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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 11,1997
REGISTRATION NO. 333-32801
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
LASER VISION CENTERS, INC.
(Exact name of registrant in its charter)
Delaware 43-1530063
(State of jurisdiction of (I.R.S. Employer
incorporation or organization) identification number)
540 Maryville Centre Drive, Suite 200
St. Louis, Missouri 63141
(314) 434-6900
(Address and telephone number of principal executive offices and intended
principal place of business.)
Robert W. May, Esq.
540 Maryville Centre Drive, Suite 200
St. Louis, Missouri 63141
(314) 434-6900
(Name, address and telephone number of agent for service)
With copies to:
James R. Dankenbring, Esq.
Dankenbring, Greiman, Osterholt &
Hoffmann, P.C.
120 South Central, Suite 500
St. Louis, Missouri 63105
(314) 863-7733
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as possible following the effectiveness of this Registration Statement
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, other than securities offered only in connection with dividend or
interest reinvestment plan, check the following box. /X/
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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. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each Amount to be Proposed maximum Proposed maximum Amount of
class of registered offering price per aggregate offering registration fee
securities to be share(1) price
registered
<S> <C> <C> <C> <C>
Common Stock 2,455,129(2) $ 7.875 $ 19,354,141 $ 5,865
</TABLE>
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, AS AMENDED (THE "ACT"), OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
An Index of the Exhibits to this Registration Statement can be found at page
II-1.
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(1) Estimated solely for the purpose of calculation of the
registration fee pursuant to Rules 457(c) and 457(g) and based
upon the average of the reported high and low sales prices of the
common stock as quoted on Nasdaq National Market Issues on July 31,
1997.
(2) Shares of Common Stock which may be offered pursuant to
this Registration Statement consisting of 2,354,000 shares
issuable upon conversion of 6,000 shares of Series B Convertible
Preferred Stock and exercise of Initial and Additional Warrants and
101,129 shares of Common Stock presently held by Selling
Shareholders. For purposes of estimating the number of shares of
Common Stock to be included in this Registration Statement, the
Company calculated 200% of the number of shares of Common Stock
issuable in connection with the conversion of the Company's
Series B Convertible Preferred Stock (based on a conversion price of
$6.14125 which is 85% of the average of the closing bid prices of the
Common Stock reported on the Nasdaq National Market on the five
trading days ending June 19, 1997) and exercise of Initial and
Additional Warrants. In addition to the shares set forth in the
table, the amount to be registered includes an indeterminate number
of shares issuable upon conversion of or in respect of the Series B
Convertible Preferred Stock and the Initial and Additional Warrants,
as such number may be adjusted as a result of stock splits, stock
dividends and antidilution provisions (including floating rate
conversion prices) in accordance with Rule 416.
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2,455,129 SHARES
LASER VISION CENTERS, INC.
COMMON STOCK
The shares offered hereby (the "Shares") consist of:
(1) up to 2,354,000 shares of common stock, par value $0.01 per share (the
"Common Stock"), of Laser Vision Centers, Inc., a Delaware corporation
(the "Company"), which may be issuable by the Company to certain
persons listed herein under "Selling Stockholders" (the "Selling
Stockholders") upon conversion of the Series B Convertible Preferred
Stock of the Company (the "Preferred Stock") and exercise of related
Initial and Additional Warrants. The Preferred Stock, the Initial
Warrants and the rights to Additional Warrants were issued
pursuant to a Securities Purchase Agreement in a private placement
that was completed on June 20, 1997. A total of 6,000 shares of
Preferred Stock was sold at a price of $1,000 per share to an
accredited institutional investor. In connection with the private
placement of the Preferred Stock, the Company agreed to register the
resale of the Common Stock underlying the Preferred Stock and the
Warrants. All expenses of the registration of these shares are being
borne by the Company. The Preferred Stock is convertible into Common
Stock at a price equal to the lesser of a fixed price of $8.05 per
share of Common Stock or a floating price equal to 85% of the
"market price" of the Common Stock at the time of conversion. If the
market price of the Common Stock at the time of conversion is below
$4.00 per share, the Preferred Stock is convertible at a price equal
to 100% of the "market price" at the time of conversion. If the market
price remains below $4.00 for an extended period of time, the Company
has the option of reducing the fixed conversion price to the market
price or reducing the floating conversion price from 100% to 92% of
the "market price" at the time of conversion. In connection with the
placement of the Preferred Stock certain Selling Stockholders received
100,000 fixed-price warrants exercisable at $9.3925 per share (the
"Initial Warrants"). If at least 2,000 shares of the Preferred Stock
remain outstanding on June 20, 1998, certain Selling Stockholders will
receive an additional 100,000 warrants exercisable at 130% of the
"market price" at the time of issuance (the "Additional Warrants").
The Additional Warrants are exercisable within the five years
following issuance. The number of Shares included in the registration
statement of which this prospectus is a part are issuable upon the
conversion of the Preferred Stock and the exercise of Initial and
Additional Warrants and was estimated based on a conversion price
of $6.14125 (which is 85% of the average of the closing bid prices of
the Common Stock reported on the Nasdaq National Market on the five
trading days ending June 19, 1997). The number of shares so
included in the registration statement and offered hereby includes an
indeterminate number of shares issuable upon conversion of or in
respect of the Series B Convertible Preferred Stock and the Initial
and Additional Warrants, as such number may be adjusted as a result of
stock splits, stock dividends and antidilution provisions (including
floating rate conversion prices) in accordance with Rule 416; and
(2) 101,129 shares of Common Stock held by certain Selling Stockholders
which are being registered pursuant to piggyback registration rights
triggered by the registration of the Common Stock relating to the
private placement. Pursuant to the Registration Rights Agreements
relating to these shares, the Selling Stockholders are responsible for
certain expenses and fees of counsel in connection with the
registration of these shares.
At the date hereof, the Preferred Shares may be converted, and the Initial
Warrants may be exercised, at any time and from time to time. The Additional
Warrants will be awarded to certain Selling Stockholders if at least 2,000
shares of the Preferred Stock remain
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outstanding on June 20, 1998, and may be exercised within the five years
following issuance. This Prospectus covers the sale of the Shares from time to
time by the Selling Stockholders. The issuance of Shares upon conversion of the
Preferred Stock or exercise of the Initial or Additional Warrants is not
covered by this Prospectus. This Prospectus covers such Shares only in regard
to resale by the Selling Stockholders or their respective pledgees, donees,
transferees or other successors in interest.
The Shares may be offered from time to time by the Selling Stockholders, or
their respective pledgees, donees, transferees or other successors in interest.
Except as noted in the foregoing, all expenses of this Registration are being
borne by the Company. Any broker's or underwriter's fees or commissions
incurred by the Selling Stockholders in connection with the sale of the Shares
will be borne by the Selling Stockholders. The Company will not receive any
proceeds from the sale of the Shares by the Selling Shareholders.
The Selling Stockholders have not advised the Company of any specific plans
for the distribution of the Shares covered by this Prospectus, but it is
anticipated that the Shares will be sold from time to time by the Selling
Stockholders or their respective pledgees, donees, transferees or other
successors in interest, primarily in transactions (which may include block
transactions, or long or short transactions) on the Nasdaq National Market, or
such other market on which the Company's securities may from time to time be
trading at the market price then prevailing, although sales may also be made in
negotiated transactions or otherwise. The Selling Stockholders and the brokers
and dealers through whom sales of the Shares may be made may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended
(the "Securities Act"), and their commissions or discount and other
compensation may be regarded as underwriter's compensation. See "Selling
Stockholders" and "Plan of Distribution." The Common Stock of the Company is
currently traded on the Nasdaq National Market under the symbol "LVCI". On
July 31, 1997, the last reported sale price of the Common Stock by Nasdaq was
$7.75 per share.
The Company is incorporated in Delaware. The Company's principal executive
offices are located at 540 Maryville Centre Drive, Suite 200, St. Louis,
Missouri 63141, and its telephone number is (314) 434-6900. All references to
the Company refer to the Company and its subsidiaries unless the context
otherwise indicates.
FOR A DISCUSSION OF CERTAIN RISKS OF AN INVESTMENT IN THE SHARES OF COMMON
STOCK OFFERED HEREBY, SEE "RISK FACTORS" BEGINNING ON PAGE 8.
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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.
--------------
The date of this Prospectus is August 11, 1997
LASERVISION(R), LASERVISION CENTERS AND DESIGN(R), LASERVISION CENTERS(R)
LASERVISION CENTER(R) and MobilExcimer(R) are registered service marks of the
Company. This prospectus also includes trademarks of companies other than the
Company.
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PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information, including "Risk Factors," appearing elsewhere in this Prospectus
and the documents incorporated by reference herein.
THE COMPANY
Laser Vision Centers, Inc. is the world's largest provider of access to
excimer lasers and related services for the treatment of refractive vision
disorders and has 40 excimer lasers currently available for use in the United
States, Canada and Europe. The Company is also the world's only operator of
mobile excimer laser systems. The excimer laser can be used to treat refractive
vision disorders such as nearsightedness and astigmatism to eliminate or reduce
the need for corrective lenses. LaserVision Centers(R) operate on a
shared-access model, giving individual or group ophthalmic practices use of
excimer laser technology without investment risk or maintenance requirements,
thereby allowing optimal use of the excimer laser equipment. In addition, the
Company provides a broad range of professional services, including physician
and staff training, technical support services and maintenance and, through its
MarketVision division, advertising and marketing programs and
services.
The Company has operated commercial excimer laser centers in Canada,
Europe, and the U.S. since 1991, 1993, and 1995 respectively. Following the
approval of the excimer laser technology by the FDA to treat certain refractive
vision disorders, the Company began providing access to excimer lasers in the
U.S. at multiple locations. In the U. S., the Company currently operates
fixed site centers and utilizes excimer lasers for mobile access. The mobile
excimer lasers service dozens of U.S. centers. The Company currently provides
excimer lasers and related services to centers in the United States, Canada,
the United Kingdom, Finland, Greece, Sweden and Ireland and operates
MobilExcimers in Canada, the United Kingdom and the U.S. In the United States,
fixed-site laser centers are operated in conjunction with Columbia HCA
Healthcare Corporation ("Columbia") or by the Company independently or through
joint operating agreements.
Photorefractive keratectomy ("PRK") involves the use of an excimer laser to
reshape the cornea, thereby adjusting its refractive power, which in turn
eliminates or reduces the need for corrective lenses. The excimer laser can
also be used to treat a number of pathological superficial corneal disorders in
a procedure called phototherapeutic keratectomy ("PTK"). Two manufacturers,
VISX, Incorporated ("VISX") and Summit Technology, Inc. ("Summit"), have
received FDA approval for use of their excimer lasers to perform PRK procedures
for low to moderate myopia and PTK procedures. In April, 1997 VISX received
FDA approval of use of its excimer laser for PRK in the treatment of
astigmatism. In addition to such procedures, excimer lasers can also be used
to perform a procedure known as laser in situ keratomileusis ("LASIK"), which
may be more predictable in treating high myopia, but which has not been
specifically approved in the United States by the FDA.
An industry source estimates that 145 million people in the United States
currently use eyeglasses and/or contact lenses to correct refractive vision
disorders. Of these individuals, an estimated 66 million suffer from
nearsightedness, with over 60% of nearsighted persons estimated to
have vision disorders within the criteria currently approved by the FDA for
treatment with excimer lasers. The Company estimates that approximately
one-fourth of all sufferers of nearsightedness also experience astigmatism and
an additional 23 million people in the United States suffer from astigmatism
but do not experience nearsightedness. According to industry sources, consumers
in the United States spent approximately $13 billion on eyeglasses, contact
lenses and other corrective lenses in 1994. The Company believes that excimer
laser surgery will make it possible for many of these people to eliminate or
reduce their reliance on corrective lenses. In particular, the Company believes
that many of the approximately 26 million contact lens users in the United
States will be particularly receptive to laser surgery because they have
already chosen to use an alternative to eyeglasses for vision correction.
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In anticipation of the FDA's approval of the excimer laser to perform PRK
procedures, the Company developed a relationship with Columbia Healthcare
whereby the Company would become the primary provider of excimer lasers to
Columbia Healthcare ambulatory surgery centers. Since 1992, the Company has had
an option to provide excimer laser surgery equipment, training and services to
Columbia Healthcare once the excimer laser technology was approved by the FDA.
In December 1994, this mutually exclusive agreement was revised to expand the
number of potential sites to include all of the approximately 130 Columbia
Healthcare ambulatory surgery centers in 27 states nationwide. Currently, the
C company is providing over twenty Columbia centers with fixed or mobile access
to excimer lasers pursuant to this agreement.
In addition to operating fixed-site centers, the Company has developed
the proprietary MobilExcimer system, which is a self-contained mobile
refractive laser surgery center duplicating all of the equipment and services
typically found in a fixed-site location. This proprietary system gives the
Company flexibility that the Company believes is not currently available to its
competitors and is intended to help the Company achieve broader penetration of
both domestic and international markets. The Company plans to use the
MobilExcimer to provide laser access and related services to communities where
the Company's potential patient base is insufficient to sustain a fixed-site
center, thereby enhancing the Company's ability to expand quickly into multiple
markets. On April 7, 1997, the FDA approved the use of the MobilExcimer to
perform PRK procedures for low to moderate myopia in the U.S. and the Company
has begun operation of the MobilExcimer in the Minneapolis area and other parts
of the Upper Midwest. In addition to the MobilExcimer, the Company has
developed a sophisticated laser transport system for the excimer laser which
makes the laser more easily transportable. The company intends to use this
sophisticated system to complement the MobilExcimer in situations where use of
the MobilExcimer is not feasible.
The Company's growth strategy includes the following elements: (i) expanding
the use of its mobile systems (ii) increasing market penetration through a
combination of fixed-site laser centers operated in conjunction with Columbia
Healthcare, by the Company independently or as joint operating agreements;
(iii) targeting efforts toward specific markets and key demographic groups
within those markets; (iv) promoting development of physician alliances
with the goal of maximizing excimer laser usage; (v) expanding its presence
worldwide through complementary acquisitions of other laser providers as well
as acquisitions of related and ancillary businesses; (vi) solidifying and
expanding its existing strategic alliances with health care providers,
equipment manufacturers, major employers and managed care providers and other
third party payors; and (vii) alignment with refractive surgery practices
through its RMSO program. The RMSO is a management services organization
through which the Company will acquire the refractive surgery assets of the
practice of one or more ophthalmologists and enter into a management services
agreement with the practice in exchange for a combination of cash, company
stock and stock options.
MarketVision is the Company's ophthalmic marketing division. MarketVision
provides marketing services designed to increase ophthalmic surgical volume.
Risk factors which should be considered carefully in evaluating an investment
in the Common Stock include the absence of profitable operations, the
uncertainty of market acceptance of excimer laser surgery, competition, the
Company's dependence on limited sources of excimer lasers, government
regulation, uncertainty of restrictions on the Company's "Roll-on/Roll-off"
system, the lack of long-term follow-up data and undetermined medical risks
with respect to the effect of excimer laser surgery, product liability and
professional liability, the Company's ability to manage its growth and its
dependence on current management, the possible need for additional financing
and the volatility of the price of the Common Stock.
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Except for the historical information contained herein, the discussion in this
Prospectus contains forward-looking statements that involve risks and
uncertainties. The Company's actual results could differ materially from those
discussed here. Factors that could cause or contribute to such differences
include, but are not limited to, those discussed in the sections entitled "Risk
Factors" as well as those discussed elsewhere in this Prospectus and any
documents incorporated herein by reference.
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RISK FACTORS
In addition to the other information contained in this Prospectus, the
following factors should be considered carefully in evaluating an investment in
the Common Stock.
ABSENCE OF PROFITABLE OPERATIONS
The Company commenced operations in 1989 and has recorded net losses from its
LaserVision Centers division in every year since inception. The accumulated
deficit as of April 30, 1997 was approximately $28,511,000. The Company
anticipates continued losses from operations due to expenditures required to
support its U.S. expansion. There can be no assurance that the Company will be
able to achieve profitability, or that, if achieved, profitability will be
sustained.
UNCERTAINTY OF MARKET ACCEPTANCE
The Company believes that its profitability and growth will depend upon broad
acceptance of PRK in the United States and key international markets targeted
by the Company. There can be no assurance that PRK will be accepted by either
the ophthalmic community or the general population as an alternative to
existing methods of treating refractive vision disorders. To date, PRK has not
achieved sufficient market acceptance in Europe or Canada for the Company to
sustain profitable operations, and there can be no assurance that PRK will
obtain sufficient market acceptance in the U.S. to achieve profitable
operations. Currently, patients are charged approximately $1,500 to $2,200 per
eye for the procedure. The acceptance of PRK may be affected adversely by its
cost, concerns relating to its safety and efficacy, general resistance to
surgery, the effectiveness of alternative methods of correcting refractive
vision disorders, the lack of long-term follow-up data, the possibility of
unknown side effects and the lack of third-party reimbursement for the
procedure. Many consumers may choose not to have PRK procedures performed due
to the availability of nonsurgical methods for vision correction. Any future
reported adverse events or other unfavorable publicity involving patient
outcomes from use of PRK systems could also adversely affect acceptance of the
procedure. Market acceptance could also be affected by the ability of the
Company and other participants in the PRK market to train a broad population of
ophthalmologists in the procedure. Promotional efforts by suppliers of products
or procedures which are alternatives to PRK procedures, including eyeglasses
and contact lenses, may also adversely affect the market acceptance of PRK. The
failure of PRK to achieve broad market acceptance would have a material adverse
effect on the Company's business, financial condition and results of
operations.
COMPETITION
The market for providing access to excimer lasers is subject to increasingly
intense competition. The Company competes with several other companies,
including one manufacturer of laser equipment, in providing access to excimer
lasers in the United States and internationally. Other companies are currently
in the process of gaining FDA approval for their lasers and these companies may
elect to enter the laser center business. Other non-manufacturing companies
which have indicated they intend to operate or already operate laser centers in
the United States are: Beacon Laser Centers, Inc., LCA Vision, Inc., Sight
Resources, Inc., Sterling Vision, Inc., The Laser Centre (TLC) and its
subsidiary, 20/20 Laser Centers, Inc. The Company will also compete with laser
centers operated by local operators in certain markets. There can be no
assurance that any reduction in per procedure fees that may result from
increased competition will be compensated for by an increase in procedure
volume.
The procedures offered by the Company's LaserVision Centers also compete with
other present forms of treatment for refractive disorders, including
eyeglasses, contact lenses, refractive surgery, corneal transplants and other
technologies currently under development. The Company expects that companies
which have developed or are developing new technologies or products, as well as
other companies (including established and newly formed companies) may attempt
to develop new products directly competitive with the excimer lasers that are
to be utilized by the Company or could introduce new or enhanced products with
features which render the
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equipment to be used by the Company obsolete or less marketable. The ability of
the Company to compete successfully will depend in large part on its ability to
adapt to technological changes and advances in the treatment of refractive
vision disorders. There can be no assurance that, as the market for excimer
laser surgery and other treatments of eye disorders develops, the Company's
equipment will not become obsolete, and if this occurs, that the Company will
be able to secure new equipment to allow it to compete effectively.
The advertising and marketing businesses in which the Company's MarketVision
division is engaged are highly competitive. Clients have the freedom to move
from one advertising agency to another with comparative ease since the
relationships normally can be terminated on short notice. The MarketVision
division competes with several national and regional ophthalmic specialty
marketing companies, as well as national and local advertising agencies which
may handle diverse client activities. MarketVision may be hampered by its
affiliation with LaserVision Centers in that some customers may consider them
competitors which could adversely affect the ability of this division to
continue to attract outside business.
DEPENDENCE ON LIMITED SOURCES OF LASERS
The Company is dependent on VISX and Summit to provide the excimer
lasers it needs for U.S. operations. VISX and Summit are currently the only
manufacturers of excimer lasers that have FDA approval to sell such lasers for
use in performing PRK and PTK procedures. There can be no assurance that VISX
and Summit will supply lasers in the amounts or at the times needed by the
Company now or in the future or that other disruptions in supply will not
occur.
GOVERNMENT REGULATION
The manufacturing, labeling, distribution and marketing of medical devices
such as the excimer lasers to which the Company provides access are subject to
extensive and rigorous government regulation in the United States by the FDA.
The excimer lasers to which the Company provides access have been approved by
the FDA for certain uses.
Once FDA approval is obtained, manufacturers are subject to continuing FDA
obligations. Medical devices are required to be manufactured in accordance with
regulations setting forth current Good Manufacturing Practices, which require
that devices be manufactured and records be maintained in a prescribed manner
with respect to manufacturing, testing and control activities. It is the FDA's
view that with respect to excimer lasers, users, as well as manufacturers, are
required to comply with FDA requirements with respect to labeling and
promotion. Failure to comply with applicable FDA requirements could subject
laser manufacturers and the Company to enforcement action, including product
seizures, recalls, withdrawal of approvals, and civil and criminal penalties,
any one or more of which could have a material adverse effect on the Company's
business, financial condition and results of operations. In addition,
clearances or approvals could be withdrawn in appropriate circumstances.
Failure of the Company or its principal suppliers to comply with regulatory
requirements, or any adverse regulatory action could have a material adverse
effect on the Company's business, financial condition and results of
operations.
There are currently two manufacturers, VISX and Summit, that have received FDA
approval to market excimer lasers for PRK for low to moderate myopia
(nearsightedness) and for PTK. VISX has also recently received FDA approval to
market its excimer lasers for PRK for the treatment of astigmatism. Lack of
timely FDA approval for use of PRK for other indications, such as hyperopia,
could have a material adverse effect on the Company's planned expansion in the
United States market. The process of obtaining FDA approval of medical devices
is time consuming and expensive, and there can be no assurance that any
approval sought will be granted or that FDA review will not involve delays.
Even after regulatory clearance is obtained, approval of medical devices is
subject to review. Discovery of problems, violations of the Radiation Control
for Health and Safety Act or future legislative or administrative action in the
United States or elsewhere may adversely affect the manufacturers' ability to
retain regulatory approval of any such equipment. Furthermore, the failure of
VISX, Summit or any other manufacturers that supply excimer lasers to the
Company to comply with
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applicable federal, state, or foreign regulatory requirements, or any adverse
regulatory action against such manufacturers, could limit the supply of lasers
or limit the ability of the Company to use the lasers. The inability of the
Company to obtain lasers for sale or use in the United States or elsewhere due
to lack of regulatory approval, or otherwise, could prevent the Company from
establishing or maintaining LaserVision Centers and MobilExcimers, which would
have a material adverse effect on the Company's business, financial condition
and results of operations.
Medical device laws and regulations are also in effect in many of the
countries in which the Company currently conducts or may in the future conduct
business outside the U.S. These range from comprehensive device approval
requirements to requests for product data or certifications. The number and
scope of these requirements are increasing. International regulatory
requirements vary by country and there can be no assurance that the
manufacturers of the excimer lasers to which the Company provides access will
receive additional international regulatory approvals. Failure to receive such
approvals in, or meet the requirements of, any country could prevent the
Company from operating in that country, which could have a material adverse
effect on the Company's business, financial condition and results of
operations. Medical device laws and regulations are also in effect in some
states in which the Company currently conducts or may in the future conduct
business. State and foreign medical device laws and regulations could have a
material adverse effect on the Company's business, financial condition and
results of operation.
UNCERTAINTY OF RESTRICTIONS ON LASER TRANSPORT SYSTEM
In conjunction with its use of the MobilExcimer, the Company uses a
sophisticated transport system as part of its multiple site strategy. See "Risk
Factors -- Government Regulation." The Company believes that this sophisticated
transport system does not require FDA approval and the FDA has taken no
position in regard to such approval. It is possible, however, that the FDA may
take the position that excimer lasers are not approved for use in this
transport system. Such a view by the FDA could lead to an enforcement action
against the Company, which action could have a material adverse effect on the
Company's business, financial condition and results of operations.
LACK OF LONG-TERM FOLLOW-UP DATA; UNDETERMINED MEDICAL RISKS
Concerns with respect to the safety and efficacy of PRK include predictability
and stability of results. Potential complications and side effects include:
post-operative discomfort; corneal haze during healing (an increase in the
light scattering properties of the cornea); glare/halos (undesirable visual
sensations produced by bright lights); decreases in contrast sensitivity;
temporary increases in intraocular pressure in reaction to procedure
medication; modest fluctuations in refractive capabilities during healing;
modest decreases in best corrected vision (i.e., with corrective lenses);
unintended over- or under-corrections; regression of effect; disorders of
corneal healing; corneal scars; corneal ulcers and induced astigmatism. The
procedure involves the removal of "Bowman's layer," an intermediate layer
between the epithelium (outer corneal layer) and the stroma (middle corneal
layer). Although clinical studies conducted to date have demonstrated no
significant adverse reactions to excimer laser removal of Bowman's layer, it is
unclear what effect this will ultimately have on the patient. There can be no
assurance that long-term follow-up data will not reveal additional
complications that may have a material adverse effect on acceptance of PRK
which in turn would have a material adverse effect on the Company's business,
financial conditions and results of operations. Concern over the safety of PRK
or other procedures could in turn adversely affect market acceptance of PRK or
result in adverse regulatory action, including product recalls, any of which
could have a material adverse effect on the Company's business, financial
condition and results of operations.
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PRODUCT LIABILITY AND PROFESSIONAL LIABILITY
Inherent in the use of human health care devices is the potentially
significant risk of physical injury to patients which could result in product
liability or other claims based upon injuries or alleged injuries associated
with a defect in the product's performance, which may not become evident for a
number of years. Therefore, the operation of any LaserVision Center and the use
of refractive laser equipment may result in substantial claims against the
Company by patients who allege they were injured as a result of surgical
procedures using the refractive laser equipment. The Company has "umbrella"
product and professional liability insurance in the amount of $1.0 million
(aggregate and per occurrence), but primarily relies and intends to continue to
rely on physicians' professional liability insurance policies and
manufacturers' insurance policies for product liability coverage. The Company
requires its center operators to maintain certain levels of professional
liability insurance, and the agreements between the Company and its center
operators contain certain cross indemnification provisions. There can be no
assurance, however, that physician users will carry sufficient insurance and a
partially or completely uninsured successful claim against the Company could
have a material adverse effect on the Company's business, financial condition
and results of operations.
MANAGEMENT OF GROWTH
The Company's gross revenues have increased in each of the last five fiscal
years. While the Company has increased its expense levels to support its recent
and expected growth, including the hiring of additional personnel, there can be
no assurance that the Company's revenue growth can be sustained. To accommodate
its recent growth, the Company will need to implement a variety of new or
expanded business and financial systems, procedures and controls, including the
improvement of its accounting, marketing and other internal management systems.
There can be no assurance that the implementation of such systems, procedures
and controls can be completed successfully, or without disruption of the
Company's operations. Continued expansion of the Company could significantly
strain the Company's management, financial and other resources. In addition,
the Company has hired and will be required to hire in the future substantial
numbers of new employees, particularly personnel to support its MobilExcimer
operations. There can be no assurance that the Company's systems, procedures,
controls and staffing will be adequate to support the Company's operations.
Failure to manage the Company's growth effectively could have a material
adverse effect on the Company's business, financial condition and results of
operations.
DEPENDENCE UPON MANAGEMENT
The future success of the Company is dependent in part on its ability to
recruit and retain certain key personnel, including John J. Klobnak, Chief
Executive Officer and Chairman of the Board. The loss of the services of
certain members of management, or other key personnel, could have a material
adverse effect on the Company. The Company is the beneficiary of key-man life
insurance policies ranging from $500,000 to $1.0 million on certain members of
management, but there can be no assurance that the benefits under these
policies will be sufficient to compensate the Company for the loss of the
services of any of such persons.
POSSIBLE NEED FOR ADDITIONAL FINANCING
Although the Company anticipates that the net proceeds of its recent placement
of Series B Convertible Preferred Stock and its cash flow from its operations
will be sufficient to fund the Company's operations, including its proposed
expansion, during the next two years, there can be no assurance that the
Company will not require additional financing prior to the end of such period.
In any event, the Company expects to require additional financing after such
period. The Company's future liquidity and capital requirements will depend on
numerous factors, many of which are outside the control of the Company. Future
financings may result in the issuance of senior securities or in dilution to
the holders of the Common Stock. Any such financing, if required, may not be
available on satisfactory terms or at all.
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<PAGE> 12
VOLATILITY OF STOCK PRICE
The market price of the Common Stock has historically been subject to
substantial price volatility. Such volatility may recur in the future due to
overall market conditions or business specific factors such as the Company's
ability to effectively penetrate the market, new technological innovations and
products, changes in government regulations, developments with respect to
patent or proprietary rights, public concerns with regard to safety and
efficacy of various medical procedures, the issuance of new or changed stock
market analyst reports and recommendations, the Company's ability to meet
analysts' projections and fluctuations in the Company's financial results. In
addition, the Common Stock could experience extreme fluctuations in market
price which are wholly unrelated to the operating performance of the Company.
QUARTERLY FLUCTUATIONS IN OPERATING RESULTS
Results of operations have varied and may continue to fluctuate significantly
from quarter to quarter and will depend upon numerous factors, including: (i)
the opening and closing of centers; (ii) the purchase of additional lasers and
other equipment; (iii) competition and (iv) seasonal factors. Historically, the
Company's third quarter results have reflected fewer procedures due to holiday
schedules and less available disposable income to pay for elective surgery such
as PRK. Due to such past and future quarterly fluctuations in operating
results, quarter-to-quarter comparisons of the Company's operating results are
not necessarily meaningful and should not be relied upon as indications of
likely future performance or annual operating results.
SHARES ELIGIBLE FOR FUTURE SALE; POTENTIAL FOR DILUTION
As of July 31, 1997, options issued pursuant to the Company's Incentive
and Non-Qualified Stock Option Plans to purchase up to 452,551 shares of Common
Stock exercisable over the next several years were outstanding at prices
ranging from $3.00 to $16.625. As of July 31, 1997, non-qualified warrants
issued to employees and consultants to purchase up to 1,099,700 shares of
Common Stock exercisable over the next several years at prices ranging from
$5.00 to $12.4375 were outstanding. As of July 31, 1997, Class C, D and E
warrants and certain warrants issued to underwriters in connection with the
Company's 1993 public offering to purchase an aggregate of 110,538 shares of
Common Stock exercisable over the next several years at prices ranging from
$5.00 to $7.25 were outstanding. In the event one of the Company's lenders
provides additional funding the Company will be required to issue up to 10,000
additional non-qualified warrants to such lender. The shares of Common Stock
issuable upon exercise of the foregoing options and warrants have been
registered and will be freely tradeable upon exercise.
As of July 31, 1997, additional warrants and options to purchase
767,593 shares of Common Stock issued to employees, directors and consultants
of the Company and exercisable over the next several years at prices ranging
from $5.25 to $9.00 were outstanding. The shares of Common Stock issuable upon
exercise of these warrants are not registered and may be sold only if
registered under the Securities Act or sold in accordance with an applicable
exemption from registration, such as Rule 144 or Rule 701.
As of July 31, 1997 6,000 shares of the Company's Series B Convertible
Preferred Stock (the "B Preferred Stock") were issued and outstanding. Each
share of the B Preferred Stock is convertible into such number of shares of
Common Stock as is determined by dividing the stated value ($1,000) of the
share of B Preferred Stock (as such value is increased by a premium based on
the number of days the B Preferred Stock is held) by the then current
Conversion Price (which is determined by reference to the then current market
price). If converted on July 31, 1997, the B Preferred Stock would have been
convertible into approximately 931,858 shares of Common Stock, but this number
of shares could prove to be significantly greater in the event of a decrease in
the trading price of the Common Stock. Purchasers of Common Stock could
therefore experience substantial dilution of their investment upon conversion
of the B Preferred Stock. The shares of B Preferred Stock are not registered
and may be sold only if registered under the Securities Act or sold in
accordance with an applicable exemption from registration, such as Rule 144 or
Rule 701. The shares of Common Stock into which the B Preferred Stock may be
converted are being registered pursuant to this Registration Statement.
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<PAGE> 13
As of July 31, 1997, "Initial Warrants" to purchase 100,000 shares of Common
Stock issued to the purchasers of the B Preferred Stock and exercisable over
the next five years at a price of $9.3925 (as may be adjusted from time to time
under certain antidilution provisions) were outstanding. The shares of Common
Stock issuable upon exercise of these warrants are being registered pursuant to
this Registration Statement.
In the event that at least 2,000 shares of the Preferred Stock have not been
converted as of June 20, 1998, "Additional Warrants" to purchase 100,000 shares
of Common Stock will be issued to the purchaser of the Preferred Stock and
exercisable over the next five years at a price to be determined upon issuance
based upon market prices of the Common Stock (as may be adjusted from time to
time under certain antidilution provisions). The shares of Common Stock
issuable upon exercise of these warrants are being registered pursuant to this
Registration Statement.
As of July 31, 1997, 2,430,382 shares of Common Stock were reserved for
issuance upon exercise of such outstanding warrants and options and an
additional 2,354,000 shares of Common Stock were reserved for issuance
upon conversion of the preferred stock and exercise of the Initial Warrants and
Additional Warrants. An additional 10,000 shares of Common Stock were reserved
for issuance upon exercise of warrants issuable upon the occurrence of certain
events. At July 31, 1997, there were 8,838,057 shares of Common Stock
outstanding. Of these outstanding shares, 8,719,626 were freely tradeable
without restriction under the Securities Act unless held by affiliates.
EFFECT OF CERTAIN CHARTER AND BYLAW PROVISIONS; PREFERRED STOCK
The Company's Amended Certificate of Incorporation authorizes the issuance of
"blank check" preferred stock with such designations, rights and preferences as
may be determined from time to time by the Board of Directors. Accordingly, the
Board of Directors is empowered, without stockholder approval, to issue
preferred stock with dividend, liquidation, conversion, voting or other rights
which could adversely affect the voting power or other rights of the holders of
the Common Stock, thus making it difficult for a third party to obtain voting
control of the Company. In the event of issuance, the preferred stock could be
utilized, under certain circumstances, as a method of discouraging, delaying or
preventing a change in control of the Company.
The Company currently has authorized 1,000,000 shares of Preferred Stock and,
of this amount, has designated 180,000 shares of its Series A Convertible
Preferred Stock and 6,000 shares of its Series B Convertible Preferred Stock.
In October, 1995, 141,000 shares of Series A Convertible Preferred Stock were
issued for an aggregate consideration of $14.1 million. As of September 20,
1996, all of these shares were converted into 2,349,991 shares of Common Stock.
On June 20, 1997, the Company issued 6,000 shares of Series B Convertible
Preferred Stock for an aggregate consideration of $6 million (this price
included payment for the Initial Warrants included in that transaction, see
Risk Factors - Shares Eligible for Future Sale; Potential for Dilution) and as
of July 31, 1997 all of these shares remained outstanding.
The Company's Amended Certificate of Incorporation includes certain
anti-takeover provisions designed to make the Company a less attractive target
for an acquisition of control by an outsider that does not have the support of
the Company's Board of Directors. These provisions include requirements that
certain business combinations involving persons owning beneficially at least
10% of the Company's shares be approved by both an 80% vote of all outstanding
shares and also a majority vote of all outstanding shares not owned
beneficially by persons involved in such business combinations. These
provisions may discourage a third party from attempting to acquire control of
the Company and may lower the price that an investor may be willing to pay for
shares of the Common Stock.
ABSENCE OF DIVIDENDS
The Company has never declared or paid any cash dividends and anticipates that
for the foreseeable future it will follow a policy of not declaring dividends
and instead retaining earnings, if any, for use in its business.
INTELLECTUAL PROPERTY/PROPRIETARY TECHNOLOGY
The names LASERVISION(R), LASERVISION CENTERS AND DESIGN(R), LASERVISION
CENTERS(R),
13
<PAGE> 14
LASERVISION CENTER(R) and MobilExcimer(R) are registered U.S. service marks of
the Company. In addition, the Company owns service mark registrations in a
number of foreign countries. The Company has also secured a patent for the
MobilExcimer mounting system and has applied for a patent for certain aspects
of its laser transport system. The Company's service marks, MobilExcimer patent
and other proprietary technology may offer the Company a competitive advantage
in the marketplace and could be important to the success of the Company. There
can be no assurance that one or all of these registrations will not be
challenged, invalidated or circumvented in the future. The Company is currently
involved in one legal proceeding which could result in an adverse impact on its
rights to certain of such registrations. Litigation regarding intellectual
property is common and there can be no assurance that the Company's service
mark registrations and patent will significantly protect the Company's
intellectual property. The defense and prosecution of intellectual property
proceedings is costly and involves substantial commitments of management time.
Failure to successfully defend the Company's rights with respect to its
intellectual property could have a material adverse effect on the Company's
business, financial condition and results of operations.
FOREIGN EXCHANGE RATES AND CURRENCY CONTROLS
The Company expects that a declining percentage of its revenues will be earned
outside of the U.S. and will be in currencies other than the U.S. dollar during
at least the next few years. Fluctuations in the exchange rate between the U.S.
dollar and foreign currencies, especially the U.K. pound, Canadian dollar and
Swedish krona, could adversely affect the operations of the Company in the
short term. In addition, the U.S. or foreign governments could impose currency
controls which would limit, or prohibit, the Company's access to funds remitted
outside the U.S.
14
<PAGE> 15
THE COMPANY
The Company is incorporated in Delaware. The Company's principal executive
offices are located at 540 Maryville Centre Drive, Suite 200, St. Louis,
Missouri 63141, and its telephone number is (314) 434-6900. All references to
the Company refer to the Company and its subsidiaries unless the context
otherwise indicates.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares by the
Selling Stockholders. The Company has agreed to pay certain expenses of the
registration of the Shares by the Selling Stockholders.
DESCRIPTION OF SECURITIES TO BE REGISTERED
The Shares offered hereby are shares of Common Stock of the Company.
Dividends may be paid on the Common Stock of the Company at the discretion of
the Board of Directors, but no dividend or distribution may be made to holders
of Common Stock other than a dividend payable in Common Stock of the Company
until all accrued dividends on Preferred Stock of the Company have been paid.
The Common Stock has exclusive voting power except as required by law and
except to the extent that voting rights are granted in connection with the
issue of Preferred Stock. There are no preemptive rights in conjunction with
ownership of the Common Stock of the Company.
The Company's Articles of Incorporation contain an anti-takeover provision
which makes the company a less attractive target for an acquisition of control
by an outsider which does not have the support of the Company's Board of
Directors. This provision requires an affirmative vote of 80% of all
outstanding shares to approve certain business combinations involving entities
owning beneficially at least 10% of the Company's shares. It also requires
that such business combinations be approved by a majority of the outstanding
shares, excluding any shares owned beneficially by entities seeking to
participate in such business combinations.
The Company's Amended Certificate of Incorporation authorizes the issuance of
"blank check" preferred stock with such designations, rights and preferences as
may be determined from time to time by the Board of Directors. Accordingly,
the Board of Directors is empowered, without stockholder approval, to issue
preferred stock with dividend, liquidation, conversion, voting or other rights
which could adversely affect the voting power or other rights of the holders of
the Company's Common Stock, thus making it difficult for a third party to
obtain voting control of the Company. In the event of issuance, the preferred
stock could be utilized, under certain circumstances, as a method of
discouraging, delaying or preventing a change in control of the Company.
15
<PAGE> 16
SELLING STOCKHOLDERS
The table below sets forth the names of the Selling Stockholders, the number
of Shares which may be sold respectively by the Selling Stockholders as of the
date of this Prospectus, regardless of whether such Selling Stockholders have a
present intent to sell, and the number of Shares which may be offered for
resale pursuant to this Prospectus. The number of Shares included in the
registration statement on file with the Commission of which this Prospectus is
a part and the number of shares offered hereby (i) is based, in part, upon an
estimate of the number of Shares to be issued upon conversion of the
Preferred Stock utilizing a hypothetical conversion price of $6.14125, (ii) is
subject to adjustment and (iii) could be materially less or more than such
estimated amount depending on factors which cannot be predicted by the Company
at this time, including, among others, the future market price of the Common
Stock. The use of such hypothetical price is not intended, and should in no
way be construed, to constitute a prediction as to the future market price of
the Common Stock.
The information included below is based upon information provided by the
Selling Stockholders. Because the Selling Stockholders may offer all, some or
none of the Shares, no definitive estimate as to the number of Shares that will
be held by the Selling Stockholders after this offering of the Shares can be
provided and the table below has been prepared on the assumption that all of the
Shares offered under this Prospectus will be sold to unaffiliated parties. The
Shares are being registered to permit public secondary trading of the Shares,
and the Selling Stockholders may offer the Shares for resale from time to time.
See "Plan of Distribution."
The Shares being offered by the Selling Stockholders hereby are authorized
shares of the Common Stock of the Company which consist of:
(i) 2,354,000 Shares currently reserved by the Company for issue
pursuant to the terms of a private placement of 6,000 shares of Series
B Convertible Preferred Stock of the Company (the "Series B
Preferred"). Selling Stockholder RGC International Investors, LDC
("RGC") listed below holds all of the issued and outstanding shares of
the Series B Preferred. RGC is entitled to convert its shares of the
Series B Preferred into Shares and also has been awarded certain
warrants (the "Initial Warrants") and contingent warrants (the
"Additional Warrants") which RGC may exercise under certain
circumstances in order to purchase Shares at specified times and
prices. Pursuant to the Preferred Stock and private placement
agreements, the Company agreed to register the Shares at its cost to
remove the restriction upon free transferability. The Company has no
knowledge as to when and if RGC will (a) convert any or all of its
shares of Series B Preferred into Shares or exercise any or all of its
Initial or Additional Warrants in order to purchase Shares, or (b)
desire to offer Shares so acquired for sale upon the open market once
registration is completed; and
(ii) 101,129 Shares currently held by Selling Stockholders listed
below that were issued in connection with the Company's acquisitions
of Vision Correction, Inc. and Med-Source, Inc. and the Company's
buyout of its joint participant in a fixed laser center located in
London, England.
The following table sets forth certain information with respect to beneficial
ownership of the Common Stock as of July 31, 1997 by each of the Selling
Stockholders.
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<PAGE> 17
<TABLE>
<CAPTION>
Shares and
Common Stock Percentage of
Owned as of Shares Being Class after
Name 7/31/97 Offered Offering
- ---- ------- ------- --------
<S> <C> <C> <C>
RGC International Investors, LDC (1) 2,354,000 2,354,000 0
John C. Skoglund (2) 2,347 2,347 0
Paul Ehlen (2) 6,823 6,823 0
Kenneth P. Cameron (2) 6,823 6,823 0
Tom Eakins (2) 6,823 6,823 0
William E. Naegele (2) 939 939 0
Charles Ehlen (2) 9,390 9,390 0
The Arnott Eye Center (3) 17,000 17,000 0
Mary M. & John P. Weitzel (2) 4,695 4,695 0
Marshall H. & Lenore D.
Everson (2) 2,347 2,347 0
Vance M. Thompson, M.D. (2) 6,823 6,823 0
J. D. Salisbury (2) 1,878 1,878 0
Henry L. Reichert, M.D. (2) 4,695 4,695 0
Richard L. Lindstrom, M.D. (4) 87,961 6,823 1%
T. Wesley Dunn (5) 78,226 21,845 1%
George O. Waring, M.D. (2) 939 939 0
Jerome Poland, M.D. (2) 939 939 0
</TABLE>
(1) Selling Stockholder has had no material relationship with the Company
within the past three years other than its purchase of the Series B Preferred
and warrants underlying a portion of the Shares being registered hereunder. The
number of shares listed in the table for this Selling Stockholder assumes,
based upon the conversion price computed as of issuance of the Series B
Preferred, that the shares of Series B Preferred are converted at a conversion
price of $6.14125 per share and no limits or adjustments are applicable.
Pursuant to the terms of the Series B Preferred, if the Series B Preferred had
been actually converted on July 31, 1997 the conversion price would have been
$6.43875 (85% of the average of the daily low trading price of the Common Stock
for the five trading days immediately preceding such date) at which price the
Series B Preferred would have been converted into approximately 931,858 shares
of Common Stock. Pursuant to the terms of the Series B Preferred, the shares of
Series B Preferred are convertible by any holder only to the extent that the
number of shares of Common Stock thereby issuable, together with the number of
shares of Common Stock owned by such holder and its affiliates (but not
including shares of Common Stock underlying unconverted Debentures) would not
exceed 4.9% of the then outstanding Common Stock as determined in accordance
with Section 13(a) of the Exchange Act. Accordingly the number of shares of
Common Stock set forth in the table for this Selling Stockholder exceeds the
number of shares of Common Stock that this Selling Stockholder could own
beneficially at any given time through their ownership of the Series
17
<PAGE> 18
B Preferred. In that regard, beneficial ownership of this Selling Stockholder
set forth in the table is not determined in accordance with Rule 13d-3 under
the Exchange Act.
(2) Formerly affiliated with Vision Correction, Inc. which was purchased by the
Company in August, 1995. Selling Stockholder(s) acquired the Shares offered
hereby in connection with that purchase.
(3) Until October, 1996, Selling Stockholder was a co-owner with the Company
relating to the operation of a fixed-laser center in London, England. Selling
Stockholder acquired the Shares offered hereby in connection with the sale of
its interest in the London Center to the Company.
(4) Formerly affiliated with Vision Correction, Inc. which was purchased by the
Company in August, 1995. Selling Stockholder acquired the Shares offered hereby
in connection with that purchase. In January, 1997, Selling Stockholder entered
into an RMSO agreement with the Company. Selling Stockholder has served as a
Director and Medical Director of the Company since August, 1995.
(5) Formerly affiliated with Med-Source, Inc. which was purchased by the
Company in February, 1996. Has served as a Vice President of the Company since
February, 1996.
Although RGC has not advised the Company that it currently intends to
convert its Series B Preferred stock or exercise the Initial or Additional
Warrants and none of the Selling Stockholders has advised the Company that it
currently intends to sell the Shares pursuant to this Registration, RGC,
following conversion of Series B Preferred or exercise of Initial or Additional
Warrants, may choose to sell all or a portion of the Shares from time to time,
as market conditions permit, in transactions in the national market, in
negotiated transactions, through the writing of options on the Shares, short
sales or a combination of such methods of sale, at fixed prices which may be
charged, at market prices prevailing at the time of sale, or at negotiated
prices. The shares offered hereby may be sold by one or more of the following
methods, without limitation: (a) a block trade in which a broker or dealer so
engaged will attempt to sell the shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction; (b) purchases
by a broker or dealer as principal and resale by such broker or dealer for its
account pursuant to this Prospectus; (c) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; and (d) face-to-face
transactions between sellers and purchasers without a broker-dealer. In
effecting sales, brokers or dealers engaged by the Selling Shareholders may
arrange for other brokers or dealers to participate. Such brokers or dealers
may receive commission or discounts from Selling Shareholders in amounts to be
negotiated immediately prior to the sale. The Selling Shareholders and any
broker-dealers that act in connection with the sale of the Shares might be
deemed to be "underwriters" within the meaning of Section 2(11) of the Act and
any commission received by them and any profit on the resale of the Shares as
principal might be deemed to be underwriting discounts and commission under the
Act. In addition, any securities covered by this Prospectus that qualify for
sale pursuant to Rule 144 might be sold under Rule 144 rather than pursuant to
this Prospectus.
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<PAGE> 19
PLAN OF DISTRIBUTION
The Shares being offered by the Selling Stockholders or their respective
pledgees, donees, transferees or other successors in interest, will be sold in
one or more transactions (which may involve block transactions) on the Nasdaq
National Market or on such other market on which the Common Stock may from time
to time be trading, in privately-negotiated transactions, through the writing
of options on the Shares, short sales or any combination thereof. The sale
price to the public may be the market price prevailing at the time of sale, a
price related to such prevailing market price or such other price as the
Selling Stockholders determine from time to time. The Shares may also be sold
pursuant to Rule 144. The Selling Stockholders shall have the sole and
absolute discretion not to accept any purchase offer or make any sale of Shares
if they deem the purchase price to be unsatisfactory at any particular time.
The Selling Stockholders or their respective pledgees, donees, transferees or
other successors in interest, may also sell the Shares directly to market
makers acting as principals and/or broker-dealers acting as agents for
themselves or their customers. Brokers acting as agents for the Selling
Stockholders will receive usual and customary commissions for brokerage
transactions, and market makers and block purchasers purchasing the Shares will
do so for their own account and at their own risk. It is possible that a
Selling Stockholder will attempt to sell shares of Common Stock in block
transactions to market makers or other purchasers at a price per share which
may be below the then market price. There can be no assurance that all or any
of the Shares offered hereby will be issued to, or sold by, the Selling
Stockholders. The Selling Stockholders and any brokers, dealers or agents, upon
effecting the sale of any of the Shares offered hereby, may be deemed
"underwriters" as that term is defined under the Securities Act or the Exchange
Act, or the rules and regulations thereunder.
The Selling Stockholders, alternatively, may sell all or any part of the
Shares offered hereby through an underwriter. No Selling Stockholder has entered
into any agreement with a prospective underwriter and there is no assurance that
any such agreement will be entered into. If a Selling Stockholder enters into
such an agreement or agreements, the relevant details will be set forth in a
supplement or revisions to this Prospectus.
The Selling Stockholders and any other persons participating in the sale or
distribution of the Shares will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, which provisions may
limit the timing of purchases and sales of any of the Shares by the Selling
Stockholders or any other such person. The foregoing may affect the
marketability of the Shares.
The Company has agreed to indemnify the Selling Stockholders, or their
transferees or assignees, against certain liabilities, including liabilities
under the Securities Act, or to contribute to payments the Selling Stockholders
or their respective pledgees, donees, transferees or other successors in
interest, may be required to make in respect thereof.
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<PAGE> 20
LEGAL MATTERS
The validity of the Common Stock offered hereby and certain other legal
matters will be passed upon for the Company by Dankenbring, Greiman, Osterholt &
Hoffmann, P.C., St. Louis, Missouri.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and in accordance therewith
files reports and other information with the Securities and Exchange Commission
(the "Commission"). Reports, proxy statements and other information filed by
the Company with the Commission may be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Room 1024, Judiciary Plaza, Washington, D.C. 20549 and at its regional offices
located at Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661 and 7 World Trade Center, Suite 1300, New York, New
York 10048. Copies of such material may also be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates, or from the Commission's Internet web site at
http://www.sec.gov. In addition.
The Company has filed with the Commission a Registration Statement on Form S-3
under the Securities Act of 1933, with respect to the securities offered by
this Prospectus. This Prospectus does not contain all the information set forth
in the Registration Statement and the exhibits and schedules thereto. For
further information with respect to the Company and the Common Stock offered
hereby, reference is made to the Registration Statement and to the exhibits.
Statements contained in this Prospectus as to the contents of any contract or
other documents referred to in this Prospectus are not necessarily complete,
and, in each instance, reference is made to the copy of such contract or other
document filed as an exhibit to the Registration Statement, each such statement
being qualified in all respects by such reference. The Registration Statement
may be inspected without charge at the Commission's principal office and copies
may be obtained upon payment of the prescribed fee at the Public Reference Room
of the Commission at 450 Fifth Street, NW, Washington, DC 20549.
INFORMATION INCORPORATED BY REFERENCE
The following documents, heretofore filed by the Company with the Commission
pursuant to the Exchange Act, are hereby incorporated by reference:
(1) The Company's Annual Report on Form 10-K for the year ended April 30,
1997.
(2) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission on
November 5, 1993.
All reports and other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of this Offering shall be deemed to be
incorporated by reference into this Prospectus and shall be a part hereof from
the date of filing of such reports and documents. Any statement incorporated
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of this
Prospectus is delivered, upon the written or oral request of any such person, a
copy of any report or document described above (other than exhibits, unless
such exhibits are specifically incorporated by reference herein). Requests for
such copies should be directed to the Company at its principal executive
offices located at 540 Maryville Centre Drive, Suite 200, St. Louis, Missouri
63141, telephone (314) 434-6900, attention, Robert W. May.
20
<PAGE> 21
==============================================================================
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION
OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFER CONTAINED HEREIN, AND IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF AN OFFER TO BUY SHARES OF COMMON STOCK IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS NOT LAWFUL TO MAKE ANY SUCH OFFER OR
SOLICITATION IN SUCH JURISDICTION OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO. 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.
_______________
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Description of Securities to be Registered . . . . . . . . . . . . . . . . . . . . . . . . 15
Selling Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Available Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Information Incorporated by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
==============================================================================
==============================================================================
LASER VISION
CENTERS, INC.
----------------
2,455,129 SHARES
COMMON STOCK
PROSPECTUS
AUGUST 11, 1997
----------------
=================================================================
21
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following sets forth the costs and expenses, other than underwriting
discounts and commissions, payable by the Company in connection with the sale
of common stock being registered hereunder:
<TABLE>
<S> <C>
Registration fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 5,865
Printing cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 5,000
Transfer agent fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,000
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 15,000
Accounting fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 6,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,199
NASD filing fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,436
Nasdaq listing fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 17,500
--------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 55,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 6 of the Company's Certificate of Incorporation provides for
indemnification of the officers and directors of the Company to the fullest
extent permitted by the laws of the State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware provides
generally and in pertinent part that a Delaware corporation may indemnify its
directors and officers against expenses, judgment, fines and settlements
actually and reasonably incurred by them in connection with any civil suit or
action, except actions by or in the right of the corporation, or in connection
with any administrative or investigative proceedings if, in connection with the
matters in issue, they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of the company and in
connection with any criminal suit or proceeding, if in connection with the
matters in issue, they had no reasonably cause to believe their conduct was
unlawful. Section 145 further permits a Delaware corporation to grant its
directors and officers additional rights of indemnification through bylaw
provisions and otherwise and to purchase indemnity insurance on behalf of its
directors and officer.
The Registrant maintains a policy of insurance under which the directors and
officers of the Registrant are insured, subject to the limits of the policy,
against certain losses arising from claims made against such directors and
officers by reason of any acts or omissions covered under such policy in their
respective capacities as directors or officers.
ITEM 16. EXHIBITS
4.1* Specimen Stock Certificate.
5.1** Opinion of Dankenbring, Greiman, Osterholt & Hoffmann, P.C. with
respect to the shares being registered.
23.1** Consent of Price Waterhouse LLP to incorporation by reference of
their report dated June 20, 1997 appearing on page F-1 of the
Company's Annual Report on Form 10-K for the year ended April 30,
1997.
23.2** Consent of Dankenbring, Greiman, Osterholt & Hoffmann, P.C. to use
its opinion letter filed herewith (contained in Opinion Letter at
Exhibit 5.1)
24.1** Power of Attorney executed by the Company's officers and directors
appointing John J. Klobnak and Robert W. May as attorneys-in-fact
- --------------
* Incorporated by reference from Registration Statement No. 33-33843
effective on April 3, 1991.
** Filed previous.
II-1
<PAGE> 23
ITEM 17. UNDERTAKINGS
The Company 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) 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.
(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 (1)(i) and (1)(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 by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining liability under the Securities Act,
each Post-Effective amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a Post-Effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
the 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.
(5) 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 section 15(d) of the Securities Exchange Act of 1934 (and where applicable,
each filing of an employee benefit plan's annual report pursuant to 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 offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(6) That for the purposes 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-2
<PAGE> 24
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE> 25
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the County of St.
Louis, Missouri on the 11th day of August, 1997.
LASER VISION CENTERS, INC.
By:/s/ JOHN J. KLOBNAK
--------------------
John J. Klobnak, Chief Executive and Chairman of
the Board of Directors
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 TITLE DATE
--------- ----- ----
<S> <C>
JOHN J. KLOBNAK Chief Executive Officer and Chairman of
the Board of Directors
B. CHARLES BONO, III Executive Vice President,
Principal Accounting Officer,
Chief Financial Officer and Treasurer
ROBERT W. MAY Vice-Chairman of the Board, General
Counsel and Secretary
RICHARD L. LINDSTROM, M.D. Director
DR. HENRY SIMON Director
JAMES M. GARVEY Director
STEVEN C. STRAUS Director
By /s/ JOHN J. KLOBNAK August 11, 1997
--------------------------
John J. Klobnak, Individually
and as Attorney-in-fact
</TABLE>
II-4
