Reg. No. 333-____
As filed with the Securities and Exchange Commission on July 30, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LaserSight Incorporated
(Exact Name of Registrant as Specified in its Charter)
Delaware 65-0273162
(State of Incorporation) (I.R.S. Employer Identification No.)
3300 University Boulevard, Suite 140
Winter Park, Florida 32792
(Address and Zip Code of Principal Executive Offices)
LaserSight Incorporated 1999 Employee Stock Purchase Plan
(Full Title of the Plan)
Gregory L. Wilson
Chief Financial Officer
3300 University Boulevard, Suite 140
Winter Park, Florida 32792
(407) 678-9900
(Name, Address, and Telephone Number of Agent For Service)
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<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered (1) Share (2) Price (2) Registration Fee
---------------- -------------- --------- --------- ----------------
<S> <C> <C> <C> <C>
Common Stock, Par value
$.001 per share(3) 200,000 shares $ 14.13 $2,826,000 $ 785.63
</TABLE>
(1) In the event of a stock split, stock dividend, or similar transaction
involving the Common Stock, 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, as amended ("Securities Act").
(2) Calculated pursuant to Rules 457(h)(1) and 457(c) based on the average of
the high and low prices reported for the Registrant's common stock on the
Nasdaq National Market on July 23, 1999. Estimated solely for the purpose
of calculating the registration fee in accordance with Rule 457 under the
Securities Act.
(3) Includes the associated preferred stock purchase rights (the "Rights") to
purchase one one-thousandth of a share of Series E Junior Participating
Preferred Stock. The Rights initially are attached to and trade with the
Common Stock of the Registrant. The value attributable to such Rights, if
any, is reflected in the offering price of the Common Stock.
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EXPLANATORY NOTE
As permitted by the rules of the Securities and Exchange Commission
(the "Commission"), this Registration Statement omits the information
specified in Part I of Form S-8.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3: Incorporation of Documents by Reference
The following documents filed with the Commission by LaserSight
Incorporated are incorporated in this Registration Statement on Form S-8 (the
"Registration Statement") by reference:
(a) LaserSight's Annual Report on Form 10-K with respect to the fiscal year
ended December 31, 1998 filed by LaserSight with the Commission on
March 31, 1999, as amended by the Form 10-K/A filed with the
Commission on April 30, 1999;
(b) All other reports filed by LaserSight with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") since December 31, 1998.
(c) The description of LaserSight's Common Stock under the caption
"Description of Securities" on pages 16 to 21 of the prospectus forming
a part of the Registration Statement on Form S-3 (Reg. No. 333-77825)
under the Securities Act declared effective by the Commission on June
3, 1999.
All documents subsequently filed by LaserSight 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 registered hereunder have been
sold or which deregisters all of the securities offered then remaining unsold,
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of filing of such documents.
Item 4: Description of Securities
Not applicable.
Item 5: Interests of Named Experts and Counsel
Not applicable.
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Item 6: Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law ("DGCL"), inter alia,
empowers a Delaware corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee
or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Similar indemnity is
authorized for such persons against expenses (including attorneys' fees) actual
and reasonably incurred in connection with the defense or settlement of any such
threatened, pending or completed action or suit by or in the right of the
corporation if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and
provided further that (unless a court of competent jurisdiction otherwise
provides) such person shall not have been adjudged liable to the corporation.
Any such indemnification may be made only as authorized in each specific case
upon a determination by the shareholders or disinterested directors or by
independent legal counsel in a written opinion that indemnification is proper
because the indemnitee has met the applicable standard of conduct. The
certificate of incorporation of LaserSight provides that directors and officers
shall be indemnified as described above in this paragraph to the fullest extent
permitted by the DGCL; provided, however, that any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person shall be indemnified only if such proceeding (or part thereof) was
authorized by the board of directors of LaserSight.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in such capacity,
or arising out of his status as such, whether or not the corporation would
otherwise have the power to indemnify him under Section 145.
The certificate of incorporation of LaserSight provides that, to the
fullest extent permitted by the DGCL, no director of LaserSight shall be
personally liable to LaserSight or its stockholders for monetary damages for
breach of fiduciary duty as a director. Section 102(b)(7) of the DGCL currently
provides that such provisions do not eliminate the liability of a director (1)
for a breach of the director's duty of loyalty to LaserSight or its
stockholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) under Section 174 of
the DGCL (relating to the declaration of dividends and purchase or redemption of
shares in violation of the DGCL), or (4) for any transaction from which the
director derived an improper personal benefit. Reference is made to LaserSight's
charter and by-laws filed as Exhibits 4.1 and 4.2 hereto, respectively.
LaserSight maintains directors' and officers' liability insurance policies
covering certain liabilities of persons serving as officers and directors and
providing reimbursement to LaserSight for its indemnification of such persons.
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Item 7: Exemption from Registration Claimed
Not applicable.
Item 8: Exhibits
Exhibit
Number Description of Exhibit
------ ----------------------
4.1 Certificate of Incorporation (incorporated by reference to Exhibit 1
to the Form 8-A/A(Amendment No. 4) filed by LaserSight on June 25,
1998).
4.2 By-laws (incorporated by reference to Exhibit 3 to
LaserSight's Annual Report on Form 10-K for the fiscal year ending
December 31, 1992 filed by LaserSight on March 31, 1993).
4.3 Rights Agreement, dated as of July 2, 1998, between LaserSight
Incorporated and American Stock Transfer & Trust Company, as Rights
Agent, which includes (i) as Exhibit A thereto the form of
Certificate of Designation of the Series E Junior Participating
Preferred Stock, (ii) as Exhibit B thereto the form of Right
certificate (separate certificates for the Rights will not be issued
until after the Distribution Date) and (iii) as Exhibit C thereto the
Summary of Stockholder Rights Agreement (incorporated by reference to
Exhibit 99.1 to the Form 8-K filed by LaserSight on July 8, 1998).
4.4 First Amendment, dated as of March 22, 1999, to Rights Agreement,
dated as of July 2, 1998, between LaserSight Incorporated and
American Stock Transfer & Trust Company, as Rights Agent
(incorporated by reference to Exhibit 2 to Form 8-A/A filed by
LaserSight on March 29, 1999).
5.1 Opinion of Sonnenschein Nath & Rosenthal
23.1 Consent of Sonnenschein Nath & Rosenthal (included in Exhibit 5.1)
23.2 Consent of KPMG LLP
24.1 Powers of Attorney (on signature page)
Item 9. Undertakings
(a) Rule 415 Offering. LaserSight hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933 (the "Securities Act");
(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;
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(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by LaserSight 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 any liability under the
Securities Act, 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) Incorporation of Subsequent Exchange Act Documents by Reference.
LaserSight hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of LaserSight's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) 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.
(h) Form S-8 Registration Statement.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
LaserSight pursuant to the foregoing provisions, or otherwise, LaserSight has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by LaserSight of expenses incurred or paid
by a director, officer or controlling person of LaserSight 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,
LaserSight will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, LaserSight
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Winter Park, Florida on July 30, 1999.
LASERSIGHT INCORPORATED
By: /s/Michael R. Farris
-------------------------------------
Michael R. Farris
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael R. Farris, J. Richard Crowley and
Gregory L. Wilson and each of them, his or her true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him or her
and in his or her name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement, and to file the same, with
all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact, and
each of them, and agents or their substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities on the dates indicated.
/s/Michael R. Farris July 30, 1999
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Michael R. Farris, President, Chief Executive Officer,
and Director
/s/Francis E. O'Donnell, Jr., M.D. July 30, 1999
- ------------------------------------------------------
Francis E. O'Donnell, Jr., M.D., Chairman of the
Board and Director
/s/Juliet Tammenoms Bakker July 30, 1999
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Juliet Tammenoms Bakker, Director
/s/J. Richard Crowley July 30, 1999
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J. Richard Crowley, Chief Operating Officer and
Director
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/s/Terry A. Fuller, Ph.D. July 30, 1999
- ------------------------------------------------------
Terry A. Fuller, Ph.D., Director
/s/Gary F. Jonas July 30, 1999
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Gary F. Jonas, Director
/s/David T. Pieroni July 30, 1999
- ------------------------------------------------------
David T. Pieroni, Director
/s/Gregory L. Wilson July 30, 1999
- ------------------------------------------------------
Gregory L. Wilson, Chief Financial Officer (Principal
Accounting Officer)
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INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
------ ----------------------
5.1 Opinion of Sonnenschein Nath & Rosenthal
23.1 Consent of Sonnenschein Nath & Rosenthal (included in Exhibit 5.1)
23.2 Consent of KPMG LLP
EXHIBIT 5.1
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
July 30, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Ladies and Gentlemen:
A Registration Statement on Form S-8 (the "Registration Statement") is
being filed on or about the date of this letter with the Securities and Exchange
Commission to register shares of common stock, par value $.001 per share (the
"Shares"), of LaserSight Incorporated (the "Company") which may from time to
time be offered by the Company in connection with the LaserSight Incorporated
1999 Employee Stock Purchase Plan (the "Plan"). This opinion is delivered in
accordance with the requirements of Item 601(b)(5) of Regulation S-K under the
Securities Act of 1933, as amended.
We have acted as counsel to the Company in connection with the
Registration Statement. In rendering this opinion, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of the corporate records of the Company, including its Certificate
of Incorporation, as amended, its By-Laws, and minutes of directors' and
stockholders' meetings, and such other documents (including the Plan), which we
have deemed relevant or necessary as the basis for the opinion as hereinafter
set forth.
We have assumed the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents. In making our examination of documents executed by
parties other than the Company, we have assumed that such parties had the power,
corporate or otherwise, to enter into and to perform their respective
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or otherwise, and the execution and delivery by such
parties of such documents and the validity and binding effect thereof. As to any
facts material to the opinion expressed herein, we have relied upon oral or
written statements and representations of officers and other representatives of
the Company and others.
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Securities and Exchange Commission
July 30, 1999
Page 2
Based upon and subject to the foregoing, it is our opinion that the
Shares that will be originally issued under the Plan, when issued pursuant to,
and in accordance with, the Plan, will be validly issued, fully paid and
non-assessable.
We consent to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
SONNENSCHEIN NATH & ROSENTHAL
By: /s/Mark L. Dosier
-----------------------------
Mark L. Dosier
EXHIBIT 23.2
Independent Auditors' Consent
The Board of Directors
LaserSight Incorporated
We consent to incorporation by reference in the registration statement
on Form S-8 of LaserSight Incorporated, to be filed with the Securities and
Exchange Commission on July 30, 1999, of our report dated March 25, 1999,
relating to the consolidated balance sheets of LaserSight Incorporated and
subsidiaries as of December 31, 1998 and 1997 and the related consolidated
statements of operations, comprehensive loss, stockholders' equity, and cash
flows for each of the years in the three-year period ended December 31, 1998,
which report appears in the December 31, 1998 annual report on Form 10-K/A of
LaserSight Incorporated.
/s/ KPMG LLP
St. Louis, Missouri
July 30, 1999
