UNITED
STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT
REPORT
PURSUANT TO
SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
October 30,
2018
Date of Report
(Date of earliest event reported)
LIGHTPATH
TECHNOLOGIES, INC.
(Exact name of
registrant as specified in its charter)
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Delaware
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000-27548
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86-0708398
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(State or other
jurisdiction of
incorporation or
organization)
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(Commission File
Number)
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(I.R.S.
Employer
Identification
Number)
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2603 Challenger
Tech Court, Suite 100
Orlando, Florida
32826
(Address of
principal executive office, including zip code)
(407)
382-4003
(Registrant’s
telephone number, including area code)
Check the appropriate box below if
the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following
provisions:
[ ] Written communications pursuant
to Rule 425 under the Securities Act (17 CFR
230.425)
[ ] Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
[ ] Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Indicate by check mark whether the
registrant is an emerging growth company as defined in Rule 405 of
the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of
the Securities Exchange Act of 1934 (17 CFR §240.12b-2 of this
chapter).
Emerging growth company [
]
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the
extended transition period for complying with any new or revised
financial accounting standards providing pursuant to Section 13(a)
of the Exchange Act. [ ]
LightPath Technologies,
Inc.
Form 8-K
Item 1.01. Entry into a Material Definitive
Agreement.
On October 30,
2018, LightPath Technologies, Inc. (the “Company”)
entered into the Fifth Amendment to Second Amended and Restated
Loan and Security Agreement (the “Amendment”) relating
to its previously disclosed acquisition term loan (the “Term
Loan”) and working capital revolving line of credit (the
“Revolving Line”) pursuant to that certain Second
Amended and Restated Loan and Security Agreement, dated December
21, 2016 (the “LSA”), with Avidbank Corporate Finance,
a division of Avidbank (the “Lender”). The descriptions
of the (i) LSA, Term Loan, and Revolving Line set forth under Items
1.01, 2.01, and 2.03 in the Company’s Current Report on Form
8-K dated December 21, 2016, (ii) First Amendment to Second Amended
and Restated Loan and Security Agreement set forth under Items 1.01
and 2.03 in the Company’s Current Report on Form 8-K dated
December 20, 2017, (iii) Second Amendment to Second Amended and
Restated Loan and Security Agreement set forth under Items 1.01 and
2.03 in the Company’s Current Report on Form 8-K dated
January 16, 2018, (iv) Third Amendment to Second Amended and
Restated Loan and Security Agreement set forth under Item 5 in the
Company’s Quarterly Report on Form 10-Q filed with the
Securities and Exchange Commission (the “SEC”) on May
14, 2018, and (v) Fourth Amendment to Second Amended and Restated
Loan and Security Agreement set forth under Item 9B in the
Company’s Annual Report on Form 10-K filed with the SEC on
September 13, 2018 are incorporated by reference
herein.
The Amendment
extends the maturity date of the Revolving Line from December 21,
2018 to March 21, 2019. In connection therewith, the Amendment also
amends (i) the definition of “Adjusted EBITDA” and (ii)
adds a new paragraph at the end of Section 6.9(a) of the LSA to
allow the Company to include in the calculation of Adjusted EBITDA,
for purposes of determining the fixed charge coverage ratio and
compliance with the fixed charge ratio covenant, the addback of the
following one-time expenses: (1) implementation and integration to
ERP systems, (2) consulting expenses with Mark Lifshotz and Joseph
Menaker, (3) manufacturing overlap due to deficiencies with New
York site, (4) relocation, severance, and retention expense for New
York staff, (5) closure of New York site, (6) equipment relocation
costs, and (7) new facility readiness.
The foregoing
descriptions of the Amendment are summaries only, and are qualified
in their entirety by reference to the complete text of the
Amendment filed herewith as Exhibit 10.1.
Item 2.03 Creation of a Direct Financial
Obligation or an Obligation Under an Off-Balance Sheet Arrangement
of Registrant.
The
information set forth under Item 1.01 above is incorporated by
reference into this Item 2.03.
Item 9.01 Financial Statements and
Exhibits
(d)
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Exhibit No.
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Description
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Fifth
Amendment to Second Amended and Restated Loan and Security
Agreement, dated October 30, 2018
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Affirmation of
Guarantee of Geltech, Inc. dated October 30,
2018
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SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, as amended, the registrant has
duly caused this Report to be signed in its behalf by the
undersigned, thereunto duly authorized.
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LIGHTPATH TECHNOLOGIES,
INC.
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Dated: November 1,
2018
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By:
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/s/
Donald O. Retreage,
Jr.
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Donald O.
Retreage, Jr., CFO
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Exhibit 10.1
FIFTH AMENDMENT
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT
This
Fifth Amendment to Second Amended and Restated Loan and Security
Agreement is entered into as of October 30, 2018 (the
“Amendment”), by and between AVIDBANK
(“Bank”), LIGHTPATH TECHNOLOGIES, INC.
(“Parent”) and ISP OPTICS CORPORATION
(“ISP”). Parent and ISP are each also referred to as a
“Borrower” and together as the
“Borrowers”.
RECITALS
Borrowers 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, that certain Second
Amendment to Second Amended and Restated Loan and Security
Agreement dated as of January 16, 2018, that certain Third
Amendment to Second Amended and Restated Loan and Security
Agreement dated as of May 11, 2018 and that certain Fourth
Amendment to Second Amended and Restated Loan and Security
Agreement dated as of September 7, 2018 (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 amended
and restated 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, (iv) one-time transaction expenses in
connection with acquisition of Target (not to exceed $50,000 for
the trailing twelve month period ending in December 31, 2017); and
(v) such other one-time expenses as may be consented to in writing
by Bank on a case by case basis.
“Revolving
Maturity Date” means March 21, 2019.
2
. The
following is added to the end of Section 6.9(a) of the
Agreement:
In
addition to the foregoing, solely for purposes of calculating
Borrowers’ Adjusted EBITDA for use in determining the Fixed
Charge Coverage Ratio and Borrower’s compliance with this
Section 6.9(a), Borrowers may elect to include in Adjusted EBITDA
the addback of one-time expenses with respect to (i) implementation
and integration to ERP systems, (ii) consulting expenses with Mark
Lifshotz and Joseph Menaker, (iii) manufacturing overlap due to
deficiencies with New York site, (iv) relocation, severance, and
retention expense for New York staff, (v) closure of New York site,
(vi) Equipment relocation costs, and (vi) new facility readiness
(collectively, the “One-Time Addback Amounts”), in an
aggregate amount not to exceed the amounts set forth below for the
fiscal quarters set forth below:
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Fiscal Quarter
Ending
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12/31/17
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$
82,240
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3/31/18
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$
49,005
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6/30/18
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$
190,463
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9/30/18
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$
91,054
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12/31/18
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$
288,450
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3/31/19
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$
292,500
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6/30/19
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$
181,701
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3
. 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.
4.
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.
5.
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.
6.
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) affirmation
of guaranty;
(c) payment
of a pro-rated facility fee in the amount of $937.50 plus an
amendment fee in the amount of $500 plus all Bank Expenses incurred
through the date of this Amendment; and
(d) 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.
BORROWERS:
LIGHTPATH
TECHNOLOGIES, INC.
Title:
President & Chief Executive
Officer
ISP
OPTICS CORPORATION
Title:
President & Chief Executive
Officer
BANK:
AVIDBANK
Title:
Senior Vice
President
Exhibit 10.2
AFFIRMATION
OF GUARANTY
This
AFFIRMATION OF GUARANTEE is made as of October 30, 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 hereof (the “Amendment”), 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.
GUARANTOR:
GELTECH,
INC.
Title:
President & Chief Executive
Officer