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As filed with the Securities and Exchange Commission on May 29, 2009
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Registration No. 333-159293
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UNITED STATES SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
AMENDMENT
No. 1
to
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
STAAR
SURGICAL COMPANY
(Exact
name of registrant as specified in its charter)
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Delaware
(State
or other jurisdiction of
incorporation
or organization)
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95-3797439
(I.R.S. Employer
Identification
No.)
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1911
Walker Avenue
Monrovia,
California 91016
(626)
303-7902
(Address,
including zip code, and telephone number, including area code,
of registrant’s principal
executive offices)
Charles
Kaufman
Vice
President and General Counsel
STAAR
Surgical Company
1911
Walker Avenue
Monrovia,
California 91016
(626)
303-7902
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Approximate
date of commencement of proposed sale to the public: From time to time after
the effective date of this Registration Statement.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. o
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. þ
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. o
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) 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. o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to rule 462(e) under the Securities Act, check the
following box. o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
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o Large
accelerated filer
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þ Accelerated
filer
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o Non-accelerated
filer
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o Smaller
reporting company
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(Do
not check if a smaller reporting
company)
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CALCULATION
OF REGISTRATION FEE
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Title of each class of securities to be registered (1)
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Proposed maximum
aggregate offering
price(2)
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Amount of
registration fee(3)
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Common
Stock, par value $0.01 per share
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—— | —— | ||||||
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Preferred
Stock, par value $0.01 per share
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——
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—— | ||||||
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Warrants
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—— | —— | ||||||
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Subscription
Rights to purchase Common Stock or Preferred Stock
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—— | —— | ||||||
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Total
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$ | 5,000,000 | $ | 275.40 | (4) | |||
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(1)
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This
Registration Statement registers an indeterminate number of shares of
common stock and preferred stock, an indeterminate number of warrants to
purchase common stock or preferred stock, and an indeterminate
number of subscription rights, which in aggregate shall have an initial
offering price that does not exceed $5,000,000. Any securities registered
hereunder may be sold separately or as units with other securities
registered hereunder. The securities registered also include such
indeterminate amounts and numbers of common stock and preferred stock as
may be issued upon conversion of or exchange for preferred stock that
provides for conversion or exchange, upon exercise of warrants or pursuant
to the provisions of any such securities that may cause additional
securities to be issuable upon a stock split or stock dividend
or pursuant to any anti-dilution provisions of such
securities.
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(2)
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Pursuant
to Instruction II.D. of Form S-3 under the Securities Act, the maximum
aggregate offering price is provided on a combined basis for all classes
of securities registered hereunder and is not specified for individual
classes.
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(3)
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Calculated
pursuant to Rule 457(o) under the Securities
Act.
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(4)
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Previously
paid with this Registration
Statement.
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The
Registrant hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended (the “Securities Act”) or until this
Registration Statement shall become effective on such date as the Securities and
Exchange Commission (the “SEC”), acting pursuant to said Section 8(a), may
determine.
The
information contained in this prospectus is not complete and may
change. We may not sell these securities or accept an offer to buy
these securities until the registration statement filed with the Securities and
Exchange Commission is effective. This prospectus is neither an offer
to sell these securities nor a solicitation of an offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED MAY 29,
2009
PROSPECTUS
STAAR
Surgical Company
$5,000,000
Common
Stock
Preferred
Stock
Warrants
Subscription
Rights
From
time to time, we may sell common stock, preferred stock, warrants or
subscription rights. A prospectus supplement specifying the
terms of the offering will accompany this prospectus. Our common
stock is traded on the Nasdaq Global Market under the trading symbol
“STAA.” If we offer other securities, the prospectus supplement will
provide information about their listing on a securities exchange, if
any.
Investing
in our securities involves a high degree of risk. You should carefully read and
consider the risk factors included in our periodic reports, in any prospectus
supplements relating to specific offerings of securities and in other documents
that we file with the Securities and Exchange Commission. See “Risk Factors” on
page 7.
This
prospectus may not be used to offer or sell any securities unless accompanied by
a prospectus supplement.
We may
sell the securities through underwriters or agents or directly to
purchasers. The names of any underwriters or agents will appear on
the accompanying prospectus supplement. For additional information on
methods of sale, please see the sections entitled “Plan of Distribution” in this
prospectus and the accompanying prospectus supplement. The prospectus
supplement also shows the net proceeds we expect to receive from the
sale.
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.
The
date of this prospectus is June __, 2009.
TABLE
OF CONTENTS
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Page
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Special
Note Regarding
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Forward-Looking
Statements
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2
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Prospectus
Summary
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4
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Risk
Factors
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7
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Securities
We May Offer
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7
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Use
of Proceeds
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9
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Description
of Capital Stock
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9
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Description
of Subscription Rights
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15
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Description
of Warrants
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12
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Plan
of Distribution
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16
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Ratio
of Earnings to Fixed Charges and Preferred Dividends
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17
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Legal
Matters
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18
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Experts
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18
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Where
You Can Find More Information
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19
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You
should rely only on the information contained in this prospectus and information
to which we have referred you. We have not authorized anyone else to provide you
with different information. In particular, we have not authorized any dealer or
salesperson to give any information or to represent anything not contained in
this prospectus. You must not rely on any unauthorized information or
representation. This prospectus is an offer to sell only the securities it
specifically describes on the front of the document, and only under
circumstances and in jurisdictions where we can lawfully do so.
Unless
the context otherwise requires, the terms “we,” “our,” “us,” the “Company” and
“STAAR” refer to STAAR Surgical Company and its subsidiaries.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement we have filed with the Securities
and Exchange Commission, or SEC, using a “shelf” registration
process. Under this shelf registration we may sell common stock,
preferred stock, warrants or subscription rights in one or more offerings, up to
a maximum total dollar amount of $5,000,000. This prospectus provides
you with a general description of each of those types of
securities. Whenever we offer or sell securities in connection with
this shelf registration we will also provide a prospectus supplement that
contains a more complete description of the securities offered and the structure
of the offering. We may also use the prospectus supplement to add,
update or change any of the information contained in this
prospectus. This prospectus, together with the relevant prospectus
supplement and other documents to which we refer you, includes all material
information relating to any offering. Before purchasing our common
stock please carefully read both this prospectus and the prospectus supplement
together with the additional information described below under “Where You Can
Find More Information” and “Incorporation of Documents by
Reference.”
-1-
This
prospectus may not be used to consummate a sale of securities unless it is
accompanied by a prospectus supplement.
You
should assume that the information in this prospectus is accurate only as of the
date on the cover page. Any information we have incorporated by reference in
this prospectus is accurate only as of the date of the document incorporated by
reference, unless we indicate otherwise, regardless of the time this prospectus
is delivered or the time a security is sold. Our business, financial condition,
results of operations and prospects may have changed materially since that
date.
This
prospectus does not constitute an offer to sell, or a solicitation of an offer
to purchase, the securities offered by this prospectus in any jurisdiction to or
from any person to whom or from whom it is unlawful to make such offer or
solicitation of an offer in such jurisdiction.
Representations,
warranties or covenants that may appear in any agreement filed as an exhibit to
a document incorporated by reference in this prospectus were made solely for the
benefit of the parties to that agreement. The parties made those
statements for the private purpose of allocating contractual risk, not to
establish facts. Even if accurate when made, these statements may not
be accurate now, and they may have been qualified by schedules or other
disclosures that have not been filed or incorporated by reference into this
prospectus. Only the parties to such an agreement are entitled to enforce its
representations, warranties or covenants. You should not rely on
those statements for any purpose.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Statements
in this prospectus that are not statements of historical fact are
forward-looking statements. Forward-looking statements also appear in
other documents to which we refer you in this prospectus. They may be
found, among other places, in the sections entitled “Business” and “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” in our
most recent report on Form 10-K, in our quarterly reports on Form 10-Q filed
after our most recent Form 10-K, and any amendments to these documents filed
with the SEC. These statements relate to our future plans,
objectives, expectations and intentions. Among other things,
forward-looking statements include statements about the
following:
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our
strategy;
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our
business prospects including expectations for revenue or other performance
of our business or of specific
products;
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the
status of applications for approval of products by the FDA or regulatory
agencies of other countries;
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sufficiency
of our cash reserves;
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product
development;
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research
and development and other expenses;
and
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legal
risks.
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You may
also generally identify forward-looking statements by the use of words such as
“expect,” “anticipate,” “intend,” “plan” and similar expressions.
You
should not place undue reliance on our forward-looking
statements. Our actual results could differ materially from those
anticipated in these forward-looking statements as a result of numerous risks
and uncertainties that are beyond our control, including those we discuss in
“Risk Factors” and elsewhere in this prospectus, in the accompanying prospectus
supplement, and in our other reports we file with the SEC. The
forward-looking statements in this prospectus speak only as of the date of this
prospectus, and you should not rely on these statements without also considering
the risks and uncertainties associated with these statements and our
business.
-3-
PROSPECTUS
SUMMARY
STAAR
Surgical Company develops and manufactures visual implants and other innovative
ophthalmic products to improve or correct the vision of patients with cataracts
and refractive conditions and distributes them worldwide.
Intraocular
lenses
We
generate most of our revenue by manufacturing and selling foldable intraocular
lenses, known as IOLs, and related products for cataract
surgery. STAAR pioneered the foldable IOL, a flexible prosthetic lens
used to replace a cataract patient’s natural lens after it has been extracted in
minimally invasive small incision cataract extraction. STAAR makes
IOLs out of silicone and out of Collamer®, STAAR’s proprietary biocompatible
collagen copolymer lens material. STAAR’s IOLs are available in both three-piece
and one-piece designs. STAAR’s range of IOLs includes the
following:
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three-piece
IOLs, available in silicone or
Collamer;
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single-piece
IOLs, available in silicone or
Collamer;
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The
silicone Toric IOL, used in cataract surgery to treat preexisting
astigmatism;
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The
Preloaded Injector, a silicone or acrylic IOL preloaded into a single-use
disposable injector;
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Most of
STAAR’s IOLs sold worldwide feature aspheric optics, an advanced design intended
to provide a clearer image than traditional spherical lenses, especially in low
light. STAAR has developed a proprietary aspheric design (patent pending) that
is optimized for the naturally curved surface of the retina and certain other
anatomical features of the human eye, and that provides outstanding image
quality even if accidentally moved off center.
Because
the great majority of cataract patients are elderly and qualify for Medicare,
most of STAAR’s U.S. cataract revenue derives indirectly from reimbursement
payments by the Center for Medicaid and Medicare Services, or CMS. STAAR’s
aspheric lenses have been granted “New Technology Intraocular Lens” status,
which provides an additional $50 reimbursement to doctors or hospitals that use
these lenses in ambulatory surgical centers, enabling STAAR to increase the
average selling price for these lenses.
Outside
the U.S. as well, government agencies or government sponsored entities generally
pay the cost of IOLs for cataract patients. As a result, STAAR believes that IOL
revenues are likely to remain relatively stable even under adverse conditions in
the general economy.
-4-
Visian
ICL
Manufacturing
and selling lenses used in refractive surgery is an increasingly important
source of revenue for STAAR. We have used our proprietary biocompatible Collamer
material to develop and manufacture implantable Collamer lenses, or ICLs.
STAAR’s VISIAN® ICL and VISIAN® Toric ICL, or TICL™, treat refractive disorders
such as myopia (near-sightedness), hyperopia (far-sightedness) and astigmatism.
These disorders of vision affect a large proportion of the population. Unlike
the IOL, which replaces a cataract patient’s cloudy lens, these products are
designed to work with the patient’s natural lens to correct refractive
disorders. The surgeon implants the foldable Visian lens through a tiny
incision, under local anesthesia. STAAR began selling the Visian ICL outside the
U.S. in 1996 and inside the U.S. in 2006. STAAR began selling the Visian TICL
outside the U.S. in 2002. These products are sold in more than 50 countries.
STAAR’s goal is to establish the position of the ICL and TICL throughout the
world as one of the primary choices for refractive surgery.
ICL sales
in the U.S. increased by approximately 18% in 2008 over the prior year, and have
increased outside the U.S. at a double digit annual percentage rate since
2001. However, refractive surgery is an elective procedure generally
not covered by health insurance. Patients must pay for the procedure,
frequently through installment financing arrangements. Patients can defer
the choice to have refractive surgery if they lack the disposable income to pay
for it, they do not feel their income is secure, or they cannot obtain
credit. As a result, a severe or prolonged recession may reduce sales
of ICLs.
Other
surgical products
We offer
a number of other products used in ophthalmic surgery that complement our IOL
and Visian ICL product lines. We market STAARVISC II, a viscoelastic
material which is used as a protective lubricant and to maintain the shape of
the eye during surgery. We also manufacture Cruise Control™, a
single-use disposable filter used in phacoemulsification, which is the process
of removing a cataract patient’s cloudy lens through a small incision using
ultrasound and suction. Cruise Control allows for a faster, cleaner
phacoemulsification procedure and is compatible with all phacoemulsification
equipment. We also make the AquaFlow Collagen Glaucoma Drainage
Device, an implantable device used for the surgical treatment of glaucoma. We
also sell other instruments, devices and equipment that we manufacture or that
others in the ophthalmic industry manufacture.
Sales of
other surgical products accounted for approximately 31% of our total revenues
for the 2008 fiscal year, 35% of total revenues for the 2007 fiscal year and 33%
of total revenues for the 2006 fiscal year.
Operations
STAAR has
significant operations both within and outside the U.S., and receives the
majority of its revenue from its activities outside the U.S. STAAR’s principal
business units and their operations are as follows:
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United
States. STAAR operates its global administrative
headquarters and a manufacturing facility in Monrovia, California. The
Monrovia manufacturing facility principally makes Collamer and silicone
IOLs and injector systems for IOLs and ICLs. STAAR also manufactures the
Collamer material in the U.S.
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Switzerland. STAAR
operates an administrative and manufacturing facility in Nidau,
Switzerland under its wholly owned subsidiary, STAAR Surgical AG. The
Nidau manufacturing facility makes all of STAAR’s ICLs and TICLs and also
manufactures Collamer IOLs. STAAR Surgical AG handles distribution and
other administrative affairs for Europe and other territories outside
North America and Japan.
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Japan. Through
its wholly owned subsidiary, STAAR Japan, Inc., STAAR maintains executive
offices and distribution facilities in Shin-Urayasu, Japan and a
manufacturing facility in Ichikawa City. All of STAAR’s
preloaded injectors are manufactured at the Ichikawa City
facility. STAAR Japan is also currently seeking approval from
the Japanese regulatory authorities to market in Japan STAAR’s Visian ICL
and TICL, Collamer IOL and AquaFlow
Device.
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Germany. STAAR’s
wholly owned subsidiary, Domilens Vertrieb Für Medizinische Produkte GmbH,
is headquartered in Hamburg, Germany. Products sold by Domilens
include implantable lenses, related surgical equipment, consumables and
other supplies. Domilens sells custom surgical kits that incorporate a
surgeon’s preferred supplies and consumables in a single ready-to-use
package, and services phacoemulsification and other surgical equipment.
Domilens distributes and services products of third party manufacturers
and distributes STAAR’s ICLs, IOLs, and Preloaded
Injectors.
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Corporate
Information
Originally
incorporated in California in 1982, STAAR reincorporated in Delaware in 1986.
Our executive offices are located at 1911 Walker Avenue, Monrovia, California
91016, and our telephone number is (626) 303-7902. Our website address is
www.staar.com. The information on our website is not a part of this
prospectus.
STAAR
Surgical Company, STAAR’s Logo, Visian®, Collamer®, STAARvisc™, SonicWAVE™ and
AquaFlow™ are trademarks of STAAR in the U.S. and other countries. Collamer® is
the brand name for STAAR’s proprietary collagen copolymer lens
material
-6-
RISK
FACTORS
Investment
in our securities involves a high degree of risk. Before deciding
whether to purchase any of our securities, please read and carefully consider
the “Risk Factors” sections in the prospectus supplement, in our most recent
Annual Report on Form 10-K filed with the SEC, and in our most recent Quarterly
Report on Form 10-Q if we filed it after the most recent Form
10-K. These reports are incorporated by reference into this
prospectus, along with any filings containing information that amends,
supplements or supersedes those reports. Instructions for obtaining
copies appears under the heading “Where You Can Find More
Information.” Each of these risk factors describes a circumstance
that has the potential to materially harm our business, operating results or
financial condition and reduce the value of an investment in our
securities. It is important for investors to read and consider all of
them.
SECURITIES
WE MAY OFFER
We may
offer any of the following types of securities, with a maximum total value of up
to $5,000,000:
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common
stock
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preferred
stock
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subscription
rights to purchase common or preferred
stock
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warrants
to purchase common or preferred
stock
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We may
offer these securities from time to time under this prospectus at prices and on
terms to be determined by market conditions at the time of the
offering. This prospectus provides you with a general description of
the securities we may offer. In connection with each offering we will
provide a prospectus supplement that contains a more complete description of the
securities offered and the structure of the offering. The prospectus
supplement will include the following information, to the extent
applicable:
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the
type of security offered, whether common or preferred equity, warrants or
a combination;
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the
amount of securities and the price
range;
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the
aggregate offering price;
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the
maturity date, if applicable;
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the
rates and times of payment of dividends, if
any;
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redemption,
conversion or sinking fund terms, if
any;
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voting
or other rights, if any;
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conversion
or exercise prices, if any;
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information
about any trustee or paying agent;
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the
plan of distribution;
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intended
use of proceeds;
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information
about the legal counsel who will pass the legality of the securities
offered; and
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federal
income tax considerations, if material to the securities
offered.
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The
prospectus supplement also may add, update or change information contained in
this prospectus or in documents we have incorporated by
reference. However, no prospectus supplement will offer a security
that is not included in the registration statement of which this prospectus is a
part at the time of its effectiveness or offer a security of a type that is not
described in this prospectus.
This
prospectus may not be used to consummate a sale of securities unless it is
accompanied by a prospectus supplement.
We may
offer and sell the securities directly to investors or through agents,
underwriters or dealers. We, and our agents or underwriters, reserve the right
to accept or reject all or part of any proposed purchase of securities. If we do
offer securities through agents or underwriters, we will include the following
information in the prospectus supplement to the extent applicable:
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the
names of the underwriters or
agents;
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the
fees, discounts or commissions to be paid to
them;
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the
net proceeds to us; and
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information
about the legal counsel advising them on matters related to the
offering.
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USE
OF PROCEEDS
Unless we
describe other use in the prospectus supplement, we will use the net proceeds
from the sale of the securities for general corporate purposes, including among
other things repayment of indebtedness, expansion of sales and marketing,
working capital, capital expenditures, technology acquisition and continuing
research and development. Until applied to that use, we intend to invest the net
proceeds in investment grade, interest-bearing securities.
DESCRIPTION
OF CAPITAL STOCK
Our
authorized capital stock consists of 60 million shares of common stock, par
value $0.01 per share, and 10 million shares of preferred stock, par value $0.01
per shares. As of May 1, 2009, there were 30,108,794 shares of
common stock outstanding and 1,700,000 shares of Series A Convertible Preferred
Stock outstanding.
Common
Stock
The
holders of our common stock are entitled to one vote for each share held of
record on all matters submitted to a vote of the stockholders. The
holders of common stock are not entitled to cumulative voting in the election of
directors.
Subject
to the preferences of any then outstanding shares of preferred stock, each
holder of our common stock is entitled to receive a pro rata share of any
dividends that may be declared by the Board of Directors out of funds legally
available for that purpose. If our company is liquidated, dissolved
or wound up, each holder of the common stock is entitled to a pro rata share of
the net proceeds of that transaction after payment of all liabilities and the
payment of the liquidation preferences of any then outstanding shares of
preferred stock.
As of the
date of this Prospectus, STAAR has 1,700,000 shares of outstanding Series A
Convertible Preferred Stock. If this stock were outstanding at the
time of a sale, liquidation or winding up of the company, an aggregate of $6.8
million of the proceeds of that transaction would be distributed to the
preferred stockholders before the remainder is distributed on a pro rata basis
to common stockholders.
Holders
of common stock have no preemptive rights and no right to convert their common
stock into any other securities. No redemption or sinking fund
provisions apply to any of our common stock. Except for restricted
stock issued to some our employees as incentive compensation, all outstanding
shares of common stock are fully paid and non-assessable, and all shares of
common stock to be issued under this prospectus will be fully paid and
non-assessable.
Preferred
Stock
Our
certificate of incorporation gives our Board of Directors the authority, without
further action by the stockholders, to issue up to 10 million shares of
preferred stock in one or more series and to fix the rights, preferences,
privileges and restrictions of this preferred stock, including dividend rights,
conversion rights, voting rights, terms of redemption, liquidation preferences,
sinking fund terms and the number of shares constituting any series or the
designation of a series, without further vote or action by the
stockholders. Of the 10 million authorized shares of preferred stock,
on the date of this prospectus we have 1.7 million shares outstanding and
another 8.3 million authorized for potential issuance.
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If STAAR
sells preferred stock, we will file a document called a “certificate of
designation” with the state of Delaware as a part of our certificate of
incorporation. The certificate of designation serves to legally
create a series of preferred stock having the rights, preferences, privileges
and restrictions that have been determined by the board of directors. Before we
make any offering of preferred stock we will file the form of certificate of
designation with the SEC as an exhibit to the registration statement of which
this prospectus forms a part, or as an exhibit to a current report on From
8-K. The terms of the preferred stock that will be described in the
certificate of designation will include the following to the extent
applicable:
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the
title of the class and series;
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the
number of shares designated to be in the same class and series and to
share the same rights, preferences and
privileges;
|
|
|
·
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any
liquidation preference per share;
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|
·
|
the
dividend rate, period and payment date and method of calculation for
dividends;
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|
·
|
whether
dividends will be cumulative or non-cumulative and, if cumulative, the
date from which dividends will
accumulate;
|
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|
·
|
the
procedures for any auction and remarketing, if
any;
|
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|
·
|
the
provisions for a sinking fund, if
any;
|
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|
·
|
the
provisions for redemption or repurchase, if applicable, and any
restrictions on our ability to exercise those redemption and repurchase
rights;
|
|
|
·
|
whether
the preferred stock will be convertible into our common stock and, if it
is, the conversion price, or how it will be calculated, and the conversion
period;
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|
·
|
voting
rights, if any, of the preferred
stock;
|
|
|
·
|
restrictions
on transfer, sale or other assignment, if
any;
|
|
|
·
|
whether
interests in the preferred stock will be represented by depositary
shares;
|
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|
·
|
a
discussion of any material or special U.S. federal income tax
considerations applicable to the preferred
stock;
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|
|
·
|
the
relative ranking and preferences of the preferred stock as to dividend
rights and rights if we liquidate, dissolve or wind up our
affairs;
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-10-
|
|
·
|
any
limitations on issuance of any class or series of preferred stock ranking
senior to or on a parity with the series of preferred stock as to dividend
rights and rights if we liquidate, dissolve or wind up our affairs;
and
|
|
|
·
|
any
other specific terms, preferences, rights or limitations of, or
restrictions on, the preferred
stock.
|
The
prospectus supplement will provide additional information regarding the
preferred stock, including the following:
|
|
·
|
the
number of shares of preferred stock
offered;
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|
·
|
the
price range at which the preferred stock will be offered;
and
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·
|
whether
the preferred stock will be listed on any securities exchange or
market.
|
If we
issue shares of preferred stock under this prospectus, the shares will be fully
paid and non-assessable and will not have, or be subject to, any preemptive or
similar rights.
The
General Corporation Law of the State of Delaware, the state of our
incorporation, provides that the holders of preferred stock will have the right
to vote separately as a class on any proposed fundamental change in the rights
of the preferred stock. This right is in addition to any voting rights specified
in the applicable certificate of designation.
The
issuance of preferred stock could adversely affect the voting power, conversion
or other rights of holders of our common stock. Preferred stock could
be issued quickly with terms designed to delay or prevent a change in control of
our company or make removal of management more difficult. In
addition, the issuance of preferred stock may have the effect of decreasing the
market price of our common stock.
Anti-Takeover
Effects of Provisions of Delaware Law and Our Charter Documents
Delaware
Takeover Statute
We are
subject to Section 203 of the Delaware General Corporation Law. This
is an anti-takeover law, which restricts transactions and business combinations
between a corporation and an interested stockholder owning 15% or more of the
corporation’s outstanding voting stock, for a period of three years from the
date the stockholder becomes an interested stockholder. With some
exceptions, unless the transaction is approved by the board of directors and the
holders of at least two-thirds of the outstanding voting stock of the
corporation, excluding shares held by the interested stockholder, this law
prohibits significant business transactions such as a merger with, disposition
of assets to, or receipt of disproportionate financial benefits by, the
interested stockholder, or any other transaction that would increase the
interested stockholder’s proportionate ownership of any class or series of the
corporation’s stock. The statutory ban does not apply to a person who
became an interested stockholder in a transaction approved by the board of
directors. The statutory ban also does not apply if, upon consummation of the
transaction in which a person becomes an interested stockholder, the interested
stockholder owns at least 85% of the outstanding voting stock of the
corporation. This calculation does not include shares held by persons
who are both directors and officers or by employee stock plans.
-11-
Charter
Documents
Provisions
of our certificate of incorporation and bylaws could make it more difficult for
a third party to acquire our company, or discourage a third party from
attempting to acquire control of our company. These provisions are
intended to discourage coercive takeover practices and inadequate takeover bids
and to encourage persons seeking to acquire control of our company to first
negotiate with our board of directors. However, these provisions
could also limit the price investors might be willing to pay in the future for
our common stock and could have the effect of delaying or preventing a change in
control. We believe that the benefits of increased protection of our
ability to negotiate with the proponent of an unsolicited acquisition proposal
outweigh the disadvantages of discouraging these proposals because, among other
things, negotiation may result in an improvement of their
terms. Nevertheless, these provisions could limit the price that
investors might be willing to pay in the future for shares of our common stock.
These provisions include the following:
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·
|
directors
may be removed only for cause;
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|
·
|
our
stockholders may not act by written consent or call special
meetings;
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|
·
|
stockholders
must submit nominations for the board of directors in
advance;
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|
·
|
the
board of directors may alter some of the provisions of our bylaws without
stockholder approval, and
|
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|
·
|
our
board of directors has the authority to issue up to 8,300,000 shares of
preferred stock and to determine the price, rights, preferences,
privileges and restrictions, including voting rights, of those shares
without any further vote or action by the
stockholders.
|
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is American Stock Transfer
& Trust Company. Its address is 59 Maiden Lane, New York,
N.Y. 10038, and its telephone number is (718) 921-8293.
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include
in any applicable prospectus supplements, summarizes the material terms and
provisions of the warrants that we may offer under this prospectus and the
related warrant agreements and warrant certificates. While the terms summarized
below will apply generally to any warrants that we may offer, we will describe
the particular terms of any series of warrants in more detail in the applicable
prospectus supplement. If we provide for different warrant terms in the
prospectus supplement, the terms of any warrants offered under that prospectus
supplement may differ from the terms described below. However, no prospectus
supplement shall fundamentally change the terms that are described in this
prospectus, or offer a security that is not included in the registration
statement of which this prospectus is a part at the time of its effectiveness or
described in this prospectus. Specific warrant agreements will
contain additional important terms and provisions and will be incorporated by
reference as an exhibit to the registration statement that includes this
prospectus or as an exhibit to a current report on Form 8-K.
-12-
General
A warrant
is a right to purchase our securities at a predetermined price. We
will describe in the applicable prospectus supplement the terms of the series of
warrants, including the following:
|
|
·
|
the
offering price and aggregate number of warrants
offered;
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|
·
|
the
currency for which the warrants may be
purchased;
|
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|
·
|
if
applicable, the designation and terms of the securities with which the
warrants are issued and the number of warrants issued with each such
security;
|
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|
·
|
if
applicable, the date on and after which the warrants and the related
securities will be separately
transferable;
|
|
|
·
|
in
the case of warrants to purchase common stock or preferred stock, the
number of shares of common stock or preferred stock, as the case may be,
purchasable upon the exercise of one warrant and the price at which these
shares may be purchased upon such
exercise;
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|
·
|
the
effect of any merger, consolidation, sale or other disposition of our
business on the warrant agreements and the
warrants;
|
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|
·
|
the
terms of any rights to redeem or call the
warrants;
|
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|
·
|
any
provisions for changes to or adjustments in the exercise price or number
of securities issuable upon exercise of the
warrants;
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|
·
|
the
dates on which the right to exercise the warrants will commence and
expire;
|
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|
·
|
the
manner in which the warrant agreements and warrants may be
modified;
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|
·
|
federal
income tax consequences of holding or exercising the
warrants;
|
|
|
·
|
the
terms of the securities issuable upon exercise of the warrants;
and
|
|
|
·
|
any
other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
|
Before
exercising their warrants, holders of warrants will not have any of the rights
of holders of the securities purchasable upon such exercise, including the right
to receive dividends, if any, or payments upon our liquidation, dissolution or
winding up, or to exercise voting rights, if any.
-13-
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in
the applicable prospectus supplement at the exercise price that we describe in
the applicable prospectus supplement. Unless we otherwise specify in the
applicable prospectus supplement, holders of the warrants may exercise the
warrants at any time up to 5:00 P.M. New York time on the expiration date that
we set forth in the applicable prospectus supplement. After the close of
business on the expiration date, unexercised warrants will become
void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate
representing the warrants to be exercised together with specified information,
and paying the required amount to the warrant agent in immediately available
funds, as provided in the applicable prospectus supplement. We will set forth on
the reverse side of the warrant certificate and in the applicable prospectus
supplement the information that the holder of the warrant will be required to
deliver to the warrant agent.
On
receipt of the required payment and the warrant certificate properly completed
and duly executed at the corporate trust office of the warrant agent or any
other office indicated in the applicable prospectus supplement, we will issue
and deliver the securities purchasable upon such exercise. If fewer than all of
the warrants represented by the warrant certificate are exercised, then we will
issue a new warrant certificate for the remaining amount of warrants. If we so
indicate in the applicable prospectus supplement, holders of the warrants may
surrender securities as all or part of the exercise price for
warrants.
Enforceability
of Rights by Holders of Warrants
Each
warrant agent will act solely as our agent under the applicable warrant
agreement and will not assume any obligation or relationship of agency or trust
with any holder of any warrant. A single bank or trust company may act as
warrant agent for more than one issue of warrants. A warrant agent will have no
duty or responsibility in case of any default by us under the applicable warrant
agreement or warrant, including any duty or responsibility to initiate any
proceedings at law or otherwise, or to make any demand upon us. Any holder of a
warrant may, without the consent of the related warrant agent or the holder of
any other warrant, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, its
warrants.
Outstanding
Warrants
As of May
15, 2009, we have outstanding warrants to purchase 770,000 shares of our common
stock, and will issue an additional 700,000 warrants on June 1,
2009. No other warrants to purchase our common stock or any of our
other securities are currently outstanding, and we have no other current
contractual obligations to issue warrants.
-14-
DESCRIPTION
OF SUBSCRIPTION RIGHTS
A
subscription right is a right to purchase our securities that is distributed to
our existing stockholders. From time to time STAAR may distribute to
its existing stockholders, on a pro rata basis, rights to purchase additional
shares of common stock or preferred stock at a predetermined price. We may issue
these subscription rights independently or together with any other security
offered by this prospectus. The subscription rights may or may not be
transferable. In connection with any offering of subscription rights,
STAAR may enter into a standby arrangement with one or more underwriters or
other purchasers, under which arrangement the underwriters or other purchasers
commit to purchase any securities remaining unsubscribed for after the
offering.
In any
offering of subscription rights, the prospectus supplement will describe the
following specific terms of the subscription rights:
|
|
·
|
the
price, if any, for the subscription
rights;
|
|
|
·
|
the
exercise price to be paid for each share of common stock or preferred
stock purchased on exercise of the subscription
rights;
|
|
|
·
|
the
number of subscription rights issued to each
stockholder;
|
|
|
·
|
the
number of shares and the terms of the common stock or preferred stock that
a holder of subscription rights may purchase on
exercise;
|
|
|
·
|
the
extent to which the holder may transfer the subscription
rights;
|
|
|
·
|
the
date on which the right to exercise the subscription rights shall
commence, and the date on which the subscription rights shall
expire;
|
|
|
·
|
any
other terms of the subscription rights, including the terms, procedures
and limitations relating to the exchange and exercise of the subscription
rights;
|
|
|
·
|
the
extent to which the subscription rights may include an over-subscription
privilege allowing the holder to purchase securities offered to, but not
purchased by, other holders;
|
|
|
·
|
if
applicable, the material terms of any standby underwriting or purchase
arrangement entered into by us in connection with the offering of
subscription rights, including the identity of the underwriter or other
purchaser who has committed to purchase unsubscribed
securities.
|
If we
offer subscription rights, the prospectus supplement will summarize the material
terms of the subscription rights but may not be complete. The summary
of the subscription rights will be qualified its entirety by reference to a form
of subscription rights certificate, which will set forth the complete terms and
conditions of the subscription rights. We will file the form of
subscription rights certificate with the SEC. For more information on
how you can obtain copies of any subscription rights certificate STAAR may
offer, see “Where You Can Find More Information” on
page 18. Before you participate in any offering of subscription
rights we urge you to read the form of subscription rights certificate and any
applicable prospectus supplement in their entirety.
-15-
PLAN
OF DISTRIBUTION
We may
sell the securities covered by this prospectus, directly to purchasers or
through underwriters, broker-dealers or agents, who may receive compensation in
the form of discounts, concessions or commissions from us.
We may
sell the securities in one or more transactions at fixed prices, at prevailing
market prices at the time of sale, at varying prices determined at the time of
sale or at negotiated prices. We may make these sales in transactions
that may involve crosses or block transactions. A prospectus
supplement or supplements will describe the terms of the offering of the
securities, including:
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|
·
|
the
name or names of underwriters, if
any;
|
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|
·
|
the
purchase price of the securities and the proceeds we will receive from the
sale;
|
|
|
·
|
any
over-allotment options under which underwriters may purchase additional
securities from us;
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|
·
|
any
agency fees or underwriting discounts and other items constituting agents’
or underwriters’ compensation;
|
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|
·
|
any
public offering price;
|
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|
·
|
any
discounts or concessions allowed or reallowed or paid to dealers;
and
|
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|
·
|
any
securities exchange or market on which the securities may be
listed.
|
Only
the underwriters named in a prospectus supplement are underwriters of the
securities offered by that prospectus supplement.
If
underwriters are used in the sale, they will acquire the securities for their
own account and may resell the securities from time to time in one or more
transactions at a fixed public offering price or at varying prices determined at
the time of sale. The obligations of the underwriters to purchase the securities
will be subject to the conditions set forth in the applicable underwriting
agreement. We may offer the securities to the public through underwriting
syndicates represented by managing underwriters or by underwriters without a
syndicate. Subject to certain conditions, the underwriters will be obligated to
purchase all of the securities offered by the prospectus supplement. Any public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may change from time to time. We may use underwriters with whom we have
a material relationship. We will describe in the prospectus supplement, naming
the underwriter, the nature of any such relationship.
-16-
We may
sell securities directly or through agents we designate from time to time. We
will name any agent involved in the offering and sale of securities and we will
describe any commissions we will pay the agent in the prospectus supplement.
Unless the prospectus supplement states otherwise, our agent will act on a
best-efforts basis for the period of its appointment.
We may
authorize agents or underwriters to solicit offers by certain types of
institutional investors to purchase securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
We will describe the conditions to these contracts and the commissions we must
pay for solicitation of these contracts in the prospectus
supplement.
We may
provide agents and underwriters with indemnification against civil liabilities
related to this offering, including liabilities under the Securities Act, or
contribution with respect to payments that the agents or underwriters may make
with respect to these liabilities. Agents and underwriters may engage in
transactions with, or perform services for, us in the ordinary course of
business.
All
securities we offer, other than common stock, will be new issues of securities
with no established trading market. Any underwriter may make a market in these
securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. We cannot guarantee the liquidity of the
trading markets for any securities.
Any
underwriter may engage in overallotment, stabilizing transactions, short
covering transactions and penalty bids in accordance with Regulation M under the
Exchange Act. Overallotment involves sales in excess of the offering size, which
create a short position. Stabilizing transactions permit bids to purchase the
underlying security so long as the stabilizing bids do not exceed a specified
maximum. Short covering transactions involve purchases of the securities in the
open market after the distribution is completed to cover short positions.
Penalty bids permit the underwriters to reclaim a selling concession from a
dealer when the securities originally sold by the dealer are purchased in a
covering transaction to cover short positions. Those activities may cause the
price of the securities to be higher than it would otherwise be. If commenced,
the underwriters may discontinue any of the activities at any time.
Any
underwriters who are qualified market makers on the Nasdaq Global Market may
engage in passive market making transactions in the securities on the Nasdaq
Global Market in accordance with Rule 103 of Regulation M, during the business
day prior to the pricing of the offering, before the commencement of offers or
sales of the securities. Passive market makers must comply with applicable
volume and price limitations and must be identified as passive market makers. In
general, a passive market maker must display its bid at a price not in excess of
the highest independent bid for such security; if all independent bids are
lowered below the passive market maker’s bid, however, the passive market
maker’s bid must then be lowered when certain purchase limits are
exceeded.
-17-
RATIO
OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
We
have experienced losses in each of the years in the five-year period ended
January 2, 2009 and in the quarter ended April 3, 2009, and
accordingly we have not had sufficient earnings to cover fixed charges during
those periods. “Earnings” consist of income (loss) from continuing
operations before income taxes, extraordinary items, cumulative effect of
accounting changes, equity in net losses of affiliates and fixed charges. “Fixed
charges” consist of interest expense and the portion of operating lease expense
that represents interest. During those periods STAAR has not had any
outstanding class or series of preferred stock that paid dividends in a fixed
amount or in preference to any other class of securities, so the ratio of
earnings to combined fixed earnings and preferred dividends is the same as the
ratio of earnings to fixed charges. The following table sets forth
our ratio of earnings to fixed charges and preferred dividends for the periods
indicated:
|
Fiscal
Year Ended
|
Quarter
Ended
|
|||||||||||||||||||||||
|
December 31,
2004
|
December 30,
2005
|
December 29,
2006
|
December 28,
2007
|
January 2,
2009
|
April 3,
2009
|
|||||||||||||||||||
|
Ratio
of Earnings to Fixed Charges and Preferred Dividends
(1)
|
— | — | — | — | — | — | ||||||||||||||||||
|
(1)
|
For
the fiscal years ended December 31, 2004, December 30, 2005,
December 29, 2006, December 28, 2007 and January 2, 2009, and
the quarter ended April 3, 2009, our earnings were insufficient to cover
fixed charges by $10.4 million, $9.8 million, $13.4 million,
$15.4 million, $21.7 million and $1.2 million,
respectively.
|
LEGAL
MATTERS
The
validity of the securities being registered in the registration of which this
prospectus is a part will be passed upon for us by Charles Kaufman,
Esq. Mr. Kaufman, who participated in the preparation of this
prospectus and the related registration statement, is employed by STAAR as its
Vice President and General Counsel, owns 23,000 shares of our Common Stock and
holds options to purchase an additional 90,000 shares of our Common
Stock. In any offering of securities under this prospectus, the
prospectus supplement will provide information on the legal counsel who will
pass on the validity of the specific securities being offered and information on
the legal counsel for any underwriters employed in the offering.
EXPERTS
The
consolidated financial statements and schedule and management’s report on the
effectiveness of internal control over financial reporting incorporated by
reference in this Prospectus have been audited by BDO Seidman, LLP, an
independent registered public accounting firm, to the extent and for the periods
set forth in their reports incorporated herein by reference, and are
incorporated herein in reliance upon such reports given upon the authority of
that firm as experts in auditing and accounting.
The
report on the consolidated financial statements as of January 2, 2009
incorporated herein by reference contains an explanatory paragraph regarding the
Company's ability to continue as a going concern.
-18-
WHERE
YOU CAN FIND MORE INFORMATION
Because
we are subject to the informational requirements of the Securities Exchange Act,
we file reports, proxy statements and other information with the
SEC. You may read and copy these reports, proxy statements and other
information at the public reference room maintained by the SEC at the following
address:
Public
Reference Room
100 F
Street, NE
Washington,
DC 20549
You may
obtain information on the operation of the public reference room by calling the
SEC at (800) SEC-0330. In addition, we are required to file
electronic versions of those materials with the SEC through the SEC’s EDGAR
system. The SEC maintains a web site at http://www.sec.gov, which
contains reports, proxy statements and other information regarding registrants
that file electronically with the SEC.
We have
filed with the SEC a registration statement on Form S-3 under the Securities Act
with respect to the securities offered with this prospectus. This prospectus
does not contain all of the information in the registration statement, parts of
which we have omitted, as allowed under the rules and regulations of the SEC.
You should refer to the registration statement for further information about us
and our securities. Statements contained in this prospectus as to the contents
of any contract or other document are not necessarily complete and, in each
instance, we refer you to the copy of each contract or document filed as an
exhibit to the registration statement. Copies of the registration statement,
including exhibits, may be inspected without charge at the SEC’s principal
office in Washington, D.C., and you may obtain copies from that office on
payment of the fees prescribed by the SEC.
We will
furnish without charge to each person to whom a copy of this prospectus is
delivered, on written or oral request, a copy of the information that has been
incorporated by reference into this prospectus (except exhibits, unless they are
specifically incorporated by reference into this prospectus). You should direct
any requests for copies to: Investor Relations, STAAR Surgical Company, 1911
Walker Avenue, Monrovia, California 91016, telephone number (626)
303-7902.
INFORMATION
INCORPORATED BY REFERENCE
The SEC
allows us to “incorporate by reference” in this prospectus the information that
we file with the SEC. This means that we can disclose important
information by referring the reader to those SEC filings. The
information incorporated by reference is considered to be part of this
prospectus, and later information we file with the SEC will update and supersede
this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Section 13(a), 13(c),
14, or 15(d) of the Securities Exchange Act prior to the termination of the
offering:
|
|
·
|
our
Annual Report on Form 10-K for our fiscal year ended January 2,
2009;
|
-19-
|
|
·
|
our
Proxy Statement for the Annual Meeting of Stockholders to be held on
June 11, 2009, filed with the SEC on May 1,
2009;
|
|
|
·
|
our
Quarterly Report on Form 10-Q for the period ended April 3,
2009;
|
|
|
·
|
all
filings filed by us pursuant to the Securities Exchange Act after the date
of the original registration statement and prior to effectiveness of the
registration statement; and
|
|
|
·
|
the
description of our common stock contained in Amendment No. 1 to our
registration statement on Form 8-A/A filed with the SEC on
April 18, 2003, including any amendment or report filed for the
purpose of updating this
description.
|
You may
obtain copies of those documents from us, free of cost, by contacting us at the
address or telephone number provided in “Where You Can Find More Information”
immediately above.
-20-
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the costs and expenses payable by the Registrant in
connection with the sale of common stock being registered. All
amounts are estimates except the SEC registration fee.
|
Securities
and Exchange Commission registration fee
|
$ | 275 | ||
|
Accounting
fees and expenses
|
$ | 10,000 | ||
|
Legal
fees and expenses
|
3,000 | |||
|
Printing
and related fees
|
5,000 | |||
|
Miscellaneous
|
500 | |||
|
Total
|
$ | 18,775 |
Item
15. Indemnification of Directors and officers
Section
145 of the Delaware General Corporation Law provides that a corporation may
indemnify directors and officers as well as other employees and individuals
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than a
“derivative action” — an action by or in the right of the corporation) if they
acted in good faith and in a manner they reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceedings, had no reasonable cause to believe their conduct
was unlawful.
A similar
standard is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys’ fees) actually
and reasonably incurred in connection with the defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of
other indemnification that may be granted by a corporation’s certificate of
incorporation, bylaws, disinterested director vote, stockholder vote, agreement
or otherwise.
As
permitted by Section 145 of the Delaware General Corporation Law,
Article VIII of our certificate of incorporation, as amended,
provides:
“The
corporation shall to the fullest extent permitted by Section 145 of the
Delaware General Corporation Law indemnify all persons whom it may indemnify
pursuant thereto.”
Our
by-laws provide for indemnification of officers and directors to the fullest
extent permitted by Delaware law. In addition, the Registrant has, and intends
in the future to enter into, agreements to provide indemnification for directors
and officers in addition to that provided for in the by-laws.
We
maintain an insurance policy pursuant to which our directors and officers are
insured, within the limits and subject to the limitations of the policy, against
specified expenses in connection with the defense of claims, actions, suits or
proceedings, and liabilities which might be imposed as a result of such claims,
actions, suits or proceedings, that may be brought against them by reason of
their being or having been directors or officers.
II-1
We
generally enter into agreements with our executive officers and directors to
indemnify them to the fullest extent permitted under the Delaware General
Corporation Law.
If we
employ underwriters in an offering, our underwriting agreement, a form of which
is attached as Exhibit 1.1, may provide for indemnification by any underwriters
of STAAR, our directors, our officers who sign the registration statement and
our controlling persons for selected liabilities, including liabilities under
the Securities Act.
Item
16. Exhibits.
The
exhibits to this registration statement are listed in the Exhibit Index on
Page II-8.
Item
17. Undertakings.
The
undersigned registrant hereby undertakes:
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1.
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration
Statement:
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i.
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To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
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ii.
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To
reflect in the prospectus any facts or events arising after the effective
date of this 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 this registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
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iii.
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To
include any material information with respect to the plan of distribution
not previously disclosed in this Registration Statement or any material
change to such information in this registration
statement;
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provided, however, that
paragraphs (1)(i) and (1)(ii) do not apply if the registration statement is on
Form S-3, Form S-8 or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the SEC by the registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) that are incorporated by reference in this
registration statement.
II-2
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2.
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That,
for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof; and
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3.
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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.
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4.
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That,
for the purpose of determining liability under the Securities Act of 1933
to any purchaser:
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i.
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Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
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ii.
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Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x)
for the purpose of providing the information required by section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in
the registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such effective
date.
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5.
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That,
for the purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such
purchaser:
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II-3
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i.
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Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
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ii.
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any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
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iii.
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the
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant; and
(iv) any other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
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6.
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The
undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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.
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7.
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Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, executive 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 SEC such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by 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 Securities Act and will be governed by
the final adjudication of such
issue.
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8.
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That:
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i.
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For
purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared
effective.
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ii.
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For
the purpose of determining any liability under the Securities Act of 1933,
each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering
thereof.
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II-4
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 Amendment No. 1 to its registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Monrovia, State of California, on May 29,
2009.
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STAAR
SURGICAL COMPANY
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By:
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/s/Barry G. Caldwell
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Barry
G. Caldwell
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President,
Chief Executive Officer
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(Principal
Executive
officer)
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||
II-5
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
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Signature
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Title
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Date
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||
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/s/Barry G. Caldwell
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President,
Chief Executive Officer, and Director
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May 29,
2009
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Barry
G. Caldwell
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||||
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/s/Deborah Andrews
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Chief
Financial Officer and Chief Accounting
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May 29,
2009
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Deborah
Andrews
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Officer
(Principal Financial and Accounting
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|||
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officer)
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||||
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/s/David Bailey *
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President,
International Operations, and Director
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May 29,
2009
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David
Bailey
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||||
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/s/Don Bailey*
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Director,
Chairman of the Board
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May 29,
2009
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Don
Bailey
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||||
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/s/Donald Duffy*
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Director
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May 29,
2009
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Donald
Duffy
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||||
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/s/John C. Moore*
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Director
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May 29,
2009
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John
C. Moore
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||||
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/s/David Morrison*
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Director
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May 29,
2009
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David
Morrison
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*By:
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/s/ Deborah
Andrews
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Deborah
Andrews
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II-6
Exhibit
Index
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Exhibit
Number
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Description of Exhibit
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1.1
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Form
of Underwriting Agreement.(1)
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4.1
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Form
of Certificate for Common Stock, par value $0.01 per share (incorporated
by reference to Exhibit 4.1 to Amendment No. 1 to the Company’s
Registration Statement on Form 8-A/A filed with the SEC on April 18,
2003). **
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4.2
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Specimen
Preferred Stock Certificate and Form of Certificate of Designation of
Preferred Stock.(1)
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4.3
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Form
of Subscription Rights Certificate.(1)
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4.7
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Form
of Common Stock Warrant Agreement and Warrant
Certificate.(1)
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4.8
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Form
of Preferred Stock Warrant Agreement and Warrant
Certificate.(1)
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4.9
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Form
of Debt Securities Warrant Agreement and Warrant
Certificate.(1)
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5.1
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Opinion
of Charles Kaufman, Esq.*
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12.1
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Statement
of Computation of Ratio of Earnings to Fixed Charges and Preferred
Dividends.*
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23.1
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Consent
of BDO Seidman, LLP.*
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23.2
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Consent
of legal counsel (included in Exhibit 5.1).*
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24.1
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Power
of Attorney (see page II-7 of this Registration Statement as originally
filed on May 15,
2009).**
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*
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Filed
herewith.
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**
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Previously
filed.
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(1)
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To
be filed by amendment or as an exhibit to a current report of the
registrant on Form 8-K and incorporated herein by
reference.
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(2)
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To
be filed by a pre-effective amendment to this registration
statement.
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II-7