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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 15, 2000
REGISTRATION NO. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
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FORM S-3
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REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SUNRISE TECHNOLOGIES INTERNATIONAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 77-0148208
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
ORGANIZATION)
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3400 WEST WARREN AVENUE
FREMONT, CALIFORNIA 94538
(510) 623-9001
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
C. RUSSELL TRENARY, III
3400 WEST WARREN AVENUE
FREMONT, CALIFORNIA 94538
(510) 623-9001
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
WITH COPIES TO:
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ERIC M. FOGEL, ESQ. JOHN W. KAUFFMAN, ESQ.
DUANE, MORRIS & HECKSCHER LLP DUANE, MORRIS & HECKSCHER LLP
227 WEST MONROE, SUITE 3400 ONE LIBERTY PLACE
CHICAGO, ILLINOIS 60606 PHILADELPHIA, PENNSYLVANIA 19103-7396
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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. [ ]
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. [ ]
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITY TO BE REGISTERED REGISTERED OFFERING PRICE(1) AGGREGATE OFFERING PRICE REGISTRATION FEE(1)
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Common stock, par value $.001
per share................... 2,800,000 $3.375 $9,450,000 $2,494.80
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(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 December
12, 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.
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PROSPECTUS
2,800,000 Shares
SUNRISE TECHNOLOGIES INTERNATIONAL, INC.
Common Stock
This prospectus will allow us to issue common stock over time. This means:
- we will provide a prospectus supplement each time we issue common stock;
- the prospectus supplement will inform you about the specific terms of
that offering and also may add, update or change information contained in
this document;
- you should read this document and any prospectus supplement carefully
before you invest; and
- this prospectus may not be used to offer or sell the common stock unless
accompanied by a prospectus supplement.
Our common stock is quoted on The Nasdaq National Market under the symbol
"SNRS". On December 13, 2000, the last reported sale price of the common stock
was $3.90625 per share.
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD
PURCHASE SHARES OF OUR COMMON STOCK ONLY IF YOU CAN AFFORD A COMPLETE LOSS. SEE
"RISK FACTORS" BEGINNING ON PAGE 2.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this Prospectus is December 15, 2000
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TABLE OF CONTENTS
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PAGE
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ABOUT THIS PROSPECTUS....................................... 1
ABOUT SUNRISE............................................... 1
RISK FACTORS................................................ 2
FORWARD-LOOKING STATEMENTS.................................. 7
USE OF PROCEEDS............................................. 7
PLAN OF DISTRIBUTION........................................ 8
EXPERTS..................................................... 8
LEGAL MATTERS............................................... 8
WHERE YOU CAN FIND MORE INFORMATION......................... 8
INCORPORATION OF INFORMATION WE FILE WITH THE SEC........... 9
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We have not authorized any dealer, salesperson or other person to give any
information or represent anything not contained in this prospectus. You should
not rely on any unauthorized information. This prospectus does not constitute an
offer to sell or buy any shares in any jurisdiction in which it is unlawful. The
information in this prospectus is current as of the date on the cover.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission using a "shelf" registration process. Under
this shelf process, we may from time to time sell any number of the shares of
our common stock in one or more offerings up to a total of 2,800,000 shares.
Each time we sell shares of our common stock, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should read both this prospectus and any
prospectus supplement together with the additional information described below
under the heading "Where You Can Find More Information."
The registration statement that contains this prospectus, including the
exhibits to the registration statement and the information incorporated by
reference, contains additional information about the common stock offered under
this prospectus. The registration statement can be read at the Securities and
Exchange Commission's web site or at the Securities and Exchange Commission
offices mentioned below under the heading "Where You Can Find More Information."
You should rely only on the information provided in this prospectus and in
any prospectus supplement, including the information incorporated by reference.
We have not authorized anyone to provide you with different information. You
should not assume that the information in this prospectus, or any supplement to
this prospectus, is accurate at any date other than the date indicated on the
cover page of these documents.
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.
Our Hyperion(TM) LTK Laser System is based upon patented technology acquired in
our acquisitions of in-process technology from Laser Biotech, Inc. and
Emmetropix Corporation in 1992. We develop holmium laser-based systems that
utilize a patented process for shrinking collagen developed by Dr. Bruce Sand,
which we refer to as the "Sand Process," in correcting ophthalmic conditions.
On June 30, 2000 the Food and Drug Administration, or FDA, gave final
approval for our Hyperion(TM) LTK Laser System in the United States for the
temporary reduction of low to moderate hyperopia, where some patients retain
some or all of their refractive correction, with conditions relating to labeling
regarding patient symptoms, longevity of effect and the effect of re-treatment.
We immediately began selling the Hyperion(TM) LTK Laser System in the United
States on June 30, 2000.
On December 11, 2000, the FDA agreed that based on existing information for
the clinical parameters used in the U.S. Clinical Trials for the Hyperion(TM)
LTK System, the model calculating the average longevity for the procedure
indicates that some of the effect lasts 10 years and beyond. The FDA also agreed
to change the labeling, pointing out that age related drift toward hyperopia is
a contributor to loss of effect after the initial two years. This drift is a
natural occurrence that has nothing to do with the Hyperion(TM) LTK System.
Our cash is seriously depleted due to our substantial losses during the
past eight years. Prior to FDA approval, sales of our existing ophthalmic
products have not been 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.
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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.
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 and have an accumulated deficit of
$113,056,000 as of September 30, 2000. Our current operations continue to be
cash flow negative, limiting our cash resources. Working capital at September
30, 2000 amounted to approximately $12,807,000. At December 31, 1999, working
capital amounted to approximately $5,756,000. We expended a significant amount
of cash during the first three quarters of 2000 in the ramp-up of manufacturing
capabilities, build-up of materials and components for the production of the
Hyperion(TM) LTK System and our market preparation for the launch on the
domestic and international markets.
We expect to expend additional cash resources into the first half of 2001
for the continued marketing of the Hyperion(TM) LTK System on the domestic and
international markets. Sales to the domestic market began subsequent to June 30,
2000 following the final FDA approval. Sales of the Hyperion(TM) LTK System can
also be made to certain international markets where it is approved by the local
regulatory authorities. However, given that this technology is new to the
market, and therefore unproven, there is no assurance that expected results will
be attained. If we continue to incur losses, and if revenue from sales or new
funds from debt or equity instruments are insufficient to maintain the current
and planned expenditure rate, it will be necessary to extensively curtail our
operations until we implement an appropriate solution. See "Risk
Factors -- There is no assurance future capital will be available to us;
additional capital will dilute the holdings of our stockholders."
THERE IS 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:
- Commence a subsequent public or private offering of common stock,
convertible debt or preferred stock; or
- 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,
any stockholders, who do 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.
We funded our negative cash flows during 1997, 1998, 1999 and 2000 by the
sale of additional equity and convertible debt with warrants. At September 30,
2000, after consummation of a notes placement in January (approximate net
proceeds of $11,200,000) and securing a $10,000,000 revolving line of credit
facility with a bank in June 2000, our cash and cash equivalents were
approximately $2,296,000.
There can be no assurance that we will not require additional capital. 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- operating requirements, we may
limit our operations until an appropriate solution is implemented, suspend our
operations in their entirety or, under certain circumstances, seek protection
from creditors.
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OUR HYPERION(TM) LTK SYSTEM IS SUBJECT TO STRINGENT ONGOING REGULATION BY THE
FDA AND SIMILAR HEALTH AUTHORITIES, AND IF THE FDA'S APPROVAL OF OUR PRE-MARKET
APPROVAL APPLICATION FOR OUR HYPERION(TM) LTK SYSTEM IS RESTRICTED OR REVOKED WE
COULD FACE DELAYS THAT WOULD IMPAIR OUR ABILITY TO GENERATE FUNDS FROM
OPERATIONS.
The FDA and similar health authorities in foreign countries extensively
regulate our activities. The FDA regulates the Hyperion(TM) LTK System under the
Food, Drug & Cosmetic Act as a Class III medical device. Class III medical
devices must have a premarket approval application, or PMA, approved by the FDA
before commercial sales in the United States commence. The PMA process (and
underlying clinical studies) has been lengthy and required substantial
commitments of our financial resources and our management's time and effort.
Restrictions on or revocation of the FDA approval would prevent the continued
marketing of the Hyperion(TM) LTK System and other devices. Consequently, FDA
revocation 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 obtain timely, if at all, the
required FDA approval for any future devices or expanded indications for our
currently approved product 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.
We have received a CE (European Community) Mark of approval on our
Hyperion(TM) LTK System 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 Hyperion(TM) 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 other products in the United States or foreign markets.
WE DEPEND ON THE HYPERION(TM) LTK SYSTEM AND MARKET ACCEPTANCE OF THAT SYSTEM IS
UNCLEAR.
We intend to continue to concentrate our efforts primarily on the continued
development of the Hyperion(TM) LTK System and will be dependent upon the
successful manufacturing and marketing of that system to generate revenues. We
have only recently introduced the Hyperion(TM) LTK System commercially in the
United States. There can be no assurance that the ophthalmic community or the
general population will accept the Hyperion(TM) 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 Hyperion(TM) 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,
- the possibility of unknown side effects,
- the degree of usage by the ophthalmic community as a treatment
alternative for hyperopia, or
- how quickly competitive companies can develop and obtain FDA approval for
novel treatment methods for hyperopia.
Promotional efforts by suppliers of products or procedures which are
alternatives to the Hyperion(TM) LTK System, including eyeglasses, contact
lenses and laser and non-laser surgical procedures, may also adversely affect
the marketplace for the Hyperion(TM) LTK System. Any failure to achieve broad
market
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acceptance of the Hyperion(TM) 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 HYPERION(TM) LTK
SYSTEM IS CURRENTLY AVAILABLE, BUT FUTURE COMPLICATIONS OR SIDE EFFECTS MAY
OCCUR.
We have developed substantial clinical data on the safety and efficacy of
the Hyperion(TM) LTK System in correcting hyperopia (farsightedness). Potential
complications and side effects reported in studies to date from the use of the
Hyperion(TM) 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.
We will continue to conduct further testing of the Hyperion(TM) LTK System
in clinical trials and submit the results to the FDA for approval of improvement
in the treatment of hyperopia and other conditions for which the Hyperion(TM)
LTK System is recommended.
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 Hyperion(TM) 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 Hyperion(TM) 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 Hyperion(TM) 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.
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
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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 EFFECT 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 Hyperion(TM) 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, Bausch & Lomb and Alcon are
the leading manufacturers of excimer refractive surgical systems. VISX, Bausch &
Lomb and Alcon and 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) or astigmatism.
Any alternative treatment offered by VISX, Bausch & Lomb or Alcon, however, will
have a competitive advantage because they already have established a base of
customers that are currently using their products.
WE MAY BECOME INVOLVED IN PRODUCT LIABILITY LITIGATION, WHICH MAY SUBJECT US TO
LIABILITY AND DIVERT MANAGEMENT ATTENTION.
The testing and marketing of laser systems for applications in
ophthalmology entail an inherent risk of product liability, which could result
in product liability or other claims based upon injuries or alleged injuries
associated with a defect in the product's performance and which may not become
evident for a number of years. Although we are not currently involved in any
product liability litigation, we may be a party to litigation in the future as a
result of an alleged claim. Litigation, regardless of the merits of the claim or
outcome, could consume a great deal of our time and money and would divert
management time and attention away from our core business. We maintain limited
product liability insurance coverage. We may be adversely affected by a
successful product liability claim in excess of any insurance coverage.
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There can be no assurance that product liability insurance coverage will
continue to be available to us in the future on reasonable terms or at all.
WE ARE DEPENDENT ON OUR MANAGEMENT AND KEY PERSONNEL TO SUCCEED.
Our principal executive officers and key personnel have extensive
experience with our Hyperion(TM) 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 manufacture, sell and market the product. Such events would
probably have a negative impact on our business and financial condition.
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 November 30, 2000, we had 50,725,914 shares
outstanding and 12,199,984 shares reserved for issuance upon exercise of options
and warrants or conversion of convertible notes.
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 requirements, developments or disputes relating to
patent or proprietary rights and public concern as to the safety and efficacy of
the procedures for which the Hyperion(TM) 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.
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 us 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;
- a 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.
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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 us; 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.
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.
FORWARD-LOOKING STATEMENTS
We make 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;
- continuing regulation by the FDA and any restrictions that the FDA may
impose on our products;
- uncertain market acceptance of our products;
- safety, efficacy and patent concerns regarding our products and
technology;
- competition; and
- reliance on key personnel.
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.
USE OF PROCEEDS
We cannot guarantee that we will receive any proceeds in connection with
this offering.
We intend to use the net proceeds of this offering, if any, for general
corporate purposes, including working capital to fund anticipated operating
losses, expenses and capital expenditures. As of the date of this prospectus, we
cannot specify with certainty the particular uses for the net proceeds, if any,
to be received upon consummation of this offering. Accordingly, our management
will have broad discretion in the application of any net proceeds received.
Pending such uses, we intend to invest the net proceeds, if any, from this
offering in short-term, interest-bearing, investment grade securities.
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PLAN OF DISTRIBUTION
We may offer the common stock:
- directly to purchasers;
- to or through underwriters;
- through dealers, agents or institutional investors; or
- through a combination of such methods.
Regardless of the method used to sell the common stock, we will provide a
prospectus supplement that will disclose:
- the identity of any underwriters, dealers, agents or investors who
purchase the common stock;
- the material terms of the distribution, including the number of shares
sold and the consideration paid;
- the amount of any compensation, discounts or commissions to be received
by the underwriters, dealers or agents;
- the terms of any indemnification provisions, including indemnification
from liabilities under the federal securities laws; and
- the nature of any transaction by an underwriter, dealer or agent during
the offering that is intended to stabilize or maintain the market price
of the common stock.
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 us by Duane Morris & Heckscher LLP, Chicago, Illinois. Eric
M. Fogel, a partner with the law firm of Duane Morris & Heckscher LLP, is
presently our Secretary and certain of such firm's partners own an aggregate of
20,000 shares of common stock.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the Securities
and Exchange Commission. Our Securities and Exchange Commission filings are also
available over the Internet at the Securities and Exchange Commission's web site
at http://www.sec.gov. You may also read and copy any document we file at the
Securities and Exchange Commission's public reference rooms in Washington, D.C.,
New York, New York and Chicago, Illinois. Please call the Securities and
Exchange Commission at 1-800-SEC-0330 for more information on the public
reference rooms.
8
<PAGE> 12
INCORPORATION OF INFORMATION WE FILE WITH THE SEC
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means:
- incorporated documents are considered part of this prospectus;
- we can disclose important information to you by referring you to those
documents; and
- information that we file with the Securities and Exchange Commission will
automatically update and supersede this prospectus.
We are incorporating by reference the documents listed below which were
filed with the Securities and Exchange Commission under the Securities Exchange
Act of 1934:
- Annual Report on Form 10-K for the year ended December 31, 1999;
- Current Report on Form 8-K filed January 14, 2000;
- Current Report on Form 8-K filed March 6, 2000;
- Current Report on Form 8-K filed July 17, 2000;
- Definitive proxy statement filed under Section 14 of the Securities
Exchange Act of 1934 in connection with the stockholders' meeting held on
June 8, 2000;
- Quarterly Report on Form 10-Q for the quarter ended March 31, 2000;
- Quarterly Report on Form 10-Q for the quarter ended June 30, 2000;
- Quarterly Report on Form 10-Q for the quarter ended September 30, 2000;
and
- The description of our common stock contained in our Registration
Statement on Form 8-A filed under the Securities Exchange Act of 1934,
including any amendment or report filed for the purpose of updating such
description.
We also incorporate by reference each of the following documents that we
will file with the Securities and Exchange Commission after the date of this
prospectus but before the end of the offering:
- Reports filed under Sections 13(a) and (c) of the Securities Exchange Act
of 1934;
- Definitive proxy or information statements filed under Section 14 of the
Securities Exchange Act of 1934 in connection with any subsequent
stockholders' meeting; and
- Any reports filed under Section 15(d) of the Securities Exchange Act of
1934.
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. We 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.
9
<PAGE> 13
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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.
2,800,000 Shares
SUNRISE TECHNOLOGIES
INTERNATIONAL, INC.
Common Stock
-------------------------
PROSPECTUS
-------------------------
DECEMBER 15, 2000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE> 14
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 the Registrant in connection
with the sale of the common stock being registered. All amounts are estimates
except the registration fee.
<TABLE>
<CAPTION>
AMOUNT TO BE
PAID
------------
<S> <C>
SEC Registration Fee........................................ $ 2,494.80
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............................................... 1,000.00
----------
Total..................................................... $68,494.80
==========
</TABLE>
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 us and our 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 us or our 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. Our 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. Our By-laws provide
further that the corporation 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.
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, we have purchased
insurance containing customary terms and conditions as permitted by law on
behalf of our directors and officers, which may cover liabilities under the
Securities Act of 1933. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of us pursuant to these provisions, or otherwise, we have
been advised that,
II-1
<PAGE> 15
in the opinion of the Securities and Exchange Commission, such indemnification
is against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------- -----------
<C> <S>
4.1 Form of Rights Agreement, dated as of October 24, 1997,
between the Registrant and ChaseMellon Shareholder Services,
LLC, as rights agent(1)
4.2 Form of Amendment to Rights Agreement, dated as of May 13,
1999, between the Registrant and ChaseMellon Shareholder
Services, LLC(2)
4.3 Form of 7% Convertible Debenture dated January 11, 2000(3)
4.4 Form of A Warrant dated January 11, 2000(3)
4.5 Form of B Warrant dated January 11, 2000(3)
4.6 Form of Warrant dated January 11, 2000 issued to Dunwoody
Brokerage Services, Inc.(4)
4.7 Form of 5% Convertible Subordinated Pay-In-Kind Note due
2001(5)
4.8 Form of Warrant to purchase common stock(5)
4.9 Form of Warrant dated as of June 16, 2000 issued to Bruce J.
Sand(6)
4.10 Form of Warrant dated as of June 16, 2000 issued to Edward
Vincent King, Jr.(6)
4.11 Certificate of Incorporation, as amended(7)
4.12 Bylaws(7)
5.1 Opinion of Duane Morris & Heckscher LLP as to the legality
of the shares being registered*
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants
23.2 Consent of Duane, Morris & Heckscher LLP (Included in
Exhibit 5.1)
24.1 Power of Attorney (Included on the Signature Page)
</TABLE>
-------------------------
* To be filed by amendment.
(1) Incorporated by reference from the Registrant's Current Report on Form 8-K
dated October 24, 1997
(2) Incorporated by reference from the Registrant's Current Report on Form 8-K
dated September 30, 1999
(3) Incorporated by reference from the Registrant's Current Report on Form 8-K
dated January 11, 2000
(4) Incorporated by reference from the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1999
(5) Incorporated by reference from the Registrant's Current Report on Form 8-K
dated January 1, 1999
(6) Incorporated by reference from the Registrant's Current Report on Form 8-K
filed with the commission on July 17, 2000
(7) Incorporated by reference from the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1994
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
II-2
<PAGE> 16
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 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.
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
of 1933 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 Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Securities Act
of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
II-3
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Fremont, state of California, on December 15, 2000.
SUNRISE TECHNOLOGIES
INTERNATIONAL, INC.
By: /s/ C. RUSSELL TRENARY, III
------------------------------------
C. Russell Trenary, III
Chairman of the Board, President
and Chief Executive Officer
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 Securities and
Exchange Commission, 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 of
1933, necessary or advisable to enable the registrant to comply with the
Securities Act of 1933 and any rules, regulations and requirements of the
Securities and Exchange Commission 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 of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Date: December 15, 2000 /s/ C. RUSSELL TRENARY, III
--------------------------------------
C. Russell Trenary, III
Chairman of the Board, President,
Chief Executive Officer and Director
(Principal Executive Officer)
Date: December 15, 2000 /s/ PETER E. JANSEN
--------------------------------------
Peter E. Jansen
Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
Date: December 15, 2000 /s/ JOHN N. HENDRICK
--------------------------------------
John N. Hendrick
Chief Operating Officer and Director
Date: December 15, 2000 /s/ R. DALE BOWERMAN
--------------------------------------
R. Dale Bowerman
Director
II-4
<PAGE> 18
Date: December 15, 2000 /s/ MICHAEL S. MCFARLAND, M.D.
--------------------------------------
Michael S. McFarland, M.D.
Director
Date: December 15, 2000 /s/ ALAN H. MAGAZINE
--------------------------------------
Alan H. Magazine
Director
II-5
<PAGE> 19
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------- -----------
<S> <C>
4.1 Form of Rights Agreement, dated as of October 24, 1997,
between the Registrant and ChaseMellon Shareholder Services,
LLC, as rights agent(1)
4.2 Form of Amendment to Rights Agreement, dated as of May 13,
1999, between the Registrant and ChaseMellon Shareholder
Services, LLC(2)
4.3 Form of 7% Convertible Debenture dated January 11, 2000(3)
4.4 Form of A Warrant dated January 11, 2000(3)
4.5 Form of B Warrant dated January 11, 2000(3)
4.6 Form of Warrant dated January 11, 2000 issued to Dunwoody
Brokerage Services, Inc.(4)
4.7 Form of 5% Convertible Subordinated Pay-In-Kind Note due
2001(5)
4.8 Form of Warrant to purchase common stock(5)
4.9 Form of Warrant dated as of June 16, 2000 issued to Bruce J.
Sand(6)
4.10 Form of Warrant dated as of June 16, 2000 issued to Edward
Vincent King, Jr.(6)
4.11 Certificate of Incorporation, as amended(7)
4.12 Bylaws(7)
5.1 Opinion of Duane Morris & Heckscher LLP as to the legality
of the shares being registered*
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants
23.2 Consent of Duane, Morris & Heckscher LLP (Included in
Exhibit 5.1)
24.1 Power of Attorney (Included on the Signature Page)
</TABLE>
-------------------------
* To be filed by amendment
(1) Incorporated by reference from the Registrant's Current Report on Form 8-K
dated October 24, 1997
(2) Incorporated by reference from the Registrant's Current Report on Form 8-K
dated September 30, 1999
(3) Incorporated by reference from the Registrant's Current Report on Form 8-K
dated January 11, 2000
(4) Incorporated by reference from the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1999
(5) Incorporated by reference from the Registrant's Current Report on Form 8-K
dated January 1, 1999
(6) Incorporated by reference from the Registrant's Current Report on Form 8-K
filed with the commission on July 17, 2000
(7) Incorporated by reference from the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1994
