UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
Form S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
___________________
STAAR SURGICAL COMPANY
(Exact name of registrant as specified in its charter)
___________________
Delaware 95-3797439
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1911 Walker Avenue
Monrovia, California 91016
(Address of principal executive offices) (Zip code)
___________________
1998 STAAR Surgical Company Stock Plan
(Full title of the plan)
___________________
John Bily
Chief Financial Officer
STAAR Surgical Company
1911 Walker Avenue
Monrovia, California 91016
(Name and address of agent for service)
(626) 303-7902
(Telephone number, including area code, of agent for service)
Copy to:
Charles S. Kaufman, Esq.
Sheppard, Mullin, Richter & Hampton LLP
333 South Hope Street, 48th Floor
Los Angeles, California 90071
(213) 620-1780
CALCULATION OF REGISTRATION FEE
____________________________________________________________________________________________________________________________________
Title of each class of
securities to be Proposed maximum Proposed maximum Amount of registration
registered Amount to be registered(1) offering price per share(2) aggregate offering price(2) fee(2)
____________________________________________________________________________________________________________________________________
Common Stock, par value 2,140,261 shares $5.80 $12,413,514 $1,005
$0.01 per share
____________________________________________________________________________________________________________________________________
(1) In addition, this Registration Statement also covers such indeterminate number of shares of Common Stock as may be issued
pursuant to the employee benefit plan described herein as a result of the adjustment provisions thereof.
(2) Pursuant to Rule 457(h), the maximum offering price, per share and in the aggregate, and the registration fee were calculated
based upon the average of the high and low prices of the Common Stock on April 11, 2003, as reported on the Nasdaq Stock
Market.
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participants in the 1998 STAAR Surgical Company
Stock Plan of STAAR Surgical Company, a Delaware corporation (the "Company"), as
specified by Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Act of 1933, as amended
(the "Securities Act"). Such documents need not be filed with the Commission
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Securities Act Rule 424 in accordance with the Note to
Part I of Form S-8. These documents, and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following previously filed documents by the Company with the
Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for its fiscal year
ended January 3, 2003, filed with the Commission on April 3, 2003; and
(b) The Company's Current Report on Form 8-K, filed with the
Commission on March 31, 2003; and
(c) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A (File No. 00011634), filed
with the Commission on February 24, 1984, as amended by Amendment No. 1
thereto filed with the Commission on April 18, 2003, including any
amendment or report filed for the purposes of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment that
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such documents. Any information that is furnished in any document
incorporated or deemed to be incorporated by reference herein, but that is not
deemed "filed" under the Securities Act or the Exchange Act, is not incorporated
by reference herein. Any statement contained herein or in a document, all or a
portion of which is incorporated or deemed to be incorporated by reference
herein, shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or amended, to
constitute a part of this Registration Statement.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. 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 an action by or in the right of the corporation or a derivative action), 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 the Company's 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."
Also as permitted by Section 145 of the Delaware General Corporation
Law, Article VI of the Company's bylaws, as amended, provides:
"On the terms, to the extent, and subject to the condition prescribed
by statue and by such rules and regulations, not inconsistent with
statute, as the Board of Directors may in its discretion impose in
general or particular cases or classes of cases, (a) the Corporation
shall indemnify any person made, or threatened to be made, a party to
an action or proceeding, civil or criminal, including an action by or
in the rights of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit
plan or other enterprise which any director or officer of the
Corporation served in any capacity at the request of the Corporation,
by reason of the fact that he, his testator or intestate, was a
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director or officer of the Corporation, or served such other
corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise in any capacity, against judgments, fines, amounts
paid in settlement and reasonable expenses, including attorneys' fees,
actually and necessarily incurred as a result of such action or
proceeding, or any appeal therein, and (b) the Corporation may pay, in
advance of final disposition of any such action or proceeding, expense
incurred by such person in defining such action or proceeding.
On the terms, to the extent, and subject to the conditions prescribed
by statute and by such rules and regulations, not inconsistent with
statute, as the Board of Directors may in its discretion impose in
general or particular cases or classes of cases, (a) the Corporation
shall indemnify any person made a party to an action by or in the right
of the Corporation to procure a judgment in its favor, by reason of the
fact that he, his testator or intestate, is or was a director or
officer of the Corporation, against the reasonable expenses, including
attorneys' fees, actually and necessarily incurred by him in connection
with the defense of such action, or in connection with an appeal
therein, and (b) the Corporation may pay, in advance of final
disposition of any such action, expenses incurred by such person in
defending such action or proceeding."
The Company maintains an insurance policy pursuant to which the
directors and officers of the Company are insured, within the limits and subject
to the limitations of the policy, against certain expenses in connection with
the defense of certain claims, actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such claims, actions, suits or
proceedings, which may be brought against them by reason of their being or
having been such directors or officers. In addition, the Company generally
enters into an indemnification agreement with each of its directors.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description of Exhibit
______ ______________________
5.1 Opinion of Sheppard, Mullin , Richter & Hampton, LLP
23.1 Consent of Sheppard, Mullin , Richter & Hampton, LLP
(included in its opinion filed as
Exhibit 5.1)
23.2 Consent of BDO Seidman, LLP
24.1 Power of Attorney (See p. 6)
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Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) 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 Commission 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
(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
S-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 Commission by the registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) 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
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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.
(c) 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
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by 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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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Monrovia, State of California, on April 18, 2003.
STAAR SURGICAL COMPANY
By: /s/ David Bailey
____________________________________________
David Bailey
President and Chief Executive Officer
POWER OF ATTORNEY
FILING OF REGISTRATION STATEMENT ON FORM S-8
KNOW ALL BY THESE PRESENTS, that each of the undersigned directors and
officers of STAAR Surgical Company, a Delaware corporation (the "Company"),
hereby nominate and appoint David Bailey and John Biley, and each of them acting
or signing singly, as his or her agents and attorneys-in-fact (the "Agents"), in
his or her respective name and in the capacity or capacities indicated below to
execute and/or file, with all exhibits thereto, and other documents in
connection therewith, (1) a registration statement on Form S-8 under the
Securities Act of 1933, as amended, (the "Act"), in connection with the
registration under the Act of shares of the Company's common stock issuable
under the 1998 STAAR Surgical Company Stock Plan (including the schedules and
all exhibits and other documents filed therewith or constituting a part
thereof); and (2) any one or more amendments to any part of the foregoing
registration statement, including any post-effective amendments, or appendices
or supplements that may be required to be filed under the Act to keep such
registration statement effective or to terminate its effectiveness.
Further, the undersigned do hereby authorize and direct such agents and
attorneys-in-fact to take any and all actions and execute and file any and all
documents with the Securities and Exchange Commission (the "SEC"), or state
regulatory agencies, necessary, proper or convenient in their opinion to comply
with the Act and the rules and regulations or orders of the SEC, or state
regulatory agencies, adopted or issued pursuant thereto, including the making of
any requests for acceleration of the effective date of said registration
statement, to the end that the registration statement of the Company shall
become effective under the Act and any other applicable law.
Finally, each of the undersigned does hereby ratify, confirm and
approve each and every act and document which the said appointment agents and
attorneys-in-fact may take, execute or file pursuant thereto with the same force
and effect as though such action had been taken or such documents had been
executed or filed by the undersigned respectively.
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This Power of Attorney shall remain in full force and effect until
revoked or superseded by written notice filed with the SEC.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
_________ _____ ____
/s/ David Bailey
______________________________________ President, Chief Executive April 18, 2003
David Bailey Officer, Chairman and Director
(Principal Executive Officer)
/s/ John Bily
______________________________________ Chief Financial Officer and April 18, 2003
John Bily Chief Accounting Officer
(Principal Financial and
Accounting Officer)
/s/ Donald Duffy
______________________________________ Director April 18, 2003
Donald Duffy
/s/ Dr. Volker D. Anhaeusser
______________________________________ Director April 18, 2003
Dr. Volker D. Anhaeusser
/s/ John R. Gilbert
______________________________________ Director April 18, 2003
John R. Gilbert
/s/ David Morrison
______________________________________ Director April 18, 2003
David Morrison
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
_______ ______________________
5.1 Opinion of Sheppard, Mullin , Richter & Hampton, LLP
23.1 Consent of Sheppard, Mullin , Richter & Hampton, LLP
(included in its opinion filed as Exhibit 5.1)
23.2 Consent of BDO Seidman, LLP
24.1 Power of Attorney (See p. 6)
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