As filed with the Securities and Exchange Commission on August 20, 1996
Registration No. 333-5101
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LIGHT SAVERS U.S.A., INC.
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(Exact name of Registrant as specified in its charter)
New York 11-3096379
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
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509 Madison Avenue
Suite 1114
New York, New York 10022
(212) 223-0699
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(Address, including zip code, and telephone
number, including area code, of Registrant's principal
executive offices)
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Howard G. Anders
Light Savers U.S.A., Inc.
509 Madison Avenue
Suite 1114
New York, New York 10022
(212) 223-0699
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Robert H. Friedman, Esq.
Olshan Grundman Frome & Rosenzweig LLP
505 Park Avenue
New York, New York 10022
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Approximate date of commencement of proposed sale to the
public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED AUGUST 20, 1996
PROSPECTUS
4,200,000 SHARES
LIGHT SAVERS U.S.A., INC.
Common Stock ($.01 par value)
This Prospectus relates to the reoffer and resale by certain selling
shareholders (the "Selling Shareholders") of an aggregate of 4,200,000 shares
(the "Shares") of the Common Stock, $.01 par value (the "Common Stock"), of
Light Savers U.S.A., Inc. (the "Company") of which (i) 3,600,000 were previously
issued by the Company to certain of the Selling Shareholders, (ii) 125,000 will
be issued by the Company to certain of the Selling Shareholders upon exercise of
certain warrants (the "Warrants") and (iii) 500,000 will be issued upon exercise
of an option (the "Option") granted to Resource Holdings Associates, a New York
limited partnership ("Resource Holdings"). The Warrants were issued to the
underwriters in the Company's initial public offering consummated in October
1994. The Warrants are exercisable at a price of $3.60 per share until January
25, 1999. The Shares are being reoffered and resold for the account of the
Selling Shareholders and the Company will not receive any of the proceeds from
the resale of the Shares. The Company has agreed to bear certain expenses (other
than selling commissions and fees and expenses of counsel and other advisors to
the Selling Shareholders) in connection with the registration and sale of the
Shares being offered by the Selling Shareholders.
The Selling Shareholders have advised the Company that the resale of
their Shares may be effected from time to time in one or more transactions in
the over-the-counter market, in negotiated transactions or otherwise at market
prices prevailing at the time of the sale or at prices otherwise negotiated. The
Selling Shareholders may effect such transactions by selling the Shares to or
through broker-dealers who may receive compensation in the form of discounts,
concessions or commissions from the Selling Shareholders and/or the purchasers
of the Shares for whom such broker-dealers may act as agent or to whom they sell
as principal, or both (which compensation as to a particular broker-dealer may
be in excess of customary commissions). Any broker-dealer acquiring the Shares
from the Selling Shareholders may sell such securities in its normal market
making activities, through other brokers on a principal or agency basis, in
negotiated transactions, to its customers or through a combination of such
methods. See "Plan of Distribution."
The Common Stock is traded on the Nasdaq SmallCap Market ("Nasdaq")
under the symbol "LTSV." On August 12, 1996, the closing bid price for the
Common Stock as reported by Nasdaq was $2.00.
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AN INVESTMENT IN THE SECURITIES OFFERED HEREBY INVOLVES
A HIGH DEGREE OF RISK AND SHOULD ONLY BE MADE BY INVESTORS
WHO CAN AFFORD THE LOSS OF THEIR ENTIRE INVESTMENT.
SEE "RISK FACTORS" AT PAGE 3 HEREOF.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION NOR HAS THE COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
CERTAIN MATTERS DISCUSSED IN THIS REGISTRATION STATEMENT ARE FORWARD-
LOOKING STATEMENTS THAT ARE SUBJECT TO RISKS AND UNCERTAINTIES THAT COULD
CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE PROJECTED.
The date of this Prospectus is , 1996.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549; 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661; and Seven World Trade Center, Suite 1300, New York, New
York 10048. Copies of such material can be obtained from the Public Reference
Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Such material may also be accessed
electronically by means of the Commission's home page on the internet at
http://www.sec.gov.
The Company has filed with the Securities and Exchange Commission a
Registration Statement on Form S-3 (together with all amendments and exhibits
thereto, the "Registration Statement") under the Securities Act with respect to
the Shares offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. For
further information with respect to the Company and the securities offered
hereby, reference is made to the Registration Statement. Statements contained in
this Prospectus as to the contents of any contract or other document are not
necessarily complete, and in each instance, reference is made to the copy of
such contract or document filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-KSB for the year ended December
31, 1995, as amended, and Reports on Form 10-QSB for the quarters ended March
31, 1996, as amended, and June 30, 1996 which have been filed with the
Commission pursuant to the Exchange Act, are incorporated by reference in this
Prospectus and shall be deemed to be a part hereof. All documents filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this Prospectus and prior to the termination of this offering are
deemed to be incorporated by reference in this Prospectus and shall be deemed to
be a part hereof from the date of filing of such documents.
The Company's Current Reports on Form 8-K filed on March 21, 1996 and
on Form 8-K/A filed on March 26, 1996 are incorporated by reference in this
Prospectus and shall be deemed to be a part hereof.
The Company's Application for Registration of its Common Stock under
Section 12(g) of the Exchange Act filed on December 13, 1993 is incorporated by
reference in this Prospectus and shall be deemed to be a part hereof.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents referred to
above which have been or may be incorporated in this Prospectus by reference,
other than exhibits to such documents. Written requests for such copies should
be directed to Light Savers U.S.A., Inc. at 509 Madison Avenue, Suite 1114, New
York, New York 10022, Attention: Secretary. Oral requests should be directed to
such officer (telephone number (212) 223-0699).
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No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offer made hereby, and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or the Selling Shareholders. This Prospectus does not constitute
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an offer to sell, or a solicitation of an offer to buy, the securities offered
hereby to any person in any state or other jurisdiction in which such offer or
solicitation is unlawful. The delivery of this Prospectus at any time does not
imply that information contained herein is correct as of any time subsequent to
its date.
RISK FACTORS
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK.
PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS
BEFORE MAKING AN INVESTMENT DECISION.
IMMEDIATE NEED FOR CASH; ADDITIONAL FINANCING. Management believes that the
Company's current cash and cash equivalents will be sufficient to enable the
Company to carry out its business objectives and continue to operate as a going
concern for a period of 18 months. The Company's continued existence thereafter
will be dependent upon its ability to generate cash flows from operations
sufficient to meet its obligations as they become due. Unless the Company can
generate cash flows from operations sufficient to fund all of its working
capital needs, the Company will be required to obtain additional financing to
continue to operate its business. There can be no assurance that any additional
financing will be available to the Company on acceptable terms, if at all. Any
inability by the Company to obtain additional financing, if required, will have
a material adverse effect on the operations of the Company.
HISTORY OF LOSSES. For the quarter ended March 31, 1996 and the years ended
December 31, 1995 and 1994, the Company had a net loss of $121,203, $1,115,969
and $1,284,798, respectively, as compared to its net income of $526,233 for the
year ended December 31, 1993. While the results do not reflect the Company's
current business, there can be no assurance that the Company's operations will
be profitable or that any positive cash flow generated by the Company's
operations will be sufficient to meet the Company's future cash requirements.
CHANGE IN BUSINESS. On August 17, 1995, the Company's subsidiary, Hospitality
Restoration and Builders, Inc., a New York corporation ("HRB"), acquired
substantially all of the assets and business and assumed certain liabilities of
AGF Interior Services, Inc. d/b/a Hospitality Restoration and Builders, a
Florida corporation ("AGF") that provided renovation services to the hospitality
industry and, in February 1996, the Company disposed of its lighting business.
The pro forma consolidated information (see Note 17 to the Company's
consolidated financial statements for the year ended December 31, 1995) which is
based on the historical financial statements of the Company and AGF as if the
acquisition occurred on January 1, 1994 and has been adjusted to include certain
acquisition related adjustments reflect losses from the continuing operations of
the renovation business of $1,275,475 and $1,267,280 for the years ended
December 31, 1995 and 1994, respectively. The past operating history and past
consolidated financial condition of the Company may bear little or no
relationship to the future operations of the Company. There can be no assurance
that the Company will be successful in its change of business focus.
COMPETITION. The hospitality maintenance industry is highly fragmented and is
made up largely of small, local companies. Competition in the hospitality
restoration industry is significant and is based largely on price and service.
In the future, the Company's competitors may be larger and have greater
financial resources than HRB.
SUBSTANTIAL RELIANCE UPON, ATTRACTION AND RETENTION OF KEY PERSONNEL. The
Company's business is substantially reliant upon the efforts and abilities of
Alan Friedberg and Guillermo Montero, the Company's Chief Executive Officer and
Chief Operating Officer, respectively. The loss of or unavailability to the
Company of the services of Messrs. Friedberg and Montero would have a material
adverse effect on the Company's business prospects and/or potential earning
capacity until such time, if ever, as such individuals are adequately replaced.
While the Company does not currently have any "key man" insurance to compensate
it for any such loss, it intends to obtain "key man" insurance upon the lives of
Messrs. Friedberg and Montero with the Company paying the premium thereon and
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being the beneficiary. The loss of the services of Messrs. Friedberg and
Montero would be detrimental to the Company.
SHARES ELIGIBLE FOR FUTURE SALE. Of the 7,125,655 shares of outstanding Common
Stock, 1,346,256 shares are freely transferable without restriction or further
registration under the Securities Act, except for shares held by "affiliates" of
the Company within the meaning of Rule 144 under the Securities Act, which
shares are subject to the resale limitations of Rule 144. The remaining
5,779,399 shares are "restricted" securities as that term is defined under Rule
144 and in the future may be sold only pursuant to a registration statement
under the Securities Act or an applicable exemption from registration
thereunder, including pursuant to Rule 144. The resale of an aggregate of
3,575,000 shares of Common Stock is being registered in the Registration
Statement of which this Prospectus forms a part. Under Rule 144, a person who
has held restricted securities for a period of two years may sell a limited
number of such securities into the public market without registration of such
securities under the Securities Act. Rule 144 also permits, under certain
circumstances, persons who are not affiliates of the Company to sell their
restricted securities without quantity limitations once they have satisfied Rule
144's three-year holding period. Sales made pursuant to Rule 144 by the
Company's existing shareholders may have a depressive effect on the price of the
shares of Common Stock in the public market. Such sales could also adversely
affect the Company's ability to raise capital at that time through the sale of
its equity securities. At June 30, 1996, 785,000 shares were reserved for
issuance upon outstanding options and warrants.
MAINTENANCE CRITERIA FOR NASDAQ SECURITIES; Effects of Possible Delisting. In
order to continue to be included in the Nasdaq system, a company must maintain
$2,000,000 in total assets, a $200,000 market value of the public float (defined
by Nasdaq as shares not held directly or indirectly by any officer or director
of the issuer and by any person who is the beneficial owner of more than ten
percent of the total shares outstanding) and $1,000,000 in total capital and
surplus (defined by Nasdaq as total stockholder's equity). In addition,
continued inclusion requires two market-makers and a minimum bid price of $1.00
per share, provided, however, that if a company falls below such minimum bid
price, it will remain eligible for continued inclusion on the Nasdaq system if
the market value of the public float is at least $1,000,000 and the company has
$2,000,000 in capital and surplus. The failure to meet these maintenance
criteria in the future may result in the discontinuance of the inclusion of the
Company's securities on the Nasdaq system. In such event, the Company's
securities will be subject to being delisted, and trading, if any, in the Common
Stock would thereafter be conducted in the over-the-counter market in the
so-called "pink sheets," or the OTC Bulletin Board. Consequently, an investor
may find it more difficult to dispose of, or to obtain accurate quotations as to
the price of, the Company's securities. If the Company's securities were subject
to the regulations on penny stock, the market liquidity for the Company's
securities could be severely and adversely affected by limiting the ability of
broker-dealers to sell the Company's securities and the ability of purchasers in
this offering to sell their securities in the secondary market at a time and
price acceptable to them.
THE COMPANY
GENERAL
The Company was formed under the laws of the State of New York
in October 1991. In January 1994, the Company consummated an initial public
offering of its Common Stock. Since inception, the Company's principal line of
business was to design and market decorative, energy efficient lighting fixtures
for the hotel and hospitality industry. The Company manufactured its ceiling,
table and floor lamps, wall arms and wall sconces, and vanity light fixtures to
individual customer specifications. The fixtures utilized compact fluorescent
tubes known as "PL bulbs," which complement their cosmetic beauty and use less
energy.
-4-
The Company's primary marketing tool was the utilization of
Con Edison's Applepower Rebate Program (the "Con Edison Rebate Program"), under
which Con Edison offered rebates to those who utilized energy saving devices of
a substantial amount, if not all, of the cost of the fixtures, which left the
customer responsible for payment of a small portion, if any, of the cost. All
Company customers in the New York City area had participated in the Con Edison
Rebate Program, and the Company sold its products to an insignificant number of
customers who did not live in the New York City area, an area where their local
utility company did not provide for a rebate program.
In 1994, Con Edison substantially reduced the Con Edison
Rebate Program, making it less advantageous for the Company to use the Con
Edison Rebate Program as a marketing tool. As a result, the Company's revenues
were substantially reduced.
On August 1, 1995 (the "Acquisition Date"), the Company's
wholly-owned subsidiary, HRB acquired (the "Acquisition") substantially all of
the assets and business and assumed certain liabilities of AGF, a Florida
corporation that provides renovation services to the hospitality industry, in a
stock and note transaction from Watermark Investments Limited, a Delaware
corporation ("Watermark") pursuant to an Acquisition Agreement (the
"Agreement"). The aggregate consideration for the Acquisition pursuant to the
Agreement was subject to final determination subsequent to the Acquisition Date.
As finally determined on April 12, 1996, the purchase price consisted of a
$2,150,000 promissory note (the "Note Payable") payable to AGF over five years,
bearing interest at 8% per annum, and 2,500,000 shares of Common Stock delivered
to AGF and issued in the name of AGF's sole stockholder, Watermark. The
Acquisition resulted in goodwill of approximately $6,600,000, which is being
amortized on a straight-line basis over its estimated life of 17 years. The
Acquisition was accounted for by the purchase method of accounting with the
results of HRB included in the consolidated financial statements from the
Acquisition Date. On May 23, 1995, the Company loaned AGF $2,500,000, secured by
a promissory note (the "Note Receivable"), payable over five years and bearing
interest at 8%. The Note Receivable is currently due from Watermark, and is
included in the Company's financial statements. On April 12, 1996, the Company
and Watermark agreed to offset the $2,150,000 Note Payable and the $2,500,000
Note Receivable, with a net balance of $350,000 payable to the Company over five
years at a rate of 7% per annum, with payments commencing January 1997.
In December 1995, the Company's Board of Directors, in an
effort to focus the Company in a more strategic direction, determined to begin
to dispose of the Company's lighting division and concentrate the Company's
efforts in HRB.
On February 26, 1996, the Company, HRB, Watermark Investments
Limited, a Bahamian international business company ("Watermark-Bahamas"),
Watermark, a wholly-owned subsidiary of Watermark-Bahamas, AGF, Tova Schwartz,
Alan G. Friedberg and Guillermo A. Montero entered into a Divestiture,
Settlement and Reorganization Agreement (the "Divestiture Agreement") pursuant
to which (i) the Company sold its lighting business to Tova Schwartz, the
Company's former President and Chief Executive Officer; (ii) Ms. Schwartz
resigned from her positions as a director and officer of the Company and HRB;
(iii) the Company repurchased 500,000 shares of Common Stock from Ms. Schwartz
for $250,000; (iv) Ms. Schwartz granted to the Company the option to purchase an
additional 1,000,000 shares of Common Stock; (v) the Company retained Ms.
Schwartz as a consultant for a period of three years at a salary of $100,000 per
year; (vi) prior to resigning, Ms. Schwartz, the then sole remaining director of
the Company (since Howard G. Anders, Moshe Greenfield and Moise Hendeles
resigned from their positions as directors of the Company effective February 25,
1996), appointed Mr. Friedberg and Robert A. Berman to the Company's Board of
Directors and the parties appointed Mr. Friedberg as the Company's President and
Chief Executive Officer; (vii) the Company entered into three-year employment
agreements with each of Messrs. Friedberg and Montero; and (viii) the Company
engaged Resource Holdings as its financial advisor. Subsequently, on March 25,
1996, Mr. Berman resigned from the Company's Board of Directors and the Board
elected Scott A. Kaniewski as Watermark's representative to the Board of
Directors.
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The Company's only line of business currently is providing a
complete package of renovation resources to the hospitality industry ranging
from preplanning and scope preparation of a project to performing the renovation
requirements and delivering furnished rooms. HRB offers hospitality maintenance
services to hotels and hotel chains throughout the continental United States.
For over sixteen years, HRB, through its predecessor, AGF, has provided to the
hospitality industry renovation and improvements such as vinyl, paint,
wallpaper, carpet, installation of new furniture, light carpentry, and masonry
work. HRB generally provides its renovation services in an on time, on budget
manner, while causing little or no disruption to the ongoing operation of a
hotel. HRB has successfully responded to the hotel industry's efforts to
increase occupancy, room rates and market share through cosmetic upgrades, which
are generally required every four to seven years.
The Company currently maintains its principal executive
offices at 509 Madison Avenue, Suite 1114, New York, New York 10022, and its
telephone number is (212) 223-0699. HRB maintains its principal office at 1800
Century Park East, Los Angeles, California 90067, and its telephone number is
(310) 286- 6400.
RECENT DEVELOPMENTS
On February 26, 1996, the Company engaged Resource Holdings as
its financial advisor until December 31, 1997. As compensation for such
engagement, the Company granted to Resource Holdings the Option to purchase
500,000 shares of Common Stock at an exercise price of $2.00 per share for a
period of five years and agreed to pay to Resource Holdings a retainer of
$10,000 per month for a period of at least one year.
In March and April 1996, the Company completed a private
placement (the "Private Placement") of 500,000 shares of Common Stock to
accredited investors at a price of $1.00 per share, for aggregate gross proceeds
of $500,000.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the reoffer and
resale of the Shares offered hereby by the Selling Shareholders. The Company
will receive the exercise price of the warrants held by certain Selling
Shareholders, if and when exercised. Such proceeds will be used by the Company
for working capital purposes.
SELLING SHAREHOLDERS
The following table sets forth (i) the number of shares of Common Stock
owned by each Selling Shareholder at July 30, 1996, (ii) the number of shares to
be offered for resale by each Selling Shareholder and (iii) the number and
percentage of shares of Common Stock to be held by each Selling Shareholder
after the completion of the offering.
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Number of shares
of Common Stock/
Number of shares Number of Percentage of
of Common Stock Shares to Class to be Owned
Beneficially Owned be Offered After Completion
Name at July 30, 1996 for Resale of the Offering
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Watertone Holdings LP
(1)................................ 2,300,000 2,300,000 0
Carl Arfa.......................... 101,000(2) 100,000 1,000/*
Louis K. Adler..................... 75,000 75,000 0
George C. Asch..................... 75,000 75,000 0
James Pinto........................ 100,000 100,000 0
Angelo V. Gibilisco................ 8,334(3) 8,334 0
Joseph Zappala..................... 8,333(3) 8,333 0
Anthony DiGiovanni................. 8,333(3) 8,333 0
Michael J. Schumacher.............. 6,250(3) 6,250 0
Alan M. Levine..................... 6,250(3) 6,250 0
Andrew Basile ..................... 6,500(3) 6,500 0
Marie Chantale 18,500(3) 18,500 0
Schwartz...........................
Larry Fierstein.................... 5,000(3) 5,000 0
Howard Roth........................ 70,200(4) 57,500 12,700/*
Tova Schwartz(5)................... 1,743,155 500,000 1,243,155/17.4%
Resource Holdings
Associates......................... 500,000(6) 500,000 0
Richard A. Bartlett................ 616,666(7) 116,666 500,000
John C. Shaw....................... 616,668(7) 116,666 500,000
Jerry M. Seslowe................... 616,668(8) 116,668 500,000
Eugene Stricker.................... 248,724 37,500 211,224/3.0%
Mark Schindler..................... 140,000 37,500 102,500/1.4%
- -------------------
* Less than 1%
(1) Watertone is an affiliate of Watermark. On August 1, 1995, the Company
issued 2,500,000 shares of Common Stock to Watermark as partial
consideration for the assets of AGF. On May 3, 1996, Watertone
acquired 2,300,000 of such shares of Common Stock from Watermark.
(2) Includes 100,000 shares of Common Stock that were acquired by the
Selling Shareholder from Watermark.
(3) Consists of shares of Common Stock issuable upon exercise of the
Warrants.
(4) Includes 57,500 shares of Common Stock issuable upon exercise of the
Warrants.
(5) Tova Schwartz was the President, Chief Executive Officer and a director
of the Company from the time of its inception to February 26, 1996, at
which time she resigned from her positions
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with the Company. The Company has retained Ms. Schwartz as a consultant
for a period of three years at a salary of $100,000 per year.
(6) Consists of shares of Common Stock issuable upon exercise of the
Option.
(7) Consists of (i) 116,666 shares of Common Stock owned individually by
Mr. Bartlett (83,333 of which were acquired from Watermark); and (ii)
500,000 shares of Common Stock underlying the Option as to which Mr.
Shaw is attributed beneficial ownership pursuant to Rule 13d-3 of the
Exchange Act ("Rule 13d-3").
(8) Consists of (i) 116,666 shares of Common Stock owned individually by
Mr. Shaw (83,333 of which were acquired from Watermark); and (iii)
500,000 shares of Common Stock underlying the Option as to which Mr.
Bartlett is attributed beneficial ownership pursuant to Rule 13d-3.
(9) Consists of (i) 116,668 shares of Common stock owned individually by
Mr. Seslowe (83,334 of which were acquired from Watermark); and (ii)
500,000 shares of Common Stock underlying the Option as to which Mr.
Seslowe is attributed beneficial ownership pursuant to Rule 13d-3.
There is no assurance that the Selling Shareholders will sell any of
the Shares offered hereby. To the extent required, the specific Shares to be
sold, the names of the Selling Shareholders, other additional shares of Common
Stock beneficially owned by such Selling Shareholder, the public offering price
of the Shares to be sold, the names of any agent, dealer or underwriter employed
by such Selling Shareholder in connection with such sale, and any applicable
commission or discount with respect to a particular offer will be set forth in
an accompanying Prospectus Supplement.
The Shares covered by this Prospectus may be sold from time to time so
long as this Prospectus remains in effect; provided, however, that the Selling
Shareholder is first required to contact the Company's Corporate Secretary to
confirm that this Prospectus is in effect. The Company intends to distribute to
each Selling Shareholder a letter setting forth the procedures whereby such
Selling Shareholder may use the Prospectus to sell the Shares and under what
conditions the Prospectus may not be used. The Selling Shareholders expect to
sell the Shares at prices then attainable, less ordinary brokers' commissions
and dealers' discounts as applicable.
The Selling Shareholders and any broker or dealer to or through whom
any of the Shares are sold may be deemed to be underwriters within the meaning
of the Securities Act with respect to the Common Stock offered hereby, and any
profits realized by the Selling Shareholders or such brokers or dealers may be
deemed to be underwriting commissions. Brokers' commissions and dealers'
discounts, taxes and other selling expenses to be borne by the Selling
Shareholder are not expected to exceed normal selling expenses for sales
over-the-counter or otherwise, as the case may be. The registration of the
Shares under the Securities Act shall not be deemed an admission by the Selling
Shareholders or the Company that the Selling Shareholders are underwriters for
purposes of the Securities Act of any Shares offered under this Prospectus.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is Continental
Stock Transfer & Trust Company, New York, New York.
PLAN OF DISTRIBUTION
This Prospectus covers 4,200,000 shares of Common Stock. All of the
Shares offered hereby are being sold by the Selling Shareholders. The Company
will realize no proceeds from the sale of the Shares by the Selling
Shareholders.
The distribution of the Shares by the Selling Shareholders is not
subject to any underwriting agreement. The Selling Shareholders may sell the
Shares offered hereby from time to time in transactions in the over-the-counter
market, in negotiated transactions, or a combination of such methods of sale, at
fixed prices which may be changed, at market prices prevailing at the time of
sale, at prices relating to prevailing market prices or at negotiated prices.
The Selling Shareholders may effect such transactions by selling the Shares to
or through broker-dealers, and such broker-dealers may receive compensation in
the form of discounts, concessions or commissions from the Selling Shareholders
and/or the purchasers of the Shares for whom such broker-dealers may act as
agents or to whom they sell as principals, or both (which compensation as to a
particular broker-dealer might be in excess of the customary commissions). The
Selling Shareholders and any broker-dealers that participate with the Selling
Shareholders in the distribution of the Shares may be deemed to be underwriters
within the meaning of Section 2(11) of the Securities Act and any commissions
received by them and any profit on the resale of the Shares commissioned by them
may be deemed to be underwriting commissions or discounts under the Securities
Act. The Selling Shareholders will pay any transaction costs associated with
effecting any sales that occur.
-8-
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
Shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with by the Company and the Selling
Shareholders.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the Shares may not simultaneously engage
in market-making activities with respect to the Common Stock for a period of two
business days prior to the commencement of such distribution. In addition and
without limiting the foregoing, each Selling Shareholder will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including without limitation, Rules 10b-6, 10b-6A and 10b-7, which
provisions may limit the timing of the purchases and sales of shares of Common
Stock by the Selling Shareholders.
The Selling Shareholders are not restricted as to the price or prices
at which they may sell their Shares. Sales of such Shares may have an adverse
effect on the market price of the Common Stock. Moreover, the Selling
Shareholders are not restricted as to the number of Shares that may be sold at
any time and it is possible that a significant number of Shares could be sold at
the same time which may also have an adverse effect on the market price of the
Common Stock.
The Company has agreed to pay all fees and expenses incident to the
registration of the Shares, except selling commissions and fees and expenses of
counsel or any other professionals or other advisors, if any, to the Selling
Shareholders.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby and certain
other legal matters will be passed upon for the Company by Olshan Grundman Frome
& Rosenzweig LLP, New York, New York.
EXPERTS
The financial statements of Light Savers U.S.A., Inc. and AGF Interior
Services Co. (d/b/a Hospitality Restoration and Builders) incorporated by
reference in this Prospectus have been audited by BDO Seidman, LLP, independent
certified public accountants, to the extent and for the periods set forth in
their reports incorporated herein by reference, and are incorporated herein in
reliance upon such report given upon the authority of said firm as experts in
auditing and accounting.
The financial statements of Light Savers U.S.A., Inc. incorporated by
reference in this Prospectus have been audited by Arthur Andersen LLP,
independent certified public accountants, to the extent and for the periods set
forth in their reports incorporated herein by reference, and are incorporated
herein in reliance upon such report given upon the authority of said firm as
experts in auditing and accounting.
To the extent that a firm of independent public accountants audits and
reports on the financial statements of the Company issued at future dates, and
consents to the use of their report thereon, such financial statements also will
be incorporated by reference herein in reliance upon their report and said
authority.
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Article "3" (i) and (ii) of the Company's Certificate of Incorporation
contains the following provision with respect to limiting the liability of
Directors:
"3: A director of the corporation shall not be held liable to
the
-9-
corporation or its shareholders for damages for any breach of duty in
such capacity except for
(i) liability if a judgment or other final adjudication
adverse to a director establishes that his or her acts or
omissions were in bad faith or involved intentional misconduct
or a knowing violation of law or that the director personally
gained in fact a financial profit or other advantage to which
he or she was not legally entitled or that the director's acts
violated BCL Section 719, or
(ii) liability for any act or omission prior to the
adoption of this provision.
Section 721 through 726 inclusive of the New York Business Corporation
Law the ("New York BCL") also contain provisions relating to the indemnification
of officers and directors. The New York BCL provides that a corporation may (but
is not required to) indemnify a director or officer against judgments, fines,
amounts paid in settlement and reasonable expenses of litigation (other than in
an action brought by the corporation against such person or by shareholders
against such person on behalf of the corportion), even if the director or
officer is not successful on the merits, if he acted in good faith and for a
purpose he reasonably believed to be in (or not opposed to) the best interests
of the corporation (and, in criminal actions or proceedings, had no reason to
believe his conduct was unlawful). In addition, a corporation may (but is not
required to) indemnify a director or officer against amounts paid in settlement
and reasonable expenses of an action brought against him by the corporation or
by shareholders on behalf of the corporation, even if he is not successful on
the merits, if he acted in good faith and for a purpose he reasonably believed
to be in (or not opposed to) the best interests of the corporation. However, no
indemnification is permitted in an action by the corporation, or shareholders on
behalf of the corporation, in connection with the settlement or other
disposition of a threatened or pending action or in connection with any claim,
issue or matter as to which a director of officer is adjudged to be liable to
the corporation, unless a court determines that, in view of all of the
circumstances, he is entitled to indemnity for such portion of the settlement
amount and expenses as the court deems proper. In addition, the New York BCL
provides that a director or officer shall be indemnified if such person is
successful in the litigation on the merits or otherwise.
Permitted indemnification as described above may only be made if it is
authorized by the Board of Directors, in each specific case, based upon a
determination that the applicable standard of conduct has been met or that the
applicable standard of conduct has been met or that indemnification is proper
under New York BCL section 721. Such authorization is made by the Board of
Directors, either acting as a quorum of disinterested directors or based upon an
opinion by independent legal counsel or the shareholders that indemnificaiton is
proper because the applicable standard of conduct thas been met. Upon
application of the person seeking indemnification, a court may also award
indemnificaiton upon a determination that the standards outlined above have been
met. A corporation's board of directors may also authorize the advancement of
litigation expenses to a director or officer upon receipt of an undertaking by
him to repay such expenses, if it is ultimately determined that he is not
entitled to be indemnified for them.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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 of whether such indemnification by it against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
-10-
No dealer, salesperson or any other person is authorized in connection with any
offering made hereby to give any information or to make any representation not
contained in this Prospectus, and if given or made, such information or
representation must not be relied upon as having been authorized by the Company
or any other person. This Prospectus does not constitute an offer to sell or the
solicitation of an offer to buy any of the securities offered hereby by anyone
in any state in which such offer or solicitation is not authorized or in which
the person making the offer or solicitation is not qualified to do so or to any
person to whom it is unlawful to make such offer or solicitation. Neither the
delivery of this Prospectus nor any sale made hereunder shall under any
circumstance create any implication that information contained here is correct
as of any date subsequent to the date hereof.
TABLE OF CONTENTS
Page
----
Available Information..................................
Incorporation of Certain
Documents By Reference...............................
Risk Factors...........................................
The Company............................................
Recent Developments....................................
Use of Proceeds........................................
Selling Shareholders...................................
Transfer Agent and Registrar...........................
Plan of Distribution...................................
Legal Matters..........................................
Experts................................................
--------------
LIGHT SAVERS U.S.A., INC.
4,200,000 SHARES OF
COMMON STOCK
---------------------------
PROSPECTUS
---------------------------
_________, 1996
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
- -------- --------------------------------------------
The following table sets forth the various expenses which will be paid
by the Company in connection with the securities being registered. With the
exception of the SEC Registration Fee, all amounts are estimates.
SEC Registration Fee................................................ $2,695.54
Nasdaq listing expenses............................................. 5,000.00
Accounting Fees and Expenses........................................ 5,000.00
Legal Fees and Expenses (other than Blue
Sky)................................................................ 20,000.00
Blue Sky Fees and Expenses (including legal
and filing fees).................................................... 5,000.00
Miscellaneous Expenses.............................................. 1,304.46
----------
Total............................................................... $39,000.00
Item 15. Indemnification of Directors and Officers
- -------- -----------------------------------------
Article "3" (i) and (ii) of the Company's Certificate of Incorporation
contains the following provision with respect to limiting the liability of
Directors:
"3: A director of the corporation shall not be held liable to
the corporation or its shareholders for damages for any breach of duty
in such capacity except for
(i) liability if a judgment or other final adjudication
adverse to a director establishes that his or her acts or
omissions were in bad faith or involved intentional misconduct
or a knowing violation of law or that the director personally
gained in fact a financial profit or other advantage to which
he or she was not legally entitled or that the director's acts
violated BCL Section 719, or
(ii) liability for any act or omission prior to the adoption
of this provision.
Section 721 through 726 inclusive of the New York BCL also contain
provisions relating to the indemnification of officers and directors. The New
York BCL provides that a corporation may (but is not required to) indemnify a
director or officer against judgments, fines, amounts paid in settlement and
reasonable expenses of litigation (other than in an action brought by the
corporation against such person or by shareholders against such person on behalf
of the corportion), even if the director or officer is not successful on the
merits, if he acted in good faith and for a purpose he reasonably believed to be
in (or not opposed to) the best interests of the corporation (and, in criminal
actions or proceedings, had no reason to believe his conduct was unlawful). In
addition, a corporation may (but is not required to) indemnify a director or
officer against amounts paid in settlement and reasonable expenses of an action
brought against him by the corporation or by shareholders on behalf of the
corporation, even if he is not successful on the merits, if he acted in good
faith and for a purpose he reasonably believed to be in (or not opposed to) the
best interests of the corporation. However, no indemnification is permitted in
an action by the corporation, or shareholders on behalf of the corporation, in
connection with the settlement or other disposition of a threatened or pending
action or in connection with any claim, issue or matter as to which a director
of officer is adjudged to be liable to the corporation, unless a court
determines that, in view of all of the circumstances, he is entitled to
indemnity for such portion of the settlement amount and expenses as the court
deems proper. In addition, the New York BCL provides that a director or officer
shall be indemnified if such person is successful in the litigation on the
merits or otherwise.
Permitted indemnification as described above may only be made if it is
authorized by the Board of Directors, in each specific case, based upon a
determination that the applicable standard of conduct has been met or that the
applicable standard of conduct has been met or that indemnification is proper
under New York BCL section 721. Such authorization is made by the Board of
Directors, either acting as a quorum of disinterested directors or based upon an
opinion by independent legal counsel or the shareholders that indemnificaiton is
proper because the applicable standard of conduct thas been met. Upon
application of the person seeking indemnification, a court may also award
indemnificaiton upon a determination that the standards outlined above have been
met. A corporation's board of directors may also authorize the advancement of
litigation expenses to a director or officer upon receipt of an undertaking by
him to repay such expenses, if it is ultimately determined that he is not
entitled to be indemnified for them.
II-1
Item 16. Exhibits.
Exhibit No. Description
4 Form of Common Stock Certificate (incorporated by reference to
such exhibit to the Company's Registration Statement on Form
SB-2 (Registration No. 33-7094-NY)).
5 Opinion of Olshan Grundman Frome & Rosenzweig LLP with respect
to the securities registered hereunder.
*23(a) Consent of BDO Seidman, LLP with respect to Light Savers
U.S.A., Inc.
*23(b) Consent of Arthur Andersen LLP.
*23(c) Consent of BDO Seidman, LLP with respect to AGF Interior
Services Co. (d/b/a Hospitality Restoration and Builders).
23(d) Consent of Olshan Grundman Frome & Rosenzweig LLP (included
within Exhibit 5).
24 Power of Attorney (included on signature page to this
Registration Statement).
- ------------------
* Filed herewith.
Item 17. Undertakings
- -------- ------------
The undersigned registrant hereby undertakes:
a) To file, during any period in which offers
or sales are being made, a post-effective amendment to this registration
statement to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
b) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
c) 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against each such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-2
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. 2 to this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on this 14th day of August, 1996.
LIGHT SAVERS U.S.A., INC.
------------------------------------
(Registrant)
By: *
-------------------------------
Alan G. Friedberg, President
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to this registration statement has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
* President, Chief August 14, 1996
- ----------------------------- Executive Officer
Alan G. Friedberg (principal executive
officer) and Director
/s/ Howard G. Anders Executive Vice President, August 14, 1996
- ----------------------------- Chief Financial Officer
Howard G. Anders (principal financial
officer and principal
accounting officer) and
Secretary
* Vice President, Chief August 14, 1996
- ----------------------------- Operating Officer and
Guillermo Montero Director
* Director August 14, 1996
- -----------------------------
Scott Kaniewski
*By: Howard G. Anders August 14, 1996
-------------------------
Howard G. Anders
Attorney-in-Fact
II-3