AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 20, 2002
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LASER VISION CENTERS, INC.
(Exact name of registrant as specified in charter)
DELAWARE 43-1530063
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
540 MARYVILLE CENTRE DRIVE, SUITE 200
ST. LOUIS, MISSOURI 63141
(Address of principal executive offices) (Zip Code)
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LASER VISION CENTERS, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
ROBERT W. MAY, ESQ.
SECRETARY AND GENERAL COUNSEL
LASER VISION CENTERS, INC.
540 MARYVILLE CENTRE DRIVE, SUITE 200
ST. LOUIS, MISSOURI 63141
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (314) 434-6900
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Copy to:
ANDREW J. KLINGHAMMER, ESQ.
THOMPSON COBURN LLP
ONE FIRSTAR PLAZA
ST. LOUIS, MISSOURI 63101
(314) 552-6000
CALCULATION OF REGISTRATION FEE
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Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of Registration
be Registered Offering Price Per Aggregate Offering Fee
Registered Share(1) Price(1)
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Common Stock, $.01 par 300,000 shares $2.075 $622,500 $57.27
value
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(1) Estimated solely for purposes of computing the registration fee pursuant
to the provisions of Rule 457(h) promulgated under the Securities Act of
1933, as amended, based upon the average of the high and low sale prices
of Common Stock of the Registrant as reported on the Nasdaq National
Market on February 19, 2002.
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The undersigned Registrant hereby files this Registration Statement on
Form S-8 (the "Registration Statement") to register up to 300,000 shares of the
common stock, $0.01 par value per share (the "Common Stock"), of Laser Vision
Centers, Inc. (the "Company") for issuance to participants under the Laser
Vision Centers, Inc. Employee Stock Purchase Plan (the "Plan").
PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated herein by reference:
(i) The Company's Annual Report on Form 10-K for the fiscal year
ended April 30, 2001;
(ii) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended July 31, 2001 and October 31, 2001;
(iii) The Company's Current Reports on Form 8-K filed on June 14,
2001, August 16, 2001, August 31, 2001, December 28, 2001 and
September 7, 2001, as amended by Form 8-K/A filed on October
11, 2001; and
(iv) The description of the Company's common stock, par value $.01
per share, contained in the Company's Registration Statement
on Form 8-A, filed with the Commission on November 15, 1996.
Such incorporation by reference shall not be deemed to incorporate by
reference the information referred to in Item 402(a)(8) of Regulation S-K.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be made a part
hereof from the date of filing of such documents. Any statements contained
herein or in a document incorporated herein by reference shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in a subsequently filed document incorporated herein
by reference modifies or supersedes such document. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Where any document or part thereof is incorporated by reference in this
Registration Statement, the Company will provide without charge to each person
to whom a Prospectus with respect to the Plan is delivered, upon written or oral
request of such person, a copy of any and all of the information incorporated by
reference in this Registration Statement, excluding exhibits unless such
exhibits are specifically incorporated by reference.
Item 6. Indemnification of Directors and Officers.
The following is a summary of Section 145 of the General Corporation
Law of the State of Delaware (the "DGCL").
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Subject to restrictions contained in the DGCL, a corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding by reason of
the fact that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection therewith if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, in connection with any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful. A person who is successful on the merits or otherwise in any suit or
matter covered by the indemnification statute shall be indemnified and
indemnification is otherwise authorized upon a determination that the person to
be indemnified has met the applicable standard of conduct required. Such
determination shall be made by a majority vote of the board of directors who
were not parties to such action, suit or proceeding, even though less than a
quorum, or if there are no such directors, or if such directors so direct, by
special independent counsel in a written opinion, or by the stockholders.
Expenses incurred in defense of any action, suit or proceeding may be paid in
advance upon receipt by the corporation of a written undertaking by or on behalf
of the recipient to repay such amount if it is ultimately determined that the
recipient is not entitled to indemnification under the statute. The
indemnification provided by statute is not exclusive of any other rights to
which such person may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, and shall inure to the
benefit of the heirs, executors and administrators of such person. Insurance may
be purchased on behalf of any person entitled to indemnification by the
corporation against any liability asserted against him or her and incurred in an
official capacity regardless of whether the person could be indemnified under
the statute. References to the corporation include all constituent corporations
absorbed in a consolidation or merger as well as the resulting corporation, and
anyone seeking indemnification by virtue of acting in some capacity with a
constituent corporation would stand in the same position as if such person had
served the resulting or surviving corporation in the same capacity.
Section 6 of the Company's Restated Certificate of Incorporation, as
amended, and Article 7 of the Company's By-Laws, as amended, provide for
indemnification of the officers and directors of the Company to the fullest
extent permitted by the laws of the State of Delaware.
The Company and each executive officer of the Company and its
subsidiaries are parties to an indemnity agreement (the "Indemnity Agreements")
which provides for certain indemnification of directors or executive officers
for liabilities incurred as a result of omissions, neglect or a breach of duty
committed in the capacity of a director or executive officer. The benefits of
the indemnity agreement are not available if the director or executive officer
has other indemnification or insurance coverage for the subject claim, or if,
with respect to the matters giving rise to the claim the director or executive
officer (i) received an improper personal benefit, (ii) violated Section 16(b)
of the Securities Exchange Act of 1934 or analogous provision of law, or (iii)
committed certain acts of dishonesty.
The Company maintains a policy of insurance under which the directors
and officers of the Company are insured, subject to the limits of the policy,
against certain losses arising from claims made against such directors and
officers by reason of any acts or omissions covered under such policy in their
respective capacities as directors or officers.
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Item 8. Exhibits.
See Exhibit Index on page 8 hereof.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers and sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of 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;
(iii) To include any material information with
respect to the plan of distribution 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 this
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 Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended, 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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in 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 of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of
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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.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, 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 County of St. Louis, State of
Missouri, as of the 18th day of February, 2002.
LASER VISION CENTERS, INC.
By /s/ John J. Klobnak
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John J. Klobnak
Chairman of the Board of Directors and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints John J. Klobnak and Robert W. May, and each of them, the undersigned's
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for the undersigned and in the undersigned's name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8 with
respect to the Laser Vision Centers, Inc. Employee Stock Purchase Plan, and to
file the same, with exhibits and any and all other documents filed with respect
thereto, with the Securities and Exchange Commission (or any other governmental
or regulatory authority), granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and to perform each and every act
and thing requisite and necessary to be done in ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
/s/ John J. Klobnak Chairman of the Board of Directors, February 18, 2002
- ------------------------------------------ Chief Executive Officer and Director
John J. Klobnak (Principal Executive Officer)
/s/ B. Charles Bono, III Executive Vice President, Chief February 18, 2002
- ------------------------------------------ Financial Officer and Treasurer
B. Charles Bono, III (Principal Accounting Officer)
/s/ Robert W. May Secretary, General Counsel and February 18, 2002
- ------------------------------------------ Director
Robert W. May
/s/ James M. Garvey Director February 18, 2002
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James M. Garvey
/s/ Richard L. Lindstrom, M.D. February 18, 2002
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Richard L. Lindstrom, M.D. Director
/s/ Steven C. Straus Director February 18, 2002
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Steven C. Straus
/s/ James C. Wachtman President and Chief Operating Officer February 18, 2002
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James C. Wachtman
/s/ David S. Joseph Director February 18, 2002
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David S. Joseph
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EXHIBIT INDEX
EXHIBIT NO.
4.1 Restated Certificate of Incorporation of the Company,
incorporated herein by reference to the Company's Registration
Statement on Form 8-A (Registration No. 000-21741) filed on
November 15, 1996.
4.2 Certificate of Amendment of Certificate of Incorporation of
the Company, incorporated herein by reference to the Company's
Registration Statement on Form 8-A (Registration No.
000-21741) filed on November 15, 1996.
4.3 Bylaws, as amended, of the Company, incorporated herein by
reference to the Company's Registration Statement on Form 8-A
(Registration No. 000-21741) filed on November 15, 1996.
4.4 Amendment to Bylaws of the Company, incorporated herein by
reference to the Company's Annual Report on Form 10-K dated
July 28, 2000.
4.5 Specimen Stock Certificate, incorporated herein by reference
to the Company's Registration Statement on Form S-1
(Registration No. 33-33843) effective April 3, 1991.
5.1 Opinion of Thompson Coburn LLP as to the legality of the
securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Thompson Coburn (included in Exhibit 5.1).
24.1 Power of Attorney (set forth on signature page hereto).
99.1 Laser Vision Centers, Inc. Employee Stock Purchase Plan.
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