LIGHTPATH TECHNOLOGIES, INC. 8-K  

Exhibit 10.1

NOTE SATISFACTION AND SECURITIES PURCHASE AGREEMENT

This NOTE SATISFACTION AND SECURITIES PURCHASE AGREEMENT (this “ Agreement ”), is made as of January 16, 2018, by and among LIGHTPATH TECHNOLOGIES, INC., a Delaware corporation (the “ Company ”), and JOSEPH MENAKER, an individual, and MARK LIFSHOTZ, an individual (each a “ Noteholder ” and collectively, the “ Noteholders ”). The Company and the Noteholders are sometimes referred to individually as a “ Party ” and collectively as the “ Parties .”

RECITALS :

A.           Pursuant to that certain Stock Purchase Agreement, dated as of August 3, 2016 (the “ ISP Purchase Agreement ”), by and among the Company, the Noteholders and ISP Optics Corporation, a New York corporation (“ ISP ”), the Company purchased from the Noteholders 100% of the issued and outstanding shares of the capital stock of ISP.

B.          At the closing the transactions contemplated by the ISP Purchase Agreement, as partial consideration for the shares of ISP, the Company issued to the Noteholders that certain Unsecured Promissory Note, dated as of December 21, 2016, in the original principal amount of $6,000,000 (the “ Note ”), which principal amount was subsequently reduced to $5,704,439, as of March 21, 2017, by letter agreement between the Company and the Noteholders.

C.          As of the date hereof, the outstanding principal amount of the Note is $5,707,183.06, and there is $20,883.22 in accrued but unpaid interest thereon (collectively, the “ Note Satisfaction Amount ”).

D.          The Parties desire to satisfy the Note in full by (i) converting 39.5% of the outstanding principal amount of the Note into shares of the Company’s common stock, Class A, $0.01 par value per share (“ Common Stock ”), and (ii) paying the remaining 60.5% of the outstanding principal amount of the Note, plus all accrued but unpaid interest, in cash to the Noteholders, all upon the terms and conditions stated in this Agreement. The Note may be prepaid in whole or in part without penalty or premium.

E.           The Parties are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “ Securities Act ”), and Rule 506 of Regulation D (“ Regulation D ”) as promulgated by the United States Securities and Exchange Commission (the “ SEC ”) under the Securities Act.

NOW, THEREFORE , in consideration of the premises and the mutual promises made herein, and in consideration of the representations, warranties, covenants and agreements herein contained, intending to be legally bound, the Parties hereby agree as follows:  

SECTION 1 

Recitals; Note Satisfaction; Sale and Issuance of Shares

1.1           Recitals . Each of the Parties hereby agree that the recitals set forth above are true and correct and are incorporated into the terms of this Agreement.

1.2           Note Satisfaction . Upon the terms and subject to the conditions of this Agreement, the Parties agree that the Note shall be deemed satisfied in full and fully discharged and released by the payment of the Note Satisfaction Amount, which shall be paid as follows: (a) $3,453,581.53 plus all accrued but unpaid interest on the Note, shall be paid in cash via wire transfer of immediately available funds on the Closing Date to an account or accounts designated by the Noteholders (the “ Cash Payment ”), and (ii) an aggregate number of shares of Common Stock equal to $2,253,591.53 divided by the Conversion Price (as defined below) (the “ Shares ”) shall be issued by the Company to the Noteholders in the proportions designated on Exhibit A , which shares shall be delivered to each Holder in book-entry form and registered in the name of such Holder with the transfer agent of the Company. The “ Conversion Price ” shall mean $2.33, representing the average closing bid price of the Common Stock, as reported by Bloomberg for the five (5) trading days preceding the Closing Date. For purposes of this Agreement and the conversion, fractional shares will be rounded to the nearest whole share.

1.3           Closing . The satisfaction of the Note, the payment of the Cash Payment and the purchase and sale of the Shares shall be effected through a closing (the “ Closing ”), which shall take place on the date hereof at the offices of Baker & Hostetler LLP, 200 South Orange Ave., Suite 2300, Orlando, Florida 32801, or such other time or location as the Parties may agree.

1.4           Other Closing Deliveries .  On the date of the Closing (the “ Closing Date ”): (a) the Noteholders will deliver the original Note to the Company for cancellation, and (b) the Parties shall execute and deliver a Registration Rights Agreement, in the form attached hereto as Exhibit B (the “ Registration Rights Agreement ”), pursuant to which the Company has agreed to provide certain registration rights with respect to the Shares under the Securities Act and the rules and regulations promulgated thereunder, and applicable state securities laws.

SECTION 2 

Representations and Warranties of the Company

The Company hereby represents and warrants to the Noteholders that the following representations and warranties are true and complete as of the date of this Agreement and shall be true and complete as of the Closing Date:

2.1           Due Incorporation; Qualification . The Company (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; (ii) has the power and authority to own, lease and operate its properties and carry on its business as now conducted; and (iii) is duly qualified, licensed to do business and in good standing as a foreign corporation in each jurisdiction where the failure to be so qualified or licensed could reasonably be expected to have a Material Adverse Effect. For the purposes of this Agreement, “ Material Adverse Effect ” shall mean any effect on the business, operations, properties or financial condition of the Company that is material and adverse to the Company and its subsidiaries and affiliates, taken as a whole, and/or any condition, circumstance, or situation that would prohibit or otherwise materially interfere with the ability of the Company to enter into and perform any of its obligations under this Agreement.

2.2           Authority . The execution, delivery and performance by the Company of this Agreement, the Registration Rights Agreement and all other documents required by the terms of this Agreement to be executed by the Company (collectively, the “ Transaction Documents ”) and the consummation of the transactions contemplated hereby and thereby (i) are within the power of the Company and (ii) have been duly authorized by all necessary actions on the part of the Company.

2.3           Enforceability . Each Transaction Document has been, or will be, duly executed and delivered by the Company and constitutes, or will constitute, a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.

2.4           Non-Contravention . The execution and delivery by the Company of the Transaction Documents and the performance and consummation of the transactions contemplated thereby do not and will not (i) violate the Company’s Certificate of Incorporation or Bylaws, as the case may be, or any material judgment, order, writ, decree, statute, rule or regulation applicable to the Company; (ii) violate any provision of, or result in the breach or the acceleration of, or entitle any other Person (as defined below) to accelerate (whether after the giving of notice or lapse of time or both), any material mortgage, indenture, agreement, instrument or contract to which the Company is a party or by which it is bound; or (iii) result in the creation or imposition of any lien upon any property, asset or revenue of the Company or the suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license, authorization or approval applicable to the Company, its business or operations, or any of its assets or properties. For the purposes of this Agreement, “ Person ” shall mean and include an individual, a partnership, a corporation (including a business trust), a joint stock company, a limited liability company, an unincorporated association, a joint venture or other entity or a governmental authority.

2.5           SEC Reports . The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC (the “ SEC Documents ”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”). As of their respective filing dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and other federal, state and local laws, rules and regulations applicable to it, and, as of their filing dates, the SEC Documents did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Documents comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto.

2.6           Issuance of Shares . The Shares to be issued under this Agreement have been or will be (prior to issuance to the Noteholders hereunder) duly authorized by all necessary corporate action, and, when paid for or issued in accordance with the terms hereof, the Shares shall be validly issued and outstanding, fully paid and nonassessable free and clean of all liens, encumbrances, charges, rights of first refusal or other restrictions, and the Noteholders shall be entitled to all rights accorded to a holder of Common Stock.

2.7           General Solicitation . Neither the Company, nor any of its affiliates, nor any Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D promulgated under the Securities Act) in connection with the offer or sale of the Shares.

SECTION 3  

Representations and Warranties of the Noteholders

Each of the Noteholders hereby represents and warrants to the Company for itself and not the other Noteholder that the following representations and warranties are true and complete as of the date of this Agreement and shall be true and complete as of the Closing Date:

3.1           Authority and Binding Obligation . The execution, delivery and performance by such Noteholder of the Transaction Documents, and the consummation of the transactions contemplated hereby and thereby are within the power of such Noteholder. Each Transaction Document has been, or will be, duly executed and delivered by such Noteholder and constitutes, or will constitute, a legal, valid and binding obligation of such Noteholder, enforceable against such Noteholder in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.

3.2           No Public Sale or Distribution . Such Noteholder understands that the Shares are “restricted securities” and have not been registered under the Securities Act or any applicable state securities law, and such Noteholder is acquiring the Shares in the ordinary course of business for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the Securities Act, and such Noteholder has no present arrangement to effect any distribution of the Shares to or through any Person.

3.3           Securities Law Compliance . Such Noteholder understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and such Noteholder’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Noteholder set forth herein in order to determine the availability of such exemptions and the eligibility of such Noteholder to acquire the Shares. Such Noteholder has such knowledge and experience in financial and business matters that such Noteholder is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time. At the time such Noteholder was offered the Shares, such Noteholder was, and at the date hereof such Noteholder is, an “accredited investor” as such term is defined in Rule 501 of Regulation D under the Securities Act.

3.4           Access to Information . The Noteholders and their advisors, if any, have been furnished with the SEC Documents and all other materials relating to the business, finances and operations of the Company and materials relating to the offer and sale of the Shares which have been requested by the Noteholders. The Noteholders and their advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other due diligence investigations conducted by the Noteholders and their advisors, if any, or their representatives shall modify, amend or affect the Noteholders’ right to rely on the Company’s representations and warranties contained herein. The Noteholders have sought such accounting, legal and tax advice as such Noteholder has considered necessary to make an informed investment decision with respect to the acquisition of the Shares.

3.5           No Governmental Review . The Noteholders understand that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Shares or the fairness or suitability of the investment in the Shares nor have such authorities passed upon or endorsed the merits of the offering of the Shares.

3.6           Transfer or Resale . Such Noteholder understands that, except as provided in the Registration Rights Agreement: (i) the Shares have not been and are not being registered under the Securities Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (a) subsequently registered thereunder, (b) such Noteholder shall have delivered to the Company an opinion of counsel, in a form reasonably acceptable to the Company, to the effect that such Securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (c) such Noteholder provides the Company with reasonable assurance that such Securities can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A promulgated under the Securities Act (collectively, “ Rule 144 ”); (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the SEC thereunder; and (iii) neither the Company nor any other Person is under any obligation to register the Securities under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.

3.7           Legends . Such Noteholder understands that the certificates or other instruments representing the Shares shall bear any legend as required by the “blue sky” laws of any state and a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of such stock certificates):

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.

3.8           Broker-Dealer Status . Neither Noteholder is a registered broker-dealer or an affiliate of any registered broker-dealer, and neither Noteholder is required to be registered as a broker-dealer under Section 15 of the Exchange Act.

3.9           Residence . Such Noteholder is a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “ Code ”)) and a resident of New York, in the case of Joseph Menaker, and New Jersey, in the case of Mark Lifshotz. Such Noteholder’s subscription and payment for and continued beneficial ownership of the Shares will not violate any applicable securities or other laws of such Noteholder’s jurisdiction.

SECTION 4  

Certain Agreements

4.1           SEC Filings . Following the Closing, each of the Parties agrees to file within the time periods specified by the Exchange Act and the rules promulgated thereunder, all forms, schedules, statements and other documents required to be filed by such Party by the Exchange Act and the rules promulgated thereunder in connection with the sale of the Shares. The Company may request the Noteholders to furnish the Company with such information with respect to the Noteholders as the Company may from time to time reasonably request in writing or as shall be required by law or by the SEC, and each Noteholder agrees to furnish the Company with such information.

SECTION 5  

Conditions to the Noteholders’ Obligation to Close

The Noteholders’ obligations at the Closing are subject to the fulfillment, on or prior to the Closing Date, of all of the following conditions, any of which may be waived in whole or in part by the Noteholders:

5.1           Representations and Warranties . Except for representations and warranties that are expressly made as of a particular date, the representations and warranties of the Company in this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time.

5.2           Performance . The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Noteholders on or before the Closing.

5.3           Governmental Approvals and Filings . The Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance of the Shares.

5.4           No Litigation . No action, suit or proceeding before any arbitrator or any governmental authority shall have been commenced, and no investigation by any governmental authority shall have been threatened, against the Company or any of the officers, directors or affiliates of the Company seeking to restrain, prevent or change the transactions contemplated by this Agreement, or seeking damages in connection with such transactions.

5.5           Transaction Documents . The Company shall have duly executed and delivered each of the Transaction Documents to the Noteholders.

5.6           Note Satisfaction Amount . The Company shall have paid and delivered the Note Satisfaction Amount to the Noteholders in accordance with Section 1.2.

SECTION 6  

Conditions to Company’s Obligation to Close

The Company’s obligation to issue and sell the Shares at the Closing is subject to the fulfillment, on or prior to the Closing Date, of the following conditions, any of which may be waived in whole or in part by the Company:

6.1           Representations and Warranties . Except for representations and warranties that are expressly made as of a particular date, the representations and warranties of the Noteholders in this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time.

6.2           Performance . The Noteholders shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Noteholders on or before the Closing.

6.3           Governmental Approvals and Filings . The Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance of the Shares.

6.4           No Litigation . No action, suit or proceeding before any arbitrator or any governmental authority shall have been commenced, and no investigation by any governmental authority shall have been threatened, against the Company or any of the officers, directors or affiliates of the Company seeking to restrain, prevent or change the transactions contemplated by this Agreement, or seeking damages in connection with such transactions.

6.5           Transaction Documents . The Noteholders shall have duly executed and delivered each of the Transaction Documents to the Company, and shall have delivered the original Note to the Company for cancellation.

SECTION 7  

Termination

7.1           Termination Events . This Agreement may, by notice given prior to or at the Closing, be terminated, (i) by the mutual consent of the Company and the Noteholders, (ii) by the Company if any of the conditions in Section 6 has not been satisfied as of the Closing Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of the Company to comply with its obligations under this Agreement) and the Company has not waived such condition on or before the Closing Date; or (iii) by the Noteholders if any of the conditions in Section 5 has not been satisfied as of the Closing Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of any Noteholder to comply with its obligations under this Agreement) and the Noteholders have not waived such condition on or before the Closing Date.

7.2           Effect of Termination . If this Agreement is terminated as provided in Section 7.1 hereof, this Agreement shall become void and of no further force and effect, except with respect to Sections 8.1 , 8.3 , 8.7 and 8.8 hereof. Nothing in this Section 7.2 shall be deemed to release the Company or the Noteholders from any liability for any breach under this Agreement or to impair the rights of the Company and the Noteholders to compel specific performance by the other Party of its obligations under this Agreement.

SECTION 8  

Miscellaneous

8.1           Fees and Expenses . Each Party to this Agreement will bear its respective fees, costs and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement or the transactions contemplated hereby (including legal, accounting and other professional fees).

8.2           Finder’s Fees and Commissions . Each Party represents that it neither is nor will be obligated for any finder’s fee or commission in connection with this transaction. The Noteholder agree, on a joint and several basis, to indemnify and to hold harmless the Company from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which each or any Noteholder or its representatives is responsible. The Company agrees to indemnify and hold harmless the Noteholders from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible.

8.3           Public Announcements . Neither the Company nor any Noteholder shall make any public announcement with respect to this Agreement or the transactions contemplated hereby, without the written consent of the other Party hereto; provided , however , that no Party shall be required to obtain such consent if: (i) required by applicable laws, rules or regulations, (ii) required by federal securities law in connection with the registration statement contemplated by the Registration Rights Agreement, or (iii) a governmental entity specifically requests disclosure.

8.4           Waivers and Amendments . Any provision of this Agreement may be amended, waived or modified only upon the written consent of the Company and the Noteholders.

8.5           Delays or Omissions .  Except as expressly provided herein, no delay or omission to exercise any right, power or remedy accruing to any Party to this Agreement upon any breach or default of the other Party under this Agreement shall impair any such right, power or remedy of such non-defaulting Party, nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any Party of any breach or default under this Agreement, or any waiver on the part of any Party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any Party to this Agreement, shall be cumulative and not alternative.

8.6           Attorneys’ Fees . In the event that any suit or action is instituted to enforce any provisions in this Agreement, the prevailing Party in such dispute shall be entitled to recover from the losing Party all fees, costs and expenses of enforcing any right of such prevailing Party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.

8.7           Governing Law . This Agreement will be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles that would require the application of any other law.

8.8           Survival . The representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.

8.9           Successors and Assigns . This Agreement, and any and all rights, duties and obligations hereunder, shall not be assigned, transferred, delegated or sublicensed by any Party without the prior written consent of the non-assigning party. Any attempt by either Party without such permission to assign, transfer, delegate or sublicense any rights, duties or obligations that arise under this Agreement shall be null and void. Subject to the foregoing and except as otherwise provided herein, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the Parties hereto.

8.10         No Third Party Beneficiaries . This Agreement is intended for the benefit of the Parties and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision be enforced by, any other Person.

8.11        Entire Agreement . This Agreement constitutes and contain the entire agreement between the Company and the Noteholders and supersede any and all prior agreements, negotiations, correspondence, understandings and communications among the Parties, whether written or oral, respecting the subject matter hereof.

8.12         Notices . All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed given to a Party when (a) delivered by hand, (b) one Business Day after being sent by a nationally recognized overnight courier service (costs prepaid), (c) sent by facsimile or email with confirmation of transmission by the transmitting equipment, or (d) received by the addressee, if sent by certified mail, postage prepaid and return receipt requested, in each case to the following:

Any Party may change its contact information for notices and other communications hereunder by notice to the other Parties hereto in accordance with this Section 8.12 For purposes of this Agreement, “ Business Day ” means any day excluding Saturday, Sunday and any day that is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such State are authorized or required by law to close.

8.13           Severability .  If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Agreement, and such court will replace such illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the same economic, business and other purposes of the illegal, void or unenforceable provision. The balance of this Agreement shall be enforceable in accordance with its terms.

8.14           Headings . The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement

8.15           Further Assurances .  Each Party agrees to execute and deliver, by the proper exercise of its corporate, limited liability company, partnership or other powers, all such other and additional instruments and documents and do all such other acts and things as may be necessary to more fully effectuate this Agreement.

8.16           Counterparts . This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each Party and delivered to the other Party; provided , however , that a facsimile or pdf (or other electronic reproduction) signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a facsimile or pdf (or other electronic reproduction) signature.

8.17           Construction . The following rules shall be applied by the Parties and all other Persons (including any court or arbitrator) in the determination, evaluation, interpretation and enforcement of the provisions of this Agreement, unless another provision of the Agreement expressly applies another rule: (i) as used herein, (a) “or” means “and/or” and (b) “including” or “include” means “including without limitation”; (ii) the plural includes the singular; (iii) the masculine gender includes the feminine and neuter and vice versa; (iv) references to a law include any rule or regulation issued under the law, any amendment to a law, rule or regulation, any successor law, rule or regulation and all applicable judicial interpretations of any such law, rule or regulation; and (v) the language used in this Agreement will be deemed to be the language chosen by the Parties to express their mutual intent, and no rules of strict construction will be applied against any Party.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, the Noteholders and the Company have executed this Agreement as of the date first written above.

[Signature Page to Note Satisfaction and Securities Purchase Agreement]

Exhibit A

Share Proportions

Joseph Menaker – 50%

Mark Lifshotz – 50%

Exhibit B

Registration Rights Agreement

LIGHTPATH TECHNOLOGIES, INC. 8-K  

Exhibit 10.2

REGISTRATION RIGHTS AGREEMENT

This REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”) is made as of January 16, 2018, by and among LIGHTPATH TECHNOLOGIES, INC., a Delaware corporation (the “ Company ”), and JOSEPH MENAKER, an individual, and MARK LIFSHOTZ, an individual (each a “ Holder ” and collectively, the “ Holders ”). The Company and the Holders are sometimes referred to individually as a “ Party ” and collectively as the “ Parties .”

RECITALS :

A.       In connection with that certain Note Satisfaction and Securities Purchase Agreement, dated as of the date hereof (the “ Purchase Agreement ”), by and among the Parties, the Company agreed, among other things, to issue and sell to the Holders shares of the Company’s Common Stock.

B.       To induce Seller to consummate the transactions contemplated by the Purchase Agreement, the Company has agreed to provide certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the “ Securities Act ”), and applicable state securities laws.

NOW, THEREFORE, in consideration of the premises and the mutual promises made herein, and in consideration of the representations, warranties, covenants and agreements herein contained, intending to be legally bound, the Parties hereby agree as follows:

1.         Definitions . Capitalized terms used and not otherwise defined herein that are defined in the Purchase Agreement shall have the meanings given to such terms in the Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings:

(a)       “ Advice ” shall have the meaning set forth in Section 6(c).

(b)       “ Business Day ” means any day other than Saturday, Sunday or any other day on which commercial banks in New York, New York are authorized or required by law to remain closed.

(c)       “ Closing Date ” shall have the meaning set forth in the Purchase Agreement.

(d)       “ Closing Shares ” means the “Shares” issued to the Holders as set forth in the Purchase Agreement.

(e)       “ Commission ” means the United States Securities and Exchange Commission.

(f)        “ Common Stock ” means the Company’s Class A Common Stock, par value $0.01 per share.

(g)       “ Effective Date ” means the date that the applicable Registration Statement has been declared effective by the Commission.

(h)       “ Effectiveness Deadline ” means, with respect to the Initial Registration Statement required to be filed hereunder, the 90th calendar day following the Closing Date (or, in the event of a “full review” by the Commission, the 180 ^th calendar day following the Closing Date) and with respect to any additional Registration Statements which may be required pursuant to Section 3(c), the 90 ^th calendar day following the date on which an additional Registration Statement is required to be filed hereunder; provided , however , that in the event the Company is notified by the Commission that one or more of the above Registration Statements will not be reviewed or is no longer subject to further review and comments and there are no other impediments at such time (such as a review of the SEC Reports) that would prevent the Commission from declaring the Registration Statement effective, the Effectiveness Deadline as to such Registration Statement shall be the fifth Trading Day following the date on which the Company is so notified if such date precedes the dates otherwise required above.

(i)        “ Effectiveness Period ” shall have the meaning set forth in Section 2.

(j)        “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

(k)       “ Filing Date ” means, with respect to the Initial Registration Statement required hereunder, February 15, 2018 and, with respect to any additional Registration Statements which may be required pursuant to Section 3(c), the 30 ^th calendar day following the date on which the Company is permitted by SEC Guidance to file such additional Registration Statement related to the Registrable Securities.

(l)        “ Indemnified Party ” shall have the meaning set forth in Section 5(c).

(m)      “ Indemnifying Party ” shall have the meaning set forth in Section 5(c).

(n)       “ Initial Registration Statement ” means the initial Registration Statement filed pursuant to this Agreement.

(o)       “ Initial Shares ” means a number of Registrable Securities equal to the lesser of (a) the total number of Registrable Securities and (b) one-third of the number of issued and outstanding shares of Common Stock that are held by non-Affiliates of the Company on the day immediately prior to the filing date of the Initial Registration Statement.

(p)       “ Losses ” shall have the meaning set forth in Section 5(a).

(q)       “ Person ” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization or a government or any department or agency thereof.

(r)        “ Plan of Distribution ” shall have the meaning set forth in Section 2.

(s)       “ Proceeding ” means an action, claim, suit, investigation or proceeding (including without limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened.

(t)        “ Prospectus ” means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated by the Commission pursuant to the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.

(u)       “ Registrable Securities ” means, as of any date of determination, (i) 967,208 shares of Common Stock issued as part of the Closing Shares and (ii) any securities issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing; provided , however , that any such Registrable Securities shall cease to be Registrable Securities (and the Company shall not be required to maintain the effectiveness of any, or file another, Registration Statement hereunder with respect thereto) for so long as (x) a Registration Statement with respect to the sale of such Registrable Securities is declared effective by the Commission under the Securities Act and such Registrable Securities have been disposed of by the Holder in accordance with such effective Registration Statement, or (y) such Registrable Securities have been previously sold in accordance with Rule 144.

(v)       “ Registration Statement ” means any registration statement required to be filed hereunder pursuant to Section 2(a) and any additional registration statements contemplated by Section 3(c), including (in each case) the Prospectus, amendments and supplements to any such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in any such registration statement.

(w)      “ Rule 144 ” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any other similar or successor rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.

(x)        “ Rule 415 ” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any other similar or successor rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.

(y)       “ Rule 424 ” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any other similar or successor rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.

(z)        “ SEC Guidance ” means (i) any publicly-available written or oral guidance of the Commission staff, or any comments, requirements or requests of the Commission staff and (ii) the Securities Act.

(aa)     “ SEC Reports ” means all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Sections 13(a) or 15(d) thereof.

(bb)     “ Selling Stockholders ” shall have the meaning set forth in Section 2.

(cc)     “ Selling Stockholder Questionnaire ” shall have the meaning set forth in Section 3(a).

(dd)     “ Trading Day ” means a day on which the principal Trading Market is open for trading.

(ee)     “ Trading Market ” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE AMEX, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange or the OTC Bulletin Board (or any successors to any of the foregoing).

2.              Initial Registration . On or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all or such maximum portion of the Registrable Securities as permitted by SEC Guidance (provided that, the Company shall use commercially reasonable efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09) that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith) and shall contain (unless otherwise directed by at least a majority in interest of the Holders) substantially the “ Plan of Distribution ” and “ Selling Stockholders ” sections attached hereto as Annex A . Subject to the terms of this Agreement, the Company shall use commercially reasonable efforts to cause a Registration Statement filed hereunder to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event prior to the applicable Effectiveness Deadline, and shall use commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act until the earlier of (i) all Registrable Securities covered by such Registration Statement have been sold, thereunder or pursuant to Rule 144 or (ii) the third (3 ^rd ) anniversary of the Filing Date (the “ Effectiveness Period ”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. New York City time on a Trading Day. The Company shall notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. New York City time on the Trading Day after the Effective Date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424. Notwithstanding any other provision of this Agreement, if any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement (and notwithstanding that the Company used commercially reasonable efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the initial number of Registrable Securities included in any Registration Statement and any increase in the number of Registrable Securities included therein shall be allocated pro rata among the Holders based on the number of Registrable Securities held by each Holder at the time such Registration Statement covering such initial number of Registrable Securities or increase thereof is declared effective by the Commission. In the event that a Holder sells or otherwise transfers any of such Holder’s Registrable Securities, each transferee or assignee (as the case may be) that becomes a Holder shall be allocated a pro rata portion of the then-remaining number of Registrable Securities included in such Registration Statement for such transferor or assignee (as the case may be). Any shares of Common Stock included in a Registration Statement and which remain allocated to any Person that ceases to hold any Registrable Securities covered by such Registration Statement shall be allocated to the remaining Holders, pro rata based on the number of Registrable Securities then held by such Holders which are covered by such Registration Statement. In the event of a cutback hereunder, the Company shall give the Holders at least three (3) Trading Days prior written notice along with the calculations as to such Holder’s allotment.

3.             Registration Procedures . In connection with the Company’s registration obligations hereunder, the Company shall:

(a)       Not less than five (5) Trading Days prior to the filing of each Registration Statement and not less than two (2) Trading Days prior to the filing of any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall (i) furnish to each Holder copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent registered public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to each Holder, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities shall reasonably object in good faith, provided that, the Company is notified of such objection in writing no later than three (3) Trading Days after the Holders have been so furnished copies of a Registration Statement or one (1) Trading Day after the Holders have been so furnished copies of any related Prospectus or amendments or supplements thereto. Each Holder agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as Annex B (a “ Selling Stockholder Questionnaire ”) on a date that is not less than five (5) Trading Days prior to the Filing Date.

(b)       (i) Prepare and file with the Commission such amendments, including post-effective amendments, to a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (iv) comply in all material respects with the applicable provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such Prospectus as so supplemented.

(c)       If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable, but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than the number of such Registrable Securities.

(d)       Notify the Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than one (1) Trading Day prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one (1) Trading Day following the day: (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to a Registration Statement is proposed to be filed, (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement, and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information; (iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; (v) of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (vi) of the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the good faith determination of the independent directors of the Board of Directors of the Company, makes it not in the best interest of the Company to allow continued availability of a Registration Statement or Prospectus, provided that, any and all of such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; provided , further , that notwithstanding each Holder’s agreement to keep such information confidential, each such Holder makes no acknowledgement that any such information is material, non-public information.

(e)       Use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.

(f)        Furnish to each Holder, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; provided, that any such item which is available on the EDGAR system (or successor thereto) need not be furnished in physical form.

(g)       Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(d).

(h)       The Company shall cooperate with any broker-dealer through which a Holder proposes to resell its Registrable Securities in effecting a filing with the Financial Industry Regulatory Authority (“ FINRA ”) Corporate Financing Department pursuant to FINRA Rule 5110, as requested by any such Holder, and the Company shall pay the filing fee required by such filing within two (2) Business Days of request therefor.

(i)        Register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for the resale by the Holder under the securities or “blue sky” laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that, the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction.

(j)        Cause all Registrable Securities covered by each Registration Statement to be registered and approved by such other domestic governmental agencies or authorities, if any, as may be necessary to enable the Holders thereof to consummate the disposition of such Registrable Securities;

(k)       Prepare and file in a timely manner all documents and reports required by the Exchange Act throughout the Effectiveness Period;

(l)        List or include all Registrable Securities on any securities exchange or market on which the Common Stock is then listed or included;

(m)      within two (2) business days after a Registration Statement which covers Registrable Securities is declared effective by the Commission the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities, a written opinion to the effect a Registration Statement covering the Registrable Securities has been declared effective by the Commission and such Registrable Securities may be sold without legends regarding restrictions on transfer under the Act, in the form attached hereto as Annex C .

(n)       If requested by a Holder, cooperate with such Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holder may request.

(o)       Upon the occurrence of any event contemplated by Section 3(d), as promptly as reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment, to a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (iii) through (vi) of Section 3(d) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(n) to suspend the availability of a Registration Statement and Prospectus, for a period not to exceed 30 consecutive calendar days but no more than 45 calendar days in the aggregate in any 12-month period.

(p)       Comply with all applicable rules and regulations of the Commission.

(q)       The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control over the shares. During any periods that the Company is unable to meet its obligations hereunder with respect to the registration of the Registrable Securities solely because any Holder fails to furnish such information within three (3) Trading Days of the Company’s request, any obligations owed to such Holder only shall be tolled and any default that may otherwise occur solely because of such delay shall be suspended as to such Holder only, until such information is delivered to the Company.

4.              Registration Expenses . All fees and expenses incident to the performance of or compliance with, this Agreement by the Company shall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses of the Company’s counsel and independent registered public accountants) (A) with respect to filings made with the Commission, (B) with respect to filings required to be made with any Trading Market on which the Common Stock is then listed for trading, (C) in compliance with applicable state securities or “blue sky” laws reasonably agreed to by the Company in writing (including, without limitation, fees and disbursements of counsel for the Company in connection with “blue sky” qualifications or exemptions of the Registrable Securities) and (D) if not previously paid by the Company in connection with an issuer filing, with respect to any filing that may be required to be made by any broker through which a Holder intends to make sales of Registrable Securities with FINRA pursuant to FINRA Rule 5110, so long as the broker is receiving no more than a customary brokerage commission in connection with such sale, (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance, if the Company so desires such insurance, and (vi) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement. In addition, the Company shall be responsible for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder. In no event shall the Company be responsible for any broker or similar commissions of any Holder or any legal fees or other costs of the Holders.

5.              Indemnification .

(a)        Indemnification by the Company . The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder, the officers, directors, members, partners, agents, brokers (including brokers who offer and sell Registrable Securities as principal as a result of a pledge or any failure to perform under a margin call of Common Stock), investment advisors and employees (and any other Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, members, stockholders, partners, agents and employees (and any other Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each such controlling Person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively, “ Losses ”), as incurred, arising out of or relating to (1) any untrue or alleged untrue statement of a material fact contained in a Registration Statement, any Prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (2) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder, in connection with the performance of its obligations under this Agreement, except to the extent, but only to the extent, that (i) such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in a Registration Statement, such Prospectus or in any amendment or supplement thereto (it being understood that the Holder has approved Annex A hereto for this purpose) or (ii) in the case of an occurrence of an event of the type specified in Section 3(d)(iii)-(vi), the use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior to the receipt by such Holder of the Advice contemplated in Section 6(c). The Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding arising from or in connection with the transactions contemplated by this Agreement of which the Company is aware.

(b)        Indemnification by Holders . Each Holder shall jointly indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to the fullest extent permitted by applicable law, from and against all Losses, as incurred, to the extent arising out of or based solely upon: (x) such Holder’s failure to comply with the prospectus delivery requirements of the Securities Act or (y) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading (i) to the extent, but only to the extent, that such untrue statement or omission is contained in any information so furnished in writing by such Holder to the Company specifically for inclusion in such Registration Statement or such Prospectus or (ii) to the extent that such information relates to such Holder’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in a Registration Statement (it being understood that the Holder has approved Annex A hereto for this purpose), such Prospectus or in any amendment or supplement thereto or (ii) in the case of an occurrence of an event of the type specified in Section 3(d)(iii)-(vi), the use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior to the receipt by such Holder of the Advice contemplated in Section 6(c). In no event shall the liability of any selling Holder under this Section 5(b) be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation.

(c)        Conduct of Indemnification Proceedings . If any Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder (an “ Indemnified Party ”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “ Indemnifying Party ”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that, the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have prejudiced the Indemnifying Party.

An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses, (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding, or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the Indemnified Party shall reasonably believe that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable fees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.

Subject to the terms of this Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten (10) Trading Days of written notice thereof to the Indemnifying Party; provided, that, the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actions for which such Indemnified Party is judicially determined not to be entitled to indemnification hereunder.

(d)        Contribution . If the indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any Losses, then each Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such party in accordance with its terms.

The Parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 5(d), no Holder shall be required to contribute pursuant to this Section 5(d), in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such Holder from the sale of the Registrable Securities subject to the Proceeding exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.

The indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties.

6.              Miscellaneous .

(a)        Remedies . In the event of a breach by the Parties of any of their respective obligations under this Agreement, each Party, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, shall be entitled to specific performance of its rights under this Agreement. Each Party hereto agrees that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall not assert or shall waive the defense that a remedy at law would be adequate.

(b)        Compliance . Each Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to it in connection with sales of Registrable Securities pursuant to a Registration Statement.

(c)        Discontinued Disposition . By its acquisition of Registrable Securities, each Holder agrees that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(d)(iii) through (vi), such Holder will forthwith discontinue disposition of such Registrable Securities under a Registration Statement until it is advised in writing (the “ Advice ”) by the Company that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company will use commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable.

(d)        Piggy-Back Registrations . If, at any time during the Effectiveness Period, there is not an effective Registration Statement covering all of the Registrable Securities and the Company shall determine to prepare and file with the Commission a registration statement relating to an offering for its own account or the account of others under the Securities Act of any of its equity securities, other than on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with the Company’s stock option or other employee benefit plans, then the Company shall deliver to each Holder a written notice of such determination and, if within fifteen (15) calendar days after the date of the delivery of such notice, any such Holder shall so request in writing, the Company shall include in such registration statement all or any part of such Registrable Securities such Holder requests to be registered; provided , however , that the Company shall not be required to register any Registrable Securities pursuant to this Section 6(d) that are eligible for resale pursuant to Rule 144 promulgated by the Commission pursuant to the Securities Act or that are the subject of a then effective Registration Statement.

(e)        Amendments and Waivers . The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed by the Company and the Holders. If a Registration Statement does not register all of the Registrable Securities pursuant to a waiver or amendment done in compliance with the previous sentence, then the number of Registrable Securities to be registered for each Holder shall be reduced pro rata among all Holders and each Holder shall have the right to designate which of its Registrable Securities shall be omitted from such Registration Statement. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of a Holder or some Holders and that does not directly or indirectly affect the rights of other Holders may be given by such Holder or Holders of all of the Registrable Securities to which such waiver or consent relates; provided , however , that the provisions of this sentence may not be amended, modified, or supplemented except in accordance with the provisions of the first sentence of this Section 6(e).

(f)         Notices . Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (i) the date of transmission, if such notice or communication is delivered via facsimile or email at the facsimile number or email address set forth on the signature pages attached hereto prior to 5:30 p.m. (New York City time) on a Trading Day (with written confirmation of transmission or receipt); (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile or email at the facsimile number or email address set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day (with written confirmation of transmission or receipt); (iii) the second (2 ^nd ) Trading Day following the date of mailing, if sent by overnight courier service (with written confirmation of receipt); or (iv) upon actual receipt by the Party to whom such notice is required to be given. The address, facsimile number and email address for such notices and communications shall be as set forth on the signature pages attached hereto, except as the same may be changed by a Party hereto by delivering notice to the Holders, in the case of a change by the Company, and to the Company, in the case of a change by any Holder, in each case in accordance with the terms hereof, such change of address to be effective on the later of the date set forth in such notice, or ten (10) days after such notice is deemed given hereunder.

(g)        Successors and Assigns . This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the Parties and shall inure to the benefit of each Holder. The Company may not assign (except by merger) its rights or obligations hereunder without the prior written consent of all of the Holders of the then outstanding Registrable Securities. Each Holder may assign their respective rights hereunder to any Person to whom such Holder assigns or transfers any Registrable Securities; provided , however , such transferee agrees in writing to be bound, with respect to the Registrable Securities, by the provisions of this Agreement that apply to “Holders.”

(h)        No Inconsistent Agreements . Neither the Company nor any of its subsidiaries has entered, as of the date hereof, nor shall the Company or any of its subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to its securities, that would have the effect of impairing the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof.

(i)         Execution and Counterparts . This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each Party and delivered to the other Party, it being understood that the Parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.

(j)         Governing Law . This Agreement shall be governed by and construed in accordance with the domestic Laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware. Each party hereby submits to the exclusive jurisdiction and venue of any state or federal court sitting in the State of Delaware, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby and agrees that all claims in respect of such action or proceeding may be heard and determined in any such court. Each party waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought.

(k)        Cumulative Remedies . The remedies provided herein are cumulative and not exclusive of any other remedies provided by law.

(l)         Severability . If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the Parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

(m)       Headings . The headings in this Agreement are for convenience only, do not constitute a part of the Agreement and shall not be deemed to limit or affect any of the provisions hereof.

********************

(Signature Pages Follow)

IN WITNESS WHEREOF, the Holders and the Company have executed this Agreement as of the date first written above.

Annex A

Selling Stockholders

The following table sets forth certain information provided to us by the selling stockholders with respect to the beneficial ownership of our Class A common stock by the selling stockholders as of [_______]. The following table assumes that the selling stockholders sell all of their shares; however, we are unable to determine the exact number of shares that will actually be sold. The percentage of shares beneficial owned prior to the offering is based on [__________] shares outstanding at [__________], determined in accordance with Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and the information is not necessarily indicative of beneficial ownership for any other purpose. Under such rule, beneficial ownership includes any shares as to which the individual has sole or shared voting power or investment power and also any shares which the individual has the right to acquire within sixty days of [______], through the exercise of any warrants or other right. 

Plan of Distribution

We are registering the shares of Class A common stock issued to the selling stockholders to permit the resale of these shares of Class A common stock by the selling stockholders from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling stockholders of the shares of Class A common stock. We will bear all fees and expenses incident to our obligation to register the shares of Class A common stock.

The selling stockholders may sell all or a portion of the shares of Class A common stock held by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the shares of Class A common stock are sold through underwriters or broker-dealers, the selling stockholders will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of Class A common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions, pursuant to one or more of the following methods:

The selling stockholders may also sell shares of Class A common stock under Rule 144 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), if available, rather than under this prospectus. If the selling stockholders effect such transactions by selling shares of Class A common stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the shares of Class A common stock for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection with sales of the shares of Class A common stock or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of Class A common stock in the course of hedging in positions they assume. The selling stockholders may also sell shares of Class A common stock short and deliver shares of Class A common stock covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling stockholders may also loan or pledge shares of Class A common stock to broker-dealers that in turn may sell such shares. 

The selling stockholders may pledge or grant a security interest in some or all of the shares of Class A common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of Class A common stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer and donate the shares of Class A common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.

To the extent required by the Securities Act and the rules and regulations thereunder, the selling stockholders and any broker-dealer participating in the distribution of the shares of common stock may be deemed to be “underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares of Class A common stock is made, a prospectus supplement, if required, will be distributed, which will set forth the aggregate amount of shares of Class A common stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling stockholders and any discounts, commissions or concessions allowed or re-allowed or paid to broker-dealers. Each selling stockholder has informed us that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the shares of Class A common stock in violation of any applicable securities laws. In no event shall any broker-dealer receive fees, commissions and markups which, in the aggregate, would exceed eight percent (8%).

Under the securities laws of some states, the shares of Class A common stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of Class A common stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.

There can be no assurance that any selling stockholder will sell any or all of the shares of Class A common stock registered pursuant to the registration statement, of which this prospectus forms a part.

The selling stockholders and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of Class A common stock by the selling stockholders and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the shares of Class A common stock to engage in market-making activities with respect to the shares of Class A common stock. All of the foregoing may affect the marketability of the shares of Class A common stock and the ability of any person or entity to engage in market-making activities with respect to the shares of Class A common stock.

We will pay all expenses of the registration of the shares of Class A common stock pursuant to the registration rights agreement, estimated to be $[ ] in total, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, a selling stockholder will pay all underwriting discounts and selling commissions, if any. We will indemnify the selling stockholders against liabilities, including some liabilities under the Securities Act in accordance with the registration rights agreements or the selling stockholders will be entitled to contribution. We may be indemnified by the selling stockholders against civil liabilities, including liabilities under the Securities Act that may arise from any written information furnished to us by the selling stockholders specifically for use in this prospectus, in accordance with the related registration rights agreements or we may be entitled to contribution.

We agreed to keep this prospectus effective until the earlier of (i) the date on which the shares may be resold by the selling stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for us to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect (or we are in compliance with the current public information requirement under Rule 144) or (ii) all of the shares have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. 

Once sold under the registration statement, of which this prospectus forms a part, the shares of Class A common stock will be freely tradable in the hands of persons other than our affiliates.

Annex B

LIGHTPATH TECHNOLOGIES, INC.

  Selling Stockholder Notice and Questionnaire 

The undersigned beneficial owner of common stock (the “ Registrable Securities ”) of LightPath Technologies, Inc., a Delaware corporation (the “ Company ”), understands that the Company has filed or intends to file with the Securities and Exchange Commission (the “ Commission ”) a registration statement (the “ Registration Statement ”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “ Securities Act ”), of the Registrable Securities, in accordance with the terms of the Registration Rights Agreement (the “ Registration Rights Agreement ”) to which this document is annexed. A copy of the Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.

Certain legal consequences arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling stockholder in the Registration Statement and the related prospectus. 

NOTICE

The undersigned beneficial owner (the “ Selling Stockholder ”) of Registrable Securities hereby elects to include the Registrable Securities owned by it in the Registration Statement. 

The undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate: 

QUESTIONNAIRE

1.            Name. 

(a)           Full Legal Name of Selling Stockholder 

(b)           Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities are held: 

(c)           Full Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone or with others has power to vote or dispose of the securities covered by this Questionnaire): 

2. Address for Notices to Selling Stockholder:  

3. Broker-Dealer Status:

(a)           Are you a broker-dealer? 

Yes                                No

(b)           If “yes” to Section 3(a), did you receive your Registrable Securities as compensation for investment banking services to the Company?

Yes                                No

Note:      If “no” to Section 3(b), the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement. 

(c)           Are you an affiliate of a broker-dealer?

Yes                                No 

(d)           If you are an affiliate of a broker-dealer, do you certify that you purchased the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities?

Yes                                No

Note:      If “no” to Section 3(d), the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.

4. Beneficial Ownership of Securities of the Company Owned by the Selling Stockholder. 

Except as set forth below in this Item 4, the undersigned is not the beneficial or registered owner of any securities of the Company other than the securities issuable pursuant to the Purchase Agreement.

(a)           Type and Amount of other securities beneficially owned by the Selling Stockholder: 

5. Relationships with the Company:

Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.

State any exceptions here: 

The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof at any time while the Registration Statement remains effective.

By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through 5 and the inclusion of such information in the Registration Statement and the related prospectus and any amendments or supplements thereto. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related prospectus and any amendments or supplements thereto.

IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.

PLEASE FAX A COPY (OR EMAIL A .PDF COPY) OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN THE ORIGINAL BY OVERNIGHT MAIL, TO:

Dorothy Cipolla 

Email: dcipolla@lightpath.com 

Facsimile: ____________

Address: 2603 Challenger Tech Court, Suite 100 

Orlando, Florida 32826

Annex C

FORM OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT

Computershare 

Meidinger Tower 

462 South Fourth Street 

Louisville, Kentucky 40202 

Attention: Jade Larimore

Re:           LightPath Technologies, Inc.

Ladies and Gentlemen:

We are counsel to LightPath Technologies, Inc., a Delaware corporation (the “ Company ”), and have represented the Company in connection with that certain Note Satisfaction and Securities Purchase Agreement (the “ Securities Purchase Agreement ”) entered into by and among the Company and the noteholders named therein (collectively, the “ Holders ”) pursuant to which the Company issued to the Holders shares of the Company’s common stock, Class A, $.01 par value per share (the “ Common Stock ”), as more fully described on Schedule A attached hereto. Pursuant to the Securities Purchase Agreement, the Company also has entered into a Registration Rights Agreement with the Holders (the “ Registration Rights Agreement ”) pursuant to which the Company agreed, among other things, to register the Registrable Securities (as defined in the Registration Rights Agreement), under the Securities Act of 1933, as amended (the “ 1933 Act ”). In connection with the Company’s obligations under the Registration Rights Agreement, on ____________ ___, 20__, the Company filed a Registration Statement on Form S-3 (File No. 333-_____________) (the “ Registration Statement ”) with the Securities and Exchange Commission (the “ SEC ”) relating to the Registrable Securities, which names each of the Holders as a selling stockholder thereunder.

In connection with the foregoing, we advise you that a member of the SEC’s staff has advised us by telephone that the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge, after telephonic inquiry of a member of the SEC’s staff, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and the Registrable Securities are available for resale under the 1933 Act pursuant to the Registration Statement.

This letter shall serve as our standing opinion to you that the shares of Common Stock are freely transferable by the Holders pursuant to the Registration Statement, and new certificates representing the shares of Common Stock actually sold need not bear a restrictive legend; provided , that the requirements of this letter are met and the Holder provides a representation letter substantially in the form attached hereto as Exhibit A , indicating that the Holder is selling pursuant to the prospectus that is a part of the Registration Statement. Any stop transfer instructions maintained in your records may be removed with respect to the actual number of shares of Common Stock sold by a Holder from time to time; however, any unsold shares of Common Stock should continue to bear the restrictive legend as contained in the certificate or certificates, as the case may be, submitted for cancellation, and appropriate stop transfer instructions should be placed in your records regarding such unsold shares of Common Stock.

The authorizations and opinions set forth in this letter may be rescinded, and thereupon shall immediately be deemed null and void, upon delivery by Baker & Hostetler, LLP to you of a notice either (a) in writing or (b) verbally to be followed by written confirmation.

CC: [ LIST NAMES OF HOLDERS ]

Schedule A

LIST OF HOLDERS

Exhibit A  

FORM OF REPRESENTATION LETTER

[DATE]

Seller: [INSERT SELLER’S NAME] (“ Seller ”) 

Total Number of Shares to Be Sold: [INSERT NUMBER] (the “ Shares ”) 

Trade Date(s): TBD 

Security: Shares of Class A common stock, par value $.01, of LightPath Technologies, Inc. 

To Whom It May Concern: 

This letter is in regards to the proposed sale of the Shares of LightPath Technologies, Inc. In connection with the proposed future sale, we make the following representations:

LIGHTPATH TECHNOLOGIES, INC. 8-K  

Exhibit 10.3

SECOND AMENDMENT
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT

This Second Amendment to Second Amended and Restated Loan and Security Agreement is entered into as of January 16, 2018 (the “Amendment”), by and between AVIDBANK (“Bank”), and LIGHTPATH TECHNOLOGIES, INC. (“Borrower”).

RECITALS

Borrower and Bank are parties to that certain Second Amended and Restated Loan and Security Agreement dated as of December 21, 2016 and as amended from time to time, including pursuant to that certain First Amendment to Second Amended and Restated Loan and Security Agreement dated as of December 20, 2017 (collectively, the “Agreement”). The parties desire to amend the Agreement in accordance with the terms of this Amendment.

NOW, THEREFORE, the parties agree as follows:

1.             The following definitions in Section 1.1 of the Agreement are hereby added or amended in their entirety to read as follows:

“Adjusted EBITDA” means Borrowers’ consolidated earnings before interest, taxes, depreciation and amortization expenses, plus (i) stock–based compensation expenses, (ii) non-cash expenses (income) related to change of fair value of warrant liabilities or Subordinated Debt owing under the Seller Note, (iii) foreign currency translation loss, and (iv) one-time transaction expenses in connection with acquisition of Target (not to exceed $50,000 for the trailing twelve month period ending in December 31, 2017).

“Credit Extension” means any Advance, Acquisition Term Loan, the Term II Loan, or any other extension of credit by Bank for Borrowers’ benefit.

“Fixed Charge Coverage Ratio” means, as of any particular measurement date (the “Measurement Date”), a ratio of (a) Borrowers’ consolidated Adjusted EBITDA for the twelve month period ending on the Measurement Date to (b) the sum of (i) the scheduled principal and interest payments to be made to Bank with respect to the Term II Loan during the twelve month period immediately following the Measurement Date, plus (ii) the interest payments paid or payable to Bank with respect to the Advances during the twelve month period ending on the Measurement Date, plus (iii) the scheduled principal and interest payments to be made on all Subordinated Debt during the twelve month period immediately following the Measurement Date plus (iv) the amount of non-financed capital expenditures made during the twelve month period ending on the Measurement Date, plus (v) taxes paid or payable during the twelve month period ending on the Measurement Date, plus (vi) all the principal and interest payments on all capital lease obligations during the during the twelve month period ending on the Measurement Date, plus (vii) all dividends and distributions made during the twelve month period ending on the Measurement Date.

“Term II Loan Prepayment Fee” means a cash fee in the amount equal to (i) 0.75% of the Excess Prepayment Amount if such prepayment occurs on or prior to the first anniversary of the Second Amendment Date, or (ii) 0.5% of the Excess Prepayment Amount if such prepayment occurs after the first anniversary of the Second Amendment Date but on or prior to the second anniversary of the Second Amendment Date, or (iii) 0.25% of the Excess Prepayment Amount if such prepayment occurs after the second anniversary of the Second Amendment Date but on or prior to the third anniversary of the Second Amendment Date, or (iv) 0.10% of Excess Prepayment Amount if such prepayment occurs after the third anniversary of the Second Date but on or prior to the fourth anniversary of the Second Amendment Date.

“Revolving Maturity Date” means December 21, 2018.

“Second Amendment Date” means January 16, 2018.

“Seller Note” means that certain Unsecured Promissory Note in the original principal amount of $6,000,000 issued to Joseph Menaker and Mark Lifshotz in connection with the acquisition of Target.

“Term II Loan Maturity Date” means the fifth anniversary of the Second Amendment Date.

2.             The following is added as a new subsection (c) to the end of Section 2.1:

(c)           Term II Loan.

(i)          Subject to and upon the terms and conditions of this Agreement, Bank agrees to make a single cash advance to Parent in an original principal amount of $7,294,000 (the “Term II Loan”) on or around the Second Amendment Date. The proceeds of the Term II Loan shall be used to repay all amounts owing with respect to the Acquisition Term Loan (other than the Prepayment Fee, which Bank hereby waives), with any remainder used to repay amounts owing under the Seller Note. Thereafter, the Acquisition Term Loan shall be deemed satisfied in full and terminated.

(ii)         Interest shall accrue from the date the Term II Loan is made to Parent at the rate specified in Section 2.3. The Term II Loan shall be payable in sixty (60) monthly installments of principal in the amount of $121,566.67 (each, a “Scheduled Payment”), plus all accrued interest, beginning on the tenth day of the first month following the Second Amendment Date, and continuing on the same day of each month thereafter for so long as the Term II Loan is outstanding. On the Term II Loan Maturity Date, the Term Loan and all other amounts related thereto shall be immediately due and payable.

(iii)        In addition to the foregoing, if Borrowers fail to timely comply with Section 6.14 of this Agreement, then on January 31, 2018, Borrowers shall make an additional principal payment on account of the Term II Loan in the amount of $2,850,000, which shall be applied to the Scheduled Payments in reverse order of due date.

(iv)       Borrowers shall have the option to prepay all but not less than all of the Term II Loan provided that Borrowers provide written notice to Bank of its election to prepay the Term II Loan at least ten (10) days prior to such prepayment, and pays, on the date of such prepayment, (1) the outstanding principal amount of the Term II Loan being repaid, plus (2) all accrued interest thereon, plus (3) with respect to the amount of the Term II Loan being prepaid that is in excess of $2,850,000 of the Term II Loan (the “Excess Prepayment Amount”), the Term II Loan Prepayment Fee, plus (4) all other sums, if any, that shall have become due and payable under the Loan Documents and relate to the Term II Loan. The Term II Loan once repaid, may not be reborrowed.

3.             The following is added as a new subsection (iii) to the end of Section 2.3(a):

(iii) Except as set forth in Section 2.3(b), the Term II Loan shall bear interest, on the outstanding Daily Balance thereof, at a per annum rate equal to two percent (2.00%) above the Prime Rate, provided however that at no time shall the applicable rate be less than five and one half percent (5.50%) per annum.

4.             Section 2.5(a) is amended and restated in its entirety to read as follows:

(a)           Facility Fees. On the Second Amendment Date, Borrowers shall pay to Bank: (i) a facility fee with respect to the Revolving Facility equal to $3,749, and (ii) a facility fee with respect to the Term II Loan equal to $20,000, each of which are fully earned and nonrefundable.

5.             Section 6.3(d) of the Agreement is amended and restated in its entirety to read as follows:

(d) as soon as available, but in any event within ninety (90) days after the end of a Borrower’s fiscal year, audited consolidated and consolidating financial statements of such Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm reasonably acceptable to Bank; provided, however that the filing of such financial statements and opinion of an independent certified public accounting firm with the Securities and Exchange Commission through EDGAR will satisfy such Borrower’s delivery obligations hereunder upon notice to Bank of such filings;

6.             The following is added as a new Section 6.14 to the end of Section 6 of the Agreement:

6.14         ISP Acquisition Repayment. On or before January 31, 2018, Borrowers shall provide evidence satisfactory to Bank of the satisfaction of all obligations owing under the Seller Note (by way of repayment and conversion of such Indebtedness into equity securities of Parent), including copies of the fully executed, definitive documents evidencing the conversion of amounts owing under the Seller Note that results in the full satisfaction of all amounts owing under the Seller Note.

7.             Exhibit D to the Agreement is replaced in its entirety with the Exhibit D attached hereto.

8.             Unless otherwise defined, all initially capitalized terms in this Amendment shall be as defined in the Agreement. The Agreement, as amended hereby, shall be and remain in full force and effect in accordance with its respective terms and hereby is ratified and confirmed in all respects. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Bank under the Agreement, as in effect prior to the date hereof. Each Borrower ratifies and reaffirms the continuing effectiveness of all agreements entered into in connection with the Agreement.

9.             Borrowers represent and warrant that the representations and warranties contained in the Agreement are true and correct as of the date of this Amendment, and that no Event of Default has occurred and is continuing.

10.           This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original hereof. Notwithstanding the foregoing, Borrowers shall deliver all original signed documents no later than ten (10) Business Days following the date of execution.

11.           As a condition to the effectiveness of this Amendment, Bank shall have received, in form and substance satisfactory to Bank, the following:

(a)            this Amendment, duly executed by Borrowers;

(b)            corporate resolutions and incumbency certificate executed by each Borrower;

(c)            a Term II Loan Request Form in the form attached hereto as Exhibit B-1;

(d)            affirmation of guarantee duly executed by Geltech, Inc.;

(e)            payment of the fees set forth above plus all Bank Expenses incurred through the date of this Amendment; and

(f)            such other documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate.

[signature page follows]

IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first date above written.

EXHIBIT B-1
TERM II LOAN REQUEST FORM

LIGHTPATH TECHNOLOGIES, INC. (“Parent”) hereby requests funding of the Term II Loan in the amount of $7,294,000 in accordance with Section 2.1(c) of the Second Amended and Restated Loan and Security Agreement between Borrowers and Avidbank (“Lender”), dated as of December 21, 2016 and as amended (the “Agreement”).

Each Borrower represents and warrants that it is in complete compliance with the Agreement, including all covenants, and there are no Events of Default, and all representations and warranties of Borrowers stated in the Agreement are true, correct and complete in all material respects as of the date of this request; provided that those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of such date.

Capitalized terms used herein and not otherwise defined have the meanings set forth in the Agreement.

Exhibit D
Compliance Certificate

The undersigned authorized officer of LightPath Technologies, Inc. on behalf of Borrowers hereby certifies that in accordance with the terms and conditions of the Second Amended and Restated Loan and Security Agreement between Borrowers and Bank (the “Agreement”), (i) each Borrower is in complete compliance for the period ending _______________ with all required covenants except as noted below and (ii) all representations and warranties of each Borrower stated in the Agreement are true and correct as of the date hereof. Attached herewith are the required documents supporting the above certification. The Officer further certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except as explained in an accompanying letter or footnotes.

Please indicate compliance status by circling Yes/No under “Complies” column.

LIGHTPATH TECHNOLOGIES, INC. 8-K  

Exhibit 10.4

AFFIRMATION OF GUARANTEE

This AFFIRMATION OF GUARANTEE is made as of January 16, 2018 (“Affirmation”), by the undersigned guarantor (“Guarantor”) for the benefit of AVIDBANK (“Bank”).

RECITALS

Lightpath Technologies, Inc. and ISP Optics Corporation (together, “Borrower”) and Bank are parties to that certain Second Amended and Restated Loan and Security Agreement dated as of December 21, 2016 and as amended from time to time (the “Agreement”). In connection therewith, Guarantor executed for the benefit of Bank an Unconditional Guaranty dated as of September 30, 2013 (the “Guarantee”). Borrower and Bank propose to enter into an amendment of the Agreement on or around date herewith (the “Amendment”) to, among other things, increase and extend the credit facilities being provided by Bank to Borrower thereunder, provided, that Guarantor consents to the Amendment and agrees that the Guarantee will remain effective.

AGREEMENT

NOW, THEREFORE, Guarantor agrees as follows:

1.            Guarantor consents to the execution, delivery and performance by Borrower of the Amendment and the documents and instruments executed in connection therewith.

2.            Guarantor confirms that, as of the date hereof, Guarantor has no defenses against its obligations under the Guarantee.

3.            The Guarantee is and shall remain in full force and effect with respect to Borrower’s Obligations and otherwise and hereby is ratified and confirmed in all respects.

4.            Unless otherwise defined, all capitalized terms in this Affirmation shall be as defined in the Guarantee.

5.            In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original hereof.

[signature page follows]

IN WITNESS WHEREOF, the undersigned has executed this Affirmation of Guaranty as of the first date above written.