As
filed with the Securities and Exchange Commission September 25,
2009
|
Registration
Statement No.
333-159334
|
Delaware
|
33-
143215
|
3795
|
(State
or other jurisdiction of
|
(I.R.S.
Identification Number)
|
(Primary
Standard Industrial
|
incorporation
or organization)
|
Classification
Code Number)
|
Large
accelerated filer o
|
Accelerated
filer o
|
Non-accelerated
filer o (Do not check if
a smaller reporting company)
|
Smaller
reporting company
x
|
Title of Each Class of Securities to be Registered
|
Amount to be
Registered
|
Proposed
Maximum
Offering Price
per Unit(1)
|
Proposed
Maximum
Aggregate
Offering Price
|
Amount of
Registration Fee
|
||||||||||||
Common
Stock, par value $0.001 per share
|
11,784,177
|
$
|
$0.375
|
$
|
6,098,750
|
$
|
$1447.44
|
(1)
|
Estimated
for the purpose of determining the registration fee pursuant to Rule
457(c), based on the average of the bid and asked price as of May 11,
2009.
|
PROSPECTUS
SUMMARY
|
2
|
|
RISK
FACTORS
|
3
|
|
USE
OF PROCEEDS
|
10
|
|
MARKET
FOR REGISTRANT’S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
|
10
|
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
|
11
|
|
BUSINESS
|
23
|
|
LEGAL
PROCEEDINGS
|
33
|
|
MANAGEMENT
|
34
|
|
EXECUTIVE
COMPENSATION
|
38
|
|
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
|
40
|
|
CERTAIN
RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
|
41
|
|
THE
SELLING STOCKHOLDERS AND PLAN OF DISTRIBUTION
|
43
|
|
DESCRIPTION
OF SECURITIES
|
46
|
|
LEGAL
MATTERS
|
48
|
|
EXPERTS
|
49
|
|
WHERE
YOU CAN FIND MORE INFORMATION
|
49
|
|
OPTEX
SYTEMS HOLDINGS, INC. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS AS
OF JUNE 28, 2009 AND JUNE 29, 2008
|
F-1
|
|
OPTEX
SYTEMS INC. AND INDEX TO FINANCIAL STATEMENTS AS OF SEPTEMBER 28, 2008 AND
SEPTEMBER 30, 2007
|
F-23
|
|
REPORT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
|
F-24
|
|
OTHER
EXPENSES
|
50
|
|
INDEMNIFICATION
OF OFFICERS AND DIRECTORS
|
50
|
|
RECENT
SALES OF UNREGISTERED SECURITIES
|
50
|
|
EXHIBITS
|
51
|
|
UNDERTAKINGS
|
52
|
|
SIGNATURES
|
54
|
Common
stock offered by the selling stockholders:
|
11,784,177 shares of common
stock, par value $0.001 per share.
|
|
Offering
prices:
|
The
shares offered by this prospectus may be offered and sold at prevailing
market prices or such other prices as the selling stockholders may
determine.
|
|
Common
stock outstanding:
|
141,464,940 shares
as of August 31, 2009.
|
|
Dividend
policy:
|
Dividends
on our common stock may be declared and paid when and as determined by our
board of directors. We have not paid and do not expect to pay dividends on
our common stock.
|
|
OTCBB
symbol:
|
OPXS.OB
|
|
Use
of proceeds:
|
We
are not selling any of the shares of common stock being offered by this
prospectus and will receive no proceeds from the sale of the shares by the
selling stockholders. All of the proceeds from the sale of common stock
offered by this prospectus will go to the selling stockholders at the time
they sell their shares.
|
|
·
|
our
ability to fulfill backlog;
|
|
·
|
our
ability to procure additional production
contracts;
|
|
·
|
our
ability to control costs;
|
|
·
|
the
timing of payments and reimbursements from government and other contracts,
including but not limited to changes in federal government military
spending and the federal government procurement
process;
|
|
·
|
increased
sales and marketing expenses;
|
|
·
|
technological
advancements and competitors’ response to our
products;
|
|
·
|
capital
improvements to new and existing
facilities;
|
|
·
|
our
relationships with customers and suppliers;
and
|
|
·
|
general
economic conditions including the effects of future economic slowdowns,
acts of war or terrorism and the current international
conflicts.
|
|
·
|
confirming or
defeating the election of
directors;
|
|
·
|
amending or preventing amendment
of the Company’s certificate of incorporation or
bylaws;
|
|
·
|
effecting or preventing a
Reorganization, sale of assets or other corporate transaction; and
controlling the outcome of any other matter submitted to the stockholders
for vote.
|
|
·
|
additions or departures of key
personnel;
|
|
·
|
limited “public float” following
the Reorganization, in the hands of a small number of persons whose sales
or lack of sales could result in positive or negative pricing pressure on
the market price for the common
stock;
|
·
|
operating results that fall below
expectations;
|
·
|
economic and other external
factors, including but not limited to changes in federal government
military spending and the federal government procurement process;
and
|
·
|
period-to-period fluctuations in
the Company’s financial
results.
|
Period
|
High
|
Low
|
||||||
Commencement
of Trading through Fourth Quarter 2007
|
$
|
0.03
|
$
|
0.03
|
||||
First
Quarter 2008
|
$
|
0.03
|
$
|
0.03
|
||||
Second
Quarter 2008
|
$
|
0.03
|
$
|
0.04
|
||||
Third
Quarter 2008
|
$
|
0.04
|
$
|
0.04
|
||||
Fourth
Quarter 2008
|
$
|
0.04
|
$
|
0.04
|
||||
First
Quarter 2009
|
$
|
0.04
|
$
|
0.04
|
||||
Second
Quarter 2009
|
$
|
0.50
|
$
|
0.14
|
Description
|
Offering
|
|||
Additional
Personnel
|
$
|
150,000
|
||
Legal
and Accounting Fees
|
$
|
100,000
|
||
Investor
Relations Fees
|
96,000
|
|||
Working
Capital
|
$
|
528,529
|
||
Totals:
|
$
|
874,529
|
Millions
|
||||
Revenue
|
$ | 0.9 | ||
Cost
of Sales
|
0.7 | |||
Gross
Margin
|
0.2 | |||
General
& Administrative
|
0.1 | |||
Operating
Income
|
$ | 0.1 | ||
$ | 0.1 |
September
29, 2008 through June 28, 2009
|
Predecessor
- Fiscal Year 2008
|
|||||||||||||||||||||||||||||||||||
Predecessor
- Qtr 1
(Sept
29, 2008
through
Oct 14,
2008)
|
Successor-
Qtr 1
(Oct
15, 2008
through
Dec 27,
2008)
|
Qtr
2
|
Qtr
3
|
9
months ended June
28,
2009
|
Qtr
1
|
Qtr
2
|
Qtr
3
|
9 months ended June
29,
2008&
amp;
lt; /font>
|
||||||||||||||||||||||||||||
Net
Loss After Taxes - GAAP
|
$ | (0.1 | ) | $ | 0.1 | $ | (0.3 | ) | $ | (0.3 | ) | $ | (0.6 | ) | $ | (0.7 | ) | $ | (0.7 | ) | $ | (0.2 | ) | $ | (1.6 | ) | ||||||||||
Add:
|
||||||||||||||||||||||||||||||||||||
Interest
Expense
|
$ | 0.1 | $ | 0.1 | $ | - | $ | 0.2 | $ | 0.1 | $ | 0.1 | $ | - | $ | 0.2 | ||||||||||||||||||||
Federal
Income Taxes
|
0.2 | 0.1 | 0.1 | 0.4 | - | - | - | - | ||||||||||||||||||||||||||||
Depreciation
& Amortization
|
0.6 | 0.5 | 0.5 | 1.6 | 0.3 | 0.2 | 0.1 | 0.6 | ||||||||||||||||||||||||||||
EBITDA
- Non GAAP
|
$ | (0.1 | ) | $ | 1.0 | $ | 0.4 | $ | 0.3 | $ | 1.6 | $ | (0.3 | ) | $ | (0.4 | ) | $ | (0.1 | ) | $ | (0.8 | ) |
Year
|
Backlog
|
|||
2009
|
$
|
6.5
|
||
2010
|
17.8
|
|||
2011
|
4.8
|
|||
2012
|
2.5
|
|||
2013
|
0.1
|
|||
Total
|
$
|
31.7
|
3
mos ended
6/28/2009
(Successor)
|
3
mos ended
6/29/2008
(Predecessor)
|
Change
|
||||||||||
Revenue
|
$
|
7.0
|
$
|
3.9
|
$
|
3.1
|
||||||
Percent
increase
|
79.5
|
%
|
|
·
|
Elimination of corporate cost
allocations from IRSN of $0.5 million and the IRSN Employee Stock Bonus
Plan (ESBP) of $0.1 million as a result of the ownership
change.
|
|
·
|
Increased costs of $0.2
million in legal, accounting fees, board of directors fees, and investor
relations.
|
|
·
|
Lower Salaries and Wages and
employee related costs of $0.1 million primarily due to the
reclassification of 10 purchasing and planning employees from general and
administrative to manufacturing overhead in cost of sales. The
annualized impact of the personnel move is expected to be a reduction in
general and administrative expenses of approximately $0.5 million with an
offsetting increase to cost of goods
sold.
|
|
·
|
Increased Amortization of
Intangible Assets of $0.05 million as a result of the ownership change
on October 14,
2008.
|
Predecessor
|
Successor
|
Combined
|
Predecessor
|
|||||||||||||||||
September
29,
2008
through
October
14, 2008
|
October
15,
2008
through
June
28, 2009
|
9
mos. ended
June 28,
2008
|
9
mos. ended
June
29, 2009
|
Change
|
||||||||||||||||
Revenue
|
$ | 0.9 | $ | 20.1 | $ | 21.0 | $ | 13.9 | $ | 7.1 | ||||||||||
Percent
increase
|
51.1 | % |
|
·
|
Elimination of corporate cost
allocations from IRSN of $1.5 million and the IRSN Employee Stock Bonus
Plan (ESBP) of $0.3 million as a result of the ownership
change.
|
|
·
|
Increased costs of $0.4 million
in legal, accounting fees, board of director fees, and investor
relations
|
|
·
|
Lower Salaries and Wages and
employee related costs of $0.3 million primarily due to the
reclassification of 10 purchasing and planning employees from general and
administrative to manufacturing overhead in cost of sales. The
annualized impact of the personnel move is expected to be a reduction in
general and administrative expenses of approximately $0.5 million with an
offsetting increase to costs of goods sold. This decrease was
partially offset by the expense associated with the implementation of a
Management Incentive Bonus plan in 2009 of ($0.1) million for a net change
of $0.2 million to general and administrative salaries, wages and related
employee expenses.
|
|
·
|
Increased Amortization of
Intangible Assets of $0.1 million as a result of the ownership change as
of October 14, 2008.
|
Year ended
9/28/2008
|
Year ended
9/30/2007
|
Change
|
||||||||||
Revenue
|
$ | 20.0 | $ | 15.4 | $ | 4.6 | ||||||
Percent
increase
|
29.9 | % |
|
·
|
Decrease in
legal and accounting fees of $0.2 million as a result of reduced
auditing expenses related to 2008 annual physical inventory and higher
legal expenses in 2007 related to securing a $2 million note from Tim
Looney.
|
|
·
|
Salaries and wages and
employee related costs changed by $0.0 in the year ended 2008 versus the
year ended 2007. Salaries increased 4%, or $0.03 million in the year ended
September 28, 2008 as compared to the year ended September 30, 2007.
This increase was primarily due to personnel changes combined with annual
salary and wage increases of approximately 3%. Employee
benefits declined by 15% or $(0.03) million in the year ended September
28, 2008 due to personnel changes at the end of 2007 whereas two key
executive employees received all accrued vacation as of their departure at
the end September, 2007.
|
|
·
|
Consulting and contract
service fees increased by $0.1 million in 2008 over 2007 due to services
used in support of attaining ISO 9000 certification in 2008, in addition
to executive services charged to Optex Texas by IRSN for organizational
oversight until replacements were secured for executives leaving Optex as
of September 30, 2007.
|
|
·
|
The
units-of-delivery method recognizes as revenue the
contract price of units of a basic production product delivered during a
period and as the cost of earned revenue the costs allocable to the
delivered units; costs allocable to undelivered units are reported in the
balance sheet as inventory or work in progress. The method is used in
circumstances in which an entity produces units of a basic product under
production-type contracts in a continuous or sequential production process
to buyers' specifications.
|
Contract
Quantities
|
||||||||||||
Customer
|
Customer
PO/Contract
|
Contract
Type
|
Min
Qty
|
Max
Qty
|
Total
Award Value*
|
Progress
Billable Y/N (1)
|
Order
Period Expiration
|
Delivery
Period
|
||||
General
Dynamics Land Systems
|
PCL860000
thru PCL860005 (Multiple Prime Contracts)
|
1
year blanket order with Fixed Qty Contract releases which include ability
to increase or decrease Qty on each release up to 20% from PO release
quantity.
|
N/A
|
N/A
|
$ |
14,813,100
|
Yes
|
Expired
|
Dec
2007 - Jan 2011
|
|||
TACOM
- ROCK ISLAND
|
W52H09-05-D-0260
|
5
Year Firm Fixed Price IDIQ
|
138
|
2,100
|
$ |
7,244,396
|
Yes
|
30-Jun-2010
|
Oct
2007-Jan 2011
|
|||
TACOM
- ROCK ISLAND
|
W52H09-05-D-0248
|
5
Year Firm Fixed Price IDIQ
|
138
|
1,250
|
$ |
5,006,119
|
Yes
|
30-Jun-2010
|
Apr
2007- Jul 2010
|
|||
TACOM
- ROCK ISLAND
|
W52H09-09-D-0128
|
3
Yr IDIQ - Evaluated Pricing. Restricted Procurement between
Optex Systems & Miller Holzwarth
|
250
each supplier
|
250
each supplier
|
$ |
118,250
|
(2) |
Yes
|
40908
|
Initial
award deliverable Aug - Sept 2009. Additional awards not to
exceed aggregate 2000 units per month total
units.
|
·
|
Electronic
sighting systems
|
·
|
Mechanical
sighting systems
|
·
|
Laser
protected glass periscopes
|
·
|
Laser
protected plastic periscopes
|
·
|
Non-laser
protected plastic periscopes
|
·
|
Howitzer
sighting systems
|
·
|
Ship
binoculars
|
·
|
Replacement
optics (e.g. filters, mirrors)
|
$ | 250,000 | |||
Legal
Fees
|
60,000 | |||
Consulting
Fees
|
60,000 | |||
70,000 | ||||
Total
|
$ | 440,000 |
·
|
Reliability
– failure can cost lives
|
·
|
Cost
effectiveness
|
·
|
Ability
to deliver on schedule
|
·
|
Armed
forces need to be able to see to
perform
|
·
|
Mission
critical products.
|
·
|
Big
Eye Binoculars – While the military application we produce is based on
mature military designs, the Company owns all castings, tooling and glass
technology. These large fixed mount binoculars could be sold to
Cruise Ships, Personal Yachts and
Cities/Municipalities.
|
·
|
Night
Vision Goggles – the Company presently manufactures the Optical System for
the NL-61 Night Vision Goggles for the Ministry of Defense of Israel. This
technology is based on the IR Squared design and could be implemented for
commercial applications.
|
·
|
Infrared
Imaging Equipment – The Company manufactures and assembles Infrared
Imaging Equipment for Textron and components for Raytheon’s Thermal
Imaging M36 Mount product. This equipment and technology has potential to
be assembled for border patrol, police and security
agencies.
|
|
1)
|
Take
existing products into the applications of new
customers.
|
|
2)
|
Take
new products into our existing
customers.
|
|
3)
|
Expand
the portfolio by developing new products for new
customers.
|
|
-
|
Successful
Completion of ISO9001:2000
Certification
|
|
-
|
Weekly
Cycle Counts on Inventory Items
|
|
-
|
Weekly
Material Review Board Meeting on non-moving piece
parts
|
|
-
|
Kanban
kitting on products with consistent ship weekly ship
quantities
|
|
-
|
Daily
review of Yields and Product
Velocity
|
|
-
|
Bill
of Material Reviews prior to Work Order
Release
|
Name
|
Age
|
Position
|
||
Stanley
A. Hirschman
|
62
|
President,
Secretary, Treasurer & Director
|
||
Merrick
D. Okamoto
|
48
|
Director
|
||
Ronald
F. Richards
|
43
|
Chairman
of the Board
|
||
Danny
Schoening
|
44
|
Chief
Operating Officer
|
||
Karen
L. Hawkins
|
|
44
|
|
Vice
President of Finance and
Controller
|
Name and Principal Position
|
Year
|
Salary
($)
|
Bonus
($)
|
Stock
Awards ($)
(2)
|
All Other
Compensation
($)
|
Total
($)
|
||||||||||||||||||
Danny
Schoening
|
2008
|
(1)*
|
$
|
122,646
|
$
|
10,300
|
$
|
7,500
|
—
|
$
|
140,446
|
|||||||||||||
Chief
Operating Officer
|
2007
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
||||||||||||||||||
Karen
Hawkins
|
2008
|
132,473
|
300
|
-0-
|
-0-
|
132,773
|
||||||||||||||||||
VP
Finance/Controller
|
2007
|
(1)*
|
56,900
|
300
|
-0-
|
-0-
|
57,200
|
|||||||||||||||||
Stan
Hirschman
|
2008
|
-
|
-
|
-
|
-
|
-
|
||||||||||||||||||
CEO
of Optex Delaware
|
2007
|
NA
|
||||||||||||||||||||||
Andrey
Oks (3)
|
2008
|
-
|
-
|
-
|
-
|
-
|
||||||||||||||||||
CEO,
CFO, Treasurer, Secretary and Director
|
2007
|
NA
|
||||||||||||||||||||||
Terry
Hughes (4)
|
2008
|
-
|
-
|
-
|
-
|
-
|
||||||||||||||||||
CEO
|
2007
|
-
|
-
|
-
|
-
|
-
|
1.
|
The
compensation depicted is not reflective of a full year’s compensation as
Danny Schoening did not begin employment until the second quarter of
fiscal year 2008 and Karen Hawkins did not begin employment until the
third quarter of fiscal year 2007. For Mr. Schoening and Ms.
Hawkins, information is for service as an officer of Optex Texas and Optex
Delaware.
|
2.
|
Stock
awards include issues of 10,000 common shares of Irvine Sensors
Common Stock on January 16, 2008 at the then current market share
price of $0.75 per share.
|
3.
|
Mr.
Oks was appointed as an officer of Sustut as of September 15, 2008 and
resigned as of March 29, 2009. Mr. Oks was given 10,000,000
shares of restricted stock as compensation for services which was
forfeited to Sustut on the date of his
resignation.
|
4.
|
Mr.
Hughes served as an officer of Sustut and resigned on September 12, 2008
and forfeited the 9,902,624 shares of Common Stock in the Company he owned
at that time. He received no other compensation during 2007 or
2008.
|
Percentage of
|
||||||||||||||||||
Name of Beneficial
|
Number of
|
Preferred
|
Combined
|
Outstanding
|
||||||||||||||
Title of Class
|
Owner
|
Shares
|
Conversion
(4)
|
Ownership
|
Shares
|
|||||||||||||
Common Stock :
|
|
|||||||||||||||||
5%
Holders
|
Arland
Holdings, Ltd (1)
|
11,148,935 |
|
11,148,935 | 5.81 | % | ||||||||||||
Sileas
(2,3)
|
102,184,347 | 37,040,000 | 139,224,347 | 72.54 | % | |||||||||||||
Directors
and Officers:
|
- | - | - | |||||||||||||||
Merrick
Okamoto
|
- | - | - | - | ||||||||||||||
Ronald
Richards
|
- | - | - | - | ||||||||||||||
Stanley
Hirschman (2)
|
58.03 | % | ||||||||||||||||
Danny
Schoening
|
- | - | - | 10.88 | % | |||||||||||||
Karen
Hawkins
|
- | - | - | 3.63 | % | |||||||||||||
Directors
and officers as a group (3 Individuals) (1)
|
- | - | - | 72.54 | % |
1
|
Represents
shares held by Arland Holdings, Ltd., which is located at 551 5th
Avenue, Suite 1601, New York, NY 10176. Arie Rabinowitz has
voting control over the shares held by Arland Holdings,
Ltd.
|
2
|
Represents
shares held by Sileas of which Stanley Hirschman a Director/Officer of the
Company has a controlling interest (80%); therefore, under Rule 13d-3 of
the Exchange Act, Mr. Hirschman is deemed to be the beneficial owner of
those shares.
|
3
|
Sileas’
ownership interest in the Company has been pledged to Longview as security
for a loan in connection with the acquisition of Longview’s interests in
Optex Delaware by Sileas. Investment decisions for Longview are
made by its investment advisor, Viking Asset Management,
LLC. Mr. Peter Benz is the Chairman, Chief Executive Officer
and a Managing Member of Viking Asset Management and may be deemed to
control its business activities, including the investment activities of
Longview. Mr. Merrick Okamoto who is a director of the Company
is the President and a Managing Member of Viking Asset Management and may
be deemed to control its business activities, including the investment
activities of Longview. In the event of a default by Sileas on
its debt obligation to Longview, the shares held by Sileas may be returned
to Longview. Viking and Longview each may be deemed to have
shared voting and dispositive authority over the shares of the Company’s
common stock if they are returned to Longview. Mr. Benz and Mr.
Okamoto, as control persons of Viking and/or Longview, may be deemed to
beneficially own all such shares; however, they disclaim such beneficial
ownership.
|
4
|
Represents
shares of common stock issuable upon conversion of preferred stock held by
the stockholder.
|
Existing
Sustut Shareholders
|
19,999,991
|
|||
Shares
issued for Investor Relations Services
|
1,250,000
|
|||
Optex
Delaware shares exchanged
|
113,333,282
|
|||
Optex
Delaware Private Placement shares exchanged
|
8,131,667
|
|||
Total
Shares after Reorganization
|
141,464,940
|
Name
of Selling Stockholder (18)
|
Amount
beneficially
owned
by
Selling
Stockholder
|
Amount
to be
offered
to Selling
Stockholder's
Account
|
Amount
to be
beneficially
owned
following
completion
of
offering
|
Percent
to be
beneficially
owned
following
completion
of the
offering
|
|||||||||||||
(1)
|
Albert
& Diane Gragnani
|
1,200,000 | 869,504 | 330,496 | 0.17 | % | |||||||||||
(2)
|
Curio
Holdings
|
600,000 | 434,751 | 165,249 | 0.09 | % | |||||||||||
(3)
|
Daniel
McDonald
|
300,000 | 217,377 | 82,623 | 0.04 | % | |||||||||||
(4)
|
Eric
Samuelson
|
1,500,000 | 1,086,878 | 413,122 | 0.22 | % | |||||||||||
(5)
|
George
Gummow
|
600,000 | 434,751 | 165,249 | 0.09 | % | |||||||||||
(6)
|
Gerald
Berkson
|
453,334 | 328,479 | 124,855 | 0.07 | % | |||||||||||
(7)
|
Gerald
Holland
|
600,000 | 434,751 | 165,249 | 0.09 | % | |||||||||||
(8)
|
Kenneth
and Irene Chaffin
|
300,000 | 217,376 | 82,624 | 0.04 | % | |||||||||||
(9)
|
Lee
Stambollis
|
360,000 | 260,851 | 99,149 | 0.05 | % | |||||||||||
(10)
|
Longview
Fund, LP
|
1,950,000 | 1,412,942 | 537,058 | 0.28 | % | |||||||||||
(11)
|
Michael
Peter Lee
|
600,000 | 434,751 | 165,249 | 0.09 | % | |||||||||||
(12)
|
Robert
E. Kraemer
|
600,000 | 434,751 | 165,249 | 0.09 | % | |||||||||||
(13)
|
Somasundaram
Ilangovan
|
600,000 | 434,751 | 165,249 | 0.09 | % | |||||||||||
(14)
|
Victor
M. Dandridge III
|
1,800,000 | 1,304,254 | 495,746 | 0.26 | % | |||||||||||
(15)
|
George
Warburton
|
3,600,000 | 2,608,508 | 991,492 | 0.52 | % | |||||||||||
(16)
|
Dr.
Marc Medway
|
600,000 | 434,751 | 165,249 | 0.09 | % | |||||||||||
(17)
|
Micheal
R. Ruffer
|
600,000 | 434,751 | 165,249 | 0.09 | % | |||||||||||
16,263,334 | 11,784,177 | 4,479,157 | 2.33 | % |
(1)
|
Consists
of 600,000 common shares outstanding and 600,000 warrants exercisable
within 60 days of May 19, 2009. The address for Albert & Diane
Gragnani is 478
Country Club Dr. San Francisco, CA 94132.
|
|
(2)
|
300,000
common shares outstanding and 300,000 warrants exercisable within 60 days
of May 19, 2009 The address for Curio Holding, Inc. is 1630 York Avenue,
New York, NY 10028, of which the sole stockholder is Inge L. Kerster, with
the same address, who exercises voting and investment control with respect
to shares of common stock held by that selling
stockholder.
|
|
(3)
|
Consists
of 150,000 common shares outstanding and 150,000 warrants exercisable
within 60 days of May 19, 2009. The address for Daniel McDonald is 2615
Silverton Rd. Salem, OR 97303.
|
|
(4)
|
Consists
of 750,000 common shares outstanding and 750,000 warrants exercisable
within 60 days of May 19, 2009. The address for Eric Samuelson is Rear 320
South Clairmont Springfield, OH 45505.
|
|
(5)
|
Consists
of 300,000 common shares outstanding and 300,000 warrants exercisable
within 60 days of May 19, 2009. The address for George Gummow is 14821
Bartlett Ct. San Martin, CA 95046.
|
|
(6)
|
Consists
of 226,667 common shares outstanding and 226,667 warrants exercisable
within 60 days of May 19, 2009. The address for Gerald Berkson is 2222
Springfield Way San Mateo, CA 94403.
|
|
(7)
|
Consists
of 300,000 common shares outstanding and 300,000 warrants exercisable
within 60 days of May 19, 2009. The address for Gerald Holland is 3231 NE
59th St. Fort Lauderdale, FL 33308,
|
|
(8)
|
Consists
of 150,000 common shares outstanding and 150,000 warrants exercisable
within 60 days of May 19, 2009. The address for Kenneth and Irene Chaffin
is 915 N. Road I West Chino Valley, AZ 86323.
|
|
(9)
|
Consists
of 180,000 common shares outstanding and 180,000 warrants exercisable
within 60 days of May 19, 2009. The address for Lee Stambollis is 300 26th
Ave. San Mateo, CA 94403.
|
|
(10)
|
Consists
of 975,000 common shares outstanding and 975,000 warrants exercisable
within 60 days of May 19, 2009. The address of Longview Fund, L.P. is c/o
Viking Asset Management, 505 Sansome Street, Suite 1275, San Francisco, CA
94111. Peter T. Benz exercises voting and investment control with respect
to the shares of common stock held by this selling stockholder. Please see
Secured Promissory Note
Due February 20, 2012/Longview Fund, LP on p. __ for a description
of the previously existing relationship between the Company and
Longview.
|
|
(11)
|
Consists
of 300,000 common shares outstanding and 300,000 warrants exercisable
within 60 days of May 19, 2009. The address for Michael Peter Lee is
Redwood House, Lodge Gardens, Great Carlton, Louth Lincolnshire LN11.8JY
U. K.
|
|
(12)
|
Consists
of 300,000 common shares outstanding and 300,000 warrants exercisable
within 60 days of May 19, 2009. The address for Robert E. Kraemer is N6816
St RD 79 Menomonie, WI 54751.
|
|
(13)
|
Consists
of 300,000 common shares outstanding and 300,000 warrants exercisable
within 60 days of May 19, 2009. The address for Somasundaram Ilangovan is
229 Sydney Road Holland, PA 18966.
|
|
(14)
|
Consists
of 900,000 common shares outstanding and 900,000 warrants exercisable
within 60 days of May 19, 2009. The address for Victor M. Dandridge III is
695 Berkmar Court Charlottesville, VA 22901.
|
|
(15)
|
Consists
of 1,800,000 common shares outstanding and 1,800,000 warrants exercisable
within 60 days of May 19, 2009. The address for George Warburton is 19 The
Citadel Fort George St. Peter Port Guernsey GY125X.
|
|
(16)
|
Consists
of 300,000 common shares outstanding and 300,000 warrants exercisable
within 60 days of May 19, 2009. The address for Dr. Marc Medway is 506
Hobby Horse Hills Ambler, PA
19002.
|
(17)
|
Consists
of 300,000 common shares outstanding and 300,000 warrants exercisable
within 60 days of May 19, 2009. The address for Michael R.
Ruffer is 11809 Lyrac Ct Oakton,
VA 22124.
|
|
(18)
|
All
of the securities listed in this table were purchased as of March 30, 2009
when the Company accepted subscriptions from accredited investors for a
total 27.1 units for $45,000.00 per Unit, with each unit consisting of
Three Hundred Thousand (300,000) shares of common stock, no par value of
the Company and warrants to purchase Three Hundred Thousand (300,000)
shares of common stock at an exercise price of $0.45 per share for a
period of five (5) years from the date of
closing.
|
·
|
to
purchasers directly;
|
·
|
in
ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
|
·
|
through
underwriters or dealers who may receive compensation in the form of
underwriting discounts, concessions or commissions from such stockholders
or from the purchasers of the securities for whom they may act as
agent;
|
·
|
by
the pledge of the shares as security for any loan or obligation, including
pledges to brokers or dealers who may effect distribution of the shares or
interests in such securities;
|
·
|
to
purchasers by a broker or dealer as principal and resale by such broker or
dealer for its own account pursuant to this
prospectus;
|
·
|
in
a block trade in which the broker or dealer so engaged will attempt to
sell the securities as agent but may position and resell a portion of the
block as principal to facilitate a
transaction;
|
·
|
through
an exchange distribution in accordance with the rules of the exchange or
in transactions in the over-the-counter
market;
|
·
|
pursuant
to Rule 144; or
|
·
|
in
any other manner not proscribed by
law.
|
Authorized
Shares:
|
1,027
|
|
Per
Share Stated Value:
|
$6,000
|
|
Liquidation
Preference:
|
Per
share Stated Value
|
|
Conversion
Price into Common Stock:
|
$0.15
per share, as adjusted on a pro rata basis for stock splits, dividends,
combinations or reclassifications and on a full ratchet basis for equity
issuances at a price less than the then in effect exercise
price.
|
|
Voting
Rights:
|
The
Series A Preferred Shares shall vote along with the common stock on an as
converted basis and shall have one vote per share.
|
|
Dividends:
|
6%
per annum payable quarterly payable quarterly in
arrears.
|
·
|
the
transaction is approved by the board of directors before the date the
interested stockholder attained that status;
|
|
·
|
upon
consummation of the transaction that resulted in the stockholder becoming
an interested stockholder, the interested stockholder owned at least 85%
of the voting stock of the corporation outstanding at the time the
transaction commenced;
or
|
·
|
on
or after the date the business combination is approved by the board of
directors and authorized at a meeting of stockholders by at least
two-thirds of the outstanding voting stock that is not owned by the
interested stockholder.
|
·
|
any
merger or consolidation involving the corporation and the interested
stockholder;
|
|
·
|
any
sale, transfer, pledge or other disposition of 10% or more of the assets
of the corporation involving the interested
stockholder;
|
|
·
|
subject
to certain exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder;
|
|
·
|
any
transaction involving the corporation that has the effect of increasing
the proportionate share of the stock of any class or series of the
corporation beneficially owned by the interested stockholder;
or
|
|
·
|
the
receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided by or
through the corporation.
|
|
·
|
the
right of the board of directors to elect a director to fill a vacancy
created by the resignation of a director or the expansion of the board of
directors;
|
|
·
|
the
requirement for advance notice for nominations of candidates for election
to the board of directors or for proposing matters that can be acted upon
at a stockholders’ meeting;
|
|
·
|
the
right of our board of directors to alter our bylaws without stockholder
approval.
|
BALANCE
SHEETS AS OF JUNE 28, 2009 (SUCCESSOR) (UNAUDITED) (RESTATED)
AND SEPTEMBER 28, 2008 (PREDECESSOR) (RESTATED) |
F-3
|
STATEMENTS
OF OPERATIONS FOR THE THREE MONTHS ENDED JUNE 28, 2009
(SUCCESSOR) AND JUNE 29, 2008 (PREDECESSOR) (UNAUDITED) FOR
THE PERIOD OCTOBER 15, 2008 THROUGH JUNE 28, 2009 (SUCCESSOR) AND
FOR THE PERIOD SEPTEMBER 29, 2008 THROUGH OCTOBER 14, 2008 (PREDECESSOR) (UNAUDITED) (RESTATED) |
F-5
|
STATEMENTS
OF CASH FLOWS FOR THE PERIOD OCTOBER 15, 2008 THROUGH
JUNE 28, 2009 (SUCCESSOR) AND FOR THE PERIOD SEPTEMBER 29, 2008 THROUGH OCTOBER 14, 2008 (PREDECESSOR) (UNAUDITED) (RESTATED) |
F-6
|
STATEMENTS
OF STOCKHOLDERS’ EQUITY FOR THE PERIOD OCTOBER 15, 2008
THROUGH JUNE 28, 2009 (SUCCESSOR) AND FOR THE PERIOD SEPTEMBER 29, 2008 THROUGH OCTOBER 14, 2008 (PREDECESSOR) (UNAUDITED) (RESTATED) |
F-8
|
FINANCIAL
STATEMENT FOOTNOTES (UNAUDITED) (RESTATED)
|
F-9
|
Restated
|
Restated
|
|||||||
Successor
|
Predecessor
|
|||||||
June 28, 2009 (Unaudited)
|
September 28, 2008
|
|||||||
ASSETS
|
||||||||
Current
Assets
|
||||||||
Cash
|
$ | 492,325 | $ | 170,183 | ||||
Accounts
Receivable
|
3,228,098 | 2,454,235 | ||||||
Net
Inventory
|
6,843,017 | 4,547,726 | ||||||
Prepaid
Expenses
|
158,797 | 307,507 | ||||||
Total
Current Assets
|
10,722,237 | 7,479,651 | ||||||
Property
and Equipment
|
||||||||
Property
Plant and Equipment
|
1,341,271 | 1,314,109 | ||||||
Accumulated
Depreciation
|
(1,073,745 | ) | (994,542 | ) | ||||
Total
Property and Equipment
|
267,526 | 319,567 | ||||||
Other
Assets
|
||||||||
Security
Deposits
|
20,684 | 20,684 | ||||||
Intangibles
|
2,483,395 | 1,100,140 | ||||||
Goodwill
|
7,110,415 | 10,047,065 | ||||||
Total
Other Assets
|
9,614,494 | 11,167,889 | ||||||
Total
Assets
|
$ | 20,604,257 | $ | 18,967,107 |
Restated
|
Restated
|
|||||||
Successor
|
Predecessor
|
|||||||
June 28, 2009
(Unaudited)
|
September 28, 2008
|
|||||||
LIABILITIES
AND STOCKHOLDERS EQUITY
|
|
|
||||||
|
|
|||||||
Current
Liabilities
|
|
|
||||||
Accounts
Payable
|
$ | 3,223,278 | $ | 1,821,534 | ||||
Accrued
Expenses
|
628,033 | 798,974 | ||||||
Accrued
Warranties
|
314,446 | 227,000 | ||||||
Accrued
Contract Losses
|
687,111 | 821,885 | ||||||
Loans
Payable
|
459 | 373,974 | ||||||
Interest
on Loans Payable
|
11,101 | |||||||
Income
Tax Payable
|
85,179 | 4,425 | ||||||
Total
Current Liabilities
|
4,949,607 | 4,047,792 | ||||||
Other
Liabilities
|
||||||||
Note
Payable
|
- | $ | 2,000,000 | |||||
Accrued
Interest on Note
|
- | 336,148 | ||||||
Due
to Parent
|
- | 4,300,151 | ||||||
Total
Other Liabilities
|
- | 6,636,299 | ||||||
Total
Liabilities
|
4,949,607 | $ | 10,684,091 | |||||
Stockholders'
Equity
|
||||||||
Optex
Systems Holdings, Inc. – (par value $0.001 per share, 200,000,000 shares
authorized, 141,464,940 shares issued and outstanding as of June 28,
2009)
|
141,465 | |||||||
Optex
Systems Holdings, Inc. Preferred Stock (par value $0.001 per
share, 5,000 shares authorized, 1,027 Series A Preferred shares
issued and outstanding as of June 28, 2009)
|
1 | |||||||
Optex
Systems, Inc. – Texas (predecessor) Common Stock (no par 100,000 shares
authorized, 18,870 shares issued and 10,000 shares outstanding as
of September 28, 2008)
|
164,834 | |||||||
Optex
Systems, Inc. – Texas (predecessor) Treasury Stock (8,870 shares at cost
as of September 28, 2008)
|
- | (1,217,400 | ) | |||||
Additional
Paid-in-capital
|
16,241,768 | 15,246,282 | ||||||
Retained
Deficit
|
(728,584 | ) | (5,910,700 | ) | ||||
Total
Stockholders' Equity
|
$ | 15,654,650 | $ | 8,283,016 | ||||
Total
Liabilities and Stockholders' Equity
|
$ | 20,604,257 | $ | 18,967,107 |
Successor
|
Predecessor
|
Successor
|
Predecessor
|
Predecessor
|
||||||||||||||||
Three Months ended
June 28, 2009
|
Three Months
ended June 29,
2008
|
For the period
October 15, 2008
through June 28,
2009
|
For the period
September 29,
2008 through
October 14, 2008
|
Nine Months
ended June 29,
2008
|
||||||||||||||||
Revenues
|
$ | 6,983,930 | $ | 3,881,053 | $ | 20,084,362 | $ | 871,938 | $ | 13,925,073 | ||||||||||
Total
Cost of Sales
|
6,417,926 | 2,851,287 | 18,135,020 | 739,868 | 11,716,785 | |||||||||||||||
Gross
Margin
|
566,004 | 1,029,766 | 1,949,342 | 132,070 | 2,208,288 | |||||||||||||||
General
and Administrative
|
||||||||||||||||||||
Salaries
and Wages
|
176,869 | 253,594 | 502,883 | 22,028 | 744,119 | |||||||||||||||
Employee
Benefits & Taxes
|
29,716 | 76,438 | 228,847 | 495 | 246,071 | |||||||||||||||
Employee
Stock Bonus Plan
|
- | 100,174 | 4,812 | (4,812 | ) | 279,034 | ||||||||||||||
Amortization
of Intangible
|
101,159 | 54,123 | 303,475 | - | 169,368 | |||||||||||||||
Rent,
Utilities and Building Maintenance
|
50,838 | 69,959 | 150,780 | 12,493 | 160,999 | |||||||||||||||
Investor
Relations
|
88,326 | - | 88,326 | - | - | |||||||||||||||
Legal
and Accounting Fees
|
128,274 | 20,166 | 296,627 | 360 | 117,695 | |||||||||||||||
Consulting
and Contract Service Fees
|
43,210 | 66,678 | 167,261 | 10,527 | 267,222 | |||||||||||||||
Travel
Expenses
|
16,294 | 28,376 | 41,317 | - | 116,338 | |||||||||||||||
Corporate
Allocations
|
- | 508,275 | - | - | 1,450,905 | |||||||||||||||
Board
of Director Fees
|
37,500 | - | 87,500 | - | - | |||||||||||||||
Other
Expenses
|
87,749 | 47,127 | 167,531 | 16,155 | 124,729 | |||||||||||||||
Total
General and Administrative
|
759,935 | 1,224,910 | 2,039,359 | 57,246 | 3,676,480 | |||||||||||||||
Operating
Income (Loss)
|
(193,931 | ) | (195,144 | ) | (90,017 | ) | 74,824 | (1,468,192 | ) | |||||||||||
Other
Expenses
|
||||||||||||||||||||
Other
(Income) and Expense
|
(351 | ) | 3 | (1,434 | ) | - | (499 | ) | ||||||||||||
Interest
(Income) Expense - Net
|
- | 46,000 | 174,710 | 9,492 | 145,503 | |||||||||||||||
Total
Other
|
(351 | ) | 46,003 | 173,276 | 9,492 | 145,004 | ||||||||||||||
Income
(Loss) Before Taxes
|
(193,580 | ) | (241,147 | ) | (263,293 | ) | 65,332 | (1,613,196 | ) | |||||||||||
Income
Taxes (Benefit)
|
114,973 | - | 465,291 | - | - | |||||||||||||||
Net
Income (Loss) After Taxes
|
$ | (308,553 | ) | $ | (241,147 | ) | $ | (728,584 | ) | $ | 65,332 | $ | (1,613,196 | ) | ||||||
Basic
and diluted loss per share (1)
|
$ | (0.00 | ) | $ | (24.11 | ) | $ | (0.01 | ) | $ | 6.53 | $ | (161.32 | ) | ||||||
Weighted
Average Common Shares Outstanding
|
141,464,940 | 10,000 | 122,744,977 | 10,000 | 10,000 |
Successor
|
Predecessor
|
Predecessor
|
||||||||||
For the period October 15,
2008 through June 28, 2009
|
For the period September 29,
2008 through October 14, 2008
|
Nine months ended
June 29, 2008 |
||||||||||
Cash
flows from operating activities:
|
||||||||||||
Net
Income (Loss)
|
$ | (728,584 | ) | $ | 65,332 | $ | (1,613,196 | ) | ||||
Adjustments
to reconcile net loss to net cash used in operating
activities:
|
||||||||||||
Depreciation
and amortization
|
1,622,907 | 9,691 | 570,566 | |||||||||
Provision
for (use of) allowance for inventory valuation
|
158,273 | 27,363 | ||||||||||
Noncash
interest expense
|
170,882 | 9,500 | 145,503 | |||||||||
Stock
option compensation expense
|
15,174 | - | ||||||||||
(Increase)
decrease in accounts receivable
|
(1,823,665 | ) | 1,049,802 | 460,783 | ||||||||
(Increase)
decrease in inventory (net of progress billed)
|
(1,617,361 | ) | (863,566 | ) | 321,273 | |||||||
(Increase)
decrease in other current assets
|
317,669 | 18,541 | (190,829 | ) | ||||||||
Increase
(decrease) in accounts payable and accrued expenses
|
1,416,854 | (186,051 | ) | (510,043 | ) | |||||||
Increase
(decrease) in accrued warranty costs
|
87,446 | - | ||||||||||
Increase
(decrease) in due to parent
|
- | 1,428 | 1,595,954 | |||||||||
Increase
(decrease) in accrued estimated loss on contracts
|
(119,470 | ) | (15,304 | ) | (1,021,761 | ) | ||||||
Increase
(decrease) in income taxes payable
|
85,179 | - | ||||||||||
Total
adjustments
|
313,888 | 51,404 | 1,371,446 | |||||||||
Net
cash (used)/provided by operating activities
|
(414,696 | ) | 116,736 | (241,750 | ) | |||||||
Cash
flows from investing activities:
|
||||||||||||
Cash
Received through Optex Texas acquisition
|
253,581 | - | - | |||||||||
Purchased
of property and equipment
|
(13,824 | ) | (13,338 | ) | (103,974 | ) | ||||||
Net
cash used in investing activities:
|
239,757 | (13,338 | ) | (103,974 | ) | |||||||
Cash
flows from financing activities:
|
||||||||||||
Private
Placement net of stock issuance cost
|
874,529 | - | ||||||||||
Proceeds
(to) from Loans Payable – Qioptic
|
(207,265 | ) | (20,000 | ) | ||||||||
Net
cash used in financing activities:
|
667,264 | (20,000 | ) | - | ||||||||
Net
increase (decrease) in cash and cash equivalents
|
492,325 | 83,398 | (345,724 | ) | ||||||||
Cash
and cash equivalents at beginning of period
|
- | 170,183 | 504,753 | |||||||||
Cash
and cash equivalents at end of period
|
$ | 492,325 | $ | 253,581 | $ | 159,029 |
Successor
|
Predecessor
|
Predecessor
|
||||||||||
For the period October 15,
2008 through June 28,
2009
|
For the period September
29, 2008 through October
14, 2008
|
Nine months
ended June 29,
2008
|
||||||||||
Noncash
investing and financing activities:
|
||||||||||||
Optex
Delaware (Successor) purchase of Optex Texas
(Predecessor)
|
||||||||||||
Cash
received
|
$ | 253,581 | - | - | ||||||||
Accounts
Receivable
|
1,404,434 | - | - | |||||||||
Inventory
|
5,383,929 | - | - | |||||||||
Intangibles
|
4,036,790 | - | - | |||||||||
Other
Assets
|
632,864 | - | - | |||||||||
Accounts
Payable
|
(1,953,833 | ) | - | - | ||||||||
Other
Liabilities
|
(1,868,180 | ) | - | - | ||||||||
Debt
|
(6,000,000 | ) | - | - | ||||||||
Goodwill
|
7,110,415 | - | - | |||||||||
Issuance
of Stock
|
$ | 9,000,000 | - | - | ||||||||
Conversion
of Debt to Series A Preferred Stock
|
||||||||||||
Additonal
Paid in Capital ($6,000,000 debt retirement plus accrued interest of
$159,780)
|
$ | 6,159,780 | - | - | ||||||||
Issuance
of Common shares in exchange for Investor Relations
Services
|
||||||||||||
Additonal
Paid in Capital (1,250,000 shares issued at $0.001
par)
|
$ | 187,500 | - | - | ||||||||
Supplemental
cash flow information:
|
||||||||||||
Cash
paid for interest
|
$ | 3,817 | - | - | ||||||||
Cash
paid for taxes
|
$ | 380,112 | - | - |
Common
|
Series A
|
Preferred
|
Additional
|
Total
|
||||||||||||||||||||||||||||
Shares
|
Preferred
|
Common
|
Series A
|
Treasury Stock
|
Paid in
|
Retained
|
Stockholders
|
|||||||||||||||||||||||||
Outstanding
|
Shares
|
Stock
|
Stock
|
Optex Texas
|
Capital
|
Earnings
|
Equity
|
|||||||||||||||||||||||||
Predecessor
Entity
|
||||||||||||||||||||||||||||||||
Balance
at September 28, 2008
|
10,000 | $ | 164,834 | $ | (1,217,400 | ) | $ | 15,246,282 | $ | (5,910,700 | ) | $ | 8,283,016 | |||||||||||||||||||
Net
Income
|
65,332 | 65,332 | ||||||||||||||||||||||||||||||
Balance
at October 14, 2008
|
10,000 | - | $ | 164,834 | $ | - | $ | (1,217,400 | ) | $ | 15,246,282 | $ | (5,845,368 | ) | $ | 8,348,348 | ||||||||||||||||
Successor
Entity
|
||||||||||||||||||||||||||||||||
Balance
at October 15, 2008
|
- | - | - | - | - | - | - | - | ||||||||||||||||||||||||
Issuance
of Common Stock (1)
|
113,333,282 | - | $ | 113,333 | $ | - | $ | - | $ | 8,886,667 | $ | - | $ | 9,000,000 | ||||||||||||||||||
Conversion
of 6,000,000 Debt and Interest to Series A Preferred
shares
|
- | 1,027 | - | 1 | - | 6,159,780 | - | 6,159,781 | ||||||||||||||||||||||||
Sustut
Exploration Reorganization (2)
|
19,999,991 | - | 20,000 | - | - | 167,500 | - | 187,500 | ||||||||||||||||||||||||
Stock
Option Compensation Expense
|
- | - | - | - | 15,174 | - | 15,174 | |||||||||||||||||||||||||
Private
Placement Sale of Stock (2)
|
8,131,667 | - | 8,132 | - | - | 1,012,647 | - | 1,020,779 | ||||||||||||||||||||||||
Net
Earnings (Loss) from continuing operations
|
- | - | - | - | - | - | (728,584 | ) | (728,584 | ) | ||||||||||||||||||||||
Balance
at June 28, 2009
|
141,464,940 | 1,027 | $ | 141,465 | $ | 1 | $ | - | $ | 16,241,768 | $ | (728,584 | ) | $ | 15,654,650 |
Successor
As of June
28, 2009
|
Predecessor
As of
September
28, 2008
|
|||||||
Raw
Materials
|
$
|
6,939,094
|
$
|
4,199,657
|
||||
Work
in Process
|
3,529,351
|
5,575,520
|
||||||
Finished
Goods
|
780,828
|
28,014
|
||||||
Gross
Inventory
|
$
|
11,249,273
|
$
|
9,803,191
|
||||
Less:
|
||||||||
Unliquidated
Progress Payments
|
(3,546,890
|
)
|
(4,581,736
|
)
|
||||
Inventory
Reserves
|
(859,366
|
)
|
(673,729
|
)
|
||||
Net
Inventory
|
$
|
6,843,017
|
$
|
4,547,726
|
Assets:
|
||||
Current
assets, consisting primarily of inventory of $5,383,929 and accounts
receivable of $1,404,434
|
$
|
7,330,910
|
||
Identifiable
intangible assets
|
4,036,789
|
|||
Purchased
Goodwill
|
7,110,416
|
|||
Other
non-current assets, principally property and equipment
|
343,898
|
|||
Total
assets
|
$
|
18,822,013
|
||
Liabilities:
|
||||
Current
liabilities, consisting of accounts payable of $1,953,833 and accrued
liabilities of $1,868,180
|
3,822,013
|
|||
Acquired
net assets
|
$
|
15,000,000
|
Total
|
||||
Contracted
Backlog - Existing Orders
|
$
|
2,763,567
|
||
Program
Backlog - Forecasted IDIQ awards
|
1,273,222
|
|||
Total
Intangible Asset to be amortized
|
$
|
4,036,789
|
2009
|
2010
|
2011
|
2012
|
2013
|
||||||||||||||||||
Contracted
backlog amortized by delivery schedule
|
COS
|
$
|
1,666,559
|
$
|
718,289
|
$
|
126,158
|
$
|
19,614
|
$
|
4,762
|
|||||||||||
Contracted
backlog amortized by delivery schedule
|
G&A
|
149,990
|
64,646
|
11,354
|
1,765
|
429
|
||||||||||||||||
Program
backlog amortized straight line across 5 years
|
G&A
|
254,645
|
254,645
|
254,645
|
254,645
|
254,645
|
||||||||||||||||
Total
Amortization by Year
|
$
|
2,071,194
|
$
|
1,037,580
|
$
|
392,157
|
$
|
276,024
|
$
|
259,834
|
|
Unaudited
Quarter
Ended March 29,
2009
|
Reorganization
Adjustments
(1)
|
Private
Placement
Adjustments
|
Unaudited Quarter
Ended March 29,
2009
|
||||||||||||
Assets
|
||||||||||||||||
Current
Assets
|
$ | 8,880,436 | $ | 187,500 | $ | 929,738 | $ | 9,997,674 | ||||||||
Non
current Assets
|
10,422,425 | - | - | 10,422,425 | ||||||||||||
Total
Assets
|
$ | 19,302,861 | $ | 187,500 | $ | 929,738 | $ | 20,420,099 | ||||||||
Liabilities
|
||||||||||||||||
Loans
Payable
|
146,709 | (146,250 | ) | 459 | ||||||||||||
Other
Current Liabilities
|
4,416,403 | - | 55,209 | 4,471,612 | ||||||||||||
Total
Liabilities
|
$ | 4,563,112 | $ | - | $ | (91,041 | ) | $ | 4,472,071 | |||||||
Equity
|
||||||||||||||||
Optex
Systems Holdings, Inc. – (par $0.001per share, 200,000,000 shares
authorized, 141,464,940 shares issued and outstanding as of March 29,
2009)
|
113,333 | 20,000 | 8,132 | 141,465 | ||||||||||||
Optex
Systems Holdings, Inc. Preferred Stock (par value $0.001per
share, 5,000 shares authorized, 1027 shares of Series A
Preferred issued and outstanding)
|
1 | 1 | ||||||||||||||
Additional
Paid in Capital
|
15,046,446 | 167,500 | 1,012,647 | 16,226,593 | ||||||||||||
Retained
Earnings
|
(420,031 | ) | (420,031 | ) | ||||||||||||
Total
Stockholders Equity
|
$ | 14,739,749 | $ | 187,500 | $ | 1,020,779 | $ | 15,948,028 | ||||||||
Total
Liabilities and Stockholders Equity
|
$ | 19,302,861 | $ | 187,500 | $ | 929,738 | $ | 20,420,099 |
Unaudited
|
Unaudited
|
|||||||||||||||
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||||||
June 28,
2009
|
June 29,
2008
|
June 28,
2009
|
June 29,
2008
|
|||||||||||||
Revenues
|
6,983,930
|
3,881,053
|
20,956,300
|
13,925,073
|
||||||||||||
Net
Income (Loss)
|
(308,553
|
)
|
145,877
|
(653,750
|
)
|
(450,016
|
)
|
|||||||||
Diluted
earnings per share
|
$
|
(0.00
|
)
|
$
|
(0.00
|
) |
$
|
(0.00
|
)
|
$
|
(0.00
|
)
|
||||
Weighted
Average Shares Outstanding
|
141,464,940
|
141,464,940
|
141,464,940
|
141,464,940
|
Operating
Leases
|
||||
Fiscal
Years ending September
|
||||
2009
|
$
|
119,461
|
||
2010
|
79,867
|
|||
2011
|
16,753
|
|||
2012
|
-
|
|||
2013
|
-
|
|||
Thereafter
|
-
|
|||
Total
minimum lease payments
|
$
|
216,081
|
Sileas
Corporation
|
76,638,295
|
|||
Arland
Holdings, Ltd.
|
8,361,705
|
|||
Total
Outstanding
|
85,000,000
|
Successor
|
Predecessor
|
Successor
|
Predecessor
|
Predecessor
|
||||||||||||||||
Three Months
ended June 28,
2009
|
Three Months
ended June 29,
2008
|
For the period
October 15, 2008
through June 28,
2009
|
For the period
September 29,
2008 through
October 14,
2008
|
Nine Months
ended June 29,
2008
|
||||||||||||||||
Numerator:
|
||||||||||||||||||||
Net loss
|
$ | (308,553 | ) | $ | (241,147 | ) | $ | (728,584 | ) | $ | 65,332 | $ | (1,613,196 | ) | ||||||
Denominator:
|
||||||||||||||||||||
Weighted average
shares
|
141,464,940 | 10,000 | 122,744,977 | 10,000 | 10,000 | |||||||||||||||
Basic and diluted net loss per
share
|
$ | (0.00 | ) | $ | (24.11 | ) | $ | (0.01 | ) | $ | 6.53 | $ | (161.32 | ) |
Nine months Ended
|
||
June 28, 2009
|
||
Expected
dividend yield
|
0
%
|
|
Expected
stock price volatility
|
27.8
%
|
|
Risk-free
interest rate (1)
|
2.8%-4.07
%
|
|
Expected
life of options
|
4.5
to 7 Years
|
Date of
|
Shares
|
Exercise
|
Shares Outstanding
|
Expiration
|
Vesting
|
||||||||||
Grant
|
Granted
|
Price
|
As of 06/28/09
|
Date
|
Date
|
||||||||||
|
|
|
|||||||||||||
03/30/09
|
480,981 | $ | 0.15 | 480,981 |
03/29/2016
|
03/30/2010
|
|||||||||
03/30/09
|
466,834 | 0.15 | 466,834 |
03/29/2016
|
03/30/2011
|
||||||||||
03/30/09
|
466,834 | 0.15 | 466,834 |
03/29/2016
|
03/30/2012
|
||||||||||
05/14/09
|
316,750 | 0.15 | 316,750 |
05/13/2016
|
05/14/2010
|
||||||||||
05/14/09
|
316,750 | 0.15 | 316,750 |
05/13/2016
|
05/14/2011
|
||||||||||
05/14/09
|
316,750 | 0.15 | 316,750 |
05/13/2016
|
05/14/2012
|
||||||||||
05/14/09
|
316,750 | 0.15 | 316750 |
05/13/2016
|
05/14/2013
|
||||||||||
Total
|
2,681,649 |
|
Number
|
Weighted
|
|||||||||||||||
of Shares
|
Average
|
Weighted
|
||||||||||||||
Remaining
|
Intrinsic
|
Average
|
Aggregate
|
|||||||||||||
Subject to Exercise
|
Options
|
Price
|
Life (Years)
|
Value
|
||||||||||||
Outstanding
as of June 29, 2008
|
-
|
$
|
-
|
-
|
-
|
|||||||||||
Granted
– 2009
|
2,681,649
|
$
|
0.09
|
5.38
|
.
|
$
|
233,049
|
|||||||||
Forfeited
– 2009
|
-
|
$
|
-
|
- | - | |||||||||||
Exercised
– 2009
|
-
|
$
|
-
|
- | - | |||||||||||
Outstanding
as of June 28, 2009
|
2,681,649
|
$
|
0.09
|
5.38
|
$
|
233,049
|
||||||||||
Exercisable
as of June 28, 2009
|
0
|
$
|
-
|
-
|
$
|
-
|
Number of
Non-
vested
Shares
Subject to
Options
|
Weighted-
Average
Grant-
Date
Fair Value
|
|||||||
Non-vested
as of June 28, 2009
|
-
|
$
|
||||||
Non-vested
granted — nine months ended June 28, 2009
|
2,681,649
|
$
|
0.14
|
|||||
Vested — nine
months ended June 28, 2009
|
-
|
$
|
0.00
|
|||||
Forfeited — nine
months ended June 28, 2009
|
-
|
$
|
||||||
Non-vested
as of June 28, 2009
|
2,681,649
|
$
|
0.14
|
Report
of Independent Registered Public Accounting Firm
|
F-24 | |||
Notes
to Financial Statements
|
F-30 | |||
Balance
Sheets as of September 28, 2008 and September 30, 2007
|
F-25 | |||
Statements
of Operations for years ended September 28, 2008 and September 30,
2007
|
F-27 | |||
Statements
of Stockholders’ Equity (Deficit) for the years ended September 28, 2008
and September 30, 2007
|
F-29 | |||
Statements
of Cash Flows for the years ended September 28, 2008 and September 30,
2007
|
F-28 |
September 28, 2008
|
September 30, 2007
|
|||||||
ASSETS
|
||||||||
Current
Assets
|
||||||||
Cash
|
|
$
|
170,183
|
|
|
$
|
504,753
|
|
Accounts
Receivable
|
2,454,235
|
|
2,043,634
|
|||||
Net
Inventory
|
4,547,726
|
|
6,112,565
|
|||||
Prepaid
Expenses
|
307,507
|
|
17,072
|
|||||
Total
Current Assets
|
7,479,651
|
8,678,024
|
||||||
Property
and Equipment
|
||||||||
Property
Plant and Equipment
|
1,314,109
|
1,196,543
|
||||||
Accumulated
Depreciation
|
(994,542
|
)
|
(830,108
|
)
|
||||
Total
Property and Equipment
|
319,567
|
366,435
|
||||||
Other
Assets
|
||||||||
Security
Deposits
|
20,684
|
20,684
|
||||||
Intangibles
|
1,100,140
|
1,696,507
|
||||||
Goodwill
|
10,047,065
|
11,633,481
|
||||||
Total
Other Assets
|
11,167,889
|
13,350,672
|
||||||
Total
Assets
|
$
|
18,967,107
|
$
|
22,395,131
|
September
28,2008
|
September 30, 2007
|
|||||||
LIABILITIES
AND STOCKHOLDERS’ EQUITY
|
||||||||
Current
Liabilities
|
||||||||
Accounts
Payable
|
$ |
1,821,534
|
$ |
3,381,508
|
||||
Accrued
Expenses
|
798,974
|
371,320
|
||||||
Accrued
Warranties
|
227,000
|
-
|
||||||
Accrued
Contract Losses
|
821,885
|
1,377,348
|
||||||
Loans
Payable
|
373,974
|
-
|
||||||
Income
Tax Payable
|
4,425
|
25,969
|
||||||
Total
Current Liabilities
|
4,047,792
|
5,156,145
|
||||||
Other
Liabilities
|
||||||||
Note
Payable
|
2,000,000
|
2,000,000
|
||||||
Accrued
Interest on Note
|
336,148
|
136,148
|
||||||
Due
to IRSN (Parent)
|
4,300,151
|
1,987,870
|
||||||
Total
Other Liabilities
|
6,636,299
|
4,124,018
|
||||||
Total
Liabilities
|
10,684,091
|
9,280,163
|
||||||
Stockholders'
Equity
|
||||||||
Common
Stock (no par 100,000 authorized, 18,870 shares issued and 10,000 shares
outstanding)
|
164,834
|
164,834
|
||||||
Treasury
Stock (8,870 shares at cost)
|
(1,217,400
|
)
|
(1,217,400
|
)
|
||||
Additional
Paid-in-capital
|
15,246,282
|
15,246,282
|
||||||
Retained
Earnings (Deficit)
|
(5,910,700
|
)
|
(1,078,748
|
)
|
||||
Total
Stockholders' Equity
|
8,283,016
|
13,114,968
|
||||||
Total
Liabilities and Stockholders' Equity
|
$ |
18,967,107
|
$ |
22,395,131
|
Restated
Year Ended
September 28,
2008
|
Year Ended
September 30,
2007
|
|||||||
Revenues
|
$ |
20,017,209
|
$ |
15,406,186
|
||||
Cost
of Goods Sold
|
18,145,211
|
17,361,378
|
||||||
Gross
Margin
|
1,871,998
|
(1,955,192
|
)
|
|||||
General
and Administrative
|
||||||||
Salaries
and Wages
|
910,854
|
876,366
|
||||||
Employee
Benefits
|
190,489
|
222,433
|
||||||
Employee
Stock Bonus Plan
|
378,716
|
388,756
|
||||||
Amortization
of Intangibles
|
223,491
|
223,835
|
||||||
Rent,
Utilities and Building Maintenance
|
228,694
|
210,936
|
||||||
Legal
and Accounting Fees
|
223,715
|
374,845
|
||||||
Consulting
and Contract Service Fees
|
325,723
|
212,925
|
||||||
Corporate
Allocations
|
2,076,184
|
2,010,027
|
||||||
Asset
Impairment of Goodwill
|
1,586,416
|
-
|
||||||
Other
Expenses
|
381,459
|
361,932
|
||||||
Total
General and Administrative
|
$ |
6,525,741
|
$ |
4,882,055
|
||||
Operating
Loss
|
$ |
(4,653,743
|
)
|
$ |
(6,837,247
|
)
|
||
Other
Expenses
|
||||||||
Interest
Expense – Net
|
199,753
|
136,148
|
||||||
Total
Other
|
199,753
|
136,148
|
||||||
Loss
Before Taxes
|
(4,853,496
|
)
|
(6,973,395
|
)
|
||||
Income
Taxes (Benefit)
|
(21,544
|
)
|
(162,541
|
)
|
||||
Net
Loss After Taxes
|
$ |
(4,831,952
|
)
|
$ |
(6,810,854
|
)
|
||
Basic
and diluted loss per share
|
$
|
(483.20
|
)
|
$
|
(681.09
|
)
|
||
Weighted
Average Common Shares Outstanding
|
10,000
|
10,000
|
Year Ended
September
28, 2008
|
Year Ended
September
30, 2007
|
|||||||
Cash
flows from operating activities:
|
||||||||
Net
Loss
|
$ |
(4,831,952
|
)
|
$ |
(6,810,854
|
)
|
||
Adjustments
to reconcile net loss to net cash used in operating
activities:
|
||||||||
Depreciation
and amortization
|
760,801
|
1,068,938
|
||||||
Provision
for (use of) allowance for inventory valuation
|
(102,579
|
)
|
701,308
|
|||||
Noncash
interest expense
|
200,000
|
136,148
|
||||||
(Gain)
loss on disposal and impairment of assets
|
1,586,416
|
-
|
||||||
(Increase)
decrease in accounts receivable
|
(410,602
|
)
|
688,023
|
|||||
(Increase)
decrease in inventory (net of unliquidated progress
payments)
|
1,667,418
|
(1,124,352
|
)
|
|||||
(Increase)
decrease in other current assets
|
(290,435
|
)
|
(757
|
)
|
||||
(Increase)
decrease in other assets
|
-
|
(530
|
)
|
|||||
Increase
(decrease) in accounts payable and accrued expenses
|
(1,132,319
|
)
|
61,917
|
|||||
Increase
(decrease) in accrued warranty costs
|
227,000
|
-
|
||||||
Increase
(decrease) in due to parent
|
2,312,280
|
2,385,105
|
||||||
Increase
(decrease) in accrued estimated loss on contracts
|
(555,462
|
)
|
1,377,348
|
|||||
Increase
(decrease) in income taxes payable
|
(21,544
|
)
|
30,558
|
|||||
Total
adjustments
|
4,240,974
|
5,323,706
|
||||||
Net
cash (used)/provided by operating activities
|
(590,978
|
)
|
(1,487,149
|
)
|
||||
Cash
flows from investing activities:
|
||||||||
Purchase
of property and equipment
|
(117,566
|
)
|
(61,465
|
)
|
||||
Net
cash used in investing activities
|
(117,566
|
)
|
(61,465
|
)
|
||||
Cash
flows from financing activities:
|
||||||||
Proceeds
from Notes Payable
|
373,974
|
2,000,000
|
||||||
Net
cash provided by financing activities
|
373,974
|
2,000,000
|
||||||
Net
increase (decrease) in cash and cash equivalents
|
(334,570
|
)
|
451,385
|
|||||
Cash
and cash equivalents at beginning of period
|
504,753
|
53,367
|
||||||
Cash
and cash equivalents at end of period
|
$ |
170,183
|
$ |
504,753
|
||||
Noncash
investing and financing activities:
|
||||||||
Irvine
Sensors purchase of remaining 30% interest in Optex Texas pushed down to
subsidiary’s equity
|
||||||||
Intangible
Assets
|
-
|
954,000
|
||||||
Goodwill
|
-
|
3,223,633
|
||||||
Other
|
-
|
(10,093
|
)
|
|||||
Additional
Paid in Capital
|
$ |
-
|
$ |
4,167,540
|
||||
Supplemental
cash flow information:
|
||||||||
Cash
paid for interest
|
-
|
-
|
||||||
Cash
paid for taxes
|
-
|
$ |
6,681
|
Number of
Outstanding
Shares
|
Common
Stock
|
Treasury
Stock
|
Additional
Paid in
Capital
|
Retained
Earnings
|
Total
Stockholders
Equity
|
|||||||||||||||||||
Balance
at September 30, 2006
|
10,000
|
$ |
164,834
|
$ |
(1,217,400
|
)
|
$ |
11,078,742
|
$ |
5,732,106
|
$ |
15,758,282
|
||||||||||||
Net
Earnings (Loss) from continuing operations
|
(6,810,854
|
)
|
(6,810,854
|
)
|
||||||||||||||||||||
30%
acquisition of Optex by Irvine Sensors pushed down to subsidiary’s
equity
|
4,167,540
|
4,167,540
|
||||||||||||||||||||||
Balance
at September 30, 2007
|
10,000
|
$ |
164,834
|
$ |
(1,217,400
|
)
|
$ |
15,246,282
|
$ |
(1,078,748
|
)
|
$ |
13,114,968
|
|||||||||||
Net
Earnings (Loss) from continuing operations
|
(4,831,952
|
)
|
(4,831,952
|
)
|
||||||||||||||||||||
Balance
at September 28, 2008
|
10,000
|
$ |
164,834
|
$ |
(1,217,400
|
)
|
$ |
15,246,282
|
$ |
(5,910,700
|
)
|
$ |
8,283,016
|
As of
September 28, 2008
|
As of
September 30, 2007
|
|||||||
Raw
Materials
|
$
|
4,199,657
|
$
|
6,812,810
|
||||
Work
in Process
|
5,575,520
|
6,423,902
|
||||||
Finished
Goods
|
28,014
|
157,389
|
||||||
Gross
Inventory
|
$
|
9,803,191
|
$
|
13,394,101
|
||||
Less:
|
||||||||
Unliquidated
Progress Payments
|
(4,581,736
|
)
|
(6,505,228
|
)
|
||||
Inventory
Reserves
|
(673,729
|
)
|
(776,308
|
)
|
||||
Net
Inventory
|
$
|
4,547,726
|
$
|
6,112,565
|
|
·
|
The
units-of-delivery method recognizes as revenue the contract price of units
of a basic production product delivered during a period and as the cost of
earned revenue the costs allocable to the delivered units; costs allocable
to undelivered units are reported in the balance sheet as inventory or
work in progress. The method is used in circumstances in which an entity
produces units of a basic product under production-type contracts in a
continuous or sequential production process to buyers'
specifications.
|
Estimated Useful Life
|
Year Ended
September 28, 2008
|
Year Ended
September 30, 2007
|
||||||||
Property
and Equipment
|
||||||||||
Office
Furniture/Equipment
|
3-5yrs
|
$
|
145,071
|
$
|
127,502
|
|||||
Machinery
and Equipment
|
5
yrs
|
1,026,250
|
926,253
|
|||||||
Leasehold
Improvements
|
7
yrs
|
142,788
|
142,788
|
|||||||
Less:
Accumulated Depreciation
|
(994,542
|
)
|
(830,108
|
)
|
||||||
Net
Property & Equipment
|
$
|
(319,567
|
)
|
$
|
(366,435
|
)
|
||||
Depreciation
Expense
|
$
|
164,434
|
$
|
129,069
|
Year Ended
September 28, 2008
|
Year Ended
September 30, 2007
|
|||||||
Customer
Advance Payments
|
$
|
-
|
$
|
62,784
|
||||
Deferred
Rent Expense
|
84,435
|
119,073
|
||||||
Accrued
Vacation
|
94,311
|
69,803
|
||||||
Property
Taxes
|
17,557
|
13,031
|
||||||
Contract
Settlement
|
351,217
|
-
|
||||||
Operating
Expenses
|
128,717
|
-
|
||||||
Payroll
& Payroll Related
|
122,737
|
106,629
|
||||||
Total
Accrued Expenses
|
$
|
798,974
|
$
|
371,320
|
Operating
|
||||
Leases
|
||||
Years
ended December 31,
|
||||
2009
|
$
|
364,260
|
||
2010
|
79,867
|
|||
2011
|
16,753
|
|||
2012
|
-
|
|||
2013
|
-
|
|||
Thereafter
|
-
|
|||
Total
minimum lease payments
|
$
|
460,880
|
Accounting
& Auditing Fees
|
$ | 250,000 | ||
Legal
Fees
|
60,000 | |||
Consulting
Fees
|
60,000 | |||
Workers
Comp & General Insurance
|
70,000 | |||
Total
|
$ | 440,000 |
Assets:
|
||||||||
Current
assets, consisting primarily of inventory of $5,734,500 and accounts
receivable of $2,191,800
|
$
|
8,070,300
|
||||||
Identifiable
intangible assets
|
3,180,000
|
|||||||
Other
non-current assets, principally property and equipment
|
455,100
|
|||||||
Total
assets
|
11,705,400
|
|||||||
Liabilities:
|
||||||||
Current
liabilities, consisting of accounts payable of $1,638,600, tax liabilities
of $112,800 and accrued liabilities of $682,100
|
2,433,481
|
|||||||
Acquired
net assets
|
9,271,919
|
|||||||
Purchase
price
|
||||||||
Total
consideration to seller
|
$
|
19,865,400
|
||||||
Direct
acquisition costs
|
1,040,000
|
|||||||
20,905,400
|
||||||||
Excess
purchase price reported as goodwill
|
$
|
11,633,481
|
Useful Life in
Years
|
Acquired
Fair Value
|
|||||||
Non-competition
agreement
|
2
|
$
|
80,000
|
|||||
Contractual
backlog
|
2
|
$
|
1,570,000
|
|||||
Program
backlog
|
8
|
$
|
1,530,000
|
Year
|
Annual
Amortization
|
|||
2009
|
|
266,365
|
||
2010
|
204,490
|
|||
2011
|
204,490
|
|||
2012
|
204,490
|
|||
2013
|
186,837
|
|||
2014
|
33,468
|
|||
Total
|
$
|
1,100,140
|
2008
|
2007
|
|||||||
Numerator:
|
||||||||
Net
loss
|
$
|
(4,831,952
|
)
|
$
|
(6,810,854
|
)
|
||
Denominator:
|
||||||||
Weighted
average shares
|
10,000
|
10,000
|
||||||
Basic
and diluted net loss per share
|
$
|
(483.20
|
)
|
$
|
(681.09
|
)
|
|
·
|
Optex
Texas reclassified the asset impairment of goodwill from other expenses to
an operating expense. This reclassification increased the loss
from operations by $1,586,416 to $4,653,743 with no change to the net
loss.
|
|
·
|
Note
2 has been restated to accurately reflect Optex Texas’s revenue
recognition policy.
|
·
|
Note
14 has been revised to reflect only those transactions related to the
predecessor entity.
|
Securities
and Exchange Commission registration fee
|
$
|
1,447
|
||
Printing
and engraving expenses
|
|
1,000
|
||
Legal
fees and expenses
|
|
-
|
|
|
Accountant
fees and expenses
|
|
2,500
|
||
Total
|
$
|
4,947
|
Exhibit
No.
|
Description
|
|
2.1
|
Agreement
and Plan of Reorganization (the “Agreement”), dated as of the March 30,
2009, by and between Registrant, a Delaware corporation and Optex Systems,
Inc., a Delaware corporation (1).
|
|
3.1
|
Certificate
of Incorporation, as amended, of Optex Systems Holdings,
Inc.
|
|
3.2
|
Bylaws
of Optex Systems Holdings Corp. (1).
|
|
5.1
|
Opinion
as to Legality of the Shares
|
|
10.1
|
Lease
for 1420 Presidential Blvd., Richardson, TX
(1).
|
10.2
|
Employment
Agreement with Danny Schoening (1).
|
|
10.3
|
2009
Stock Option Plan (1).
|
|
10.4
|
Form
of Warrant (1)
|
|
10.5
|
Specimen
Stock Certificate (1)
|
|
10.6
|
Material Customer Contracts* | |
14.1
|
Code
of Ethics (1)
|
|
16
|
Letter re: Change in Certifying Accountant (1) | |
21.1
|
List
of Subsidiaries – Optex Systems, Inc. (1).
|
|
23.1
|
Consent
of Rotenberg, LLP
|
|
*
|
Portions of this exhibit have been omitted pursuant to a confidential treatment request, and information regarding this confidential treatment request is being separately submitted to the Commission.
|
(1)
|
Incorporated
by reference from our Current Report on Form 8-K dated April 3,
2009.
|
1.
|
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
|
i.
|
To
include any prospectus required by section 10(a)(3) of the Securities
Act;
|
ii.
|
To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement.
|
iii.
|
To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration
statement.
|
2.
|
That,
for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
|
3.
|
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
|
4.
|
That,
for the purpose of determining liability under the Securities Act to any
purchaser:
|
i.
|
If
the registrant is relying on Rule 430B (Section 430B of this
chapter):
|
A.
|
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3)shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
|
B.
|
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x)
for the purpose of providing the information required by section 10(a) of
the Securities Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such effective date;
or
|
ii.
|
If
the registrant is subject to Rule 430C, each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to an offering,
other than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of
and included in the registration statement as of the date it is first used
after effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract
of sale prior to such first use, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to
such date of first use.
|
5.
|
That,
for the purpose of determining liability of the registrant under the
Securities Act to any purchaser in the initial distribution of the
securities: The undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such
purchaser:
|
i.
|
Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
|
ii.
|
Any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
|
iii.
|
The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
|
iv.
|
Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
|
OPTEX
SYSTEMS HOLDINGS, INC.
|
|
By:
|
/s/
Stanley A. Hirschman
|
Stanley
A. Hirschman, Principal Executive Officer and Director
|
|
Date:
September 25, 2009
|
|
By:
|
/s/
Karen Hawkins
|
Karen
Hawkins, Principal Financial Officer
|
|
Date:
September
25, 2009
|
Signature
|
Title
|
Date
|
||
/s/
Stanley A. Hirschman
|
||||
Stanley
A. Hirschman
|
Principal
Executive Officer and Director
|
September
25, 2009
|
||
/s/
Karen Hawkins
|
||||
Karen
Hawkins
|
Principal
Financial Officer
|
September
25, 2009
|
||
/s/
Ronald F. Richards
|
||||
Ronald
F. Richards
|
Director
|
September
25, 2009
|
||
/s/
Merrick Okamoto
|
||||
Merrick
Okamoto
|
Director
|
September
25,
2009
|