STAAR SURGICAL CO — Regulatory Filings 2010

Jun 17, 2010

As filed with the Securities and Exchange Commission on June 17, 2010

Registration No. 333-_____

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

STAAR SURGICAL COMPANY

(Exact name of registrant as specified in its charter)

Delaware (State or other jurisdiction of incorporation or organization 95-3797439 (I.R.S. Employer Identification No.)

1911 Walker Avenue

Monrovia, California 91016

(Address of Principal Executive Offices) (Zip Code)

STAAR SURGICAL COMPANY AMENDED AND RESTATED

2003 OMNIBUS EQUITY INCENTIVE PLAN

(Full title of the plan)

Charles Kaufman

Vice President and General Counsel

STAAR Surgical Company

1911 Walker Avenue

Monrovia, California 91016

(Name and address of agent for service)

(626) 303-7902

(Telephone number, including area code, of agent for service)

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

| o Large
accelerated filer |
| --- |
| (Do
not check if a smaller reporting company |

CALCULATION OF REGISTRATION FEE

| Title
of each class of securities to be registered | Amount
to be registered (1) | Proposed
maximum offering price per share | Proposed
maximum aggregate offering price | Amount
of registration
fee |
| --- | --- | --- | --- | --- |
| Common
Stock, par value $0.01 per share | 36,521 (2) | $8.12 (2) | $296,550.52 (2) | $21.14 (2) |
| Common
Stock, par value $0.01 per share | 20,000 (2) | $8.05 (2) | $161,000.00 (2) | $11.48 (2) |
| Common
Stock, par value $0.01 per share | 10,000 (2) | $7.50 (2) | $75,000.00 (2) | $5.35 (2) |
| Common
Stock, par value $0.01 per share | 15,000 (2) | $7.05 (2) | $105,750.00 (2) | $7.54 (2) |
| Common
Stock, par value $0.01 per share | 30,000 (2) | $6.77 (2) | $203,100.00 (2) | $14.48 (2) |
| Common
Stock, par value $0.01 per share | 35,000 (2) | $7.05 (2) | $246,750.00 (2) | $17.59 (2) |
| Common
Stock, par value $0.01 per share | 265,000 (2) | $5.39 (2) | $1,428,350.00 (2) | $101.84 (2) |
| Common
Stock, par value $0.01 per share | 60,000 (2) | $4.79 (2) | $287,400.00 (2) | $20.49 (2) |
| Common
Stock, par value $0.01 per share | 120,000 (2) | $3.82 (2) | $458,400.00 (2) | $32.68 (2) |
| Common
Stock, par value $0.01 per share | 70,000 (2) | $3.00 (2) | $210,000.00 (2) | $14.97 (2) |
| Common
Stock, par value $0.01 per share | 225,000 (2) | $2.21 (2) | $497,250.00 (2) | $35.45 (2) |
| Common
Stock, par value $0.01 per share | 169,666 (2) | $2.30 (2) | $390,231.80 (2) | $27.82 (2) |
| Common
Stock, par value $0.01 per share | 25,000 (2) | $2.45 (2) | $61,250.00 (2) | $4.37 (2) |
| Common
Stock, par value $0.01 per share | 160,000 (2) | $2.91 (2) | $465,600.00 (2) | $33.20 (2) |
| Common
Stock, par value $0.01 per share | 10,000 (2) | $4.53 (2) | $45,300.00 (2) | $3.23 (2) |
| Common
Stock, par value $0.01 per share | 22,500 (2) | $4.37 (2) | $98,325.00 (2) | $7.01 (2) |
| Common
Stock, par value $0.01 per share | 15,834 (2) | $1.56 (2) | $24,701.04 (2) | $1.76 (2) |
| Common
Stock, par value $0.01 per share | 87,667 (2) | $0.95 (2) | $83,283.65 (2) | $5.94 (2) |
| Common
Stock, par value $0.01 per share | 80,000 (2) | $1.92 (2) | $153,600.00 (2) | $10.95 (2) |
| Common
Stock, par value $0.01 per share | 20,000 (2) | $2.28 (2) | $45,600.00 (2) | $3.25 (2) |
| Common
Stock, par value $0.01 per share | 10,000 (2) | $3.75 (2) | $37,500.00 (2) | $2.67 (2) |
| Common
Stock, par value $0.01 per share | 50,000 (2) | $3.17 (2) | $158,500.00 (2) | $11.30 (2) |
| Common
Stock, par value $0.01 per share | 174,500 (2) | $3.5 (2) | $610,750.00 (2) | $43.55 (2) |
| Common
Stock, par value $0.01 per share | 127,000 (2) | $4.73 (2) | $600,710.00 (2) | $42.83 (2) |
| Common
Stock, par value $0.01 per share | 5,000 (2) | $5.20 (2) | $26,000.00 (2) | $1.85 (2) |
| Common
Stock, par value $0.01 per share | 2,000,000
shares (3) | $5.055 (3) | $10,110,000.00 (3) | $720.84 (3) |
| Common
Stock, par value $0.01 per share | 232,831
shares (4) | $5.055 (4) | $1,176,960.71 (4) | $83.92 (4) |
| TOTAL | 4,076,519
shares | | $18,057,862.72 | $1,287.53 |

(1) In addition, pursuant to Rule 416(a), this Registration Statement also covers such indeterminate number of shares of Common Stock as may be issued pursuant to the adjustment provisions of the employee benefit plan described herein.

(2) This registration statement includes a total of 1,843,688 shares of Common Stock that are reserved for issuance on the exercise of outstanding options granted pursuant to the original 2003 Omnibus Equity Incentive Plan. Pursuant to Rule 457(h), the maximum offering price, per share and in the aggregate, and the registration fee for these shares has been calculated based on the exercise price of the outstanding options under which the shares may be purchased.

(3) Reflects shares of Common Stock available for future grants pursuant to the original 2003 Omnibus Equity Incentive Plan. Pursuant to Rule 457(h), the maximum offering price, per share and in the aggregate, and the registration fee were calculated based upon the average of the high and low prices of the Common Stock on June 14, 2010, as reported on the Nasdaq Stock Market.

(4) Reflects shares of Common Stock available for future grants pursuant to the Amended and Restated 2003 Omnibus Equity Incentive Plan approved by the stockholders on May 19, 2010. Pursuant to Rule 457(h), the maximum offering price, per share and in the aggregate, and the registration fee were calculated based upon the average of the high and low prices of the Common Stock on June 14, 2010, as reported on the Nasdaq Stock Market.

EXPLANATORY NOTE

This registration statement on Form S-8 registers 4,076,519 shares of common stock available for issuance under the STAAR Surgical Company Amended and Restated 2003 Omnibus Equity Incentive Plan (the “Restated 2003 Omnibus Plan). 1,843,688 of the shares being registered are subject to outstanding options. None of the shares being registered has been issued.

The 4,076,519 shares of common stock covered by this registration statement consist of:

· 2,000,000 additional shares authorized for grants under the Restated 2003 Omnibus Plan;

· 1,586,371 shares added through automatic annual increases provided for under the original 2003 Omnibus Plan, which occurred between 2004 and 2007;

· 490,148 shares that were authorized under the original 2003 Omnibus Plan at the time of approval, but were omitted from the registration statement on Form S-8 filed by the Company on December 15, 2003 (the “2003 Registration Statement”).

On May 19, 2010, the stockholders of STAAR Surgical Company approved the Restated 2003 Omnibus Plan, which increased by 2,000,000 the number of shares available for grants under the plan. The additional shares are registered by this registration statement.

Of the 6,500,000 total shares of common stock authorized for issuance under the original 2003 Omnibus Plan, 4,423,481 were previously registered in the 2003 Registration Statement, and this registration statement registers the balance. When the original 2003 Omnibus Plan was approved on June 18, 2003, it included shares subject to STAAR’s previous 1991, 1995, 1996, 1998 and Executive plans. The original 2003 Omnibus Plan also provided that on each January 1, the total number of shares available for equity incentives under the Plan would automatically increase by a number of shares equal to 2% of the Company’s total outstanding shares of Common Stock, up to a total of 6,500,000 shares. The last of these annual increases, bringing the total number of shares under the original 2003 Omnibus Plan to 6,500,000, occurred on January 1, 2007.

• 1 -

PART I

INFORMATION REQUIRED IN THE

SECTION 10(a) PROSPECTUS

The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants in the STAAR Surgical Company Amended and Restated 2003 Omnibus Equity Incentive Plan, as specified by Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”). These documents need not be filed with the Commission either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Securities Act Rule 424 in accordance with the Note to Part I of Form S-8. These documents, and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

• 2 -

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents previously filed by the Company with the Commission are incorporated herein by reference:

(a) The Company’s Annual Report on Form 10-K for its fiscal year ended January 1, 2010, filed with the Commission on April 1, 2010;

(b) The Company’s Quarterly Report on Form 10-Q for the period ended April 2, 2010, filed with the Commission on May 12, 2010;

(c) The following Current Reports of the Company:

(i) The report on Form 8-K filed with the Commission on January 15, 2010;

(ii) The report on Form 8-K filed with the Commission on March 2, 2010;

(iii) The report on Form 8-K filed with the Commission on March 8, 2010, as amended on March 9 2010 and March 24, 2010 (with respect to items 2.01 and 9.01 only);

(iv) The report on Form 8-K filed with the Commission on March 11, 2010;

(v) The report on Form 8-K filed with the Commission on May 21, 2010;

(vi) The report on Form 8-K filed with the Commission on May 28, 2010;

(d) The description of our common stock contained in Amendment No. 1 to our registration statement on Form 8-A/A filed with the SEC on April 18, 2003, including any amendment or report filed for the purpose of updating this description.

All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents.

Item 4. Description of Securities.

Not applicable.

Item 5. Interests of Named Experts and Counsel.

The validity of the securities being registered in this registration statement will be passed upon for the Company by Charles Kaufman, Esq. Mr. Kaufman, who participated in the preparation of this registration statement, is employed by STAAR as its Vice President and General Counsel, owns 28,000 shares of our Common Stock and holds options to purchase an additional 90,000 shares of our Common Stock.

Item 6. Indemnification of Directors and Officers.

Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than a “derivative action” — an action by or in the right of the corporation) if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceedings, had no reasonable cause to believe their conduct was unlawful.

II-1

A similar standard applies in the case of derivative actions, except that indemnification only extends to expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of a derivative action, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s certificate of incorporation, bylaws, disinterested director vote, stockholder vote, agreement or otherwise.

As permitted by Section 145 of the Delaware General Corporation Law, Article VIII of our certificate of incorporation, as amended, provides:

“The corporation shall to the fullest extent permitted by Section 145 of the Delaware General Corporation Law indemnify all persons whom it may indemnify pursuant thereto.”

Our by-laws provide for indemnification of officers and directors to the fullest extent permitted by Delaware law. In addition, the Registrant has, and intends in the future to enter into, agreements to provide indemnification for directors and officers in addition to that provided for in the by-laws.

We maintain an insurance policy pursuant to which our directors and officers are insured, within the limits and subject to the limitations of the policy, against specified expenses in connection with the defense of claims, actions, suits or proceedings, and liabilities which might be imposed as a result of such claims, actions, suits or proceedings, that may be brought against them by reason of their being or having been directors or officers.

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.

See Exhibit Index.

I tem 9. Undertakings.

(a) The undersigned registrant hereby undertakes:

1. To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

i. To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);

ii. To reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

II-2

| iii. |
| --- |
| provided, however , that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration
statement is on Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) that are incorporated by reference in this
registration statement. |

1. That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

2. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fid e offering thereof.

(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, executive officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

II-3

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-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Monrovia, State of California, on June 17, 2010.

| STAAR
SURGICAL COMPANY | |
| --- | --- |
| By: | /s/Barry
Caldwell |
| | Barry
Caldwell |
| | President
and Chief Executive Officer |

II-4

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each of the undersigned directors and officers of STAAR Surgical Company, a Delaware corporation (the “Company”), hereby nominate and appoint Deborah Andrews and Charles Kaufman, and each of them acting or signing singly, as his or her agents and attorneys-in-fact (the “Agents”), for the undersigned and in the undersigned’s name, place and stead, in any and all capacities (including the undersigned’s capacity as a director or officer of STAAR Surgical Company), to sign a registration statement on Form S-8 under the Securities Act of 1933, as amended, (the “Act”), in connection with the registration under the Act of shares of the Company’s common stock issuable under the STAAR Surgical Company Amended and Restated 2003 Omnibus Equity Incentive Plan, and any and all amendments (including post-effective amendments) to such Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto the Agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitutes, may lawfully cause to be done by virtue hereof.

This Power of Attorney shall remain in full force and effect until revoked or superseded by written notice filed with the SEC.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature	Title	Date
/s/ Barry
Caldwell Barry
Caldwell	President,
Chief Executive Officer and Director (Principal
Executive Officer)	June 17,
2010
/s/ Deborah
Andrews Deborah
Andrews	Chief
Financial Officer and Chief Accounting Officer (Principal Financial and
Accounting Officer)	June 17,
2010
/s/ Don
Bailey Don
Bailey	Director	June 17,
2010
/s/ Donald
Duffy Donald
Duffy	Director	June 17,
2010
/s/ Richard A.
Meier Richard
A. Meier	Director	June 17,
2010
/s/ John
Moore John
Moore	Director	June 17,
2010
/s/ David
Morrison David
Morrison	Director	June 17,
2010

II-5

EXHIBIT INDEX

| Exhibit Number | Description
of Exhibit |
| --- | --- |
| 5.1 | Opinion
of Charles Kaufman, Esq. |
| 23.1 | Consent
of legal counsel (included in Exhibit 5.1). |
| 23.2 | Consent
of BDO Seidman, LLP. |
| 24.1 | Power
of Attorney (See p. II-5). |

II-6