quarterly interest payment of $16,000.
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|
·
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Interest shall be paid monthly in arrears.
|
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·
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The expiration date of the facility is March 4, 2011, at which time any outstanding advances, and accrued and unpaid interest thereon, will be due and payable.
|
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·
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In connection with the entry into the facility by Peninsula Bank Business Funding, Optex Systems, Inc.(Delaware) paid Peninsula Bank Business Funding a facility fee of $20,000 and issued a warrant to Peninsula Bank Business Funding to purchase 1,000,000 shares of its common stock. The warrant bears an exercise price of $0.10 per share and expires on March 3, 2016.
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·
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The obligations of Optex Systems, Inc. (Delaware) to Peninsula Bank Business Funding are secured by a first lien on all of its assets (including intellectual property assets should it have any in the future) in favor of Peninsula Bank Business Funding.
|
|
·
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The facility contains affirmative and negative covenants that require Optex Systems, Inc. (Delaware) to maintain certain minimum cash and EBITDA levels on a quarterly basis and contains other customary covenants. The facility also contains customary events of default. Upon the occurrence of an event of default that remains uncured after any applicable cure period, Peninsula Bank Business Funding’s commitment to make further advances may terminate, and Peninsula Bank Business Funding would also be entitled to pursue other remedies against Optex Systems, Inc. (Delaware) and the pledged collateral.
|
|
·
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Pursuant to a guaranty executed by Optex Systems Holdings in favor of Peninsula Bank Business Funding, Optex Systems Holdings has guaranteed all obligations of Optex Systems, Inc. (Delaware) to Peninsula Bank Business Funding.
|
|
·
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The units-of-delivery method recognizes as revenue the contract price of units of a basic production product delivered during a period and as the cost of earned revenue the costs allocable to the delivered units; costs allocable to undelivered units are reported in the balance sheet as inventory or work in progress. The method is used in circumstances in which an entity produces units of a basic product under production-type contracts in a continuous or sequential production process to buyers' specifications.
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Qtr 1 ending
January 2,
2011
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Qtr 2 ending
April 3, 2011
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Six months
ending
April 3, 2011
|
Qtr 1 ending
December 27,
2009
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Qtr 2 ending
March 28,
2010
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Six months
ending
March 28,
2010
|
|||||||||||||||||||
Net Loss Applicable to Common Shareholders - GAAP
|
$ | (0.05 | ) | $ | (0.12 | ) | $ | (0.17 | ) | $ | - | $ | (0.10 | ) | $ | (0.10 | ) | |||||||
Add:
|
- | - | ||||||||||||||||||||||
Interest Expense
|
0.02 | 0.03 | 0.05 | - | - | - | ||||||||||||||||||
Preferred Stock Dividend
|
0.10 | 0.10 | 0.20 | 0.10 | 0.10 | 0.20 | ||||||||||||||||||
Federal Income Taxes (Benefit)
|
0.03 | (0.01 | ) | 0.02 | - | (0.10 | ) | (0.10 | ) | |||||||||||||||
Depreciation & Amortization
|
0.02 | 0.02 | 0.04 | 0.30 | 0.30 | 0.60 | ||||||||||||||||||
EBITDA - Non GAAP
|
$ | 0.12 | $ | 0.02 | $ | 0.14 | $ | 0.40 | $ | 0.20 | $ | 0.60 |
2011
|
2012
|
2013
|
||||||||||||||||||||||||||||||||||||||
Program Backlog
(millions)
|
Qtr 3
|
Qtr 4
|
Qtr 1
|
Qtr 2
|
Qtr 3
|
Qtr 4
|
Qtr 1
|
Qtr 2
|
Qtr 3
|
Total
|
||||||||||||||||||||||||||||||
Howitzers
|
2.6 | 0.8 | - | - | - | - | - | - | - | 3.4 | ||||||||||||||||||||||||||||||
Periscopes
|
2.1 | 1.7 | 2.0 | 1.7 | 1.2 | 0.4 | 0.1 | 0.1 | 0.1 | 9.4 | ||||||||||||||||||||||||||||||
Sighting Systems
|
0.1 | - | 0.1 | - | - | - | - | - | - | 0.2 | ||||||||||||||||||||||||||||||
All Other
|
0.3 | 0.2 | - | 0.1 | 0.1 | - | 0.1 | - | - | 0.8 | ||||||||||||||||||||||||||||||
Total
|
5.1 | 2.7 | 2.1 | 1.8 | 1.3 | 0.4 | 0.2 | 0.1 | 0.1 | 13.8 |
(In Millions,
except for
percentages)
|
||||||||||||
Three Months
ended
|
|
|||||||||||
Product Line
|
April
3, 2011
|
March
28, 2010
|
Percent
Change
|
|||||||||
Howitzer Programs
|
$ | 0.8 | $ | 1.6 | $ | -0.8 | ||||||
Periscope Programs
|
2.6 | 3.2 | (0.6 | ) | ||||||||
Sighting Systems
|
- | 0.3 | (0.3 | ) | ||||||||
All Other
|
0.4 | 1.2 | (0.8 | ) | ||||||||
Total
|
$ | 3.8 | $ | 6.3 | $ | (2.5 | ) | |||||
Percent increase (decrease)
|
(-39.7 | )% |
(In Millions,
except for
percentages)
|
||||||||||||
Six Months
ended
|
|
|||||||||||
Product Line
|
April
3, 2011
|
March
28,
2010
|
Percent
Change
|
|||||||||
Howitzer Programs
|
$ | 2.4 | $ | 2.6 | $ | -0.2 | ||||||
Periscope Programs
|
5.6 | 6.4 | (0.8 | ) | ||||||||
Sighting Systems
|
- | 0.7 | (0.7 | ) | ||||||||
All Other
|
0.7 | 2.5 | (1.8 | ) | ||||||||
Total
|
$ | 8.7 | $ | 12.2 | $ | (3.5 | ) | |||||
Percent increase (decrease)
|
(-28.7 | )% |
|
·
|
The interest rate for all advances shall be the greater of 8.5% and the then in effect prime rate plus 3.5% and subject to a minimum quarterly interest payment of $16 thousand.
|
|
·
|
Interest shall be paid monthly in arrears.
|
|
·
|
The expiration date of the facility is March 4, 2011, at which time any outstanding advances, and accrued and unpaid interest thereon, will be due and payable.
|
|
·
|
In connection with the entry into the facility by Peninsula Bank Business Funding, Optex Systems, Inc. paid Peninsula Bank Business Funding a facility fee of $20 thousand and issued a warrant to Peninsula Bank Business Funding to purchase 1,000,000 shares of its common stock. The warrant bears an exercise price of $0.10 per share and expires on March 3, 2016.
|
|
·
|
The obligations of Optex Systems, Inc. to Peninsula Bank Business Funding are secured by a first lien on all of its assets (including intellectual property assets should it have any in the future) in favor of Peninsula Bank Business Funding.
|
|
·
|
The facility contains affirmative and negative covenants that require Optex Systems, Inc. to maintain certain minimum cash and EBITDA levels on a quarterly basis and contains other customary covenants. The facility also contains customary events of default. Upon the occurrence of an event of default that remains uncured after any applicable cure period, Peninsula Bank Business Funding’s commitment to make further advances may terminate, and Peninsula Bank Business Funding would also be entitled to pursue other remedies against Optex Systems, Inc. and the pledged collateral.
|
|
·
|
Pursuant to a guaranty executed by Optex Systems Holdings in favor of Peninsula Bank Business Funding, Optex Systems Holdings has guaranteed all obligations of Optex Systems, Inc. to Peninsula Bank Business Funding.
|
Regulation
|
Summary
|
|
Federal Acquisition Regulation
|
The principal set of rules in the Federal Acquisition Regulation System. This system consists of sets of regulations issued by agencies of the federal government of the United States to govern what is called the "acquisition process," which is the process through which the government acquires goods and services. That process consists of three phases: (1) need recognition and acquisition planning, (2) contract formation, and (3) contract administration. The FAR System regulates the activities of government personnel in carrying out that process. It does not regulate the purchasing activities of private sector firms, except to the extent that those activities involve government solicitations and contracts by reference.
|
|
International Traffic in Arms Regulations
|
United States government regulations that control the export and import of defense-related articles and services on the United States Munitions List. These regulations implement the provisions of the Arms Export Control Act.
|
|
Truth in Negotiations Act
|
A public law enacted for the purpose of providing for full and fair disclosure by contractors in the conduct of negotiations with the government. The most significant provision included is the requirement that contractors submit certified cost and pricing data for negotiated procurements above a defined threshold, which was increased from $650,000 to $700,000 on October 1, 2010. It requires contractors to provide the government with an extremely broad range of cost or pricing information relevant to the expected costs of contract performance, and it requires contractors and subcontractors to submit cost or pricing data to the government and to certify that, to the best of their knowledge and belief, the data are current, accurate, and complete.
|
DSP-5 Licenses
|
Issue Date
|
Expiration Date
(48 months from date of issue)
|
||
50137740
|
1/5/2009
|
1/4/2013
|
||
50146207
|
3/13/2009
|
3/12/2013
|
||
50137823
|
1/5/2009
|
1/4/2013
|
||
50128943
|
11/24/2008
|
11/23/2012
|
||
50169739
|
6/4/2009
|
6/3/2013
|
||
50185923
|
8/28/2009
|
8/27/2013
|
||
50187735
|
3/19/2010
|
3/18/2014
|
||
50230854
|
3/30/2010
|
3/29/2014
|
||
50220671
|
10/1/2009
|
9/30/2013
|
||
50233257
|
6/10/2010
|
6/9/2014
|
||
50221743
|
4/1/2010
|
3/31/2014
|
||
50209709
|
2/23/2010
|
2/22/2014
|
||
50302078
|
5/27/2011
|
5/26/2015
|
||
50187735
|
10/1/2009
|
9/30/2013
|
||
50269333
|
1/7/2011
|
1/6/2015
|
||
50274142
|
1/5/2011
|
1/4/2015
|
||
50184920
|
8/19/2009
|
8/18/2013
|
||
50275888
|
2/28/2011
|
2/27/2015
|
||
50284334
|
3/1/2011
|
2/28/2015
|
||
50290287
|
4/13/2011
|
4/12/2015
|
||
50290963
|
5/2/2011
|
5/1/2015
|
DSP-73 Licenses
|
Issue Date
|
Expiration Date
(48 months from date of issue)
|
||
730024737
|
2/16/2010
|
2/15/2014
|
||
730007737
|
8/13/2008
|
8/12/2012
|
||
730008340
|
9/26/2008
|
9/25/2012
|
||
730008736
|
11/18/2008
|
11/17/2012
|
||
730010051
|
2/27/2009
|
2/26/2013
|
||
730026913
|
6/15/2010
|
6/15/2014
|
||
730030429
|
2/22/2011
|
2/21/2015
|
Customer
|
Contract
|
Contract Quantities
|
Total
Award
|
Progress
Billable
|
Order
Period
|
Remaining
Value
|
Delivery
|
||||||||||||||||||
Customer
|
PO/Contract
|
Type
|
Min Qty
|
Max Qty
|
Value (4)
|
(1) |
Expiration
|
(5) |
Period
|
||||||||||||||||
Tank-
automotive and Armaments Command - Rock Island
|
W52H09-05- D- 0260 |
5 Year Firm Fixed Price (3)
|
138 | 2,100 | $ | 9,762,286 |
Yes
|
30-Jun-10
|
$ | 2,511,760 |
Oct 2007-
May 2011
|
||||||||||||||
Tank-automotive and Armaments Command - Rock Island (2)
|
W52H09- 09- D-0128 |
3 Yr – Evaluated Pricing (3). Restricted Procurement between Optex Systems & Miller Holzwarth
|
250 each
supplier
|
250 each
supplier
|
$ | 118,250 |
Yes
|
31-Dec-11
|
$ | 0 |
Initial award deliverable Aug - Sept 2009. Additional awards not to exceed aggregate 2000 units per month total units.
|
||||||||||||||
General Dynamics Land Systems
|
40050551
(Multiple
Prime
Contracts)
|
Firm Fixed Price and Fixed Quantity Purchase Order
|
N/A | N/A | $ | 6,330,336 |
Yes
|
N/A
|
$ | 4,062,507 |
Jan 2011 -
Feb 2013
|
|
·
|
Electronic sighting systems
|
|
·
|
Mechanical sighting systems
|
|
·
|
Laser protected glass periscopes
|
|
·
|
Laser protected plastic periscopes
|
|
·
|
Non-laser protected plastic periscopes
|
|
·
|
Howitzer sighting systems
|
|
·
|
Ship binoculars
|
|
·
|
Replacement optics (e.g. filters, mirrors)
|
|
·
|
The lease term is extended until July 31, 2015.
|
|
·
|
The annual base rent rate is as follows: until 7/31/2010, $0.00 per square foot, from 8/1/2010 – 7/31/2013, $4.70 per square foot and from 8/1/2013 – 7/31/2015, $4.95 per square foot.
|
|
·
|
A $195,352.00 improvement allowance is included.
|
|
·
|
For the first two years of the extended term, the landlord has granted the option to take over additional space at similar terms as in the amendment.
|
|
·
|
Reliability – failure can cost lives
|
|
·
|
Time delivery to schedule
|
|
·
|
Cost effectiveness
|
|
·
|
Armed forces need to be able to see to perform
|
|
·
|
Mission critical products.
|
|
·
|
Big Eye Binoculars – While the military application we produce is based on mature military designs, Optex Systems Holdings owns all castings, tooling and glass technology. These large fixed mount binoculars could be sold to cruise ships, personal yachts and cities/municipalities.
|
|
·
|
Night Vision Sight – Optex Systems Holdings has manufactured the optical system for the NL-61 Night Vision Sight for the Ministry of Defense of Israel. This technology could be implemented for commercial applications.
|
|
·
|
Infrared Imaging Equipment – Optex Systems Holdings manufactures and assembles infrared imaging equipment and components for Raytheon’s Thermal Imaging M36 Mount product. This equipment and technology has potential to be assembled for border patrol, police and governmental security agencies.
|
1)
|
Sell existing products to existing customers.
|
2)
|
Sell existing products to new customers.
|
3)
|
Develop new products to meet the needs of our existing customers.
|
4)
|
Develop new products to meet the needs of new customers.
|
Name
|
Product Line
|
|
M137, M187, M119 Aiming Device
|
Howitzer Sighting Systems
|
|
Aiming Circle
|
Howitzer Sighting Systems
|
|
Periscopes
|
Laser Protected Plastic Periscopes
|
|
Collimators
|
Electronic Sighting Systems
|
|
Back Up Sights
|
Mechanical Sighting Systems
|
|
ICWS
|
Laser Protected Glass Periscopes
|
-
|
Successful completion of annual surveillance audit for ISO9001:2008 certificate, with no major nonconformance issues
|
-
|
Weekly cycle counts on inventory items
|
-
|
Weekly material review board meeting on non-moving piece parts
|
-
|
Kanban kitting on products with consistent ship weekly ship quantities
|
-
|
Daily cross functional floor meetings focused on delivery, yields and labor savings
|
-
|
Redesigned floor layout using tenant improvement funds
|
-
|
Daily review of yields and product velocity
|
-
|
Bill of material reviews prior to work order release
|
Name
|
Age
|
Position
|
||
Stanley A. Hirschman
|
64
|
President, Secretary, Treasurer & Director
|
||
Merrick D. Okamoto
|
50
|
Director
|
||
Ronald F. Richards
|
45
|
Chairman of the Board
|
||
Danny Schoening
|
46
|
Chief Operating Officer
|
||
Karen L. Hawkins
|
46
|
Vice President of Finance and Controller
|
Name and
|
Option
|
All Other
|
|||||||||||||||||||||||||
Principal
|
Salary
|
Bonus
|
Stock
|
Awards ($)
|
Compensation
|
Total
|
|||||||||||||||||||||
Position
|
Year
|
($)
|
($)
|
Awards ($)
|
(5) |
($) (8)
|
($)
|
||||||||||||||||||||
Stanley A. Hirschman,
|
2010
|
(7) | $ | 51,000 | $ | $ | - | $ | - | $ | 16,650 | $ | 67,650 | ||||||||||||||
President (6)
|
2009
|
(4) | - | - | - | - | 25,000 | 25,000 | |||||||||||||||||||
Danny Schoening,
|
2010
|
$ | 196,574 | $ | 57,300 | $ | - | $ | 21,584 | $ | 15,524 | $ | 290,982 | ||||||||||||||
COO (6)
|
2009
|
182,932 | 11,000 | - | 10,588 | - | 204,520 | ||||||||||||||||||||
2008
|
(1,2) | 122,646 | 10,300 | 7,500 | - | - | 140,446 | ||||||||||||||||||||
Karen Hawkins, VP
|
|||||||||||||||||||||||||||
Finance / Controller (6)
|
2010
|
$ | 146,575 | $ | 7,450 | $ | - | $ | 14,854 | $ | 6,041 | $ | 174,920 | ||||||||||||||
2009
|
133,647 | 7,271 | - | 5,516 | - | 146,434 | |||||||||||||||||||||
2008
|
132,473 | 300 | - | - | - | 132,773 | |||||||||||||||||||||
Andrey Oks, CEO, CFO, Secretary,
|
|||||||||||||||||||||||||||
Treasurer and Director
|
2008
|
(3) | - | - | 10,000 | - | - | 10,000 |
1
|
The compensation depicted is not reflective of a full year’s compensation as Danny Schoening did not begin employment until the second quarter of fiscal year 2008. For Mr. Schoening, information is for service as an officer of Optex Texas and Optex Delaware. Given the fact that there has not been a change in fiscal year but rather adoption of the fiscal year of the accounting acquirer, there has been no adjustment made to treat the period since the change in fiscal year as a stub period, and all numbers presented are for complete fiscal years.
|
2
|
Stock awards include issues of 10,000 common shares of Irvine Sensors Common Stock on January 16, 2008 at the then current market share price of $0.75 per share.
|
3
|
Mr. Oks was appointed as an officer of Sustut as of September 15, 2008 and resigned as of March 29, 2009. Mr. Oks was given 10,000,000 shares of restricted stock as compensation for services which was forfeited to Sustut on the date of his resignation.
|
4
|
Mr. Hirschman’s compensation in 2009 consisted solely of Director’s Fees. He received no other compensation.
|
5
|
The amounts in the “Option awards” column reflect the dollar amounts recognized as the executive portion of compensation expense for financial statement reporting purposes for each named executive officer during fiscal 2009 and fiscal 2010, as required by FASB ASC 718 (prior authoritative literature SFAS 123(R), disregarding any estimates for forfeitures relating to service-based vesting conditions. For the assumptions relating to these valuations, see note 12 to our fiscal 2009 audited financial statements. Andrey Oks was an executive of Sustut Exploration, Inc. during 2008, prior to the reverse merger on March 30, 2009. Concurrent with the reverser merger and name change to Optex Systems Holdings, Inc on March 30, 2009 Optex Systems Holdings adopted the fiscal year end of the accounting acquirer and changed the period end from December 31 to a fiscal year end of September. There were no earnings of either of these individuals subsequent to the reverse merger and adoption of the accounting acquirer’s fiscal period. All compensation expense shown for these individuals prior to the March 30, 2009 reorganization are depicted in the calendar year ending December 31, 2008.
|
6
|
Danny Schoening, Karen Hawkins and Stanley A. Hirschman were all executives of Optex Systems Holdings subsequent to the March 30, reorganization. Prior to the reorganization Danny Schoening and Karen Hawkins were executives of Optex Systems, Inc (Texas) and Optex Systems, Inc (Delaware) and Stanley Hirschman became an executive of Optex Systems, Inc (Delaware) in September 2008. Both Optex Systems, Inc. (Texas) and Optex Systems, Inc (Delaware) had previously been operating under an October through September fiscal year end and as such, compensation for these individuals is depicted in fiscal years beginning in October and ending in September for each of the years 2008 and 2009.
|
7
|
This includes director fees paid through January 2010 of $10,000, listed as “Other”. Commencing February 1, 2010 Stanley Hirschman was paid a salary for which he received $51,000 in 2010, which is listed as “Salary”.
|
8
|
Other compensation includes employee and dependant medical insurance benefits offered as part of executive compensation.
|
Option Awards
|
|||||||||||||||||||||
Number of shares underlying unexercised options
|
|||||||||||||||||||||
Non-Plan
|
Equity Incentive Plan
Awards
|
||||||||||||||||||||
Name
|
#
Exercisable
|
#
Unexercisable
|
Total
Granted
|
Exercise
Price
|
Expiration
Date
|
Footnotes
|
|||||||||||||||
Danny Schoening
|
947,815 | 466,834 | 1,414,649 | 0.15 |
3/29/2016
|
(1) | |||||||||||||||
Karen Hawkins
|
125,000 | 125,000 | 250,000 | 0.15 |
5/13/2016
|
(2) |
|
(1)
|
Options granted on March 30, 2009 pursuant to employment agreement and reverse Merger. Shares vest over 3 years at a rate of 34%, 33% and 33% for each respective anniversary date subsequent to 2009 and expire after seven years. As of October 3, 2010 480,981 of the options had vested and as of July 27, 2011,a total of 947,815 had vested.
|
|
(2)
|
Options granted on May 14, 2009 pursuant to employee stock option compensation plan. Shares vest over 4 years at a rate of 25% per year each respective anniversary date subsequent to 2009 and expire after seven years. As of October 3, 2010 and July 27, 2011 62,500 and 125,000 of the options had vested, respectively.
|
Fees
Earned or
|
Non-Equity
|
Nonqualified
|
||||||||||||||||||||||||||
Paid in
|
Stock
|
Option
|
Incentive Plan
|
Deferred
|
All Other
|
|||||||||||||||||||||||
Cash
|
Awards
|
Awards
|
Compensation
|
Compensation
|
Compensation
|
|||||||||||||||||||||||
Name
|
($)
|
($)
|
($)
|
($)
|
Earnings ($)
|
($)
|
Total ($)
|
|||||||||||||||||||||
Ronald F. Richards (1)
|
$ | 120,000 | — | — | — | — | — | $ | 120,000 | |||||||||||||||||||
Stanley A. Hirschman (2)
|
10,000 | — | — | — | — | — | 10,000 | |||||||||||||||||||||
Merrick Okamoto (3)
|
— | — | — | — | — | — | — |
|
(1)
|
Director Fees paid monthly from October 2009 through September 2010. Mr. Richards is paid $2,500 monthly as an Independent Director, $2,500 monthly for serving as Chairman of the Audit Committee, and $5,000 monthly for serving as Chairman of the Board of Directors.
|
|
(2)
|
Director Fees paid monthly from October 2009 through January 2010. Mr. Hirschman was paid $2,500 monthly as a Director. Effective as of February 1, 2010,director fees to Mr. Hirschman were discontinued, and he was paid a direct salary from Optex Systems Holdings.
|
|
(3)
|
Mr. Okamoto serves as a non-independent director and does not earn directors fees.
|
|
Conversion
|
Resulting
|
||||||||||||||||||||||||||||
|
|
Percentage
|
at
|
|
percentage
|
|||||||||||||||||||||||||
Name of | Preferred | of | $ .01 | Resulting | of | |||||||||||||||||||||||||
Beneficial
|
Number of
|
Conversion
|
Combined
|
Outstanding
|
Conversion
|
Combined
|
Outstanding
|
|||||||||||||||||||||||
Title of Class
|
Owner
|
Shares
|
(4) |
Ownership
|
Shares
|
Price
|
Ownership
|
Shares
|
||||||||||||||||||||||
5% Holders
|
Arland Holdings, Ltd. (1)
|
11,148,935 | 11,148,935 | 5.85 | % | 60,600,000 | 60,600,000 | 7.92 | % | |||||||||||||||||||||
Sileas Corporation (2,3)
|
102,184,347 | 37,040,000 | 139,224,347 | 73.09 | % | 555,600,000 | 657,784,347 | 85.92 | % | |||||||||||||||||||||
Directors and Officers:
|
Stanley Hirschman (2)
|
102,184,347 | 37,040,000 | 139,224,347 | 73.09 | % | 444,480,000 | 546,664,347 | 71.40 | % | ||||||||||||||||||||
Danny Schoening (5)(8)
|
103,118,628 | 37,040,000 | 140,158,628 | 73.58 | % | 83,340,000 | 186,458,628 | 24.35 | % | |||||||||||||||||||||
Karen Hawkins (9)
|
125,000 | - | 125,000 | 0.07 | % | 27,780,000 | 27,905,000 | 3.64 | % | |||||||||||||||||||||
Ronald Richards
|
- | - | - | - | - | - | - | |||||||||||||||||||||||
Merrick Okamoto (7)
|
1,950,000 | - | 1,950,000 | 1.0 | % | - | 1,950,000.00 | 0.25 | % | |||||||||||||||||||||
Directors and officers as a group (5 Individuals)
|
||||||||||||||||||||||||||||||
104,134,347 | 37,040,000 | 141,174,347 | 74.12 | % | 555,600,000 | 659,734,347 | 86.17 | % |
1
|
Represents shares held by Arland Holdings, Ltd., which is located at 551 5th Avenue, Suite 1601, New York, NY 10176. Arie Rabinowitz has voting control over the shares held by Arland Holdings, Ltd.
|
2
|
Represents shares held by Sileas of which Stanley Hirschman, a Director/Officer Optex Systems Holdings, has a controlling interest (80%); therefore, under Rule 13d-3 of the Exchange Act, Mr. Hirschman is deemed to be the beneficial owner, along with Mr. Schoening.
|
3
|
Sileas’ ownership interest in Optex Systems Holdings has been pledged to Longview as security for a loan in connection with the acquisition of Longview’s interests in Optex Delaware by Sileas. Investment decisions for Longview are made by its investment advisor, Viking Asset Management, LLC. Mr. Peter Benz is the Chairman, Chief Executive Officer and a Managing Member of Viking Asset Management and may be deemed to control its business activities, including the investment activities of Longview. Mr. Merrick Okamoto who is a director of Optex Systems Holdings is the President and a Managing Member of Viking Asset Management and may be deemed to control its business activities, including the investment activities of Longview. In the event of a default by Sileas on its debt obligation to Longview, the shares held by Sileas may be returned to Longview. Viking and Longview each may be deemed to have shared voting and dispositive authority over the shares of Optex Systems Holdings’ common stock if they are returned to Longview. In such an event, Mr. Benz and Mr. Okamoto, as control persons of Viking and/or Longview, may be deemed to beneficially own all such shares; however, they have stated that they would disclaim such beneficial ownership were this to occur.
|
4
|
Represents shares of common stock issuable upon conversion of preferred stock held by the stockholder. Sileas Corporation holds 90% or 926 of the preferred shares which are convertible into 37,040,000 common shares. Alpha Capital owns the remaining 10% or 101 preferred shares convertible into 4,040,000 common shares, representing less than 2.13% total beneficially ownership.
|
5
|
Represents
102,184,347
shares held by Sileas of which Mr. Schoening, an Officer of Optex Systems Holdings, has a controlling interest (15%); therefore, under Rule 13d-3 of the Exchange Act, Mr. Schoening is deemed to be the beneficial owner, along with Mr. Hirschman, of those shares.
|
6
|
Represents shares held by Alpha Capital Anstalt, which is located at Pradfant 7, 9490 Furstentums, Vaduz, Lichtenstein. Konrad Ackerman has voting control and investment power over the shares held by Alpha Capital Anstalt.
|
7
|
Represents 975,000 shares of Common Stock and 975,000 warrants held by Longview Fund, LP. Investment decisions for Longview are made by its investment advisor, Viking Asset Management, LLC. Mr. Merrick Okamoto who is a director of Optex Systems Holdings is the President and a Managing Member of Viking Asset Management and may be deemed to control its business activities, including the investment activities of Longview. Mr. Okamoto, as a control person of Viking and/or Longview, may be deemed to beneficially own all such shares; however, he disclaims such beneficial ownership.
|
8
|
Includes options to purchase 934,281 shares of our common stock which have vested and are currently exercisable.
|
9
|
Represents options to purchase 125,000 shares of our common stock which have vested and are currently exercisable.
|
10
|
Shows effect if all preferred shares were converted at $.01 if the conversion price is lowered pursuant to the ratchet provision in the Series A preferred stock certificate of designation if the offering covered by this registration statement is commenced.
|
Existing Sustut Shareholders
|
17,449,991 | |||
Optex Systems, Inc. (Delaware) shares exchanged
|
113,333,282 | |||
Optex Systems, Inc. (Delaware) Private Placement shares exchanged
|
8,131,667 | |||
Total Shares after reorganization
|
138,914,940 | |||
Cancellation of shares - American Capital Ventures
|
(700,000 | ) | ||
Private placement - June 29, 2009
|
750,000 | |||
Issuance of shares as consideration - ZA Consulting
|
480,000 | |||
Shares Outstanding on September 27, 2009
|
139,444,940 |
|
·
|
our limited operating experience;
|
|
·
|
our new business structure and operations as well as limited client base;
|
|
·
|
prevailing market conditions, including the history and prospects for our industry;
|
|
·
|
market conditions tend to be harder on new businesses;
|
|
·
|
our future prospects and the experience of our management;
|
|
·
|
our capital structure;
|
Authorized Shares:
|
1,027
|
|
Per Share Stated Value:
|
$6,000
|
|
Liquidation Preference:
|
Per share stated value
|
|
Conversion Price into common stock:
|
$0.15 per share, as adjusted on a pro rata basis for stock splits, dividends, combinations or reclassifications and on a full ratchet basis for equity issuances at a price less than the then in effect exercise price.
|
|
Voting Rights:
|
The Series A preferred shares shall vote along with the common stock on an as converted basis and shall have one vote per share.
|
|
Dividends:
|
6% per annum payable quarterly payable quarterly in arrears.
|
|
·
|
the transaction is approved by the board of directors before the date the interested stockholder attained that status;
|
|
·
|
upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced; or
|
|
·
|
on or after the date the business combination is approved by the board of directors and authorized at a meeting of stockholders by at least two-thirds of the outstanding voting stock that is not owned by the interested stockholder.
|
|
·
|
any merger or consolidation involving the corporation and the interested stockholder;
|
|
·
|
any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;
|
|
·
|
subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;
|
|
·
|
any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or
|
|
·
|
the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.
|
|
·
|
the right of the board of directors to elect a director to fill a vacancy created by the resignation of a director or the expansion of the board of directors;
|
|
·
|
the requirement for advance notice for nominations of candidates for election to the board of directors or for proposing matters that can be acted upon at a stockholders’ meeting (as set forth in Article II Section IV of the Bylaws which require notice to be given least ten (10) and not more than sixty (60) days prior to each meeting, and notice of each special meeting shall also state the purpose or purposes for which it has been called); and
|
|
·
|
the right of our board of directors to alter our bylaws without stockholder approval.
|
/s/EFP Rotenberg, LLP
|
|
EFP Rotenberg, LLP
|
|
Rochester, New York
|
|
December 23, 2010
|
October 3,
2010
|
September
27, 2009
|
|||||||
ASSETS
|
||||||||
Current Assets
|
||||||||
Cash
|
$
|
1,030,203
|
$
|
915,298
|
||||
Accounts Receivable
|
2,375,283
|
1,802,429
|
||||||
Net Inventory
|
5,889,786
|
8,013,881
|
||||||
Prepaid Expenses
|
244,981
|
318,833
|
||||||
Total Current Assets
|
$
|
9,540,253
|
$
|
11,050,441
|
||||
Property and Equipment
|
||||||||
Property Plant and Equipment
|
$
|
1,456,974
|
$
|
1,341,271
|
||||
Accumulated Depreciation
|
(1,160,677
|
)
|
(1,094,526
|
)
|
||||
Total Property and Equipment
|
$
|
296,297
|
$
|
246,745
|
||||
Other Assets
|
||||||||
Deferred Tax Asset - Long Term (net)
|
993,496
|
711,177
|
||||||
Security Deposits
|
$
|
20,684
|
$
|
20,684
|
||||
Intangibles
|
0
|
1,965,596
|
||||||
Goodwill
|
0
|
7,110,415
|
||||||
Total Other Assets
|
$
|
1,014,180
|
$
|
9,807,872
|
||||
Total Assets
|
$
|
10,850,730
|
$
|
21,105,058
|
October 3,
2010
|
September
27, 2009
|
|||||||
LIABILITIES AND STOCKHOLDERS' EQUITY
|
||||||||
Current Liabilities
|
||||||||
Accounts Payable
|
$
|
763,440
|
$
|
2,497,322
|
||||
Accrued Expenses
|
573,930
|
671,045
|
||||||
Accrued Warranties
|
25,000
|
81,530
|
||||||
Accrued Contract Losses
|
1,357,068
|
1,348,060
|
||||||
Credit Facility
|
1,106,852
|
$
|
-
|
|||||
Total Current Liabilities
|
$
|
3,826,290
|
$
|
4,597,957
|
||||
Stockholders' Equity
|
||||||||
Optex Systems Holdings, Inc. – (par $0.001, 200,000,000 authorized, 139,444,940 shares issued and outstanding)
|
$
|
139,445
|
$
|
139,445
|
||||
Optex Systems Holdings, Inc. Preferred Stock ($.001 par 5,000 authorized, 1027 series A preferred issued and outstanding)
|
1
|
1
|
||||||
Additional Paid-in-capital
|
17,162,250
|
$
|
16,643,388
|
|||||
Retained Earnings (Deficit)
|
$
|
(10,277,256
|
)
|
$
|
(275,733
|
)
|
||
Total Stockholders' Equity
|
$
|
7,024,440
|
$
|
16,507,101
|
||||
Total Liabilities and Stockholders' Equity
|
$
|
10,850,730
|
$
|
21,105,058
|
Successor
Twelve
months
ended
October 3,
2010
|
Successor
For the
period
October 15,
2008
through
September
27,
2009
|
Predecessor
For the
period
September
29, 2008
through
October 14,
2008
|
||||||||||
Revenues
|
$
|
22,902,277
|
$
|
26,708,799
|
$
|
871,938
|
||||||
Total Cost of Sales
|
22,033,736
|
24,073,449
|
739,868
|
|||||||||
Gross Margin
|
$
|
868,541
|
$
|
2,635,350
|
$
|
132,070
|
||||||
General and Administrative
|
||||||||||||
Total General and Administrative
|
$
|
10,705,883
|
$
|
2,839,422
|
$
|
57,246
|
||||||
Operating Income (Loss)
|
$
|
(9,837,342
|
)
|
$
|
(204,072
|
)
|
$
|
74,824
|
||||
Other Expenses
|
||||||||||||
Interest (Income) Expense - Net
|
89,338
|
170,078
|
9,492
|
|||||||||
Total Other
|
$
|
89,338
|
$
|
170,078
|
$
|
9,492
|
||||||
Income (Loss) Before Taxes
|
$
|
(9,926,680
|
)
|
$
|
(374,150
|
)
|
$
|
65,332
|
||||
Current Income Taxes (Benefit)
|
(32,389
|
)
|
426,514
|
-
|
||||||||
Deferred Income Taxes (Benefit)
|
(282,319
|
)
|
(711,177
|
)
|
-
|
|||||||
Net Income (Loss) After Taxes
|
$
|
(9,611,972
|
)
|
$
|
(89,487
|
)
|
$
|
65,332
|
||||
Less preferred stock dividend
|
$
|
(389,551
|
)
|
$
|
(186,246
|
)
|
$
|
-
|
||||
Net loss applicable to common shareholders
|
$
|
(10,001,523
|
)
|
$
|
(275,733
|
)
|
$
|
65,332
|
||||
Basic and diluted loss per share
|
$
|
(0.07
|
)
|
$
|
(0.00
|
)
|
$
|
6.53
|
||||
Weighted Average Common Shares Outstanding
|
139,444,940
|
126,290,753
|
10,000
|
Successor
Twelve
months
ended
October 3,
2010
|
Successor
For the
period
October
15,
2008
through
September
27,
2009
|
Predecessor
For the
period
September
29, 2008
through
October 14,
2008
|
||||||||||
Cash flows from operating activities:
|
||||||||||||
Net income (loss)
|
$
|
(9,611,972
|
)
|
$
|
(89,487
|
)
|
$
|
65,332
|
||||
Adjustments to reconcile net loss to net cash used in operating activities:
|
||||||||||||
Depreciation and amortization
|
1,103,732
|
2,161,486
|
9,691
|
|||||||||
(Gain) loss on impairment of intangible assets
|
8,038,431
|
-
|
-
|
|||||||||
Provision for allowance for inventory valuation
|
(129,152
|
)
|
(146,266
|
)
|
27,363
|
|||||||
Noncash interest expense
|
19,707
|
159,780
|
9,500
|
|||||||||
Stock option compensation expense
|
97,311
|
39,528
|
-
|
|||||||||
(Increase) decrease in accounts receivable
|
(572,854
|
)
|
(397,996
|
)
|
1,049,802
|
|||||||
(Increase) decrease in inventory (net of progress billed)
|
2,253,247
|
(2,483,686
|
)
|
(863,566
|
)
|
|||||||
(Increase) decrease in other current assets
|
86,352
|
196,633
|
18,541
|
|||||||||
(Increase) decrease in deferred tax asset (net of valuation allowance)
|
(282,319
|
)
|
(711,177
|
)
|
-
|
|||||||
Increase (decrease) in accounts payable and accrued expenses
|
(1,831,205
|
)
|
733,453
|
(186,051
|
)
|
|||||||
Increase (decrease) in accrued warranty costs
|
(56,530
|
)
|
(145,470
|
)
|
-
|
|||||||
Increase (decrease) in due to parent
|
-
|
-
|
1,428
|
|||||||||
Increase (decrease) in accrued estimated loss on contracts
|
9,008
|
541,479
|
(15,304
|
)
|
||||||||
Increase (decrease) in income taxes payable
|
-
|
-
|
-
|
|||||||||
Total adjustments
|
$
|
8,735,728
|
$
|
(52,236
|
)
|
$
|
51,404
|
|||||
Net cash (used)/provided by operating activities
|
$
|
(876,244
|
)
|
$
|
(141,723
|
)
|
$
|
116,736
|
||||
Cash flows from investing activities:
|
||||||||||||
Cash received through Optex Texas acquisition
|
$
|
-
|
$
|
253,581
|
$
|
-
|
||||||
Purchased of property and equipment
|
(115,703
|
)
|
(13,824
|
)
|
(13,338
|
)
|
||||||
Net cash (used in) provided by investing activities
|
$
|
(115,703
|
)
|
$
|
239,757
|
$
|
(13,338
|
)
|
||||
Cash flows from financing activities:
|
||||||||||||
Private placement net of stock issuance cost
|
-
|
1,024,529
|
-
|
|||||||||
Proceeds (to) from credit facility (net)
|
1,106,852
|
-
|
-
|
|||||||||
Proceeds from loans payable
|
250,000
|
(207,265
|
)
|
(20,000
|
)
|
|||||||
Repayments on loans payable
|
(250,000
|
)
|
-
|
-
|
||||||||
Net cash (used In) provided by financing activities
|
$
|
1,106,852
|
$
|
817,264
|
$
|
(20,000
|
)
|
|||||
Net increase (decrease) in cash and cash equivalents
|
$
|
114,905
|
$
|
915,298
|
$
|
83,398
|
||||||
Cash and cash equivalents at beginning of period
|
915,298
|
-
|
170,183
|
|||||||||
Cash and cash equivalents at end of period
|
$
|
1,030,203
|
$
|
915,298
|
$
|
253,581
|
Successor
Twelve months ended
October 3, 2010
|
Successor
For the period October 15,
2008 through September 27,
2009
|
Predecessor
For the period
September 29, 2008
through October 14,
2008
|
||||||||||
Noncash Investing and Financing Activities:
|
||||||||||||
Optex Delaware (Successor) Purchase of Optex Texas (Predecessor)
|
||||||||||||
Cash Received
|
-
|
253,581
|
-
|
|||||||||
Accounts Receivable
|
-
|
1,404,434
|
-
|
|||||||||
Inventory
|
-
|
5,383,929
|
-
|
|||||||||
Intangibles
|
-
|
4,036,790
|
-
|
|||||||||
Other Assets
|
-
|
632,864
|
-
|
|||||||||
Accounts Payable
|
-
|
(1,953,833
|
)
|
-
|
||||||||
Other Liabilities
|
-
|
(1,868,180
|
)
|
-
|
||||||||
Debt
|
-
|
(6,000,000
|
)
|
-
|
||||||||
Goodwill
|
-
|
7,110,415
|
-
|
|||||||||
Issuance of Stock
|
$
|
-
|
$
|
9,000,000
|
$
|
-
|
||||||
Conversion of Debt to Series A Preferred Stock
|
||||||||||||
Additional Paid in Capital (6,000,000 Debt Retirement plus Accrued Interest of $159,780)
|
$
|
-
|
$
|
6,159,780
|
$
|
-
|
||||||
Issuance of Common shares in exchange for Investor Relations Services
|
||||||||||||
Prepaid Expenses (1,030,000 shares issued at $0.001 par)
|
$
|
-
|
$
|
226,500
|
$
|
-
|
||||||
Issuance of Warrants as Debt Issuance Cost
|
||||||||||||
Additional Paid in Capital (1,100,000 warrants)
|
$
|
32,000
|
$
|
-
|
$
|
-
|
||||||
Supplemental cash flow information:
|
||||||||||||
Cash Paid for Interest
|
$
|
69,631
|
10,290
|
$
|
-
|
|||||||
Cash Paid for Taxes
|
$
|
119,847
|
488,799
|
$
|
-
|
Common
|
Series A
|
Additional
|
Total
|
|||||||||||||||||||||||||||||
Shares
|
Preferred
|
Common
|
Preferred
|
Treasury Stock
|
Paid in
|
Retained
|
Stockholders
|
|||||||||||||||||||||||||
Outstanding
|
Shares
|
Stock
|
Series A Stock
|
Optex Texas
|
Capital
|
Earnings
|
Equity
|
|||||||||||||||||||||||||
Predecessor Entity
|
||||||||||||||||||||||||||||||||
Balance at September 28, 2008
|
10,000 | $ | 164,834 | $ | (1,217,400 | ) | $ | 15,246,282 | $ | (5,910,700 | ) | $ | 8,283,016 | |||||||||||||||||||
Net Income
|
65,332 | 65,332 | ||||||||||||||||||||||||||||||
Balance at October 14, 2008
|
10,000 | — | $ | 164,834 | $ | — | $ | (1,217,400 | ) | $ | 15,246,282 | $ | (5,845,368 | ) | $ | 8,348,348 | ||||||||||||||||
Successor Entity
|
||||||||||||||||||||||||||||||||
Balance at October 15, 2008
|
— | — | — | — | — | — | — | — | ||||||||||||||||||||||||
Issuance of Common Stock (1)
|
113,333,282 | — | $ | 113,333 | $ | — | $ | — | $ | 8,886,667 | $ | — | $ | 9,000,000 | ||||||||||||||||||
Cancellation of Investor Relations Stock
|
(700,000 | ) | (700 | ) | (104,300 | ) | (105,000 | ) | ||||||||||||||||||||||||
Investor Relations Common Stock Issued
|
480,000 | 480 | 143,520 | 144,000 | ||||||||||||||||||||||||||||
Issuance of Common Stock
|
750,000 | 750 | 149,250 | 150,000 | ||||||||||||||||||||||||||||
Conversion of 6,000,000 Debt and Interest to Series A preferred shares
|
1,027 | 1 | 6,159,780 | 6,159,781 | ||||||||||||||||||||||||||||
Sustut Exploration Reorganization
|
17,449,991 | 17,450 | 170,050 | 187,500 | ||||||||||||||||||||||||||||
Stock Option Compensation Expense
|
— | — | — | — | 39,528 | — | 39,528 | |||||||||||||||||||||||||
Private Placement Sale of Stock
|
8,131,667 | — | 8,132 | — | — | 1,012,647 | — | 1,020,779 | ||||||||||||||||||||||||
Accumulated Dividends on Preferred Stock
|
186,246 | (186,246 | ) | — | ||||||||||||||||||||||||||||
Net Earnings (Loss) from continuing operations
|
— | — | — | — | — | — | (89,487 | ) | (89,487 | ) | ||||||||||||||||||||||
Balance at September 27, 2009
|
139,444,940 | 1,027 | $ | 139,445 | $ | 1 | $ | — | $ | 16,643,388 | $ | (275,733 | ) | $ | 16,507,101 | |||||||||||||||||
Balance at September 27, 2009
|
139,444,940 | 1,027 | $ | 139,445 | $ | 1 | $ | — | $ | 16,643,388 | $ | (275,733 | ) | $ | 16,507,101 | |||||||||||||||||
Stock Option Compensation Expense
|
— | — | — | — | 97,311 | — | 97,311 | |||||||||||||||||||||||||
Warrants Issued
|
— | — | — | — | — | 32,000 | — | 32,000 | ||||||||||||||||||||||||
Accumulated Dividends on Preferred Stock
|
389,551 | (389,551 | ) | — | ||||||||||||||||||||||||||||
Net Earnings (Loss) from continuing operations
|
— | — | — | — | — | — | (9,611,972 | ) | (9,611,972 | ) | ||||||||||||||||||||||
Balance at October 3, 2010
|
139,444,940 | 1,027 | $ | 139,445 | $ | 1 | $ | — | $ | 17,162,250 | $ | (10,277,256 | ) | $ | 7,024,440 |
As of
October 3, 2010
|
As of
September 27, 2009
|
|||||||
Raw Materials
|
$
|
4,343,168
|
$
|
7,161,241
|
||||
Work in Process
|
2,823,501
|
4,043,308
|
||||||
Finished Goods
|
366,110
|
245,056
|
||||||
Gross Inventory
|
$
|
7,532,779
|
$
|
11,449,605
|
||||
Less:
|
||||||||
Unliquidated Progress Payments
|
(1,217,319
|
)
|
(2,880,898
|
)
|
||||
Inventory Reserves
|
(425,674
|
)
|
(554,826
|
)
|
||||
Net Inventory
|
$
|
5,889,786
|
$
|
8,013,881
|
Unaudited
Quarter
Ended March 29,
2009
|
Reorganization
Adjustments
(1)
|
Private
Placement
Adjustments
|
Unaudited Quarter
Ended March 29,
2009
|
|||||||||||||
Assets
|
||||||||||||||||
Current Assets
|
$
|
8,880,436
|
$
|
187,500
|
$
|
929,738
|
$
|
9,997,674
|
||||||||
Non current Assets
|
10,422,425
|
-
|
-
|
10,422,425
|
||||||||||||
Total Assets
|
$
|
19,302,861
|
$
|
187,500
|
$
|
929,738
|
$
|
20,420,099
|
||||||||
Liabilities
|
||||||||||||||||
Loans Payable
|
146,709
|
(146,250
|
)
|
459
|
||||||||||||
Other Current Liabilities
|
4,416,403
|
-
|
55,209
|
4,471,612
|
||||||||||||
Total Liabilities
|
$
|
4,563,112
|
$
|
-
|
$
|
(91,041
|
)
|
$
|
4,472,071
|
|||||||
Equity
|
||||||||||||||||
Optex Systems Holdings, Inc. – (par $0.001per share, 200,000,000 shares authorized, 138,914,940 shares issued and outstanding as of March 29, 2009)
|
113,333
|
17,450
|
8,132
|
138,915
|
||||||||||||
Optex Systems Holdings, Inc. preferred stock (par value $0.001per share, 5,000 shares authorized, 1027 shares of Series A Preferred issued and outstanding)
|
1
|
1
|
||||||||||||||
Additional Paid in Capital
|
15,046,446
|
170,050
|
1,012,647
|
16,229,143
|
||||||||||||
Retained Earnings
|
(420,031
|
)
|
(420,031
|
)
|
||||||||||||
Total Stockholders Equity
|
$
|
14,739,749
|
$
|
187,500
|
$
|
1,020,779
|
$
|
15,948,028
|
||||||||
Total Liabilities and Stockholders Equity
|
$
|
19,302,861
|
$
|
187,500
|
$
|
929,738
|
$
|
20,420,099
|
Unaudited, Pro forma
|
||||
Year Ended
|
||||
September 27,
2009
|
||||
Revenues
|
$
|
27,580,737
|
||
Net Income (Loss) applicable to common shareholders
|
$
|
(362,149
|
)
|
|
Diluted earnings per share
|
$
|
(0.00
|
)
|
|
Weighted Average Shares Outstanding
|
139,045,625
|
Estimated
Useful Life
|
Year Ended
October 3, 2010
|
Year Ended
September 27, 2009
|
||||||||
Property and Equipment
|
||||||||||
Furniture and Equipment
|
3-5yrs
|
$
|
175,859
|
$
|
159,724
|
|||||
Machinery and Equipment
|
5 yrs
|
1,063,199
|
1,034,440
|
|||||||
Leasehold Improvements
|
7 yrs
|
217,916
|
147,107
|
|||||||
Less: Accumulated Depreciation
|
(1,160,677
|
)
|
(1,094,526
|
)
|
||||||
Net Property & Equipment
|
$
|
296,297
|
$
|
246,745
|
||||||
Depreciation Expense
|
$
|
66,151
|
$
|
99,984
|
Year Ended
October 3, 2010
|
Year Ended
September 27, 2009
|
|||||||
Customer Advance Payments
|
$
|
-
|
$
|
80,753
|
||||
Deferred Rent Expense
|
115,914
|
27,860
|
||||||
Accrued Vacation
|
178,324
|
153,291
|
||||||
Property Taxes
|
18,057
|
17,532
|
||||||
Accrued Interest
|
207
|
-
|
||||||
Franchise Taxes
|
1,986
|
5,100
|
||||||
Operating Expenses
|
119,021
|
244,884
|
||||||
Payroll & Payroll Related
|
140,421
|
141,625
|
||||||
Total Accrued Expenses
|
$
|
573,930
|
$
|
671,045
|
Operating
|
||||
Leases
|
||||
Fiscal Year
|
||||
2011
|
$
|
251,152
|
||
2012
|
236,112
|
|||
2013
|
231,574
|
|||
2014
|
241,748
|
|||
2015
|
201,457
|
|||
Total minimum lease payments
|
$
|
1,162,043
|
|
●
|
The interest rate for all advances shall be the greater of 8.5% and the then in effect prime rate plus 3.5% and subject to a minimum quarterly interest payment of $16,000.
|
|
●
|
Interest shall be paid monthly in arrears.
|
|
●
|
The expiration date of the Agreement is March 4, 2011, at which time any outstanding advances, and accrued and unpaid interest thereon, will be due and payable.
|
|
●
|
In connection with the entry into the Agreement by the Lender, Optex Systems, Inc.(Delaware) paid the Lender a facility fee of $20,000 and issued a warrant to Lender to purchase 1,000,000 shares of its common stock. The warrant bears an exercise price of $0.10 per share and expires on March 3, 2016.
|
|
●
|
The obligations of Optex Systems, Inc. (Delaware) to the Lender are secured by a first lien on all of its assets (including intellectual property assets should it have any in the future) in favor of the Lender.
|
|
●
|
The Agreement contains affirmative and negative covenants that require Optex Systems, Inc. (Delaware) to maintain certain minimum cash and EBITDA levels on a quarterly basis and contains other customary covenants. The Agreement also contains customary events of default. Upon the occurrence of an event of default that remains uncured after any applicable cure period, the Lender’s commitment to make further advances may terminate, and the Lender would also be entitled to pursue other remedies against Optex Systems, Inc. (Delaware) and the pledged collateral.
|
|
●
|
Pursuant to a guaranty executed by Optex Systems Holdings in favor of Lender, Optex Systems Holdings has guaranteed all obligations of Optex Systems, Inc. (Delaware) to Lender.
|
Assets:
|
||||
Current assets, consisting primarily of inventory of $5,383,929 and accounts receivable of $1,404,434
|
$
|
7,330,910
|
||
Identifiable intangible assets
|
4,036,789
|
|||
Purchased Goodwill
|
7,110,416
|
|||
Other non-current assets, principally property and equipment
|
343,898
|
|||
Total assets
|
$
|
18,822,013
|
||
Liabilities:
|
||||
Current liabilities, consisting of accounts payable of $1,953,833 and accrued liabilities of $1,868,180
|
3,822,013
|
|||
Acquired net assets
|
$
|
15,000,000
|
Total
|
||||
Contracted Backlog - Existing Orders
|
$
|
2,763,567
|
||
Program Backlog - Forecasted Indefinite Delivery/Indefinite Quantity awards
|
1,273,222
|
|||
Total Intangible Asset to be amortized
|
$
|
4,036,789
|
Date of
|
Shares
|
Exercise
|
Shares Outstanding
|
Expiration
|
Vesting
|
|||||||||
Grant
|
Granted
|
Price
|
As of 10/03/10
|
Date
|
Date
|
|||||||||
03/30/09
|
480,981
|
$
|
0.15
|
480,981
|
03/29/2016
|
03/30/2010
|
||||||||
03/30/09
|
466,834
|
$
|
0.15
|
466,834
|
03/29/2016
|
03/30/2011
|
||||||||
03/30/09
|
466,834
|
$
|
0.15
|
466,834
|
03/29/2016
|
03/30/2012
|
||||||||
05/14/09
|
316,750
|
$
|
0.15
|
296,000
|
05/13/2016
|
05/14/2010
|
||||||||
05/14/09
|
316,750
|
$
|
0.15
|
296,000
|
05/13/2016
|
05/14/2011
|
||||||||
05/14/09
|
316,750
|
$
|
0.15
|
296,000
|
05/13/2016
|
05/14/2012
|
||||||||
05/14/09
|
316,750
|
$
|
0.15
|
296,000
|
05/13/2016
|
05/14/2013
|
||||||||
Total
|
2,681,649
|
2,598,649
|
Number
|
Weighted
|
|||||||||||||||
of Shares
|
Average
|
Weighted
|
||||||||||||||
Remaining
|
Intrinsic
|
Average
|
Aggregate
|
|||||||||||||
Subject to Exercise
|
Options
|
Price
|
Life (Years)
|
Value
|
||||||||||||
Outstanding as of September 27, 2009
|
2,667,649
|
$
|
0.21
|
5.14
|
560,206
|
|||||||||||
Granted – 2010
|
—
|
$
|
—
|
—
|
—
|
|||||||||||
Forfeited – 2010
|
(69,000
|
)
|
$
|
—
|
—
|
—
|
||||||||||
Exercised – 2010
|
—
|
$
|
—
|
—
|
—
|
|||||||||||
Outstanding as of October 3, 2010
|
2,598,649
|
$
|
—
|
4.13
|
—
|
|||||||||||
Exercisable as of October 3, 2010
|
776,981
|
$
|
—
|
—
|
$
|
—
|
Number of
Non-
vested
Shares
Subject to
Options
|
Weighted-
Average
Grant-
Date
Fair Value
|
|||||||
Non-vested as of September 27, 2009
|
2,667,649
|
$
|
0.14
|
|||||
Non-vested granted — year ended October 3, 2010
|
—
|
$
|
0.00
|
|||||
Vested — year ended October 3, 2010
|
(776,981
|
)
|
$
|
0.12
|
||||
Forfeited — year ended October 3, 2010
|
(69,000
|
)
|
$
|
0.15
|
||||
Non-vested as of September 29, 2009
|
1,821,668
|
$
|
0.15
|
Grant Date
|
Warrants
Granted
|
Exercise
Price
|
Outstanding as of
10/03/10
|
Expiration
Date
|
Term
|
|||||||||||
Private Placement Stock Holders
|
3/30/2009
|
8,131,667
|
$
|
0.450
|
8,131,667
|
3/29/2014
|
5 years
|
|||||||||
Finder Fee on Private Placement
|
3/30/2009
|
717,000
|
$
|
0.165
|
717,000
|
3/29/2014
|
5 years
|
|||||||||
Longview Fund Allonge Agreement
|
1/5/2010
|
100,000
|
$
|
0.150
|
100,000
|
1/4/2013
|
3 years
|
|||||||||
Peninsula Bank Business Funding - Line of Credit
|
3/4/2010
|
1,000,000
|
$
|
0.100
|
1,000,000
|
3/3/2016
|
6 years
|
|||||||||
Total Warrants
|
9,948,667
|
9,948,667
|
Sileas Corporation
|
76,638,295
|
|||
Arland Holdings, Ltd.
|
8,361,705
|
|||
Total Outstanding
|
85,000,000
|
2010
|
2009
|
|||||||
Current income tax expense:
|
||||||||
Federal
|
$
|
(32,389
|
)
|
$
|
426,514
|
|||
State
|
-
|
-
|
||||||
$
|
(32,389
|
)
|
$
|
426,514
|
||||
Deferred income tax provision (benefit):
|
||||||||
Federal
|
(3,372,724
|
)
|
(711,177
|
)
|
||||
State
|
-
|
-
|
||||||
Change in valuation allowance
|
3,090,405
|
-
|
||||||
$
|
(282,316
|
)
|
$
|
(711,177
|
)
|
|||
Provision for (Benefit from) income taxes, net
|
$
|
(314,705
|
)
|
$
|
(284,663
|
)
|
2010
|
%
|
2009
|
%
|
|||||||||||||
Tax benefit at statutory federal rate
|
$
|
(3,375,071
|
)
|
34
|
%
|
$
|
(127,211
|
)
|
34
|
%
|
||||||
Change in valuation and other
|
3,060,366
|
(30.7
|
)%
|
(157,452
|
)
|
42
|
%
|
|||||||||
$
|
(314,705
|
)
|
3.3
|
%
|
$
|
(284,663
|
)
|
76
|
%
|
As of October 3,
2010
|
As of September 27,
2009
|
|||||||
Stock Options
|
$
|
46,525
|
$
|
13,440
|
||||
Inventory Reserve
|
(84,339
|
)
|
(40,427
|
)
|
||||
Unicap
|
40,051
|
54,494
|
||||||
Contract Loss Reserve
|
181,962
|
178,900
|
||||||
Fixed assets
|
(37,141
|
)
|
(58,476
|
)
|
||||
Goodwill Amortization
|
2,256,372
|
-
|
||||||
Intangible Asset Amortization
|
1,189,509
|
612,707
|
||||||
Net Operating Losses
|
553,012
|
|||||||
Other
|
(62,050
|
)
|
(49,461
|
)
|
||||
Subtotal
|
$
|
4,083,901
|
$
|
711,177
|
||||
Valuation allowance
|
(3,090,405
|
)
|
-
|
|||||
Net deferred asset (liability)
|
$
|
993,496
|
$
|
711,177
|
BALANCE SHEETS AS OF APRIL 3, 2011 (UNAUDITED) AND OCTOBER 3, 2010
|
F-2
|
|
STATEMENTS OF OPERATIONS FOR THE THREE AND SIX MONTHS ENDED APRIL 3, 2011 AND THE THREE AND SIX MONTHS ENDED MARCH 28, 2010 (UNAUDITED)
|
F-3
|
|
STATEMENTS OF CASH FLOWS FOR THE SIX MONTHS ENDED APRIL 3, 2011 AND FOR THE SIX MONTHS ENDED MARCH 28, 2010 (UNAUDITED)
|
F-4
|
|
FINANCIAL STATEMENT FOOTNOTES (UNAUDITED)
|
F-5
|
(Thousands)
|
||||||||
April 3, 2011
|
October 3, 2010
|
|||||||
ASSETS
|
||||||||
Current Assets
|
||||||||
Cash
|
$
|
712
|
$
|
1,030
|
||||
Accounts Receivable
|
2,004
|
2,375
|
||||||
Federal Income Tax Receivable
|
376
|
-
|
||||||
Deferred Tax Asset - Short Term
|
-
|
376
|
||||||
Net Inventory
|
5,913
|
5,890
|
||||||
Prepaid Expenses
|
56
|
245
|
||||||
Total Current Assets
|
$
|
9,061
|
$
|
9,916
|
||||
Property and Equipment
|
||||||||
Property Plant and Equipment
|
$
|
1,479
|
$
|
1,457
|
||||
Accumulated Depreciation
|
(1,194
|
)
|
(1,161
|
)
|
||||
Total Property and Equipment
|
$
|
285
|
$
|
296
|
||||
Other Assets
|
||||||||
Deferred Tax Asset - Long Term
|
$
|
597
|
$
|
617
|
||||
Security Deposits
|
21
|
21
|
||||||
Total Other Assets
|
$
|
618
|
$
|
638
|
||||
Total Assets
|
$
|
9,964
|
$
|
10,850
|
||||
LIABILITIES AND STOCKHOLDERS' EQUITY
|
||||||||
Current Liabilities
|
||||||||
Accounts Payable
|
$
|
912
|
$
|
763
|
||||
Accrued Expenses
|
752
|
574
|
||||||
Accrued Warranties
|
25
|
25
|
||||||
Accrued Contract Losses
|
732
|
1,357
|
||||||
Credit Facility
|
436
|
1,107
|
||||||
Total Current Liabilities
|
$
|
2,857
|
$
|
3,826
|
||||
Total Liabilities
|
$
|
2,857
|
$
|
3,826
|
||||
Stockholders' Equity
|
||||||||
Optex Systems Holdings, Inc. – (par $0.001, 200,000,000 authorized, 139,444,940 shares issued and outstanding)
|
$
|
139
|
$
|
139
|
||||
Optex Systems Holdings, Inc. Preferred Stock (0.001 par 5,000 authorized, 1027 series A preferred issued and outstanding)
|
-
|
-
|
||||||
Additional Paid-in-capital
|
17,415
|
17,162
|
||||||
Retained Earnings (Deficit)
|
(10,447
|
)
|
(10,277
|
)
|
||||
Total Stockholders' Equity
|
$
|
7,107
|
$
|
7,024
|
||||
Total Liabilities and Stockholders' Equity
|
$
|
9,964
|
$
|
10,850
|
(Thousands)
|
||||||||||||||||
Three months ended
|
Six months ended
|
|||||||||||||||
April 3,
2011
|
March 28,
2010
|
April 3,
2011
|
March 28,
2010
|
|||||||||||||
Revenues
|
$
|
3,756
|
$
|
6,318
|
$
|
8,740
|
$
|
12,233
|
||||||||
Total Cost of Sales
|
3,164
|
5,587
|
7,485
|
10,747
|
||||||||||||
Gross Margin
|
$
|
592
|
$
|
731
|
$
|
1,255
|
$
|
1,486
|
||||||||
General and Administrative
|
||||||||||||||||
General Expenses
|
589
|
664
|
1,149
|
1,272
|
||||||||||||
Amortization of Intangible Assets
|
-
|
80
|
-
|
160
|
||||||||||||
Total General and Administrative
|
$
|
589
|
$
|
744
|
$
|
1,149
|
$
|
1,432
|
||||||||
Operating Income (Loss)
|
$
|
3
|
$
|
(13
|
)
|
$
|
106
|
$
|
54
|
|||||||
Other Expenses
|
||||||||||||||||
Interest (Income) Expense - Net
|
30
|
35
|
53
|
39
|
||||||||||||
Total Other
|
$
|
30
|
$
|
35
|
$
|
53
|
$
|
39
|
||||||||
Income (Loss) Before Taxes
|
$
|
(27
|
)
|
$
|
(48
|
)
|
$
|
53
|
$
|
15
|
||||||
Deferred Income Taxes (Benefit)
|
(10
|
)
|
(56
|
)
|
20
|
(74
|
)
|
|||||||||
Net Income (Loss) After Taxes
|
$
|
(17
|
)
|
$
|
8
|
$
|
33
|
$
|
89
|
|||||||
Less preferred stock dividend
|
$
|
(102
|
)
|
$
|
(97
|
)
|
$
|
(203
|
)
|
$
|
(192
|
)
|
||||
Net loss applicable to common shareholders
|
$
|
(119
|
)
|
$
|
(89
|
)
|
$
|
(170
|
)
|
$
|
(103
|
)
|
||||
Basic and diluted loss per share
|
$
|
(0.00
|
)
|
$
|
(0.00
|
)
|
$
|
(0.00
|
)
|
$
|
(0.00
|
)
|
(Thousands)
|
||||||||
Six months ended
|
||||||||
April 3,
2011
|
March 28,
2010
|
|||||||
Cash flows from operating activities:
|
||||||||
Net income (loss)
|
$
|
33
|
$
|
89
|
||||
Adjustments to reconcile net loss to net cash used in operating activities:
|
||||||||
Depreciation and amortization
|
34
|
553
|
||||||
Provision for allowance for inventory valuation
|
-
|
18
|
||||||
Noncash interest expense
|
19
|
4
|
||||||
Stock option compensation expense
|
50
|
47
|
||||||
(Increase) decrease in accounts receivable
|
371
|
(652
|
)
|
|||||
(Increase) decrease in federal income tax receivable
|
(376
|
)
|
-
|
|||||
(Increase) decrease in inventory (net of progress billed)
|
(23
|
)
|
283
|
|||||
(Increase) decrease in prepaid expenses
|
177
|
7
|
||||||
(Increase) decrease in deferred tax asset (net of valuation allowance)
|
396
|
(74
|
)
|
|||||
Increase (decrease) in accounts payable and accrued expenses
|
319
|
(936
|
)
|
|||||
Increase (decrease) in accrued warranty costs
|
-
|
(57
|
)
|
|||||
Increase (decrease) in accrued estimated loss on contracts
|
(625
|
)
|
(268
|
)
|
||||
Increase (decrease) in income taxes payable
|
-
|
-
|
||||||
Total adjustments
|
$
|
342
|
$
|
(1,075
|
)
|
|||
Net cash (used)/provided by operating activities
|
$
|
375
|
$
|
(986
|
)
|
|||
Cash flows from investing activities:
|
||||||||
Purchased of property and equipment
|
(22
|
)
|
(6
|
)
|
||||
Net cash (used in) provided by investing activities
|
$
|
(22
|
)
|
$
|
(6
|
)
|
||
Cash flows from financing activities:
|
||||||||
Proceeds from / Repayment (to) credit facility
|
(671
|
)
|
849
|
|||||
Proceeds from loans payable
|
-
|
250
|
||||||
Repayments on loans payable
|
-
|
(125
|
)
|
|||||
Net cash (used In) provided by financing activities
|
$
|
(671
|
)
|
$
|
974
|
|||
Net increase (decrease) in cash and cash equivalents
|
$
|
(318
|
)
|
$
|
(18
|
)
|
||
Cash and cash equivalents at beginning of period
|
1,030
|
915
|
||||||
Cash and cash equivalents at end of period
|
$
|
712
|
$
|
897
|
||||
Noncash Investing and Financing Activities:
|
||||||||
Issuance of Warrants as Debt Issuance Cost
|
||||||||
Additonal Paid in Capital (1,100,000 warrants)
|
$
|
-
|
$
|
32
|
||||
Supplemental cash flow information:
|
||||||||
Cash Paid for Interest
|
$
|
34
|
35
|
(Thousands)
|
||||||||
As of
April 3,
2011
|
As of
October
3, 2010
|
|||||||
(unaudited)
|
||||||||
Raw Materials
|
$
|
4,597
|
$
|
4,343
|
||||
Work in Process
|
2,103
|
2,824
|
||||||
Finished Goods
|
163
|
366
|
||||||
Gross Inventory
|
$
|
6,863
|
$
|
7,533
|
||||
Less:
|
||||||||
Unliquidated Progress Payments
|
(524
|
)
|
(1,217
|
)
|
||||
Inventory Reserves
|
(426
|
)
|
(426
|
)
|
||||
Net Inventory
|
$
|
5,913
|
$
|
5,890
|
Operating
|
||||
Leases
(Thousands)
|
||||
Fiscal Year
|
||||
2011
|
$
|
125
|
||
2012
|
236
|
|||
2013
|
232
|
|||
2014
|
242
|
|||
2015
|
201
|
|||
Total minimum lease payments
|
$
|
1,036
|
|
·
|
The interest rate for all advances shall be the greater of 8.5% and the then in effect prime rate plus 3.5% and subject to a minimum quarterly interest payment of $16 thousand.
|
|
·
|
Interest shall be paid monthly in arrears.
|
|
·
|
The expiration date of the Agreement is March 4, 2011, at which time any outstanding advances, and accrued and unpaid interest thereon, will be due and payable.
|
|
·
|
In connection with the entry into the Agreement by the Lender, Optex Systems, Inc. paid the Lender a facility fee of $20 thousand and issued a warrant to Lender to purchase 1,000,000 shares of its common stock. The warrant bears an exercise price of $0.10 per share and expires on March 3, 2016.
|
|
·
|
The obligations of Optex Systems, Inc. to the Lender are secured by a first lien on all of its assets (including intellectual property assets should it have any in the future) in favor of the Lender.
|
|
·
|
The Agreement contains affirmative and negative covenants that require Optex Systems, Inc. to maintain certain minimum cash and EBITDA levels on a quarterly basis and contains other customary covenants. The Agreement also contains customary events of default. Upon the occurrence of an event of default that remains uncured after any applicable cure period, the Lender’s commitment to make further advances may terminate, and the Lender would also be entitled to pursue other remedies against Optex Systems, Inc. and the pledged collateral.
|
|
·
|
Pursuant to a guaranty executed by Optex Systems Holdings in favor of Lender, Optex Systems Holdings has guaranteed all obligations of Optex Systems, Inc. to Lender.
|
Date of
|
Shares
|
Exercise
|
Shares
Outstanding
|
Expiration
|
Vesting
|
||||||||||
Grant
|
Granted
|
Price
|
As of 4/03/11
|
Date
|
Date
|
||||||||||
03/30/09
|
480,981
|
$
|
0.15
|
480,981
|
03/29/2016
|
03/30/2010
|
|||||||||
03/30/09
|
466,834
|
$
|
0.15
|
466,834
|
03/29/2016
|
03/30/2011
|
|||||||||
03/30/09
|
466,834
|
$
|
0.15
|
466,834
|
03/29/2016
|
03/30/2012
|
|||||||||
05/14/09
|
316,750
|
$
|
0.15
|
289,500
|
05/13/2016
|
05/14/2010
|
|||||||||
05/14/09
|
316,750
|
$
|
0.15
|
289,500
|
05/13/2016
|
05/14/2011
|
|||||||||
05/14/09
|
316,750
|
$
|
0.15
|
289,500
|
05/13/2016
|
05/14/2012
|
|||||||||
05/14/09
|
316,750
|
$
|
0.15
|
289,500
|
05/13/2016
|
05/14/2013
|
|||||||||
Total
|
2,681,649
|
2,572,649
|
Number
|
Weighted
|
Weighted
|
||||||||||||||
of Shares
|
Average
|
Average
|
||||||||||||||
Remaining
|
Intrinsic
|
Life
|
Aggregate
|
|||||||||||||
Subject to Exercise
|
Options
|
Price
|
(Years)
|
Value
|
||||||||||||
Outstanding as of October 3, 2010
|
2,598,649
|
$
|
-
|
4.13
|
$
|
-
|
||||||||||
Granted – 2011
|
-
|
$
|
-
|
-
|
-
|
|||||||||||
Forfeited – 2011
|
(26,000
|
)
|
$
|
-
|
-
|
-
|
||||||||||
Exercised – 2011
|
-
|
$
|
-
|
-
|
-
|
|||||||||||
Outstanding as of April 3, 2011
|
2,572,649
|
$
|
-
|
3.63
|
$
|
-
|
||||||||||
Exercisable as of April 3, 2011
|
1,237,315
|
$
|
-
|
2.89
|
$
|
-
|
Number
of
Non-
vested
Shares
Subject
to
Options
|
Weighted-
Average
Grant-
Date
Fair
Value
|
|||||||
Non-vested as of October 3, 2010
|
1,821,668
|
$
|
0.14
|
|||||
Non-vested granted — Six Months ended April 3, 2011
|
-
|
$
|
0.00
|
|||||
Vested — Six Months ended April 3, 2011
|
(466,834
|
)
|
$
|
0.14
|
||||
Forfeited — Six Months ended April 3, 2011
|
(19,500
|
)
|
$
|
0.14
|
||||
Non-vested as of April 3, 2011
|
1,335,334
|
$
|
0.14
|
Grant Date
|
Warrants
Granted
|
Exercise
Price
|
Outstanding
as of
01/02/11
|
Expiration
Date
|
Term
|
||||||||||||
Private Placement Stock
Holders
|
3/30/2009
|
8,131,667
|
$
|
0.450
|
8,131,667
|
3/29/2014
|
5 years
|
||||||||||
Finder Fee on Private Placement
|
3/30/2009
|
717,000
|
$
|
0.165
|
717,000
|
3/29/2014
|
5 years
|
||||||||||
Longview Fund Allonge Agreement
|
1/5/2010
|
100,000
|
$
|
0.150
|
100,000
|
1/4/2013
|
3 years
|
||||||||||
Peninsula Bank Business Funding - Line of Credit
|
3/4/2010
|
1,000,000
|
$
|
0.100
|
1,000,000
|
3/3/2016
|
6 years
|
||||||||||
Total Warrants
|
9,948,667
|
9,948,667
|
Securities and Exchange Commission registration fee
|
$
|
29
|
||
Printing and engraving expenses
|
1,000
|
|||
Edgarization Expenses
|
$
|
5,000
|
||
Legal fees and expenses (1)
|
-
|
|||
Accountant fees and expenses
|
5,000
|
|||
Total
|
$
|
11,029
|
|
·
|
Investor call response
|
|
·
|
Press Release management, drafting, editing, dissemination
|
|
|
·
|
Management and hosting of quarterly conference calls/web casts
|
|
·
|
Database Management
|
|
·
|
Financial Package Management
|
|
·
|
Investor Website review and recommendations
|
|
·
|
Presentation assessment and revisions
|
|
·
|
Quarterly written assessments to management and Board of Directors
|
|
Program Management including:
|
|
·
|
Introduction to ZA Consulting proprietary Broker and Retail Investor network
|
|
·
|
Analysis of DTC sheets, Nobo lists and Transfer Agent Sheets
|
|
·
|
Ongoing outreach with current shareholders including stakeholders of record and in street name via Nobo list mailings and phone communications.
|
3/27/09
|
1,000,000 shares issued to American Venture Capital
|
(prior to reverse merger)
|
|
3/27/09
|
250,000 shares issued to Dawn Van Zandt
|
(prior to reverse merger)
|
|
7/20/09
|
(700,000) shares cancelled from American Capital Ventures
|
(contract cancelled on 6/29/09)
|
|
9/2/09
|
480,000 shares issued to ZA Consulting
|
(contract signed on 6/30/09)
|
Exhibit
No.
|
Description
|
|
2.1
|
Agreement and Plan of Reorganization, dated as of the March 30, 2009, by and between registrant, a Delaware corporation and Optex Systems, Inc., a Delaware corporation (1).
|
|
3.1
|
Certificate of Incorporation, as amended, of Optex Systems Holdings, Inc (2).
|
|
3.2
|
Bylaws of Optex Systems Holdings (1).
|
|
5.1
|
Opinion as to Legality of the Shares (13)
|
|
10.1
|
2009 Stock Option Plan (1).
|
|
10.2
|
Employment Agreement with Danny Schoening (1).
|
|
10.3
|
Lease for 1420 Presidential Blvd., Richardson, TX (1).
|
|
10.4
|
Form of Warrant (3)
|
|
10.5
|
Specimen Stock Certificate (3)
|
10.6
|
Contract W52H0905D0248 with Tank-automotive and Armaments Command, dated July 27, 2005 (5) (6)
|
|
10.7
|
Contract W52H0909D0128 with Tank-automotive and Armaments Command, dated March 24, 2009 (5)
|
|
10.8
|
Contract W52H0905D0260 with Tank-automotive and Armaments Command, dated August 3, 2005 (5) (6)
|
|
10.9
|
PO# 40050551 with General Dynamics, dated June 8, 2009 (5) (6)
|
|
10.10
|
Contract 9726800650 with General Dynamics, dated April 9, 2007 (5) (6)
|
|
10.11
|
Form of Subscription Agreement (4)
|
|
10.12
|
Single Source Supplier Purchase Orders with TSP Inc. (5)
|
|
10.13
|
Single Source Supplier Purchase Orders with SWS Trimac (5)
|
|
10.14
|
Since Source Supplier Purchase Orders with Danaher Controls (5)
|
|
10.15
|
Single Source Supplier Purchase Orders with Spartech Polycast (5)
|
|
10.16
|
Third Amendment to Lease, between Aquiport DFWIP and Optex Systems, Inc., dated January 7, 2010 (5)
|
|
10.17
|
$250,000 principal amount Note in favor of the Longview Fund, L.P., dated October 27, 2009 (9)
|
|
10.18
|
Investor Relations Agreement, dated April 1, 2009 between Optex Systems and American Capital Ventures, Inc. (9)
|
|
10.19
|
Form of Loan and Security Agreement between Optex Systems, Inc. and Peninsula Bank Business Funding, dated March 4, 2010 (5)
|
|
10.20
|
Form of Unconditional Guaranty executed by Optex Systems Holdings, Inc. in favor of Peninsula Bank Business Funding, dated March 4, 2010 (5)
|
|
10.21
|
Form of Warrant issued by Optex Systems Holdings, Inc. to Peninsula Bank Business Funding, dated March 4, 2010 (5)
|
|
10.22
|
Allonge to Promissory Note, dated January 5, 2010 (9)
|
|
10.23
|
Showcase Agreement between Optex Systems, Inc. and ECON Corporate Services, Inc., dated April 1, 2009 (9)
|
|
10.24
|
Consulting Agreement dated June 29, 2009, between ZA Consulting, Inc. and Optex Systems, Inc. (9)
|
|
10.25
|
Purchase Order dated June 28, 2010 with TACOM-Warren (7)
|
|
10.26
|
First Amendment to Loan and Security Agreement, dated August 3, 2010, by and between Peninsula Bank Business Funding and Optex Systems, Inc. (8)
|
|
10.27
|
Waiver by Peninsula Bank Business Funding to Optex Systems, Inc., dated November 24, 2010
|
|
10.28
|
Second Amendment to Loan and Security Agreement, dated November 29, 2010, by and between Peninsula Bank Business Funding and Optex Systems, Inc.
|
|
10.29
|
Third Amendment to Loan and Security Agreement, dated February 15, 2011, by and between Peninsula Bank Business Funding and Optex Systems, Inc. (11)
|
10.30
|
Second Amendment to Loan and Security Agreement, dated March 22, 2011, by and between Peninsula Bank Business Funding and Optex Systems, Inc. (12)
|
|
10.31
|
Waiver of Series A preferred shareholders
|
|
10.32
|
Form of Subscription Agreement
|
|
14.1
|
Code of Ethics (3)
|
|
16
|
Letter re: Change in Certifying Accountant
|
|
21.1
|
List of Subsidiaries – Optex Systems, Inc. (1)
|
|
23.1
|
Consent of EFP Rotenberg, LLP
|
|
23.2
|
Consent of Jolie Kahn, Esq. (included in Exhibit 5.1)
|
(1)
|
Incorporated by reference from our Current Report on Form 8-K dated April 3, 2009.
|
(2)
|
Incorporated by reference from our Amendment No. 1 to Registration Statement on Form S-1 filed on September 28, 2009
|
(3)
|
Incorporated by reference from our Registration Statement on Form S-1 filed on May 19, 2009
|
(4)
|
Incorporated by reference from our Form 10-K for the fiscal year ended September 27, 2009, filed on January 11, 2010
|
(5)
|
Incorporated by reference from our Amendment No. 4 to Registration Statement on Form S-1 filed on June 14, 2010
|
(6)
|
This exhibit is missing part of the original bid/solicitation package as such information can only be obtained from third parties with which the registrant has no affiliation, and registrant has made requests from such third parties for such information, and such parties have not been able to provide such information.
|
(7)
|
Incorporated by reference from our Current Report on Form 8-K dated July 2, 2010
|
(8)
|
Incorporated by reference from our Form 10-Q for the quarter ended on June 27, 2010, filed on August 11, 2010
|
(9)
|
Incorporated by reference from our Amendment No. 5 to Registration Statement on Form S-1 filed on July 23, 2010
|
(10)
|
Incorporated by reference from our Amendment No. 10 to Registration statement on Form S-1 filed on January 13, 2011
|
(11)
|
Incorporated by reference from our Form 10-Q for the quarter ended on January 2, 2011, filed on February 16, 2011
|
(12)
|
Incorporated by reference from our Current Report on Form 8-K filed on March 28, 2011
|
(13)
|
Incorporated by reference from our Form S-1 filed on April 14, 2011
|
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;
|
|
ii.
|
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement.
|
|
iii.
|
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
|
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 relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
3.
|
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
|
4.
|
That, for the purpose of determining liability under the Securities Act to any purchaser:
|
|
i.
|
If the registrant is relying on Rule 430B (Section 430B of this chapter):
|
|
A.
|
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
|
|
B.
|
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; or
|
|
ii.
|
If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. 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 first use, 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 date of first use.
|
5.
|
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
|
|
i.
|
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
|
|
ii.
|
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
|
|
iii.
|
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
|
|
iv.
|
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
|
OPTEX SYSTEMS HOLDINGS, INC.
|
||
By:
|
/s/ Stanley A. Hirschman
|
|
Stanley A. Hirschman, Principal Executive Officer
and Director
|
||
Date: August 1, 2011
|
||
By:
|
/s/ Karen Hawkins
|
|
Karen Hawkins, Principal Financial Officer and
Principal Accounting Officer
|
||
Date: August 1, 2011
|
Signature
|
Title
|
Date
|
||
/s/ Stanley A. Hirschman
|
||||
Stanley A. Hirschman
|
Principal Executive Officer and Director
|
August 1, 2011
|
||
/s/ Karen Hawkins
|
||||
Karen Hawkins
|
Principal Financial Officer and Principal
|
August 1, 2011
|
||
Accounting Officer
|
||||
/s/ Ronald F. Richards
|
||||
Ronald F. Richards
|
Director
|
August 1, 2011
|
||
/s/ Merrick Okamoto
|
||||
Merrick Okamoto
|
Director
|
August 1, 2011
|
Very truly yours,
|
|
/s/ Jolie Kahn
|
ALPHA CAPITAL ANSTALT
|
||
By:/s/ Conrad Ackermann
|
||
Name: Conrad Ackermann
|
||
Title: Director
|
||
SILEAS CORPORATION
|
||
By: /s/ Stanley A. Hirschman
|
||
Name: Stanley A. Hirschman
|
||
Title: President
|
OPTEX SYSTEMS HOLDINGS, INC.
|
|
By:
|
|
Name:
|
|
Title:
|