Registration No. 333-68495
As filed with the Securities and Exchange Commission on April 2, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 2
TO
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 jurisdiction (Primary Standard (I.R.S. Employer
of incorporation or Industrial Classification Identification Number)
organization) Code Number)
3300 University Boulevard, Suite 140
Winter Park, Florida 32792
(407) 678-9900
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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Mr. Gregory L. Wilson Copy to:
Chief Financial Officer Mark L. Dosier, Esq.
LaserSight Incorporated Sonnenschein Nath & Rosenthal
3300 University Boulevard, Suite 140 8000 Sears Tower
Winter Park, Florida 32792 Chicago, Illinois 60606
(407) 678-9900 (312) 876-8000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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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. [ ]
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.
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The information contained in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION DATED APRIL 2, 1999
PROSPECTUS
1,687,500 Shares
LASERSIGHT INCORPORATED
Common Stock
This prospectus relates to the following 1,687,500 shares of common
stock of LaserSight Incorporated being offered for sale by the selling
stockholders named in this prospectus:
o 750,000 shares of LaserSight common stock that will be issued
upon the exercise of warrants issued to Mercacorp, Inc. with
an exercise price of $4.00 per share.
o 750,000 shares of LaserSight common stock that will be issued
upon the exercise of warrants issued to Mercacorp with an
exercise price of $5.00 per share.
o 187,500 shares of LaserSight common stock issued to Frederic
B. Kremer and certain other parties in connection with a
letter agreement dated September 9, 1998.
We have agreed to pay certain expenses in connection with the
registration of the common stock by this prospectus and to indemnify the selling
stockholders named in this prospectus against certain liabilities, including
liabilities under the Securities Act.
We have been advised by the selling stockholders named in this
prospectus that there are no underwriting arrangements with respect to the sale
of the common stock being registered by this prospectus, and that the selling
stockholders may offer the shares 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. LaserSight common stock is
traded on The Nasdaq Stock Market under the symbol "LASE." On April 1, 1999, the
last reported sale price for LaserSight common stock was $5.25 per share.
These securities involve a high degree of risk. See "Risk Factors"
beginning on page 4.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
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The date of this prospectus is ________________, 1999.
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TABLE OF CONTENTS
Overview of LaserSight Incorporated Selling Stockholders
Risk Factors Plan of Distribution
Forward-Looking Statements Legal Matters
Use of Proceeds Experts
Capitalization Where to Find More Information
Description of Securities Documents Incorporated by Reference
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You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with information that is different. We are not making
an offer of the securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
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OVERVIEW OF LASERSIGHT INCORPORATED
Operating Segment Information
LaserSight Incorporated operates in three major operating segments:
technology, patents and health care services. Our technology segment includes
LaserSight Technologies, Inc. and LaserSight Centers Incorporated. LaserSight
Technolgies develops, manufactures and markets ophthalmic lasers designed to
correct common vision disorders. These lasers utilize a one millimeter scanning
laser beam to remove microscopic layers of corneal tissue in order to reshape
the cornea and to correct the eye's point of focus in persons with
nearsightedness, farsightedness and astigmatism. LaserSight Centers is a
developmental-stage company through which we may, in the future, provide laser
surgery and other related eye care surgical services.
Our patents segment consists of LaserSight Patents, which licenses
various patents related to the use of excimer lasers to remove
biological tissue.
Since December 31, 1997, our health care services segment has consisted of
MRF, Inc. which operates under the name of the Farris Group. The Farris Group
provides health care and vision care consulting services to hospitals, managed
care companies and physicians. Until that date, this segment had also included
MEC Health Care, Inc. and LSI Acquisition, Inc. Under LaserSight's ownership,
MEC was a vision managed care company which managed vision care programs for
health maintenance organizations and other insured enrollees and LSIA was a
physician practice management company which managed the ophthalmic practice
known as the "Northern New Jersey Eye Institute". Organizational Information
We were incorporated in Delaware in 1987 but were inactive until 1991. In
April 1993, we acquired LaserSight Centers in a stock-for-stock exchange with
additional shares issued in March 1997 pursuant to an amended purchase
agreement. In February 1994, LaserSight acquired The Farris Group. In July 1994,
we were reorganized as a holding company. In October 1995, we acquired MEC. In
July 1996, our LSIA subsidiary acquired the assets of the Northern New Jersey
Eye Institute. In August of 1997 we formed LaserSight Patents which then
acquired certain patents from International Business Machines Corporation. On
December 30, 1997, we sold MEC and LSIA in a transaction that was effective as
of December 1, 1997. In April 1998, we acquired the assets of the medical
products division of Schwartz Electro-Optics, Inc.
Principal Office
LaserSight's principal office and mailing address are 3300 University
Boulevard, Suite 140, Winter Park, Florida 32792.
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RISK FACTORS
In addition to the other information we provide or incorporate by
reference in this prospectus, you should carefully consider the following risks
before deciding whether to invest in our common stock. In evaluating the risks
of investing in our common stock, you should also evaluate the other information
set forth or incorporated by reference in this prospectus, including our
financial statements and the notes accompanying them.
Industry and Competition Risks
WE MAY ENCOUNTER DIFFICULTIES COMPETING IN THE HIGHLY COMPETITIVE VISION
CORRECTION INDUSTRY. The vision correction industry is subject to intense,
increasing competition, and we do not know if we will be able to compete
successfully against our current and future competitors. Many of our competitors
have existing products and distribution systems in the marketplace and are
substantially larger, better financed, and better known. Two of our principal
competitors, Summit Technology, Inc. and Autonomous Technology Corporation,
recently entered into a merger agreement. If the proposed merger is approved by
stockholders, it is anticipated that the merger would be completed during the
first quarter of 1999. If completed, the market presence, technology base and
distribution capabilities of the combined entity would be substantial. Further,
the merger would provide Autonomous with licenses to use certain patents owned
by Visx, Inc.
OUR COMPETITORS MAY HAVE OR RECEIVE BROADER REGULATORY APPROVALS WHICH MAY
PREVENT US FROM MARKETING OUR PRODUCTS. We have not yet received the GMP
clearance from the FDA that is required for the commercial sale of our LaserScan
LSX laser system. Based on the current status of development efforts, we believe
that it is reasonable to expect such FDA clearance in the next four to seven
months. However, we cannot be certain as to the receipt or the timing of receipt
of such clearance. A number of lasers manufactured by other companies have
either received, or are 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 our lasers. In addition to laser systems of Summit
Technology, Inc., Visx, Inc. and others already approved for commercial sale in
the U.S., Nidek Co., Ltd. obtained FDA approval of its EC-5000 excimer laser
system in December 1998. Other manufacturers, including Bausch & Lomb, are
expected to obtain approval during 1999, giving them the right to market their
systems commercially in the U.S. The established market presence in the U.S. of
previously-approved laser systems, as well as the entry of new competitors into
the market upon receipt of regulatory approvals, could impede our ability to
successfully introduce our LaserScan LSX system and have a material adverse
effect on our business, financial condition and results of operations.
NEW PRODUCTS OR TECHNOLGIES COULD ERODE DEMAND FOR OUR PRODUCTS OR MAKE
THEM OBSOLETE. In addition to competing with eyeglasses, contact lenses and
radial keratotomy, excimer laser vision correction competes or may compete with
newer technologies such as intraocular lenses, corneal rings and surgical
techniques using different types of lasers. To date, we have not been materially
affected by the introduction of new or advanced technologies in the laser vision
correction industry. Two products that may become competitive within the next
one to three years are intraocular lenses and corneal rings. Both of these
procedures involve lens implants that require an invasive surgical procedure,
unlike an excimer laser, and their ultimate market acceptance is unknown at this
time. To the extent that any of these or other new technologies are perceived to
be clinically superior or economically more attractive than excimer laser vision
correction, they could erode demand for our excimer laser products, cause a
reduction in selling prices of such products or render such products obsolete.
In addition, if one or more competing technologies achieve broader market
acceptance or render our PRK and LASIK lasers procedures obsolete, it could have
a material adverse effect on our business, financial condition and results of
operations.
While we do not anticipate that additional technical difficulties will
arise that would further delay or prevent the successful development,
introduction and marketing of our single use, disposable keratome product, the
UniShaper(TM), formerly known as the A*D*K (TM), we cannot be certain that new
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difficulties will not arise. Unanticipated logistical issues, such as the
manufacturer's failure to meet expected production goals, may arise which could
further delay the commercialization of the product. As is typical in the case of
new and rapidly evolving industries, demand and market for recently-introduced
technology and products is uncertain, and we cannot be certain that our
UniShaper single use product or future new products and enhancements will be
accepted in the marketplace. In addition, announcements of new products, whether
for sale in the near future or at some later date, may cause customers to defer
purchasing our existing products.
THE LACK OF BROAD MARKET ACCEPTANCE OF LASER-BASED EYE TREATMENT MAY HAVE
AN ADVERSE EFFECT ON OUR BUSINESS. We believe that whether we achieve
profitability and growth will depend, in part, upon broad acceptance of PRK or
LASIK in the U.S. and other countries. We cannot be certain 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 adversely affected by:
o The cost of the procedure
o Possible concerns relating to safety and efficacy
o The public's general resistance to surgery
o The effectiveness and lower cost of alternative methods of
correcting refractive vision disorders
o The lack of long-term follow-up data
o The possibility of unknown side effects
o The lack of third-party reimbursement for the procedures
o Possible future unfavorable publicity involving patient outcomes
from the use of PRK or LASIK systems
o 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 our business, financial condition and results of
operations.
Financial and Liquidity Risks
WE HAVE EXPERIENCED AND MAY CONTINUE TO EXPERIENCE LOSSES AND OPERATING
CASH FLOW DEFICITS. We experienced significant net losses and deficits
in cash flow from operations for the fiscal years ended December 31,
1998, 1997 and 1996, as set forth in the following table. We cannot be
certain that we will be able to regain or sustain profitability or
positive operating cash flow.
For the Years
Ended December 31,
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1998 1997 1996
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Net Loss $11.9 million $7.3 million $4.1 million
Deficit in Cash Flow from
Operations $14.3 million $4.4 million $4.2 million
Although we achieved profitability during 1994 and 1995, we had a deficit
in cash flow from operations of $1.9 million during 1995. In addition, we
incurred losses in 1991 through 1993. As of December 31, 1998, we had an
accumulated deficit of $23.7 million. We expect to report a loss and deficit in
cash flow from operations for the first quarter of 1999.
IF OUR UNCOLLECTIBLE RECEIVABLES EXCEED OUR RESERVES WE WILL INCUR
ADDITIONAL UNANTICIPATED EXPENSES. Although we monitor the status of our
receivables and maintain a reserve for estimated losses, we cannot be certain
that our reserves for estimated losses, which were approximately $2.6 million at
December 31, 1998, will be sufficient to cover the amount of our actual
write-offs over time. At December 31, 1998, our trade accounts and notes
receivable totaled approximately $12.3 million, and accrued commissions, the
payment of which generally depends on the collection of such net trade accounts
and notes receivable, totaled approximately $1.9 million. Actual write-offs that
materially exceed amounts reserved could have a material adverse effect on our
consolidated financial condition and results of operations. The amount of any
loss that we may have to recognize in connection with our inability to collect
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receivables is principally dependent on our customer's ongoing financial
condition, their ability to generate revenues from our laser systems, and our
ability to obtain and enforce legal judgments against delinquent customers.
Approximately 91% of our net receivables at December 31, 1998 related to
international accounts. Our ability to evaluate the financial condition and
revenue generating ability of our prospective customers located outside of the
United States, and our ability to obtain and enforce legal judgments against
non-U.S. customers, is generally more limited than for our customers located in
the U.S. See "--Company and Business Risks--We are Subject to Certain Risks
Associated with our International Sales."
IF WE EXPERIENCE DIFFICULTY COLLECTING RESTRUCTURED RECEIVABLES WITH
EXTENDED PAYMENT TERMS, WE MAY EXPERIENCE LIQUIDITY PROBLEMS. At December 31,
1998, we had extended the original payment terms of laser customer accounts
totaling approximately $1,366,000 by periods ranging from 12 to 60 months. Such
restructured receivables represent approximately 11 percent of our net
receivables as of that date. Our liquidity and operating cash flow would be
adversely affected if additional extensions become necessary in the future. In
addition, it may be more difficult to collect laser system receivables if the
payment schedule extends beyond the expected or actual economic life of the
system, which we estimate to be approximately five to seven years. To date, we
do not believe any payment schedules extend beyond the economic life of the
applicable systems.
WE MAY EXPERIENCE LIQUIDITY PROBLEMS AND THERE IS UNCERTAINTY REGARDING
THE TERMS OR AVAILABILITY OF ADDITIONAL CAPITAL. During the year ended December
31, 1998, we experienced a $14.3 million deficit in cash flow from operations.
We expect that any improvements in cash flow from operations will depend on,
among other things, our ability to market, produce and sell our new LaserScan
LSX laser systems in larger quantities and our ability to market, produce and
sell our UniShaper single use keratome product on a commercial basis. During the
fourth quarter of 1998, LaserScan LSX laser system sales accounted for the
majority of laser systems sold, and we expect sales of our LaserScan LSX laser
system to make a more significant contribution to our operating results in the
future. Because we are still in the process of completing the clinical
validation of our UniShaper single use keratome product, we do not believe that
regular commercial shipments of that product will begin until the second quarter
of 1999.
With our financing that closed in March 1999, we believe that our balances
of cash and cash equivalents, together with our cash flows from operations,
should be sufficient to fund our anticipated working capital requirements for
the next 12 months in accordance with our current business plan. Our belief
regarding future working capital requirements is based on various factors and
assumptions including the anticipated timely entry into the international
marketplace with keratome related products and the U.S. market with both our
keratome related products and LaserScan LSX system, the anticipated timely
collection of receivables including faster anticipated collections and the lack
of extended payment terms on keratome related products, and the absence of
unanticipated product development costs. These factors and assumptions are
subject to certain contingencies and uncertainties, some of which are beyond our
control. If we do not collect a material portion of current receivables in a
timely manner, experience significant further delays in the shipment of our
UniShaper single use keratome product or in the FDA clearance and entry into the
U.S. market of our LaserScan LSX laser system, or experience less market demand
for our products than we anticipate, our liquidity could be materially and
adversely affected.
We cannot be certain that we will not seek additional debt or equity
financing in the future to implement our business plan or any changes thereto in
response to future developments or unanticipated contingencies. We currently do
not have any commitments for additional financing. We cannot be certain that
additional financing will be available in the future to the extent required or
that, if available, it will be on acceptable terms. If we raise additional funds
by issuing equity or convertible debt securities, the terms of the new
securities could have rights, preferences and privileges senior to those of our
common stock. If we raise additional funds through debt financing, the terms of
the debt could require a substantial portion of our cash flow from operations to
be dedicated to the payment of principal and interest and may render us more
vulnerable to competitive pressures and economic downturns.
Common Stock Risks
THE MARKET PRICE OF OUR COMMON STOCK MAY CONTINUE TO EXPERIENCE EXTREME
FLUCTUATIONS DUE TO MARKET CONDITIONS THAT ARE UNRELATED TO OUR OPERATING
PERFORMANCE. The volatility of our common stock imposes a greater risk of
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capital losses on stockholders as compared to less volatile stocks. In addition,
such volatility makes it difficult to ascribe a stable valuation to a
stockholder's holdings of LaserSight common stock. Factors such as announcements
of technological innovations or new products by LaserSight or its competitors,
changes in domestic or foreign governmental regulations or regulatory approval
processes, developments or disputes relating to patent or proprietary rights,
public concern as to the safety and efficacy of the procedures for which the
laser system is used, and changes in reports and recommendations of security
analysts, have and may continue to have a significant impact on the market price
of LaserSight common stock. Moreover, the possibility exists that the stock
market, and in particular the securities of technology companies such as
LaserSight, could experience extreme price and volume fluctuations unrelated to
operating performance.
VARIATIONS IN OUR SALES AND OPERATING RESULTS MAY CAUSE OUR STOCK PRICE TO
DECLINE. Our operating results have fluctuated in the past, and may continue to
fluctuate in the future, as a result of a variety of factors, many of which are
outside of our control. For example, we have historically operated with little
or no backlog because our products are generally shipped as orders are received,
and a significant portion of orders for a particular quarter have been received
and shipped near the end of the quarter. As a result, our operating results for
any quarter often depend on orders received and laser systems shipped late in
that quarter. Other factors that may cause our operating results to fluctuate
include:
o timing of regulatory approvals and the introduction of new products;
o reductions, cancellations or fulfillment of major orders;
o the addition or loss of significant customers;
o our relative mix of business;
o changes in pricing by us or our competitors;
o changes in personnel and employee utilization rates;
o costs related to expansion of our business;
o increased competition; and
o budget decisions by our customers.
As a result of these fluctuations, we believe that period-to-period
comparisons of our operating results cannot necessarily be relied upon as
indicators of future performance. In some quarters our operating results may
fall below the expectations of securities analysts and investors due to any of
the factors described above. In such event, the trading price of our common
stock would likely decline.
THE SIGNIFICANT NUMBER OF SHARES ELIGIBLE FOR FUTURE SALE AND DILUTIVE
STOCK ISSUANCES MAY ADVERSELY AFFECT OUR STOCK PRICE. Sales, or the possibility
of sales, of substantial amounts of our common stock in the public market could
adversely affect the market price of our common stock. As of April 1, 1999, of
LaserSight's 15,442,635 shares of common stock outstanding, approximately 13.1
million shares were freely tradable without restriction or further registration
under the Securities Act, except to the extent such shares are held by
"affiliates" of LaserSight as that term is defined in Rule 144 under Securities
Act or subject only to the satisfaction of a prospectus delivery requirement.
Shares included in the March 1999 private placement will be freely tradable on a
similar basis once a registration statement covering such shares is filed and
declared effective.
Shares of common stock which LaserSight may issue in connection with
future acquisitions or financings or pursuant to outstanding warrants or
agreements could also adversely affect the market price of our common stock and
cause significant dilution in our earnings per share and net book value per
share.
o We may be required to issue more than 4 million additional shares of
common stock upon the exercise of outstanding warrants and to satisfy
certain contingent contractual obligations. See "Description of
Securities--Warrants and other Agreements to Issue Shares."
o In addition, the 4 million outstanding shares of Series C and
Series D Preferred Stock may be converted into common stock at
any time. See "Description of Securities--Preferred Stock."
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o The anti-dilution provisions of certain of our existing securities
and obligations require us to issue additional shares if we issue
shares of common stock below specified price levels. If a future
share issuance triggers these adjustments, the beneficiaries of
such provisions effectively receive some protection from declines in
the market price of our common stock, while our other stockholders
incur additional dilution of their ownership interest.
We may include similar anti-dilution provisions in securities issued in
connection with future financings. Some of the factors we consider when we
determine whether to include such provisions are our cash resources, the trading
history of our common stock, the negotiating position of the selling party or
the investors, and the extent to which we estimate that the expected benefit
from the acquisition or financing exceeds the expected dilutive effect of the
price-protection provision.
CERTAIN ANTI-TAKEOVER MEASURES MAY HAVE AN ADVERSE EFFECT ON OUR STOCK
PRICE. Certain provisions of our certificate of incorporation, by-laws and
Delaware law could delay or frustrate the removal of incumbent directors,
discourage potential acquisition proposals and delay, defer or prevent a change
in control of LaserSight, even if such events could be beneficial, in the short
term, to the interests of our stockholders. For example, our certificate of
incorporation allows us to issue preferred stock with rights senior to those of
the common stock without stockholder action. LaserSight also is subject to
provisions of Delaware corporation law that prohibit a publicly-held Delaware
corporation from engaging in a broad range of business combinations with a
person who, together with affiliates and associates, owns 15% or more of the
corporation's common stock (an "interested stockholder") for three years after
the person became an interested stockholder, unless the business combination is
approved in a prescribed manner. We also have adopted a stockholder rights
agreement and declared a dividend distribution of one preferred share purchase
right ("Right") on each outstanding share of common stock. The Rights would
cause substantial dilution to a person or group that attempts to acquire 15% or
more of our common stock on terms not approved by our Board of Directors.
Company and Business Risks
THE LOSS OF KEY PERSONNEL COULD ADVERSELY AFFECT OUR BUSINESS. Our ability
to maintain our competitive position depends in part upon the continued
contributions of our executive officers and other key employees, especially
Michael R. Farris, our President and Chief Executive Officer, and J. Richard
Crowley, the President and Chief Operating Officer of our LaserSight
Technologies subsidiary. A loss of one or more such officers or key employees,
especially of Mr. Farris or Mr. Crowley, could have a material adverse effect on
our business. We do not carry "key man" insurance on Mr. Farris, Mr. Crowley or
any other officers or key employees.
As we continue the clinical development of our excimer lasers and other
products and prepare for regulatory approvals and other commercialization
activities, we will need to continue to implement and expand our operational,
financial and management resources and controls. While to date we haven't
experienced problems recruiting or retaining the personnel necessary to
implement such actions, we cannot be certain that such problems won't arise in
the future. If we fail to attract and retain qualified individuals for necessary
positions, and if we are unable to effectively manage growth in our domestic and
international operations, it could have a material adverse effect on our
business, financial condition and results of operations.
FAILURE OF OUR "Y2K" COMPLIANCE EFFORTS, LACK OF COMPLIANCE BY OUR
MATERIAL SUPPLIERS AND OTHER UNCERTAINTIES RELATED TO THE "Y2K ISSUE" COULD
ADVERSELY AFFECT OUR BUSINESS. As many computer systems, software programs and
other equipment with embedded chips or processors use only two digits rather
than four to define the applicable year, they may be unable to process
accurately certain data, during or after the year 2000. As a result, LaserSight
as well as other business and governmental entities are at risk for possible
miscalculations or systems failures which could cause material disruptions in
business operations. This is commonly known as the Year 2000 ("Y2K") issue. The
Y2K issue concerns not only information systems and technology used by
LaserSight, but also concerns third parties, such as our customers, vendors and
distributors, using information systems and technology that may interact with or
affect our operations.
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We have implemented a Y2K readiness program with the objective of having
all of our significant information systems and technology functioning properly
with respect to Y2K before January 1, 2000. We have developed a comprehensive
plan to assess the actual and potential Y2K impact on our operations, both in
information technology ("IT") areas and non-information technology ("Non-IT")
areas, as well as our product offerings. Our assessment included our
manufacturing and operating systems and the readiness of vendors and other third
parties upon whom we rely.
o IT Systems. Our IT systems are microcomputer-based and consist of
standard software purchased from outside vendors. All software is being
identified and assessed to determine the extent of modification required
in order to be Y2K compliant. We believe that all software will be made
Y2K compliant before the end of June 1999 through vendor-provided
updates or replacement with other Y2K compliant hardware and software.
We, as has been planned for some time, are also replacing our financial
and accounting software, and expect to have the majority of such new
software implemented in the second quarter of 1999. The vendors of our
financial and accounting software have represented to us that the
software is Y2K compliant. Our IT inventory related to Y2K compliance is
approximately 90% complete, the remediation assessment of problem areas
is approximately 90% complete, and testing, including validation of
compliance, is expected to be completed by the end of April 1999.
o Non-IT Systems. For our Non-IT systems, we have identified third parties
with which we have a significant relationship that, in the event of a
Y2K failure, could have a material impact on our business, financial
condition or results of operations. The third parties include utility
suppliers, material and supply vendors, communication vendors and our
significant distributors. Some of these relationships, especially those
associated with certain suppliers, are material to us and a Y2K failure
by one or more of these parties could have a material adverse effect on
our business, financial condition and results of operations. We are
corresponding with these business partners and service providers to
assess their ability to support our operations with respect to each of
their Y2K issues. The issues that are identified as part of this process
are being prioritized in order of significance to our operations and we
will take corrective action as appropriate. We have contacted
approximately 98% of our vendors, business partners and service
providers. Approximately 95% have responded to date, and we are
continuing to assess their responses.
o Products. We are not aware of any Y2K problems with our current
production model, the LaserScan LSX, as all applicable components and
the software have been validated and tested. Older models, generally
manufactured in the first half of 1998 and earlier, may require upgraded
software and/or hardware. We are taking steps to promptly notify
affected users and, except for those users under warranty or service
contract, offer such upgrades at additional cost to the user. Such
upgrades are currently available and, in addition to resolving potential
Y2K problems, also provide for more efficient system performance.
We intend to develop contingency plans for Y2K issues which, if not timely
resolved, could have a significant impact on our operations. These plans will be
designed to minimize the impact of failure to achieve Y2K compliance. Such
contingency plans are substantially complete although we will continue to
monitor our plans as a result of future events and circumstances.
We estimate the costs to address Y2K issues will total $150,000, of which
approximately $60,000 has been incurred to date. Such costs will be expensed as
incurred, and will exclude the costs of our new financial and accounting
software. Y2K compliance related costs are estimated to be 50% of our total IT
expense budget through the end of 1999. No material IT projects are expected to
be delayed. The costs and time necessary to complete the Y2K modification and
testing processes are based on our best estimates, which were derived utilizing
numerous assumptions of future events including the continued availability of
certain resources, third party modification plans and other factors. Our Y2K
readiness program is an ongoing process and the estimates of costs and
completion dates for various components of the Y2K readiness program described
above are subject to change.
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Due to the general uncertainty inherent in our Y2K compliance, mainly
resulting from our dependence upon the Y2K compliance of the government
agencies, suppliers, vendors and distributors with whom we and our service
providers deal, we are unable to determine at this time our most reasonably
likely worst case scenario. While we expect our Y2K compliance efforts to reduce
significantly our level of uncertainty about the impact of Y2K issues affecting
IT and Non-IT systems and our product offerings, we cannot be certain that costs
related to the lack of Y2K compliance of third parties, business interruptions,
litigation and other liabilities related to Y2K issues will not have a material
adverse effect on our business, financial condition and results of operations.
GOVERNMENT REGULATION AND REGULATORY DECISIONS MAY RESTRICT OR DELAY THE
MANUFACTURE AND MARKETING OF OUR PRODUCTS. Our laser products are subject to
strict governmental regulations which materially affect our ability to
manufacture and market these products and directly impact our overall prospects.
All laser devices marketed in interstate commerce are subject to the laser
regulations required by the Radiation Control for Health and Safety Act, as
administered by the FDA. The regulations impose design and performance
standards, labeling and reporting requirements, and submission conditions in
advance of marketing for all medical laser products. Our ophthalmic laser
systems produced for medical use require PMA approval by the FDA before we can
ship our laser systems for use in the U.S. 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.
If and when our ophthalmic laser systems receive PMA approval by the FDA,
we will be required to obtain GMP clearance with respect to our manufacturing
facilities. These regulations impose certain procedural and documentation
requirements with respect to our manufacturing and quality assurance activities.
Our facilities will be subject to inspections by the FDA, and if any
noncompliance with GMP guidelines is noted during facility inspections, the
marketing of our laser products may be adversely affected. In addition, if any
of our suppliers of significant components or sub-assemblies cannot meet our
quality requirements, we could be delayed in producing commercial systems for
the U.S. market.
Additionally, product and procedure labeling and all forms of promotional
activities are subject to examination by the FDA, and current FDA enforcement
policy prohibits the marketing of approved medical devices for unapproved uses.
Noncompliance with these requirements may result in warning letters, fines,
injunctions, recall or seizure of products, suspension of manufacturing, denial
or withdrawal of PMAs, and criminal prosecution.
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. In particular, all member countries of
the EU require CE Mark certification of compliance with the EU medical
directives as the standard for regulatory approval for sale of laser systems in
EU member countries. Both of our LaserScan LSX and LaserScan 2000 laser systems
have received CE Mark certification, the former of which was received in
September 1998.
We cannot determine the costs or time it will take to complete the
approval process and the related clinical testing for our medical laser
products. Future legislative or administrative requirements, in the U.S., or
elsewhere, may adversely affect our ability to obtain or retain regulatory
approval for our laser products. The failure to obtain required approvals on a
timely basis could have a material adverse effect on our business, financial
condition and results of operations.
PATENT INFRINGEMENT ALLEGATIONS MAY IMPAIR OUR ABILITY TO MANUFACTURE AND
MARKET OUR PRODUCTS. There are a number of U.S. and foreign patents covering
methods and apparatus for performing corneal surgery that we do not own or have
the right to use. If we were found to infringe a patent in a particular market,
LaserSight and its customers may be enjoined from making, using and selling that
product in the market and be liable for damages for any past infringement of
such rights. In order to continue using such rights, we would be required to
obtain a license which may require us to make royalty, per procedure or other
fee payments. We cannot be certain if we or our customers will be successful in
securing licenses, or that if we obtain licenses, such licenses will be on
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acceptable terms. Alternatively, we might be required to redesign the infringing
aspects of these products. Any redesign efforts that we undertake could be
expensive and might require regulatory review. Furthermore, the redesign efforts
could delay the reintroduction of these products into certain markets, or may be
so significant as to be impractical. If redesign efforts were impractical, we
could be prevented from manufacturing and selling the infringing products, which
would have a material adverse effect on our business, financial and results of
operations.
While we are not currently involved in any material patent litigation, we
have been the subject of patent infringement allegations in the past and such
allegations are common in our industry. In 1992, Summit and Visx formed a U.S.
partnership, Pillar Point Partners, to pool certain of their patents related to
corneal sculpting technologies. As part of their agreement to dissolve Pillar
Point in June 1998, Summit and Visx granted each other a worldwide, royalty free
cross-license whereby each party will have full rights to license all existing
patents owned by either company relating to laser vision correction for use with
their systems. In connection with our March 1996 settlement of litigation with
Pillar Point regarding alleged infringement by our lasers of certain U.S.
patents, we agreed to notify Pillar Point before we begin manufacturing or
selling our laser systems in the U.S. While we are not contractually obligated
to anyone to obtain a license prior to the selling our lasers in the U.S., one
or more of our competitors may assert that such a license is required. As of the
date of this prospectus, we have not obtained a U.S. license from either Summit
or Visx, and the terms of any license, if such license is granted, have not been
determined.
REQUIRED MINIMUM PAYMENTS UNDER OUR UNISHAPER LICENSE AGREEMENT MAY EXCEED
OUR GROSS PROFITS FROM SALES OF OUR UNISHAPER PRODUCT. In addition to the risk
that the UniShaper single use keratome will not be accepted in the marketplace,
we are required to make certain minimum payments to the licensors under our
UniShaper single use keratome limited exclusive license agreement. Under the
agreement, we are required to pay a total of $300,000 in two installments due
six and 12 months after the date of our receipt of completed limited production
molds and to provide an excimer laser. We provided the laser during the quarter
ended June 30, 1998, and we expect to accept and receive such molds once we
determine that the product is ready to be commercially shipped. We currently
anticipate regular commercial shipments to commence in the second quarter of
1999. In addition, commencing seven months after such date, we will be required
to make royalty payments equal to 50% of our defined gross profits from
UniShaper single use keratome sales, with a minimum royalty of $400,000 per
calendar quarter for a period of eight quarters.
WE ARE SUBJECT TO CERTAIN RISKS ASSOCIATED WITH OUR INTERNATIONAL SALES.
Our international sales accounted for 87% of our total revenues during the year
ended December 31, 1998. We expect sales to international accounts will continue
to represent a comparable percentage of our total sales unless and until our
systems are cleared for commercial distribution in the U.S., or with respect to
those products that do not require regulatory approval, otherwise enter the U.S.
market. The majority of our international sales for the twelve months ended
December 31, 1998 were to customers in Canada, China, Brazil, Mexico, Italy,
Argentina, South Africa, and Turkey. Our business, financial condition and
international results of operations may be adversely affected by present
economic instability in Brazil and the impact of that instability on other South
American countries, future economic instability in other countries in which we
have sold or may sell, increases in duty rates, difficulties in obtaining export
licenses, ability to maintain or increase prices, and competition. In addition,
international sales may be limited or disrupted by:
o The imposition of government controls
o Export license requirements
o Political instability
o Trade restrictions
o Changes in tariffs
o Difficulties in staffing and coordinating communications among and
managing international operations.
Because all of our sales have been denominated in U.S. dollars, we do not
have exposure to typical foreign currency fluctuation risk. However, due to our
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significant export sales, we are subject to currency exchange rate fluctuations
in the U.S. dollar, which could increase the effective price in local currencies
of our products. This could in turn result in reduced sales, longer payment
cycles and greater difficulty in collecting receivables. See "--If Our
Uncollectible Receivables Exceed Our Reserves We will Incur Additional
Unanticipated Expenses" above. Although we have not experienced any material
adverse effect on our operations as a result of such regulatory, political and
other factors, such factors may have a material adverse effect on our operations
in the future or require us to modify our business practices.
INADEQUACY OR UNAVAILABILITY OF INSURANCE MAY EXPOSE US TO SUBSTANTIAL
PRODUCT LIABILITY CLAIMS. Our business exposes us to potential product liability
risks that are inherent in the development, testing, manufacture, marketing and
sale of medical devices for human use. We have agreed in the past, and we will
likely agree in the future, to indemnify certain medical institutions and
personnel who conduct and participate in our clinical studies. While we maintain
product liability insurance, we cannot be certain that any such liability will
be covered by our insurance or that damages will not exceed the limits of our
coverage. Even if a claim is covered by insurance, the costs of defending a
product liability, malpractice, negligence or other action, and the assessment
of damages in excess of insurance coverage, could have a material adverse effect
on our business, financial condition and results of operations. Our "claims
made" product liability insurance coverage is limited to $10 million and our
general liability insurance coverage is limited to $6 million, including up to
$5 million of coverage under an excess liability policy. Further, product
liability insurance may not continue to be available, either at existing or
increased levels of coverage, on commercially reasonable terms.
OUR SUPPLY OF CERTAIN CRITICAL COMPONENTS AND SYSTEMS MAY BE INTERRUPTED
BECAUSE OF OUR RELIANCE ON A LIMITED NUMBER OF SUPPLIERS. LaserSight currently
purchases certain components used in the production, operation and maintenance
of its laser systems and related products from a limited number of suppliers and
certain key components are provided by a single vendor. Any interruption in the
supply of critical laser components could have a material adverse effect on our
business, financial condition and results of operations. For example, the
UniShaper single use keratome product will be manufactured exclusively for
LaserSight by Frantz Medical Development Ltd., an ISO 9001 company experienced
in the manufacture of engineering-grade medical devices. We also have exclusive
supply arrangements for certain key laser system components with TUI
Lasertechnik und Laserintegration GmbH. If any of our key suppliers cease
providing us with products of acceptable quality and quantity in a timely
fashion, we would have to locate and contract with a substitute supplier. We do
not know if such substitute suppliers could be located and qualified in a timely
manner or could provide required products on commercially reasonable terms.
Acquisition Risks
PAST AND POSSIBLE FUTURE ACQUISITIONS THAT ARE NOT SUCCESSFULLY INTEGRATED
WITH OUR EXISTING OPERATIONS MAY ADVERSELY AFFECT OUR BUSINESS. We have made
several significant acquisitions since 1994, including The Farris Group in 1994,
Photomed in 1997 and 1998, IBM Patents in August 1997 and our acquisition of
certain assets of SEO Medical in April 1998. Although we are currently focusing
on our existing operations, we may in the future selectively pursue strategic
acquisitions of, investments in, or enter into joint ventures or other strategic
alliances with, companies whose business or technology complement our business.
We may not be able to identify suitable candidates to acquire or enter into
joint ventures or other arrangements with or we may not be able to obtain
financing on satisfactory terms for such activities. In addition, with respect
to our recent acquisitions as well as any future transactions, we could have
difficulty assimilating the personnel, technology and operations of the acquired
company, which would prevent us from realizing expected synergies, and may incur
unanticipated liabilities and contingencies. This could disrupt our ongoing
business and distract our management and other resources. We cannot be certain
that we would succeed in overcoming these risks or any other problems in
connection with any acquisitions we may make or joint ventures or arrangements
we may enter into.
AMORTIZATION AND CHARGES RELATING TO OUR SIGNIFICANT INTANGIBLE ASSETS
COULD ADVERSELY AFFECT OUR STOCK PRICE AND REPORTED NET INCOME OR LOSS. Goodwill
is an intangible asset that represents the difference between the total purchase
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price of the acquisitions and the amount of such purchase price allocated to the
fair value of the net assets acquired. Goodwill and other intangible assets are
amortized over a period of time, with the amount amortized in a particular
period constituting a non-cash expense that reduces our net income or increases
our net loss. Of our total assets at December 31, 1998, approximately $16.2
million or 37% were intangible assets. The following table presents an overview
of our significant intangible assets and goodwill at December 31, 1998:
<TABLE>
<CAPTION>
Value of Assets Amortization Period
-------------------------- --------------------------
<S> <C> <C>
Goodwill $6.6 million 12-20 years
Cost of Patents $4.3 million 8-17 years
Acquired Licenses and Technology $5.3 million 31 months-12 years
</TABLE>
A reduction in net income resulting from the amortization of goodwill and
other intangible assets may have an adverse impact upon the market price of our
common stock. In addition, in the event of a sale or liquidation of LaserSight
or our assets, we cannot be certain that the value of such intangible assets
would be recovered.
In accordance with SFAS 121, we review intangible assets for impairment
whenever events or changes in circumstances, including a history of operating or
cash flow losses, indicate that the carrying amount of an asset may not be
recoverable. If we determine that an intangible asset is impaired, a noncash
impairment charge would be recognized. We continue to assess the current results
and future prospects of TFG in view of the substantial reduction in the
subsidiary's operating results in 1996 and 1997. TFG's operating results have
improved in 1998 when compared to 1996 and 1997. If TFG is unsuccessful in
continuing to improve its financial performance, some or all of the carrying
amount of goodwill recorded, $3.7 million at December 31, 1998, may be subject
to an impairment adjustment.
FORWARD-LOOKING STATEMENTS
This prospectus, and the documents incorporated by reference, contain
certain "forward-looking" statements as described in Section 27A of the
Securities Act and Section 21E of the Exchange Act. These statements involve
known and unknown risks, uncertainties and other factors that may cause our
actual results, levels of activity, performance or achievements to be materially
different from any future results, levels of activity, performance, or
achievements expressed or implied by such forward-looking statements. Such
factors include, among other things, those listed under "Risk Factors" and
elsewhere in this prospectus and the documents incorporated by reference.
In some cases, you can identify forward-looking statements by
terminology such as "may," "will," "should," "could," "expects," "plans,"
"intends," "anticipates," "believes," "estimates," "predicts," "potential" or
"continue" or the negative of such terms and other comparable terminology.
Although we believe that the expectations reflected in the
forward-looking statements are reasonable based on currently available
information, we cannot guarantee future results, levels of activity, performance
or achievements. Moreover, neither we nor anyone else assumes responsibility for
the accuracy and completeness of such statements. We are under no duty to update
any of the forward-looking statements after the date of this prospectus.
USE OF PROCEEDS
LaserSight will not receive any proceeds from the sale of the common
stock being registered by this prospectus. If all of the warrants issued to
Mercacorp are exercised, LaserSight will realize proceeds in the amount of
$6,750,000. These proceeds will be contributed to LaserSight's working capital
and used for general corporate purposes.
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CAPITALIZATION
The following table sets forth LaserSight's actual capitalization at
December 31, 1998 and proforma capitalization on that date assuming exercise of
the warrants into common stock.
<TABLE>
<CAPTION>
Actual Proforma
------ --------
<S> <C> <C>
Long-term obligations $ 560,000 $ 560,000
Stockholders' equity:
Convertible Preferred Stock, Series C,
Par value $.001 per share, authorized
2,000,000; actual 2,000,000 shares 2,000 2,000
Convertible Preferred Stock, Series
D, par value $.001 per share,
Authorized 2,000,000; actual
2,000,000 shares 2,000 2,000
Common Stock, par value $.001 per
Share authorized 40,000,000 shares;
Actual 13,332,835 shares 13,333 14,833
Additional paid-in capital 59,407,392 66,155,892
Stock subscription receivable (1,140,000) (1,140,000)
Accumulated deficit (23,748,303) (23,748,303)
Treasury stock, at cost 140,200 shares (521,084) (521,084)
----------- -----------
Total capitalization and stockholders' equity $34,575,338 $41,325,338
=========== ===========
</TABLE>
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DESCRIPTION OF SECURITIES
Capital Stock Overview
As of the date of this prospectus, LaserSight is authorized to issue up
to 40,000,000 shares of common stock, $.001 par value, and 10,000,000 shares of
preferred stock, $.001 par value, issuable in series. As of April 1, 1999,
LaserSight had the following shares of capital stock issued and outstanding:
o 15,442,635 shares of common stock, not including any shares of common
stock issuable upon the conversion of preferred stock or the exercise of
outstanding options and warrants to acquire common stock
o 2,000,000 shares of Series C Preferred Stock
o 2,000,000 shares of Series D Preferred Stock.
All references to LaserSight's common stock in this prospectus include
the associated preferred stock purchase rights issued pursuant to the
Stockholders Rights Agreement, dated as of July 2, 1998 between LaserSight and
American Stock Transfer & Trust Company as Rights Agent.
Common Stock
Holders of LaserSight 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 as may be declared by the
Board of Directors out of funds legally available for that purpose. Upon the
liquidation or dissolution of LaserSight, 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 LaserSight common stock is
American Stock Transfer & Trust Company.
Preferred Stock
LaserSight's certificate of incorporation authorizes the Board of
Directors, without further stockholder approval, to issue up to an aggregate of
10,000,000 shares of preferred stock in one or more series. The Board of
Directors may fix or alter the designations, preferences, rights and any
qualifications, limitations or restrictions of the shares of each series of
preferred stock, including:
o dividend rights
o dividend rates
o conversion rights
o voting rights
o terms of redemption
o redemption price or prices
o liquidation preferences
The rights, preferences and privileges of holders of common stock may be
adversely affected by, the rights of the holders of shares of any series of
preferred stock which LaserSight may designate and issue in the future.
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Series A and Series B Preferred Stock
All previously issued and outstanding shares of LaserSight's
Series A Preferred Stock, par value $.001 per share, and Series B
Preferred Stock, par value $.001 per share, have been converted,
predeemed or repurchased.
Series C Preferred Stock
On June 5, 1998, LaserSight issued 2,000,000 shares of Series
C Preferred Stock. The Series C Preferred Stock is convertible into
common stock at the option of the holders of the Series C Preferred
Stock at any time until June 5, 2001. After June 5, 2001, all shares of
Series C Preferred Stock then outstanding will automatically convert
into an equal number of shares of common stock. For a more detailed
description of the terms of the Series C Preferred Stock see
LaserSight's Form 8-A/A (Amendment No. 4) filed with the SEC on June
25, 1998.
Series D Preferred Stock
On June 12, 1998, LaserSight issued 2,000,000 shares of Series
D Preferred Stock. The Series D Preferred Stock is convertible into
common stock at the option of the holders of the Series D Preferred
Stock at any time until June 12, 2001. After June 12, 2001, all shares
of Series D Preferred Stock then outstanding will automatically convert
into an equal number of shares of common stock.
The holders of the Series D Preferred Stock are entitled to
anti-dilution adjustments if LaserSight issues or sells any shares of
common stock, or securities convertible into or exercisable for common
stock, before June 12, 2001 at a price per share, or having a
conversion or exercise price per share, less than $4.00. This
anti-dilution adjustment only relates to the conversion price of the
Series D Preferred Stock that has not been converted and does not
result in adjustments to the number of shares of common stock, if any,
held by the holders of the Series D Preferred Stock. For a more
detailed description of the terms of the Series D Preferred Stock see
LaserSight's Form 8-A/A (Amendment No. 4) filed with the SEC on June
25, 1998.
Series E Preferred Stock
The Board of Directors has designated 500,000 shares of Series
E Junior Participating Preferred Stock in connection with the adoption
of the Stockholders Rights Agreement described below. Because of the
nature of the Series E Preferred Stock dividend, liquidation and voting
rights, the value of the one one-thousandth interest in a share of
Series E Preferred Stock purchasable upon exercise of each preferred
share purchase right should approximate the value of one share of
common stock. The Series E Preferred Stock purchasable upon exercise of
the preferred share purchase rights will not be redeemable. Each share
of Series E Preferred Stock will be entitled to the greater of (A) a
preferential quarterly dividend payment of $1.00 per share, or (B) an
aggregate dividend of 1,000 times the dividend declared per share of
common stock. In the event of liquidation, the holders of the Series E
Preferred Stock will be entitled to a preferential liquidation payment
of $1,000 per share, plus an amount equal to 1,000 times the aggregate
amount to be distributed per share of common stock. Each share of
Series E Preferred Stock will have 1,000 votes, voting together with
the common stock. Finally, in the event of any merger, consolidation or
other transaction in which shares of common stock are exchanged, each
share of Series E Preferred Stock will be entitled to receive 1,000
times the amount received per share of common stock.
Stockholder Rights Plan
LaserSight's Board of Directors adopted the Stockholder Rights
Agreement in July 1998 and declared a dividend of one Right on each
outstanding share of common stock. The Rights are payable to
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stockholders of record as of the close of business on July 13, 1998.
Subject to certain exceptions, each Right, when exercisable, entitles
the holder thereof to purchase from LaserSight one-thousandth of a
share of Series E Preferred Stock of LaserSight at an exercise price of
$20.00 per one-thousandth of a Preferred Share, subject to adjustment.
The terms of the Rights are set forth in a Rights Agreement between
LaserSight and American Stock Transfer & Trust Company as Rights agent.
Until the earlier to occur of (A) 10 days following a public
announcement that a person or group of affiliated or associated persons
has become an "Acquiring Person" (as defined below), or (B) 10 business
days, or such later date as may be determined by action of LaserSight's
Board of Directors prior to such time as any person or group becomes an
Acquiring Person, following the commencement of, or announcement of an
intention to make, a tender offer or exchange offer the consummation of
which would result in a person or group becoming an Acquiring Person
(the earlier of such dates being called the distribution date), the
Rights will be evidenced by common stock certificates.
Subject to certain exceptions, an "Acquiring Person" is a
person or group of affiliated or associated persons who have acquired
beneficial ownership of 15% or more of LaserSight's outstanding common
stock. In no event however, will LaserSight, any subsidiary of
LaserSight, or any employee benefit plan of LaserSight or its
subsidiaries be deemed to be an Acquiring Person. In addition, no
person shall become an Acquiring Person as the result of an acquisition
of common stock by LaserSight which increases the proportionate number
of shares beneficially owned by such person and its affiliates and
associates to 15% or more of the common stock then outstanding.
However, if such person becomes the beneficial owner of 15% or more of
the common stock then outstanding by reason of share acquisitions by
LaserSight and, after such share acquisitions, (A) acquires beneficial
ownership of an additional number of shares of common stock which
exceeds the lesser of 10,000 shares of common stock or 0.25% of the
then-outstanding common stock, and (B) beneficially owns after such
acquisition 15% or more of the aggregate number of common stock then
outstanding, then such person shall be deemed to be an Acquiring
Person. Moreover, If LaserSight's Board of Directors determines in good
faith that a person who would otherwise be an Acquiring Person has
become such inadvertently, and such person divests as promptly as
practicable a sufficient number of shares of common stock so that such
person would no longer be an Acquiring Person, then such person shall
not be deemed to be an Acquiring Person for any purposes of the Rights
agreement.
The Rights are not exercisable until the distribution date.
The Rights will expire on July 2, 2008, unless the Rights are earlier
redeemed or exchanged by LaserSight, as described below.
The exercise price payable, and the number of shares of Series
E Preferred Stock or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from time to time to
prevent dilution (A) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Series E Preferred
Stock, (B) upon the grant to holders of the Series E Preferred Stock of
certain rights or warrants to subscribe for or purchase Series E
Preferred Stock at a price, or securities convertible into Series E
Preferred Stock with a conversion price, less than the then-current
market price of the Series E Preferred Stock, or (C) upon the
distribution to holders of the Series E Preferred Stock of evidences of
indebtedness, assets or capital stock excluding regular periodic cash
dividends paid out of earnings or retained earnings or dividends
payable in shares of Series E Preferred Stock or of subscription rights
or warrants other than those referred to above. With certain
exceptions, no adjustment in the exercise price will be required until
cumulative adjustments require an adjustment of at least 1% in such
exercise price. LaserSight will not be required to issue fractional
shares of common stock or Series E Preferred Stock other than fractions
which are integral multiples of one-thousandth of a share of Series E
Preferred Stock, which may, at the election of LaserSight, be evidenced
by depositary receipts. In lieu of such issuance of fractional shares,
an adjustment in cash may be made based on the market price of common
stock or Series E Preferred Stock on the last trading day prior to the
date of exercise.
Subject to certain exceptions described in the Rights
agreement, if any person or group becomes an Acquiring Person, then
each holder of a Right will have the right to receive upon exercise of
such Right that number of common stock or, in certain circumstances,
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cash, property or other securities of LaserSight, having a market value
of two times the exercise price of the Right.
If at any time after the time that any person or group becomes
an Acquiring Person, LaserSight is acquired in a merger or other
business combination transaction or 50% or more of its consolidated
assets or earning power are sold, proper provision will be made so that
each holder of a Right, other than Rights beneficially owned by the
Acquiring Person, any associate or affiliate thereof, and certain
transferees thereof, which will be void, will thereafter have the right
to receive, upon the exercise thereof at the then-current exercise
price of the Right, that number of shares of common stock of the
acquiring company which at the time of such transaction will have a
market value of two times the exercise price of the Right.
At any time after the time that any person or group becomes an
Acquiring Person and prior to the acquisition by such person or group
of 50% or more of the outstanding common stock, LaserSight's Board of
Directors may exchange the Rights, subject to certain exceptions, in
whole or in part, at an exchange ratio of one share of common stock or
one-thousandth of a share of Series E Preferred Stock per Right.
At any time prior to the time that any person becomes an
Acquiring Person, LaserSight's Board of Directors may redeem the Rights
in whole, but not in part, at a price of $.01 per Right, subject to
adjustment which may at LaserSight's option be paid in cash, common
stock or other consideration deemed appropriate by the Board of
Directors. The redemption of the Rights may be made effective at such
time, on such basis and with such conditions as the Board of Directors
in its sole discretion may establish; provided, however, that no
redemption will be permitted or required after the time that any person
becomes an Acquiring Person. Immediately upon any redemption of the
Rights, the right to exercise the Rights will terminate and the only
right of the holders of the Rights will be to receive the redemption
price.
The terms of the Rights may be amended by LaserSight's Board
of Directors without the consent of the holders of the Rights, except
that from and after such time as any person becomes an Acquiring Person
no such amendment may make the Rights redeemable if the Rights are not
then redeemable in accordance with the terms of the Rights agreement or
may adversely affect the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a LaserSight stockholder, including, without
limitation, the right to vote or to receive dividends.
The Rights will have anti-takeover effects. The Rights will
cause substantial dilution to a person or group that attempts to
acquire LaserSight on terms not approved by LaserSight's Board of
Directors.
Warrants and Other Agreements to Issue Shares
In connection with the establishment of its credit facility
with Foothill Capital Corporation in April 1997, LaserSight issued
warrants to purchase shares of LaserSight common stock to Foothill.
These warrants provide for anti-dilution adjustments that would be
triggered upon certain issuances of LaserSight securities. In
connection with its sale of Series B Preferred Stock in August 1997
and subsequent conversion of such preferred shares into LaserSight
common stock, the sale of the Series C Preferred Stock and the Series
D Preferred Stock, and the March 1999 private placement, such
anti-dilution adjustments have resulted in (A) an increase in the
number of Foothill warrants to approximately 594,525, and (B) a
reduction to the exercise price of the Foothill warrants to
approximately $5.10 per share. Additional anti-dilution adjustments
to the Foothill warrants could also result from any future below-market
sales of common stock by LaserSight. The Foothill warrants may be
exercised at any time through April 1, 2002.
In connection with its sale of the Series B Preferred Stock in
August 1997, LaserSight issued warrants to purchase a total of 750,000
shares of common stock at a price of $5.91 per share to the former
holders of LaserSight's Series B Preferred Stock. The Series B warrants
are exercisable at any time before August 29, 2002. Certain
anti-dilution adjustments and other agreements by LaserSight and the
former Series B Preferred Stock holders have resulted in (A) an
18
<PAGE>
increase in the number of outstanding Series B warrants to approximately
641,611, and (B) a reduction to the exercise price of Series B warrants to
approximately $2.62 per share. As of April 1, 1999, 140,625 of such warrants
have been exercised. LaserSight is obligated to maintain the effectiveness of
the registration of the Series B warrant shares under the Securities Act.
LaserSight also issued warrants to purchase a total of 40,000 shares of
common stock at a price of $5.91 per share to four individuals associated with
the placement agent for the Series B Preferred Stock. These warrants are
exercisable at any time before August 29, 2002. LaserSight's sale of the Series
C Preferred Stock and the Series D Preferred Stock and LaserSight's March 1999
private placement triggered anti-dilution adjustments which resulted in (i) an
increase in the number of warrants to approximately 41,956, and (ii) a reduction
to the exercise price of the warrants to approximately $5.63 per share.
Based on previously-reported agreements entered into in 1993 in
connection with our acquisition of LaserSight Centers, and modified in July 1995
and March 1997, LaserSight may be obligated as follows:
o To issue up to 600,000 unregistered shares of common stock to
the former stockholders and option holders of LaserSight
Centers. These former stockholders and option holders include
two trusts related to our Chairman of the Board and certain of
former LaserSight officers and directors. These contingent
shares will be issued only if we achieve certain pre-tax
operating income levels through March 2002. Such income levels
must be related to our use of a fixed or mobile excimer laser
to perform certain specified types of laser surgery, the
arranging for the delivery of certain types of laser surgery
or receipt of license or royalty fees associated with patents
held by LaserSight Centers. The contingent shares are issuable
at the rate of one share per $4.00 of such operating income.
o To pay to a partnership whose partners include our Chairman of
the Board and certain of our former officers and directors a
royalty of up to $43 for each eye on which certain specified
types of laser surgery is performed on a fixed or mobile
excimer laser system owned or operated by LaserSight Centers
or its affiliates. This royalty may be paid either in cash or
in shares of LaserSight common stock
o Royalties do not begin to accrue until the earlier of March
2002 or the delivery of all of the 600,000 contingent shares.
As of April 1, 1999, we have not accrued any obligation to issue
contingent shares or royalty shares. We cannot be certain that any issuance of
contingent shares or royalty shares will be accompanied by an increase in our
per share operating results. We are not obligated to pursue strategies that may
result in the issuance of contingent shares or royalty shares. It may be in the
interest of our Chairman of the Board for us to pursue business strategies that
maximize the issuance of contingent shares and royalty shares.
If the FDA approves a LaserSight-manufactured laser system for general
commercial use in the treatment of farsightedness that uses part or all of the
know-how of the laser technology we acquired from Photomed, we would be required
to issue to the former Photomed stockholders additional shares of common stock
with a market value of up to $1.0 million. If such approval is not received by
June 1, 1999, this obligation will decrease by approximately $2,740 per day each
day thereafter, and the obligation will be eliminated entirely on June 1, 2000.
As of April 1, 1999, the number of additional shares to be issued would have
been 199,000. Depending on whether and when such FDA approval is received and
the average closing price of LaserSight common stock for the 10-day period
immediately prior to the date of any such approval, the actual number of
additional shares of common stock to be issued could be more or less than this
number.
In connection with our acquisition of the medical products division of
Schwartz Electro-Optics, Inc. in April 1998, LaserSight agreed to issue up to
223,280 additional shares of common stock if the average of the bid and ask
prices of common stock for the five trading day period immediately prior to
19
<PAGE>
April 15, 1999 is less than $5.00 per share. All 223,280 shares of Common Stock
will be issued unless such price is more than $2.36 per share.
In connection with our sale of common stock in March 1999, we issued the
purchasers warrants to purchase a total of 225,000 shares of Common Stock at an
exercise price of $5.125 per share, the closing price of the our common stock on
March 22, 1999. The warrants have a term of five years.
Delaware Law and Certain Charter Provisions
Certain provisions of LaserSight's certificate of incorporation and
Delaware corporate law described in this section may delay or make more
difficult acquisitions or changes in control of LaserSight that are not approved
by the Board of Directors.
LaserSight is subject to the provisions of Section 203 of the Delaware
General Corporation Law. 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 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 corporation. 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
the corporation's voting stock.
The Delaware General Corporation Law 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 by-laws, as the case may
be, requires a greater percentage. LaserSight's by-laws may, subject to the
provisions of Delaware General Corporation Law, be amended or repealed by a
majority vote of the Board of Directors.
LaserSight's certificate of incorporation contains certain provisions
that eliminate a director's liability for monetary damages for a breach of
fiduciary duty, except in certain circumstances involving certain wrongful acts.
These acts include the breach of a director's duty of loyalty or acts or
omissions which involve intentional misconduct or a knowing violation of law.
The certificate of incorporation contains provisions indemnifying the directors
and officers of LaserSight to the fullest extent permitted by the Delaware
General Corporation Law. LaserSight 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.
LaserSight believes that these provisions will assist LaserSight in attracting
and retaining qualified individuals to serve as directors.
20
<PAGE>
SELLING STOCKHOLDERS
The following table describes the beneficial ownership of LaserSight
common stock by the selling stockholders named in this prospectus, and the
number of shares of common stock to be offered by the selling stockholders.
Unless otherwise indicated, each person has sole investment and voting power
over the shares listed in the table, subject to community property laws, where
applicable. For purposes of this table, a person or group of persons is deemed
to have "beneficial ownership" of any shares which such person has the right to
acquire within 60 days. For purposes of computing the percentage of outstanding
shares held by each person or group of persons named in the table, any security
which such person or group of persons has the right to acquire within 60 days is
deemed to be outstanding for the purpose of computing the percentage ownership
for such person or persons, but is not deemed to be outstanding for the purpose
of computing the percentage ownership of any other person.
<TABLE>
<CAPTION>
Common Stock
Beneficially Owned Common Stock Beneficially
Prior To Offering Owned After The Offering
----------------- ------------------------
Share of
Common
Number of Percent of Stock Number of Percent of
Selling Stockholder Shares Outstanding to be Sold Shares Outstanding
- ------------------- ------ ----------- ---------- ------ -----------
<S> <C> <C> <C>
Mercacorp, Inc. 1,500,000 8.9% 1,500,000 -- --
Frederic B. Kremer 401,385 2.6% 90,000 311,385 2.0%
Linda Kremer 296,890 1.9% 90,000 206,890 1.3%
Robert Sataloff, Trustee for Alan
Stewart Kremer, u/t/d December 27,
1991 12,370 * 3,750 8,620 *
Robert Sataloff, Trustee for Mark
Adam Kremer, u/t/d December 27,
1991 12,370 * 3,750 8,620 *
* Less than 1%.
</TABLE>
PLAN OF DISTRIBUTION
The shares of LaserSight common stock being registered pursuant to
this prospectus are being registered on behalf of the selling shareholders named
in this prospectus. All costs, expenses and fees in connection with registration
of the shares offered by this prospectus will be paid by LaserSight. Brokerage
commissions and similar selling expenses, if any, attributable to the sale of
shares shall be paid by the selling shareholders. The selling shareholders may
sale the shares registered by this prospectus from time to time in one or more
types of transactions including (A) over-the-counter market transactions, (B)
negotiated transactions, (C) through put or call options transactions relating
to the shares, (D) through short sales of shares, or (E) a combination of such
methods of sale. The shares may be sold at market prices prevailing at the time
of sale, or at negotiated prices. These transactions may or may not involve
securities brokers or dealers. The selling shareholders have advised LaserSight
that they have not entered into any agreements, understandings or arrangements
with any underwriters or broker-dealers regarding the sale of their securities,
nor is there an underwriter or coordinating broker acting in connection with the
proposed sale of shares by the selling shareholders.
The selling shareholders may sell shares directly to purchasers or to
or through broker-dealers, which may act as agents or principals. These
broker-dealers may receive compensation in the form of discounts, concessions,
21
<PAGE>
or commissions from the selling shareholders or the purchasers of shares for
whom such broker-dealers may act agents or to whom they sell as principal, or
both. Any such compensation may be equal to, less than or in excess of customary
amounts.
The selling shareholders named in this prospectus and any
broker-dealers that act in connection with the sale of shares might be deemed to
be "underwriters" within the meaning of Section 2(11) of the Securities Act, and
any commissions received by such broker-dealers and any profit on the resale of
the shares sold by them while acting as principals might be deemed to be
underwriting discounts or commissions under the Securities Act. Because selling
shareholders may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act, the selling shareholders will be subject to the
prospectus delivery requirements of the Securities Act. LaserSight has informed
the selling shareholders that the anti-manipulative provisions of Regulation M
promulgated under the Exchange Act may apply to their sales in the market.
Selling shareholders also may resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the Securities Act,
provided they meet the criteria and conform to the requirements of such Rule.
Upon LaserSight being notified by a selling shareholder that any
material arrangement has been entered into with a broker-dealer for the sale of
shares through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(b) under the Act,
disclosing (A) the name of each such selling shareholder and 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, (E) that such
broker-dealer(s) did not conduct any investigation to verify the information set
out or incorporated by reference in this prospectus, and (F) other facts
material to the transaction.
LaserSight has agreed to indemnify each selling shareholder against
certain liabilities, including liabilities arising under the Securities Act. The
selling shareholders may agree to indemnify any agent, dealer or broker-dealer
that participates in transactions involving sales of the shares against certain
liabilities, including liabilities arising under the Securities Act.
LEGAL MATTERS
The legality of the shares offered hereby has been passed upon for
LaserSight by Sonnenschein Nath & Rosenthal, Chicago, Illinois.
EXPERTS
The consolidated financial statements of LaserSight and its
subsidiaries as of December 31, 1998 and 1997 and for each of the years in the
three-year period ended December 31, 1998 have been incorporated herein by
reference and in the Registration Statement in reliance upon the report of KPMG
LLP, independent certified public accountants, upon the authority of said firm
as experts in accounting and auditing.
WHERE TO FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's Pubic Reference Room at 450 Fifth Street, N.W., Washington, D.C.
Please call the SEC at 1-800-SEC-0330 for further information on the operation
of the Public Reference Room. Our SEC filings are also available to the public
from our Internet site at www.lase.com or at the SEC's Internet site at
http://www.sec.gov. The other information at those Internet sites is not part of
this prospectus. Such reports, proxy statements and other information concerning
LaserSight can also be inspected at the offices of the National Association of
Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
22
<PAGE>
This prospectus is only part of a Registration Statement on Form S-3
that we have filed with the SEC under the Securities Act. We have also filed
exhibits and schedules with the Registration Statement that are not included in
this prospectus, and you should refer to the applicable exhibit or schedule for
a complete description of any statement referring to any contract or other
document. A copy of the Registration Statement, including the exhibits and
schedules thereto, may be inspected without charge at the Public Reference Room
of the SEC described above, and copies of such material may be obtained from
such office upon payment of the fees prescribed by the SEC.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" the information we
file with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act until the selling
stockholders sell all of the shares being registered by this prospectus:
A. Annual Report on Form 10-K for the year ended December 31,
1998 filed on March 31, 1999;
B. Definitive Proxy Statement filed on May 28, 1998 and the
supplement to the Definitive Proxy Statement filed on
May 28, 1998;
C . The description of the Common Stock contained in LaserSight's
Form 8-A/A (Amendment No. 4) filed on June 25, 1998.
You may request a copy of any of these filings, at no cost, by writing
or telephoning us at the following address: LaserSight Incorporated, 3300
University Boulevard, Suite 140, Winter Park, Florida 32792; telephone: (407)
678-9900; Attn: Corporate Secretary.
23
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
SEC registration fee $ 2,237.73
Legal fees and expenses 25,000.00
Accountants' fees 10,000.00
Nasdaq Listing fees 21,250.00
Miscellaneous 1,512.27
----------
Total $60,000.00
==========
The foregoing items, except for the SEC registration fee, are
estimated.
Item 15. 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 Charter
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 Charter 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 as a director. Section
102(b)(7) of the DGCL currently provides that such provisions do not eliminate
the liability of a director (i) for a breach of the director's duty of loyalty
to LaserSight or its stockholders, (ii) for acts or omissions not in good faith
II-1
<PAGE>
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the DGCL (relating to the declaration of dividends and
purchase or redemption of shares in violation of the DGCL), or (iv) for any
transaction from which the director derived an improper personal benefit.
Reference is made to the 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.
Item 16. Exhibits
The exhibit index set forth on page II-5 of this Registration
Statement is hereby incorporated herein by reference.
Item 17. Undertakings.
(a) Rule 415 Offering
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;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 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.
II-2
<PAGE>
(b) Filings Incorporating Subsequent Exchange Act Documents by
Reference
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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Acceleration of Effectiveness.
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.
II-3
<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 on Form S-3 and has duly caused this
Pre-Effective Amendment No.2 to Registration Statement to be filed on its behalf
by the undersigned, thereunto duly authorized, in the City of Winter Park, State
of Florida, this 2nd day of April 1999.
LASERSIGHT INCORPORATED
By: /s/ Gregory L. Wilson
------------------------------------------
Gregory L. Wilson, Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Pre-Effective Amendment No.2 to Registration Statement has been signed by the
following persons in the capacities on the dates indicated.
/s/ Michael R. Farris* April 2, 1999
- ------------------------------------------------
Michael R. Farris, President, Chief Executive
Officer, and Director
/s/ Francis E. O'Donnell, Jr., M.D.* April 2, 1999
- ------------------------------------------------
Francis E. O'Donnell, Jr., M.D., Chairman of the
Board and Director
/s/ J. Richard Crowley* April 2, 1999
- ------------------------------------------------
J. Richard Crowley, Chief Operating Officer
and Director
/s/ Terry A. Fuller, Ph.D.* April 2, 1999
- ------------------------------------------------
Terry A. Fuller, Ph.D., Director
/s/ Gary F. Jonas* April 2, 1999
- ------------------------------------------------
Gary F. Jonas, Director
/s/ Richard C. Lutzy* April 2, 1999
- ------------------------------------------------
Richard C. Lutzy, Director
/s/ David T. Pieroni* April 2, 1999
- ------------------------------------------------
David T. Pieroni, Director
/s/ Thomas Quinn* April 2, 1999
- ------------------------------------------------
Thomas Quinn, Director
/s/ Juliet Tammenoms Bakker* April 2, 1999
- ------------------------------------------------
Juliet Tammenoms Bakker, Director
/s/ Gregory L. Wilson April 2, 1999
- ------------------------------------------------
Gregory L. Wilson, Chief Financial Officer
(Principal financial and accounting officer)
- ---------------------
*/ By: /s/ Gregory L. Wilson
- -- ----------------------------------------
(Gregory L. Wilson, as Attorney-in-Fact)
II-4
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
------- -----------
4.1 Certificate of Incorporation (incorporated by reference to
Exhibit 1 to the Form 8-A/A (Amendment No. 4) filed by the
Company on June 25, 1998).
4.2 By-laws (incorporated by reference to Exhibit 3 to the
Company's Annual Report on Form 10-K for the fiscal year ending
December 31, 1992 filed by the Company 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 the Company on July 8, 1998).
5.1* Opinion of Sonnenschein Nath & Rosenthal.
10.1 Purchase Agreement, dated June 7, 1997, among and between
LaserSight Technologies, Inc. and TUI Lasertechnik und
Laserintegration GmbH (incorporated by reference to Exhibit
10.1 to Form S-3/A No. 1 filed by the Company on February 1,
1999).
10.2 License and Royalty Agreement, dated September 10, 1997, among
LaserSight Technologies, Inc., Luis A. Ruiz, M.D. and Sergio
Lenchig (incorporated by reference to Exhibit 10.2 to Form
S-3/A No. 1 filed by the Company on February 1, 1999).
10.3 Manufacturing Agreement, dated September 10, 1997, between
LaserSight Technologies, Inc. and Frantz Medical Development
Ltd. (incorporated by reference to Exhibit 10.3 to Form S-3/A
No. 1 filed by the Company on February 1, 1999).
23.1 Consent of KPMG LLP.
23.2 Consent of Sonnenschein Nath & Rosenthal (included in Exhibit
5.1).
24.1* Powers of Attorney.
- ------------------
*/ Previously filed
II-5
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 (Registration No. 333-68495) of LaserSight Incorporated, to be filed with
the Securities and Exchange Commission on April 2, 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
of LaserSight Incorporated and to the reference to our firm under the heading
"Experts" in the prospectus.
/s/ KPMG LLP
St. Louis, Missouri
April 2, 1999
