SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
Filed by Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[x] Preliminary Proxy Statement
[ ] Confidential, for use of the Commission Only (as permitted
by Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss. 240.14a-11(c) or ss. 240.14a-12
LASERSIGHT INCORPORATED
-----------------------
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
1) Title of each class of securities to which transaction applies:
______________________________
2) Aggregate number of securities to which transaction applies:
______________________________
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
_________________________________________________________________________
4) Proposed maximum aggregate value of transaction:______________________
5) Total fee paid:_______________________________________________________
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:_____________________________________
2) Form, Schedule or Registration Statement No.:_______________
3) Filing Party:_______________________________________________
4) Date Filed:_________________________________________________
LaserSight Incorporated
3300 University Blvd., Suite 140
Winter Park, Florida 32792
Dear Fellow Stockholder:
You are cordially invited to attend a Special Meeting of Stockholders
of LaserSight Incorporated to be held at the Hilton Garden Inn Orlando
Airport, Orlando, Florida, telephone (407) 240-3725, on Wednesday, April 30,
2003 at 10:00 a.m. local time. We are pleased to enclose the notice of our
Special Stockholders' meeting, together with the attached Proxy Statement, a
proxy card and an envelope for returning the proxy card.
Please carefully review the Proxy Statement and then complete, date and
sign your Proxy and return it promptly. If you attend the meeting and decide to
vote in person, you may withdraw your Proxy at the meeting.
If you have any questions or need assistance in voting your shares,
please call William Kern, Sr. Vice President, Corporate Development, at (407)
678-9900, ext. 163. Your time and attention are appreciated.
Sincerely,
----------------------------
Michael R. Farris
President and Chief Executive Officer
March __, 2003
LASERSIGHT INCORPORATED
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
A Special Meeting of Stockholders of LaserSight Incorporated, a
Delaware corporation, will be held on Wednesday, April 30, 2003 at 10:00 a.m.
local time, at the Hilton Garden Inn Orlando Airport, Orlando, Florida, for:
The holders of LaserSight's common stock and the holders of
LaserSight's series H preferred stock, the Voting Holders, to authorize the
Board of Directors, in its discretion, should it deem it to be appropriate and
in the best interests of LaserSight and its stockholders, to amend LaserSight's
Certificate of Incorporation, as amended, to, without further approval or
authorization of the Voting Holders:
a. effect a reverse stock split of LaserSight's issued and
outstanding shares of common stock by a ratio that will be
established by a formula intended to produce a market price of
$1.25 per share; and
b. effect a reduction in the voting power of the series H
preferred stock in proportion to the reduction in the voting
power of the outstanding common stock that results from
effecting the reverse stock split.
We refer to this proposal as the Charter Amendment Proposal. The
proposal is described in the attached Proxy Statement.
Only holders of LaserSight's common stock (together with the associated
preferred stock purchase rights) and holders of LaserSight's series H preferred
stock of record on the books of LaserSight at the close of business on March 24,
2003, or the Record Date, will be entitled to notice of and to vote at the
Special Meeting or any adjournments or postponements thereof. A list of
stockholders of record as of the Record Date will be available at the Special
Meeting.
Your vote is important. All stockholders are invited to attend the
Special Meeting in person. However, to assure your representation at the Special
Meeting, please mark, date and sign your Proxy and return it promptly in the
enclosed envelope. Any stockholder attending the Special Meeting may vote in
person even if the stockholder returned a Proxy.
By Order of the Board of Directors,
------------------------
Gregory L. Wilson
Secretary
Winter Park, Florida
March __, 2003
Please return the enclosed proxy, which is being solicited on behalf of
the Board of Directors of LaserSight, in the enclosed envelope, which requires
no postage if mailed in the United States.
LASERSIGHT INCORPORATED
3300 University Blvd., Suite 140
Winter Park, Florida 32792
PROXY STATEMENT
Proxies in the accompanying form are being solicited by the Board of
Directors of LaserSight for use at the Special Meeting of Stockholders on
Wednesday, April 30, 2003, or at any adjournment or postponement thereof. The
Special Meeting will be held at the Hilton Garden Inn Orlando Airport, Orlando,
Florida, at 10:00 a.m. local time. This Proxy Statement is first being mailed
to stockholders on or about March ___, 2003.
Proxies are being solicited from the Voting Holders with respect to the
Charter Amendment Proposal to be presented at the Special Meeting.
INFORMATION CONCERNING SOLICITATION OF PROXIES AND VOTING
RECORD DATE. The Board of Directors has fixed the close of business on
March 24, 2003 as the record date for the determination of stockholders entitled
to notice of, and to vote at, the Special Meeting. On the Record Date,
LaserSight had outstanding [27,841,941] shares of common stock and 9,280,647
shares of series H preferred stock. The common stock and series H preferred
stock are sometimes referred to in this Proxy Statement as the "Voting Shares."
A list of stockholders of record entitled to vote at the Special Meeting will be
available for inspection by any stockholder, for any purpose germane to the
meeting, during normal business hours, for a period of 10 days prior to the
Special Meeting at the office of LaserSight located at 3300 University Blvd.,
Suite 140, Winter Park, Florida 32792. Such list will also be available at the
Special Meeting.
VOTING RIGHTS. Each share of common stock and each share of series H
preferred stock outstanding as of the Record Date is entitled to one vote upon
each of the matters to be presented at the Special Meeting. All of the holders
of the series H preferred stock have agreed to vote all of their respective
shares of series H preferred stock for the Charter Amendment Proposal.
VOTING AT THE SPECIAL MEETING. The presence of holders of a majority of
the outstanding Voting Shares, whether in person or by proxy, will constitute a
quorum at the Special Meeting. The affirmative vote, whether in person or by
proxy, of each of a majority of the outstanding common stock voting separately
as a single class, the affirmative vote, whether in person or by proxy, of a
majority of the outstanding series H preferred stock voting separately as a
single class, and the affirmative vote of a majority of the outstanding Voting
Shares, is required to approve the Charter Amendment Proposal.
Abstentions will be considered present for purposes of determining
whether a quorum exists. Because the Charter Amendment Proposal is deemed to be
a routine matter, for the purposes of voting at the Special Meeting, a broker
holding shares as record holder can vote without instruction from the beneficial
owner, and there should therefore not be broker non-votes. Abstentions, however,
will not be counted in the tally of votes FOR the Charter Amendment Proposal and
will have the same effect as votes AGAINST the Charter Amendment Proposal. A
share not voted has the same effect as an abstention.
PROXIES; REVOCATION. Whether or not you plan to attend the Special
Meeting, please sign, date and mail your proxy card in the enclosed postage
prepaid envelope. The persons named in the proxy card, the proxy holders, will
vote your shares according to your instructions. In the absence of contrary
instructions, shares represented by any proxy card will be voted for the Charter
Amendment Proposal. The proxy card gives authority to the proxy holders to vote
your shares in their discretion on any other matter properly presented at the
Special Meeting.
Any stockholder who executes and returns a proxy card may revoke it at
any time before it is exercised by (1) filing with the Secretary of LaserSight
written notice of such revocation or a duly executed proxy card bearing a later
date, or (2) by attending the Special Meeting and voting in person. Attendance
at the Special Meeting will not in and of itself constitute revocation of a
proxy.
SOLICITATION. The cost of soliciting proxies will be borne by
LaserSight. In addition, LaserSight may reimburse brokerage firms and other
persons representing beneficial owners of shares for their expenses in
forwarding solicitation material to such beneficial owners. Proxies may also be
solicited by certain of LaserSight's directors, officers and employees, without
additional compensation, personally or by telephone, telegraph or facsimile.
THE CHARTER AMENDMENT PROPOSAL:
Amendment of the Certificate of Incorporation
OVERVIEW
The Board of Directors has adopted a resolution approving, declaring
advisable and recommending the Charter Amendment Proposal to the Voting Holders
for their approval. The form of amendment to LaserSight's Certificate of
Incorporation is attached as Appendix A to this Proxy Statement (the
"Certificate of Amendment"). In the event of such approval, the filing and
acceptance by the Delaware Secretary of State of the Certificate of Amendment
will, without further approval or authorization of the Voting Holders, amend
Section 1(a) of Article IV of LaserSight's Certificate of Incorporation and
effect a reverse split of the shares of LaserSight's common stock issued and
outstanding by a ratio that will be established by a formula intended to produce
a market price of $1.25 per share, but will not change the number of authorized
shares of common stock or the par value of LaserSight's common stock or
preferred stock. See also discussion under the caption "Principal Effects of the
Reverse Stock Split--Corporate Matters."
If the Charter Amendment Proposal is approved by the Voting Holders,
the Certificate of Amendment will also, without further approval or
authorization of the Voting Holders, amend Section 3 of the Certificate of
Designations, Preferences and Rights of Series H Participating Preferred Stock
(the "Series H Certificate of Designation") to effect a reduction in the voting
power of the Series H Preferred Stock in proportion to the reduction in the
voting power of the outstanding common stock that results from effecting a
reverse stock split. The amendment to the Series H Certificate of Designation
will not otherwise alter or amend the terms, conditions, rights or preferences
of the series H preferred stock. See also the discussion below under the caption
"Purpose of the Amendment to the Series H Certificate of Designation."
The Board of Directors is authorized not to file the Certificate of
Amendment and not implement the reverse stock split or the amendment to the
Series H Certificate of Designation, if after the Special Meeting the Board of
Directors determines that filing the Certificate of Amendment would not be in
the best interests of LaserSight's stockholders.
PURPOSE OF THE REVERSE STOCK SPLIT
NASDAQ LISTING. The Board of Directors believes the reverse stock split
is the most effective means available to increase LaserSight's stock price to
over $1.00 in order to avoid a delisting of LaserSight's common stock from the
Nasdaq SmallCap Market.
As previously disclosed by LaserSight in its public filings, on August
6, 2002, LaserSight's common stock was transferred to the Nasdaq SmallCap
Market. This transfer was a result of a decision made by the Nasdaq Listing
Qualifications Panel (the "Panel") to grant LaserSight an extension of time to
demonstrate compliance with Nasdaq's requirement that it achieve a closing bid
price of at least $1.00 per share and, immediately thereafter, a closing bid
price of at least $1.00 per share for a minimum of ten consecutive trading days.
The Panel gave LaserSight until February 10, 2003 to demonstrate its compliance
with this closing bid price requirement. LaserSight failed satisfy these
requirements and on February 13, 2003, LaserSight was notified that its
securities were subject to delisting from the Nasdaq SmallCap Market. LaserSight
immediately requested an extension to evidence compliance with the minimum bid
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price requirement and at the time it requested this extension, LaserSight
indicated to the Panel that it planned to seek shareholder approval for the
implementation of a reverse stock split.
Based upon LaserSight's willingness to pursue the implementation of a
reverse stock split in the very near term, the Panel has granted LaserSight an
exception that permits a short extension to evidence compliance with the terms
of this closing bid price requirement, requiring that:
o LaserSight file, on or before March 12, 2003, a proxy statement
with the Securities and Exchange Commission and Nasdaq evidencing
its intent to seek shareholder approval for the implementation of
a reverse stock split (this requirement has been satisfied); and
o on or before April 18, 2003, LaserSight must demonstrate a closing
bid price of at least $1.00 per share and, immediately thereafter,
a closing bid price of at least $1.00 per share for a minimum of
ten consecutive trading days.
Because the Board of Directors was concerned that if the Special Meeting was
held prior to April 18, 2003 there would not be sufficient time to solicit
proxies, the Board of Directors established the Special Meeting date at April
30, 2003 to give LaserSight additional time to solicit proxies. As a result of
this timing, LaserSight is seeking a modification of the terms of this exception
to conform to the scheduled date of the Special Meeting. There is no assurance
that Nasdaq will grant LaserSight's request to so modify the terms of this
exception. In order to fully comply with the terms of this exception,
LaserSight must also be able to demonstrate compliance with all other
requirements for continued listing on the Nasdaq SmallCap Market. LaserSight
believes that it will be able to demonstrate such compliance. [DESCRIPTION OF
AND OUTCOME OF CURRENT REQUEST TO NASDAQ TO EXTEND 4/18/03 REQUIREMENT AND
POSSIBLE RELATED APPEAL.]
Because of this conditional listing on the Nasdaq SmallCap Market a
fifth character "C" has been appended to LaserSight's symbol, effective with
the open of business on March 5, 2003, when the trading symbol for LaserSight's
securities was changed from LASE to LASEC. The "C" will be removed from the
symbol when the Panel has confirmed compliance with the terms of the exception
and all other criteria necessary for continued listing.
The Board of Directors believes that a reverse stock split may have the
effect of increasing the market price per share of our common stock and allowing
the common stock to continue to be included on the Nasdaq SmallCap Market,
although there can be no assurance that the market price of our common stock
will rise in proportion to the reduction in the number of outstanding shares
resulting from the reverse stock split or, even in the event of such an
increase, that the post-reverse stock split market price can be maintained.
If LaserSight's common stock is delisted from the Nasdaq SmallCap
Market, the common stock may be traded over-the-counter, more commonly known as
OTC. OTC transactions involve risks in addition to those associated with
transactions in securities traded on the Nasdaq National Market or the Nasdaq
SmallCap Market (together "Nasdaq-Listed Stocks"). Many OTC stocks trade less
frequently and in smaller volumes than Nasdaq-Listed Stocks. The values of these
stocks may be more volatile than Nasdaq-Listed Stocks. The market for stock of
OTC companies may be adversely affected by the perception that OTC companies may
have limited product lines, markets or financial resources. If LaserSight's
common stock is traded in the OTC market and a market maker sponsors LaserSight,
we may have the price of common stock electronically displayed on the OTC
Bulletin Board, or OTCBB. However, if LaserSight lacks sufficient market maker
support for display on the OTCBB, LaserSight must have its common stock price
published by the National Quotations Bureau LLP in a paper publication known as
the "Pink Sheets." The marketability of LaserSight common stock will be even
more limited if its per share price must be published on the "Pink Sheets."
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The Board of Directors believes that maintaining Nasdaq SmallCap Market
listing may provide a broader market for LaserSight's common stock and
facilitate the use of LaserSight's common stock in financing transactions. The
Board of Directors approved the reverse stock split as a means of increasing the
share price of LaserSight's common stock above $1.00 per share. If the
stockholders do not approve the Charter Amendment Proposal and the stock price
does not otherwise increase to greater than $1.00 per share, LaserSight expects
its common stock to be delisted from the Nasdaq SmallCap Market.
THE REVERSE STOCK SPLIT MAY NOT RESULT IN AN INCREASE IN THE PER SHARE PRICE OF
LASERSIGHT'S COMMON STOCK; THERE ARE OTHER RISKS ASSOCIATED WITH THE REVERSE
STOCK SPLIT.
LaserSight cannot predict whether the reverse stock split will increase
the market price for LaserSight's common stock. The history of similar stock
split combinations for companies in like circumstances is varied. There is no
assurance that:
o the market price per new share of LaserSight common stock (the
"New Shares") after the reverse stock split will rise in
proportion to the reduction in the number of old shares of
LaserSight common stock (the "Old Shares") outstanding before the
reverse stock split; or
o the market price per New Share will either exceed or remain in
excess of the $1.00 minimum bid price as required by Nasdaq or
that LaserSight will otherwise meet the requirements of Nasdaq for
continued inclusion for trading on Nasdaq.
The market price of LaserSight's common stock will also be based on
LaserSight's performance and other market factors, in addition to the number of
shares outstanding. Furthermore, the liquidity of LaserSight's common stock
could be adversely affected by the reduced number of shares that would be
outstanding after the reverse stock split.
PRINCIPAL EFFECTS OF THE REVERSE STOCK SPLIT
CORPORATE MATTERS. If the Charter Amendment Proposal is approved at the
Special Meeting and the Board of Directors determines that a reverse stock split
is appropriate and in the best interest of LaserSight and its stockholders and
elects to effect a reverse stock split, the number of outstanding shares of
LaserSight's common stock would immediately and automatically be reduced as of
the effective date of the reverse split by the reverse stock split ratio, and
each holder's number of shares of LaserSight's common stock would be reduced
proportionately. The reverse stock split would be in a one-for-X ratio where X
is equal to the smallest integer that is either equal to or greater than the
quotient that results from dividing (i) $1.25, by (ii) the average of the
closing price per share of LaserSight's common stock on the Nasdaq SmallCap
Market for the 10 consecutive trading days immediately prior to the effective
date of the reverse stock split. For example, if the average of the closing
price per share of the common stock on the Nasdaq SmallCap Market for the 10
consecutive trading days immediately prior to the effective date of the reverse
stock split is $0.13 per share, the quotient resulting from dividning $1.25 by
$0.13 is 9.615, X is 10 (i.e., the smallest integer equal to or greater than
9.615), and the reverse stock split ratio would be 1-for-10.
The number of shares of LaserSight common stock into which LaserSight's
series H preferred stock will convert will be adjusted in accordance with the
antidilution provisions contained in the Series H Certificate of Designation.
The number of shares available under LaserSight's Amended and Restated 1996
Equity Incentive Plan, its Amended and Restated Non-Employee Directors Stock
Option Plan and its 1999 Employee Stock Purchase Plan, would be reduced
proportionately. The number of shares of LaserSight's common stock subject to
outstanding options and warrants issued by LaserSight would be reduced
proportionately and the respective exercise prices would be increased
proportionately. The number of preferred shares purchasable under the preferred
stock purchase rights (issued under LaserSight's Rights Agreement) associated
with LaserSight's common stock would be automatically adjusted to reflect the
reverse stock split.
No fractional shares of LaserSight's common stock would be issued by
LaserSight in connection with a reverse split. Holders of LaserSight's common
4
stock who would otherwise receive a fractional share of common stock pursuant to
the reverse split would receive cash in lieu of the fractional share as
explained more fully below.
The par value of LaserSight's common stock would remain unchanged at
$.001 per share, and the number of authorized shares of common stock would
remain unchanged.
If the Charter Amendment Proposal is approved at the Special Meeting
and effected by the Board of Directors, the date on which the Certificate of
Amendment is filed and accepted by the Delaware Secretary of State would be the
date on which the reverse stock split would be effected. As of March 24, 2003,
there were [27,841,941] shares of common stock issued and outstanding. If
additional shares of common stock are issued or redeemed prior to the effective
date of the reverse split, the actual number of shares issued and outstanding
before and after the reverse split would increase or decrease accordingly.
Because the reverse split would apply to all issued and outstanding
shares of LaserSight's common stock and outstanding rights to purchase common
stock or to convert other securities into the common stock, the Charter
Amendment Proposal would not alter the relative rights and preferences of
existing common stockholders. In addition and as more fully described below
under the caption "Purpose of the Amendment to the Series H Certificate of
Designation", the Charter Amendment Proposal would also effect an amendment to
the Series H Certificate of Designation to reduce the voting power of the series
H preferred stock in proportion to the reduction in the voting power of the
outstanding common stock that results from effecting a reverse stock split. The
reverse split would, however, increase the number of shares of common stock
available for future issuances by LaserSight.
The reverse stock split will be effected simultaneously for all of
LaserSight's common stock. The reverse stock split will affect all of
LaserSight's stockholders uniformly and will not affect any stockholder's
percentage ownership interests in LaserSight's common stock, except to the
extent that the reverse stock split results in any of LaserSight's stockholders
owning a fractional share of common stock. As described below, stockholders
holding fractional shares will be entitled to cash payments in lieu of such
fractional shares. Common stock issued pursuant to the reverse stock split will
remain fully paid and non-assessable. LaserSight will continue to be subject to
the periodic reporting requirements of the Securities Exchange Act of 1934, as
amended.
TRADING. If the Charter Amendment Proposal is approved at the Special
Meeting and effected by the Board of Directors, some stockholders may
consequently own less than one hundred shares of LaserSight's common stock. A
purchase or sale of less than one hundred shares (an "odd lot" transaction) may
result in incrementally higher trading costs through certain brokers,
particularly "full service" brokers. Therefore, those stockholders who own less
than one hundred shares following implementation of a reverse split may be
required to pay higher transaction costs should they subsequently determine to
sell their shares of common stock.
FRACTIONAL SHARES. If the Charter Amendment Proposal is approved at the
Special Meeting and effected by the Board of Directors, LaserSight would pay, in
lieu of any fractional shares to which a holder of LaserSight common stock would
otherwise be entitled as a result of such reverse split, cash equal to the fair
value of the Company's Common Stock as determined by the Board of Directors at
the effective time of the reverse split. Stockholders should be aware that,
under the escheat laws of the various jurisdictions where stockholders reside,
where LaserSight is domiciled and where the funds will be deposited, sums due
for fractional interests that are not timely claimed after the effective time
may be required to be paid to the designated agent for each such jurisdiction.
Thereafter, stockholders otherwise entitled to receive such funds may have to
seek to obtain them directly from the state to which they were paid.
ACCOUNTING MATTERS. The reverse stock split will not affect the par
value of LaserSight's common stock. As a result, on the effective date of the
reverse stock split, the stated capital on LaserSight's balance sheet
attributable to LaserSight's common stock will be reduced proportionately, and
the additional paid-in capital account will be increased by the amount of the
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stated capital reduction. The per share net income or loss and net book value of
LaserSight's common stock will be increased because there will be fewer shares
of LaserSight's common stock outstanding.
POTENTIAL ANTI-TAKEOVER EFFECT. Although the increased proportion of
unissued authorized shares of common stock available to be issued may, under
certain circumstances, have an anti-takeover effect (for example, by permitting
issuances that would dilute the stock ownership of a person seeking to effect a
change in the composition of the LaserSight's Board of Directors or
contemplating a tender offer or other transaction for the combination of
LaserSight with another company), the Charter Amendment Proposal is not being
proposed in response to any effort of which LaserSight is aware to accumulate
LaserSight's shares of common stock or obtain control of LaserSight, nor is it
part of a plan by management to recommend a series of similar amendments to
LaserSight's Board of Directors and stockholders. Other than the Charter
Amendment Proposal, LaserSight's Board of Directors does not currently
contemplate recommending the adoption of any other amendments to LaserSight's
Certificate of Incorporation, as amended, that could be construed to affect the
ability of third parties to take over or change the control of LaserSight.
As previously announced, LaserSight has signed a non-binding letter of
intent with Shenzhen New Industries Venture Capital Company, an affiliate of New
Industries Investment Consultants (HK), Ltd., the party based in the People's
Republic of China that invested $2,000,000 in the Company's series H preferred
stock in October of 2002. The transaction contemplated by the letter of intent
would result in LaserSight acquiring the assets and the on-going revenue stream
of 15 refractive laser centers currently operated within China. In connection
with this transaction, LaserSight would issue shares of the Company's common
stock, which would result in a change of control of LaserSight. The letter of
intent is currently being considered for approval and acceptance by the Board of
Directors and if such approval and acceptance occurs, the transactions are
subject to satisfactory completion of due diligence, receipt of all necessary
approvals, negotiation of definitive agreements and receipt of shareholder
approval.
FEDERAL INCOME TAXES. The following is a summary of certain material
federal income tax consequences of the reverse stock split and does not purport
to be a complete discussion of all of the possible federal income tax
consequences of the reverse stock split and is included for general information
only. Further, it does not address any state, local or foreign income or other
tax consequences. For example, the state and local tax consequences of the
reverse stock split may vary as to each stockholder, depending upon the state in
which he or she resides. Also, it does not address the tax consequences to
holders that are subject to special tax rules, such as banks, insurance
companies, regulated investment companies, personal holding companies, foreign
entities, nonresident alien individuals, broker-dealers and tax-exempt entities.
This discussion is based on the provisions of the United States federal income
tax law as of the date hereof, which is subject to change retroactively as well
as prospectively. This summary also assumes that the Old Shares were, and the
New Shares will be, held as a "capital asset," as defined in the Internal
Revenue Code of 1986, as amended (the "Code") (i.e., generally, property held
for investment). The tax treatment of a stockholder may vary depending upon the
particular facts and circumstances of such stockholder. Each stockholder is
urged to consult with such stockholder's own tax advisor with respect to the tax
consequences of the reverse stock split.
Other than the cash payments for fractional shares discussed below, no
gain or loss should be recognized by a stockholder upon such stockholder's
exchange of Old Shares for New Shares pursuant to the reverse stock split. The
aggregate tax basis of the New Shares received in the reverse stock split) will
be the same as the stockholder's aggregate tax basis in the Old Shares exchanged
therefor. In general, stockholders who receive cash upon redemption of their
fractional share interests in the New Shares as a result of the reverse stock
split will recognize gain or loss based on their adjusted basis in the
fractional share interests redeemed. The federal income tax liability, if any,
generated by the receipt of cash in lieu of a fractional interest should not be
material in amount in view of the low value of the fractional interest. The
stockholder's holding period for the New Shares will include the period during
which the stockholder held the Old Shares surrendered in the reverse stock
split.
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LaserSight's view regarding the tax consequence of the reverse stock
split is not binding on the Internal Revenue Service or the courts. Accordingly,
each stockholder should consult with a tax advisor with respect to all of the
potential tax consequences of the reverse stock split.
PROCEDURE FOR EFFECTING REVERSE STOCK SPLIT AND EXCHANGE OF STOCK CERTIFICATES
If the Voting Holders approve the Charter Amendment Proposal, and the
Board of Directors still believes that the reverse stock split is in the best
interests of LaserSight and its stockholders, LaserSight will file an amendment
to its Certificate of Incorporation, as amended, with the Secretary of State of
the State of Delaware. The reverse stock split will become effective on the date
on which the Certificate of Amendment is filed and accepted by the Delaware
Secretary of State. LaserSight refers to this date as the "effective time."
Beginning at the effective time, each certificate representing Old Shares will
be deemed for all corporate purposes to evidence ownership of New Shares in an
amount adjusted to reflect the reverse stock split and a right to receive cash
in lieu of any fractional shares.
As soon as practicable after the effective time, stockholders will be
notified that the reverse stock split has been effected. LaserSight expects that
its transfer agent, American Stock Transfer and Trust Company, will act as
exchange agent for purposes of implementing the exchange of stock certificates.
Holders of Old Shares will be asked to surrender to the exchange agent
certificates representing Old Shares in exchange for certificates representing
New Shares in accordance with the procedures to be set forth in the letter of
transmittal LaserSight sends to its stockholders. No new certificates will be
issued to a stockholder until such stockholder has surrendered such
stockholder's outstanding certificate(s), together with the properly completed
and executed letter of transmittal, to the exchange agent. Any Old Shares
submitted for transfer, whether pursuant to a sale, other disposition or
otherwise, will automatically be exchanged for the number of New Shares
reflecting the reverse split. STOCKHOLDERS SHOULD NOT DESTROY ANY STOCK
CERTIFICATE(S) AND SHOULD NOT SUBMIT ANY CERTIFICATE(S) UNTIL REQUESTED TO DO
SO.
Even if the stockholders approve the reverse stock split, LaserSight
reserves the right not to effect the reverse stock split if, in the opinion of
the Board of Directors, it would not be in the best interests of LaserSight and
its stockholders to effect such reverse stock split.
PURPOSE OF THE AMENDMENT TO THE SERIES H CERTIFICATE OF DESIGNATION
The amendment to Section 3 of the Series H Certificate of Designation
included in the Charter Amendment Proposal will reduce the voting power of the
series H preferred stock in proportion to the reduction in the voting power of
the outstanding common stock that results from effecting the reverse stock
split. Currently, each share of series H preferred stock has one vote per share
and each share of series H preferred stock converts into two shares of common
stock. The Series H Certificate of Designation provides for an automatic
adjustment to the number of shares of common stock into which the series H
preferred stock will convert as a result of a reverse stock split; however, the
Series H Certificate of Designation does not provide for an automatic adjustment
to the voting rights of the series H preferred stock or to the number of shares
of series H preferred stock as a result of a reverse stock split. As a result,
unless the Series H Certificate of Designation is amended as described in this
Proxy Statement, the voting rights of the outstanding shares of series H
preferred stock would not be reduced as part of the reverse stock split. This
means that the voting rights of the series H preferred stock would benefit from
remaining constant while the voting rights of the common stock would be
decreased as a result of the reverse stock split. The amendment to the Series H
Certificate of Designation included in the Charter Amendment Proposal will
result in the voting rights of the holders of the series H preferred stock being
adjusted in the same manner as the voting rights of the holders of common stock
as a result of the reverse stock split.
All of the holders of the series H preferred stock have agreed to vote
all of their respective shares of series H preferred stock for the Charter
Amendment Proposal.
7
NO DISSENTER'S RIGHTS UNDER THE DELAWARE GENERAL CORPORATION LAW
LaserSight's stockholders are not entitled to dissenter's rights with
respect to the Charter Amendment Proposal, and LaserSight will not independently
provide stockholders with any such right.
THE BOARD OF DIRECTORS RECOMMENDS THAT STOCKHOLDERS VOTE "FOR"
THE CHARTER AMENDMENT PROPOSAL.
SECURITY OWNERSHIP OF MANAGEMENT AND PRINCIPAL STOCKHOLDERS
The following table sets forth certain information regarding ownership
of LaserSight common stock, as of March 6, 2003, by:
o each person known to LaserSight to own beneficially more than 5%
of LaserSight outstanding common stock;
o each of LaserSight's directors;
o each of LaserSight's executive officers; and
o all of LaserSight's directors and executive officers as a group.
The beneficial ownership of LaserSight's common stock set forth in this
table is determined in accordance with the rules of the Securities and Exchange
Commission. Unless otherwise indicated in the footnotes below, the persons and
entities named in the table have sole voting and investment power as to all
shares beneficially owned, subject to community property laws where applicable.
Common Stock Series H
Name and Address of Beneficial Owner Ownership (1) Preferred
------------------------------------ ------------- -----------
Directors and Executive Officers:
Michael R. Farris 764,683 (2)(3)
2.7%
Jack T. Holladay, M.D. 361,584 (2)
1.3%
Francis E. O'Donnell, Jr., M.D. 339,745 (2)(4)
1.2%
Gregory L. Wilson 259,333 (2)
*
Steven Shi 172,300 (5)
*
Guy W. Numann 102,500 (2)
*
Ying Zhi Gu 97,660
*
David T. Pieroni 92,500 (2)
*
Xian Ding Weng 0
*
All directors, nominees and executive
officers as a group (9 persons) 2,190,305 (2)
7.4%
Other 5% Stockholders:
TLC Laser Eye Centers Inc. 3,221,883 (6)
5280 Solar Drive, Suite 300 11.6%
Mississauga, Ontario
Canada L4W 5M8
New Industries Investment
Consultants (H.K.) Ltd. 8,980,647(7)
Shenzhen, People's Republic
of China 96.8%
-------------------------
* Less than 1%.
8
(1) Each number of shares of common stock shown as owned in this column
assumes the exercise of all currently-exercisable options and warrants
and all options and warrants that will become exercisable within 60
days of March 6, 2003. Each percentage shown in this column assumes the
exercise of all such options and warrants by the applicable person or
group, but assumes that no options or warrants held by any other
persons are exercised or converted. The exercise price of each of the
options and warrants are significantly above the current trading price
of common stock.
(2) Includes options (and 67,500 warrants in the case of Mr. Numann) to
acquire shares of common stock which are now exercisable or will become
exercisable within 60 days of March 6, 2003, as follows: Dr. O'Donnell
(110,000); Mr. Farris (760,883); Mr. Pieroni (90,000); Dr. Holladay
(359,584); Mr. Wilson (244,333) and Mr. Numann (102,500)); and all
directors and executive officers as a group (1,667,300).
(3) SunTrust Bank, the holder of 412,200 shares of common stock pledged by
Mr. Farris to secure a personal borrowing, has given notice of its
intention to sell those shares in compliance with Rule 144 (k) under
the Securities Act of 1933 and to apply the net proceeds of the sales
first to expenses and then to reduction of Mr. Farris' borrowing, with
any excess to be remitted to Mr. Farris. Counsel to LaserSight has
delivered its opinion that the shares may be sold in compliance with
Rule 144 (k) and counsel for the bank has been authorized to, and has
undertaken to, provide notice of any sale in sufficient time to permit
Mr. Farris to file a Form 4 in time to comply with the current two day
filing requirement of the Securities and Exchange Commission. Mr.
Farris has had discussions with the bank and, to March 12, 2003, no
notice of sale has been received.
(4) Includes 181,245 shares held by the Irrevocable Trust No. 7 for the
benefit of the Francis E. O'Donnell, Jr., M.D. Trust or shares held by
the Francis E. O'Donnell, Jr. Descendants Trust. Ms. Kathleen M.
O'Donnell, the sister of Dr. O'Donnell, is trustee of both Trusts. Dr.
O'Donnell disclaims beneficial ownership of such shares.
(5) Includes 172,300 shares of common stock owned by Mr. Shi's spouse.
(6) Represents (a) 3,171,833 shares of common stock presently owned by TLC
(based on information supplied to LaserSight as of March 6, 2003), and
(b) 50,000 shares of common stock issuable to TLC upon exercise of all
of its 50,000 warrants at a price of $5.125 per share.
(7) The holders of each share of series H preferred stock shall be entitled
to the number of votes equal to the number of shares of series H
preferred stock held by such stockholder at the Record Date.
9
STOCKHOLDER PROPOSALS FOR THE 2003 ANNUAL MEETING
If a stockholder intends to nominate a person for election to the Board
of Directors or present a proposal for business to be considered at the 2003
Annual Meeting of Stockholders but does not seek inclusion of the nomination or
proposal in LaserSight's proxy statement for such meeting, LaserSight must
receive the nomination or proposal after June 27, 2003 and before July 27, 2003
for it to be considered timely received. If notice of a stockholder nomination
or proposal is timely received, as described above, the holders of proxies
solicited in connection with LaserSight's proxy statement for such meeting can
exercise discretionary authority with respect to such proposal only to the
extent permitted by the regulations of the Securities and Exchange Commission.
If notice of a stockholder nomination or proposal is not timely received, such
holders of proxies can exercise discretionary authority with respect to the
proposal.
All stockholder proposals must contain all of the information required
under LaserSight's Bylaws, a copy of which is available, at no charge, from the
Secretary, and should be sent to LaserSight Incorporated, 3300 University
Boulevard, Suite 140, Winter Park, Florida 32792, addressed to the attention of
Gregory L. Wilson, Secretary.
STOCKHOLDER PROPOSALS FOR INCLUSION IN THE PROXY STATEMENT FOR THE 2003 ANNUAL
MEETING
In order to be considered for inclusion in LaserSight's proxy materials
for the 2003 Annual Meeting of Stockholders, any stockholder proposals must be
received by LaserSight no later than June 2, 2003. Proposals should be sent to
LaserSight Incorporated 3300 University Boulevard, Suite 140, Winter Park,
Florida 32792, addressed to the attention of Gregory L. Wilson, Secretary.
OTHER MATTERS
The Charter Amendment Proposal is the only business that may be
conducted at the Special Meeting, other than procedural matters and matters
relating to the conduct of the meeting. If any such other matter should properly
come before the meeting, it is intended that votes will be cast pursuant to the
Proxy in respect thereto in accordance with the best judgment of the person or
persons acting as proxies.
By Order of the Board of Directors,
Gregory L. Wilson
Secretary
Winter Park, Florida
March __, 2003
10
APPENDIX A
FORM OF
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
LASERSIGHT INCORPORATED
LaserSight Incorporated (the "Company"), a corporation organized and
existing under the laws of the State of Delaware, in order to amend its
Certificate of Incorporation (the "Certificate") pursuant to the provisions of
the General Corporation Law of the State of Delaware (the "Act"), does hereby
certify as follows:
1. At a meeting duly called and held, the Board of Directors of the
Company unanimously adopted a resolution to submit to the stockholders of the
Company a proposal to (i) amend Section 1(a) of Article IV of the Certificate to
effect a reverse stock split of the Company's issued and outstanding common
stock, and (ii) amend Section 3 of the Certificate of Designations, Preferences
and Rights of Series H Participating Preferred Stock (the "Series H Certificate
of Designation") to effect a reduction in the voting power of the Series H
Preferred Stock in proportion to the reduction in the voting power of the
outstanding common stock that results from effecting a reverse stock split.
2. The full text of Section 1(a) of Article IV of the Certificate shall
be amended hereby to read as follows:
(a) Common Stock. The aggregate number of shares of Common
Stock which the corporation shall have authority to issue is
100,000,000, each with a par value of $.001 per share. Effective at
5:00 p.m., eastern time, on the filing date of this Certificate of
Amendment to Certificate of Incorporation (the "Effective Time"), a
one-for-X (as defined below) reverse stock split of the Common Stock
shall become effective, such that each X shares of Common Stock
outstanding and held of record by each stockholder of the corporation
(including treasury shares) immediately prior to the Effective Time
shall be reclassified and combined into one share of Common Stock
automatically and without any action by the holder thereof upon the
Effective Time and shall represent one share of Common Stock from and
after the Effective Time. No fractional shares of Common Stock shall be
issued as a result of such reclassification and combination. In lieu of
any fractional shares to which the stockholder would otherwise be
entitled, the corporation shall pay cash equal to such fraction
multiplied by the then fair value of the Common Stock as determined by
the Board of Directors of the corporation.
For purposes of the preceding paragraph, "X" is defined to mean the
smallest integer that is either equal to or greater than the quotient
that results from dividing (i) $1.25, by (ii) the average of the
closing price per share of the Common Stock on the Nasdaq SmallCap
Market for the 10 consecutive trading days immediately prior to the
Effective Time.
3. The full text of Section 3(a) of the Series H Certificate of
Designation shall be amended hereby to read as follows:
(a) In addition to any voting rights provided by law and the
special voting rights provided in Section 3(b), the holder of each
share of Series H Preferred Stock shall be entitled to vote upon all
matters upon which holders of the Common Stock have the right to vote,
and, except as described in the following paragraph, the shares of
Series H Preferred Stock held by each such holder shall be entitled to
the number of votes equal to the number of shares of Series H Preferred
Stock held by such holder at the record date for the determination of
the stockholders entitled to vote on such matters, or if no such record
date is established, at the date such vote is taken or any written
consent of stockholders is solicited. Except as required by law or as
A-1
otherwise specifically set forth in this Certificate of Designation,
the holders of shares of Series H Preferred Stock and Common Stock
shall vote together as a single class and not as separate classes.
Effective as of the Effective Time (as defined in Section 1(a)
of Article IV of the Certificate), to the extent that the holders of
Series H Preferred Stock are entitled to vote under this Certificate of
Designation or pursuant to applicable law, each holder of Series H
Preferred Stock shall be entitled to that number of votes equal to the
smallest integer that is either equal to or greater than the quotient
that results from dividing (i) the number of shares of Series H
Preferred Stock held by such holder at the record date for the
determination of the stockholders entitled to vote on such matters, or
if no such record date is established, at the date such vote is taken
or any written consent of stockholders is solicited, by (ii) X (as
defined in Section 1(a) of Article IV of the Certificate).
4. At a special meeting of the Company's stockholders duly called and
held upon notice in accordance with Section 222 of the Act, the foregoing
amendment to the Certificate was duly adopted by the holders of at least a
majority of each of (i) the outstanding common stock, and (ii) the preferred
stock of the Company, entitled to vote thereon in accordance with the provisions
of Section 242 of the Act.
IN WITNESS WHEREOF, the Company has caused this Certificate of
Amendment to be signed by its duly authorized officer this ___ day of
__________, 2003.
LASERSIGHT INCORPORATED
By:
-------------------------------------
Michael R. Farris
President and Chief Executive Officer
Attest:
----------------------------
Gregory L. Wilson
Secretary
A-2
LASERSIGHT INCORPORATED
PROXY
SPECIAL MEETING OF STOCKHOLDERS, APRIL 30, 2003
This Proxy is solicited on behalf of the Board of Directors
The undersigned hereby (i) appoints Michael R. Farris and Gregory L.
Wilson and each of them as proxy holders and attorneys, with full power of
substitution to appear and vote all of the shares of common stock of LaserSight
Incorporated which the undersigned shall be entitled to vote at the Special
Meeting of Stockholders of LaserSight, to be held on Wednesday, April 30, 2003
at 10:00 a.m. EDT, and at any adjournments thereof, hereby revoking any and all
proxies previously given and (ii) authorizes and directs said proxy holders to
vote all of the shares of common stock of LaserSight represented by this proxy
as indicated on this proxy and in the discretion of the proxy holder with regard
to any other matter that properly comes before the meeting. If no directions are
given below, said shares will be voted "FOR" the Charter Amendment Proposal.
------------------------------------------------------------------------------
(1) Approve the Charter Amendment Proposal [ ] FOR [ ] AGAINST [ ] ABSTAIN
(2) In their discretion to act on any other
matters which may properly come before
the Special Meeting.
Please date, sign and return promptly in
the accompanying envelope.
Dated: ___________________________, 2003
----------------------------------------
----------------------------------------
(If held jointly)
Your signature should be exactly the
same as the name imprinted herein.
Persons signing as executors,
administrators, trustees or in similar
capacities should so indicate. For joint
accounts, each joint owner must sign.
The Board of Directors Recommends You Vote FOR the Charter Amendment Proposal.
LASERSIGHT INCORPORATED
PROXY
SPECIAL MEETING OF STOCKHOLDERS, APRIL 30, 2003
This Proxy is solicited on behalf of the Board of Directors
from the holders of Series H Preferred Stock
The undersigned hereby (i) appoints Michael R. Farris and Gregory L.
Wilson and each of them as proxy holders and attorneys, with full power of
substitution to appear and vote all of the shares of series H preferred stock of
LaserSight Incorporated which the undersigned shall be entitled to vote at the
Special Meeting of Stockholders of LaserSight, to be held on Wednesday, April
30, 2003 at 10:00 a.m. EDT, and at any adjournments thereof, hereby revoking any
and all proxies previously given and (ii) authorizes and directs said proxy
holders to vote all of the shares of series H preferred stock of LaserSight
represented by this proxy as indicated on this proxy and in the discretion of
the proxy holder with regard to any other matter that properly comes before the
meeting. If no directions are given below, said shares will be voted "FOR" the
Charter Amendment Proposal.
------------------------------------------------------------------------------
(1) Approve the Charter Amendment Proposal [ ] FOR [ ] AGAINST [ ] ABSTAIN
(2) In their discretion to act on any other
matters which may properly come before
the Special Meeting.
Please date, sign and return promptly in
the accompanying envelope.
Dated: ___________________________, 2003
----------------------------------------
----------------------------------------
(If held jointly)
Your signature should be exactly the
same as the name imprinted herein.
Persons signing as executors,
administrators, trustees or in similar
capacities should so indicate. For joint
accounts, each joint owner must sign.
The Board of Directors Recommends You Vote FOR the Charter Amendment Proposal.