lpth_ex4-1





 







Exhibit 4.1


 



DESCRIPTION OF THE REGISTRANT’S SECURITIES REGISTERED
PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED


 



The following is a summary of all material characteristics of the
capital stock of LightPath Technologies, Inc., a Delaware
corporation (“LightPath,” the “Company,”
“we,” “us,” or “our”) as set
forth in our Certificate of Incorporation, as amended (the
“Certificate of Incorporation”) and our Amended and
Restated Bylaws, as further amended (the “Bylaws”), and
as registered under Section 12 of the Securities Exchange Act of
1934, as amended (the “Exchange Act”). The summary does
not purport to be complete and is qualified in its entirety by
reference to our Certificate of Incorporation and our Bylaws, each
of which are incorporated by reference as exhibits to the Annual
Report on Form 10-K of which this Exhibit 4.1 is a part and to the
provisions of the Delaware General Corporate Law (the
“DGCL”). We encourage you to review complete copies of
our Certificate of Incorporation and our Bylaws, and the applicable
provisions of the DGCL for additional information.


 



General


 


Our
authorized capital stock consists of 55,000,000 shares, divided
into 50,000,000 shares of common stock, par value $0.01 per share
(the “Common Stock”), and 5,000,000 shares of preferred
stock, par value $0.01 per share (“Preferred Stock”).
Under our Certificate of Incorporation, our board of directors (our
“Board”) has the authority to issue such shares of
Common Stock and Preferred Stock in one or more classes or series,
with such voting powers, designations, preferences and relative,
participating, optional or other special rights, if any, and such
qualifications, limitations or restrictions thereof, if any, as
shall be provided for in a resolution or resolutions adopted by our
Board and filed as designations.


 



Class A Common Stock


 


Of the
50,000,000 shares of Common Stock authorized in our Certificate of
Incorporation, our Board has designated 44,500,000 shares as Class
A common stock, par value $0.01 per share (the “Class A
Common Stock”). As of September 7, 2021, 26,994,534 shares of
our Class A Common Stock were outstanding. The remaining 5,500,000
shares of authorized Common Stock were designated as Class E-1
Common Stock, Class E-2 Common Stock, or Class E-3 Common Stock,
all previously outstanding shares of which have been previously
redeemed or converted into shares of our Class A Common
Stock.


 


Holders
of our Class A Common Stock are entitled to one vote for each share
held of record on all matters submitted to a vote of stockholders,
including the election of directors, and are entitled to receive
dividends when and as declared by our Board out of funds legally
available therefore for distribution to stockholders and to share
ratably in the assets legally available for distribution to
stockholders in the event of the liquidation or dissolution,
whether voluntary or involuntary, of LightPath. We have not paid
any dividends and do not anticipate paying any dividends on our
Class A Common Stock in the foreseeable future. It is our present
policy to retain earnings, if any, for use in the development of
our business. Our Class A Common Stockholders do not have
cumulative voting rights in the election of directors and have no
preemptive, subscription, or conversion rights. Our Class A Common
Stock is not subject to redemption by us.


 


As of
September 7, 2021, we have reserved for issuance 1,761,885 shares
of our Class A Common Stock underlying outstanding restricted stock
units, 432,927 shares of our Class A Common Stock for issuance upon
the exercise of outstanding stock options, 829,786 shares of our
Class A Common Stock for issuance under the 2018 Stock and
Incentive Compensation Plan, and 298,455 shares of our Class A
Common Stock for issuance under our 2014 Employee Stock Purchase
Plan.


 






 








 





 





The
transfer agent and registrar for our Class A Common Stock is
Computershare Trust Company, N.A.


 



Preferred Stock


 


Of the
5,000,000 shares of Preferred Stock authorized, our Board has
previously designated:


 




●

250 shares of
Preferred Stock as Series A Preferred Stock, all previously
outstanding shares of which have been previously redeemed or
converted into shares of our Class A Common Stock and may not be
reissued;








●

300 shares of
Preferred Stock as Series B Preferred Stock, all previously
outstanding shares of which have been previously redeemed or
converted into shares of our Class A Common Stock and may not be
reissued;








●

500 shares of
Preferred Stock as Series C Preferred Stock, all previously
outstanding shares of which have been previously redeemed or
converted into shares of our Class A Common Stock and may not be
reissued;








●

500,000 shares of
Preferred Stock as Series D Preferred Stock, none of which have
been issued; however, in 1998, our Board declared a dividend
distribution as a right to purchase one share of Series D Preferred
Stock for each outstanding share of Class A Common Stock upon
occurrence of certain events. The rights expired on February 28,
2021; and








●

500 shares of our
Preferred Stock as Series F Preferred Stock, all previously
outstanding shares of which have been previously redeemed or
converted into shares of our Class A Common Stock and may not be
reissued.






 


Of the
5,000,000 shares of Preferred Stock, 4,498,450 shares of our
Preferred Stock remain available for designation by our Board.
Accordingly, our Board is empowered, without stockholder approval,
to issue Preferred Stock with dividend, liquidation, conversion,
voting or other rights that could adversely affect the voting power
or other rights of the holders of Common Stock. The issuance of
Preferred Stock could have the effect of restricting dividends on
the Class A Common Stock, diluting the voting power of the Class A
Common Stock, impairing the liquidation rights of the Class A
Common Stock, or delaying or preventing a change in control of us,
all without further action by our stockholders.








 






 








 





 






Options


 


As of
September 8, 2021, we had 432,927 shares of our Class A Common
Stock underlying stock options outstanding, having a
weighted-average exercise price of approximately $2.01 per
share.


 



Certain Provisions of our Certificate of Incorporation, our Bylaws,
and the DGCL


 


Certain
provisions in our Certificate of Incorporation and Bylaws, as well
as certain provisions of the DGCL, may be deemed to have an
anti-takeover effect and may delay, deter, or prevent a tender
offer or takeover attempt that a stockholder might consider to be
in its best interests, including attempts that might result in a
premium being paid over the market price of the shares held by
stockholders. These provisions contained in our Certificate of
Incorporation and Bylaws include the items described
below.




●

Classified Board. Our Certificate of
Incorporation provides that our Board is to be divided into three
classes, as nearly equal in number as possible, with directors in
each class serving three-year terms. Provisions of this type may
serve to delay or prevent an acquisition of us or a change in our
directors and officers.








●

No Written Consents. Our Certificate of
Incorporation and Bylaws provide that all stockholder actions must
be effected at a duly called meeting of stockholders and not by
written consent.








●

Special Meetings of Stockholders. Our
Bylaws provide that special meetings of our stockholders may be
called only by the Chairman of the Board, President, or a majority
of our Board.








●

Stockholder Advance Notice Procedures.
Our Bylaws provide that stockholders seeking to present proposals
before a meeting of stockholders or to nominate candidates for
election as directors at a meeting of stockholders must provide
timely notice in writing and also specify requirements as to the
form and content of a stockholder’s notice. These provisions
may delay or preclude stockholders from bringing matters before a
meeting of our stockholders or from making nominations for
directors at a meeting of stockholders, which could delay or deter
takeover attempts or changes in our management.








●

No Cumulative Voting. Our Certificate
of Incorporation does not include a provision for cumulative voting
for directors. Under cumulative voting, a minority stockholder
holding a sufficient percentage of a class of shares could be able
to ensure the election of one or more directors.








●

Exclusive Forum. Our Bylaws provide
that unless we consent in writing to the selection of an
alternative forum, the courts in the State of Delaware are, to the
fullest extent permitted by applicable law, the sole and exclusive
forum for any claims, including claims in the right of the Company,
brought by a stockholder (i) that are based upon a violation of a
duty by a current or former director or officer or stockholder in
such capacity or (ii) as to which the DGCL confers jurisdiction
upon the Court of Chancery of the State of Delaware.








●

Undesignated Preferred Stock. Because
our Board has the power to establish the preferences and rights of
the shares of any additional series of Preferred Stock, it may
afford holders of any Preferred Stock preferences, powers, and
rights, including voting and dividend rights, senior to the rights
of holders of our Class A Common Stock, which could adversely
affect the holders of our Class A Common Stock and could discourage
a takeover of us even if a change of control of LightPath would be
beneficial to the interests of our stockholders.






 


These
and other provisions contained in our Certificate of Incorporation
and Bylaws are expected to discourage coercive takeover practices
and inadequate takeover bids. These provisions are also designed to
encourage persons seeking to acquire control of us to first
negotiate with our Board. However, these provisions could delay or
discourage transactions involving an actual or potential change in
control of us, including transactions in which stockholders might
otherwise receive a premium for their shares over then current
prices. Such provisions could also limit the ability of
stockholders to remove current management or approve transactions
that stockholders may deem to be in their best
interests.


 






 








 





 





In
addition, we are subject to the provisions of Section 203 of the
DGCL. Section 203 of the DGCL prohibits a publicly-held Delaware
corporation from engaging in a “business combination”
with an “interested stockholder” for a period of three
years after the person became an interested stockholder,
unless:




●

The board of
directors of the corporation approved the business combination or
other transaction in which the person became an interested
stockholder prior to the date of the business combination or other
transaction;








●

Upon consummation
of the transaction that resulted in the person becoming an
interested stockholder, the person owned at least 85% of the voting
stock of the corporation outstanding at the time the transaction
commenced, excluding for purposes of determining the number of
shares outstanding, shares owned by persons who are directors and
also officers of the corporation and shares issued under which
employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or








●

on or subsequent to
the date the person became an interested stockholder, the board of
directors of the corporation approved the business combination and
the stockholders of the corporation authorized the business
combination at an annual or special meeting of stockholders by the
affirmative vote of at least 66-2/3% of the outstanding voting
stock of the corporation that is not owned by the interested
stockholder.






 


A
“business combination” includes mergers, asset sales,
and other transactions resulting in a financial benefit to the
interested stockholder. Subject to certain exceptions, an
“interested stockholder” is a person who, together with
affiliates and associates, owns, or within the prior three years
did own, 15% or more of a corporation’s voting
stock.


 


Section
203 of the DGCL could depress our stock price and delay,
discourage, or prohibit transactions not approved in advance by our
Board, such as takeover attempts that might otherwise involve the
payment to our stockholders of a premium over the market price of
our Class A Common Stock.