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As
filed with the Securities and Exchange Commission on June 12,
2009
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Registration
No. 333-159293
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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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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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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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——
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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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——
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Subscription
Rights to purchase Common Stock or Preferred Stock
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——
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——
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Total
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$10,000,000
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$550.80(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 $10,000,000. Any securities registered
hereunder may be sold separately or as units with other securities
registered hereunder. The securities registered also include such
indeterminate amounts and numbers of common stock and preferred stock as
may be issued upon conversion of or exchange for preferred stock that
provides for conversion or exchange, upon exercise of warrants or pursuant
to the provisions of any such securities that may cause additional
securities to be issuable upon a stock split or stock dividend
or pursuant to any anti-dilution provisions of such
securities.
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(2)
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Pursuant
to Instruction II.D. of Form S-3 under the Securities Act, the maximum
aggregate offering price is provided on a combined basis for all classes
of securities registered hereunder and is not specified for individual
classes.
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(3)
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Calculated
pursuant to Rule 457(o) under the Securities
Act.
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(4)
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Previously
paid with this Registration
Statement.
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Securities
and Exchange Commission registration fee
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$ | 551 | ||
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Accounting
fees and expenses
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$ | 15,000 | ||
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Legal
fees and expenses
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3,000 | |||
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Printing
and related fees
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5,000 | |||
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Miscellaneous
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500 | |||
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Total
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$ | 24,051 |
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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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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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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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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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STAAR
SURGICAL COMPANY
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| By: |
/s/ Barry G.
Caldwell
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Barry
G. Caldwell
President,
Chief Executive Officer
(Principal
Executive officer)
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Signature
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Title
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Date
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/s/ Barry G. Caldwell
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President,
Chief Executive Officer, and Director
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June 12,
2009
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Barry
G. Caldwell
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/s/
Deborah Andrews
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Chief
Financial Officer and Chief Accounting Officer
(Principal
Financial and Accounting officer)
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June 12,
2009
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Deborah
Andrews
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/s/
David Bailey*
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President,
International Operations, and Director
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June 12,
2009
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David
Bailey
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/s/
Don Bailey*
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Director,
Chairman of the Board
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June 12,
2009
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Don
Bailey
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/s/
Donald Duffy*
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Director
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June 12,
2009
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Donald
Duffy
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/s/
John C. Moore*
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Director
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June 12,
2009
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John
C. Moore
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/s/
David Morrison*
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Director
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June 12, 2009
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David
Morrison
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*By:
/s/ Deborah
Andrews
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Deborah
Andrews
Attorney-in-fact
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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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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 Amendment No. 2 to this Registration
Statement).*
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_______________________
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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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