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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 13, 2000
REGISTRATION NO. __________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
LASERSCOPE
(Exact Name of Registrant as Specified in Its Charter)
----------------------
<TABLE>
<S> <C> <C>
CALIFORNIA 3845 77-0049527
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
</TABLE>
3052 ORCHARD DRIVE
SAN JOSE, CALIFORNIA 95134
(408) 943-0636
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
----------------------
ERIC MICHAEL REUTER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
3052 ORCHARD DRIVE
SAN JOSE, CALIFORNIA 95134
(408) 943-0636
(Name, Address Including Zip Code, and Telephone Number Including Area Code,
of Agent for Service)
----------------------
COPIES TO:
PETER LILLEVAND
ORRICK, HERRINGTON & SUTCLIFFE LLP
OLD FEDERAL RESERVE BANK BUILDING
400 SANSOME STREET
SAN FRANCISCO, CALIFORNIA 94111
(415) 392-1122
----------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AT SUCH TIME OR TIMES AFTER THE EFFECTIVE DATE OF THIS REGISTRATION
STATEMENT AS THE SELLING SHAREHOLDERS SHALL DETERMINE.
----------------------
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 of
1933, 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,
please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================================================================================================================
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER UNIT (1) OFFERING PRICE (1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, no par value 5,358,875 (2) $2.75 $14,736,906 $3,890.54
=================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the
registration fee based on the average of the high and low closing price
of the Common Stock as reported on the Nasdaq National Market on March
9, 2000, pursuant to Rule 457(c).
(2) 2,500,000 shares consist of Common Stock previously issued in a private
placement. 458,875 shares consist of Common Stock to be issued upon
exercise of previously issued warrants. 2,400,000 shares consist of
Common Stock to be issued upon conversion of previously issued
debentures.
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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
Prospectus
5,358,875 Shares
LASERSCOPE
Common Stock
This prospectus is part of a registration statement that covers
5,358,875 shares of our Common Stock (the "Shares"). These shares may be offered
and sold from time to time by certain of our shareholders (the "Selling
Shareholders"). We will not receive any of the proceeds from the sale of the
Common Stock. We will bear the costs relating to the registration of the Shares.
The Shares being registered were issued or will be issued as follows:
- 2,500,000 Shares were issued to certain Selling Shareholders in
connection with a private placement of our Common Stock completed on January 14,
2000;
- 218,875 Shares represent Common Stock which are exercisable pursuant
to warrants by certain Selling Shareholders in connection with a private
placement of our Common Stock completed on January 14, 2000;
- 2,400,000 Shares represent Common Stock which may be converted into
pursuant to debentures by certain Selling Shareholders pursuant to a Convertible
Loan Agreement dated February 11, 2000; and
- 240,000 Shares represent Common Stock which are exercisable pursuant
to warrants by certain Selling Shareholders pursuant to a Convertible Loan
Agreement dated February 11, 2000.
The Selling Shareholders may sell the Shares from time to time on the Nasdaq
National Market in regular brokerage transactions, in transactions directly with
market makers or in certain privately negotiated transactions. See "Plan of
Distribution." Each Selling Shareholder has advised us that no sale or
distribution other than as disclosed herein will be effected until after this
Prospectus shall have been appropriately amended or supplemented, if required,
to set forth the terms thereof. We will not receive any proceeds from the sale
of the Shares by the Selling Shareholders. Selling commissions, brokerage fees,
any applicable stock transfer taxes and any fees and disbursements of counsel to
the Selling Shareholders are payable individually by the Selling Shareholders.
Each of the Selling Shareholders may be deemed to be an "Underwriter,"
as such term is defined in the Securities Act of 1933, as amended (the
"Securities Act").
Our Common Stock is quoted on the Nasdaq National Market under the
symbol "LSCP." On March 9, 2000, the average of the high and low price for the
Common Stock was $2.75 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------------
You should rely only on the information contained or incorporated by
reference in this prospectus and in any accompanying prospectus supplement. No
one has been authorized to provide you with different information.
<PAGE> 3
The Shares are not being offered in any jurisdiction where the offer is
not permitted.
You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of the documents.
The date of this Prospectus is March 13, 2000
WHERE YOU CAN FIND MORE INFORMATION
The Company files annual, quarterly and special reports and other
information with the Securities and Exchange Commission (the "SEC"). You may
read and copy any document that 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 further information on the public reference rooms. Our SEC
filings including, reports, proxy and information statements and other
information about us are also available to you free of charge at the SEC's
Website at http://www.sec.gov.
We have filed with the Commission a registration statement (the
"Registration Statement") under the Securities Act of 1933 (the "Securities
Act") with respect to the securities offered hereby. This Prospectus, which is
part of the Registration Statement, does not contain all of the information set
forth in the Registration Statement and its exhibits and schedules, certain
items of which are omitted as allowed by the rules and regulations of the
Commission. For further information with respect to the Company and the
securities offered hereby, we refer you to the Registration Statement and its
exhibits and schedules.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede previously filed
information, including information contained in this document.
We incorporate by reference the documents listed below and any future
filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 until this offering has been completed.
(1) The Company's Current Report on Form 8-K filed March 1, 2000;
(2) The Company's Current Report on Form 8-K filed February 10, 2000;
(3) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1999 filed November 12, 1999;
(4) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1999 filed August 2, 1999;
(5) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1999 filed May 13, 1999;
(6) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 filed March 30, 1999;
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(7) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A filed June 12, 1996, including
any amendments or reports filed for the purpose of updating such
descriptions.
You may request free copies of these filings by writing or telephoning
us at the following address: Chief Financial Officer, Laserscope, 3052 Orchard
Drive, San Jose, California 95134, (408) 943-0636.
THE COMPANY
Laserscope is a California corporation formed in 1982. During its
initial years, the Company was funded by several venture capital firms and by
E.I. du Pont de Nemours & Company. The Company received the first in a series of
regulatory clearances in 1987 and completed its initial public offering in
December 1989.
The Company designs, manufactures, sells and services, on a worldwide
basis, an advanced line of medical laser systems and related energy devices for
the medical office, outpatient surgical center and hospital markets. The Company
is a pioneer in the development and commercialization of lasers and advanced
fibre-optic devices for a wide variety of applications, including photodynamic
therapy (PDT) to treat cancer and other diseases. The Company's portfolio
consists of more than 350 products, including KTP/532(R), CO2, Nd:YAG, Er:YAG,
Ruby, Diode and Dye medical laser systems, industrial laser systems and related
energy delivery devices.
Primary medical markets served by the Company include dermatology,
aesthetic surgery, urology, gynecology, ear, nose and throat surgery and PDT.
Secondary markets include general surgery, neurosurgery, orthopedics,
gastroenterology and other surgical specialties.
The Company's products are used in several surgical applications. Since
the early 1990's, the ear, nose and throat (ENT), urology and gynecology
(OB/GYN) specialties have continued to represent the primary markets into which
the Company sells its broad range of laser systems and the majority of its
energy delivery devices and surgical instruments.
The Company's executive offices are located at 3052 Orchard Drive, San
Jose, California 95134-2011. Our telephone number at that address is (408)
943-0636.
RISK FACTORS
The Company's business, financial condition and results of operations
have been, and in the future may be, affected by a variety of factors, including
those set forth below and elsewhere in this report.
LIMITED WORKING CAPITAL; POTENTIAL NEED TO RAISE ADDITIONAL CAPITAL. As
of December 31, 1999, the Company's total assets and liabilities were $28.9
million and $16.9 million, respectively. As of such date, the Company's working
capital was $6.8 million while cash and cash equivalents amounted to $1.4
million. The Company's need for capital is affected by the current and
anticipated demand for its products as well as procurement and production lead
times in its manufacturing processes. Changes in these factors could have a
material impact on capital requirements.
On October 1, 1999, the Company entered into a $6.0 million asset-based
borrowing arrangement with a bank with collateral values based principally on
domestic accounts receivable. The arrangement, which expires in September 2000,
allows for an over-advance relative to the collateral of $1.9 million until
December 31, 1999, then $1.0 million until March 31, 2000, at which time further
over-advances will no longer be allowed. At December 31, 1999, the Company had
approximately $4.0 million in collateral available against the $4.3 million
outstanding. In addition, NWL has in place various bank lines totaling
approximately $3.0 million that expire in 2000 under which $3.0 million in
borrowings were outstanding at December 31, 1999.
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To address its capital needs, on January 14, 2000 the Company completed
a private placement of its Common Stock providing net proceeds of approximately
$1.8 million to accredited investors. The Company issued 2,500,000 shares of its
Common Stock, no par value per share, at a price of $0.80 per share. The Company
also issued warrants to purchase 218,875 shares of its Common Stock.
Similarly, on February 11, 2000, the Company completed a private
placement of subordinate convertible debentures to affiliates of Renaissance
Capital Group, Inc., with net proceeds to the Company of approximately $2.9
million. The debentures mature seven years from issuance and bear an interest
rate of 8.00%. The debentures are convertible into Common Stock of the Company,
with an initial conversion price, which is subject to adjustment, of $1.25. The
private placement also included warrants convertible into 240,000 shares of the
Company's Common Stock.
The Company anticipates that future changes in cash and working capital
will be dependent on a number of factors, including management's ability to
manage effectively non-cash assets such as inventory and accounts receivable.
The Company competes in a competitive industry where technological changes and
acceptance of new and alternative procedures by its customers is rapid.
Management's ability to anticipate and adapt to these changes will significantly
affect the Company's investment in inventory and the potential for further
valuation adjustments. In addition, the level of profitability of the Company
will have a significant impact on cash resources.
From time to time, the Company may also consider the acquisition of, or
evaluate investments in, certain products and businesses complementary to the
Company's business. Any such acquisition or investment may require additional
capital resources. The Company has historically financed acquisitions using its
existing cash resources. While the Company believes its existing cash resources
will be sufficient to fund its operating needs for the next twelve months,
additional financing either through its bank lines of credit or otherwise will
be required for the Company's currently envisioned long term needs.
There also can be no assurance that any additional financing will be
available on terms acceptable to the Company, or at all. In addition, future
equity financings could result in dilution to the Company's shareholders, and
future debt financings could result in certain financial and operational
restrictions.
HISTORY OF LOSSES; UNCERTAINTY OF FUTURE PROFITABILITY. At December 31,
1999, the Company had an accumulated deficit of $39.2 million. The Company
reported a net loss of $7.6 million for the year ended December 31, 1999, and
experienced annual net losses of $9.8 million and $0.8 million for the years
ended December 31, 1998 and 1997, respectively. There can be no assurance that
the Company can achieve or maintain profitability on a quarterly basis or at
all.
GOVERNMENT REGULATION; UNCERTAINTY OF OBTAINING REGULATORY APPROVAL.
Government regulation in the United States and other countries is a significant
factor in the development, manufacturing and marketing of many of the Company's
products and in the Company's ongoing research and development activities.
The Company and its products are regulated in the United States by the
FDA under the Federal Food, Drug and Cosmetic Act (the "FDC Act") and the
Radiation Control for Health and Safety Act. The FDC Act provides two basic
review procedures for medical devices. Certain products qualify for a Section
510(k) ("510(k)") procedure under which the manufacturer gives the FDA premarket
notification of the manufacturer's intention to commence marketing the product.
The manufacturer must, among other things, establish that the product to be
marketed is "substantially equivalent" to a previously marketed product. In some
cases, the manufacturer may be required to include clinical data gathered under
an investigational device exemption ("IDE") granted by the FDA allowing human
clinical studies.
In the case of the most recent FDA 510(k) pre-market notification, which
was submitted by the Company in order to obtain clearance to market one of its
products for hair removal, the Company believes that it has met all the FDA
requirements in order to be granted this clearance. However, there can be no
assurance
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that this marketing clearance will be granted on a timely basis, if at all. It
is possible that the FDA may require the Company to provide further clinical
data or to repeat the clinical trial completely, thereby delaying this marketing
clearance indefinitely.
If the product does not qualify for the 510(k) procedure, the
manufacturer must file a premarket approval application ("PMA") based on testing
intended to demonstrate that the product is both safe and effective. The PMA
requires more extensive clinical testing than the 510(k) procedure and generally
involves a significantly longer FDA review process. Approval of a PMA allowing
commercial sale of a product requires preclinical laboratory and animal tests
and human clinical studies conducted under an IDE establishing safety and
effectiveness. Generally, because of the amount of information required, the
510(k) procedure takes less time than the PMA procedure.
To date, all of the Company's products (except for the 600 Series Dye
Module) have been marketed through the 510(k) procedure. Future applications,
however, may require clearance through the PMA procedure. There can be no
assurance that such marketing clearances can be obtained on a timely basis.
Delays in receiving such clearances could have a significant adverse impact on
the Company. The FDA may also require postmarket testing and surveillance
programs to monitor certain products.
Certain other countries require the Company to obtain clearances for its
products prior to marketing the products in those countries. The requirements
vary widely from country to country and are subject to change. The European
community is in the process of developing a new approach to the regulation of
medical products which may significantly change how medical devices are marketed
in those countries within the next several years. In February 1996, the Company
achieved ISO 9001 and CE (European Conformation) mark registration in
anticipation of this approach.
The Company is also required to register with the FDA and state
agencies, such as the Food and Drug Branch of the California Department of
Health Services, as a medical device manufacturer. The Company is inspected on a
routine basis by both the FDA and the State of California for compliance with
the FDA's Current Good Manufacturing Practice regulations. Those regulations
impose certain procedural and documentation requirements upon the Company with
respect to manufacturing, testing and quality control activities. If violations
of applicable regulations are noted during these inspections, the continued
marketing of any products manufactured by the Company may be adversely affected.
In addition, the Company's laser products are covered by a performance
standard for laser products set forth in FDA regulations. The laser performance
standard imposes certain specific record-keeping, reporting, product testing,
and product labeling requirements on the Company. These requirements also
include affixing warning labels to the Company's laser systems, as well as the
incorporation of certain safety features in the design of the Company's
products.
Complying with applicable governmental regulations and obtaining
necessary clearances or approvals can be time consuming and expensive, and there
can be no assurance that regulatory review will not involve delays or other
actions adversely affecting the marketing and sale of the Company's products.
The Company also cannot predict the extent or impact of future legislation or
regulations.
The Company is also subject to regulation under federal and state laws
regarding, among other things, occupational safety, the use and handling of
hazardous materials and protection of the environment. The Company believes that
it is in material compliance with these requirements.
INSURANCE REIMBURSEMENT. Demand for the Company's products is dependent,
to a significant extent, on government and private insurance reimbursement of
hospitals and physicians for health care costs, including, but not limited to,
reimbursement of capital equipment costs. Reductions or delays in such insurance
coverage or reimbursement may negatively impact hospitals' and physicians'
decision to purchase the Company's products, adversely affecting the Company's
future sales. A substantial portion of the Company's laser sales are
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for aesthetic procedures that are generally not subject to reimbursement by
government or private health insurance. The general absence of insurance
coverage for such cosmetic procedures may restrict the development of this
market, adversely affecting the Company.
UNCERTAINTY OF TECHNOLOGICAL CHANGE; UNCERTAINTY OF NEW PRODUCT
DEVELOPMENT AND ACCEPTANCE. The Company operates in industries that are subject
to rapid technological change. The Company's ability to remain competitive and
future operating results will depend upon, among other things, the Company's
ability to anticipate and respond rapidly to such change by developing,
manufacturing and marketing technologically innovative products in sufficient
quantities at acceptable costs to meet such demand. Absent introduction of new
products and enhancements, the Company's products will likely become
technologically obsolete, which could result in the write-off of inventory as
well as diminished revenues. Therefore, the Company intends to continue to
invest significant amounts in research and development.
The Company's expenditures for research and development were
approximately $4.5 million, $5.2 million and $3.4 million in 1999, 1998 and
1997, respectively. The Company anticipates that its ability to compete will
require significant research and development expenditures with a continuing flow
of innovative, high-quality products. No assurance can be given that the Company
will be successful in designing, manufacturing or selling its enhanced or new
products in a timely manner. Nor can any assurance be given that a competitor
could not introduce a new or enhanced product or technology that could have an
adverse effect on the Company's competitive position.
The Company's current research and development programs are directed
toward the development of new laser systems and delivery devices. For example,
new laser systems for the emerging aesthetic market and other applications are
currently in development. However, there can be no assurance that the aesthetic
market will develop as anticipated or that the Company's product development
efforts will prove successful. Nor can any assurance be given that such new
products, if developed and introduced, will receive market acceptance.
DEPENDENCE ON SINGLE-SOURCE SUPPLIERS AND CERTAIN THIRD PARTIES. Certain
of the components used in the Company's laser products, including KTP crystals,
molded and cast components, power supplies, and certain optical components, are
purchased from single sources. While the Company believes that most of these
components are available from alternate sources, an interruption of these or
other supplies could adversely affect the Company. In particular, KTP crystals
that are used in the Company's best selling laser products are currently
available at appropriate quality levels from only one supplier, a division of
Litton Industries. This supplier has a second crystal growing and fabrication
facility at a second location in the United States geographically isolated from
its original production facility. While the Company believes that an alternative
supplier of KTP crystals could be qualified, if the supply of crystals from the
present supplier were interrupted there could be an adverse effect on the
Company's business and results of operations.
The Company has invested substantial efforts in developing a laser
treatment that when combined with PDT drugs may be an effective treatment for
certain types of cancer. Currently, QLT PhotoTherapeutics, Inc. is the sole
supplier of PDT drugs. The inability or refusal of QLT to supply drugs for use
with the Company's lasers would have a material adverse effect on sales of the
Company's laser for such treatment.
COMPETITION. The medical equipment market is highly competitive. The
Company's competitors are numerous and include some of the world's largest
organizations as well as smaller, highly-specialized firms. The ability of the
Company to compete effectively depends on such factors as market acceptance of
its products, product performance and price, customer support, the success and
timing of new product development, and continued development of successful
channels of distribution. Some of the Company's current and prospective
competitors have or may have significantly greater financial, technical,
research and development, manufacturing and marketing resources than the
Company. In early 1998, the medical equipment industry experienced significant
consolidation when two of the Company's largest competitors, ESC Medical Systems
and Laser Industries, combined to become the largest participant in the medical
equipment industry. To
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compete, the Company will need to continue to expand its product offerings,
periodically enhance its existing products and continue to expand its
distribution internationally.
The Company competes in the nonophthalmic surgical segment of the
worldwide medical laser market, in which lasers are used in hospital operating
rooms, outpatient surgery centers and individual physician offices for a wide
variety of procedures. A large number of companies participate in this market,
many of which have significantly greater financial and other resources than the
Company.
Certain surgical laser manufacturers have targeted their efforts on
narrow segments of the market, such as angioplasty and lithotripsy. To the
extent that their products compete for the same capital equipment funds, these
manufacturers may be deemed to compete with the Company. More generally,
surgical laser manufacturers such as Laserscope compete with standard surgical
methods and other medical technologies and treatment modalities. There can be no
assurance that the Company can compete effectively against such competitors. In
addition, there can be no assurance that these or other companies will not
succeed in developing technologies, products or treatments that are more
effective than the Company's or that would render the Company's technology or
products obsolete or uncompetitive.
RELIANCE ON PATENTS AND LICENSES. The Company holds several patents
issued in the United States, generally covering surgical laser systems, delivery
devices, calibration inserts, the laser resonator and the connector used to
attach disposable and reusable instrumentation to the Company's laser systems.
In April 1992, the Company entered into a worldwide, license agreement
with PDT, Inc. ("PDTI") (now named Miravant) for licenses to PDTI's dye laser
technology. Under the terms of the agreement, the Company acquired a fully paid
up license to manufacture products using PDTI's dye laser technology while PDTI
retains ownership of the intellectual property licensed to the Company under the
agreement and has the right to manufacture, have manufactured, use, lease and
sell the dye laser technology for use in photodynamic therapy with PDTI
photodynamic drugs.
There can be no assurance that any licenses held by the Company or any
patents that have been issued to the Company or which may be issued as a result
of the Company's patent applications will provide any competitive advantages for
the Company's products. There is also no assurance that any of the patents held
now or in the future by the Company will not be successfully challenged,
invalidated or circumvented in the future. In addition, there can be no
assurance that competitors, many of which have substantial resources and have
made substantial investments in competing technologies, will not seek to apply
for and obtain patents that will prevent, limit or interfere with the Company's
ability to make, issue, use and sell its products.
FAILURE TO ATTRACT OR RETAIN KEY PERSONNEL CAN ADVERSELY AFFECT RESULTS.
The Company is and will continue to be dependent upon the efforts and abilities
of a number of current key personnel. Any inability by the Company to attract
and retain key employees would have a material adverse effect on the business,
financial condition and results of operations of the Company.
FLUCTUATIONS IN QUARTERLY OPERATING RESULTS. A number of factors affect
the Company's financial results and stock price, especially on a quarterly
basis, including the timing of shipments and orders. The Company's laser
products are relatively expensive pieces of medical capital equipment and the
precise shipment date of specific units can have a marked effect on the
Company's results of operations on a quarterly basis. Any delay in product
shipments near the end of a quarter could cause quarterly results to fall short
of anticipated levels. Furthermore, to the extent orders are received by the
Company near the end of a quarter, the Company may not be able to fulfill the
order during the balance of that same quarter. Moreover, the Company typically
receives a disproportionate percentage of its orders toward the end of each
quarter. To the extent that anticipated orders are not received or are delayed
beyond the end of the applicable quarter, the Company's revenues may be
adversely affected and the Company's revenues may be unpredictable from quarter
to quarter. In addition, because a significant portion of the Company's revenues
in each quarter result from orders received in that quarter, the Company
establishes its production, inventory and operating expenditure levels based on
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anticipated revenue levels. Thus, if sales do not occur when expected,
expenditure levels could be disproportionately high and operating results for
that quarter and potentially future quarters, would be adversely affected. There
can be no assurance that revenue growth or profitability on a quarterly or
annual basis will be accomplished or will not fluctuate significantly from
quarter to quarter.
PRODUCT LIABILITY RISK; LIMITED INSURANCE COVERAGE. The Company's
development, manufacture and sale of surgical, dermatological and therapeutic
laser systems and related surgical instrumentation and disposable supplies and
accessories entails significant risks of product liability claims. The Company
has experienced product liability claims from time to time, which it believes
are ordinary for its business. While it is not feasible to predict or determine
the outcome of the actions brought against it, the Company believes that these
actions will not ultimately have a material adverse impact on the Company's
financial position or results of operations.
At present, the Company maintains product liability insurance on a
"claims made" basis with coverage of $10.0 million in the aggregate with a
deductible of $0.1 million per occurrence and an annual maximum aggregate
deductible of $0.5 million. There can be no assurance that such insurance
coverage will be available to the Company in the future at a reasonable cost, if
at all, nor can there be any assurance that other claims will not be brought
against the Company in excess of its insurance coverage.
FACTORS AFFECTING FINANCIAL RESULTS AND STOCK PRICE. A number of factors
affect the Company's financial results and stock price, particularly on a
quarterly basis. One such factor is the timing of shipments. The Company's laser
products are relatively expensive pieces of medical capital equipment and the
precise shipment date of specific units can have a marked effect on the
Company's results of operations on a quarterly basis. A delay in product
shipments near the end of a quarter could cause quarterly results to fall short
of anticipated levels.
A related factor is the timing of orders. To the extent orders are
received by the Company near the end of a quarter, the Company may not be able
to fulfill the order during the balance of that same quarter. Additionally, the
Company typically receives a disproportionate percentage of its orders toward
the end of each quarter. To the extent that anticipated orders are not received
or are delayed beyond the end of the applicable quarter, the Company's revenues
may be adversely affected and the Company's revenues may be unpredictable from
quarter to quarter. Further, there can be no assurance that revenue growth or
profitability on a quarterly or annual basis will be accomplished. Factors
affecting operating results include, but are not limited to: product mix,
competitive pricing pressures, material costs, revenue and expenses related to
new products and enhancements to existing products, as well as delays in
customer purchases in anticipation of new products or product enhancements by
the Company or its competitors.
The market price of the Company's common stock may be subject to
significant fluctuations. These fluctuations may be due to factors specific to
the Company, such as quarterly fluctuations in the Company's financial results,
changes in analysts' estimates of future results, changes in investors'
perceptions of the Company or the announcement of new or enhanced products by
the Company or its competitors as well as announcements relating to acquisitions
and strategic transactions by the Company or its competitors. In addition, such
fluctuations may be due to or exacerbated by general conditions in the medical
equipment industry or conditions in the financial markets generally. The stock
market has from time to time experienced extreme price and volume fluctuations,
particularly among stocks of high technology companies, which, on occasion, have
been unrelated to the operating performance of particular companies. Factors not
directly related to the Company's performance, such as negative industry reports
or disappointing earnings announcements by publicly traded competitors, may have
an adverse impact on the market price of the Company's common stock.
As of March 1, 2000, we will have 15,111,637 shares of outstanding
Common Stock. The sale of a substantial number of shares of Common Stock,
including the sale of the Shares being registered hereby, or the perception that
such sales could occur, could adversely affect prevailing market prices for the
Common Stock.
9
<PAGE> 10
INTERNATIONAL BUSINESS. International revenues were 55.0% of total
revenues in the year ended December 31, 1999, compared to 58.2% of total
revenues during the comparable period in 1998. International sales are made
through international distributors and wholly- and majority-owned subsidiaries
with payments to the Company typically denominated in the local currencies of
the United Kingdom, France and Germany, and in U.S. dollars in the rest of the
world. The Company intends to continue expansion of its operations outside of
the United States and to enter additional international markets, requiring
significant management attention and financial resources and further subjecting
the Company to the risks of operating internationally. These risks include, but
are not limited to, changes in regulatory requirements, delays resulting from
difficulty in obtaining export licenses for certain technology, customs, tariffs
and other barriers and restrictions, and the burdens of complying with a variety
of foreign laws. The Company is also subject to general geopolitical risks in
connection with its international operations, such as differing economic
conditions, changes in political climate, differing tax structures and changes
in diplomatic and trade relationships. In addition, fluctuations in currency
exchange rates may negatively affect the Company's ability to compete in terms
of price against products denominated in local currencies. Accordingly, the
Company's future results could be materially adversely affected by changes in
these regulatory, geopolitical and other factors. The effect of foreign exchange
fluctuations on the Company in the years ended 1999 and 1998 were not material,
and the Company does not engage in hedging transactions for speculative or
trading purposes.
LEGAL PROCEEDINGS. The Company is a party to a number of legal
proceedings arising in the ordinary course of business. While it is not feasible
to predict or determine the outcome of the actions brought against it, the
Company believes that the ultimate resolution of these claims will not
ultimately have a material adverse effect on its financial position or results
of operations.
INTEREST RATE RISK. The Company's exposure to market rate risk for
changes in interest rates relate primarily to the Company's investment and debt
portfolios. The Company has not used derivative financial instruments in its
investment or debt portfolios. The Company invests its excess cash in money
market funds and commercial paper. The Company's debt financing consists mainly
of bank loans requiring either fixed or variable rate interest payments.
Investments in and borrowings under both fixed-rate and floating-rate
interest-earning instruments carry a degree of interest rate risk. On the
investment side, fixed-rate securities may have their fair market value
adversely affected due to a rise in interest rates, while floating-rate
securities may produce less income than expected if interest rates fall. In
addition, the Company's future investment income may fall short of securities
analyst expectations, due to changes in interest rates, or the Company may
suffer losses in principal if forced to sell securities which have declined in
market value, due to changes in interest rates. On the debt side, borrowings
that require fixed-rate interest payments require greater than current market
rate interest payments if interest rates fall, while floating rate borrowings
may require greater interest payments if interest rates rise. Additionally, the
Company's future interest expense may be greater than expected due to changes in
interest rates.
WARRANTY OBLIGATIONS. A direct field service organization provides
installation and service for the Company's products. The Company generally
provides a twelve month warranty on its laser systems. After the warranty
period, maintenance and support is provided on a variety of service contract
bases or on an individual call basis. The Company also has a "99.0% Uptime
Guarantee" on its laser systems. Under provisions of this guarantee, the Company
extends the term of the related warranty or contract if specified system uptime
levels are not maintained. Although most systems covered by this guarantee have
achieved a 99.0% uptime rate to date, there can be no assurance that the Company
can maintain such uptime rates in the future.
YEAR 2000. As of the date of this prospectus, the Company's systems have
operated without any apparent Year 2000 related problems and appear to be Year
2000 compliant. The Company is not aware that any of its primary vendors or
systems maintained by third parties have experienced significant Year 2000
compliance problems. However, while no such problem has been discovered as of
the date of this prospectus, Year 2000 issues may not become apparent
immediately and, therefore, the Company may be affected in the future. The
Company will continue to monitor the issue and work to remediate any Year 2000
issues that may arise.
10
<PAGE> 11
NO DIVIDENDS. The Company has never paid any cash dividends on its
Common Stock and does not anticipate paying cash dividends on the Common Stock
in the foreseeable future. The payment of dividends on the Common Stock by the
Company will depend on its earnings, financial condition and other business and
economic factors affecting the Company at such time as the Board of Directors
may consider relevant.
"PENNY STOCK" RULES. The Company's Common Stock is presently traded on
the National Association of Securities Dealers Automated Quotation ("NASDAQ")
National Market System, which requires that a company have a minimum bid price
of $1.00 in order to qualify for continued listing. The Company's low bid price
in 1999 for each of the quarters June 30, September 30 and December 31 was $1
1/16, $1 and $5/8, respectively, and the Company's last traded price on March 1,
2000 was $3. If the Company fails to maintain its listing for its Common Stock
on the NASDAQ National Market System, and no other exclusion from the definition
of "penny stock" under the Exchange Act is available, then any broker engaging
in a transaction in the Company's securities would be required to provide any
customer with a risk disclosure document and the compensation of the
broker/dealer in the transaction and monthly account statements showing the
market values of the Company's securities held in the customer's accounts. The
bid and offer quotations and compensation information must be provided prior to
effecting the transaction and must be contained on the customer's confirmation.
If brokers become subject to the "penny stock" rules when engaging in
transactions in the Company's securities, they would become less willing to
engage in such transactions, thereby making it more difficult for purchasers in
this Private Placement to dispose of the shares of Common Stock.
DILUTION. Shareholders may experience dilution in the net tangible book
value of their investment upon the exercise of outstanding options and warrants
granted under the Company's stock option plans and other options, warrants and
outstanding convertible securities.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the Shares by the
Selling Shareholders in the Offering; all proceeds will go to the Selling
Shareholders.
MARKET PRICES OF COMMON EQUITY, DIVIDEND POLICY
AND RELATED STOCKHOLDER MATTERS
Our Common Stock is traded on the Nasdaq National Market under the
symbol "LSCP". The range of high and low bid closing quotations for the
Company's Common Stock for each fiscal quarter for the three (3) fiscal years
ended December 31, 1999, December 31, 1998 and December 31, 1997 are as follows:
<TABLE>
<CAPTION>
Fiscal 1999
High Low
----------------------
<S> <C> <C>
Quarter
January 1 - March 31 $ 2 3/4 $ 1 1/8
April 1 - June 30 $ 1 15/16 $ 1 1/16
July 1 - September 30 $ 1 17/32 $ 1
</TABLE>
11
<PAGE> 12
<TABLE>
<S> <C> <C>
October 1 - December 31 $ 1 1/4 $ 5/8
</TABLE>
<TABLE>
<CAPTION>
Fiscal 1999
High Low
----------------------
<S> <C> <C>
Quarter
January 1 - March 31 $ 5 3/8 $ 2 7/16
April 1 - June 30 $ 3 3/8 $ 2 1/16
July 1 - September 30 $ 2 3/8 $ 1 1/16
October 1 - December 31 $ 2 5/32 $ 15/16
</TABLE>
<TABLE>
<CAPTION>
Fiscal 1999
High Low
----------------------
<S> <C> <C>
Quarter
January 1 - March 31 $ 9 5/8 $ 5 7/8
April 1 - June 30 $ 8 1/8 $ 5
July 1 - September 30 $ 8 3/8 $ 4 1/8
October 1 - December 31 $ 6 3/4 $ 4 1/8
</TABLE>
The last traded price on March 1, 2000 for the Company's common stock
was $3.00.
The quotations reflect inter-dealer prices, without retail mark-up,
markdown or commission and may not necessarily represent actual transactions.
THE NUMBER OF RECORD HOLDERS OF THE COMPANY'S COMMON STOCK AS OF DECEMBER 31,
1999, WAS APPROXIMATELY 800. THE COMPANY HAS NEVER PAID A DIVIDEND
WITH RESPECT TO ITS COMMON STOCK AND HAS NO PLANS TO
PAY A DIVIDEND IN THE FORESEEABLE FUTURE.
12
<PAGE> 13
MATERIAL CHANGES
On February 18, 2000, the Company announced that it had signed a
contract with Wavelight Laser Technologie AG to sell its German subsidiary, NWL
Laser Technologie, GmbH. The sale, which is pending Wavelight shareholder
approval, expected by March 31, 2000, will have an effective date of January 1,
2000. As part of the transaction, NWL will continue to distribute Laserscope's
products in all countries covered by NWL's current distribution channels. The
transaction is expected to net approximately $4.0 million to the Company
(including intercompany balances of approximately $800,000 owed to the Company)
but is not expected to generate a material gain or loss when reported in
Laserscope's first quarter of 2000.
SELLING SHAREHOLDERS
On January 14, 2000, the Company completed the private placement of
2,500,000 shares of its Common Stock and issued warrants to purchase 218,875
shares of its Common Stock to certain Selling Shareholders. On February 11,
2000, the Company entered into a Convertible Loan Agreement, pursuant to which
it issued debentures which are convertible into 2,400,000 shares of Common
Stock. The Company also issued warrants to purchase 240,000 shares of its Common
Stock by certain of the Selling Shareholders in connection with the issuance of
the debentures. This Prospectus covers the 5,358,875 shares of the Company's
Common Stock issued (or to become issuable upon exercise of the warrants issued
or conversion of the debentures issued). The following table sets forth certain
information as of February 11, 2000 with respect to the Selling Shareholders.
Pursuant to the terms of agreements between Laserscope and the Selling
Shareholders, Laserscope agreed to file a registration statement covering the
Shares held by the Selling Shareholders with the Commission.
<TABLE>
<CAPTION>
NUMBER OF COMMON NUMBER OF SHARES OF PERCENT OF CLASS OWNED (IF
SHARES BENEFICIALLY COMMON STOCK INCLUDED IN OVER 1% OF TOTAL COMMON
BENEFICIAL OWNERS OWNED PRIOR TO OFFERING OFFERING STOCK OUTSTANDING)(1)
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
COMMON SHAREHOLDERS:
John C. Clifford 125,000 125,000
Dolphin Offshore Partners, L.P. 750,000 750,000 4.17%
JDN Partners, L.P. 312,500 312,500 1.74%
Emmanuel W. Metz 150,000 150,000
Shadow Capital, LLC 62,500 62,500
Susan J. Smith(2) 6,250 6,250
Douglas E. Hailey 35,250 35,250
Special Situations Private Equity
Fund, L.P. 11,750 11,750
Michael N. Taglich 91,500 91,500
Robert F. Taglich 47,750 47,750
Robert W. Allen 187,500 187,500 1.04%
Applebaum Family Ltd. Partnership 20,000 20,000
Gary P. Arnold 150,000 150,000
Francis P. Bissaillan 18,750 18,750
Robert L. and Tracey H. DeBruyn 31,250 31,250
Lloyd B. Embry 25,000 25,000
Denis Fortin 62,500 62,500
Michael J. Fourticq 62,500 62,500
John R. Graham 12,500 12,500
Robert L. Mathews(3) 50,000 50,000
Ruediger Naumann-Etienne (4) 100,000 100,000
Sanford R. Penn, Jr. 62,500 62,500
David Random 50,000 50,000
Eric Michael Reuter (5) 12,500 12,500
Arthur D. and Marie E. Sterling 62,500 62,500
</TABLE>
13
<PAGE> 14
<TABLE>
WARRANT HOLDERS:
<S> <C> <C> <C>
Richard C. Oh 15,000 15,000
Vincent Palmieri 15,000 15,000
Douglas E. Hailey 180,329 180,329 1.00%
Michael N. Taglich 121,773 121,773
Robert R. Taglich 121,773 121,773
Laura A. Conroy 5,000 5,000
</TABLE>
DEBENTURE HOLDERS:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Renaissance Capital Growth & Income Fund 1,200,000 1,200,000 6.68%
III, Inc.
Renaissance US Growth & Income Trust 1,200,000 1,200,000 6.68%
PLC
</TABLE>
(1) Because the Selling Shareholders may sell all or part of their shares of our
Common Stock under this prospectus and since this offering is not being
underwritten on a firm commitment basis, we can only approximate the percentage
of shares of Common Stock that the Selling Shareholders will hold at the end of
the offering covered by this prospectus. For purposes of this calculation, we
have assumed 17,970,512 shares of Common Stock outstanding which would include
conversion of the debentures and exercise of the warrants.
(2) Susan Smith was Vice President, International of Laserscope. Ms. Smith
turned in her letter of resignation on March 3, 2000. Ms. Smith also has options
to purchase 75,376 shares of our Common Stock, of which 23,624 shares are vested
as of March 1, 2000, such options were not included with respect to the
calculation of percentage of class owned.
(3) Robert Mathews is Executive Vice President of Laserscope. Mr Mathews also
has options to purchase 135,000 shares of our Common Stock, of which 22,291
shares are vested, such options were not included with respect to the
calculation of percentage of class owned.
(4) Ruediger Naumann-Etienne is on the Board of Directors of Laserscope. Mr.
Naumann-Etienne also has options to purchase 60,000 shares of our Common Stock,
of which no shares are vested as of March 1, 2000, such options were not
included with respect to the calculation of percentage of class owned.
(5) Eric Michael Reuter is the President and Chief Executive Officer of
Laserscope. He is also on the Board of Directors of Laserscope. Mr. Reuter also
has options to purchase 449,500 shares of our Common Stock, of which 118,249
shares are vested as of March 1, 2000, such options were not included with
respect to the calculation of percentage of class owned.
PLAN OF DISTRIBUTION
Resales of the shares by the Selling Shareholders may be made on the
Nasdaq National Market, in the over-the-counter market or in private
transactions. The shares will be offered for sale on terms to be determined when
the agreement to sell is made or at the time of sale, as the case may be. The
Selling Shareholders may sell some or all of the shares in transactions
involving broker-dealers who may act solely as agent and or may acquire shares
as principal. Broker-dealers participating in such transactions as agent may
receive commissions from the Selling Shareholders (and, if they act as agent for
the purchaser of such shares, from such purchaser), such commissions computed in
appropriate cases in accordance with the applicable rules of NASDAQ, which
commissions may be at negotiated rates where permissible under such rules.
Participating broker-dealers may agree with the Selling Shareholders to sell a
specific number of shares at a stipulated price per share and, to the extent
such broker-dealer is unable to do so acting as agent, for the Selling
Shareholders to purchase as principal any unsold shares at the price required to
fulfill the broker-dealer's commitment to the Selling Shareholders. Any such
sales may be by block trade.
14
<PAGE> 15
LEGAL MATTERS
Certain legal matters with respect to the legality of the issuance of
the Common Stock offered hereby will be passed upon for the Company by Orrick,
Herrington & Sutcliffe LLP, San Francisco, California.
EXPERTS
The consolidated financial statements of Laserscope included in
Laserscope's Annual Report (Form 10-K) for the year ended December 31, 1998,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
15
<PAGE> 16
================================================================================
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THE
PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR BY ANY SELLING STOCKHOLDER. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE
AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY
ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO TO
ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
-------------------
TABLE OF CONTENTS
<TABLE>
<S> <C>
INFORMATION INCORPORATED BY REFERENCE ............................. 3
The Company ..................................................... 4
RISK FACTORS ...................................................... 4
USE OF PROCEEDS ................................................... 11
MARKET PRICES OF COMMON EQUITY, DIVIDEND POLICY AND RELATED
STOCKHOLDER MATTERS ............................................. 11
SELLING SHAREHOLDERS .............................................. 13
PLAN OF DISTRIBUTION .............................................. 14
LEGAL MATTERS ..................................................... 15
EXPERTS ........................................................... 15
</TABLE>
================================================================================
================================================================================
5,358,875 SHARES
LASERSCOPE
COMMON STOCK
----------
PROSPECTUS
----------
MARCH 13, 2000
================================================================================
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by the
Registrant in connection with the distribution of the Common Stock being
registered. All amounts are estimated, except the SEC registration fee:
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee.......................... $ 4,244.23
Accounting fees............................... $ 2,000.00
Legal fees and expenses....................... $ 15,000.00
Miscellaneous................................. $ 5,000.00
Total....................................... $ 26,244.23
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 317 of the California Corporations Code authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act"). The Company's Bylaws provide that the Company shall indemnify its
directors and officers to the fullest extent permitted by California law,
including circumstances in which indemnification is otherwise discretionary
under California law. The Company has entered into indemnification agreements
with its officers and directors containing provisions that are in some respects
broader than the specific indemnification provisions contained in the California
Corporations Code.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
------ -------
<S> <C>
3.3 Seventh Amended and Restated Articles of
Incorporation. Incorporated by reference from an
identically numbered exhibit filed in response to Item
14(a)(3), "Exhibits," of the Company's Annual Report
on Form 10-K for the year ended December 31, 1989.
3.4 Registrant's Bylaws. Incorporated by reference to
identically numbered exhibits filed in response to
Item 14(a)(3), "Exhibits," of the Company's Annual
Report of Form 10-K for the year ended December 31,
1991.
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Independent Auditor.
</TABLE>
II-1
<PAGE> 18
<TABLE>
<S> <C>
23.2 Consent of Orrick, Herrington & Sutcliffe LLP
(See Exhibit 5.1).
24.1 Powers of Attorney (see Page II-4).
</TABLE>
ITEM 17. UNDERTAKINGS
A. Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the provisions described in
Item 15 above, 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 of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
B. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act 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 volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 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)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment to those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) 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.
II-2
<PAGE> 19
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
C. The undersigned Registrant hereby undertakes that:
(1) 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 section 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 offering therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(2) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part
of this registration statement as of the time it was declared effective.
(3) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
II-3
<PAGE> 20
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 San Jose, State of California, on this 10th day of
March, 2000.
LASERSCOPE
By: /s/ Eric Michael Reuter
---------------------------------
Eric Michael Reuter
Chief Executive Officer,
President and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints each of Eric Michael Reuter and Dennis
LaLumandiere, with the power of substitution, his attorney-in-fact, to sign any
amendments to this Registration Statement (including post-effective amendments),
and to file same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact, or their substitutes, may do or cause
to be done by virtue hereof.
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.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ Eric Michael Reuter President, Chief Executive Officer March 10, 2000
- ------------------------------ (Principal Executive Officer) and
Eric Michael Reuter Director
/s/ Dennis LaLumandiere Vice President of Finance, March 10, 2000
- ------------------------------ Chief Financial Officer, and
Dennis LaLumandiere Assistant Secretary
/s/ Robert J. Pressley, Ph.D Director March 10, 2000
- ------------------------------
Robert J. Pressley
/s/ E. Walter Lange Director March 10, 2000
- ------------------------------
E. Walter Lange
/s/ Ruediger Naumann-Etienne Director March 10, 2000
- ------------------------------
Ruediger Naumann-Etienne, Ph.D
/s/ Rodney Perkins, M.D. Director March 10, 2000
- ------------------------------
Rodney Perkins, M.D.
</TABLE>
II-4
<PAGE> 21
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ -------
<S> <C>
3.3 Seventh Amended and Restated Articles of Incorporation.
Incorporated by reference from an identically numbered exhibit
filed in response to Item 14(a)(3), "Exhibits," of the Company's
Annual Report on Form 10-K for the year ended December 31, 1989.
3.4 Registrant's Bylaws. Incorporated by reference to identically
numbered exhibits filed in response to Item 14(a)(3), "Exhibits,"
of the Company's Annual Report of Form 10-K for the year ended
December 31, 1991.
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Independent Auditor.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP (See Exhibit 5.1)
24.0 Powers of Attorney (see Page II-4).
</TABLE>
<PAGE> 1
EXHIBIT 5.1
March 10, 2000
Laserscope
3052 Orchard Drive
San Jose, CA 95134
Re: Laserscope
Registration Statement on Form S-3
Ladies and Gentlemen:
At your request, we are rendering this opinion in connection with
a proposed sale by certain shareholders, certain warrantholders and certain
debentureholders (collectively, the "Holders") of Laserscope, a California
corporation (the "Company") of up to 5,358,875 shares (the "Shares") of common
stock, no par value of the Company (the "Common Stock") pursuant to a
Registration Statement on Form S-3 to be filed on March 13, 2000. The Shares
were issued, or are issuable, pursuant to: (i) Common Stock Purchase Agreements
made as of December 22, 1999 between the Company and the Subscribers identified
therein; (ii) a Common Stock Placement Agreement dated as of December 29, 1999
between the Company and Taglich Brothers, D'Amadeo, Wagner & Company,
Incorporated (including warrants issued pursuant thereto); (iii) Common Stock
Purchase Agreements made as of January 14, 2000 between the Company and the
Subscribers identified therein; (iv) debentures issued pursuant to a Convertible
Loan Agreement dated February 11, 2000 among the Company, Renaissance Capital
Growth & Income Fund III, Inc., Renaissance US Growth & Income Trust PLC and
Renaissance Capital Group, Inc.; and (v) Warrants dated as of February 11, 2000
issued to certain Holders identified therein.
We have examined instruments, documents, and records which we
deemed relevant and necessary for the basis of our opinion hereinafter
expressed. In such examination, we have assumed the following: (a) the
authenticity of original documents and the genuineness of all signatures; (b)
the conformity to the originals of all documents submitted to us as copies; and
(c) the truth, accuracy, and completeness of the information, representations,
and warranties contained in the records, documents, instruments, and
certificates we have reviewed.
Based on such examination, we are of the opinion that, assuming
delivery of the purchase price pursuant to the Common Stock Purchase Agreements
and the Common Stock Placement Agreement, the exercise of the warrants, the
payment of the exercise price thereunder and the conversion of the debentures,
the Shares to be issued and covered by the Registration Statement will be
legally issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the above-referenced Registration Statement and to the use of our name wherever
it appears in said Registration Statement, including the Prospectus constituting
a part thereof, as originally filed or as subsequently amended or supplemented.
In giving such consent, we do not consider that we are "experts" within the
meaning of such term as used in the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission issued
thereunder, with respect to any part of the Registration Statement, including
this opinion as an exhibit or otherwise.
Very truly yours,
/s/ Orrick, Herrington & Sutcliffe LLP
ORRICK, HERRINGTON & SUTCLIFFE LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Laserscope for the
registration of 5,358,875 shares of its common stock and to the incorporation by
reference therein of our report dated March 3, 1999, with respect to the
consolidated financial statements and schedule of Laserscope included in its
Annual Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
San Jose, California
March 8, 2000
