Registration No. 333-___
As filed with the Securities and Exchange Commission on September 29, 1997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LASERSIGHT INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 3845 65-0273162
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification Number)
incorporation or
organization)
12161 Lackland Road
St. Louis, Missouri 63146
(314) 469-3220
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Mr. Gregory L. Wilson Copies to:
Chief Financial Officer Jacques K. Meguire, Esq.
LaserSight Incorporated Theresa Fritz Sleight, Esq.
12161 Lackland Road Sonnenschein Nath & Rosenthal
St. Louis, Missouri 63146 8000 Sears Tower
(314) 469-3220 Chicago, Illinois 60606
(Name, address, including zip code, and telephone (312) 876-8000
number, including area code, of agent for service)
Approximate date of commencement of proposed sale to public:
From time to time after the Registration Statement is declared effective.
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 plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]_______
If this Form is to be a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
registration statement of the earlier effective registration statement for the
same offering. [ ]_______
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
Securities to be registered registered(1) offering price per aggregate offering registration
share price(1) fee
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 5,242,409 shares $4 55/64(4) $25,474,831 $7,719.65
(2)(3)
Common Stock, $.001 par value 790,000 shares (5) $5.91(6) $4,668,900 $1,414.82
Total 6,032,409 shares $30,143,731 $9,134.47
<FN>
(1) In the event of a stock split, stock dividend, or similar transaction
involving the Common stock of the Company, in order to prevent
dilution, the number of shares of Common Stock registered hereby shall
be automatically increased to cover the additional shares of Common
Stock in accordance with Rule 416 under the Securities Act of 1933.
(2) Represents the Company's good-faith estimate of the number of shares
of Common Stock issuable (i) upon the conversion of 1,295 shares of
the Company's Series B Convertible Participating Preferred Stock (the
"Series B Preferred") and (ii) in lieu of cash dividends and other
cash payments in respect of shares of the Series B Preferred in
connection with the conversion thereof. The number of shares indicated
equals 175% of the number of shares that would have been issuable if
all 1,295 shares of such the Series B Preferred had been converted
into Common Stock on September 26, 1997. The actual number of shares
of Common Stock issuable upon the conversion of the Series B Preferred
will be determined by reference to a fluctuating conversion price that
depends, among other things, on the market price of the Common Stock
prior to the date of a conversion thereof.
(3) Pursuant to Rule 416, there are also registered hereby an
indeterminate number of shares of Common Stock issuable upon
conversion of the Series B Preferred resulting from the fluctuating
conversion rate of the Series B Preferred.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933. Based on the
average of the high and low prices reported for the Common Stock on
The Nasdaq Stock Market on September 22, 1997.
(5) Includes the registration for resale of 790,000 shares of Common Stock
issuable upon exercise of warrants issued in connection with the
foregoing private placement.
(6) Based on $5.91 per share exercise price of the Warrants.
</FN>
</TABLE>
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
SUBJECT TO COMPLETION DATED SEPTEMBER 29, 1997
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
PROSPECTUS
6,032,409 Shares*
LASERSIGHT INCORPORATED
Common Stock ($.001 par value)
This Prospectus relates to an aggregate of 6,032,409 shares (the "Shares")
of common stock, $.001 par value (the "Common Stock"), of LaserSight
Incorporated, a Delaware corporation (the "Company") being offered for sale from
time to time by the selling shareholders named in this Prospectus (the "Selling
Shareholders"):
(i) 5,242,409 shares (the "Conversion Shares") issuable upon the conversion
of the Company's outstanding Series B Convertible Participating Preferred Stock
(the "Series B Preferred Stock"),
(ii) up to 790,000 shares (the "1997 Warrant Shares") issuable upon the
exercise of warrants issued in connection with the Company's private placement
of the Series B Preferred Stock in August 1997 (the "1997 Warrants"),
(iii) an indeterminate number of shares (the "Dividend Shares") issuable as
dividends on the Series B Preferred Stock in the event that dividends are paid
on the Common Stock, in connection with the conversion thereof. The current best
estimate of these shares is zero.
* The actual numbers of Conversion Shares and Dividend Shares will depend
on the closing price of the Common Stock during the 20- or 30-day period before
the Series B Preferred Stock is converted and, with respect to the Dividend
Shares, the amount of dividends accrued on the Series B Preferred Stock, in the
event that dividends are paid on the Common Stock. See "The Offering," "Selling
Shareholders" and "Plan of Distribution." The shares of Common Stock offered
hereby includes the resale of such presently indeterminate number of shares of
Common Stock as shall be issued upon the above conversions. The number of shares
of Common Stock indicated to be issuable in connection with such transactions
and offered for resale hereby is an estimate based upon the current market price
history of the Common Stock, is subject to adjustment and could be materially
less or more than such estimated amount depending upon factors which cannot be
predicted by the Company at this time, including, among others, the future
conversion price of the Series B Preferred Stock and the decisions by the
holders of Series B Preferred Stock as to when to convert such shares. If,
however, such conversion price were determined on the basis of market prices
equal to those prevailing during the period ended on September 26, 1997, the
Company would be obligated to issue approximately 2,995,662 shares of Common
Stock if all 1,295 shares of Series B Preferred Stock expected to be outstanding
after giving effect to the Proposed Optional Redemption (as defined below) were
converted into Common Stock. Under the terms of a registration rights agreement
between the Company and the purchasers of the Series B Preferred Stock, the
Company is required to register an additional 2,246,747 shares of Common Stock
as a reserve. This presentation is not intended to constitute a prediction as to
the future market price of the Common Stock or as to when holders will elect to
convert shares of Series B Preferred Stock into shares of Common Stock. See
"Risk Factors--Effect of Conversion of Series B Preferred Stock" and
"Description of Capital Stock."
<PAGE>
If all of the 1997 Warrants are exercised, the Company would realize
$4,668,900 in proceeds. See "Use of Proceeds." The Company will not receive any
proceeds from any sale of Resale Shares by the Selling Shareholders. The Company
has been advised by the Selling Shareholders that there are no underwriting
arrangements with respect to the sale of Common Stock, that the Resale Shares
may be offered hereby from time to time for the account of Selling Shareholders
in transactions on The Nasdaq Stock Market, in negotiated transactions or a
combination of both at prices related to prevailing market prices, or at
negotiated prices. See "Selling Shareholders" and "Plan of Distribution." The
Company will pay the expenses in connection with the registration of the Shares
(other than any underwriting discounts and selling commissions, and fees and
expenses of counsel and other advisors, if any, to the Selling Shareholders)
estimated to be $__________.
The Common Stock is traded on The Nasdaq Stock Market under the symbol
"LASE." On September 26, 1997, the closing sale price for the Common Stock was
$5.00 per share. The "Variable Conversion Price" is based on the lower of $6.68
per share or the lowest three day average of the closing bid price in a twenty
trading day period, and for the trading period preceding September 26, 1997, it
was $4.323 per share.
THE SHARES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON PAGE
5.
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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 October __, 1997.
<PAGE>
TABLE OF CONTENTS
Documents Incorporated by Reference Plan of Distribution
The Company Selling Shareholders
The Offering Legal Matters
Risk Factors Experts
Use of Proceeds Available Information
Description of Securities
No dealer, salesman or other person has been authorized to give any
information or to make any representation other than those contained or
incorporated by reference in this Prospectus in connection with the offerings
described herein, and, if given or made, such information or representation must
not be relied upon as having been authorized by the Company or the Selling
Shareholders. Neither the delivery of this Prospectus nor any offer, sale or
exchange made hereunder shall, under any circumstances, create any implication
that there has been no change in the affairs or operations of the Company since
the date of this Prospectus, or that the information herein is correct as of any
time subsequent to such date.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents of the Company filed with the Securities and
Exchange Commission (the "Commission") under the Securities Exchange Act of 1934
(the "Exchange Act") are incorporated by reference in this Prospectus:
A. The Company's Annual Report on Form 10-K for the year ended December
31, 1996;
B. The Company's Quarterly Report on Form 10-Q for the quarters ended
March 31 and June 30, 1997;
C. The Company's Current Reports on Form 8-K filed on February 25, March
18, March 27, April 8, April 25, July 1, July 31, August 13, September
2, September 11, September 15, and September 24, 1997; and
D. The description of the Common Stock contained in the Company's Form
8-A/A (Amend. No. 3) filed on September 29, 1997.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of the filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be
incorporated in this Prospectus by reference shall be modified or superseded for
the purpose of this Prospectus to the extent that a statement contained in this
Prospectus or in any other subsequently filed document which also is or is
deemed to be incorporated in this Prospectus by reference modifies or replaces
such statement.
<PAGE>
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus has been delivered, on the
written or oral request of such person, a copy of any and all of the information
that has been or may be incorporated by reference in this Prospectus (not
including exhibits to the information that is incorporated by reference into the
information that this Prospectus incorporates). Written requests for such copies
should be directed to Secretary, LaserSight Incorporated, 12161 Lackland Road,
St. Louis, Missouri 63146; telephone no: (314) 469-3220.
THE COMPANY
LaserSight Incorporated and its subsidiaries operate in two major operating
segments: technology and health care services. The Company's principal
wholly-owned operating subsidiaries include: LaserSight Technologies, Inc.
("LaserSight Technologies"), LaserSight Patents, Inc. ("LaserSight Patents"),
MRF, Inc. ("MRF" or "The Farris Group"), and MEC Health Care, Inc. ("MEC"), and
LSI Acquisition, Inc. ("NNJEI").
The technology segment of the Company's operations includes LaserSight
Technologies and related subsidiaries. These entities develop, manufacture and
market ophthalmic lasers with a galvanometric scanning system primarily for use
in performing photorefractive keratectomy ("PRK") which utilizes a one
millimeter scanning laser beam to ablate microscopic layers of corneal tissue in
order to reshape the cornea and to correct the eye's point of focus in persons
with myopia (nearsightedness), hyperopia (farsightedness) and astigmatism. In
addition, they license and hold title to various patents related to the use of
excimer lasers to ablate biological tissue and related to microkeratome design
and usage.
The health care services segment includes MEC, NNJEI and MRF. MEC is a
total vision care managed care company which manages complete vision care
programs for health maintenance organizations ("HMOs") and other insured
enrollees. NNJEI is a physician practice management company which currently
manages the ophthalmic practice known as "Northern New Jersey Eye Institute"
under a service agreement. MRF is a consulting firm that develops and implements
vertical integration strategies for hospitals and managed care companies,
including the identification, negotiation and acquisition of physician practices
and the development of physician networks.
The Company was incorporated in Delaware in September 1987, but was
inactive until June 1991. In April 1993, the Company acquired its LaserSight
Centers Incorporated ("LaserSight Centers") subsidiary in a stock-for-stock
exchange. In February 1994, the Company acquired the stock of MRF, Inc. In July
1994, the Company was reorganized as a holding company. In October 1995, the
Company acquired its MEC subsidiary in a merger. In July 1996, the Company
acquired the assets of the ophthalmic practice known as the Northern New Jersey
Eye Institute through a subsidiary.
As used herein, the term the "Company" refers to LaserSight Incorporated
and its subsidiaries, unless the context otherwise requires. The Company's
principal offices and mailing address are 12161 Lackland Road, St. Louis,
Missouri 63146, and its telephone number is (314) 469-3220.
<PAGE>
THE OFFERING
Common Stock outstanding as of September 26, 1997 9,979,672 shares
Shares Offered by Selling Shareholders:
Common Stock issued to date upon conversion None.
of on Series B Preferred Stock
Common Stock issuable upon conversion of Minimum: 1,995,532 shares(1)
outstanding Series B Preferred Stock Maximum: Indeterminate(2)
Common Stock issuable upon exercise of 790,000 shares
1997 Warrants
Other
Risk Factors The Shares involve a high
degree of risk. Investors
should carefully consider
the information set forth
under "Risk Factors."
Proceeds to the Company if the 1997
Warrants are exercised in full $4,668,900
Use of proceeds Working capital; general
corporate purposes.
The Nasdaq Stock Market trading symbol LASE
(1) The minimun quantity, 20% of the shares outstanding on August 29,
1997, is based on the current limit on shares which can be issued
without shareholder approval, pursuant to Rule 4460(i) of the NASDAQ
National Market.
(2) In the event of a conversion, the actual number of shares of Common
Stock issuable will equal (i) the original purchase price of the
shares of Preferred Stock ($10,000 per share) to be converted divided
by (ii) a conversion price equal to the lesser of $6.68 per share or
the average of the three lowest closing bid prices of the Common Stock
during the 20 consecutive trading days preceding such conversion (30
trading days if the five day average closing bid price on February 25,
1998 is less than $5.14), but in no event more than 1,995,532 shares
without shareholder approval. If a conversion occurs when the Common
Stock is not listed on the Nasdaq National Market, the American Stock
Exchange or the New York Stock Exchange, the otherwise-applicable
conversion price will be multiplied by 0.93. In the event that the
Company were to exercise its option to redeem shares of Series B
Preferred Stock before January 26, 1998, the actual number of shares
of Common Stock issuable would be the number determined pursuant to
the proceeding sentence increased by a premium initially ranging from
4% up to 14% (if less than $6,400,000 is redeemed, with the rate
varying from October 28, 1997 to January 26, 1998) and ranging from
15% up to 30% (for redemptions exceeding $6,400,000, with the rate
varying from September 28, 1997 to November 27, 1997). See
"Description of Securities--Preferred Stock." This number would be
reduced to the extent the Company exercises its early redemption
option at a level high enough to reduce the number below the 20%
limit.
For the foreseeable future, the Company does not anticipate paying
dividends on the Common Stock, and thus does not anticipate paying any
participating dividends on the Series B Preferred Stock. The actual number of
shares of Common Stock to be issued as dividends on Preferred Stock will equal
the amount of dividends paid on the Common Stock, if any, through the date of
the conversion thereof, divided by the market price of the Common Stock on the
date preceding such event. See "Description of Securities--Preferred Stock."
<PAGE>
RISK FACTORS
The Shares offered hereby involve a high degree of risk. In addition, this
Prospectus contains forward-looking statements (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) which involve
risks and uncertainties. Included in the following Risk Factors are factors that
could affect the Company's actual results and could cause the Company's actual
results to differ in material respects from the results discussed in any
forward-looking statements made by, or on behalf of, the Company in this
Prospectus and the documents incorporated by reference herein. In addition to
the other information contained or incorporated by reference in this Prospectus,
potential purchasers of the Shares should carefully consider the following risk
factors:
Company-Related Uncertainties
-----------------------------
Consequences if Stockholder Approval is Not Obtained. If for any reason the
Company's shareholders do not approve, by December 26, 1997, the possible
issuance of an indefinite number of Conversion Shares, the Company will be
obligated to redeem, at the Special Redemption Price (as defined below), a
sufficient number of shares of Series B Preferred Stock which will permit
conversion of 200% of the remaining shares of Series B Preferred Stock without
breaching any obligation of the Company under the Company's listing agreement
with the Nasdaq National Market. The "Special Redemption Price" means a cash
payment equal to the greater of (i) the liquidation preference of $10,000
multiplied by 125% or (ii) the current value of the Common Stock, using the
price per share of Common Stock, which the holders of such shares of Series B
Preferred Stock would otherwise be entitled to receive upon conversion. Such
redemption must be completed within five business days of the event which
required such redemption. Any delay in payment will cause such redemption amount
to accrue interest at the rate of 1% per month during the first 30 days, pro
rated daily (2% monthly, pro rated daily, thereafter). The Company also will be
required to pay all dividends, if any are paid, on the remaining shares of
Series B Preferred Stock in cash.
Effect of 1997 Private Placement Issuances on Holders of Common Stock.
Although the holders of the Series B Preferred Stock have voting rights only
under the limited circumstances required by Delaware corporate law and are not
entitled to receive any dividends unless dividends are concurrently paid on the
Common Stock, there is no limit on the number of shares which the holders of the
Series B Preferred Stock would be entitled to receive upon the conversions
thereof, subject to the apporval of the Company's shareholders of the issuance
of more than 1,995,532 shares of Common Stock in connection with such
conversions. In addition, in the event of a liquidation of the Company, the
holders of the Series B Preferred Stock would be entitled to receive
distributions in preference to the holders of the Common Stock.
Operating Results. The Company incurred losses of $4,074,369 and $3,090,532
during 1996 and the first six months of 1997, respectively. In addition,
although the Company achieved profitability in 1995 and 1994, the Company
incurred losses in 1991 through 1993. As of June 30, 1997, the Company had an
accumulated deficit of $7,703,362. There can be no assurance that the Company
can regain or sustain profitability.
<PAGE>
Receivables. At June 30, 1997, the Company's trade accounts and notes
receivable aggregated approximately $10,555,000, net of total allowances for
collection losses and returns of approximately $1,575,000. Accrued commissions,
the payment of which generally depends on the collection of such net trade
accounts and notes receivable, aggregated approximately $1,623,000 at June 30,
1997. Exposure to collection losses on technology-related receivables is
principally dependent on its customers ongoing financial condition and their
ability to generate revenues from the Company's laser systems. The Company's
ability to evaluate the financial condition and revenue generating ability of
prospective customers located outside of the United States is generally more
limited than for customers located in the United States. The Company monitors
the status of its receivables and maintains a reserve for estimated losses. The
Company's operating history has been relatively short. There can be no assurance
that the current reserves for estimated losses ($1,418,000 at June 30, 1997)
will be sufficient to cover actual write-offs over time. Actual write-offs that
materially exceed amounts reserved could have a material adverse effect on the
Company's financial condition and results of operations.
Possible Issuance of Stock--LaserSight Centers. The Company has agreed,
based on a previously-reported acquisition agreement (the "Centers Agreement")
entered into in 1993 and modified in July 1995 and March 1997, to issue to the
former shareholders and option holders (including two trusts related to the
Chairman of the Board of the Company and certain former officers and directors
of the Company) of LaserSight Centers, the Company's development-stage
subsidiary, up to 600,000 unregistered shares of Common Stock (the "Centers
Earnout Shares") based on the Company's future pre-tax operating income through
March 2002 from performing PRK, PTK or other refractive laser surgical
procedures. The Centers Earnout Shares are to be issued at the rate of one share
per $4.00 of such operating income. There can be no assurance that the issuance
of Centers Earnout Shares will be accompanied by an increase in the Company's
per share operating results. The Company is not obligated to pursue strategies
that may result in the issuance of Centers Earnout Shares. It may be in the
interest of the Chairman of the Board for the Company to pursue business
strategies that maximize the issuance of Centers Earnout Shares.
Possible Issuance of Stock--Florida Laser Partners. Based on a
previously-reported royalty agreement entered into in 1993 and modified in July
1995 and March 1997, the Company is obligated to pay to a partnership whose
partners include the Chairman of the Board of the Company and certain former
officers and directors of the Company a royalty of up to $43 (payable in cash or
shares of Common Stock based on its then-current market value (the "Royalty
Shares")), for each eye on which laser refractive optical surgical procedure is
conducted on an excimer laser system owned or operated by LaserSight Centers or
its affiliates. This payment obligation does not arise until the earlier of
March 2002 or the delivery of the remaining Centers Earnout Shares. There can be
no assurance that the issuance of Royalty Shares will be accompanied by an
increase in the Company's per share operating results. It may be in the interest
of the Chairman of the Board for the Company to pursue business strategies that
maximize the issuance of Royalty Shares.
Possible Issuance of Stock--The Farris Group. To the extent that an earnout
provision relating to the Company's acquisition of The Farris Group in 1994 is
satisfied based on certain annual pre-tax income targets through December 31,
1998, the Company would be required to issue to the former owner of such company
(Mr. Michael R. Farris, the President and Chief Executive Officer of the
Company) an aggregate of up to 750,000 shares of Common Stock (collectively, the
"Farris Earnout Shares"). To date 406,700 Farris Earnout Shares have been issued
based on the operating results of the Farris Group through December 31, 1995. As
a result of the loss incurred by The Farris Group during 1996, no Farris Earnout
Shares became issuable for such year. If additional Farris Earnout Shares become
issuable, goodwill and the resulting amortization expense will increase.
<PAGE>
Contingent Commitments to Issue Additional Shares. The Company has agreed
in connection with its acquisition of the assets of the Northern New Jersey Eye
Institute in July 1996 to issue up to 102,798 additional shares of Common Stock
if the fair market value of the Common Stock in July 1998 is less than $15 per
share. The Company may from time to time in the future include similar
provisions in other acquisitions. Investors who benefit from such provisions
effectively receive limited protection from declines in the market price of the
Common Stock, but other investors can expect to incur dilution of their
ownership interest in the event of a decline in the price of the Common Stock.
Possible additional capital. The Company may seek alternative sources of
capital to fund its product development activities to consummate future
strategic acquisitions, and to accelerate its implementation of managed care
strategies. The Company may also need additional capital to introduce its laser
systems into the United States market after receiving FDA approval and to
satisfy certain contingent payment obligations under its PMA acquisition
agreement of July 1997. In addition, the Company may have additional capital
requirements upon certain FDA approvals and other events. Except for up to $3.2
million of additional borrowing available under its credit facility with
Foothill Capital Corporation ("FCC"), the Company has no present commitments to
obtain such capital, and no assurance can be given that the Company will be able
to obtain additional capital on terms satisfactory to the Company. To the extent
that future financing requirements are satisfied through the sale of equity
securities, holders of Common Stock may experience significant dilution in
earnings per share and in net book value per share. The FCC financing or other
debt financing could result in a substantial portion of the Company's cash flow
from operations being dedicated to the payment of principal and interest on such
indebtedness and may render the Company more vulnerable to competitive pressures
and economic downturns.
Dependence on Key Personnel. The Company is dependent on its executive
officers and other key employees, especially Michael R. Farris, its President
and Chief Executive Officer. A loss of one or more such officers or key
employees, especially of Mr. Farris, could have a material adverse effect on the
Company's business. The Company does not currently carry "key man" insurance on
Mr. Farris or any other officers or key employees.
Health Care Services-Related Uncertainties
------------------------------------------
Risks Associated with Managed Care Contracts. As an increasing percentage
of optometric and ophthalmologic patients are coming under the control of
managed care entities, the Company believes that its success will, in part,
depend on the Company's ability to negotiate contracts with HMOs, employer
groups and other private third-party payors pursuant to which services will be
provided on a risk-sharing or capitated basis. Under some of such agreements,
the eye care provider accepts a predetermined amount per month per patient in
exchange for providing all necessary covered services to the enrolled patients.
Such contracts pass much of the risk of providing care from the payor to the
provider. The proliferation of such contracts in markets served by the Company
could result in greater predictability of revenues, but greater unpredictability
of expenses. There can, however, be no assurance that the Company will be able
to negotiate satisfactory arrangements on a risk-sharing or capitated basis. In
addition, to the extent that patients or enrollees covered by such contracts
require more frequent or extensive care than anticipated, operating margins may
be reduced or, in the worst case, the revenues derived from such contracts may
be insufficient to cover the costs of the services provided. As a result, the
Company may incur additional costs, which would reduce or eliminate anticipated
earnings under such contracts and could have a material adverse affect on the
Company's results of operations.
<PAGE>
Health Care Regulation. The health care industry is subject to
"anti-referral" and "anti-kickback" laws governing patient referrals, and other
laws concerning fee splitting with non-physicians. Although the Company believes
that its operations are in substantial compliance with existing applicable laws,
the Company's business operations have not been the subject of judicial or
regulatory review. There can be no assurance that such a review of the Company's
business would not result in determinations that could adversely affect the
operations of the Company or that the health care regulatory environment will
not change so as to restrict the Company's existing operations or their
expansion. Aspects of certain health care reforms as proposed in the past, such
as further reductions in Medicare and Medicaid payments and additional
prohibitions on physician ownership, directly or indirectly, of facilities to
which they refer patients, if adopted, could adversely affect the Company.
Insurance Regulation. Federal and state laws regulate insurance companies,
HMOs and other managed care organizations. Many states also regulate the
establishment and operation of networks of health care providers. Generally,
these laws do not apply to the hiring and contracting of physicians by other
health care providers. There can be no assurance that regulators in the states
in which the Company operates would not apply these laws to require licensure of
the Company's health care operations as an HMO, an insurer or a provider
network. The Company believes that it is in compliance with these laws in the
states in which it presently does business, but there can be no assurance that
interpretations of these laws by the regulatory authorities in these states or
in the states in which the Company may expand its managed care operations will
not require licensing or a restructuring of some or all of the Company's managed
care operations, or that if licensing is required, that the Company could
complete such licensing in a timely manner. In addition, there can be no
assurance that the Company's strategy to expand its managed vision care business
will not subject it to regulation in other states.
Technology-Related Uncertainties
--------------------------------
Government Regulation. The Company's laser products are subject to strict
governmental regulations which materially affect the Company's ability to
manufacture and market these products and directly impact the Company's overall
prospects. All laser devices to be marketed in interstate commerce are subject
to the laser regulations required by the Radiation Control for Health and Safety
Act, as administered by the U.S. Food and Drug Administration (the "FDA"). Such
Act imposes design and performance standards, labeling and reporting
requirements, and submission conditions in advance of marketing for all medical
laser products. The Company's laser systems produced for medical use will
require pre-market approval by the FDA if marketed in the United States. Each
separate medical device requires a separate FDA submission, and specific
protocols have to be submitted to the FDA for each claim made for each medical
device. In addition, laser products marketed in foreign countries are often
subject to local laws governing health product development processes which may
impose additional costs for overseas product development. The Company cannot
determine the costs or time it will take to complete the approval process and
the related clinical testing for its medical laser products. Future legislative
or administrative requirements in the United States, or elsewhere, may adversely
affect the Company's ability to obtain or retain regulatory approval for its
laser products. The failure to obtain required approvals on a timely basis could
have a material adverse effect on the Company's business, financial condition
and results of operations.
Uncertainty Concerning Patents. Should LaserSight Technologies' lasers be
found to infringe upon any valid and enforceable patents in international
markets, or by Pillar Point Partners in the U.S., then LaserSight Technologies
may be required to license such technology from them. Should such licenses not
be obtained, LaserSight Technologies might be prohibited from manufacturing or
marketing its PRK-UV lasers in these countries where patents are in effect.
<PAGE>
Competition. The vision correction industry is subject to intense,
increasing competition. The Company competes against both alternative and
traditional medical technologies (such as eyeglasses, contact lenses and radial
keratotomy ("RK")) and other laser manufacturers. Many of the Company's
competitors have existing products and distribution systems in the marketplace
and are substantially larger, better financed, and better known. A number of
lasers manufactured by other companies have either received, or are much further
advanced in the process of receiving, FDA approval for specific procedures, and,
accordingly, may have or develop a higher level of acceptance in some markets
than the Company's lasers. The entry of new competitors into the markets for the
Company's products could cause downward pressure on the prices of such products
and a material adverse effect on Company's business, financial condition and
results of operations.
Technological Change. Technological developments in the medical and laser
industries are expected to continue at a rapid pace. Newer technologies and
surgical techniques could be developed which may offer better performance than
the Company's laser systems. The success of any competing alternatives to PRK
could have a material adverse effect on the Company's business, financial
condition and results of operations.
New Products. There can be no assurance that the Company will not
experience difficulties that could delay or prevent the successful development,
introduction and marketing of its new LaserScan LSX excimer laser and other new
products and enhancements, or that its new products and enhancements will be
accepted in the marketplace, including the disposable microkeratome product
licensed in September 1997. As is typical in the case of new and rapidly
evolving industries, demand and market acceptance for recently introduced
technology and products are subject to a high level of uncertainty. In addition,
announcements of currently planned or other new product offerings may cause
customers to defer purchasing existing Company products.
Uncertainty of Market Acceptance. The Company believes that its achievement
of profitability and growth will depend in part upon broad acceptance of PRK or
LASIK in the United States and other countries. There can be no assurance that
PRK or LASIK will be accepted by either the ophthalmologists or the public as an
alternative to existing methods of treating refractive vision disorders. The
acceptance of PRK and LASIK may be affected adversely by their cost, possible
concerns relating to safety and efficacy, general resistance to surgery, the
effectiveness and lower cost of alternative methods of correcting refractive
vision disorders, the lack of long-term follow-up data, the possibility of
unknown side effects, the current lack of third-party reimbursement for the
procedures, any future unfavorable publicity involving patient outcomes from use
of PRK or LASIK systems, and the possible shortages of ophthalmologists trained
in the procedures. The failure of PRK or LASIK to achieve broad market
acceptance could have a material adverse effect on the Company's business,
financial condition and results of operations.
International Sales. International sales may be limited or disrupted by the
imposition of government controls, export license requirements, political
instability, trade restrictions, changes in tariffs, difficulties in staffing
and coordinating communications among and managing international operations.
Additionally, the Company's business, financial condition and international
results of operations may be adversely affected by increases in duty rates,
difficulties in obtaining export licenses, ability to maintain or increase
prices, and competition. To date, all sales made by the Company have been
denominated in U.S. dollars. Due to its export sales, however, the Company is
subject to currency exchange rate fluctuations in the U.S. dollar, which could
increase the price in local currencies of the Company's products. This could in
turn result in longer payment cycles and greater difficulty in collection of
receivables. See "--Receivables" above. Although the Company has not experienced
any material adverse effect on its operations as a result of such regulatory,
political and other factors, there can be no assurance that such factors will
not have a material adverse effect on the Company's operations in the future or
require the Company to modify its current business practices.
<PAGE>
Potential Product Liability Claims; Limited Insurance. As a producer of
medical devices, the Company may face liability for damages to users of such
devices in the event of product failure. The testing and use of human care
products entails an inherent risk of negligence or other action. An award of
damages in excess of the Company's insurance coverage could have a material
adverse effect on the Company's business, financial condition and results of
operations. While the Company maintains product liability insurance, there can
be no assurance that any such liability of the Company will be included within
its insurance coverage or that damages will not exceed the limits of its
coverage. The Company's current insurance coverage limitation is $6,000,000,
including up to $5,000,000 of coverage under an excess liability policy
effective July 1, 1997.
Manufacturing Risks. The Company contracts with third parties for certain
components used in its lasers. Several of these components are currently
provided by a single vendor. If any of these sole-source suppliers were to cease
providing components to the Company, the Company would have to locate and
contract with a substitute supplier, and there can be no assurances that such
substitute supplier could be located and qualified in a timely manner or could
provide required components on commercially reasonable terms. An interruption in
the supply of laser components could have a material adverse effect on the
Company's business, financial condition and results of operations.
Backlog; Concentration of Sales at End of Quarter. The Company has
historically operated with little or no backlog because its products are
generally shipped as orders are received. Historically, the Company has received
and shipped a significant portion of its orders for a particular quarter near
the end of the quarter. As a result, the Company's operating results for any
quarter often depend on orders received and laser systems shipped late in that
quarter. Any delay in such orders or shipments may cause a significant
fluctuation in period-to-period operating results.
<PAGE>
USE OF PROCEEDS
If all of the 1997 Warrants (with an exercise price of $5.91 per share) are
exercised, the Company will realize proceeds in the amount of $4,668,900. Such
proceeds will be contributed to the working capital of the Company and used for
general corporate purposes. The Company will not receive any proceeds from any
sale of the Shares by the Selling Shareholders.
CAPITALIZATION
The following table sets forth (i) the pro forma capitalization of the
Company at June 30, 1997 after giving effect to the issuance of 1,600 shares of
Series B Preferred Stock on August 29, 1997 and (ii) the capitalization of the
Company at June 30, 1997, as adjusted to reflect the effect of the assumed
conversion of such shares of Series B Preferred Stock into Common Stock based on
the assumptions indicated in the footnotes to the table below.
<TABLE>
<CAPTION>
June 30, 1997
-------------
Pro Forma As Adjusted(1)
--------- --------------
<S> <C> <C>
Long-term debt $1,029,652 $1,029,652
Redeemable Convertible Preferred Stock, par value $.001 per
share; authorized 10,000,000 shares; issued: pro forma,
1,600 shares of Series B Preferred Stock, as adjusted,
737 shares 14,410,769 6,637,960
Stockholders' equity:
Common Stock, par valuie $.001 per share; authorized
20,000,000 shares; issued: pro forma, 9,599,107 shares,
as adjusted, 11,594,639 shares 9,599 11,595
Additional paid-in capital 36,552,817 44,323,630
Paid-in capital-warrants 592,500 592,500
Stock subscription receivable (1,140,000) (1,140,000)
Accumulated deficit (7,703,362) (7,703,362)
Less treasury stock, at cost; 170,200 shares (632,709) (632,709)
--------- ---------
Total capitalization and stockholders' equity $43,119,266 $43,119,266
=========== ===========
<FN>
______________________
(1) Adjusted to give effect to (i) the conversion of 863 shares of the
Series B Preferred Stock into 1,995,532 shares of Common Stock on
September 26, 1997, based on an assumed price history for the Common
Stock as of such date identical to its actual price as of September
26, 1997; and (ii) the issuance of zero Dividend Shares based on an
assumed conversion date of September 26, 1997 and anassumed price
history for the Common Stock as of such date identical to its price
history as of September 26, 1997. The totals exclude the aggregate
proceeds of $4,668,900 that would be received if the 1997 Warrants
were exercised in full. The actual number of Conversion Shares and
Dividend Shares may vary from the amounts shown. See "The Offering."
</FN>
</TABLE>
<PAGE>
DESCRIPTION OF SECURITIES
The following description of the Company's capital stock is not complete
and is subject in all respects to the Delaware General Corporation Law (the
"DGCL") and to the provisions of the Company's Certificate of Incorporation, as
amended (the "Charter"), and Bylaws.
The authorized capital stock of the Company consists of 20,000,000 shares
of Common Stock and 10,000,000 shares of preferred stock, $.001 par value,
issuable in series. As of September 26, 1997, 9,979,672 shares of Common Stock
were outstanding (not including outstanding options to acquire Common Stock or
any shares of Common Stock issuable upon the conversion of outstanding preferred
stock). As of September 26, 1997, the only shares of preferred stock outstanding
were 1,600 shares of the Series B Preferred Stock. Of these shares, 305 will be
redeemed at the option of the Company on October 28, 1997.
Common Stock
Holders of Common Stock are entitled to one vote for each share held on all
matters submitted to a vote of stockholders and do not have cumulative voting
rights. Accordingly, holders of a majority of the shares of Common Stock
entitled to vote in any election of directors may elect all of the directors
standing for election. Holders of Common Stock are entitled to share pro rata in
such dividends and other distributions, if any, as may be declared by the Board
of Directors out of funds legally available therefor, subject to any prior
rights accruing to any holders of preferred stock. Upon the liquidation or
dissolution of the Company, the holders of Common Stock are entitled to share
proportionally in all assets available for distribution to such holders. Holders
of Common Stock have no preemptive, redemption or conversion rights. The
outstanding shares of Common Stock issued are fully paid and nonassessable.
The transfer agent and registrar for the Common Stock is American Stock
Transfer & Trust Company.
Preferred Stock
The Board of Directors is authorized, subject to certain limitations
prescribed by law, without further stockholder approval, to issue from time to
time up to an aggregate of 10,000,000 shares of preferred stock in one or more
series and to fix or alter the designations, preferences, rights and any
qualifications, limitations or restrictions of the shares of each such series,
including the dividend rights, dividend rates, conversion rights, voting rights,
terms of redemption (including sinking fund provisions), redemption price or
prices, liquidation preferences and the number of shares constituting any series
or designations of such series. The rights, preferences and privileges of
holders of Common Stock are subject to, and may be adversely affected by, the
rights of the holders of shares of any series of preferred stock which the
Company may designate and issue.
Series A Convertible Preferred Stock
On January 10, 1996, the Company issued 116 shares of Series A Convertible
Preferred Stock, par value $.001 per share (the "Series A Preferred Stock"). All
of such shares had been converted into Common Stock.
<PAGE>
Series B Convertible Participating Preferred Stock
On August 29, 1997, the Company issued 1,600 shares of Series B Preferred
Stock. The Series B Preferred Stock is convertible into Common Stock at the
option of the holders of the Series B Preferred Stock at any time until August
29, 2000, on which date all Series B Preferred Stock remaining outstanding will
automatically be converted into Common Stock. The conversion price will equal
the lesser of $6.68 per share of Common Stock or 100% of the average of the
three lowest closing bid prices of the Common Stock during the 20 trading days
preceding the conversion date (during the 30 trading days preceding the
conversion date should the five day average price of the Common Stock on
February 25, 1998 be less than $5.138 per share). The Company has the option to
redeem up to 40% of such shares of Series B Preferred Stock for cash at a
premium of 4% on or prior to October 28, 1997. After October 28, 1997 and on or
before November 27, 1997, the Company can, subject to certain conditions, elect
to redeem up to 40% of the Series B Preferred Stock then outstanding for cash at
a premium of 6.75%, and increasing to 10% through December 27, 1997, and 14%
through January 26, 1998. If the Company redeems between 40% and 70% of such
shares of Series B Preferred Stock, the premium on or prior to September 28,
1997 is 15%; on or prior to October 28, 1997 it is 20%, and up until November
27, 1997 it is 30% (lower premiums will be recalculated if the amount exceeds
40%.) No redemption aggregating more than 40% will be allowed after November 27,
1997). Dividends on the Series B Preferred Stock are payable only to the extent
that dividends are payable on the Company's Common Stock. Each outstanding share
of Series B Preferred Stock shall entitle the holder thereof to a liquidation
preference equal to the sum of $10,000 plus the amount of unpaid dividends
accrued, if any, on such share. The Company plans to redeem 305 shares of the
Series B Preferred Stock on October 28, 1997 pursuant to its option to do so.
Delaware Law and Certain Charter Provisions
The Company is subject to the provisions of Section 203 of the DGCL.
Subject to certain exceptions, Section 203 prohibits a publicly-held Delaware
corporation from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless the interested
stockholder attained such status with the approval of the corporation's board of
directors or unless the business combination is approved in a prescribed manner.
A "business combination" includes mergers, asset sales and other transactions
resulting in a financial benefit to the interested stockholder which is not
shared pro rata with the other stockholders of the Company. Subject to certain
exceptions, an "interested stockholder" is a person who, together with
affiliates and associates, owns, or within three years did own, 15% or more of a
corporation's voting stock.
The DGCL provides generally that the affirmative vote of a majority of the
shares entitled to vote on any matter is required to amend a corporation's
certificate of incorporation or by-laws, unless a corporation's certificate of
incorporation or bylaws, as the case may be, requires a greater percentage. In
addition, the Bylaws of the Company may, subject to the provisions of DGCL, be
amended or repealed by a majority vote of the Company's Board of Directors.
The Charter contains certain provisions permitted under the DGCL relating
to the liability of directors. These provisions eliminate a director's liability
for monetary damages for a breach of fiduciary duty, except in certain
circumstances involving certain wrongful acts, such as the breach of a
director's duty of loyalty or acts or omissions which involve intentional
misconduct or a knowing violation of law. The Charter contains provisions
indemnifying the directors and officers of the Company to the fullest extent
permitted by the DGCL. The Company also has a directors' and officers' liability
insurance policy which provides for indemnification of its directors and
officers against certain liabilities incurred in their capacities as such. The
Company believes that these provisions will assist the Company in attracting and
retaining qualified individuals to serve as directors.
<PAGE>
Warrants
In connection with the private placement of Series A Preferred Stock on
January 10, 1996, the Company issued to its placement agent, Spencer Trask
Securities Incorporated ("Spencer Trask") and to an assignee of Spencer Trask,
the 1996 Warrants to purchase an aggregate of 17,509 shares of Common Stock at
an exercise price of $13.25 per share. The 1996 Warrants may be exercised at any
time through January 10, 1999.
In connection with the financing of a credit facility in April 1997, the
Company issued to FCC, the 1997 FCC Warrants to purchase an aggregate of 500,000
shares of Common Stock at an exercise price of $6.0667 per share. In addition,
the 1997 FCC Warrants have certain anti-dilution features which provide for
approximately 50,000 additional shares pursuant to the issuance of the Series B
Preferred Stock. The 1997 FCC Warrants may be exercised after March 31, 1998 and
then prior to April 1, 2002.
PLAN OF DISTRIBUTION
Sale by the Selling Shareholders--Conversion Shares. The Company will issue
the Conversion Shares upon the conversion from time to time of the 1,600 shares
of Series B Preferred Stock presently outstanding by the holders thereof
pursuant to the terms of the Series B Preferred Stock. The Company may at its
option redeem shares having a face value of up to $11,200,000 on or before
November 27,1997 and up to $6,400,000 between November 27, 1997 and January 26,
1998. Any shares of Series B Preferred Stock not so converted or redeemed before
January 26, 1998 will be automatically converted into Conversion Shares on
August 29, 2000. The Company plans to redeem 305 shares of Series B Preferred
Stock on October 28, 1997. The Company will receive no proceeds from the resale
of the Conversion Shares.
Sale by the Selling Shareholders--1997 Warrant Shares. The Company will
issue Warrant Shares from time to time upon the exercise of the 1997 Warrants by
the holders thereof. The Company will receive from such holders the exercise
price of the 1997 Warrants upon such exercise. The Company will not receive any
of the proceeds from resales of the 1997 Warrant Shares. The Series B Preferred
Stock and 1997 Warrants were issued by the Company in a private placement in
August 1997. See "Description of Capital Stock." for purposes of the Securities
Act.
Sale by the Selling Shareholders--Dividend Shares. The Company may issue
the Dividend Shares in accordance with the terms of the Series B Preferred
Stock. The Dividend Shares, if any, will become payable upon the voluntary or
automatic conversion of Series B Preferred Stock by a holder thereof. See
"Description of Capital Stock."
Pursuant to this Prospectus, holders of the Shares may resell from time to
time all or a portion of such Shares. The Company has been advised by the
Selling Shareholders that there are no underwriting arrangements with respect to
the sale of Common Stock and that the Shares will be offered for sale in
transactions on The Nasdaq Stock Market, in negotiated transactions or through a
combination of both, at prices related to such prevailing market prices at the
time of sale, or at negotiated prices. The Selling Shareholders may effect such
transactions by selling the Shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the Selling Shareholders and/or the purchasers of the Shares
for which such broker-dealers may act as agent or to whom they sell as
principal, or both (which compensation may be in excess of customary
commissions). In addition, any securities covered by this Prospectus which
qualify for sale pursuant to Rule 144 may be sold under Rule 144 rather than
pursuant to this Prospectus.
<PAGE>
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers.
The Selling Shareholders and any broker-dealer who acts in connection with
the resale of the Shares hereunder, may be deemed to be an "underwriter" within
the meaning of Section 2(11) of the Securities Act, and any commissions received
by them and/or profit on any resale thereof as principal might be deemed to be
underwriting discounts and commissions under the Securities Act.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the shares may not simultaneously engage in
market making activities with respect to the Common Stock for a period of one
business day prior to the commencement of such distribution. In addition and
without limiting the foregoing, the Selling Shareholders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including, without limitation, Regulation M. These provisions may
limit the timing of purchases and sales of shares of Common Stock by the Selling
Shareholders.
A supplement to this Prospectus will be filed, if required, pursuant to
Rule 424 under the Securities Act disclosing (a) the name of the participating
broker-dealer(s); (b) the number of Shares involved; (c) the price at which such
Shares were sold; (d) the commissions paid or discounts or concessions allowed
to such broker-dealer(s), where applicable; and (e) other facts material to the
transaction, including the name and other information regarding the Selling
Shareholders.
The Company will maintain the effectiveness of the Registration Statement
until such time as all of the Shares have been disposed of in accordance with
the intended methods of disposition set forth in the Registration Statement or
the Shares are no longer subject to volume or manner of sale restrictions under
the securities laws.
<PAGE>
SELLING SHAREHOLDERS
The following table sets forth certain information with regard to the
beneficial ownership of Series B Preferred Stock by the Selling Shareholders,
the beneficial ownership of Common Stock by the Selling Shareholders (where
indicated by footnote, on a pro forma basis as of September 26, 1997 as if the
outstanding shares of Series B Preferred Stock had been converted into Common
Stock as of such date), and the number of shares of Common Stock to be offered
by the Selling Shareholders (also on a pro forma basis where indicated). The
actual number of shares of Common Stock beneficially owned or offered may vary
and will be reflected in a supplement to this Prospectus. See "The Offering."
<TABLE>
<CAPTION>
Common Stock Common Stock
Shares of Beneficially Owned Beneficially Owned
Preferred Prior to the Offering Shares of After the Offering
Stock --------------------- Common ------------------
Presently Conversion Warrant Stock Number Percent of
Selling Shareholder Owned(1) Shares(1) Shares(3) to be Sold of Shares Outstanding*
- --------------------- -------- --------- --------- ---------- --------- ------------
<S> <C> <C> <C> <C> <C> <C>
CC Investments,LDC(2) 404 934,554 234,375 1,168,829 -- --
Societe Generale 243 562,120 140,625 702,745 -- --
Shepherd Investments
International, Ltd. 324 749,494 187,500 936,994 -- --
Stark International 324 749,494 187,500 936,994 -- --
Shoreline Pacific
Institutional Finance N/A -- 40,000 40,000 -- --
<FN>
- --------------
* Without giving effect to the exercise of the 1997 Warrants offered hereby.
1 As of the date of this Prospectus, no Selling Shareholder owned any
shares of Common Stock. Such number of Conversion Shares indicated is
the pro forma number that would have been owned by a Selling
Shareholder if it had converted all of its shares of Series B
Preferred Stock into Common Stock as of September 26, 1997, without
giving effect to the NASDAQ 20% Limit but after giving effect to the
Company's planned redemption of 305 shares Series B Preferred Stock on
October 28, 1997. The actual number of Conversion Shares to be
received by such Selling Shareholder, which may be more or less than
the number indicated, will be reflected in a supplement to this
Prospectus following the conversion of such Series B Preferred Stock.
2 Based on information available to the Company and the representations
of the Selling Shareholder, such holdings of record of Series B
Preferred Stock are held for the account of certain clients of CC
Investments, LDC.
3 Assumes the exercise in full by such Selling Shareholder of a warrant
to purchase Common Stock. See "Description of Capital
Stock--Warrants."
</FN>
</TABLE>
<PAGE>
LEGAL MATTERS
The legality of the Shares offered hereby has been passed upon for the
Company by Sonnenschein Nath & Rosenthal, Chicago, Illinois.
EXPERTS
The consolidated financial statements of LaserSight Incorporated and
subsidiaries as of December 31, 1996 and for each of the years in the two-year
period then ended have been incorporated herein by reference and in the
Registration Statement in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein and
in the Registration Statement upon the authority of said firm as experts in
accounting and auditing.
The consolidated financial statements of LaserSight Incorporated and
subsidiaries for the year ended December 31, 1994 have been incorporated herein
and in the Registration Statement in reliance upon the report of Lovelace, Roby
& Company, P.A., independent certified public accountants, incorporated by
reference herein and in the Registration Statement upon the authority of said
firm as experts in accounting and auditing.
AVAILABLE INFORMATION
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with any amendments thereto, the "Registration Statement") under
the Securities Act with respect to the Shares offered hereby. This Prospectus,
which constitutes a part of the Registration Statement, does not contain all of
the information set forth in the Registration Statement, certain items of which
are contained in schedules and exhibits to the Registration Statement as
permitted by the rules of the Commission. For further information with respect
to the Company and the Shares offered hereby, reference is made to the
Registration Statement and the exhibits and the schedules thereto. Statements
contained in this Prospectus as to the contents of any contract or any document
referred to are not necessarily complete. With respect to each such contract or
other document filed as an exhibit to the Registration Statement, reference is
made to the exhibit for a more complete description of the matters involved, and
each such statement shall be deemed qualified in its entirety by such reference.
The Company is subject to the informational requirements of the Exchange
Act and, in accordance therewith, files periodic reports, proxy statements and
other information with the Commission. A copy of the Registration Statement,
including exhibits and schedules thereto, filed by the Company with the
Commission, as well as other reports, proxy statements and other information
filed by the Company may be inspected without charge at the office of the
Commission, 450 Fifth Street, N.W., Washington, D.C., and at the following
Regional Offices of the Commission: 7 World Trade Center, Suite 1300, New York,
New York, and 500 West Madison Street, Suite 1400, Chicago, Illinois. Copies of
such material can be obtained, upon payment of prescribed fees at the Public
Reference Room of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549. The Commission maintains a Web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission. The address of such site is
http://www.sec.gov. Such reports, proxy statements and other information
concerning the Company can also be inspected at the offices of the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission registration fee............$ 9,134.47
Legal fees and expenses........................................$ *
Accountants' fees..............................................$ *
Miscellaneous..................................................$ *
Total..........................................................$ *
_________________________
*To be completed by amendment.
The foregoing items, except for the Securities and Exchange Commission
registration fee, are estimated.
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a
corporation to indemnify its directors and officers as well as other employees
and individuals in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act. In addition, pursuant to the
authority of Delaware law, the Certificate of Incorporation, as amended, of the
Company also eliminates this monetary liability of directors to the fullest
extent permitted by Delaware law.
The Company maintains directors' and officers' liability insurance policies
covering certain liabilities of persons serving as officers and directors and
providing reimbursement to the Registrant for its indemnification of such
persons.
Item 16. Exhibits
Exhibit No. Description
- ----------- ---------------------------
5.1* Opinion of Sonnenschein Nath & Rosenthal.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Lovelace, Roby & Company, P.A.
23.3* Consent of Sonnenschein Nath & Rosenthal (see Exhibit 5.1).
24.1 Powers of Attorney.
_________________________________
* To be filed by amendment.
<PAGE>
Item 17. Undertakings
(a) 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; and
(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) of this section do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or 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.
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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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.
<PAGE>
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 Form S-3 and has duly caused this Registration Statement
to be filed on its behalf by the undersigned, thereunto duly authorized in the
City of St. Louis, State of Missouri, this 29th day of September, 1997.
LASERSIGHT INCORPORATED
By: /s/ Gregory L. Wilson
---------------------------
Gregory L. Wilson, Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities on the dates indicated.
/s/ Michael R. Farris* September 29, 1997
- ---------------------------------------------
Michael R. Farris, President, Chief Executive
Officer, and Director
/s/ Francis E. O'Donnell, Jr., M.D.* September 29, 1997
- ---------------------------------------------
Francis E. O'Donnell, Jr., M.D.,
Chairman of the Board and Director
/s/ J. Richard Crowley* September 29, 1997
- ---------------------------------------------
J. Richard Crowley, Director
/s/ Thomas Quinn* September 29, 1997
- ---------------------------------------------
Thomas Quinn, Director
/s/ David T. Pieroni* September 29, 1997
- ---------------------------------------------
David T. Pieroni, Director
/s/ Richard C. Lutzy* September 29, 1997
- ---------------------------------------------
Richard C. Lutzy, Director
/s/ Gregory L. Wilson September 29, 1997
- ---------------------------------------------
Gregory L. Wilson, Chief Financial Officer
(Principal accounting officer)
- ---------------------
*/ By: /s/ Gregory L. Wilson
--------------------------------
(Gregory L. Wilson, as Attorney-in-Fact)
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
--- -----------------------
5.1* Opinion of Sonnenschein Nath & Rosenthal.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Lovelace, Roby & Company, P.A.
23.3* Consent of Sonnenschein Nath & Rosenthal (see Exhibit 5).
24.1 Powers of Attorney.
- ------------------------------------
* To be filed by amendment.
EXHIBIT 23.1
Independent Auditors' Consent
-----------------------------
The Board of Directors
LaserSight Incorporated:
We consent to incorporation by reference in the registration statement on Form
S-3 of LaserSight Incorporated, to be filed with the Securities and Exchange
Commission on or about September 29, 1997, of our report dated February 21,
1997, relating to the consolidated balance sheets of LaserSight Incorporated and
subsidiaries as of December 31, 1996 and 1995 and the related consolidated
statements of operations, stockholders' equity, and cash flows for each of the
years in the two-year period ended December 31, 1996, which report appears in
the December 31, 1996 annual report on Form 10-K of LaserSight Incorporated and
to the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
St. Louis, Missouri
September 29, 1997
EXHIBIT 23.2
Consent of Independent Certified Public Accountants
---------------------------------------------------
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related prospectus of LaserSight
Incorporated for the registration to be filed with the Securities and Exchange
Commission on or about September 29, 1997 of its common stock and to the
incorporation by reference therein of our report dated March 6, 1995, with
respect to the consolidated statements of operations, stockholders' equity and
cash flows of LaserSight Incorporated and subsidiaries for the year ended
December 31, 1994 included in its Annual Report on Form 10-K for the year ended
December 31, 1996, filed with the Securities and Exchange Commission.
/s/ Lovelace, Roby & Company, P.A.
Orlando, Florida
September 26, 1997
EXHIBIT 24.1
POWER OF ATTORNEY
-----------------
The person whose signature appears below hereby constitutes and
appoints Michael R. Farris, Richard L. Stensrud and Gregory L. Wilson, and each
of them, any one of whom may act without the other, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
for him in his name, place and stead, in any and all capacities, to sign on his
behalf the registration statement on Form S-3 (the "Registration Statement")
relating to the sale of shares of the common stock, $.001 par value (the "Common
Stock"), of LaserSight Incorporated, a Delaware corporation (the "Company"), by
certain shareholders of the Company, including without limitation the following:
The registration for resale of the following: (i) all shares
of Common Stock that may from time to time become issuable
upon conversion of 1600 shares of Company's Series B
Convertible Participating Preferred Stock (the "Series B
Preferred") issued in a private placement in August 1997; (ii)
790,000 shares of Common Stock issuable upon exercise of
warrants issued in connection with the foregoing private
placement; (iii) all shares of Common Stock issuable upon
conversion of shares of the Company's Series B Preferred, in
lieu of cash, as dividends in respect of shares of the Series
B Preferred,
and any and all additional amendments to the Registration Statement, which
amendments may make such changes and additions to the Registration Statement as
such attorney-in-fact may deem necessary or appropriate, and any and all
documents in connection therewith, and to file the same, with all exhibits
thereto, and all documents in connection therewith with the Securities and
Exchange Commission under the Securities Act of 1933, and hereby ratifies,
approves and confirms all that each of such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 25th day of September, 1997.
/s/ Michael R. Farris
-----------------------------------
Name: Michael R. Farris
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
-----------------
The person whose signature appears below hereby constitutes and
appoints Michael R. Farris, Richard L. Stensrud and Gregory L. Wilson, and each
of them, any one of whom may act without the other, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
for him in his name, place and stead, in any and all capacities, to sign on his
behalf the registration statement on Form S-3 (the "Registration Statement")
relating to the sale of shares of the common stock, $.001 par value (the "Common
Stock"), of LaserSight Incorporated, a Delaware corporation (the "Company"), by
certain shareholders of the Company, including without limitation the following:
The registration for resale of the following: (i) all shares
of Common Stock that may from time to time become issuable
upon conversion of 1600 shares of Company's Series B
Convertible Participating Preferred Stock (the "Series B
Preferred") issued in a private placement in August 1997; (ii)
790,000 shares of Common Stock issuable upon exercise of
warrants issued in connection with the foregoing private
placement; (iii) all shares of Common Stock issuable upon
conversion of shares of the Company's Series B Preferred, in
lieu of cash, as dividends in respect of shares of the Series
B Preferred,
and any and all additional amendments to the Registration Statement, which
amendments may make such changes and additions to the Registration Statement as
such attorney-in-fact may deem necessary or appropriate, and any and all
documents in connection therewith, and to file the same, with all exhibits
thereto, and all documents in connection therewith with the Securities and
Exchange Commission under the Securities Act of 1933, and hereby ratifies,
approves and confirms all that each of such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 25th day of September, 1997.
/s/ Francis E. O'Donnell, Jr., M.D.
-------------------------------------------
Name: Francis E. O'Donnell, Jr., M.D.
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
-----------------
The person whose signature appears below hereby constitutes and
appoints Michael R. Farris, Richard L. Stensrud and Gregory L. Wilson, and each
of them, any one of whom may act without the other, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
for him in his name, place and stead, in any and all capacities, to sign on his
behalf the registration statement on Form S-3 (the "Registration Statement")
relating to the sale of shares of the common stock, $.001 par value (the "Common
Stock"), of LaserSight Incorporated, a Delaware corporation (the "Company"), by
certain shareholders of the Company, including without limitation the following:
The registration for resale of the following: (i) all shares
of Common Stock that may from time to time become issuable
upon conversion of 1600 shares of Company's Series B
Convertible Participating Preferred Stock (the "Series B
Preferred") issued in a private placement in August 1997; (ii)
790,000 shares of Common Stock issuable upon exercise of
warrants issued in connection with the foregoing private
placement; (iii) all shares of Common Stock issuable upon
conversion of shares of the Company's Series B Preferred, in
lieu of cash, as dividends in respect of shares of the Series
B Preferred,
and any and all additional amendments to the Registration Statement, which
amendments may make such changes and additions to the Registration Statement as
such attorney-in-fact may deem necessary or appropriate, and any and all
documents in connection therewith, and to file the same, with all exhibits
thereto, and all documents in connection therewith with the Securities and
Exchange Commission under the Securities Act of 1933, and hereby ratifies,
approves and confirms all that each of such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 25th day of September, 1997.
/s/ J. Richard Crowley
--------------------------------
Name: J. Richard Crowley
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
-----------------
The person whose signature appears below hereby constitutes and
appoints Michael R. Farris, Richard L. Stensrud and Gregory L. Wilson, and each
of them, any one of whom may act without the other, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
for him in his name, place and stead, in any and all capacities, to sign on his
behalf the registration statement on Form S-3 (the "Registration Statement")
relating to the sale of shares of the common stock, $.001 par value (the "Common
Stock"), of LaserSight Incorporated, a Delaware corporation (the "Company"), by
certain shareholders of the Company, including without limitation the following:
The registration for resale of the following: (i) all shares
of Common Stock that may from time to time become issuable
upon conversion of 1600 shares of Company's Series B
Convertible Participating Preferred Stock (the "Series B
Preferred") issued in a private placement in August 1997; (ii)
790,000 shares of Common Stock issuable upon exercise of
warrants issued in connection with the foregoing private
placement; (iii) all shares of Common Stock issuable upon
conversion of shares of the Company's Series B Preferred, in
lieu of cash, as dividends in respect of shares of the Series
B Preferred,
and any and all additional amendments to the Registration Statement, which
amendments may make such changes and additions to the Registration Statement as
such attorney-in-fact may deem necessary or appropriate, and any and all
documents in connection therewith, and to file the same, with all exhibits
thereto, and all documents in connection therewith with the Securities and
Exchange Commission under the Securities Act of 1933, and hereby ratifies,
approves and confirms all that each of such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 25th day of September, 1997.
/s/ Thomas Quinn
--------------------------
Name: Thomas Quinn
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
-----------------
The person whose signature appears below hereby constitutes and
appoints Michael R. Farris, Richard L. Stensrud and Gregory L. Wilson, and each
of them, any one of whom may act without the other, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
for him in his name, place and stead, in any and all capacities, to sign on his
behalf the registration statement on Form S-3 (the "Registration Statement")
relating to the sale of shares of the common stock, $.001 par value (the "Common
Stock"), of LaserSight Incorporated, a Delaware corporation (the "Company"), by
certain shareholders of the Company, including without limitation the following:
The registration for resale of the following: (i) all shares
of Common Stock that may from time to time become issuable
upon conversion of 1600 shares of Company's Series B
Convertible Participating Preferred Stock (the "Series B
Preferred") issued in a private placement in August 1997; (ii)
790,000 shares of Common Stock issuable upon exercise of
warrants issued in connection with the foregoing private
placement; (iii) all shares of Common Stock issuable upon
conversion of shares of the Company's Series B Preferred, in
lieu of cash, as dividends in respect of shares of the Series
B Preferred,
and any and all additional amendments to the Registration Statement, which
amendments may make such changes and additions to the Registration Statement as
such attorney-in-fact may deem necessary or appropriate, and any and all
documents in connection therewith, and to file the same, with all exhibits
thereto, and all documents in connection therewith with the Securities and
Exchange Commission under the Securities Act of 1933, and hereby ratifies,
approves and confirms all that each of such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 29 day of September, 1997.
/s/ David T. Pieroni
------------------------------
Name: David T. Pieroni
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
-----------------
The person whose signature appears below hereby constitutes and
appoints Michael R. Farris, Richard L. Stensrud and Gregory L. Wilson, and each
of them, any one of whom may act without the other, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
for him in his name, place and stead, in any and all capacities, to sign on his
behalf the registration statement on Form S-3 (the "Registration Statement")
relating to the sale of shares of the common stock, $.001 par value (the "Common
Stock"), of LaserSight Incorporated, a Delaware corporation (the "Company"), by
certain shareholders of the Company, including without limitation the following:
The registration for resale of the following: (i) all shares
of Common Stock that may from time to time become issuable
upon conversion of 1600 shares of Company's Series B
Convertible Participating Preferred Stock (the "Series B
Preferred") issued in a private placement in August 1997; (ii)
790,000 shares of Common Stock issuable upon exercise of
warrants issued in connection with the foregoing private
placement; (iii) all shares of Common Stock issuable upon
conversion of shares of the Company's Series B Preferred, in
lieu of cash, as dividends in respect of shares of the Series
B Preferred,
and any and all additional amendments to the Registration Statement, which
amendments may make such changes and additions to the Registration Statement as
such attorney-in-fact may deem necessary or appropriate, and any and all
documents in connection therewith, and to file the same, with all exhibits
thereto, and all documents in connection therewith with the Securities and
Exchange Commission under the Securities Act of 1933, and hereby ratifies,
approves and confirms all that each of such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 25th day of September, 1997.
/s/ Richard C. Lutzy
------------------------------
Name: Richard C. Lutzy
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
-----------------
The person whose signature appears below hereby constitutes and
appoints Michael R. Farris, Richard L. Stensrud and Gregory L. Wilson, and each
of them, any one of whom may act without the other, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
for him in his name, place and stead, in any and all capacities, to sign on his
behalf the registration statement on Form S-3 (the "Registration Statement")
relating to the sale of shares of the common stock, $.001 par value (the "Common
Stock"), of LaserSight Incorporated, a Delaware corporation (the "Company"), by
certain shareholders of the Company, including without limitation the following:
The registration for resale of the following: (i) all shares
of Common Stock that may from time to time become issuable
upon conversion of 1600 shares of Company's Series B
Convertible Participating Preferred Stock (the "Series B
Preferred") issued in a private placement in August 1997; (ii)
790,000 shares of Common Stock issuable upon exercise of
warrants issued in connection with the foregoing private
placement; (iii) all shares of Common Stock issuable upon
conversion of shares of the Company's Series B Preferred, in
lieu of cash, as dividends in respect of shares of the Series
B Preferred,
and any and all additional amendments to the Registration Statement, which
amendments may make such changes and additions to the Registration Statement as
such attorney-in-fact may deem necessary or appropriate, and any and all
documents in connection therewith, and to file the same, with all exhibits
thereto, and all documents in connection therewith with the Securities and
Exchange Commission under the Securities Act of 1933, and hereby ratifies,
approves and confirms all that each of such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 25th day of September, 1997.
/s/ Gregory L. Wilson
---------------------------------
Name: Gregory L. Wilson
