As filed with the Securities and Exchange Commission on April 11, 2000
REGISTRATION NO. 333- _____
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SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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SUNRISE TECHNOLOGIES INTERNATIONAL, INC.
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(Exact name of registrant as specified in its charter)
Delaware 77-0148208
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
3400 West Warren Avenue
Fremont, California 94538
(510) 623-9001
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(Name, address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Peter E. Jansen
3400 West Warren Avenue
Fremont, California 94538
(510) 623-9001
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
with copies to:
Eric M. Fogel, Esq.
Duane, Morris & Heckscher LLP
227 West Monroe, Suite 3400
Chicago, Illinois 60606
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
<PAGE>
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [ X ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act Registration Statement number of
the earlier effective Registration Statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the
Securities Act Registration Statement number of the earlier effective
Registration Statement for the same offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to
Rule 434, check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
Title of Proposed
Each Class Proposed Maximum
of Security Amount Maximum Aggregate Amount of
to be to be Offering Offering Registration
Registered Registered Price (1) Price Fee (1)
- ----------- ---------- ---------- ----------- ------------
Common stock,
par value $.001
per share 3,753,224 $7.3125 $27,445,451 $7,245.60
(1) Estimated solely for the purpose of determining the registration fee
in accordance with Rule 457(c)under the Securities Act of 1933, as amended.
The above calculation is based on the average of the reported high and low
sales prices of the common stock on the NASDAQ National Market System on
April 10, 2000.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND
EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
The information in this Prospectus is not complete and may be changed. The
selling securityholders may not sell these securities until the
registration statement filed with the Securities and Exchange Commission is
effective. This Prospectus is not an offer to buy these securities in any
State where the offer or sale is not permitted.
SUBJECT TO COMPLETION DATED APRIL 11, 2000
PRELIMINARY PROSPECTUS
-----------------------
3,753,224 Shares
SUNRISE TECHNOLOGIES INTERNATIONAL, INC.
Common Stock
____________________________
We develop, manufacture and market laser systems for applications in
ophthalmology. Substantially all of our business activities, including
engineering and development, manufacturing, assembly and testing take place
at our facility in Fremont, California. All of the shares of common stock
offered in this Prospectus are being offered by the selling securityholders
in transactions on the Nasdaq National Market System or in privately
negotiated transactions. We will not receive any of the proceeds from the
sales.
Our common stock is traded on the NASDAQ National Market System under
the symbol "SNRS." On April 10, 2000, the closing price reported on the
NASDAQ National Market System was $7.125 per share.
THIS INVESTMENT IN THE COMMON STOCK INVOLVES A HIGH DEGREE OF RISK.
YOU SHOULD PURCHASE SHARES ONLY IF YOU CAN AFFORD A COMPLETE LOSS. SEE
"RISK FACTORS" BEGINNING ON PAGE 4.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities.
They have not determined if this Prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
_____________________________
The date of this Prospectus is _________, 2000
<PAGE>
TABLE OF CONTENTS
PROSPECTUS
Page
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ABOUT SUNRISE . . . . . . . . . . . . . . . . . . . . . . . . 3
RECENT DEVELOPMENTS . . . . . . . . . . . . . . . . . . . . . 3
RISK FACTORS. . . . . . . . . . . . . . . . . . . . . . . . . 4
FORWARD-LOOKING STATEMENTS. . . . . . . . . . . . . . . . . . 10
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . 11
SELLING SECURITY HOLDERS. . . . . . . . . . . . . . . . . . . 11
PLAN OF DISTRIBUTION. . . . . . . . . . . . . . . . . . . . . 14
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . 14
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . 14
WHERE YOU CAN FIND MORE INFORMATION . . . . . . . . . . . . . 15
INCORPORATION OF INFORMATION WE FILE WITH THE SEC . . . . . . 15
<PAGE>
ABOUT SUNRISE
At Sunrise, we develop, manufacture and market laser systems for
applications in ophthalmology. Substantially all of our business
activities, including engineering and development, manufacturing, assembly
and testing, take place at our facility in Fremont, California.
Since 1992, we have focused a significant portion of our efforts on
engineering and development of our holmium laser corneal shaping process.
This process, known as laser thermal keratoplasty or LTK, treats refractive
errors of the eye, such as farsightedness and age-related loss of near
focusing ability. The LTK system is based upon patented technology acquired
in our acquisitions of in-process technology from Laser Biotech, Inc. and
Emmetropix Corporation in 1992. Our LTK system is currently undergoing
premarket clinical studies in the United States as required by the Food and
Drug Administration. Prior to this time, we were primarily a developer and
manufacturer of dental laser systems.
Our working capital is seriously depleted due to our substantial
losses during the past eight years. Sales of our existing ophthalmic
products at current levels will not be sufficient to sustain the continued
development and regulatory licensing of the laser thermal keratoplasty
system. We have been able to raise additional working capital for all
aspects of our business through the private placement of our common stock
and convertible notes with warrants.
We raised approximately $3,700,000 in the form of promissory notes
with warrants in 1997, approximately $9,300,000, net of offering costs, in
the form of promissory notes with warrants in January 1998, approximately
$11,800,000, net of offering costs, from the sale of common stock in
December 1998 and $10,000,000, net of offering costs, in the form of
promissory notes with warrants in January 1999. Most recently, in January
2000, we raised approximately $11,200,000, net of offering costs, from the
sale of convertible debentures with warrants.
We were incorporated in 1987 under the laws of the State of California
and were reincorporated in 1993 under the laws of the State of Delaware.
The location of our principal executive offices is 3400 West Warren Avenue,
Fremont, California 94538; telephone (510) 623-9001.
RECENT DEVELOPMENTS
Our pre-market approval application for our LTK system was filed with
the Food and Drug Administration in December 1998. We appeared before the
Ophthalmic Devices Panel, an advisory committee of the FDA, on July 22,
1999 to present the results of our clinical trial for the correction of
hyperopia from +0.75 to +2.50 diopters. The Panel requested additional
long-term data and recommended that the FDA not approve the LTK system at
that time.
After the July 22, 1999 Panel meeting, we prepared an amendment to our
pre-market approval application for the reduction of hyperopia within the
range of +0.75 to +2.50 diopters. We had several meetings with the FDA
Ophthalmic Devices Branch to review our submission and on November 2, 1999
we filed an amended pre-market approval application that contained a
substantial increase in the number of patients followed through two years
and quantified and explained post operative changes that LTK patients may
experience in refractive effect over time. On January 13, 2000, we
returned to the Panel for a review of the amended pre-market approval
application, and the Panel voted to recommend that the FDA approve the LTK
system with conditions related to labeling regarding patient symptoms,
longevity of effect and the effect of retreatment.
<PAGE>
RISK FACTORS
This offering involves a high degree of risk. You should carefully
consider the risks described below and the other information contained in
this Prospectus before deciding to invest in shares of our common stock.
WE HAVE SUSTAINED LOSSES IN THE PAST AND WE EXPECT TO REPORT LOSSES IN THE
FUTURE
We have incurred substantial losses that have depleted our working
capital and reduced our stockholders' equity. In addition, we expect that
our business will continue to be a significant consumer of cash. Unless and
until the FDA approves the domestic sale of our LTK system for performing
laser thermal keratoplasty, our revenues will not be sufficient to cover
our operating costs. We do not expect FDA approval until sometime within
three to nine months from the January 13, 2000 Opthalmic Devices Panel
approval, although we can not be certain we will obtain that approval
within that time fame, if at all.
We funded our negative cash flows during 1997, 1998 and 1999 by the
sale of additional equity and convertible debt with warrants. At
December 31, 1998, after consummation of a notes placement (approximate net
proceeds of $9,300,000) and an equity offering (approximate net proceeds of
$11,800,000), cash and cash equivalents of the Company were approximately
$9,889,000. In January 1999 we raised $10,000,000 net of offering expenses
through a notes placement. In January 2000, we raised approximately
$11,200,000, net of offering costs, by means of a convertible debenture
with warrants. Due to the uncertainty of the timing of final FDA approval
of the LTK system and consequently its market launch, we expect that we
will need to raise additional working capital during 2000 to fund our
activities for 2000 and beyond. There can be no assurance that additional
funds can be raised on terms acceptable to us, if at all. Any additional
equity or debt offerings will dilute the holdings of our stockholders.
We expect to report operating losses during 2000. The losses will come
primarily from the expenses of the FDA approval process and underlying
clinical studies related to the LTK system, the cost to ramp up
manufacturing of the initial production units and the preparation costs
associated with the market launch of the LTK system We will not have any
domestic revenues from this product line unless and until we obtain the FDA
approval. Our international revenues will not be sufficient to cover the
cost of the approval process or our general operating expenses.
NO ASSURANCE FUTURE CAPITAL WILL BE AVAILABLE TO US; ADDITIONAL CAPITAL
WILL DILUTE THE HOLDINGS OF OUR STOCKHOLDERS
Our stockholders have no preemptive rights. If we:
1. Commence a subsequent public or private offering of common
stock, convertible debt, or preferred stock; or
2. Issue securities upon exercise of warrants to consultants or
other parties providing goods or services to us in lieu of or in addition
to cash consideration.
Our stockholders, who may not participate in any future stock
issuance, will experience dilution of their equity investment. At this
time, we cannot determine the potential dilution to our stockholders.
<PAGE>
We cannot assure that additional financing will be available, or if
available, that it will be available on terms favorable to our
stockholders. If funds are not available to satisfy our short-term and
long-term operating requirements, we may limit or suspend our operations in
the entirety or, under certain circumstances, seek protection from
creditors. Our recent debt and equity offerings contained terms adverse to
our then existing stockholders. It is possible that future financings
undertaken prior to the commencement of sales of the LTK system in the
United States may contain terms that could result in similar or more
substantial dilution than that incurred by our stockholders from the sales
of equity and convertible debt with warrants since 1996.
WE COULD EXPERIENCE SUBSTANTIAL DELAY IN RECEIVING AND MAY NOT CONTINUE TO
RECEIVE NECESSARY APPROVAL FROM THE FDA OF OUR PRE-MARKET APPROVAL
APPLICATION FOR OUR LASER THERMAL KEROTOPLASTY SYSTEM
The FDA and similar health authorities in foreign countries
extensively regulate our activities. The FDA regulates the LTK system under
the Food, Drug & Cosmetic Act, as a Class III medical device. Class III
medical devices must have a premarket approval application ("PMA") approved
by the FDA before commercial sales in the United States commence. The PMA
process (and underlying clinical studies) is lengthy, the outcome is
difficult to predict and the process requires substantial commitments of
our financial resources and our management's time and effort. Delays in
obtaining or failure to obtain required regulatory approvals or clearances
in the United States and other countries would postpone or prevent the
marketing of the LTK system and other devices. Consequently, delays would
impair our ability to generate funds from operations, which in turn would
have a material adverse effect on our business, financial condition and
results of operations.
We cannot be certain that we will be able to timely obtain, if at all,
the required approval of our PMA in the United States for our intended uses
of the LTK system, or for any other devices for which we may seek approvals
or clearances. The FDA will subject us to pervasive and continuing
regulation for any products that we manufacture or distribute.
A new FDA regulation requires disclosure of the financial interests of
clinical investigators. This new regulation applies to all new PMAs
submitted on or after February 2, 1999. The purpose of this new regulation
is to assist the FDA in determining if, and to what extent, the clinical
studies supporting a marketing application may have been subject to
investigator bias. Some of our current 11 clinical investigators of the LTK
system have financial interests in the Company that meet the threshold for
disclosure under this new FDA regulation. It is not possible to predict,
however, what impact, if any, the disclosure of these interests would have
on the FDA's review of the PMA submitted for the LTK system.
We received a CE (European Community) Mark of approval on our LTK
device that allows us to sell the device in the countries comprising the
European Community. In addition to the CE Mark, however, some foreign
countries may require separate individual foreign regulatory clearances.
Although we have sold our products in approximately 15 countries, sales of
the LTK system require rigorous regulatory approvals before we can sell
them in the United States and certain other countries. We cannot assure
that we will be able to obtain regulatory clearances for our products in
the United States or other foreign markets.
WE DEPEND ON THE LTK SYSTEM AND MARKET ACCEPTANCE OF THAT SYSTEM IS UNCLEAR
We intend to continue to concentrate our efforts primarily on the
development of the LTK system and will be dependent upon the successful
development of that system to generate revenues. We have not yet
commercially introduced the LTK system in the United States. There can be
<PAGE>
no assurance that if approved by the FDA, the ophthalmic community or the
general population will accept the LTK system as an alternative to existing
methods of treating refractive vision disorders. Many ophthalmologists may
have already invested significant time and resources in developing
expertise in other corrective ophthalmic techniques. Acceptance of the LTK
system may be affected adversely by
. its costs,
. concerns related to its safety and efficacy,
. the general resistance to use of laser procedures on the eye,
. the effectiveness of alternative methods of correcting
refractive vision disorders,
. the lack of long-term follow-up data, or
. the possibility of unknown side effects.
Promotional efforts by suppliers of products or procedures which are
alternatives to the LTK system, including eyeglasses, contact lenses and
laser and non-laser surgical procedures, may also adversely affect the
marketplace for the LTK system. Any failure to achieve broad market
acceptance of the LTK system will have a material adverse effect on our
business, financial condition and results of operations.
CLINICAL DATA ABOUT THE LONG-TERM SAFETY AND EFFICACY OF THE LTK SYSTEM IS
CURRENTLY AVAILABLE, BUT WE MAY BE REQUIRED TO UNDERTAKE FURTHER TESTING
We have developed substantial clinical data on the safety and efficacy
of the LTK system in correcting hyperopia (farsightedness). Following the
Ophthalmic Devices Panel's recommendation to approve the LTK system for
temporary reduction of hyperopia in January 2000, the FDA is reviewing the
data submitted in the premarket approval application and is in the process
of completing the inspections and labeling review needed to determine
whether the LTK system is safe and effective for the treatment of
hyperopia. This final FDA determination may take from three to nine months
from the date of the premarket approval application submission and we think
that any approval of our premarket approval application will not be
forthcoming before the second quarter of 2000 at the earliest.
Potential complications and side effects reported in studies to date
from the use of the LTK system include
. mild foreign body sensation,
. temporary increased light sensitivity,
. modest fluctuations in refractive capabilities during healing,
. unintended over or under-corrections,
. regression of effect, and
. induced astigmatism.
<PAGE>
The FDA may require the Company to conduct further testing of the LTK
system, thereby delaying the Company's efforts to generate revenue, or
limit the scope of the FDA approval, thereby limiting the market for the
LTK system.
OUR PRODUCT EMPLOYS PROPRIETARY TECHNOLOGY AND THIS TECHNOLOGY MAY INFRINGE
ON THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES
We hold United States process and apparatus patents for the use of
holmium lasers in non-destructive cornea shaping. Other parties, however,
hold process and apparatus patents relating to shaping the cornea with
holmium lasers. Generally, an apparatus patent contains claims to a new and
useful machine or device. A process patent generally contains claims to a
new and useful process, art, or method, which may include a new use of a
known process, machine, manufacture, composition of matter, or material. We
believe that we are not infringing on any patents held by others. However,
if patents held by others were adjudged valid and interpreted broadly in an
adversarial proceeding, they could be deemed to cover one or more aspects
of our holmium laser corneal shaping systems, use of the LTK system, or
other procedures. Any claims for patent infringement could be time-
consuming, result in costly litigation, divert technical and management
personnel, or require us to develop non-infringing technology or enter into
royalty or licensing agreements. We cannot be certain that we will not be
subject to one or more claims for patent infringement, that we would
prevail in any such action, or that our patents will afford protection
against competitors with similar technology.
If a court determines that the LTK system infringes, directly or
indirectly, a patent in a particular market, the court may enjoin us from
making, using and selling such system. Furthermore, we may be required to
pay damages or obtain a royalty-bearing license, if available, on
acceptable terms. Alternatively, if a license is not offered or available,
we may be required to redesign those aspects of the LTK system held to
infringe, directly or indirectly, to avoid such infringement. Any redesign
could delay reintroduction of our products into certain markets, or may be
so significant as to be impractical. If redesign efforts were impractical,
we could be prevented from manufacturing and selling the infringing
products, which would have a material adverse effect on our business,
financial condition and results of operations.
A COMPONENT OF THE LTK SYSTEM MAY BE COVERED BY A PATENT OWNED OR LICENSED
BY A PARTY UNRELATED TO US WHICH MAY CAUSE US TO REDESIGN THE LTK SYSTEM,
WHICH COULD DELAY COMMERCIALIZATION
A component of the LTK delivery system is possibly covered by a patent
owned by the University of Miami or licensed to another party. We believe
that we will be able to conclude a satisfactory arrangement with the
University of Miami or its licensee. If, however, we are unable to reach a
successful agreement, we may have no rights to the component of the
delivery system presently configured in the LTK system. If we are forced
to redesign the LTK system, such redesign efforts could be time consuming,
expensive and prolong FDA review.
A SIGNIFICANT NUMBER OF OUR SHARES ARE ELIGIBLE FOR SALE AND THEIR SALE
COULD DEPRESS THE MARKET PRICE OF OUR STOCK
Sales of substantial amounts of our common stock (including shares
issued upon exercise of outstanding options and warrants and shares issued
upon conversion of convertible notes) in the public market could depress
the market price of our common stock. As of March 10, 2000, we had
46,414,401 shares outstanding and 9,667,499 shares reserved for issuance
upon exercise of options and warrants or conversion of convertible notes.
<PAGE>
LACK OF AVAILABILITY OF KEY SYSTEM COMPONENTS COULD RESULT IN DELAYS,
INCREASED COSTS, OR COSTLY REDESIGN OF OUR PRODUCT
Although some of the parts and components used to manufacture our
products are available from multiple sources, we currently purchase most of
our components from single sources in an effort to obtain volume discounts.
Lack of availability of any of these parts and components could result in
production delays, increased costs, or costly redesign of our products. We
continually evaluate ways to minimize any impact to our business from any
potential part or component shortage through inventory stockpiling and
design changes to afford opportunities for multiple sources of supply for
these essential components. Any loss of availability of an essential system
component could result in a material adverse change to our business,
financial condition and results of operations.
THE SUCCESS OF COMPETITIVE PRODUCTS COULD HAVE AN ADVERSE AFFECT ON OUR
BUSINESS
The vision correction industry is intensely competitive. The
significant competitive factors in the industry include
. price,
. convenience,
. success relative to vision correction,
. acceptance of new technologies,
. patient satisfaction, and
. government approval.
Patients with hyperopia (farsightedness) can achieve vision correction
with eyeglasses, contact lenses and possibly with other technologies and
surgical techniques currently under development, such as
. corneal implants,
. human lens replacement,
. intra-ocular implantable contact lenses, and
. surgery using different types of lasers.
The success of any competing alternative to the LTK system for
treating hyperopia could have a material adverse effect on our business,
financial condition and results of operations. Most of our competitors have
substantially greater financial capabilities for product development and
marketing than we currently do. These financial capabilities enable our
competitors to market their products or procedures to the consumer and to
the ophthalmic community in a more effective manner.
The excimer laser is the dominant laser used for the treatment of
refractive disorders. In the United States, VISX, Inc. and Summit
Technologies, Inc. are the leading manufacturers of excimer refractive
surgical systems. Both Summit and VISX excimer laser are currently approved
<PAGE>
for treating hyperopia in the United States. We believe the LTK system
offers several distinct advantages over the use of excimer lasers for
treating hyperopia, including ease of use, non-invasiveness and a better
safety record. From an ophthalmologist's standpoint, the LTK system is
also attractive because the procedure is quicker than the excimer, which
allows him to perform more procedures per period of time than the excimer.
Both VISX and Summit, however, have significantly greater financial
resources than we do and have received FDA approval for their respective
excimer laser products for treating myopia (nearsightedness), hyperopia
(farsightedness) and astigmatism.
Summit discontinued its clinical trials for treating hyperopia with
its holmium laser system in 1996. Any alternative treatment offered by VISX
or Summit, however, will have a competitive advantage because they already
have established a base of customers that are currently using their
products.
WE ARE DEPENDENT ON OUR MANAGEMENT AND KEY PERSONNEL TO SUCCEED
Our principal executive officers and key personnel have extensive
experience with our LTK system, the research and development efforts needed
to bring it to market, the development of marketing and sales programs for
its launch and the necessary services to be provided to our customers to
support the system. The loss of the services of any of our executive
officers or other key personnel, or our failure to attract and retain other
skilled and experienced personnel, could have a material adverse effect on
our ability to continue the FDA approval process for the LTK system and
adversely affect our ability to manufacture, sell and market the product.
Such events would probably have a negative impact on our business and
financial condition.
OUR CHARTER DOCUMENTS AND DELAWARE LAW MAY INHIBIT A TAKEOVER
The provisions of
. our Certificate of Incorporation, as amended;
. our Bylaws, as amended; and
. the Delaware General Corporation law (the Delaware Law)
may have the effect of delaying, discouraging, inhibiting, preventing or
rendering more difficult an attempt to obtain control of Sunrise by means
of a tender offer, business combination, proxy contest or otherwise. These
provisions include:
. charter authorization of "blank check" preferred stock,
. classification of the Board of Directors,
. restriction on the ability of the stockholders to take actions
by written consent, and
. a Delaware Law provision imposing restrictions on business
combinations with certain interested parties.
In addition, we adopted a Stockholder Rights Plan. Under this Plan,
each issued and outstanding share of our common stock has associated with
it one right to purchase a share of our common stock from us at a price of
$70, subject to adjustment. These rights will be exercisable if a person
or group either:
. acquires beneficial ownership of 15% or more of the Company; or
. commences a tender or exchange offer upon consummation of which
such person or group would beneficially own 15% or more of the Common
Stock.
<PAGE>
We will be entitled to redeem the rights at $.001 per right at any
time until ten days following a public announcement that a 15% position has
been acquired.
THE MARKET PRICE OF OUR STOCK HAS HISTORICALLY BEEN VOLATILE
The volatility of our common stock imposes a greater risk of capital
losses on stockholders as compared to less volatile stocks. In addition,
such volatility makes it difficult to ascribe a stable valuation to a
stockholder's holdings of our common stock. Factors such as announcements
of technological innovations, changes in marketing, product pricing and
sales strategies or new products by our competitors, changes in domestic or
foreign governmental regulations or regulatory approval processes,
developments or disputes relating to patent or proprietary rights and
public concern as to the safety and efficacy of the procedures for which
the LTK system is used, have and may continue to have a significant impact
on the market price of our common stock. Moreover, the possibility exists
that the stock market (and in particular the securities of technology
companies such as ours) could experience extreme price and volume
fluctuations unrelated to operating performance.
FORWARD-LOOKING STATEMENTS
Sunrise Technologies International, Inc. makes statements in this
Prospectus and the documents incorporated by reference that are considered
forward-looking statements within the meaning of the Securities Act of 1933
and the Securities Exchange Act of 1934. The Private Securities Litigation
Reform Act of 1995 contains the safe harbor provisions that cover these
forward-looking statements. We are including this statement for purposes
of complying with these safe harbor provisions. We base these forward-
looking statements on our current expectations and projections about future
events. These forward-looking statements are not guarantees of future
performance and are subject to risks, uncertainties and assumptions
including, among other things:
. continued losses and cash flow deficits;
. the continued availability of financing in the amounts, at the
times and on the terms required to support our future business;
. inability to receive appropriate regulatory approval from the
Food and Drug Administration;
. uncertain market acceptance of our products;
. safety, efficacy and patent concerns regarding our products and
technology;
. competition;
. reliance on key personnel; and
. unforeseen operational difficulties and financial losses due to
year 2000 computer problems.
Words such as "expect," "anticipate," "intend," "plan," "believe,"
"estimate" and variations of such words and similar expressions are
intended to identify such forward-looking statements. We undertake no
obligation to publicly update or revise any forward-looking statements,
whether as a result of new information, future events or otherwise.
Because of these risks, uncertainties and assumptions, the forward-looking
events discussed or incorporated by reference in this document may not
occur.
<PAGE>
USE OF PROCEEDS
We will not receive any proceeds from the sale of shares of common
stock by the selling securityholders.
SELLING SECURITYHOLDERS
The shares of common stock offered herein represent shares that have
been or may be acquired upon conversion of debentures or exercise of
warrants issued by us in private placements in January 2000 and warrants
issued as compensation in April 2000.
Absent registration under the Securities Act, the shares of common
stock offered herein are subject to certain limitations on resale. The
Registration Statement of which this Prospectus forms a part has been filed
in satisfaction of certain registration rights we granted to the
individuals and entities listed below.
The following table assumes that each of the individuals and entities
listed below will sell all of the common stock offered herein set forth
opposite such individual or entity's name. However, one or more of the
individuals or entities listed below may sell only a portion or may sell
none of the shares set forth opposite such individual or entity's name.
Common Shares Common Shares
Beneficially Owned Beneficially Owned
Prior to the Number of After the Offering
Offering (1) Shares to (1)
------------------- be Sold --------------------
Number of Percent in the Number of Percent
Shares of Class Offering Shares of Class
--------- -------- --------- --------- --------
The Tailwind Fund,
Ltd. (2) 424,773 * 424,773 0 *
LBI Group, Inc. (3)1,415,907 3.0 1,415,907 0 *
Jeddy Development
Inc. (4) 566,363 1.2 566,363 0 *
Donald R. Sanders,
M.D., Ph.D.(5)(14)1,007,259 2.2 526,545 480,714
1.0
Donald R. Sanders
IRA, CIBC
Oppenheimer,
Custodian (6) 212,228 * 198,228 14,000 *
Monica Sanders (7) 28,318 * 28,318 0 *
Kendra Sanders (8) 28,318 * 28,318 0 *
Wanda Sanders IRA,
CIBC Oppenheimer,
Custodian (9) 84,954 * 84,954 0 *
Meyer Tempkin (10) 56,636 * 56,636 0 *
Charles D.
Kelman, M.D. (11) 313,182 * 283,182 30,000 *
Andrew V.
Riccioni (12) 5,100 * 5,100 0 *
Carlton M Johnson,
Jr. (12) 7,000 * 7,000 0 *
Charles M. Whiteman
(12) 5,000 * 5,000 0 *
Dwight B. Bronnum
(12) 2,500 * 2,500 0 *
Eric S. Swartz (12) 30,100 * 29,100 1,000 *
David H. Sitton (12) 7,500 * 7,500 0 *
Dana M. Dupree (12) 2,500 * 2,500 0 *
Glenn R. Archer (12) 2,000 * 2,000 0 *
H. Nelson Logan (12) 1,000 * 1,000 0 *
James D. Mills (12) 1,000 * 1,000 0 *
<PAGE>
Common Shares Common Shares
Beneficially Owned Beneficially Owned
Prior to the Number of After the Offering
Offering (1) Shares to (1)
------------------- be Sold --------------------
Number of Percent in the Number of Percent
Shares of Class Offering Shares of Class
--------- -------- --------- --------- --------
Kendrick Family
Partnership, L.P.
(12) 29,100 * 29,100 0 *
Michael E. Stough
(12) 1,700 * 1,700 0 *
P. Bradford Hathorn
(12) 4,000 * 4,000 0 *
Robert L. Hopkins
(12) 2,500 * 2,500 0 *
Alan H. Magazine (13) 57,190 * 40,000 17,190 *
_________________
* Less than one percent.
(1) Determined as of March 10, 2000.
(2) Shares shown as beneficially owned and as to be sold in the offering
include 253,566 shares issuable upon conversion of a 7% convertible
debenture at a conversion price of $5.9156 per share, 44,423 shares
issuable in respect of interest on the debenture, assuming the debenture is
held to maturity on June 30, 2002, 63,392 shares issuable upon exercise of
a warrant at an exercise price of $6.803 per share, which expires January
10, 2005, and 63,392 shares issuable upon exercise of a warrant at an
exercise price of $6.803 per share, which expires January 10, 2002.
(3) Shares shown as beneficially owned and as to be sold in the offering
include 845,219 shares issuable upon conversion of a 7% convertible
debenture at a conversion price of $5.9156 per share, 148,078 shares
issuable in respect of interest on the debenture, assuming the debenture is
held to maturity on June 30, 2002, 211,305 shares issuable upon exercise of
a warrant at an exercise price of $6.803 per share, which expires January
10, 2005, and 211,305 shares issuable upon exercise of a warrant at an
exercise price of $6.803 per share, which expires January 10, 2002.
(4) Shares shown as beneficially owned and as to be sold in the offering
include 338,088 shares issuable upon conversion of a 7% convertible
debenture at a conversion price of $5.9156 per share, 59,231 shares
issuable in respect of interest on the debenture, assuming the debenture is
held to maturity on June 30, 2002, 84,522 shares issuable upon exercise of
a warrant at an exercise price of $6.803 per share, which expires January
10, 2005, and 84,522 shares issuable upon exercise of a warrant at an
exercise price of $6.803 per share, which expires January 10, 2002.
(5) Shares shown as beneficially owned and as to be sold in the offering
include 135,235 shares issuable upon conversion of a 7% convertible
debenture at a conversion price of $5.9156 per share, 23,692 shares
issuable in respect of interest on the debenture, assuming the debenture is
held to maturity on June 30, 2002, 33,809 shares issuable upon exercise of
a warrant at an exercise price of $6.803 per share, which expires January
10, 2005, 33,809 shares issuable upon exercise of a warrant at an exercise
price of $6.803 per share, which expires January 10, 2002 and 300,000
shares issuable upon exercise of a warrant at an exercise price of $4.66
per share, which expires April 4, 2005.
<PAGE>
(6) Shares shown as beneficially owned and as to be sold in the offering
include 118,331 shares issuable upon conversion of a 7% convertible
debenture at a conversion price of $5.9156 per share, 20,731 shares
issuable in respect of interest on the debenture, assuming the debenture is
held to maturity on June 30, 2002, 29,583 shares issuable upon exercise of
a warrant at an exercise price of $6.803 per share, which expires January
10, 2005, and 29,583 shares issuable upon exercise of a warrant at an
exercise price of $6.803 per share, which expires January 10, 2002.
(7) Shares shown as beneficially owned and as to be sold in the offering
include 16,904 shares issuable upon conversion of a 7% convertible
debenture at a conversion price of $5.9156 per share, 2,962 shares issuable
in respect of interest on the debenture, assuming the debenture is held to
maturity on June 30, 2002, 4,226 shares issuable upon exercise of a warrant
at an exercise price of $6.803 per share, which expires January 10, 2005,
and 4,226 shares issuable upon exercise of a warrant at an exercise price
of $6.803 per share, which expires January 10, 2002.
(8) Shares shown as beneficially owned and as to be sold in the offering
include 16,904 shares issuable upon conversion of a 7% convertible
debenture at a conversion price of $5.9156 per share, 2,962 shares issuable
in respect of interest on the debenture, assuming the debenture is held to
maturity on June 30, 2002, 4,226 shares issuable upon exercise of a warrant
at an exercise price of $6.803 per share, which expires January 10, 2005,
and 4,226 shares issuable upon exercise of a warrant at an exercise price
of $6.803 per share, which expires January 10, 2002.
(9) Shares shown as beneficially owned and as to be sold in the offering
include 50,713 shares issuable upon conversion of a 7% convertible
debenture at a conversion price of $5.9156 per share, 8,885 shares issuable
in respect of interest on the debenture, assuming the debenture is held to
maturity on June 30, 2002, 12,678 shares issuable upon exercise of a
warrant at an exercise price of $6.803 per share, which expires January 10,
2005, and 12,678 shares issuable upon exercise of a warrant at an exercise
price of $6.803 per share, which expires January 10, 2002.
(10) Shares shown as beneficially owned and as to be sold in the offering
include 33,809 shares issuable upon conversion of a 7% convertible
debenture at a conversion price of $5.9156 per share, 5,923 shares issuable
in respect of interest on the debenture, assuming the debenture is held to
maturity on June 30, 2002, 8,452 shares issuable upon exercise of a warrant
at an exercise price of $6.803 per share, which expires January 10, 2005,
and 8,452 shares issuable upon exercise of a warrant at an exercise price
of $6.803 per share, which expires January 10, 2002.
(11) Shares shown as beneficially owned and as to be sold in the offering
include 169,044 shares issuable upon conversion of a 7% convertible
debenture at a conversion price of $5.9156 per share, 29,616 shares
issuable in respect of interest on the debenture, assuming the debenture is
held to maturity on June 30, 2002, 42,261 shares issuable upon exercise of
a warrant at an exercise price of $6.803 per share, which expires January
10, 2005, and 42,261 shares issuable upon exercise of a warrant at an
exercise price of $6.803 per share, which expires January 10, 2002. Shares
beneficially owned also include options to purchase 30,000 shares of common
stock at a price of $3.80 per share.
(12) Consists of shares issuable upon exercise of a warrant at an exercise
price of $10.68 per share, which expires January 10, 2005.
(13) Includes 40,000 shares issuable upon exercise of a warrant at an
exercise price of $3.80 per share, which expires August 9, 2004.
<PAGE>
PLAN OF DISTRIBUTION
Some or all of the common stock offered herein may be offered for
sale and sold from time to time by the individuals and entities listed
above in the over-the-counter market (or any national securities exchange
or interdealer quotation system on which the common stock may then be
listed), or in privately negotiated transactions (which may include block
transactions) or otherwise. In addition, the individuals and entities
listed above may engage in short sales and other transactions in the common
stock or derivatives thereof, and may pledge, sell, deliver or otherwise
transfer the common stock offered herein in connection therewith. This
Prospectus may be used by the individuals and entities listed above or by
any broker-dealer who may participate in sales of the common stock offered
herein. Participating broker-dealers may act as agents or principals or
both and may receive commissions, discounts or concessions in connection
with sales or other transfers of the common stock offered herein. We have
not entered into any agreements or arrangements relating to the sale of the
common stock offered herein.
We have agreed to pay the expenses of registering the common stock
offered herein on behalf of the individuals and entities listed above,
other than broker-dealer commissions, discounts or concessions and any
legal fees incurred by the individuals and entities listed above in
connection with sales of the common stock offered herein. Sunrise and the
individuals and entities listed above have agreed to indemnify each other
against certain liabilities, including liabilities under the Securities
Act.
EXPERTS
The financial statements incorporated in this Registration Statement
by reference to the Annual Report on Form 10-K for the year ended
December 31, 1999 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
LEGAL MATTERS
Certain legal matters with respect to the validity of the common stock
will be passed upon for Sunrise by Duane Morris & Heckscher LLP, Chicago,
Illinois. Eric M. Fogel, a partner with the law firm of Duane Morris &
Heckscher LLP, is presently the Secretary of Sunrise and certain of such
firm's partners own an aggregate of 20,000 shares of common stock.
INDEMNIFICATION
Section 102(b)(7) of the General Corporation Law of the State of
Delaware grants corporations the right to limit or eliminate the personal
liability of their directors in certain circumstances in accordance with
provisions therein set forth. Our Certificate of Incorporation contains a
provision eliminating director liability to Sunrise and its stockholders
for monetary damages for breach of fiduciary duty as a director. The
provision does not, however, eliminate or limit the personal liability of a
director:
. for any breach of such director's duty of loyalty to Sunrise or
its stockholders;
. for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
. under the Delaware statutory provision making directors
personally liable, for improper payment of dividends or improper stock
purchases or redemptions; or
. for any transaction from which the director derived an improper
personal benefit.
<PAGE>
This provision offers persons who serve on our board of directors
protection against awards of monetary damages resulting from breaches of
their duty of care (except as indicated above). As a result of this
provision, our ability or our stockholder's ability to successfully
prosecute an action against a director for a breach of his duty of care is
limited. However, the provision does not affect the availability of
equitable remedies such as an injunction or rescission based upon a
director's breach of his duty of care. The SEC has taken the position that
the provision will have no effect on claims arising under federal
securities laws.
Section 145 of the Delaware law grants corporations the right to
indemnify their directors, officers, employees and agents in accordance
with the provisions therein set forth. Our By-laws provide that we shall,
subject to limited exceptions, indemnify our directors and executive
officers to the fullest extent not prohibited by the Delaware Law. Our By-
laws provide further that we shall have the power to indemnify our other
officers, employees and other agents as set forth in the Delaware law. Such
indemnification rights include reimbursement for expenses incurred by such
director, executive officer, other officer, employee or agent in advance of
the final disposition of such proceeding in accordance with the applicable
provisions of the Delaware law.
We have entered into agreements with certain of our directors and
officers pursuant to which we have agreed to indemnify such directors and
officers to the fullest extent permitted under applicable law. In addition,
our has purchased insurance containing customary terms and conditions as
permitted by law on behalf of its directors and officers, which may cover
liabilities under the Securities Act. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to our
directors, officers and controlling persons pursuant to these provisions,
or otherwise, Sunrise has been advised that, in the opinion of the SEC,
such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the
Securities and Exchange Commission. Our SEC filings are also available
over the Internet at the SEC's web site at http://www.sec.gov. You may
also read and copy any document we file at the SEC's public reference rooms
in Washington, D.C., New York, New York and Chicago, Illinois. Please call
the SEC at 1-800-SEC-0330 for more information on the public reference
rooms.
INCORPORATION OF INFORMATION WE FILE WITH THE SEC
The SEC allows us to "incorporate by reference" the information we
file with them, which means:
. incorporated documents are considered part of the Prospectus;
. we can disclose important information to you by referring you
to those documents; and
. information that we file with the SEC will automatically update
and supersede the Prospectus.
We are incorporating by reference the documents listed below which
were filed with the SEC under the Exchange Act:
. Annual Report on Form 10-K for the year ended December 31,
1999, incorporated by reference in such report;
. Current Report on Form 8-K, filed January 14, 2000;
. Current Report on Form 8-K, filed March 6, 2000;
<PAGE>
. Definitive proxy statement filed under Section 14 of the
Exchange Act in connection with the stockholders' meeting to be held on
June 8, 2000.
We also incorporate by reference each of the following documents that
we will file with the SEC after the date of the Prospectus but before the
end of the offering:
. Reports filed under Sections 13(a) and (c) of the Exchange Act;
. Definitive proxy or information statements filed under
Section 14 of the Exchange Act in connection with any subsequent
stockholders' meeting; and
. Any reports filed under Section 15(d) of the Exchange Act.
You may request a copy of these filings, at no cost, by contacting us
at the following address or phone number:
Sunrise Technologies International, Inc.
Attn: Ms. Sylvia Ward
Assistant Controller
3400 West Warren Avenue
Fremont, California 94538
Tel: (510) 623-9001
http://www.sunrise-tech.com
You should rely only on the information incorporated by reference or
provided in this Prospectus or any supplement. We have not authorized
anyone else to provide you with different information. The selling
securityholders will not make an offer of these shares in any state where
the offer is not permitted. You should not assume that the information in
this Prospectus or any supplement is accurate as of any date other than the
date on the front of these documents.
This Prospectus is part of a Registration Statement we filed with the
SEC (Registration No. 333-_______).
<PAGE>
======================================================================
We have not authorized any dealer, salesperson or other person to give any
information or represent anything not contained in this Prospectus. You
must not rely on any unauthorized information. If anyone provides you with
different or inconsistent information, you should not rely on it. This
Prospectus does not offer to sell any shares in any jurisdiction where it
is unlawful. The information in this Prospectus is current as of the date
shown on the cover page.
3,753,224 Shares
SUNRISE TECHNOLOGIES INTERNATIONAL, INC.
Common Stock
--------------------
Prospectus
--------------------
April __, 2000
======================================================================
<PAGE>
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by Sunrise in connection
with the sale of the common stock being registered. All amounts are
estimates except the registration fee.
Amount to be
Paid
------------
SEC Registration Fee. . . . . . . . . . . . . . . $ 7,245.60
Printing. . . . . . . . . . . . . . . . . . . . . 5,000.00
Legal Fees and Expenses . . . . . . . . . . . . . 25,000.00
Accounting Fees and Expenses. . . . . . . . . . . 15,000.00
Blue Sky Fees and Expenses. . . . . . . . . . . . 15,000.00
Transfer Agent and Registrar Fees.. . . . . . . . 5,000.00
Miscellaneous . . . . . . . . . . . . . . . . . . 1,089.73
----------
Total . . . . . . . . . . . . . . . . . . $73,335.33
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b)(7) of the General Corporation Law of the State of
Delaware (the "Delaware Law") grants corporations the right to limit or
eliminate the personal liability of their directors in certain
circumstances in accordance with provisions therein set forth. Our
Certificate of Incorporation contains a provision eliminating director
liability to Sunrise and its stockholders for monetary damages for breach
of fiduciary duty as a director. The provision does not, however, eliminate
or limit the personal liability of a director: (i) for any breach of such
director's duty of loyalty to Sunrise or its stockholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under the Delaware statutory provision
making directors personally liable, for improper payment of dividends or
improper stock purchases or redemptions; or (iv) for any transaction from
which the director derived an improper personal benefit. This provision
offers persons who serve on our Board of Directors protection against
awards of monetary damages resulting from breaches of their duty of care
(except as indicated above). As a result of this provision, our ability or
a stockholder's ability to successfully prosecute an action against a
director for a breach of his duty of care is limited. However, the
provision does not affect the availability of equitable remedies such as an
injunction or rescission based upon a director's breach of his duty of
care. The SEC has taken the position that the provision will have no effect
on claims arising under federal securities laws.
Section 145 of the Delaware Law grants corporations the right to
indemnify their directors, officers, employees and agents in accordance
with the provisions therein set forth. Sunrise's By-laws provide that the
corporation shall, subject to limited exceptions, indemnify its directors
and executive officers to the fullest extent not prohibited by the Delaware
Law. Sunrise's By-laws provide further that Sunrise shall have the power to
indemnify its other officers, employees and other agents as set forth in
the Delaware Law. Such indemnification rights include reimbursement for
expenses incurred by such director, executive officer, other officer,
employee or agent in advance of the final disposition of such proceeding in
accordance with the applicable provisions of the Delaware Law.
<PAGE>
Sunrise has entered into agreements with certain of its directors and
officers pursuant to which Sunrise has agreed to indemnify such directors
and officers to the fullest extent permitted under applicable law. In
addition, Sunrise has purchased insurance containing customary terms and
conditions as permitted by law on behalf of its directors and officers,
which may cover liabilities under the Securities Act. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of Sunrise
pursuant to these provisions, or otherwise, Sunrise has been advised that,
in the opinion of the SEC, such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
ITEM 16. EXHIBITS
Exhibit Description
- ------- -----------
3.1 Certificate of Incorporation, as amended (1)
3.2 Bylaws (1)
4.1 Form of Rights Agreement, dated as of October 24, 1997,
between Sunrise and ChaseMellon Shareholder Services, LLC, as rights agent
(2)
4.2 Form of Amendment to Rights Agreement, dated as of
May 13, 1999, between Sunrise and ChaseMellon Shareholder Services, LLC (3)
4.3 Form of 7% Convertible Debenture dated January 11, 2000
(4)
4.4 Form of A Warrant dated January 11, 2000 (4)
4.5 Form of B Warrant dated January 11, 2000 (4)
4.6 Warrant dated January 11, 2000 issued to Dunwoody
Brokerage Services, Inc. (5)
5.1 Opinion of Duane Morris & Heckscher LLP as to the
legality of the Offered Shares being registered
10.1 Purchase Agreement dated January 11, 2000 between the
Company and The Tail Wind Fund, Ltd., LBI Group Inc., Jeddy Development
Inc., Donald Sanders MD, Ph.D., Donald Sanders, IRA, CIBC Oppenheimer Corp
as Custodian, Monica Sanders, Kendra Sanders, Wanda Sanders, IRA, CIBC
Oppenheimer Corp as Custodian, Meyer Temkin, and Charles D. Kelman, MD
(collectively, the "Investors") (4)
10.2 Registration Rights Agreement dated January 11, 2000
between the Company and the Investors (4)
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants
23.3 Consent of Duane, Morris & Heckscher LLP (Included in
Exhibit 5.1)
24.1 Power of Attorney (Included on the Signature Page)
- ---------------
(1) Incorporated by reference from the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1994 (File No. 0-
17816)
<PAGE>
(2) Incorporated by reference from the Registrant's Current
Report on Form 8-K dated October 24, 1997 (File No. 0-17816)
(3) Incorporated by reference from the Registrant's Current
Report on Form 8-K dated September 30, 1999 (File No. 0-17816)
(4) Incorporated by reference from the Registrant's Current
Report on Form 8-K dated January 11, 2000 (File No.0-17816)
(5) Incorporated by reference from the Registrant's Annual
Report on Form 8-K for the year ended December 31, 1999 (File N0. 0-17816).
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a) 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 of 1933;
(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 the 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 and 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 a 20 percent 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;
Provided, however, that paragraphs (a) (i) and A (ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933; 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.
(c) 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.
<PAGE>
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement 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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the SEC,
such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this amended
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Fremont, state of California, on
April 11, 2000.
Sunrise Technologies International, Inc.
By: /s/ C. Russell Trenary, III
----------------------------------------
C. Russell Trenary, III
President and Chief Executive Officer
POWERS OF ATTORNEY
Each person whose signature appears below hereby appoints C. Russell
Trenary, III and Eric M. Fogel, and each of them severally, acting alone
and without the other, his true and lawful attorney-in-fact with authority
to execute in the name of each such person, and to file with the SEC,
together with any exhibits thereto and other documents therewith, any and
all amendments (including without limitation post-effective amendments) to
this Registration Statement, and to sign any registration statement for the
same offering covered by this Registration Statement that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act,
necessary or advisable to enable the registrant to comply with the
Securities Act and any rules, regulations and requirements of the SEC in
respect thereof, which amendments may make such changes in this
Registration Statement as the aforesaid attorney-in-fact deems appropriate.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
Date:April 11, 2000 /s/ C. Russell Trenary, III
--------------------------------------
C. Russell Trenary, III
President, Chief Executive Officer
and Director
(Principal Executive Officer)
Date:April 11, 2000 /s/ Peter E. Jansen
--------------------------------------
Peter E. Jansen
Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
Date:April 11, 2000 /s/ Joseph D. Koenig
--------------------------------------
Joseph D. Koenig
Chairman of the Board and Director
Date:April 11, 2000 /s/ R. Dale Bowerman
--------------------------------------
R. Dale Bowerman
Director
<PAGE>
Date:April 11, 2000 /s/ Michael S. McFarland, M.D.
--------------------------------------
Michael S. McFarland, M.D.
Director
Date:April 11, 2000 /s/ Alan H. Magazine
--------------------------------------
Alan H. Magazine
Director
<PAGE>
EXHIBIT INDEX
Exhibit Description
- ------- -----------
3.2 Certificate of Incorporation, as amended (1)
3.2 Bylaws (1)
4.3 Form of Rights Agreement, dated as of October 24, 1997,
between Sunrise and ChaseMellon Shareholder Services, LLC, as rights agent
(2)
4.2 Form of Amendment to Rights Agreement, dated as of
May 13, 1999, between Sunrise and ChaseMellon Shareholder Services, LLC (3)
4.3 Form of 7% Convertible Debenture dated January 11, 2000
(4)
4.4 Form of A Warrant dated January 11, 2000 (4)
4.5 Form of B Warrant dated January 11, 2000 (4)
4.6 Warrant dated January 11, 2000 issued to Dunwoody
Brokerage Services, Inc. (5)
5.1 Opinion of Duane Morris & Heckscher LLP as to the
legality of the Offered Shares being registered
10.1 Purchase Agreement dated January 11, 2000 between the
Company and The Tail Wind Fund, Ltd., LBI Group Inc., Jeddy Development
Inc., Donald Sanders MD, Ph.D., Donald Sanders, IRA, CIBC Oppenheimer Corp
as Custodian, Monica Sanders, Kendra Sanders, Wanda Sanders, IRA, CIBC
Oppenheimer Corp as Custodian, Meyer Temkin, and Charles D. Kelman, MD
(collectively, the "Investors") (4)
10.2 Registration Rights Agreement dated January 11, 2000
between the Company and the Investors (4)
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants
23.3 Consent of Duane, Morris & Heckscher (Included in
Exhibit 5.1)
24.1 Power of Attorney (Included on the Signature Page)
_____________________
(1) Incorporated by reference from the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1994 (File No. 0-17816)
(2) Incorporated by reference from the Registrant's Current Report on
Form 8-K dated October 24, 1997 (File No. 0-17816)
(3) Incorporated by reference from the Registrant's Current Report on
Form 8-K dated September 30, 1999 (File No. 0-17816)
(4) Incorporated by reference from the Registrant's Current Report on
Form 8-K dated January 11, 2000 (File No. 0-17816)
(5) Incorporated by reference from the Registrant's Annual Report on
Form 8-K for the year ended December 31, 1999 (File No. 0-17186)
EXHIBIT 5.1
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DUANE, MORRIS & HECKSCHER LLP
ATTORNEYS AT LAW
227 WEST MONROE
SUITE 3400
CHICAGO, ILLINOIS 60606
(312) 499-6700
TELECOPIER (312) 499-6701
OPINION OF DUANE, MORRIS & HECKSCHER LLP
April 11, 2000
Sunrise Technologies International, Inc.
3400 West Warren Avenue
Fremont, California 94538
Ladies and Gentlemen:
We have acted as special counsel for Sunrise Technologies
International, Inc., a Delaware corporation (the "Company"), in connection
with the Registration Statement on Form S-3 (the "Registration Statement")
which the Company is filing under the Securities Act of 1933, as amended
(the "Act") with respect to 3,753,224 shares (the "Shares") of the
Company's common stock (the "Common Stock"), which may be disposed of from
time to time by the selling securityholders (the "Selling Securityholders")
named therein.
In connection with the preparation of the Registration Statement and
this letter, we have examined, considered and relied solely upon the
following documents (collectively, the "Documents"): the Registration
Statement; the Company's Amended and Restated Certificate of Incorporation
as filed with the Secretary of State of the State of Delaware; Bylaws; a
Certificate of Good Standing of the Company issued by the Secretary of
State of the State of Delaware; certain minutes of the meetings of the
Company's Board of Directors; a Purchase Agreement between certain Selling
Securityholders and the Company, the forms of convertible debentures and
warrants issued to the Selling Securityholders and such Company records,
certificates and other documents and such matters of law as we have
considered necessary or appropriate for the expression of the opinions
contained herein.
In rendering the opinions set forth below, we have assumed without
investigation the genuineness of all signatures and the authenticity of all
documents submitted to us as originals, the conformity to authentic
original documents of all documents submitted to us as copies, and the
veracity of the Documents. We would call your attention to the fact that
Eric M. Fogel, a partner of this law firm, also acts as the Secretary of
the Company and certain of our firm's partners, including Mr. Fogel, own
shares of the Company's Common stock.
Based solely upon and subject to the Documents, and subject to the
qualifications set forth below, we are of the opinion that the Shares have
been duly authorized, and when the Registration Statement becomes effective
under the Act and upon the due execution, counter signature and delivery of
certificates representing the shares of Common Stock, upon conversion of
the applicable convertible debentures and exercise of the applicable
warrants, the Common Stock will be validly issued, fully paid and non-
assessable.
<PAGE>
Although we have acted as counsel to the Company in connection with
certain other matters, our engagement is limited only to matters which have
been specifically referred to us. Consequently, there may exist matters of
a legal nature involving the Company in connection with which we have not
been consulted and have not represented the Company. This opinion letter
is limited to the matters stated herein and no opinions may be implied or
inferred beyond the matters expressly stated herein. The opinions
expressed herein are as of the date hereof, and we assume no obligation to
update or supplement such opinions to reflect any facts or circumstances
that may hereafter come to our attention or any changes in law that may
hereafter occur.
This opinion is solely for the information of the addressee hereof and
the purchasers of the Shares, and is not to be quoted in whole or in part
or otherwise referred to, nor is it to be filed with any governmental
agency or other person without a prior written consent. Other than the
addressee, the purchasers of the Common Stock and ChaseMellon Shareholder
Services, L.L.C., no one is entitled to rely on this opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Legal
Matters" in the Prospectus contained in the Registration Statement.
Very truly yours,
/s/ Duane, Morris & Heckscher LLP
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DUANE, MORRIS & HECKSCHER LLP
EXHIBIT 23.1
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CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of our report dated February 11, 2000
relating to the financial statements and financial statement schedule,
which appears in Sunrise Technologies International, Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1999. We also consent to the
reference to us under the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
San Jose, California
April 11, 2000
